Dublin vs Dubs

Since Europe’s migrant crisis began in early 2015 vast swathes of the public, human rights campaigners and politicians alike have been disturbed by the images of the unsafe, unsanitary and punishing conditions in refugee camps across Europe. Thus, the transfer of unaccompanied asylum seeking children from the Calais ‘Jungle’ to the UK in October was, without doubt, a cause for celebration, and signified a milestone in the struggle for a more humane immigration and asylum policy.

Yet, there is an alarming political reality behind the arrival of child refugees in immigration processing centres in the UK, because domestic immigration legislation passed in May 2016 allows for many more children to come to the UK than have actually been permitted. Thus, the arrival of unaccompanied minors, which should have provoked a moment of celebration, was simultaneously a bittersweet reminder of the Government’s woefully inadequate response to Europe’s migrant crisis.

Home Secretary Amber Rudd hailed the arrival of 312 unaccompanied asylum seeking children to the UK as “a really good result”. Yet, whilst the Government congratulates itself on accepting a mere 300 children, the fact remains that domestic legislation allows for the UK to positively impact the lives of hundreds – even thousands – more children.

To explain, unaccompanied asylum seeking children can be brought to the UK under one of two systems. Firstly, the Family Reunification provisions of the Dublin III Regulations allow for asylum seekers who have family members who have already received international protection in another state to be transferred to join those family members and have their asylum claim determined by that country. This is an existing system rooted in EU asylum policy – meaning the Government have no choice but to comply with the legislation, and there is no limit to the number of children who can be brought to the UK.

On the other hand, the Dubs system of transfer allows for unaccompanied children with or without family in the UK to be transferred into British care, providing that they arrived in Europe before 20th March 2016 and that it is deemed to be in the child’s “best interests” to be relocated. Thus, many children who may have been excluded from coming to the UK under the Dublin Regulations because they do not have family members in the UK, may now fall under the criteria of the Dubs amendment.

This system comes from the Dubs amendment (so-called because it was tabled by Labour’s Lord Alf Dubs who was, himself, brought to the UK under the Kindertransport scheme during the Second World War), and is rooted in section 67 of the 2016 Immigration Act (passed in May this year), which makes provision for the acceptance of an unspecified number of unaccompanied child refugees. The Dubs system is still being established and, crucially, since it is entrenched in domestic law, it does not therefore hold any power across the Channel.

As explained, these two systems are not synonymous – however, they are often conflated. In the publication of quarterly immigration statistics and in the Home Secretary’s statements to the House of Commons, it is often unclear whether the children in question are being transferred under the Dubs amendment, or the Dublin III Regulations. Such a failure to properly distinguish between these two systems makes it difficult to judge the extent to which the provisions of the Dubs amendment are being properly fulfilled. This, conveniently, enables the Government to disguise the number of children actually accepted under the Dubs system. As of 1st November, 312 unaccompanied children had been transferred from Calais. However, 252 of these were Dublin cases – meaning the Government had no choice in accepting them. In short, British authorities have voluntary accepted only 60 cases under the Dubs amendment – a far cry from the 3,000 children quoted in the original campaigned for by Lord Dubs.

Putting aside the debate about the number of refugees the UK should be accepting, the delayed response in enacting the provisions of the Dubs amendment is indicative of disproportionate power of the executive. Despite legislative apparatus being in place since May 2016, it was not until mid-October – a full five months after the passage of the Immigration Act – that the first child was brought to the UK under the Dubs system.

In a statement to the House, the Home Secretary blamed the delay in establishing the Dubs transfers on the fact that the “French Government was requesting we did not transfer children outside of the Dublin Regulation process”. This explanation seems improbable at best – especially considering that the French have, for years, been consistently pressuring the British to take more responsibility for the situation in Calais. Most recently, the French President François Hollande called on the British Government “to take your responsibilities and assume your moral duty by immediately organising their [refugee children’s] arrival”. Therefore, it is plain to see that any delays in arranging the Dubs system are not being caused by the French.

Either way, this does not account for the woeful lack of preparation on this side of the Channel. Whether or not the French allowed for the transfer of persons under the Dubs amendment, the Home Office had five months over the summer to make the necessary preparations. Despite this, the arrival of the first child refugees was surrounded by allegations that the Home Office opted not to act on a plan designed and agreed by councils to ensure vulnerable child refugees were adequately housed. Leaked emails also show the Home Office descending into widespread panic as they had failed to make adequate accommodation provisions for the newly arrived unaccompanied minors.

Meanwhile, in the camp itself there has been a substantial human cost to this sluggish response. According to Help Refugees UK, since partial demolition of the camp began in February this year, 129 minors have gone missing. Countless more have fallen victim to traffickers, smugglers, road accidents and police brutality. This was entirely preventable, had the Home Office established the Dubs system sooner.

Although the Dubs amendment does not provide a definitive time limit on the implementation of its provisions, it does state that the process should begin “as soon as possible after the passing of this Act”. Clearly this legislation has not been interpreted and implemented properly. Such failure is emblematic of not just the current Government’s morally unacceptable stance on the humanitarian crisis, but also of the disturbing ease with which the executive is able to indefinitely delay and therefore effectively circumvent requirements set out through Parliament’s full democratic process.

It is yet more troubling to consider the Government’s apparent inability to efficiently organise the transfer of children in light of the speed with which they have supplied funds to the French in order to protect British economic interests. In October £36 million was provided to the French to further strengthen perimeter security around the Euro-tunnel complex, and support the general clearance of the ‘Jungle’. This begs the question, if £36 million can be found to support the demolition of the camp, why can it not be found to support the Government’s commitment under the Dubs amendment – a provision which possesses democratic mandate, unlike the spending of millions of pounds on Eurotunnel security?

Equally disturbing is the reality that it was only with the imminent demolition of the ‘Jungle’ that the Government finally acted. However, that the camp was to be demolished by the end of 2016 has been common knowledge since February, and the power to bring children to the UK was granted in May. Yet, the Government didn’t act until October.  The children in question should have been identified, registered and transferred long before the demolition began. Instead, over 100 unaccompanied minors were left sleeping rough amongst the ashes and debris of the camp in the immediate aftermath of the demolition.

Had the Home Office acted upon its obligations under the Dubs amendment “as soon as possible” – as the Act stated – the violence and trauma experienced by vulnerable children could have been avoided. It is chilling to consider how much longer British authorities would have dithered before acting under the obligations of Dubs had the demolition of the ‘Jungle’ taken place later.

Just as relevant to the sudden burst of activity on the part of the Home Office, is a legal case brought against the Home Secretary in mid-October. Help Refugees (represented by Leigh Day Solicitors) challenged the Home Secretary’s failure to properly interpret and implement section 67 of the Immigration Act. It would be, I argue, more than conjecture to suggest that this could be a key motivator behind the Government’s subsequent acceleration in implementing the transfer process.

Finally, we must ask ourselves, why did it take the closure of the camp itself and a judicial review of the Home Office to begin the process of transferring children – something which statute stipulated should have begun sooner? Whether or not one agrees with the specific provisions of the Dubs amendment, deliberate delay in the implementation of statute to fulfil the executive’s own skewed agenda reflects not just the current Government’s depraved and immoral stance on Europe’s migrant crisis, but is also emblematic of the worrying lack of effective controls on the power of the executive.