“Smash the gangs” or save the people? Human rights, Brexit Britain and the EU’s power to influence UK asylum policy

Abstract

In 2016, the UK’s historic withdrawal from the European Union (EU) took place amongst a wider European context defined by the narrative of “crisis”. Against this backdrop, the UK has pursued an increasingly securitised and criminalised approach to asylum, characterised by its response to irregular migration across the Channel. From EU Member state to third country, post-Brexit the EU-UK relationship has been confined to the realms of a hard-negotiated trade agreement, the EU-UK Trade and Cooperation Agreement (TCA). This thesis investigates the existing legal landscape of the human rights relationship between the EU and the UK, defined in the TCA by a singular human rights clause. In doing so, it considers the extent to which the human rights clause can serve as a tool of EU influence over UK small boat Channel crossings. This question is situated at the complex intersection of international trade law, EU external policy and domestic asylum agendas, with few prior models of scholarship to draw from. Drawing upon an interdisciplinary methodology, the research combines doctrinal legal and policy analysis to bridge the gap between the letter of the law and the law in practice. Legal analysis is used to examine the relevant legal frameworks that govern the human rights obligations of the UK and the EU. This is complemented by policy analysis informed by international relations theory to understand how the EU and UK’s legal human rights obligations are enacted in practice. The thesis finds that while the current legislative trajectory of the UK’s asylum policies presents a systematic departure from international human rights obligations, the human rights clause of the TCA has limited power of influence. Presented as a legally binding obligation, the human rights clause is a symbolic gesture, with little possibility of utilisation. Expanding upon this, the thesis contends that the EU’s own actions undermine its power as a normative actor in the international community.