Select Committee on European Scrutiny Eighth Report


HARMONISATION OF FINANCIAL PENALTIES IMPOSED ON CARRIERS


(a)
(21517)
10186/00




(b)
(21879)
13510/00



(c)
(21883)
14074/00

Initiative of the French Republic with a view to the
adoption of a Council Directive concerning the
harmonisation of financial penalties imposed on
carriers transporting into the territory of the Member
States third-country nationals not in possession of the
documents necessary for admission.

Draft Council Directive concerning the harmonisation
of penalties imposed on carriers transporting into the
territory of the Member States third-country nationals
lacking the documents necessary for admission.


Draft Council Directive concerning the harmonisation
of penalties imposed on carriers transporting into the
territory of the Member States third-country nationals
lacking the documents necessary for admission



Legal base: Articles 61(a) and 63(3)(b) EC
Document originated: (b) 16 November 2000
(c) 29 November 2000
Forwarded to the Council: (b) 16 November 2000
(c) 29 November 2000
Deposited in Parliament: (b) 7 December 2000
(c) 7 December 2000
Department: Home Office
Basis of consideration: (a) EM of 27 September 2000
(b) and (c) EM of 15 January 2001
Previous Committee Report: (a) HC 23-xxx (1999-2000), paragraph 5 (22 November 2000)
(b) and (c) None
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: (a) and (b) Cleared
(c) Not cleared; further information requested

Background

  5.1  The Conclusions of the Tampere and Feira European Councils called for a range of legislative and practical measures to tackle illegal immigration. The draft Directive put forward by France in July 2000 (document (a)) is one of several measures proposed by France during its Presidency. This draft has now been superseded by a draft Council Directive (document (c)) submitted in November 2000, which also supersedes an earlier revision of the French proposal (document (b)).

  5.2  When we considered the French proposal (document (a)) on 22 November 2000, we agreed with the Minister of State at the Home Office (Mrs Barbara Roche) that two points needed further exploration. These were, first, that a better definition was needed for the exception relating to admission for the purposes of asylum, so as to ensure proper protection for those with a genuine asylum claim and to prevent abuse of the immigration system. Secondly, we considered that the obligations imposed on carriers were open-ended and unquantifiable and that the lack of provision for defences was unacceptable.

Document (c)

  5.3  The draft Council Directive is a substantial revision of the French proposal, which it supersedes (document (a)). It also supersedes an earlier revision of the French proposal (document (b)). The aim of the Directive is expressed in Article 1 as being to supplement Article 26 of the Agreement implementing the Schengen Convention, signed at Schengen on 19 June 1990.[21]

  5.4  Article 2 of the draft Directive requires Member States to take the necessary steps to ensure that the obligation to return[22] provided for in Article 26(1)(a) of the Schengen Convention shall also apply where entry is refused to a third-country national in transit. This obligation is to apply if the carrier, who was to take him to his country of destination, refuses to take the third-country national on board, or if the authorities of the State of destination have refused him entry and have sent him back to the State through which he transited. Article 2 also provides that the carrier is to be obliged to find means of onward transportation immediately, and to bear its cost, if the carrier is unable to effect the return of the third-country national. If immediate onward transportation is not possible, the carrier is to be obliged to take charge of the third-country national who has been refused entry.

  5.5  Article 3 provides for penalties of a maximum of not less than 5,000 euros or a minimum of not less than 3,000 euros for each person carried or that the maximum penalty imposed as a lump sum is not less than 500,000 euros. Article 4 permits Member States to impose other penalties of different kinds such as seizure or confiscation of the means of transport. Article 5 permits a Member State to apply the measures adopted under the directive to the crossing of its internal borders, where it decides to apply the provisions of Article 2(2) of the Schengen Implementing Agreement.

  5.6  Article 6 provides that:

    "Member States shall ensure that their laws, regulations and administrative provisions stipulate that carriers to which penalties are applied have effective rights of defence and appeal."

The Government's views

  5.7  In her Explanatory Memorandum of 15 January 2001, the Minister of State at the Home Office (Mrs Barbara Roche) confirms that the United Kingdom has opted into the proposal in accordance with the Protocol on the position of the United Kingdom and Ireland. The Minister comments on the policy implications of the proposal as follows:

    "The draft directive has now been substantially redrafted to align it much more closely with Article 26 of the Schengen Implementing Convention. In consequence, the concerns raised by the UK Government and the Scrutiny Committee over the lack of defences for carriers and the potential for unlimited liability costs for carriers have been addressed. We are content that the revised draft does not prevent us from operating our Direct Airside Transit Visa policy. In addition, the reference to the exemption from the penalty for carriers responsible for transporting persons seeking asylum has now been removed. However, application of the draft directive is without prejudice to obligations resulting from the UN Convention relating to the Status of Refugees. We are satisfied, therefore, that this would not prevent us from continuing to waive charges in the case of successful asylum claimants.

    "The latest text (14074/00) of the draft Directive has met the Government's two remaining concerns, over the size of the penalty and the application to trains, by:

    "—  allowing for a maximum charge of not less than 5000 Euros (£3000), or a minimum charge of not less than 3000 Euros (£1800) for each person carried. This ensures that the UK does not have to raise its current penalty and jeopardise the carrier co-operation which is an essential part of our immigration control; and

    "—  amending the recitals to make it clear that Member States are permitted to retain, or to introduce, additional obligations for carriers, whether or not they are covered by the present Directive."

  5.8  On the question of the regulatory impact of the proposed Directive, the Minister comments as follows:

    "We are satisfied that the potential for unlimited liability costs for carriers has been removed by aligning the draft directive with Article 26 of the Schengen Implementing Convention."

Conclusion

  5.9  We note that the Minister is satisfied that the concerns we expressed on the exception relating to asylum, the open-ended nature of the obligations imposed on carriers and the lack of provision for defences, have been met. At present, we remain to be convinced that this is so, and would be grateful for an explanation of the reasons for this conclusion.

  5.10  We note that the exception from the penalty for carriers responsible for persons seeking asylum has been removed, but this removal appears to us to make it the more important to include appropriate defences for carriers. The reference in Article 6 of the Directive to "effective rights of defence and appeal" appears to us to be concerned with questions of procedure, rather than with substantive exemptions or defences. We would therefore be grateful for a fuller explanation of the basis for arguing that the United Kingdom is free to continue to waive charges on carriers, since we find it difficult to see how this freedom necessarily follows from the reference in the Directive to the United Nations Convention relating to the Status of Refugees. Given that this was one of the Minister's concerns, we would also be grateful for her comments on whether it would be preferable for such defences to appear on the face of the Directive.

  5.11  We also find difficult to follow the conclusion that the potential for unlimited liability costs for carriers has been removed, since the Directive still imposes, without limit of time, an obligation on the carrier to 'take charge' of the third-country national. We would be grateful for an explanation of how this concern is met by "aligning" the draft Directive with Article 26 of the Schengen Implementing Convention.

  5.12  As documents (a) and (b) have been superseded, we are content to clear them, but we shall hold document (c) under scrutiny pending the Minister's reply.


21  OJ No. L 239, 22.9.00, p.1.  Back

22  i.e. the obligation on carriers, provided for in Article 26.1(a) of the Schengen implementing convention, to assume responsibility for aliens refused entry into a Contracting State and to return the aliens to the Third State from which they were transported, or to the Third State which issued the relevant travel document or to any other Third State to which they are guaranteed entry.  Back


 
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