Select Committee on European Scrutiny Tenth Report




Proposal by the Federal Republic of Germany for the adoption of a Council Resolution on Member States' obligation to transmit information on illegal immigration and facilitator networks in connection with participation in the CIREFI early warning system.

Draft initiative by the Federal Republic of Germany for the adoption of a Council Decision on Member States' obligation to transmit information on illegal immigration and facilitator networks pursuant to an early warning system.

Legal base: (b) Articles 66 and 67(1) EC; consultation; unanimity
Deposited in Parliament: (b) 16 March 2001
Department: Home Office
Basis of consideration: (a) Minister's letter to Lord Tordoff (undated)
(b) EM of 23 March 2001
Previous Committee Report: HC 28-v (2000-01), paragraph 4 (7 February 2001)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: (a) Cleared
(b) Not cleared; further information requested


  2.1  This proposal aims to improve an existing early warning system by making the exchange of information on illegal immigration and facilitator networks compulsory. It lists the information that is to be exchanged, and requires Member States to take any necessary measures and inform other States about these. It states that the information will relate to non-personal data.

  2.2  When we considered document (a) in February, we found it a confusing proposal. In particular, although it was framed as a non-binding Resolution it appeared to impose obligations and requirements on Member States. We asked the Minister of State at the Home Office (Mrs Barbara Roche) a number of questions, and kept the document under scrutiny.

  2.3  The Minister has now written to Lord Tordoff addressing some of our questions, as well as others raised by our sister Committee in the House of Lords. The proposal itself has been recast as a draft Council Decision, and the Minister has deposited the new text, (document (b)), together with an Explanatory Memorandum.

Document (b) and the Government's view

  2.4  Document (b) replaces document (a), recasting the proposal as a draft Council Decision rather than a Resolution, and citing a different legal base. There are no other major changes. The Minister tells us that the Government supports initiatives to improve the early warning system, to which it is committed. However, it would wish to see a more fundamental review of the system before it could agree to making it compulsory. She reports that the Commission has circulated a UK note to all Member States putting forward revised operating guidelines in an attempt to improve the efficiency of the current system.

  2.5  Now that the proposal has been recast as a draft Decision, the Government will have to decide whether or not to exercise its opt-in to the measure (under the Protocol on the position of the United Kingdom and Ireland). The Minister undertakes to let us know the Government's decision, and tells us that in the meantime the UK will participate in discussions and will monitor the position of other Member States in relation both to the proposal, and to the UK's suggested improvements to the current non-binding arrangements.

The Minister's response to Lord Tordoff

  2.6  In her letter to Lord Tordoff, the Minister addresses two of the three questions we raised. We asked why Ministerial authorisation under the Race Relations (Amendment) Act 2000 might be necessary. She replies:

"our legal advice is that the potential for discrimination under the Act relates to the use of information rather than to its exchange. Such discrimination could arise under Section 19 b of the Race Relations Act 1976, as amended by Section 1 of the Race Relations (Amendment) Act 2000, were Immigration Service staff to act on the information by paying particular attention to certain nationalities or ethnic groups."

  2.7  We also asked why no role for the Commission was identified in the proposal, and whether the Minister was content with the omission. The Minister tells us that the Resolution which set up the early warning system[2] gave the work of collating information to the General Secretariat. However, she assures us that, once the information has been received, it is then passed on to the Commission.


  2.8  Whatever the merits of the change, the recasting of this proposal as a Decision at least removes one of the grounds for confusion. The Minister's reply to two of our questions also helpfully clarifies matters. Some questions and loose ends remain, however.

  2.9  No explanation is given for the new legal base for the proposal, and it does not appear to be sufficient as it stands. We ask the Minister to elucidate.

  2.10  The Minister did not answer our question about what was meant by the possibility of the candidate countries and Iceland and Norway participating "on an informal basis". This may be because that Article has now been omitted from the draft measure. We ask her to confirm that they will not be able to participate.

  2.11  We were pleased to note that the Minister shared our sister Committee's concerns regarding access to the asylum processes of Member States. The new text does not, however, include any provision affirming the importance of not preventing or impeding access to the asylum determination procedures. Will the Minister be pressing for the inclusion of such a provision?

  2.12  We will hold document (b) under scrutiny until we have the Minister's response and until we know whether or not the United Kingdom intends to opt in to the draft measure. Meanwhile, we clear document (a).

2  (19730) 5001/99; see HC 34-ix (1998-99), paragraph 12 (10 February 1999).  Back

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