SCHENGEN
AND THE
UNITED KINGDOM'S
BORDER CONTROLS
PART 3: SUMMARY OF
EVIDENCE
FRONTIER
CONTROLS
18. The Government's policy on frontier controls
has been outlined in paragraphs 13-16 above. Kate Hoey, MP, Parliamentary
Under-Secretary of State at the Home Office, confirmed that policy
when she told us that "it would be wrong for me to imply
that there was any chance at all…in the foreseeable future
of the Government feeling that the need for maintaining our frontier
controls will not exist". (Q 319). It was clear both from
the Minister's evidence and from that of Home Office officials,
that other options are not under active consideration and therefore
no cost-benefit analysis has been undertaken (QQ 19, 79).
19. Ms Hoey said that systematic controls at
the frontiers of the United Kingdom were important not only for
immigration control purposes, but also to help with law enforcement
(Q 327). Witnesses from the Home Office and NCIS believed that
other Member States' frontier controls were less than effective.
Mr Warne, Director of the Organised and International Crime Directorate,
said that the Home Office was "not sufficiently confident
that all Member States [of the EU] can operate the sorts of controls
that we do to our standards" and that "there are parts
of the external frontier which are very difficult to man"
(Q 9). Mr Abbott, Director General of the National Criminal Intelligence
Service, pointed to great increases in illegal immigration, often
backed by organised crime, in the last five years as evidence
that there were weaknesses on the external frontiers of the European
Union (Q 10). Mr Boys Smith, Director General, Immigration and
Nationality Directorate, Home Office, said that, although statistical
comparisons were difficult, it was likely that the Schengen countries
faced much more serious problems of illegal entry than the United
Kingdom. This was an indicator of the efficiency of the United
Kingdom's border controls (Q 91).
20. Mr Warne argued that the island geography
of the United Kingdom, and the fact that arrivals tended to be
"funnelled" through ports and airports, meant that systematic
controls were the "most convenient" way of monitoring
immigration. He added that, for cultural and historical reasons,
this system of checks had allowed the United Kingdom to avoid
the use of identity checks and identity documentation (Q 23).
Mr Boys Smith argued that relaxing the present frontier controls
would imply much greater use of internal controls. This could
have harmful effects on race relations: internal controls were
likely to involve "a much higher degree of discretion and
intervention" and "in terms of race relations, certainly
internal controls are not less sensitive and not less difficult"
(QQ 93, 96). However, Mr Nicholas Blake QC, for JUSTICE, said
that "the question of principle is: what are the criteria
for intervention and when should any person be required to produce
documents?" He continued, "the vice of identity cards
depends upon the accompanying scheme of penal sanctions".
If an identity card is a means of proving a right, "and that
right needs to be proved at certain regulated and proper moments
of interface between the citizen and the State, and if there is
no proper ground or a reasonable cause which is not based upon
racial discrimination or upon racial identity of some person or
other to say 'can you demonstrate that you do have that right?'
then I think you have a system of transparency, clarity, legality
and effectiveness". The debate on identity cards was one
of "shifting sands and…pros and cons" (Q 199).
21. Ms Madeleine Colvin, for JUSTICE, said that
in their view, any gains arising from a mandatory system of ID
cards were outweighed by the costs "both administrative costs
and the costs in terms of community relations". She pointed
out that, in other European Union Member States, "the question
of how effective they are is proportionate to what powers are
given to the police on checking identification cards, particularly
on the street" (QQ 181-182). Furthermore, ID cards on their
own did not give information about a person's immigration status.
Mr Blake said that "if the price of identity cards is…that
it is a criminal offence for failing to carry one or co-operate
with the police,…that … is where the balance goes the
wrong way" (QQ 181-185). Ms Hoey, on the other hand, said
that "I personally would be quite happy to carry a national
identity card. I have a Northern Ireland driving licence with
my photograph on it… I find it quite strange that people
were upset when we suggested that driving licences should have
photographs here" (Q 329).
22. The Government does not believe that its
opt-out from the Schengen border control arrangements is, in practice,
a major burden on United Kingdom citizens travelling to the rest
of Europe, nor on other European Union nationals travelling to
the United Kingdom (Q 86). However, we received evidence that,
at Schipol airport in the Netherlands, controls applied to European
Union nationals going to and coming from the United Kingdom (in
other words, leaving and entering the Schengen area) were rigorous,
and much stricter than the controls applied in the United Kingdom
where, as Professor Groenendijk observed, "I just wave my
passport, and nothing happens" (Q 121).
23. The argument that the external frontiers
of the European Union were "leaky", and that the United
Kingdom, therefore needed "a double line of protection"
(p 51), was criticised by Mr Tony Bunyan of Statewatch. He considered
that this argument was becoming "less and less true"
and said that "I … do not think that the German police
or the French police would argue that they are any less efficient
now at combating organised crime or drugs than they were when
they had border checks. In some ways they would say they are in
a better position" (Q 165).
24. Mr Adrian Fortescue, Head of the Justice
and Home Affairs Task Force in the Secretariat-General of the
European Commission, pointed out that the participants in Schengen
had a "fairly rigorous" mechanism for deciding whether
they could rely on the management of the external frontier crossings
by neighbouring Schengen States. There was in addition a safeguard
mechanism in Article 2.2 of the Schengen Convention[13],
which allows a Member State, in certain circumstances, to re-impose
border controls if it considered it necessary. France has invoked
this safeguard clause in respect of its border with the Benelux
Common Travel Area because of the "difference of assessment
about the correct way of dealing with drug problems" between
France and the Netherlands (QQ 221-3).
25. Mr Michel Pinauldt, leader of the French
delegation on the Central Group of Schengen, said that joining
Schengen had not given rise to public anxiety in France over illegal
immigration. People who lived in border areas had reacted particularly
favourably to the abolition of border controls because it has
been easier for the "flow of workers going from France"
crossing the border into Belgium, Germany and Switzerland and
for them to work in these neighbouring countries. Mr Pinauldt
went on to state that the abolition of border controls had completely
changed the way in which law enforcement services operated and
this had brought a number of benefits. The law enforcement services
no longer relied on fixed border posts in which they operated
in a limited amount of terrain. French officers had, therefore,
developed relationships of trust with their counterparts across
the border in other countries and, "through an exchange of
information, through exchanges of officials, they had to familiarise
themselves with the way in which other security services operate".
(Q 48). Concerning illegal immigration Mr Pinauldt pointed out
that it "is not made up simply of people coming through the
border points where they might be discovered to be illegal immigrants.
Illegal immigration also occurs within the territory of a country.
There are people who are residing in the country who are not legally
there, perhaps because they came in legally but overstayed their
legal right to stay, perhaps because they came in illegally by
some means" other than going through a border control. He
said that there were illegal immigrants working illegally, carrying
out tax evasions and social security fraud who have never been
in the net of those who are illegally crossing borders. It was
therefore "by checks in … different areas, tax, social
security and so on that it is possible to discover the presence
of illegal immigrants". Greater co-operation between law
enforcement officials, and the use of mobile checks within 20
kilometres of the borders were, according to Mr Pinauldt, "just
as effective as the means we used before, if we look at efficiency
in terms of the number of people questioned or in terms of the
number of illegal objects which are seized, for example drugs"
(Q 49). He explained that "random checks are possible behind
the frontier, and all the Schengen States have stepped up these
checks which take place close to internal frontiers. But it is
important to note that these checks never take place at the actual
border crossing points" (p 102). However, Mr Pinauldt also
pointed out that systematic frontier controls have not been abolished
at French ports, and identity checks were carried out on all those
arriving by sea (Q 53).
26. The scale of the problem of illegal immigration
into the United Kingdom is difficult to assess. Taking 1997 as
an example, the number of passengers (excluding EEA nationals)
admitted to the United Kingdom was 10.9 million. Nearly half of
these were from the American continent. Citizens from the USA
comprised the largest single nationality in admissions (3.8m),
followed by the Japanese (860,000) and Canadians (670,000). Compared
to the 10.9 million passengers admitted to the United Kingdom,
some 24,000 were refused leave to enter and removed from the United
Kingdom[14].
From the evidence we received, the largest problem appeared to
be with individuals who enter the country legally and overstay
the expiry of their visa time limit rather than with individuals
attempting to enter the UK illegally. We were told that some 14,300
people were identified as falling into this category, as compared
with about 4,000 who were thought to have entered illegally. Professor
Groenendijk, of Nijmegen University, said that in the Netherlands
the majority of those arrested for illegal immigration were "overstayers"
(Q 134). Frontier controls were also a useful means of identifying
the fraudulent use of travel documents—approximately 4,400
were discovered at United Kingdom ports in 1997. Of these, 70
per cent were forged or fraudulently used EU/EEA travel documents
or identity cards, and 64 per cent of the abused documents were
held by travellers from EEA countries (QQ 89, 338).
27. Referring to recent publicity surrounding
Roma and Kurdish people seeking asylum in the United Kingdom,
Mr Bunyan and Dr Peers of Statewatch, said that the problems faced
by the United Kingdom were no different from those faced by the
Schengen States. Dr Peers explained that the problem was not one
of border controls but, rather, one of visa policy: "they
were non-visa nationals in each continental Member State that
they crossed and then until recently non-visa nationals [in the
United Kingdom] in which case we are then the competent state
for determining their asylum claim" (QQ 172, 176).
28. The effectiveness of the United Kingdom's
present controls was questioned by Ms Elspeth Guild of the Immigration
Law Practitioners' Association. Referring to the control exercised
on European Union nationals entering from the European Union Member
States, she doubted whether this was "a primary control which
gives us any idea of who is coming in". In the case of arrivals
from outside the European Union, she considered that primary immigration
control actually took place at the point at which the visa was
issued (the British Consulate in the country of origin), and was
reinforced by carriers, which are increasingly vigilant in checking
passports and visas because of the liability now placed upon them.
As the number of persons refused entry at the point of entry was
"exceedingly small" compared to the number admitted,
she questioned the cost-effectiveness of immigration control as
presently practised at points of entry to the United Kingdom (Q
130).
29. The British Airports Authority (BAA) foresaw
more disadvantages than advantages from opting into Schengen,
and expressed concern about the costs. These fell into two categories:
first, a potential loss of business because Schengen would make
UK airports less desirable transit points if passengers had to
go through Schengen frontier controls here rather than at their
final destination within the EEA; and, second, the costs of redesigning
airports to process Schengen and non-Schengen passengers. The
latter were estimated at between £100 million and £300
million at today's prices (p 99). British Airways shared
these reservations, and summarised their position by saying that
"any significant changes to current arrangements would involve
considerable capital cost without apparent benefit to consumers,
transport operators or the UK Immigration Service" (p 101).
A PARTIAL
OPT-IN?
30. The incorporation of the Schengen arrangements
within the European Union means that each provision of the extant
acquis has to be allocated to a legal base in the First
(Community) or Third (intergovernmental) Pillar. This allocation,
according to Mr Fortescue of the Commission's Justice and Home
Affairs Task Force, had created "real difficulties …
some of them have more of a political nature than a legal nature"
(Q 214). Parts of the acquis which concern visa, asylum
or immigration policy should be allocated to the new Title IV
of the EC Treaty. The other parts which concern security and police
co-operation should be allocated to the Third Pillar. There is,
however, a fall-back position if agreement cannot be reached on
the correct allocation before the Amsterdam Treaty enters into
force: the unallocated acquis will be placed in the Third
Pillar.
31. Under the Amsterdam Treaty, the United Kingdom
may request to take part in some or all of the existing Schengen
acquis. This is the case in relation to acquis which
is allocated to the First or the Third Pillar. But the United
Kingdom's participation is subject to the unanimous consent of
the Schengen States. In addition, the United Kingdom has a right
to opt in to new (non-Schengen) Community measures on visas, asylum,
immigration or the free movement of persons based on Title IV
of the EC Treaty. However, unless the United Kingdom exercises
its right of opt-in, it will not be bound by Title IV measures
agreed by the other Member States.
32. Mr Fortescue said that he could not see "on
what ground in the Treaty anyone could prevent the United Kingdom
from opting in if it wishes to do so" to Title IV measures.
Opting in to Schengen "in its most complete sense" was
a different matter. All the existing Schengen States would have
to agree. The difficulty would be in distinguishing between a
measure which was a development of Schengen and one which was
not. This was the area where "political considerations might
come in". The most emotive question would be whether the
United Kingdom had a right to participate in a specific measure
on the basis of its Title IV opt-in, or whether its participation
was subject to the unanimous consent of the Schengen States (QQ
252 and 254). In either case the United Kingdom's influence and
bargaining power would be greatly reduced by remaining outside
(QQ 233-234, 252 and 254).
33. Professor Eileen Denza, for JUSTICE, said
that Ireland had made it clear in its declaration on the Amsterdam
Treaty that, although it had opted out of the Schengen provision
on frontier controls because of its wish to maintain the Common
Travel Area with the United Kingdom, it intended to opt into the
flanking measures almost entirely. There had been no objection
to that declaration, and therefore there appeared to be no legal
reason why such a partial opt-in should not take place (Q 191).
Compensatory
Measures
34. The Schengen system, as described in paragraph
9 above, puts in place a number of flanking measures to compensate
for the abolition of systematic border controls. The most significant
of these are enhanced police co-operation, the exchange of information
through the Schengen Information System (SIS) and movement towards
a common visa, asylum and immigration policy. Mr Warne raised
the question as to whether these measures adequately compensated
for the removal of border checks (Q 39). The evidence received
on these points is summarised here.
ENHANCED
POLICE CO-OPERATION AND THE SIS
35. Mr Fortescue pointed out that the SIS was
not solely, or even primarily, concerned with information about
crime: "a large proportion of the information held …
is immigration related" and therefore is linked to compensatory
measures which follow from the abolition of internal border controls
(Q 272). However, for the United Kingdom, access to information
about crime seems to be the most important aspect of the SIS.
Mr Warne, for the Home Office, said that the question whether
the United Kingdom could participate in parts of the Schengen
system, and specifically the SIS, "without damage to our
frontiers position" was under active consideration (Q 28).
Mr Abbott, describing the system, said that the SIS database allows
"real-time" access to a broad base of information about
"wanted persons and stolen and wanted property, including
vehicles, firearms, bank notes, blank documents and forged documents".
The current participants in the system were enthusiastic about
its benefits (Q 30).
36. Mr Frank Gallacher, former Head of the European
Liaison Office at the Kent Constabulary, said that "obviously
we are not getting the best access to pan-European information
that we would get within SIS" (Q 64). He described the methods
for cross-Channel police co-operation which have been built up
over a number of years, principally through Memorandums of Understanding.
However, he said that it was "frustrating to some of our
colleagues abroad that we are not part of Schengen" and that
the Belgian police intended to base "all of their new initiatives
relating to cross-border co-operation on the Schengen Convention".
It was becoming clear that future police co-operation with Belgium
would have to be on a more legal basis, and that meant "either
through Schengen, which would be the easiest method, or through
Interpol". The latter would have serious practical disadvantages:
"we just could not deal with everything that we have to handle
by going through a central service" (QQ 61-62). The difficulty
of continued informal police co-operation outside of Schengen
was confirmed by Mr Warne, of the Home Office, who said "I
do not think we can continue to rely on informal arrangements
for production of all the material available" (Q 26).
37. The future development of the SIS is currently
under discussion, and the Home Office considers that an active
United Kingdom input into its development could be very useful.
They believe that this view is shared by some of the Schengen
States. Once the SIS is brought within the Union framework, the
United Kingdom would be able to sit on working groups, but "..
would not have a vote and would not have access to the information"
(QQ 338-9). Mr Fortescue commented that "I have lived quite
a number of years now watching developments advance in the European
Community and subsequently in the European Union and I have never
yet seen an example where the United Kingdom's position was easier
by joining in later" (Q 267). M Pinauldt agreed that "there
would be advantages and a positive effect for the Schengen Agreement
if the United Kingdom were to opt into the Schengen acquis",
but he continued, "opting in to the Schengen Information
System would not be sufficient … Schengen is felt to be a
coherent whole which can not be broken down into its constituent
parts" (Q 56). In subsequent written evidence, he elaborated
on this view, highlighting some questions which the French Government
might raise in evaluating a request from the United Kingdom for
a partial opt-in. Among these was the possible consequence that
a derogation for the United Kingdom might be seen as setting a
precedent. This could complicate the enlargement negotiations
(p 101). The United Kingdom has accepted the EU's negotiating
position towards the applicant States from Central and Eastern
Europe which requires them to accept the full Schengen regime
on entry and thus denies them the option granted to the United
Kingdom and Ireland.
38. Our witnesses raised a number of concerns
relating to data protection in the SIS. Ms Hoey described the
principal arrangements for data protection in the Convention,
including the right to access and to correct data held on the
SIS; the right to apply to the courts or competent authorities
to demand that data be corrected; and the rights to ask for data
to be checked and to question the use made of such data. The Minister
said that the adequacy of these measures would need to be taken
into consideration by the Government before it reached a decision
on opting in (Q 337). JUSTICE was also concerned about the adequacy
of data protection and controls (Q 203).
39. Dr Peers, for Statewatch, considered that
there was "a fundamental problem of judicial remedies"
in relation to the operation of the SIS. Once personal data had
been added to the SIS, access to that information could be denied
"on extremely broad grounds" (Q 157). Yet, the entry
of a person's details on the SIS debarred that person from entry
to all the other Schengen States and from obtaining a visa. This
has been a subject of criticism within the Schengen States for
a substantial period of time, according to Ms Guild (Q 129). Ms
Colvin, for JUSTICE, said that, if the United Kingdom was to opt
into the SIS, JUSTICE would wish to see certain changes negotiated.
In particular, they would wish to see the United Kingdom change
its own position, and accept the jurisdiction of the ECJ in this
area (Q 203).
40. Witnesses drew our attention to some problems
in the system. The annual reports of the Schengen Supervisory
Board (for data protection) contain instances of data wrongly
entered in the SIS. The powers of the Board, and the small number
of Board members and professional staff, may not be adequate to
deal with the 14 million records held and the estimated 44,000
access points to the system, according to Mr Bunyan of Statewatch
(Q 169). Ms Colvin, for JUSTICE, said that data protection arrangements
contained "inadequacies at every level" and argued for
consistent data protection rules across all Third Pillar agreements
(QQ 206-7). Ms Colvin also drew attention to the SIRENE system
(Supplément d'Information Réquis à l'Entrée
Nátionale), which runs in parallel to the SIS, and
is a supplementary system for providing documentation and other
information, which at the moment is unregulated other than by
a confidential manual (Q 206).
VISA, ASYLUM
AND IMMIGRATION POLICY
41. Ms Hoey said that the extension of the jurisdiction
of the European Court of Justice over matters of visa, asylum
and immigration policy would be one of the many considerations
to be taken into account when deciding whether to opt in to individual
measures in these areas. On the one hand, the benefit of the ECJ's
authoritative rulings was recognised but, on the other hand, the
long waiting time for cases to be brought before the ECJ could
cause practical difficulties, for example in asylum cases (Q 344)
Mr Nicholas Blake QC, for JUSTICE, gave examples of existing Third
Pillar measures which had no effective enforcement mechanisms.
He argued that "clarity, certainty and enforceability"
were important, and the ECJ should be the "common link …
at the top of the judicial tree" (Q 205). JUSTICE argued
that the decision on whether ECJ jurisdiction is necessary "should
be based on certain fundamental principles, including the need
for consistent and uniform judicial control over EU-wide measures
and to protect the rights of individuals" (p 53).
42. Ms Guild, for ILPA, considered that the United
Kingdom's opt-out from a common visa, asylum and immigration policy
had created, and would increasingly create, practical problems.
The fact that two different visa regimes were in place—
one covering the Schengen area and the other limited to the United
Kingdom—was a deterrent to some visitors to the United Kingdom,
and practical co-operation on asylum and immigration matters was
becoming complicated, because of uncertainty (Q 119). For JUSTICE,
Ms Colvin amplified this point. She said that "to stay out
of the new Title IV on areas such as immigration and asylum will
result in a legal maze of great complexity". The United
Kingdom would be bound by existing bilateral agreements with each
of its European Union partners adopted under the intergovernmental
Third Pillar procedures. It might have to supplement these by
further bilateral agreements paralleling developments in policy
on asylum and immigration based on Title IV of the Treaty. This
would create not only a complex system of overlapping laws, but
also the possibility of a growing divergence between the immigration
and asylum law in the United Kingdom and in the rest of Europe
(Q 181). Dr Richard Plender, QC, for JUSTICE, argued strongly
in favour of the harmonisation of approaches to asylum and immigration
policy which would follow from full United Kingdom participation
in Schengen. It was important to have the same approach "because
the policies applied in any one country affect not only individuals,
but also migratory flows in other States." He continued,
"a common policy observed and enforced so far as possible
by a single court would be very much to our advantage." (Q
188).
43. JUSTICE criticised the Government's failure
to set out the principles and criteria on which a decision to
opt in to Title IV measures would be taken. This undermined the
United Kingdom's position with its European Union partners, hampered
any proper debate, and prevented the United Kingdom from playing
"a leading role" in these areas (p 52). There was no
legal obstacle to prevent the United Kingdom from maintaining
border controls, if it so wished, and participating in common
policies under Title IV. "In fact, practical considerations
mean that there is probably no alternative to a common immigration
and asylum policy amongst all European Union Member States".
United Kingdom involvement would help to ensure that such policies
are "fair and workable, and are subject to adequate judicial
control so as to ensure harmonised criteria and procedures in
practice". The alternative of separate systems - common policies
amongst twelve of the European Union Member States under Title
IV reflected in bilateral agreements between each of these and
the United Kingdom (plus Ireland and Denmark)—"will
result in considerable confusion for citizens, who should be the
beneficiaries of free movement provisions rather than be faced
by complex measures" (p 56).
44. Mr Fortescue drew attention to a proposal
related to a common visa policy which had gone into abeyance during
the Amsterdam negotiations. It was that any third country national
legally resident in any Member State of the European Union should
be able to travel to any other state of the European Union on
the basis of his or her residence permit without having to seek
a further visa. He considered that this was a good proposal, in
particular because the issue of a residence permit would usually
imply that the person's circumstances had been considered more
thoroughly than would be the case for a short-term visa (Q 264).
13 "However, where public policy or national security
so require a Contracting Party may, after consulting the other
Contracting Parties, decide that for a limited period national
border checks appropriate to the situation will be carried out
at internal borders. If public policy or national security require
immediate action, the Contracting Party concerned shall take the
necessary measures and at the earliest opportunity shall inform
the other Contracting Parties thereof." Back
14
Control of Immigration Statistics, United Kingdom 1997, Cm 4033. Back
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