Select Committee on European Communities Seventh Report



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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