Select Committee on European Communities Minutes of Evidence

Examination of Witnesses (Questions 118 - 139)




  118.  Welcome. I am sorry we kept you waiting. We had a certain amount of other business to transact. The number of documents, indeed, coming through continues to expand. You know what we are attempting to do which is to ask about the costs and benefits of the British opt-out of Schengen as affected by the incorporation of Schengen into the Treaty. Might I ask you first to introduce yourself and perhaps say a little about the Immigration Law Practitioners' Association? We have seen a number of your documents and you have submitted some very useful memoranda to us, and one of our members was asking whether you are a primarily a British or a Community wide association.
  (Mr Nicol)  I am the Chair of the Immigration Law Practitioners' Association. On my immediate left is Professor Kees Groenendijk, from the Nijmegen Law Faculty; he is also Chairman of the Meijers Committee, the Standing Committee of experts in international immigration, refugee and criminal law, which is a Committee established in 1990 by the Dutch Bar Association, the Refugee Council, the Dutch Centre for Immigrants and the National Bureau against Racial Discrimination. On my far left is Elspeth Guild, who is the convenor of the ILPA European sub Committee. She is also a solicitor and partner in the firm of Kingsley Napley and a co-ordinator for the Centre for Migration Law in Nijmegen. The Immigration Law Practitioners' Association is essentially a British organisation although, as you can see from the present panel, we have contacts with our European colleagues. We have approximately 700 members, some of whom are individual law practitioners—generally speaking barristers and solicitors but embracing, as well, others who give immigration advice. For instance, the two statutory bodies which are funded by the Home Office—the Refugee Legal Centre and the Immigration Advisory Centre—are both members of our organisation. We have a number of objectives: we try to improve the knowledge of immigration law amongst practitioners. It is a difficult area of law and practice to be familiar with; much of the information emanates from the Home Office and is not published in a formal sense. We try to disseminate that information amongst our members. We seek to try and improve the quality of immigration advice by giving training sessions and holding seminars and we have about 40 training sessions a year. We have larger public meetings on specific issues and we also have a policy role expressed within our constitution as trying to advance the interests of a fair, just and non discriminatory immigration policy and that leads us to make submissions in a wide variety of contexts—including to this Committee—but also, most recently, to the Home Office in the context of the white paper that it published on reforming immigration law.

  119.  We might, if there is time at the end, want to ask you a little more broadly about the concept of non discriminatory immigration law, in particular in light of the paper on immigration policy which we saw earlier in another context. But for the purposes of the present inquiry, do you or other members of your group have a clear sense of what you see are the costs and benefits of the British opt-out?
  (Mr Nicol)  You sent us a series of ten questions and one of the first was what, in our view, were likely to be the main practical consequences of the UK's opt-out of Schengen. Can I ask Elspeth Guild to make our first contribution in answer to that question?
  (Ms Guild)  There are a number of different ways of looking at the question of the practical consequences of remaining opted out, and I will limit my answer at this point to the position where the UK remains opted out of everything so not in the sense that there is a partial opt-out on some aspects and partial opt-in on others. The first aspect within that context that I would like to address is the question of the formal institutional arrangements. If the UK remains opted out, the consequence is that it does not then participate in the development of what is becoming, and what will become even more clearly, a common system on immigration and asylum within the European Union. That means, in effect, that there is no UK influence in that process, or not a substantial one, because, while the UK may participate, it is very difficult to have one's views taken seriously if one is not opting in or if there is not at least the possibility that one is going to opt in. It means, therefore, that we are left aside while a body of law is being developed. What does that mean? As the Schengen system within the First Pillar becomes more established and stronger, the pressure to participate will undoubtedly become greater and, just as we have seen with the similar arguments regarding the euro, these same arguments can be made in respect of Schengen—that a system which begins to operate very smoothly and which appears to be providing benefits to fourteen member states (or thirteen, in this case) becomes increasingly difficult to resist. A far more concrete way of looking at this, if we are looking at the practicalities rather than the question of the institutional and structural consequences, is that, of course, controls remain on people coming from the UK going to other member states—a control which is certainly, in my experience, being exercised with a great degree of correctness and a great degree of uniformity, but which is a very substantial control in any event. We then go on to something less tangible which is more in administrative cultures: that, throughout the period of intergovernmental co-operation and under the Third Pillar of the Treaty on European Union, we have had an increasing rapprochement of officials within the Home Offices and interior ministries of the member states co-operating towards developing policies. With the increasing structure and the move of Schengen and immigration and asylum into the First Pillar with the UK opt-out that development is unlikely to be as successful, because there will be ever increasing divisions about where co-operation can take place and where it cannot and, as the Schengen rules and the provisions on immigration and asylum become more entrenched and structured within the current Schengen parties (within the thirteen), it becomes increasingly difficult to get co-operation—particularly at intermediate and lower levels—because no one knows what they are allowed to do and not do, what is in, what is out—or at least it becomes less clear. Finally, I would make a comment which is perhaps more of a financial consideration and that is that, already in this country, we are seeing a certain displacement of visitors who are coming to Europe to carry out business (we see it quite a lot in the academic field) who will get a visa either for the Schengen countries or for the UK but do not want to go to the trouble of both and, increasingly, people in the UK who want to do business with overseas visitors are finding that they are travelling to other Community countries to do business because of the difficulties of having two different visa regimes. The lack of cross recognition of visas, therefore, is creating a displacement factor which is becoming clearer and clearer, certainly to solicitors in the UK who are asked to advise on this.

  120.  Professor Groenendijk, do you wish to add anything?
  (Professor Groenendijk)  Firstly, thank you very much for allowing me to speak in this venerable House. I would add that a great advantage experienced by the immigrant population in the Schengen countries is that the abolition of frontier controls also abolished a lot of opportunities for discrimination at the borders. My friends from Surinam and the Dutch Antilles tell me that now they feel free to travel to Italy without being checked at every border and singled out for border control just because of their ethnic origin. As long as Britain opts to stay out of the frontier control arrangements, British citizens will be confronted with extra border controls each time that they travel to the continent and Europe.

Lord Dholakia

  121.  I appreciate what you say—that, in terms of the internal control having been moved, the movement becomes much easier—but what argument would you make in terms of the external control before people can actually go into Schengen countries? Are the controls not very tough in terms of people trying to enter?
  (Professor Groenendijk)  If I understand the question correctly of course there is a more strict external control but, in my personal experience, leaving Schiphol airport and flying to Britain I have to pass the external Schengen border at Amsterdam. There the control is much more strict, both leaving and entering, than it is when I arrive in Britain, where I just wave my passport and nothing happens. The control is not only more strict but also systematic because all the names are typed into the computer, according to the Schengen rules, whatever the colour or ethnic origin of the passenger so everybody gets the same strict treatment at the border which, from this perspective, is a great advantage. Chairman:  We have discussed that, if you have selective control not complete control, that is where the discrimination begins to apply.

Lord Rix

  122.  You mentioned at the beginning the benefits of Schengen and I want to know whether these benefits which you described are equally distributed amongst the Schengen countries or whether, frankly, they are biased towards the ones with the bigger land borders and sea borders or the ones which only have land borders. Are the benefits equally distributed or not?
  (Professor Groenendijk)  It is very hard to give a general answer to this. Looking, for instance, from the perspective of the Netherlands, the system of distributing responsibility for asylum seekers, because of its geographical position the Netherlands presents three to four times more claims to other Schengen partners to take responsibility for asylum seekers than the claims received from other Schengen countries. On the other hand, the question of hot pursuit (which in the political debate in several continental countries has been symbolically a very important issue, but probably will not be of much practical use with respect to Britain); there we find a lot more hot pursuit by German police to the Netherlands than by Dutch police to Germany. It is very hard, therefore, to give a general answer. On certain aspects some countries have more advantages, whilst on other aspects disadvantages prevail—which is exactly what we experience in the European Community generally. It is very hard to say who gets more and who loses more because there are so many different fields included in the package of Schengen.

Lord Bridges

  123.  What would be the practical difficulty of having a common system for asylum and immigration? At the moment we have fairly established patterns of immigration into each Community country: immigrants into Holland come from the Dutch Antilles, and we have flows of people from the Commonwealth. We are quite used to dealing with an application from, say, Nigeria or Bangladesh. The people in the Home Office know about those countries and look at the visa application. If we had a common system and somebody wanted to spend a fortnight in Italy on the way here coming from Nigeria, how would you actually work the visa application? Where would it go to—the country where you are first going to land or does it not matter, if you get a common visa for the whole of the Community? Who would actually handle the visa application? Would it be some official in Brussels or the country of ultimate destination? There would be difficulties, would there not, in the building up of knowledge of the circumstances from which the immigrant was coming, which we have at the moment. How do we diffuse that knowledge across the Community without setting up some vast bureaucracy?
  (Professor Groenendijk)  One of the effects of the Schengen co-operation has been this contact on a very practical level—co-operation, for instance, not only between border police, immigration officers and police officers but also between consular authorities of the member states. The answer to your question is that the visa obligation has to be dealt with by the country of the principal destination. That is not any longer a question of Schengen law but a question of co-operation between the consular representatives of all fifteen member states who co-operate in this area. It is no longer just a Schengen matter.

  124.  That should not worry us unduly then. What about asylum? You mention the fact that you have very generous asylum law and a lot of people come to the Netherlands for that reason. If you want to see a common asylum law, do others measure up to your standards or do you fall down to theirs? It would be a difficult matter to settle a common asylum law, would it not?
  (Professor Groenendijk)  You address first the question of knowledge, and experience shows that all countries have to deal with asylum seekers from a variety of countries. I only see an advantage coming from exchange of knowledge provided that it is subject to democratic control. Asylum seekers from Nigeria are coming to several EU member states.

  125.  I can see it is a question of standards, is it not? Something like asylum would have to have a common standard, would it not? If we are talking about a common policy for asylum, it has to lay down certain criteria.
  (Mr Nicol)  Asylum, of course, is a rather hybrid issue. It started life in European terms as a matter that was included within the Schengen agreement. Since then the Dublin Convention has come into force which has a wider number of signatories than Schengen, and includes the United Kingdom. Both systems were concerned to identify the European country which would handle the asylum claim so, to that extent, co-operation already exists and takes place. There is a recognition between the European members, both in the Schengen and the Dublin systems, that the way in which they view the Geneva Convention on refugees is not uniform and that the Geneva Convention is interpreted within domestic systems in a way that varies somewhat from one European country to another. Although there has been some attempt at European level (through resolutions and decisions at the European Council and various other means) to arrive at a more harmonious asylum system, that is still somewhat in the future.

  126.  This is, nevertheless, what is implied, is it not, and we are looking at action plans for the future which do speak very clearly of common asylum policies. We would be taking a big step from the Dublin system, where it is a procedural question of where you apply and what criteria you establish, and that seems to me to be at the heart of any common asylum policy. I wonder whether you, with your practical experience of these matters, could suggest how we could set about creating these common criteria?
  (Ms Guild)  What I would like to emphasise at this point about what will be the EC Treaty on Immigration and Asylum is that what, in effect, must be seen as one of the purposes of that chapter is the proper implementation of the obligations of all of the member states under the UN Convention relating to the status of refugees (otherwise known as the Geneva Convention) which is specifically referred to and which is the touchstone of all the member states in respect of asylum. Secondly, it should also be borne in mind that, in the creation of a Community asylum policy, specific regard must be given and respect must be paid to all of the member states' obligations under Article 3 of the European Convention on Human Rights which prevents the return of someone to a country, where there is a substantial risk that he or she would suffer torture or inhuman or degrading treatment. To say, therefore, there is not a foundation on which the creation of a common or a uniform European standard on asylum must be founded is a bit unfair. This debate too often tends to drift back and forth between who is harder, who is softer, who is more generous and who is less generous, and we tend to lose track of the fact that there the whole concept of asylum and refugees falls within an international context. The refinement of that international context within a group of states who are parties to the same conventions is not necessarily, or should not be seen as, a diminution of standards.


  127.  May I hold down the enthusiasm of members and keep to the question of the British opt-out? The third of our questions which was circulated to you was precisely how far, in this extremely sensitive area, a Britain opt-out from Schengen would leave us outside the development of future Community policy or, if I understood Mr Nicol correctly, because the Dublin Convention is in a rather more wide context and is due to be incorporated into EU law once Amsterdam is ratified, whether or not, if we opt out, we would still be in on all the discussions? Do we lose out, if we opt out, in terms of influence in the future, or not?
  (Mr Nicol)  As my colleagues have said previously, the opt-out would either debar us entirely or substantially reduce our effective input to the discussions which go on—currently within the Schengen Executive Council but in future within the European Council—as to the form and shape of implementing decisions that are going to be taken. One can understand our European colleagues having impatience with us, dilly-dallying on the sidelines on the one hand and, on the other hand, wanting to get stuck into the detail of measures which we may or may not become party to. Opting-out, therefore, would certainly dramatically diminish our influence in the shape of those future decisions. Obviously there is a body of acquis which has already taken a certain shape and the opt-out allows us to join up, or not, to that. There is still much room, however, for further discussion about future developments and we think the UK's role would be diminished if it were to opt out.

Lord Elibank

  128.  This follows on from a question just asked. When we asked you what were the main practical consequences of the opt-out, Ms Guild gave us a series of reasons why we should not opt out—and, indeed, you have reinforced that. There are objections, however, are there not, to opting in which successive British Governments have followed for various reasons—one of which is that, on the whole, it would apparently change the form of control from a frontier control to an internal control. Having made your pitch for opting in, do you see any disadvantages to opting in? You must have weighed this matter fairly carefully from time to time and you must have seen certain disadvantages to opting in. What are they?
  (Mr Nicol)  We have often heard this juxtaposition between external controls, on the one hand, and internal controls, on the other, and we thought the Committee would be assisted by hearing from Professor Groenendijk as to whether that is a proper way of seeing the choice.
  (Professor Groenendijk)  This relationship has been made in the debate in several Schengen member states and Schengen has been used as one of the arguments amongst a whole series for introducing more internal controls. Certain political parties in our country have even used it as an argument for introducing the obligation to carry identity cards, which has not been introduced in the Netherlands—and, incidentally, other Schengen countries like Germany, also do not have an obligation to carry identity cards. This form of internal control, therefore, is not inevitably linked with or being part of the Schengen arrangement. There are a lot of other developments in society that are conducive to the introduction of all kinds of internal controls. In certain countries, either immediately after the internal controls at the borders had been abolished or after some time, internal controls have been instituted behind the borders, and mobile brigades and controls in international trains have been reinstated to a certain extent, but there is a lot of difference in the ways the countries have addressed the issue so there is no logical and natural reason within the Schengen system which says that by abolishing external controls you have to have a specific type of internal controls.

  129.  Then you have no controls, do you? If you abandon your border controls and you have no internal controls, what sort do you have?
  (Professor Groenendijk)  What we have is a reinforced, systematic, uniform, control at external borders. You have to imagine, for instance, a country like the Netherlands did not have controls at its southern borders from the 1960s as part of the Benelux cooperation, and the border controls at the eastern border with Germany, as from the mid-1980s, have been gradually diminished so the idea that you needed more internal controls is less compelling, where the external control within the Schengen arrangement at the external Schengen borders, may be now much stricter than before at the internal borders and where there is now at the external borders, for instance, a kind of international control. There is a committee of officials from among the Schengen member states which visits the external border control stations and checks how the common rules on border control are applied in practice.
  (Mr Nicol)  Following on from that, as Professor Groenendijk has said, we do not accept that a necessary consequence of joining the Schengen system is that internal controls ought to follow as night follows day. If internal controls are seen by others as a consequence, however, then we do have concerns how they would operate and whether they would operate in a non discriminatory manner. I am afraid the experience of many of our members is that, when it comes to the police forces, they cannot be relied upon to operate their powers in a non discriminatory manner. We have seen recently, in the Lawrence inquiry, a tragic and rather vivid demonstration of how that can be manifested. Present powers are at least linked to reasonable suspicion of a criminal offence and the police's response leads to the observation that the stop and search powers are exercised disproportionately against members of ethnic minorities The police respond that this is a coincidence and they exercise their powers when they reasonably suspect a criminal offence. If you remove the necessary condition of suspicion of a criminal offence, however, then we fear that the scope for further control of particularly ethnic minority people would be very real. We see this also in the way in which the introduction of criminal penalties for employers who employ people without the proper work permit or work condition in their immigration leave has led to an appreciable increase in checks on black and ethnic minority job applicants, and that is a matter that Ms Guild can comment on.
  (Ms Guild)  I certainly would say that the linking of the question of employer sanctions with illegal immigration has not been particularly helpful or successful, in that employer sanctions have tended to reinforce a check by employers on job applicants which is not consistent and which is far too often based on race or ethnic origin. I would like to return to one of the questions about the disadvantages of opting in, because there is one point which is of particular concern to ILPA, and this is the question of judicial remedies in respect of the entry of a person's details on the Schengen Information System which would then bar that person from entry to the territory of the Schengen states and from obtaining a visa. This has been one of the subjects of criticism within the Schengen states for a substantial period of time and which, we hope, will now be addressed with the incorporation of the Schengen Acquis into the European Union and the important parts of it into the European Community. At the moment, however, for instance, if a relative of mine were to apply for a visa in Khazakhstan to come to visit me, say, in France, if that person's details had been entered into the Schengen Information System by, for instance, Germany on grounds within the administrative rules of the German authorities, that relative would not be able to get a Schengen visa; the French authorities would not be entitled to issue a Schengen visa to that person to come and visit me. On the other hand, there are no provisions within the Schengen system which are uniform which would give my relative an opportunity to challenge his or her entry on the Information System and, therefore, that aspect of rights of appeal and how information is dealt with in the Schengen System is one which needs to be addressed and which the UK is eminently well placed to assist on not least in light of the White Paper on appeal rights. It would be a great pity if we were not participating in that side of developing proper appeal rights in that context. Lord Dholakia:  Could I say that this is why I did suggest earlier on that we ought to look at the whole question of appeal machinery, et cetera, and I subscribe to what you are saying. My difficulty here is that we are talking about costs and benefits in terms of the Schengen system. My fear is, as one who has been involved in immigration matters since the very first Immigration Act was established in this country in 1962, that immigration policies are not established on the basis of costs and benefits but on the basis of controlling the number of people coming here. If you look at successive policies of this country, they have been based on the control of numbers. The argument being advanced again by those on the provision of policy and power is that the system in Schengen countries is much weaker than the controls we have in the UK and your system or the system in Schengen is pretty tough and, until such time as this country is confident, there is hardly likely to be any advantage whatsoever in participating and opting in to that particular system. You mentioned police powers, et cetera, earlier on, and this does cause us concern because they do show a toughness more to do with numbers and people. The White Paper that has been published effectively gives powers to immigration officers equal to that of police in going into people's homes and searching, et cetera. It is all to do with tough controls and, once you have those, this country will have lost confidence in the system. That is a negative way of looking at it but I do not necessarily subscribe to the view that, when people talk about cost and benefit, it has anything to do with it; it has to do with numbers.


  130.  Perhaps I might add to that in terms of the border control question. All the evidence we have had so far has pretty much said that people within the British Government would like to opt into as much as possible of Schengen except for border control. Ministers have decided that the geographical difference between our border checkpoints and others gives us the possibility of having much more effective border controls, since we are in a very different situation from the Netherlands' eastern or southern borders. Therefore, there are trade offs between external and internal controls which justifies for this one, limited, opt-out. Do you accept that Britain's geographical position is different and therefore we do have a justification to opt out, or do you take the more sceptical view and believe that border control, as such, is not the key question?
  (Ms Guild)  There are a number of ways of looking at this question and I am afraid to say that my starting point is going to be the question of whether, in fact, primary immigration control takes place at internal EU borders for the UK; if you are coming from another EU member state, are you in fact going through a primary immigration control? As you have all travelled, frequently I am sure, in other EU countries and returned to the UK, and as Professor Groenendijk found today when he arrived, when you come to the internal border between the UK and other EU member states, you wave your passport and you are waved through. Is this a primary control which gives us any idea of who is coming in? I am afraid to say I am not sure it is. Secondly, regarding our external borders, talking about people coming from places outside Europe, is Heathrow, for example, a primary immigration control point? I am afraid to say that I have very grave doubts about that because, in respect of all of those nationals from countries where there is a visa requirement, the primary immigration control actually takes place at the British Consulate in the country of origin—whether or not the person gets to make a visa application or is told there is no point making one because it will be refused, in which case they do not even get to the first stage. It seems to me that is the primary immigration control point, and that primary immigration control point (which is in fact abroad) is reinforced by the carriers because of sanctions; they will not let you on the aeroplane unless you have the visas required. As regards those countries which are not under a mandatory visa requirement, for instance somebody coming from the United States, still the primary immigration control takes place, I am afraid, in the United States and in that case there is no intervention by the British state, it is actually carried out by the carrier because the airline will not allow the person on the flight if they have not got a valid passport that looks more or less okay. If we look then at the number of people who are refused entry to the UK arriving from outside of the European Community area, the numbers are exceedingly small. If I remember correctly last year's numbers of persons refused, I am not sure if they have even hit five figures in comparison with the number of people who travel through the UK every year. This leads me to say, well, if we look at the statistics can we say that there is an effective primary immigration control which has a cost benefit in that we are catching people we do not want to let in at this point at the expense of what we are doing. I am not sure we are looking at the right border, I think the border that we should actually be looking at is the consulate abroad where the visa application is made. We will see that the proportion of refusal of applications to visas granted, if you see refusals as an indication of efficacy, will show you a greater degree of efficacy if you accept that standard. I am not sure I accept that standard but anyway for the purposes of this argument I would put that there.
  (Mr Nicol)  Can I come back to two other matters in the broad context that you raise as to the advantages or disadvantages of the Schengen acquis and the cost benefit analysis Lord Dholakia referred to. One striking feature of the Schengen acquis as it currently exists is that it is opaque. It is extremely difficult even to get a copy of the documentation. Once the documentation has been obtained one finds, for perfectly obvious reasons, lots of it is not written in English, that even when one has it one cannot be certain that one has all the annexes, amendments, drafts, and reports that preceded it so as to be able to understand fully what one is talking about when one refers to this body of rules as the Schengen acquis.It seems to us, again as lawyers, an absolutely essential precondition to Britain signing up to the acquis that it is reduced to a text that one can have access to and understand. After all, one of the essential preconditions of law, which we tend to take for granted here, is that there is a text which one can consult relatively easily. That is not a characteristic that the Schengen acquis currently has. The second aspect which seems to us terribly important is that at the moment the Schengen agreement operates as an inter-governmental agreement with almost no supervision of a judicial kind. It is a major step forward in the Amsterdam Treaty that the Schengen acquis and the material associated with it is to be brought, broadly speaking, within the EU framework and broadly speaking to be brought under the control of the European Court of Justice. But there are devils in the detail and it can make a great deal of difference as to which particular part of the Treaty the Schengen acquis is attributed to, as to exactly what the competence of the European Court of Justice is. Again as a body, broadly speaking, of lawyers we would favour the maximum possible competence for the European Court of Justice which we see as a sine qua non for a Government that purports to be operating under the rule of law.

  131.  We issued a fairly strongly worded report on the Schengen acquis and its incorporation into the European Union and the difficulties of discovering what exactly the acquis is so we have done our best on that. Can we stick to border control questions? It does seem to us, when we had the Ministry before us, this was the crucial question: how much does Britain gain from maintaining border controls? Clearly they have a certain deterrent effect. I have to say to Ms Guild, one of the reasons why air companies and now also Eurostar inflict the controls that they do at the outset on passengers is they are fined if they are caught and discovered to be carrying people not entitled to enter the country. In a sense it is only the preservation of the border controls that maintains that sanction. Now I make a practice, for obvious reasons, of asking the immigration officers on Eurostar what it is that they think they discover. One of the puzzles I have, and perhaps this is a question for Professor Groenendijk, is we do have a number of people who attempt to enter Britain illegally from countries outside the European Union who have successfully travelled across the Schengen area on their way to Britain, be they Rumanian gypsies or Slovaks or whatever. One would have thought that tighter external controls than Schengen would have choked off that control, it does not seem to do so. That would be part of the political justification ministers would make for saying we still need to maintain our border controls. Are there alternatives to this? Are there numbers? I think the figure quoted was 4,000 last year, I think you are right it does not reach into five figures. Is this however a sufficient deterrent still to be worth maintaining?
  (Professor Groenendijk)  It is not for me to answer this normative question. Maybe I could come back to your earlier question of whether the special geographic position of Britain justifies that.

  132.  Exactly.
  (Professor Groenendijk)  I will not answer the question of justification, but I will not deny that Britain has a special geographic position. However, I think the way the border control tradition in Britain has been established, is not specifically related to its geographic position. There are other European countries like, for instance, Germany and the Netherlands who have long relied on strict control at the external borders and few controls inside while, for instance, Belgium and France have a long tradition of not so strict controls at the external borders but more controls inside the country. As to that aspect, Britain is not so typical in its reliance on strong external border controls, that is not a typical British tradition only. In the Netherlands, as a result of the gradual removal of control at the national borders, we have had more strict border control at the external Schengen borders not perfect border controls but rather more strict than we applied before. The number of immigration officers at Amsterdam Airport has increased considerably due to Schengen because from a normal Netherlands border it became the only major Schengen outside external border of the Netherlands. On the other hand I have to correct something I said before. We have had some new internal controls but to the extent we had the new internal controls, much stress was laid that these would be systematic controls on everybody. No internal controls in the street but internal controls, at the access to certain facilities of the welfare state which would then apply to everybody. The ones who pleaded for more internal controls in certain fields have had some success but each time this condition was attached so that it would be avoided, that these controls would have the negative discriminatory effects we referred to before.

  133.  May I ask, does the Netherlands as far as you can see have confidence in the maintenance of the external border around the rest of Schengen land by all other members of Schengen?
  (Professor Groenendijk)  It is hard to answer whether the Netherlands has sufficient confidence. I think both within the Government and in the press there is a lot of difference of opinion on this issue. You may take the fact that there was instituted a mobile brigade of immigration police behind the eastern border and checks in trains, as an indication of distrust in the effectiveness of the system. On the other hand, the number of people who are detected and found to be illegal entrants is rather small. In 1996 and 1997 approximately 800,000 persons were stopped by these mobile brigades less than four per cent was required to return to Germany or Belgium, mostly because they did not carry their passport or the required visa. Whether this is sufficient or not, is not for me to say.

  134.  May I ask two more questions of comparison. One: do you have a sense in the Netherlands of whether your problem of illegal immigrants is much more those who come in on one sort of visa, as visitors or tourists or students, and then stay as opposed to those who manage to get in illegally? Which of those is the larger problem, question one? Question two, we have the sense from our witnesses that people smuggling, particularly organised crime in the involvement of people smuggling, is a rising concern in this country. Is that also the case in the Netherlands?
  (Professor Groenendijk)  If I might be allowed to answer your last question first because the answer is clearly yes. There have been established special departments within the immigration service and within the police to deal with the smuggling of people, so this at least has drawn a lot of attention of the public and in political debates and it has resulted in action within the police. Whether this is more an indication of the political concern or whether this is really a growing problem or whether it has always been a problem which gets more attention now I am unable to say. As to your first question, of course, it is impossible to give reliable estimates about the number of illegals and anybody who tries to do this is deceiving the audience. What we know from research not only in the Netherlands but in several other European countries is that a large part of the people who are arrested by the police or by the immigration service because of illegal stay are overstayers. Persons who entered the country legally, but whose stay became illegal afterwards.

  135.  Mr Nicol, you wish to add something?
  (Mr Nicol)  Yes, I wanted to follow up on the comment that the situation is a deteriorating one. It is I think easy to become too pre-occupied with what happens at the present and to forget some of the immigration crises which have swept past us in the past and which in turn have led to the legislation which remains on our statute books. The Immigration Act 1971 was passed at a time when it was said in very similar terms that there was large scale illegal immigration being done in an organised way. The Immigration Act was passed as a measure and response to that and remains giving the Home Office the powers they do. The second comment I want to add is that it would be easy but wrong to carry the impression that we do not currently have any internal controls on the presence of illegal entrants at the moment. Certainly we do and it is reflected in exactly the sorts of situations that Professor Groenendijk spoke of in the Netherlands. Social security benefits are available on very different terms for those from people who come from abroad, education benefits, housing benefits, all currently need the authorities to ask questions about a person's immigration status. That is the situation even though we have the external controls which presently exist.

Lord Rix

  136.  I asked more or less the same question last week. Do you find overstayers have increased since Schengen or, frankly, do you think they have diminished? This information depends, I presume, on the consulate which issued the documents in the first place. I wondered if you had any views on that?
  (Professor Groenendijk)  The only data I have is that the number of people stopped and returned by the mobile brigades operating behind the frontier has increased after 1995. Of course this can be taken more as an indication of the increased activities of these brigades rather than of the presence of the illegals and that is the problem with giving a concrete answer to your question that we simply do not know. We only know that among the people who are detected by the authorities overstayers are a large group wherever you see empirical research in immigration matters in the world, whether it is Moscow, the United Kingdom or the Netherlands.

  137.  Can I raise another point. There is a question here saying would it be necessary to introduce identity cards if the UK were to opt into Schengen? I think you said earlier on that there are no identity cards in Germany; did you say that?
  (Professor Groenendijk)  Both in Germany and in the Netherlands there are identity cards but there is no obligation to carry identity cards as there is in Belgium and France.

  138.  I see.
  (Professor Groenendijk)  In Germany you have to have as an adult an identity card at home.

Lord Bridges

  139.   Ausweis.
  (Professor Groenendijk)  You can keep it on your book shelf or on your table. In the Netherlands in recent years statutory law has specified the occasions that you have to identify yourself: when you go to claim social security benefits, when you are employed, your employer has to check your identity cards and make a photocopy of it, when you perform certain transactions before a notary or with a bank, you have to show a passport, a driving licence, or another official identity document. So there are specified occasions when you have to produce an identity paper. There is no obligation to carry an identity card in the street.

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