Select Committee on European Union Fifth Report

Letter from Barbara Roche MP, Minister of State for the Home Office, to Jimmy Hood Chairman of the Commons European Scrutiny Committee


  In its Twenty-Eighth Report, the Committee asked for answers to three questions in relation to the Commission Opinion on the UK's request to take part in some of the provisions of the Schengen acquis (Council Doc. No. 10584/99 Schengen 70) and the draft Council Decision on the UK's application (Council Doc. No. 11177/99 Schengen 74).

  The first two questions were covered by my letter to you of 16 November. The remaining question was concerned with the Commission's suggestion that we should extend our application to include Article 21 of the Schengen Implementing Convention. This article was excluded from our original application on the basis that it formed part of the Schengen external frontiers regime, in which our participation would not be consistent with our Frontiers Protocol. The Commission claims our participation in this article could be achieved without any impact on our frontiers Protocol since "the granting of the right to travel does not imply abolition of checks on individuals at the UK's frontiers".

  We considered this suggestion carefully but concluded that we could not agree. Participation in this article would conflict fundamentally with the underlying purpose of our Frontiers Protocol. Except in relation to EEA nationals, and other nationals where we have reached a special agreement (Article 21 SIC would be such an agreement), the Protocol provides for the UK to exercise controls on persons "for the purpose of . . . determining whether or not to grant other persons permission to enter the United Kingdom".

  The effect of Article 21 would be to remove the UK's ability to operate a full immigration control in order to grant leave to enter to this category of person. It would require the Immigration Officer to admit the eligible person as a right simply on production of the necessary documentation (passport and valid residence permit); documentation in support of the purpose, conditions and funding of the visit could also be required. No visa could be required of a visa national for such a short visit. While such free movement is a tenable concept where no internal frontier controls exist (and where Schengen states have complementary in-country controls, for example requiring such third country nationals to report their presence in another Member State to the relevant authority within three days), it is contrary to the legal structure of the UK's immigration control system which relies juridically on a decision by the Immigration Officer to grant leave to the passenger on arrival and which would involve waiving the visa requirement for significant numbers of visa nationals. (EU posts issue some 40,000 short-term visas a year, of which this category of visitor form a part).

  Beyond the arguments of principle are issues of operational practicality which make Article 21 undesirable in the UK. The first is the number and security of residence permits issued by other Member States: not only the problem of recognition for the Immigration Officer in the UK, at least until the EU common format residence permit is in use (not before 2002); but also the need to be satisfied about the security of other Member States' documents which could otherwise give rise to use of forged or fraudulent documents. Second, temporary residence permits could be used to qualify for entry: until we are clear as to what constitutes "temporary", this could be unacceptable since temporary residents in another Member State are unlikely to have an incentive to return there. Third, the UK is exposed to overstaying by such third country nationals in the absence of rigorous and systematic in-country controls as practised by Schengen states.

  The reciprocal application of Article 21 by other Member States would of course facilitate travel within the EU by third country nationals resident in the UK but we have judged that, on immigration grounds, such advantage for these resident third country nationals is outweighed by the degree of immigration risk for the UK from incoming travellers.

  We have confirmed this position in the course of Council Working Group discussions of our application and the provision does not therefore appear in the draft Council Decision on our application.

  I am copying this letter to Lord Tordoff.

  24 November 1999

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2000