Select Committee on European Union Twenty-Ninth Report

CHAPTER 5: the united kingdom's position

66. As we explained in Chapter 1, in 1997 the United Kingdom and Ireland secured an opt-out at Amsterdam from the requirement to remove frontier controls at their borders with other Member States. The rationale for this position, adopted by successive governments since 1986, and restated by Lord Filkin in his evidence to us,[78]is that the British Isles' island geography makes it much more effective to check passengers' admissibility at the limited number of ports of entry than to rely on controls at the more porous external borders of the Community; and that removal of these controls would make it necessary to rely on more intrusive internal controls supported by some form of identity card system, which has traditionally been resisted in this country.

67. In our report Schengen and the United Kingdom's Border Controls in 1999 we examined the Government's arguments for maintaining systematic frontier controls on all persons entering the United Kingdom.[79] We were unconvinced that such controls were the most effective use of resources to control illegal immigration. We said then:

"We question whether it will be practical to maintain the principle that passengers arriving in the United Kingdom are controlled by nationality rather than by point of departure for the foreseeable future. Closer co-operation with other European States in combating illegal immigration, coupled with selective checks on entry, appears to present the most effective way forward in managing cross-border flows which are increasing at a compound 8 per cent per year."

68. In our view developments in the intervening period have demonstrated the increasing difficulty of maintaining the Government's position. Until recently they took the view that retention of the United Kingdom's frontier controls at its borders with other Member States made co-operation on external border security less of a priority. But a growing realisation that the United Kingdom and Ireland could not insulate themselves from the effects of an area without internal frontiers has led to a shift of emphasis, signalled most notably by the Prime Minister's initiative before the Seville European Council.[80]

69. With enlargement, the position of the United Kingdom and Ireland will no longer even be geographically unique, since as islands Cyprus and Malta will be in the same position. However, they, like the other accession countries, will be required to apply the full Schengen acquis.

70. The Government have made it clear on numerous occasions, however, that they intend to maintain controls at the United Kingdom's frontiers with other Member States, and to ensure that the opt-out secured at Amsterdam is retained in the new Treaty.

71. We received evidence that showed clearly that the United Kingdom has been to the fore in engaging in practical co-operation with other Member States on a bilateral and multilateral basis in many of the operations described in Chapter 3, and, as we have already said (paragraph 50), we welcome that. But the United Kingdom finds itself in an increasingly awkward position in seeking to reconcile its retention of internal frontier controls with more active participation in integrated border management at the EU's external border. As we have already explained, the rationale of integrated border management at the external border is to compensate for the removal of internal frontier controls. The Government's active participation in these measures makes it increasingly difficult to argue convincingly that the United Kingdom needs to retain its opt-out from Schengen.[81] [82] These difficulties can only increase. Several witnesses referred to the importance of trust in operating external frontier controls across the enlarged EU.[83] However, we have no reason to doubt that the United Kingdom's contribution to operational co-operation is valued by its partners, even though it maintains a second line of defence at its internal borders.

72. The United Kingdom is likely to face other difficulties arising from an intensification of common border management. One relates to financial burden-sharing. We noted above (paragraph 51) that there is general agreement within the EU that the burden of controlling the external borders of the EU should not fall disproportionately on those Member States responsible for the longest sections of them. Despite having in the past been resistant to proposals for burden-sharing, the Government now accept the case for it, although they still seem to have an unrealistically narrow expectation of what is likely to be involved. Mr Hain said that burden-sharing "could include, for example, intelligence-led joint operations and the provision of some experts and some training";[84] and Lord Filkin similarly suggested that burden-sharing "may be in kind rather than in cash, rather than there being a pooled budget".[85]

73. At the time of writing the Commission had not brought forward detailed proposals for a financial burden-sharing mechanism, but in its June 2003 Communication it outlined the general principles that it proposed should apply.[86] It confirmed as the four main criteria to be taken into account in evaluating the burden of each Member State:

  • the geographical situation of a Member State and the nature of the borders;
  • the migratory pressure at the different types of border (land, sea and airport);
  • the number of checks carried out on persons entering and leaving the Schengen area; and
  • the quality standard of controls and surveillance at external borders, as measured by the common risk analysis method applied at each type of border.[87]

74. In his evidence to us Mr Faull explained, as does the Communication, that the Community contribution would always be supplementary to the effort being made by the country concerned.[88] Nevertheless it is clear that in the longer term substantial expenditure is envisaged: the Communication concludes (page 17) that the principle of solidarity is "of major financial importance" and "should be reflected in budgets within the new post-2007 financial perspective".[89] Moreover, the draft Constitutional Treaty includes specific provision in the Title dealing with an Area of Freedom, Security and Justice for the "principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States".[90] Although the precise long-term financial implications are unclear, there is no doubt that burden-sharing will go far beyond operational co-operation, and the United Kingdom will have no choice but to pay its full contribution to the external frontier regime through its contribution to the Community budget, while at the same time meeting the cost of retaining its internal frontier controls.

75. Another potential problem for the United Kingdom presented by the establishment of a European Border Guard arises from the fact that most other Member States' border guards operate as a uniformed police force and typically possess police powers. The United Kingdom's Immigration Service is a civilian body that is an integral part of the Immigration and Nationality Directorate of the Home Office and directly responsible to the Home Secretary. It may be difficult for the United Kingdom to participate fully in joint operations with other Member States' border guards without the powers and a structure akin to theirs. Lord Filkin acknowledged this in telling us that in joint operations United Kingdom immigration officers have a "secondary role" because of their civilian status.[91] This may be unavoidable. We have received no representations in favour of a reorganisation of the Immigration Service on a continental model, nor do we recommend one.

76. Short of becoming a full Schengen member, the Government could demonstrate their commitment to the development of common standards at the external border by adopting the common manual on checks at external borders. This is one of the key means of promoting common standards and procedures, and its application by the United Kingdom would ensure that our procedures were closely aligned with those of the Schengen States without requiring full participation in Schengen. In oral evidence the Home Office said that the differences between the common manual and UK procedures were "reasonably slight" and it was something they could look at, but that in practice it would be "extremely complicated" to apply the common manual.[92] We do not understand why this should be if the differences are slight and we urge the Home Office to review its position. The Commission is currently revising the manual,[93] and it would be an opportune time for the United Kingdom to reconsider adopting the manual. If the Government continue to maintain controls at the United Kingdom's borders with other Member States, they should consider the possibility of adopting the common manual on checks at external borders.

78   Q 106. Back

79   1998-99 7th report, HL Paper 37. Back

80   See paragraph 27. Back

81   As Professor Guild put it in evidence, "This is a contradiction in terms of the Community legislation in the field, in that the whole idea of these increased controls is about compensating for the abolition of controls elsewhere" (Q 162). Back

82   We have criticised in other contexts the Government's "pick and mix" approach to participation in Title IV measures, which derives from a separate protocol agreed at Amsterdam: see, for example, our report, A Common Policy on Illegal Immigration (37th Report 2001-02, HL Paper 187), paragraph 54. Back

83   Dr Guiraudon put it as follows: "Trust, which lies at the basis of interstate cooperation can only be developed if all parties feel they are treated equally and enjoy the same rights and obligations. The fact that new member states cannot "opt-out" or selectively "opt-in" as the UK does can only be detrimental to trust-building" (p 90).  Back

84   Q 100. Back

85   Q 131; see also Home Office evidence, p 38. Back

86   On the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders and the return of illegal residents COM(2003) 323 final, 3 June 2003. Back

87   Page 15 of the Communication. Back

88   Q 208. Back

89   The Commission estimates that for the period 2004-2006 €140 million will be required to meet additional needs in the immigration field, including protection of external borders (page 18 of the Communication). Back

90   Article III-164 (CONV 725/03). Back

91   Q 121. Back

92   Q 107. Back

93   Q 194. Back

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