Letter from Barbara Roche MP, Minister
of State for the Home Office, to Jimmy Hood Chairman of the Commons
European Scrutiny Committee
UK SCHENGEN APPLICATION: REQUEST FOR INFORMATION
BY 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