UK APPLICATION TO PARTICIPATE IN PROVISIONS
OF THE SCHENGEN ACQUIS
(a)
(20412)
—
SEC(99) 1198
(b)
(20460)
11177/99
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Commission Opinion on the request by the United Kingdom to take part in some of the provisions of the Schengen acquis.
Draft Council Decision on the request by the United Kingdom to take part in some of the provisions of the Schengen acquis.
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| Legal base: |
Declaration 45 to the Treaty of Amsterdam; Article 4 of the Protocol integrating the Schengen acquis into the framework of the EU annexed to the TEU and the TEC
|
| |
| Department: |
Home Office |
| Basis of consideration:
| Minister's letters of 18 and 24 November 1999
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| Previous Committee Report:
| HC 34-xxviii (1998-99), paragraph 18 (20 October 1999)
|
| To be discussed in Council:
| December 1999 |
| Committee's assessment:
| Politically important |
| Committee's decision:
| (both) Cleared |
Background
13.1 When we last considered these documents,
we did not clear them, noting that there were outstanding questions
on document (a) and that some areas of document (b) were still
being actively negotiated. We have now received two letters from
the Minister of State at the Home Office (Mrs Barbara Roche) addressing
the issues we raised.
The Minister's letters
— Letter of 18 November
13.2 In her first letter, the Minister addresses
the two questions we asked on the Commission Opinion as follows:
"You asked, first, what
kind of co-operation the UK had in mind in relation to the carriage
of firearms by officers engaged in hot pursuit or cross-border
surveillance under Articles 40 and 41 of the Schengen Implementing
Convention (SIC). I enclose, for your information, a copy of a
paper[55] prepared by
the UK to aid Council consideration of our implementation of the
cross-border surveillance provisions. This makes clear that UK
law does not permit the carriage of firearms unless specifically
and individually authorised by the chief officer of police. We
have no intention of changing that position and have therefore
indicated that it will be necessary for arrangements to be made
to allow the surrender and storage of weapons carried by police
officers on entry to the UK. The detail of this would be established
during the period in which the UK makes the necessary preparation
for implementation of its participation.
"The provisions on hot pursuit under Article
41 SIC also envisage the carriage of firearms by officers on foreign
soil. We have, however, at the request of the Presidency and other
Member States, agreed not to include Article 41 in our application
at this stage. This is because the provision applies only to land
borders at which controls have been removed. It is therefore not
applicable to any of the current parties to the Schengen arrangements.
We may have to review this position if, when the Republic of Ireland
submit their request for participation in Schengen, they seek
participation in Article 41.
"You asked also about the basis for our statement
that the Fixed Link between England and France is not a land border.
We have suggested in the Council Working Group — and the
French delegation have accepted — that the Channel Tunnel
Link is 'sui generis': neither land nor sea border. The actual
border is agreed as being in the middle of the English Channel;
the Sangatte Protocol therefore provides for special administrative
arrangements to be made for controls at the Fixed Link, in recognition
of the fact that it is not a conventional border arrangement.
This is the basis for our argument. It is clear that hot pursuit
has no real application to the Fixed Link in practice given that
the practicalities of travel, together with the retention of immigration
controls, prevent suspects from taking flight freely from one
jurisdiction to the other".
13.3 The Minister also tells us that the
Presidency intends the draft Decision to be approved at a meeting
of the Council during December.
— Letter of 24 November
13.4 The second letter addresses the outcome
of the UK's consideration of the Commission's suggestion that
it should participate in provisions allowing legally resident
third country nationals to travel freely within the Schengen area
(Article 21 of the Schengen Implementing Convention). The Minister
says:
"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."
Conclusion
13.5 We thank the Minister for her clear
and helpful answers to the first two questions. We are glad to
have her unequivocal assurance that police officers of other Member
States will be required to surrender any weapons they may be carrying
on entry to the UK.
13.6 We also thank the Minister for her
full explanation of the grounds for the Government's rejection
of the Commission's suggestion that it should participate in provisions
allowing legally resident third country nationals to travel freely
within the Schengen area. It would not, of course, be contrary
to the Frontiers Protocol ( which permits but does not require
universal passport control at the point of entry) to determine
in advance that individuals belonging to one category of third-country
nationals would be granted leave to enter on presenting to an
Immigration Officer satisfactory proof that they belong to that
category. Nevertheless, the Minister has clearly given the Commission's
suggestion proper consideration.
13.7 We understand that the territorial
scope of UK participation in Schengen is still under discussion,
and we ask to know the final decision as soon as possible.
13.8 Meanwhile, we clear the documents.
55 Not printed. Back
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