Select Committee on European Scrutiny First Report



Draft initiative by the Federal Republic of Germany for the adoption of a Council Decision on Member States' obligation to transmit information on illegal immigration and facilitator networks pursuant to an early warning system.

Legal base: Articles 66 and 67(1) EC; consultation; unanimity
Department: Home Office
Basis of consideration: Minister's letter of 11 May 2001
Previous Committee Report: HC 28-x (2000-01), paragraph 2 (28 March 2001)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested


4.1  This proposal aims to improve an existing early warning system by making the exchange of information on illegal immigration and facilitator networks compulsory. It lists the information that is to be exchanged, and requires Member States to take any necessary measures, and inform other States about these. It states that the information will relate to non-personal data.

4.2  When the previous Committee last considered the proposal, in March, it noted that recasting the measure as a Decision had removed one of the grounds for confusion, and that the then Minister of State at the Home Office (Mrs Barbara Roche) had provided helpful answers to two of the Committee's questions. However, as some questions and loose ends remained, the Committee left the document uncleared.

The Minister's letter

4.3  The then Minister wrote on 11 May, addressing the Committee's questions. The first was whether the new legal base for the proposal was sufficient. The Minister replies:

    "The proposal is now based solely on Article 66 of the Treaty establishing the European Community, under which the Council may take measures to ensure co-operation between the Member States in the areas covered by Title IV. The requirements of the Directive go beyond the mere exchange of information. Member States are required not only to exchange information on illegal immigration, but also to act on that information (where appropriate by means of 'concerted action'). Furthermore, they are required to inform the Member States concerned immediately of the action taken. It is arguable that this also falls within the concept of 'co-operation' between Member States, since the purpose of sharing information is to enable appropriate action to be taken, where necessary jointly by the Member States, and to keep Member States informed of the action taken. We shall, however, raise this issue in negotiation, in order to seek clarification of the reasons for the removal of Article 63(3)(b) of the Treaty as a basis for the proposal."

4.4  The previous Committee also asked the Minister whether the Government would be pressing for the inclusion of a reference to the need not to prevent or impede access to the asylum process. In response, she confirms that she sees merit in arguing for the inclusion of such a provision, and states that, once negotiations begin, the Government proposes to suggest such a provision.

  4.5  The Minister continues:

    "You asked whether Iceland and Norway, and the candidate countries, will be able to participate in the early warning system. The United Kingdom and fellow Member States are in favour of them being able to participate. Consideration is being given to whether provision can be made to enable these non-EU countries to participate in a binding EU decision."


4.6  We thank the former Minister for her helpful replies. It is encouraging to learn that the Government will be seeking clarification of the legal base, and proposing the inclusion of a reference to the need not to prevent or impede access to the asylum process.

4.7  However, the proposal is still clearly at an early stage. We shall therefore keep it under scrutiny until we know more about how successful the Government has been in relation to the two points above, and whether or not the UK intends to opt in to the draft measure.

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