Select Committee on European Scrutiny First Report



Draft Council Directive concerning the harmonisation of penalties imposed on carriers transporting into the territory of the Member States third-country nationals lacking the documents necessary for admission.

Legal base: Articles 61(a) and 63(3)(b) EC; consultation, unanimity
Document originated: 29 November 2000
Forwarded to the Council: 29 November 2000
Deposited in Parliament: 7 December 2000
Department: Home Office
Basis of consideration: EM of 15 January 2001and Minister's letter of 11 May 2001
Previous Committee Report: HC 28-viii (2000-01), paragraph 5 (14 March 2001)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Cleared


27.1  The previous Committee considered an earlier version of the draft Council Directive on 22 November 2000, when it agreed with the then Minister of State at the Home Office (Mrs Barbara Roche) that two points needed further exploration. These were, first, that a better definition was needed for the exception relating to admission for the purposes of asylum, so as to ensure proper protection for those with a genuine asylum claim and to prevent abuse of the immigration system. Secondly, it considered that the obligations imposed on carriers were open-ended and unquantifiable and that the lack of provision for defences was unacceptable.

27.2  That Committee considered a substantially revised version of the draft Council Directive on 14 March. It noted that aim of the Directive, as expressed in Article 1, was to supplement Article 26 of the Agreement implementing the Schengen Convention, signed at Schengen on 19 June 1990.[48]

27.3  That Committee also noted that Article 2 of the draft Directive required Member States to take the necessary steps to ensure that the obligation to return[49] provided for in Article 26(1)(a) of the Schengen Convention was also to apply where entry was refused to a third-country national in transit. The obligation was to apply if the carrier, who was to take him to his country of destination, refused to take the third-country national on board, or if the authorities of the State of destination had refused him entry and had sent him back to the State through which he transited. Article 2 also required the carrier to find means of onward transportation immediately, and to bear its cost, if he was unable to effect the return of the third-country national. If immediate onward transportation was not possible, the carrier was to be obliged to take charge of the third-country national who had been refused entry.

27.4  The Committee noted the terms of Article 6 which provided that carriers were to have "effective rights of defence and appeal", but was concerned that this provision seemed to relate to questions of procedure, rather than to substantive exemptions or defences. The Committee asked the then Minister for her comments on whether it would be preferable for the defences to appear on the face of the Directive. The Committee was also concerned over the potential for the Directive to impose unlimited liability on carriers, and sought a fuller explanation from the Minister for her statement that the Directive would not prevent the United Kingdom from waiving charges on carriers in the case of successful asylum claimants.

The Minister's letter

27.5  In her letter of 11 May 2001, the then Minister of State at the Home Office (Mrs Barbara Roche) addressed each of the Committee's concerns. On the question of effective rights of defence and appeal, and the related question of setting these out on the face of the Directive, the then Minister commented as follows:

    "Article 6 of the draft Directive specifically obliges Member States to ensure that their laws, regulations and administrative provisions stipulate that carriers, to which penalties are applied, have effective rights of defence and appeal. It does not specify what those defences might be. But nor does it place limits on the defences available under national law. Given that, as regards the obligation to impose a penalty, the Directive refers back to the existing obligation under Article 26 of the Schengen Implementing Convention (SIC), the scope under that Article for providing defences under national law must be assumed to remain. Accordingly, we are satisfied that the UK will continue to be able to operate the existing defences available under UK law. The Committee also asked whether it would be appropriate for the defences available to carriers to appear on the face of the Directive. It is precisely because the Directive is to apply across all the different jurisdictions of the EU, and is intended to preserve the existing flexibility allowed by Article 26 of the SIC, that it would not be appropriate to provide a list of all the possible defences. It is sufficient that whatever system is implemented by each Member State should allow for appropriate defences which are applicable within their own national jurisdictions, subject to the principle of effectiveness stated in Article 6 of the Directive."

27.6  On the question of the freedom to waive charges on carriers, the then Minister commented as follows:

    "I am also satisfied that, under the Directive as presently drafted, the UK will be able to continue, as now, to refund or waive charges in respect of those passengers who are recognised as refugees, including any dependants. I understand that Article 26 has been interpreted as allowing waiver of penalties in respect of successful asylum applicants, and accordingly there is no reason why the UK should not continue to be able to do so."

27.7  In response to the Committee's concerns about any potential for the Directive to impose unlimited liability on carriers, the then Minister commented as follows:

    "You also asked why linking the Directive to Article 26 of the SIC has removed the potential for unlimited liability for carriers. The requirement in Article 2(2) of the draft Directive for the carrier to 'take charge of' the third country national is intended to reflect the wording of Article 26 which requires the carrier to 'assume responsibility'. Article 26 has been interpreted as allowing for appropriate defences and limitations of liability. The full extent of the liability is to be clarified in national law. For example, in the UK carriers are only obliged to pay detention costs for a maximum of 14 days. If it is not possible to arrange for the immediate onward transportation of the passenger, the relevant authorities, not the carrier, should be responsible for the physical detention of the passenger pending removal. But the carrier should remain responsible for the costs of detention, for a reasonable period, and for making arrangements for the eventual removal of the passenger."


27.8  We are grateful to the then Minister for her helpful and comprehensive answer, which makes it clear that the provisions of national law relating to such matters as the substance of defences and the discretion to waive charges are not displaced by the draft Directive.

27.9  On this basis, we are content to clear the document.

48  OJ No. L 239, 22.9.00, p.1.  Back

49  i.e. the obligation on carriers, provided for in Article 26.1(a) of the Schengen implementing convention, to assume responsibility for aliens refused entry into a Contracting State and to return the aliens to the Third State from which they were transported, or to the Third State which issued the relevant travel document or to any other Third State to which they are guaranteed entry.  Back

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