19 REMOVAL BY AIR: TRANSIT ASSISTANCE
(a)
(23762)
10386/02
—
(b)
(24405)
7366\03
—
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Initiative of the Federal Republic of Germany for a Council Directive on
assistance in cases of transit for the purposes of expulsion by air.
Initiative of the Federal Republic of Germany for a Council Directive on
assistance in cases of transit for the purposes of removal by air.
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| Legal base | Article 63(3)(b)EC; consultation; unanimity
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| Document originated | 12 March 2003
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| Deposited in Parliament |
7 April 2003 |
| Department | Home Office
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| Basis of consideration |
EM of 7 May 2003 |
| Previous Committee Report |
(a) HC 152-xxxix (2001-02), paragraph 8 (23 October 2002)
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| To be discussed in Council
| 5-6 June 2003 |
| Committee's assessment | Politically important
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| Committee's decision | (Both) Cleared
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Background
19.1 The proposal seeks to ensure smooth transit arrangements
for third country aliens being removed from a Member State by
air. As its legal base falls within Title IV of the EC Treaty
(Visas, asylum, immigration and other policies related to the
free movement of persons), the UK had three months from the
formal publication of the proposal in which to decide whether
to opt in to the measure (in accordance with the provisions in
the Protocol on the position of the United Kingdom and Ireland
now annexed to the EC Treaty and the Treaty of European Union).
19.2 When we first considered the draft
Directive, in October, we kept it under scrutiny until we knew
whether the Government intended to opt into the measure.
The document
19.3 The Minister has now deposited a new
version of the proposal — document (b). Like the earlier
version, the new document sets out the procedural rules to be
followed when removals by air necessitate transit across other
Member States. It covers such areas of assistance as meeting
aliens, escorting them in the transit airport, preventing any
attempt to resist transit, and providing emergency medical care
and sustenance as required to aliens and their escorts. In documents
(b), the order of the Articles has been changed, and there has
been substantial redrafting.
The Government's view
19.4 The Explanatory Memorandum from the
Parliamentary Under-Secretary of State at the Home Office (Lord
Filkin) is not primarily concerned with the differences between
document (a) and document (b). Its purpose is to tell us that
the UK has decided not to opt into this proposal, and to give
us the reasons for the decision.
19.5 The Minister tells us:
"Although we are keen to co-operate with
our EU partners on returns, the Government's view is that the
Directive does not allow sufficient flexibility for a Member State
to refuse a request for transit. Safeguards for when transit operations
stall are also inadequate and there is clear potential for Member
States to be left with responsibility to at least consider any
asylum and human rights claims made during transit. The implications
of this Directive for Immigration Service resources, the detention
estate and UK removals capacity are significant and potentially
detrimental to UK removals priorities."
19.6 The Minister then points out that,
although document (b) no longer states that its operation will
be without prejudice to the Dublin Convention, the implications
of that Convention could impinge on a transit State, and add to
the number of asylum claims lodged there.
19.7 In addition, the Minister considers
that detention of persons in transit as proposed by the Directive
would be unlawful in the UK, as could be the use of 'legitimate
means to prevent or end any attempt by the third country national
to resist the transit"(as proposed in Article 5(3)). He
explains:
"Were third country nationals to be transited
through the United Kingdom in accordance with the Initiative,
immigration officers would have no legal authority to detain,
as they can only detain those who may be examined under the Immigration
Act 1971. Although immigration officers do have power to examine
passengers in transit, this is for certain limited purposes; detention
as envisaged by the Initiative could constitute false imprisonment
under UK law. Furthermore, were an immigration officer to use
force to prevent a third country national resisting transit, he
would very likely be committing an assault under UK law. It could
not be said that an immigration officer who used force in such
a case was acting in the exercise of his duty as an immigration
officer".
19.8 The Minister reminds us that the UK
generally takes a positive approach to participation in measures
on illegal immigration. It took a full part in discussions on
this proposal in the working group and secured a number of amendments.
He continues:
"However, the Government's view remains
that the proposal would add minimal value to UK removals efforts
whilst placing limited UK Immigration Service resources at the
disposal of other Member States wishing to effect removals to
third countries via the UK. The near global coverage of UK airports
means that demand for transit to a number of key source countries
would be extremely high were the UK to participate in the Initiative.
"Despite the shortcomings of the draft Directive
on transit assistance, the UK remains actively engaged in working
with EU partners to support removals activity. The EU Return
Action Programme, adopted by the JHA Council in November 2002,
provides a range of potentially useful activities that we are
seeking to take forward. In line with UK thinking, the immediate
focus is on enhancing operational co-operation. The UK will continue
to explore further possibilities for effective co-operation with
other Member States on returns."
Conclusion
19.9 We are not surprised by the Government's
decision not to opt into this proposal. The UK flagged its concern
about the issues in its response to the Commission's Green Paper
on a Community Return Policy for Illegal Residents,[40]
and repeated them in its Explanatory Memorandum on document (a).
We are encouraged that the Government will continue to explore
further possibilities for co-operation with other Member States
on returns.
19.10 As the Government is not opting
into the proposal, we clear both documents.
40 (23400) 8000/02; see HC 152-xxxviii (2001-02), paragraph
31 (16 October 2002). Back
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