Select Committee on European Scrutiny Thirty-Seventh Report


22 Rapid Border Intervention Teams

(a)

(27721)

11880/06

+ ADD1

COM(06) 401

(b)

(27721 REV 1)

11880/1/06

COM(06) 401/3


Draft Regulation establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No. 2007/2004 as regards that mechanism

Revised draft of the Regulation

Legal baseArticle 62(2)(a) EC; co-decision; QMV
Document originated(a) 19 July 2006

(b) 10 August 2006

Deposited in Parliament(a) 24 July 2006

(b)5 September 2006

DepartmentHome Office
Basis of considerationEM of 7 September 2006
Previous Committee ReportNone
Discussed in Council19 July 2006
Committee's assessmentPolitically important
Committee's decision(a) Cleared

(b) Not cleared; further information requested

Background

22.1 Article 62(2)(a) of the EC Treaty requires the Council to establish standards and procedures for the Member States to use in carrying out checks on people crossing their external borders.

22.2 The Schengen Convention of 1985 and subsequent agreements (known collectively as the Schengen acquis) made provision for the removal of checks at the borders between the signatory States and for uniform rules for the control of their external borders. In addition to provision on immigration, the acquis provided for police and judicial co-operation in criminal matters. The UK does not participate in the immigration provisions but is party to those on police and judicial co-operation.

22.3 In November 2004, the European Council approved the Hague Programme for action on freedom, security and justice over the coming five years. Among other things, the European Council called for the creation of teams of national experts who could provide rapid technical assistance to a Member State to deal with acute immigration pressures on its external borders. In December 2005, the European Council asked the Commission to make a proposal for the creation of such rapid reaction teams.

22.4 Earlier in 2005, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States (FRONTEX) came into effect. The Regulation[62] which created it empowers the Agency to help coordinate joint operations by Member States to control their borders, to give Member States technical support, to run training courses, to disseminate information on relevant research and to help organise joint action by Member States to return illegal immigrants to their countries of origin.

22.5 Under a Protocol to the EU and EC Treaty, the UK is not bound by measures adopted under Title IV of the EC Treaty (visas, asylum and immigration) unless the Government expressly opts into them. The Government wished to opt into the FRONTEX Regulation but the Commission took the view that the UK was excluded from it because the UK does not take part in the immigration provisions of the Schengen acquis. The Government is challenging the exclusion in the European Court of Justice.

The document

22.6 The Commission has presented this draft Regulation in response to the request the European Council made in December 2005 (see above). Document (b) is a revised version of document (a): there are few differences between them and none of significance.

22.7 The Draft Regulation has two main purpose:

to make provision for setting up Rapid Border Intervention Teams (RABITs); and

to make common rules about the functions of "guest officers" and members of a RABIT,

22.8 Member States sometimes mount joint operations (with or without coordination by FRONTEX) to control and survey their external borders. The draft Regulation defines "guest officers" as the immigration officers of one Member State who are operating in the territory of another during a joint operation. Though excluded from the FRONTEX Regulation, the UK may take part in joint operations because Article 2(2) of that Regulation enables Member States to take part in joint operations with States which are not bound by the Regulation.

22.9 In the Commission's view, it is in the interests of efficiency and high common standards of border control for all guest officers to have the same tasks (and no others). The Commission also considers that, for the same reasons, members of RABITs should have a common list of tasks and the tasks should be the same as those of guest officers

22.10 The draft Regulation provides that Member States should inform FRONTEX of the officers of their immigration services who would be available to serve in a RABIT. The nominated officers would remain employees of their parent Member State, which would continue to pay their salaries at all times. But the Commission would pay for the officers' accommodation, travel and subsistence while on active service with a RABIT. The officers would be obliged to attend training courses and exercises run by FRONTEX.

22.11 A Member of State would be able to ask FRONTEX for a RABIT if it were faced with the arrival at its external borders of a large number of third-country nationals trying to enter illegally. Within five days of the request, the Director of the Agency would decide whether a RABIT should be sent. The Director would also be responsible for selecting the members of the Team from the among the officers Member States had volunteered to make available. While deployed in the State which had asked for help, the members of the RABIT would be under the command of the requesting Member State. FRONTEX and the requesting State would agree an operational plan for the RABIT, covering such things as the expected length of the deployment, the Team's tasks, the RABIT's technical equipment and the names and ranks of the members of the Team.

22.12 The Commission estimates that the cost of the RABITs to FRONTEX would be about €2.1 million a year.

22.13 The draft Regulation provides that the tasks of "guest officers" and members of RABITs should include:

—  checking the validity and authenticity of travel documents presented by people trying to cross the external border;

—  interviewing would-be entrants to verify the purpose of their journey and that they have means of subsistence;

—  searching the transport and possessions of would-be entrants;

—  checking whether there are alerts for the entrant's arrest; and

—  taking part in patrols of the external border and preventing people from crossing it illegally.

The Government's view

22.14 The Parliamentary Under-Secretary of State at the Home Office (Joan Ryan) tells us that the Government will not be opting into the draft Regulation because the UK was excluded from participation in the FRONTEX Regulation and the Government's challenge to the exclusion has not yet been decided by the European Court of Justice. Pending that judgement, the Government will ensure that the Commission and other Member States are aware of its views on the draft Regulation.

22.15 Even if the European Court of Justice were to uphold the exclusion of the UK from FRONTEX, the UK might be affected by the proposals in the draft Regulation about the tasks of "guest officers". This is because other Member States are able to take part in joint operations with the UK under Article 2(2) of the FRONTEX Regulation.

22.16 The Minister also tells us that the Justice and Home Affairs Council had its first discussion of the proposals on 19 July and that the Finnish Presidency is now expected to try to make progress with the negotiations.

Conclusion

22.17 We can see potential benefits from the draft Regulation. It seems to us reasonable that a Member State which is at risk of being swamped by large numbers of illegal immigrants should be able to seek and receive urgent assistance from other Member States. It also seems to us sensible to use FRONTEX to deal with requests for help and to put together Rapid Border Intervention Teams. There would be no compulsion on Member States to ask for help or to make available immigration officers for service in Intervention Teams.

22.18 The negotiations on these proposals have only just begun and the outcome of the Government's case against exclusion from the FRONTEX Regulation is not yet decided. We should be grateful, therefore, if the Minister would provide us with progress reports and confirm whether the Government would opt into the draft Regulation if the Court were to uphold its challenge to the UK's exclusion.

22.19 Document (a) has been superseded by document (b) and so we shall clear it from scrutiny. We shall keep document (b) under scrutiny pending receipt of the information for which we have asked the Minister.




62   Council Regulation (EC) No. 2007/2004: OJ No. L349, 25.11.2004 p. 1. Back


 
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