Select Committee on European Scrutiny Seventeenth Report


17 Rapid Border Intervention Teams

(a)

(27721)

11880/1/06 REV 1

COM(06) 401/3

(b)

(28080)

15745/06


(c)

(28406)

6613/07


(d)

(28523)

7647/07


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



The Presidency's amended revised draft of the Regulation



Further revised draft of the Regulation

Legal baseArticles 62(2)(a) and 66 EC; co-decision; QMV
Deposited in Parliament(b) 28 November 2006

(c) 26 February 2007

(d) 4 April 2007

DepartmentHome Office
Basis of considerationEM and Minister's letter of 5 April 2007
Previous Committee Report(a) HC 41-xxxvii (2005-06), para 22 (11 October 2006)

(b), (c) and (d) None

To be discussed in Council19-20 April 2007
Committee's assessmentPolitically important
Committee's decision(All) Cleared but further information requested

Background

17.1 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. Article 66 requires the Council to take measures to ensure cooperation between the departments of the administrations of the Member States and between them and the Commission.

17.2 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 provide for police and judicial cooperation in criminal matters. The UK does not participate in the immigration provisions but is party to those on police and judicial cooperation.

17.3 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.

17.4 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[48] which created it empowers the Agency to coordinate joint operations by Member States to control their borders, give Member States technical support, run training courses, disseminate information on relevant research and help organise joint action by Member States to return illegal immigrants to their countries of origin.

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

17.6 Though the UK is expressly excluded from the FRONTEX Regulation, Article 20(5) provides that the UK may ask to take part in the Agency's activities and may do so with the consent of the FRONTEX Management Board.

Previous scrutiny of document (a)

17.7 The Commission proposed document (a), a draft Regulation, in response to the request the European Council made in December 2005 (see above).

17.8 Document (a):

  • provides for the setting up of Rapid Border Intervention Teams (RABITs); and
  • defines the tasks and powers of "guest officers" and members of a RABIT.

It defines "guest officers" as the immigration officers of one Member State who are operating in the territory of another during a joint operation or pilot project.

17.9 Document (a) 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.

17.10 A Member State would be able to ask FRONTEX for a RABIT if it were suddenly faced with the arrival at its external borders of a large number of third-country nationals trying to enter illegally. The Director of FRONTEX would decide whether a RABIT should be sent. The Director would also be responsible for selecting the members of the Team from 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, and the names and ranks of the members of the Team.

17.11 When we considered document (a) last October, the Parliamentary Under-Secretary of State at the Home Office (Joan Ryan) told us that the Government would not be opting into the draft Regulation because the UK is currently excluded from participation in the FRONTEX Regulation and the Government's challenge to the exclusion had not yet been decided by the European Court of Justice.[49] Pending that judgement, the Government would ensure that the Commission and other Member States were aware of its views on document (a).

17.12 Even if the European Court of Justice were to uphold the exclusion of the UK, the UK might be affected by the proposals in the draft Regulation about the tasks of "guest officers". This is because UK immigration officers would be "guest officers" if they took part in joint operations in another Member State with the agreement of the FRONTEX Management Board under Article 20(5) of the FRONTEX Regulation.

17.13 We could see potential benefits from the draft Regulation. We also thought it 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.

17.14 The negotiations on the proposals had only just begun and the outcome of the Government's case against exclusion from the FRONTEX Regulation had not been decided. So we asked the Minister to 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.

Documents (b) and (c)

17.15 Document (b) is a revised draft of the Regulation. It reflects the discussion of document (a) last autumn in the Council Working Party on Frontiers. It supersedes document (a) and has now, itself, been superseded by document (c).

17.16 Document (c) was circulated by the German Presidency in February 2007 and contained further amendments to the text in the light of the discussion of document (b) in the Working Party and "contacts with the European Parliament". It has been superseded by document (d).

Document (d)

17.17 Document (d) has been prepared by the Council Secretariat in the light of the meeting of the Strategic Committee on Immigration, Frontiers and Asylum — a group of senior officials from the Member States — on 20 March.

17.18 The revised draft of the Regulation contains some significant changes. They include:

  • Article 1(1) specifies that the purpose of RABITs is to provide "rapid operational assistance for a limited period to a requesting Member State facing a situation of urgent and exceptional pressure, especially the arrivals at points of the external borders of large numbers of third country nationals trying to enter illegally into the territory of the Member State".
  • Article 3(1AA)would require the Management Board of FRONTEX to decide "the profiles and the overall number of border guards" to be made available to the "Rapid Pool" from which the Director would select officers for membership of a RABIT; it would also require Member States to nominate for the Rapid Pool border guards who fit the "profiles".
  • Article 3(1A) requires Member States to make nominated border guards available at the request of FRONTEX "unless the Member State faces an exceptional situation substantially affecting the discharge of national tasks", subject to the right of Member States to decide who to make available and for how long.
  • Article 5(2AA) provides that members of RABITs must fully respect human dignity in the performance of their duties and must not discriminate against people on grounds of sex, racial or ethnic origin, religion, belief, disability, age or sexual orientation.
  • Article 5(2A) provides that guards seconded to a RABIT may perform tasks and exercise powers only under the instruction of and, as a general rule, in the presence of border guards of the host Member State.
  • Article 5(3) would require members of RABITs to wear their own uniforms, together with a blue armband with the insignia of the EU and FRONTEX, and to carry an accreditation document.
  • Article 5(4A) provides that border guards seconded to a RABIT may carry weapons, ammunition and equipment unless prohibited from doing so by the host Member State.
  • Articles 5(4B) and 5(4C) provide that seconded border guards may use force with the consent of their home Member State and the host State and in the presence of border guards of the host State and in accordance with the law of the host State, provided that service weapons and ammunition may be used "in legitimate self defence, in legitimate defence of members of the teams or of others, in accordance with the national laws of the host Member State".
  • Article 5(6) provides that decisions to refuse a person entry to the host Member State may be taken only by border guards of the host State.
  • Article 8(1) specifies that members of RABITs should comply with Community law and the national law of the host State when performing their functions.
  • Articles 10, 10A and 11 amend the FRONTEX Regulation to take account of the provisions in Articles 1 to 9 on RABITs. In particular, Article 10A would insert a new Article 8d, setting out the procedure for deciding on the deployment of RABITs. The new Article would require the Executive Director of FRONTEX to decide a request for a RABIT within five days of receiving the request. It alsorequires the deployment of a RABIT within five days of the agreement of the operational plan by FRONTEX and the requesting Member State.
  • Article 12 would require the Commission to evaluate the implementation of the Regulation within a year of its entry into force and to make a report on the evaluation to the European Parliament and the Council.

The Government's view

17.19 The Minister tells us that the Government can accept the amendments incorporated in document (d). She also says that the German Presidency aims to reach a general approach on the text of the Regulation at the JHA Council on 19-20 April, with a view to final adoption by the Council on 21-22 June following second reading by the European Parliament.

17.20 The Minister tells us that the Government:

    "would like UK immigration officers to be able to form part of the Rapid Pool for RABITs, and to take part in RABITs on a case by case basis, at the UK's request and with the agreement of the Management Board of Frontex (under Article 20(5) of the Frontex Regulation or a similar mechanism). However, given the complexities of the draft Regulation and the speed with which the German Presidency have successfully negotiated the text, we have not been able to secure agreement on any amendments to clarify that the UK can take part in RABITs (if amendment is necessary) without risking delay in the adoption of this significant Regulation. As an alternative, we have proposed a Council Declaration repeating the UK's support for Frontex, highlighting the participation of the UK in Frontex activities, and inviting the Agency and its Management Board to explore ways in which the UK can likewise practically support the operations of RABITs. As this will involve further detailed consideration of the appropriate process and legal framework for UK involvement, we consider it prudent to wait for the preliminary ruling of the [European Court of Justice] case before commencing this process.

    "If the UK is successful in the case before the ECJ and opts in to the Frontex and the RABITs Regulations, the Regulations will bind and apply to the UK. It is not anticipated that the UK would need to request a RABIT or joint operation on UK territory to assist with an influx of migrants from the UK into the Schengen area. However, we will develop a mechanism for consulting Parliament beforehand, in the unlikely event that the UK needs to make a request."

Conclusion

17.21 We remain persuaded of the benefits of this proposal for a Member State which is at risk of being overwhelmed by a sudden and very large influx of illegal immigrants.

17.22 We consider that the amendments incorporated in document (d) are welcome improvements to the text of the draft Regulation. For example, we welcome the provision that border guards seconded to a RABIT from another Member State may not carry weapons or use force without the consent of the host Member State. We note that the Government is content with the revised text.

17.23 We also note that the Government intends to opt into the RABITs Regulation if the European Court of Justice upholds its challenge to the exclusion of the UK from the FRONTEX Regulation. We understand why, if the Court does not uphold that challenge, the Government will seek agreement to a Council Declaration with the aim of finding another means for the UK to take part in RABITs where appropriate.

17.24 Documents (a), (b) and (c) have been superseded by document (d) and we clear them from scrutiny. We are also content to clear document (d) on the understanding that the Minister will provide us with progress reports on the completion of the negotiations on the RABITs Regulation and will tell us the outcome of the Government's challenge to the exclusion of the UK from the FRONTEX Regulation.


48   Council Regulation (EC) No. 2007/2004: OJ No. L 349, 25.11.2004, p. 1. Back

49   See HC 34-xxxvii (2005-06), para 22 (11 October 2006). Back


 
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