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
—
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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
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| Legal base | Articles 62(2)(a) and 66 EC; co-decision; QMV
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| Deposited in Parliament | (b) 28 November 2006
(c) 26 February 2007
(d) 4 April 2007
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| Department | Home Office |
| Basis of consideration | EM and Minister's letter of 5 April 2007
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| Previous Committee Report | (a) HC 41-xxxvii (2005-06), para 22 (11 October 2006)
(b), (c) and (d) None
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| To be discussed in Council | 19-20 April 2007
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| Committee's assessment | Politically important
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| Committee's decision | (All) Cleared but further information requested
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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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