House of Commons - Documents considered by the Committee on 25 June 2014

Documents considered by the Committee on 25 June 2014 - European Scrutiny Committee Contents

13 Asylum and Immigration

Committee's assessment	Politically important
Committee's decision	Cleared from scrutiny

Document details	(a) Commission report: Fifth bi-annual report on the functioning of the Schengen area 1 November 2013-30 April 2014 (b) Commission Communication: Fifth annual report on immigration and asylum (2013)
Legal base	(Both) —
Department	Home Office

Summary and Committee's conclusions

13.1 Document (a) is the Commission's fifth six-monthly report on the functioning of the Schengen area, covering the period from November 2013 to end April 2014. It provides an overview of the main trends and developments within the Schengen area to inform political and strategic discussion at Ministerial level.

13.2 Document (b) is the Commission's fourth annual report on immigration and asylum and covers developments in 2013. It provides a snapshot of trends in migration and an overview of measures taken by the EU to respond to migratory pressures at its borders, ensure adequate systems are in place for those in need of international protection, and make better use of migration as a tool for growth and sustainable development.

13.3 Although the UK remains outside the Schengen free movement area, and continues to exercise border controls on all individuals seeking entry to the UK, it has chosen to take part in those aspects of Schengen dealing with policing and law enforcement and is entitled to participate in political discussions on the overall functioning of the Schengen area. EU measures on asylum and immigration are subject to the UK's Title V (justice and home affairs) opt-in. Decisions to opt into individual measures are taken on a case-by-case basis, applying the criteria set out in the Coalition's programme for government.[30] Even in cases where the UK chooses not to opt in, or is excluded from doing so, it continues to play an active part in discussions with a view to mitigating the impact of EU measures on migratory pressures at the UK's borders and on the UK's internal security.

13.4 Together, the Commission report and Communication provide valuable information on the policy and legislative tools developed by the EU, within and beyond the Schengen area, to manage migration. In this Report, we briefly summarise the content of each document and the Government's position as set out in Explanatory Memoranda provided by the Minister for Immigration and Security (James Brokenshire).

13.5 Many of the initiatives outlined in the Commission report and Communication have been considered separately and reported to the House. We are also reporting these documents because they give a sense of the bigger strategic picture and the scale of the challenges facing Member States in addressing the causes of migration, combating people smuggling and human trafficking, improving border surveillance and controls, whilst also preventing further loss of life at sea and ensuring an appropriate humanitarian response to those in need of international protection.

13.6 Whilst we are content to clear the documents from scrutiny, we ask the Minister to update us, in due course, on the progress and outcome of the case brought by Spain in the Court of Justice to challenge the UK's partial participation in the European border surveillance system (Eurosur). We also ask him to inform us of any changes proposed by the Commission to Switzerland's association with the Schengen free movement area, following the outcome of the Swiss referendum in February calling for the introduction of immigration quotas.

Full details of the documents: (a) Commission report: Fifth bi-annual report on the functioning of the Schengen area 1 November 2013-30 April 2014: (36048), 10063/14, COM(14) 292; (b) Commission Communication: Fifth annual report on immigration and asylum (2013): (36056), 10208/14, + ADD 1, COM(14) 288.

Document (a) — Commission report on the functioning of the Schengen area

13.7 The Commission report reviews:

· migratory pressures at the EU's external borders and migration flows within the Schengen area;

· Member States' application of Schengen rules; and

· the use of "flanking" measures, such as the Schengen Information System, Visa Information System, readmission and visa facilitation agreements, which are intended to enhance security within the Schengen area.

Migratory pressures at the EU's external borders

13.8 The Commission reports a sharp increase (48%) in the detection of irregular border crossings at the external borders of the Schengen area in 2013, compared with the previous year, principally affecting Italy, Greece, Hungary, Spain and Bulgaria. Most of those detected are from Syria, Eritrea, Afghanistan and Albania. The Commission expects pressure to remain high, particularly along the Central and Eastern Mediterranean routes and the Western Balkans route. Detections of irregular border crossings have fallen at the Greek and Bulgarian land borders with Turkey, following the deployment of additional resources, but the Commission anticipates that Bulgaria and Italy may require further assistance and support to deal with pressures on their asylum systems.

Migration flows within the Schengen free movement area

13.9 Most irregular migrants are detected as a result of checks carried out inland, rather than at the EU's external borders. The Commission reports an increase of around 9% in the number of detections from November 2013 to February 2014, compared to the same period a year ago, with most apprehended in Germany, Sweden, France, Spain and Belgium. A recent FRONTEX risk analysis confirms that most irregular migrants do not remain in the Member State they first enter but move on to other destinations within the Schengen area. The Commission notes, however, that not all irregular migrants are being fingerprinted in line with the requirements of the Eurodac Regulation, making it difficult in some cases to ensure their return to the first Member State of entry under the Dublin procedures if they intend to apply for asylum. It urges Member States to ensure that irregular migrants are made aware that "it is a legal obligation for them to have their fingerprints taken, and that certain legal consequences flow" from a refusal to do so.[31]

Application of the Schengen acquis by Member States

13.10 The Schengen Borders Code contemplates that individual Member States participating in the Schengen free movement area may, exceptionally, re-introduce controls at their internal borders where there is a serious threat to public policy or internal security. Two Member States — Poland and the Netherlands — introduced temporary controls when hosting UN conferences and summits.

13.11 The report describes the Commission's efforts to monitor obstacles to free movement in border areas (such as additional police checks or disproportionate traffic flow controls) in order to ensure that they do not constitute systematic controls equivalent to border checks. Two new cases are under investigation in Italy and Slovenia, two cases have been closed, and investigations are continuing in three existing cases (Austria, Belgium and Germany).

13.12 The Commission notes that it has initiated an inquiry into allegations of serious ill-treatment during border surveillance operations in Greece, as well as "push-back" practices at the external border which may contravene the principle of non-refoulement, and has also entered into discussions with Bulgaria.

13.13 Following the outcome of the referendum held in Switzerland in February 2014 on the free movement of EU citizens, the Commission says that it will assess any proposals put forward by the Swiss authorities to determine whether they have implications for Swiss participation in the Schengen area.

13.14 The report highlights recommendations issued by the Commission to Spain and the UK to address complaints about excessive waiting times at the border between Spain and Gibraltar. These invite the UK and Gibraltar to take more effective measures to combat tobacco smuggling, and Spain to improve traffic management at the border crossing point. The Commission expresses its commitment to "continue monitoring the situation at this border".[32]

13.15 The report briefly reviews the transposition and implementation of two Schengen measures concerning the return of illegal migrants and cooperation with neighbouring third countries to facilitate the movement of local border traffic (neither measure applies to the UK).

13.16 Turning to the application of the Schengen evaluation mechanism, the report notes that evaluations covering different aspects of the Schengen acquis have been carried out in six Schengen countries (Switzerland, Estonia, Latvia, Lithuania, Hungary and Poland) and have not revealed any fundamental deficiencies, although the final evaluation reports are likely to identify areas for improvement. Following changes to the Schengen evaluation mechanism,[33] the Commission expects the new procedures to apply from January 2015.

13.17 The report confirms that the Council has so far been unable to agree that controls at the EU's internal borders with Bulgaria and Romania should be lifted, despite concluding in June 2011 that both countries had fulfilled the criteria for full application of the Schengen acquis.

The use of flanking measures

13.18 The second generation Schengen Information System (SIS II) became fully operational in May 2013 and has functioned smoothly. The report highlights the need for all Member States to implement fully the new alert categories and functionalities and to comply with the legal requirements governing the use of SIS II, particularly with regard to alerts issued pursuant to a European Arrest Warrant.

13.19 The Visa Information System (VIS), which stores and processes information on short-stay visas, is now operational in eleven world regions and, by 1 October 2013, had processed nearly five million Schengen visa applications (of which around four million visas were issued). Although VIS is operating well, the Commission emphasises the importance of ensuring the quality of the data (including fingerprints) entered in the database.

13.20 The Commission notes that agreement has been reached on the introduction of a new visa suspension mechanism, to be used as a last resort in the event of substantial increases in the number of irregular migrants or rejected asylum applicants from a visa-free third country. The existing visa reciprocity mechanism has also been amended to make it easier for the EU to respond to the imposition of visa requirements on one or more Member States by a visa-free third country.

13.21 The number of asylum applications lodged by individuals from visa-exempt Western Balkan countries, especially Serbia, continues to increase (12.5% higher in 2013 than in 2012), representing 12% of all asylum-seekers in Schengen countries. Germany, France, Sweden, Belgium, Switzerland and Luxembourg remain the main destination countries, but the recognition rate is low — less than 2% in 2013.

13.22 Finally, the report notes that the EU is shortly to conclude a Readmission Agreement with Turkey. Readmission and visa facilitation agreements have been concluded with Armenia (entering into force in January 2014) and Azerbaijan, and negotiations launched with Belarus and Morocco. The EU has agreed a visa waiver for nationals of the Republic of Moldova holding a biometric passport, lifted the existing visa obligation for citizens of 16 small Caribbean and Pacific island nations, and is pursuing visa waiver agreements with the United Arab Emirates, Peru and Colombia.

Document (b) — the Commission Communication

13.23 The Commission's fifth annual report on immigration and asylum provides a snapshot of trends in migration in 2013 and the EU's response. It is accompanied by a Commission Staff Working Document (ADD 1) which summarises the main developments at EU and Member State level during 2013 and contains detailed statistical data based on information provided by national contact points participating in the European Migration Network and by Eurostat.

Snapshot of EU migration in 2013

13.24 The report notes that 20.4 million (or 4%) of the EU's total population of 503 million are third country nationals. 2013 saw a "strong increase" in the number of asylum applications (up by around 100,000 compared to 2012) and a spike in those fleeing from Syria.[34] Since the outbreak of the conflict in 2011, the Commission estimates that some 82,730 Syrians have sought asylum in the EU, a small proportion of the 2.3 million who have found shelter elsewhere. Other important source countries for asylum seekers in 2013, as in 2012, were Russia, Afghanistan, Serbia, Pakistan and Kosovo. Approximately 35% of all applications for asylum in 2013 resulted in the grant of refugee status or some form of subsidiary or humanitarian protection at first instance. The number of unaccompanied minors applying for international protection in the EU — mainly in Sweden, Germany, the UK, Austria and Italy — remained at a level similar to 2012,[35] with most coming from Afghanistan, Somalia, Syria, Eritrea and Pakistan.

13.25 The report notes that irregular migration, although difficult to quantify, remains a significant factor in migration to the EU. During 2013, some 317,840 individuals were refused entry to the EU (most — 61% — in Spain), 385,230 irregular migrants were apprehended, and 166,470 were returned to their country of origin or transit. Frontex data for the period January to September 2013 indicate that 77,140 individuals were intercepted while crossing EU borders illegally, with a significant increase at the Italian coast from July in response to the worsening situation in Syria.

13.26 The Commission estimates that 40,000 migrants arrived in Europe via maritime routes in 2013, of whom at least 600 are thought to have lost their lives. The Task Force Mediterranean — established in the aftermath of the sinking of a boat near the Italian island of Lampedusa in October 2013 with the loss of more than 360 lives — has been tasked with developing a comprehensive strategy, based on the principles of prevention, protection and solidarity, to manage migration more effectively and stem further deaths at sea.[36]

International protection

13.27 The report highlights the adoption of all of the measures comprising the second phase of the Common European Asylum System and indicates that the Commission will focus its efforts on ensuring uniform implementation by all participating Member States.

13.28 In April 2013, the Commission published its first statistical report on human trafficking which indicates that there were 23,632 victims of trafficking in the EU during the period 2008-10. The vast majority were female (80%) and most were trafficked for the purposes of sexual exploitation (62%) or for forced labour (25%). Member States were required to complete their transposition of a 2011 Directive on preventing and combating trafficking in human beings[37] by April 2013 — the Commission makes clear that it will take infringement action against those that have failed to do so. Other achievements in 2013 include:

· the development of practical cooperation initiatives by the European Asylum Support Office, including support and assistance for Greece, Italy and Bulgaria, the provision of training, and the dissemination of country of origin information covering the Western Balkans, Syria and Russia;

· emergency funding to support a number of Member States — notably Greece, Italy, Bulgaria and Cyprus — in managing increased migratory flows and improving their asylum systems, as well as additional funding for Frontex operations;

· the inaugural meeting of the Relocation Forum to discuss future relocation activities;

· implementation, by participating Member States, of the EU's common resettlement priorities for recognised refugees, and continuing work on the launch (in 2014) of a Regional Development and Protection Programme in the Middle East; and

· continuing work on unaccompanied minors, including on age assessment, family tracing and countries of origin.

Responding to migratory pressures

13.29 The Commission continues to implement the strategic priorities agreed by the Council in April 2012 and updated in November 2013. The EU Action on Migratory Pressures — A Strategic Response seeks to strengthen cooperation with third countries of origin and transit on migration, enhance management of the EU's external borders, prevent illegal immigration from Turkey and the Southern Mediterranean, tackle abuse of channels for legal migration, and strengthen cooperation on the return of illegal immigrants. Specific action taken by the EU during 2013 includes:

· the signing of new EU Readmission Agreements with Armenia, Cape Verde and Turkey, the completion of negotiations with Azerbaijan, and preparation for negotiations with Belarus;

· further measures to prevent irregular migration, particularly at the Greece-Turkey border, and to stem flows from the Western Balkans and Eastern Europe;

· the publication of reports assessing Member States' implementation of two EU Directives — one on the return of illegal immigrants, the other on the imposition of criminal sanctions and fines on employers hiring illegal immigrants (the UK does not participate in either Directive); and

· support for the increased use of joint return operations coordinated by Frontex.

Border management

13.30 The report describes the tools available at EU level to enhance border management, notably through joint operations coordinated by Frontex and the development of the European border surveillance system (EUROSUR) to exchange information and strengthen inter-agency cooperation in managing the EU's external borders. The Commission also published in 2013 its proposals for an Entry-Exit System and Registered Traveller Programme (the "smart borders" package) to improve procedures for carrying out border checks on third country nationals seeking entry to the EU.

Legal migration to the EU

13.31 The Commission describes 2013 as "a year of intensive negotiation on EU legislation on legal migration", highlighting the adoption of Directives on seasonal workers and intra-corporate transferees and continuing negotiations on a Directive on the entry, residence and rights of third country researchers, students, trainees, volunteers and au pairs.

13.32 The Commission has published guidance on the application of a 2003 Directive on the right to family reunification and reviewed Member States' implementation of the "Blue Card" Directive which seeks to facilitate the admission of highly skilled third country nationals. It is also monitoring Member States' transposition and implementation of Directives concerning the rights of long-term residents and the introduction of a single application procedure and permit for third country workers. The UK has not opted into any of these legal migration measures.

13.33 The report highlights continuing efforts to support the integration of third country nationals, reduce the disadvantage experienced in the labour market, and tackle social exclusion — 22% of third country nationals were unemployed in 2013 and 44.3% were at risk of poverty and social exclusion, roughly the double the rate of EU citizens.

The external dimension

13.34 The EU played an active role in the High Level Dialogue on International Migration and Development hosted by the UN General Assembly in October 2013[38] and has continued to engage with third countries on the basis of the EU's Global Approach to Migration and Mobility, establishing Mobility Partnerships with Azerbaijan, Morocco and Tunisia, embarking on discussions with Jordan, and proposing a looser partnership framework (a Common Agenda for Migration and mobility) with India and Nigeria. The EU has also sought to strengthen cooperation through regional dialogues with its Eastern and Southern partners and established in April 2013 a Silk Routes Partnership for Migration. A High Level Dialogue on Migration and Mobility took place with China in October 2013 which may lead to further discussions on readmission and visa facilitation.

13.35 The EU's visa liberalisation dialogue with Russia was suspended in March 2014 as a result of the crisis in the Crimea, but continues with Turkey, Ukraine, Georgia and Kosovo. The dialogue with Moldova has resulted in agreement to accord its nationals visa-free status provided they have a biometric passport.

13.36 The report highlights the increasing involvement of organised crime groups in facilitating illegal migration to the EU from source and transit countries and underlines the importance of establishing dedicated networks of liaison officers in Libya and Turkey to tackle this phenomenon.

13.37 Migration intersects with other EU policy priorities, notably climate change and environmental degradation and development. These issues were addressed in Commission reports in 2013 concerning the EU Agenda on Policy Coherence for Development and the EU's climate change adaptation strategy.

EU funding for asylum and migration

13.38 Negotiations on the new funding framework for EU policies on asylum and migration for the period 2014-20 were concluded during 2013. The Asylum, Migration and Integration Fund will have a budget of €3.1 billion to support Member States in implementing their national programmes in the field of asylum and migration. A separate Internal Security Fund will include a component on visas and border controls to help participating Member States improve their management and surveillance of the EU's external borders. The UK has opted into the Asylum, Migration and Integration Fund, but is not entitled to participate in the visa and border component of the Internal Security Fund.

The Minister's Explanatory Memoranda of 13 June 2014

13.39 The Minister expresses the Government's continuing concern at the level of illegal migration to the EU, particularly via the Mediterranean, but recognises that the crisis in Syria is likely to be a major factor accounting for the increased number of detections of individuals crossing the EU's external border illegally. He notes that secondary movements within the Schengen area have a significant impact on the UK's borders and supports the efforts made at EU level, through Frontex's risk analyses, to understand and tackle this phenomenon. He sees "great value" in UK participation in Frontex operations and activities.

13.40 The Minister endorses the Commission's assessment of the need to ensure that the fingerprints of all third country migrants found to be illegally present within the EU are recorded in the Eurodac database, highlighting the risk of an "evidential gap" which would undermine the proper functioning of the Dublin arrangements for determining the Member State responsible for processing an asylum application. He continues:

13.41 The Minister notes that the UK cannot formally participate in the recently established European border surveillance system (Eurosur) as it relates to the border control elements of the Schengen acquis in which the UK does not take part, but adds:

13.42 The Minister accepts that allegations of ill-treatment of migrants and "push-back" practices at the Greek and Bulgarian borders should be investigated. He states the Government's understanding for Swiss concerns about free movement and their expression of their democratic view, adding:

13.43 Turning to the Commission's handling of complaints about delays at the border between Gibraltar and Spain, the Minister:

13.44 The Minister indicates that Schengen evaluations carried out in 2013 have raised no issues of concern for the Government. He continues:

13.45 He notes that the UK is an active member of the European Agency for the operational management of large-scale IT systems, which is responsible for managing SIS II, and expects to work closely with the Agency to secure the UK's successful integration into SIS II. He adds that the Government would welcome further consideration of how SIS II and the national SIRENE bureaux can be fully utilised in all Member States.

13.46 The Minister reiterates the Government's position that Bulgaria and Romania have met the technical criteria for accession to the Schengen area, but adds:

acquis

13.47 The Minister welcomes the introduction of a new visa suspension mechanism, noting that the visa-free regime operated by Schengen States for Western Balkan countries has led to increased illegal immigration to the UK. He is critical of further Schengen visa liberalisation, arguing that it has resulted in "the systematic abuse of our migration and asylum system by Albanian nationals" and calls for the inclusion of "robust safeguards" in all future Schengen visa facilitation and liberalisation agreements.[45]

13.48 The Minister notes that UK participation in EU Readmission Agreements is determined on a case-by-case and that the UK participates in fourteen "active" agreements, including the recent agreement with Turkey.

13.49 The UK continues to participate in the Eurodac and Dublin Regulations, which establish procedures for determining which Member State is responsible for processing an asylum application, but has not opted into the remaining second phase measures establishing a Common European Asylum System. The Minister explains:

13.50 He welcomes the role played by the European Asylum Support Office in coordinating practical cooperation and identifying and addressing pressures at an early stage, adding that the UK has provided "resource and expertise" to help Member States, including Bulgaria and Greece.

13.51 The Minister underlines the importance of 'upstream' work in third countries and a more strategic approach to international protection, as recognised in the EU's Global Approach to Migration and Mobility and the development of Regional Protection Programmes. He notes that the UK has played a leading role in developing a new Silk Routes Partnership which has enhanced dialogue and cooperation with key migration countries, such as Afghanistan, Pakistan, Iraq and Turkey. The UK is also participating in EU Mobility Partnerships with Morocco and Tunisia and anticipates that a more strategic approach, including in tackling organised immigration crime, may deliver "concrete outcomes with regard to migratory pressures on Member States" and prevent further loss of life.[47] He considers that collaboration with EU partners at the UN High Level Dialogue on Migration and Development resulted in agreement on an acceptable Ministerial declaration recognising the important contribution of well-managed migration to international development, but regrets the missed opportunity to take stock of South-South migration or to highlight more clearly the detrimental impact of illegal migration.

13.52 The Minister supports the EU's efforts to tackle human trafficking and other forms of modern slavery, adding that the UK has implemented the EU human trafficking Directive and is playing a key role in coordinating EU anti-trafficking activity and sharing knowledge through the European Multidisciplinary Platform against Criminal Threats.

13.53 The Minister describes the EU Action on Migratory Pressures as "an important tool for ensuring coherence and momentum in the EU's efforts to combat illegal immigration", underscoring the emphasis placed on an effective policy on returns. He adds:

13.54 Action to prevent abuse of free movement rules by third country nationals remains an important strategic priority and the Minister says that the Government will seek a commitment to further work on this issue in the strategic guidelines on justice and home affairs to be agreed by the European Council in June.

13.55 The Minister notes that the UK has not opted into recent Directives on legal migration, on the grounds that "the matching of migration policy to economic needs is best determined at national level".[49] He welcomes EU support for integration measures, provided that Member State competence continues to be respected.

Previous Committee Reports

None.

30 The criteria are "maximising our country's security, protecting Britain's civil liberties and preserving the integrity of our criminal justice system" - see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/78977/coalition_programme_for_government.pdf Back

31 See p.4 of the Commission report. Back

32 See p.6 of the Commission report. Back

33 See (34045) 11846/12: Thirteenth Report HC 83-xiii (2013-14), chapter 4 (4 September 2013); Eighth Report HC 83-viii (2013-14), chapter 9 (3 July 2013); Thirty-fourth Report HC 86-xxxiv (2012-13), chapter 6 (6 March 2013); Eleventh Report HC 86-xi (2012-13), chapter 11 (5 September 2012) and Seventh Report HC 86-vii (2012-13), chapter 2 (4 July 2012). Back

34 Applications for asylum in the EU by those fleeing the crisis in Syria have risen from 8,145 in 2011 to 24,115 in 2012 and 50,470 in 2013. Back

35 12,610 applications in 2012 and 12,425 in 2013. Back

36 See (35625), 17398/13: Third Report HC 219-iii (2014-15), chapter 6 (18 June 2014); Forty-first Report HC 83-xxxviii (2013-14), chapter 10 (19 March 2014); Thirty-seventh Report HC 83-xxxiv (2013-14), chapter 13 (26 February 2014), Thirty-seventh Report HC 83-xxxi (2013-14), chapter 7 (5 February 2014). Back

37 Directive 2011/36/EU, OJ No. L 101, 15.04.2011: see http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:EN:PDF Back

38 See (34949), 9886/13: Seventh Report HC 83-vii (2013-14), chapter 9 (26 June 2013) and Thirteenth Report HC 83-xiii (2013-14), chapter 57 (4 September 2013). Back

39 See para 22 of the Minister's Explanatory Memorandum on document (a). Back