81 The functioning of the Schengen area
| Committee's assessment
| Politically important |
| Committee's decision | Cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee; relevant to the Commission Communication: Free movement of EU citizens and their families: Five actions to make a difference recommended for debate on the floor of the House on 22 January 2014
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| Document details | Commission Report: Seventh bi-annual report on the functioning of the Schengen area 1 November 2014—30 April 2015
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| Legal base | —
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| Department
Document numbers
| Home Office
(36925), 9483/15, COM(15) 236
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Summary and Committee's conclusions
81.1 This is the Commission's seventh six-monthly report on the
functioning of the Schengen area, covering the period from November
2014 to end April 2015. It provides an overview of the main trends
and developments within the Schengen area to inform political
and strategic discussion at Ministerial level. 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.
81.2 In this Report chapter, we summarise the main
findings of the Commission report and the Government's position
as set out in the Explanatory Memorandum provided by the Minister
for Immigration and Security (James Brokenshire).
81.3 Whilst much of the Commission report concerns
elements of the Schengen acquis in which the UK does not
participate, we consider that it provides a useful strategic overview
of the challenges facing Member States in managing migration at
a time of increased migratory pressures at the EU's external borders
and loss of life in perilous journeys across the Mediterranean,
as well as the efforts being made at EU level to address these
challenges. We agree with the Government that the efficacy of
controls at the EU's external borders, the implementation of the
EU's visa liberalisation policy, and the application of a range
of measures intended to enhance security within the Schengen area,
are likely to have some impact on migratory pressures at the UK's
borders and on its own internal security. We therefore consider
that the Commission report is likely to be of interest to the
House and is relevant to the Commission Communication: Free
movement of EU citizens and their families: Five actions to make
a difference which was recommended for debate on the floor
of the House on 22 January 2014. The debate remains outstanding.
We also draw the Commission report to the attention of the Home
Affairs Committee.
81.4 We are content to clear the Commission report
from scrutiny. In doing so, however, we remind the Minister that
we have asked previously for further information on two matters
relevant to the functioning of the Schengen area: the first concerns
the outcome of the case brought by Spain in the Court of Justice
to challenge arrangements for the UK to cooperate and exchange
information with the EU's new border surveillance system, Eurosur;
the second concerns the outcome of the Swiss referendum in February
2014 calling for the introduction of immigration quotas and its
impact on Switzerland's association with the Schengen free movement
area. We look forward to receiving updates on both matters at
the earliest opportunity.
81.5 We note that the UK is taking part in "constructive
discussions" on the arrangements for sharing with national
parliaments information on the "content and results"
of each evaluation carried out under the new Schengen Evaluation
and Monitoring Mechanism, as well as any remedial action to address
deficiencies in implementation. Our predecessors wrote to the
Commission and the (then) Presidency of the Council in January
seeking further information on the practical arrangements. We
await a response. Meanwhile, we urge the Minister to remind the
Commission and the current and future Presidency of the Council
of our interest in establishing a workable system for sharing
information which ensures that national parliaments are able to
play an effective role in monitoring and evaluating Member States'
implementation of their Schengen obligations.
Full
details of the documents: Commission Report:
Seventh bi-annual report on the functioning of the Schengen
area 1 November 2014—30 April 2015: (36925), 9483/15,
COM(15) 236.
Commission report on the functioning of the Schengen
area
81.6 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
81.7 The Commission highlights two main developments
during the reporting period: the continuing migration crisis in
the Mediterranean and the significant increase in the detection
of irregular border crossings by third country nationals at the
external borders of the Schengen area, exceeding 111,000 cases
in the five months from November 2014 to March 2015 (three times
greater than for the same period a year ago). Italy is responsible
for the largest number of detections (mainly of Syrians and Eritreans),
followed by Greece and Hungary.
81.8 Although the Central Mediterranean was the main
route used by migrants in 2014, with a four-fold increase in detections
compared with 2013, the Western Balkans route accounted for the
highest number of detections (more than 55,000) during the first
five months of the period covered by the Commission report (November
2014 to end April 2015). This is attributable to a "significant
increase" in the detection of irregular migrants from Kosovo
at the Serbian-Hungarian border. The Commission reports that the
trend appears to have been reversed through the strengthening
of border controls and additional support provided by the Commission,
Frontex and Member States but adds that "sustained efforts
are required to consolidate this tendency".[ 534]
81.9 The Commission report describes a number of
developments concerning the Central Mediterranean route in recent
months, including the use of "ghost ships" (in which
migrants are abandoned by the ship's crew and left to drift at
sea) and the launch of Operation Triton in November 2014. This
joint operation, coordinated by Frontex, followed on from the
phasing-out of the Italian-led search and rescue operation, Mare
Nostrum. Whilst noting that Operation Triton has undertaken
a significant number of search and rescue operations (334 up until
18 May 2015), and led to the detection of 49,871 migrants and
the arrest of 132 facilitators, the Commission states that the
focus on border surveillance is insufficient to resolve the migration
crisis in the Mediterranean. It highlights the need to tackle
people smuggling and human trafficking more effectively, work
more closely with third countries, and strengthen solidarity and
responsibility within the EU.[ 535]
81.10 The Eastern Mediterranean route accounted for
the largest number of detections in March this year, reflecting
both "seasonal changes" and "increasing pressure"
on this route.
81.11 The report indicates that the Commission will
continue to monitor external border management in Member States
experiencing significant migratory flows (notably Italy, Hungary
and Bulgaria) as well as progress made in addressing deficiencies
in national asylum systems (Greece's National Action Plan for
Asylum expired in December 2014), implementing EU asylum rules
(including the systematic fingerprinting of irregular migrants
and asylum seekers), and tackling secondary movements within the
EU. The Commission will also monitor the situation in Ukraine.
Despite a fourteen-fold increase in the number of applicants for
asylum in 2014 (14,000 compared with 1,000 in 2013), the Commission
considers that the overall numbers remain "relatively low".
81.12 The Commission recognises the threat posed
by foreign fighters returning to the EU from Syria, adding that
"it is possible under the current legal framework to carry
out systematic checks on persons enjoying the rights of free movement
under Union law against the relevant databases based on risk assessment".
It intends to work with Member States to ensure that the Schengen
Borders Code and Schengen Information System are "fully exploited"
and to develop "common risk indicators" which allow
for more targeted checks on individuals.[ 536]
Migration flows within the Schengen free movement
area
81.13 The Commission reports an increase of around
32% in the number of irregular migrants detected within the Schengen
area from November 2014 to March 2015, compared to the same period
a year ago, with most apprehended in Germany, Sweden, France,
Spain and Austria. Frontex has started to collect data on secondary
movements within the Schengen free movement area, but the Commission
notes that a number of Member States have either failed to submit
relevant data or have provided incomplete data, making it much
more difficult to trace internal migration routes. A joint Europol/Frontex
report will be published in June providing a preliminary analysis
of secondary movements within the EU.
81.14 The Commission describes the main results of
the Mos Maiorum Operation, a police operation involving
27 countries which was carried out over a fourteen-day period
under the Italian Presidency in 2014 and sought to gather information
on the main routes used by irregular migrants, as well as the
working methods of criminal networks involved in people smuggling.
It notes that over 19,000 irregular migrants were intercepted
(of which just over 11,000 applied for asylum), 257 facilitators
were apprehended and 593 documents seized.
81.15 A further joint operation — "Amberlights
2015" — carried out from 1-14 April 2015 under the
Latvian Presidency sought to intensify border checks at airports,
improve the detection of overstaying third country nationals,
and collect information on document fraud. Initial results indicate
that 1,409 over-stayers and three imposters were detected.[ 537]
Application of the Schengen acquis by Member States
81.16 The Schengen Borders Code contemplates that
individual Member States participating in the Schengen free movement
area may, exceptionally, re-introduce temporary controls at their
internal borders where there is a serious threat to public policy
or internal security. None has done so during the period covered
by the Commission report.
81.17 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. Investigations are continuing in
four cases concerning possible obstacles to fluid traffic flow
in Austria, Belgium, Italy and Slovenia. The Commission has formally
notified Germany that certain provisions of its Federal Police
Law do not comply with the Schengen Borders Code and has asked
Poland to clarify the basis for the obligation to carry certain
documents in internal border zones.
81.18 The report notes that 30 countries are now
participating in the European Border Surveillance System (Eurosur)
and that work on a Handbook containing technical and operational
guidelines on the implementation and management of Eurosur has
been completed. Eurosur tools enable Member States to track vessels
and identify (through optical and radar satellite technology)
those suspected of involvement in people smuggling. Eurosur vessel
detection services are being used to support Operations Triton
and Poseidon in the Mediterranean.
81.19 The report contains details of alleged violations
of Schengen rules which are currently under investigation by the
Commission, including allegations of "push-back" practices
at the external borders of Bulgaria and Greece which may contravene
the principle of non-refoulement, and summary removals
from Spanish territory (Ceuta and Melilla). Poland has also been
asked to amend a bilateral agreement with Ukraine concerning their
shared border crossing points to bring it into compliance with
the safeguards contained in the Schengen Borders Code.
81.20 Following complaints about excessive waiting
times at the border between Spain and Gibraltar, the Commission
reports that Gibraltar has acted on recommendations issued in
July 2014 which are intended to improve the management of vehicle
and passenger flows and tackle tobacco smuggling more effectively.
The Commission says it will "continue to monitor the situation
closely" and seeks to ensure that the reconstruction works
announced by Spain at this border crossing point are implemented.[ 538]
81.21 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). The Commission has brought infringement proceedings
against four Member States based on their failure to implement
several provisions of the EU Return Directive correctly, including
those dealing with detention pending return and the introduction
of an effective forced return monitoring mechanism.[ 539]
81.22 The Commission explains that a new Schengen
evaluation mechanism, agreed in 2013, took effect in November
2014 and that the first evaluations covering different aspects
of the Schengen acquis have been carried out in Austria
and Belgium. An unannounced visit also took place in Sweden.[ 540]
The Commission expects to include details of the outcome of Schengen
evaluations in one of the two biannual reports it publishes each
year on the overall functioning of the Schengen area.
81.23 The Commission 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. It notes that
Croatia has officially declared that it is ready (as of 1 July
2015) for a Schengen evaluation, with a view to lifting controls
at its internal borders with other Member States.
The use of flanking measures
81.24 The Commission reports that the second generation
Schengen Information System (SIS II) became provisionally operational
in the UK with effect from 13 April 2015. The Council is expected
to confirm UK participation later in the year, following the outcome
of an evaluation visit planned for June.
81.25 The Commission highlights the importance of
SIS II as a tool for the safe and rapid exchange of information
on terrorist suspects. It notes that use of the new functionalities
provided by SIS II has continued to increase, but that "significant
discrepancies" between Member States remain. In particular,
some Member States are still unable to insert photographs, fingerprints
and links. The Commission says it will monitor progress closely.
It has launched a formal investigation against Italy concerning
the use of SIS II at Italy's external borders and the quality
of the data for alerts relating to refusal of entry or stay in
the Schengen area.
81.26 The Visa Information System (VIS), which stores
and processes information on short-stay visas, is now operational
in 16 world regions. Plans to roll VIS out to two further regions
(the first covering Armenia, Azerbaijan, Belarus, Georgia, Moldova
and Ukraine, the second, Russia) have been delayed as a consequence
of "political, economic and technical doubts" raised
by several Member States.
81.27 Although VIS is generally operating well, the
Commission emphasises the need for Member States to comply with
all of the checks required by VIS. Since 11 October 2014, the
use of fingerprints to verify the identity of visa holders at
Schengen border crossing points has been mandatory, but the Commission
notes that fingerprint checks are not being carried out systematically.
81.28 Turning to the EU's visa policy, the Commission
reports a steady increase in asylum applications since the introduction
of visa-free travel to the Schengen area for five Western Balkan
countries, with Germany bearing the brunt of the rise in numbers.
Applicants from these countries constituted 11% of the total number
of applications for asylum in the Schengen area in 2014. Despite
this increase, no Member State has sought to trigger a new visa
suspension mechanism, introduced in January 2014, which is intended
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.
81.29 A visa reciprocity mechanism, also in force
since January 2014, makes 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. The Commission has established regular
tripartite meetings with Australia, Canada, Japan and the US with
a view to achieving reciprocal visa-free travel for nationals
of all EU Member States and considers that their positive engagement
in the discussions obviates the need, at this stage, to consider
a suspension of their visa exemption.
81.30 Finally, the report notes that bilateral discussions
with Russia on visa matters remain suspended. By contrast, Moldovan
citizens possessing a biometric passport have been entitled to
visa-free entry to the Schengen area since April 2014, with no
evidence of significant abuse recorded. Readmission and visa facilitation
agreements with Cape Verde entered into force on 1 December 2014,
and negotiations have commenced with Belarus and Morocco. The
Council has approved a negotiating mandate for readmission and
visa facilitation agreements with Tunisia and the Commission has
begun short-stay visa waiver negotiations with 16 small Caribbean
and Pacific island nations and the United Arab Emirates. The Commission
has also sought Council approval to open visa waiver negotiations
with Peru and Colombia. A Mobility Partnership between the EU
and Jordan was signed in October 2014, paving the way for the
negotiation of visa facilitation and readmission agreements once
a mandate has been agreed by the Council.
The Minister's Explanatory Memorandum of 24 June
2015
81.31 The Minister explains that the UK does not
take part in the border and visa aspects of the Schengen acquis
but participates in Council discussions and highlights two areas
of particular interest for the UK: the impact on the UK's borders
of illegal immigration transiting the Schengen area and UK participation
in Frontex operations. He says that the Commission's latest report
is "particularly relevant" in light of the migration
crisis in the Mediterranean and expresses the Government's commitment
to "working with other Member States to find a sustainable
solution".[ 541]
81.32 Turning first to the pressures at the external
borders of the Schengen area, the Minister notes:
"The Government remains concerned about
the continued increase in illegal migration into the EU, and is
engaged in a range of activity to address this issue, with a particular
focus on work with key countries of origin and transit to combat
people smugglers and traffickers and to tackle the root causes
of illegal migration. The Government is also engaging with EU
partners in view of shared concern about the number of European
foreign fighters travelling to Syria and Iraq and the threat they
pose on their return."[ 542]
81.33 The Government is similarly concerned about
the "significant impact on UK borders" of secondary
migratory movements within the Schengen area and welcomes efforts
at EU level to understand and tackle this phenomenon more effectively.
81.34 The Minister explains that the UK is unable
to participate formally in Eurosur, as it builds on elements of
the Schengen acquis on border controls in which the UK
is not entitled to take part. He nevertheless considers Eurosur
to be "an important tool for practical cooperation between
Member States that has already helped to save lives at sea as
well as bolstering the European response to illegal immigration
and cross-border criminality".[ 543]
He notes that the UK negotiated an amendment to the Eurosur Regulation
to enable the UK to cooperate with Eurosur and to exchange information
on the basis of bilateral or multilateral agreements concluded
with neighbouring Member States participating in Eurosur. He continues:
"Spain has subsequently brought a case before
the European Court of Justice to challenge the legality of this
provision. The case has yet to be decided by the Court, however
on 13 May 2015 Advocate General Wahl issued an Opinion in the
matter which was favourable to the UK's position, and which recommended
that Spain's challenge be dismissed. Whilst the UK is therefore
optimistic, neighbouring Member States are reluctant to enter
into such agreements with the UK pending clarity on the legality
of their doing so."[ 544]
81.35 The Minister reiterates the Government's concern
at the delays at the border between Gibraltar and Spain, and the
pace and design of reconstruction works being carried out by Spain.
He adds:
"The UK welcomes the fact that the Commission
has agreed to monitor the situation until all the measures it
proposed to Spain have been implemented. The UK hopes that the
Commission will continue to monitor the situation if the delays
persist despite reconstruction works having been completed."[ 545]
81.36 The Minister notes that the new Schengen Evaluation
Mechanism requires the Commission to publish an annual report
on the evaluations it has carried out which must be made public
and include information on the outcome of the evaluations and
"the state of play" in implementing any recommended
remedial action. The report is also to be made available to national
parliaments. He explains that a draft report on Austria's recent
evaluation is classified as "restricted", adding:
"The UK is taking part in constructive discussions
on their format and substance to establish best practice for future
reports, especially as they form the basis for related declassified
processes such as informing Parliament of the findings of the
reports and the format of the annual report. We therefore continue
to monitor implementation developments closely."[ 546]
81.37 The Minister agrees that Bulgaria and Romania
have met the technical criteria for accession to the Schengen
area, but adds:
"The UK does not have a vote on the text as
currently drafted as it covers the lifting of air and sea borders
between Schengen States and use of immigration data on SIS, border
elements of the Schengen acquis in which we do not participate."[ 547]
81.38 The Minister expects Croatia to be added to
the Schengen evaluation schedule once it has completed the relevant
questionnaire and says that the Government will follow developments
closely.
81.39 Turning to UK participation in SIS II, the
Government supports further development of the system and better
use of fingerprints to confirm identity, as well as greater use
of SIS II to track and monitor registered sex offenders and disrupt
criminal activity.
81.40 The UK does not participate in the Visa Information
System (VIS) but the Minister considers that it is helpful in
preventing abuse of the Schengen visa system.
81.41 The UK similarly does not take part in EU visa
liberalisation measures but the Minister expresses concern that
the removal of a visa requirement for nationals of Western Balkan
countries has resulted in "systematic abuse of our migration
and asylum system by Albanian nationals".[ 548]
He continues:
"The Albanian authorities are now working
closely with us to address this issue but the Government remains
of the view that robust safeguards must be in place with regard
to future Schengen visa liberalisation. We will continue to urge
caution in this area and support any Member State seeking to invoke
the suspension clause if they have a clear need to use it."[ 549]
81.42 The Minister explains that the UK has not opted
into EU Readmission Agreements with Belarus and Cape Verde, but
that it has opted into negotiations for an EU Readmission Agreement
with Tunisia. Commenting more generally on visa liberalisation
measures, the Minister says:
"The UK does not participate in the visa
element of the Schengen acquis and is therefore not directly
affected by developments regarding Schengen visa facilitation
agreements and visa liberalisation. However, given the impact
on UK borders of Schengen visa liberalisation in the Western Balkans,
the Government continues to make clear the need for proper safeguards
to be incorporated into such agreements."[ 550]
81.43 The Minister notes, finally, that the Commission
presented its report at the Justice and Home Affairs Council on
16 June 2015 but that there has not yet been an opportunity to
discuss its substance.
Previous Committee Reports
None, but our Twenty-seventh Report HC 219-xxvi (2014-15),
chapter 15 (17 December 2014) and Fourth Report HC 219-iv (2014-15),
chapter 13 (25 June 2014) are relevant.
534 See p.3 of the Commission report. Detections at
the Serbian-Hungarian border decreased from almost 12,000 in February
2015 to fewer than 400 in March; the number apprehended on the
Western Balkans route similarly fell from nearly 15,000 in February
2015 to over 5,000 in March. Back
535 The proposals put forward by the Commission in its Communication,
A European Agenda on Migration, as well as the immediate
measures to deal with the crisis in the Mediterranean announced
by the European Council at a special summit in April 2015, are
described in our Second Report HC-342-ii (2015-16), chapter 2
(21 July 2015). Back
536 See p.5 of the Commission report. Back
537 Over-stayer refers to third country nationals who no longer
fulfil the conditions for remaining on the territory of a Member
State, often because their short-term visa has expired. Imposter
refers to an individual obtaining or using a document fraudulently,
either by assuming a false identity or by pretending to be someone
else. Back
538 See p.8 of the Commission report. Back
539 See the Return Directive (2008/115/EC). Back
540 Regulation establishing a new Schengen evaluation mechanism (1053/2013). Back
541 See para 3 of the Minister's Explanatory Memorandum. Back
542 See para 21 of the Minister's Explanatory Memorandum. Back
543 See para 32 of the Minister's Explanatory Memorandum. Back
544 See para 32 of the Minister's Explanatory Memorandum. Back
545 See para 36 of the Minister's Explanatory Memorandum. Back
546 See para 40 of the Minister's Explanatory Memorandum. Back
547 See para 43 of the Minister's Explanatory Memorandum. Back
548 See para 56 of the Minister's Explanatory Memorandum. Back
549 See para 56 of the Minister's Explanatory Memorandum. Back
550 See para 63 of the Minister's Explanatory Memorandum. Back
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