Documents considered by the Committee on 21 July 2015 - European Scrutiny Contents


81 The functioning of the Schengen area

Committee's assessment Politically important
Committee's decisionCleared 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
Document detailsCommission Report: Seventh bi-annual report on the functioning of the Schengen area 1 November 2014—30 April 2015
Legal base
Department

Document numbers

Home Office

(36925), 9483/15, COM(15) 236

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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