Documents considered by the Committee on 4 May 2016 Contents

2Strengthening checks at the EU’s external borders

Committee’s assessment

Politically important

Committee’s decision

Not cleared from scrutiny; further information requested; recommended for debate on the floor of the House together with Council document 15429/15, a Commission Communication: Eighth biannual report on the functioning of the Schengen area 1 May-10 December 2015 (decision reported on 27 January 2016), Council document 6798/16, a Commission Communication: Back to Schengen — A Roadmap and Council document 5985/16, a Council Implementing Decision addressing serious deficiencies in the management of Greece’s external borders (decision reported on 13 April 2016), and Council document 7183/16, a Commission Communication, Next operational steps in EU-Turkey cooperation in the field of migration (decision reported on 27 April 2016); drawn to the attention of the Home Affairs Committee

Document details

Proposal for a Regulation amending the Schengen Borders Code as regards the reintroduction of checks against relevant databases at external borders

Legal base

Article 77(2)(b) TFEU; ordinary legislative procedure; QMV

Department

Home Office

Document Numbers

(37448), 15397/15, COM(15) 670

Summary and Committee’s conclusions

2.1The proposed Regulation is a response to recent terrorist attacks within the EU and the risk presented by foreign terrorist fighters. It responds to a call made by Ministers responsible for counter-terrorism last November for targeted changes to the Schengen Borders Code—the rule book applied by countries participating in the Schengen free movement area—to introduce systematic checks on EU nationals at the EU’s external Schengen borders.1 These checks are intended to identify individuals who may present a threat to Member States’ internal security.

2.2The proposed Regulation would require Member States to:

2.3In the case of EU citizens, there is flexibility to carry out targeted checks at external land and sea borders (but not at airports), following a risk assessment, if systematic checks would have “a disproportionate impact on the flow of traffic”.

2.4The proposed Regulation builds on the border control elements of Schengen in which the UK does not participate and it will not, therefore, apply to the UK. Whilst welcoming measures to strengthen the security of the EU’s external Schengen border, the Minister for Immigration (James Brokenshire) identified two concerns: the possibility that there could be “operational impacts” at the Spain-Gibraltar border and the risk that verification of biometric information under the proposed Regulation might inadvertently “cause issues” at the external Schengen border for UK passport holders as UK passports do not include fingerprint data.

2.5The proposed Regulation forms part of a wider package of measures to strengthen controls at the EU’s external borders and increase security within the Schengen free movement area. We recommended in January that it should be debated on the floor of the House together with the Commission’s latest report on the functioning of the Schengen area. We noted that the Presidency intended to proceed quickly with the proposal and urged the Minister to ensure that the debate was scheduled before the Council reached a political agreement. Despite our request, the Government failed to schedule a debate ahead of the general approach agreed by the Council on 25 February.2

2.6In his latest letter, the Minister responds to our request for further information on the content of the general approach, developments within the European Parliament, and the procedures for introducing risk-assessed rather than systematic checks at land and sea borders. He also seeks to clarify whether there will be any difference in the nature and intensity of checks applied by Member States which are full Schengen participants and those in which the Schengen rule book is not yet fully in force (Bulgaria, Croatia, Cyprus and Romania).3

2.7Although the proposed Regulation will not apply to the UK, the intensification of security checks will have an impact on UK nationals crossing the EU’s external Schengen borders and may affect the movement of people across the border between Spain and Gibraltar. The Minister has previously confirmed that checks on UK nationals will not differ in nature from those carried out on nationals of other EU Member States.4 We share his concern, however, that the requirement to carry out systematic checks at the external Schengen border may have an unwelcome operational impact on the Spain-Gibraltar border.

2.8The Council general approach makes clear that systematic checks are the default rule and that any derogation must be temporary, strictly necessary, and limited to specified border crossings. Should evidence emerge that the application of systematic checks is exacerbating delays at the Spain-Gibraltar border, the initiative to move to targeted checks would rest exclusively with Spain and it would be responsible for producing the required risk assessment. Given the history of what the Minister has described as “the political use of border checks by Spain”,5 we ask him whether the proposed Regulation contains adequate safeguards for the UK as a non-participating EU Member State. In particular, can the Minister explain whether Spain would be required to notify the UK if it intended to introduce targeted checks at the border with Gibraltar and to take into account any concerns expressed by the UK? Would the UK have access to the risk assessment on which targeted checks would be based, including data on cross-border crime? If these or similar safeguards are not in place, what means are available to the UK to prevent systematic or targeted checks being used as a political tool by Spain?

2.9We ask the Minister to confirm our understanding that the intensified checks on entry and exit envisaged in the proposed Regulation will apply at the external borders of all EU Member States other than the UK and Ireland and at the internal borders of Bulgaria, Cyprus, Croatia and Romania.

2.10We urge the Minister to provide the information we have requested promptly, as well as detailed reasons for the delay in scheduling the debate we recommended in January. Meanwhile, the proposed Regulation remains under scrutiny. We draw it to the attention of the Home Affairs Committee.

Full details of the documents

Proposal for a Regulation amending Regulation No. 562/2006 (EC) as regards the reinforcement of checks against relevant databases at external borders: (37448), 15397/15, COM(15) 670.

Background

2.11The proposed Regulation forms part of a package of measures announced by the Commission in December to address “weaknesses and gaps” in the management of the EU’s external borders by establishing a unified system of border management based on the principle of shared responsibility.6 It is a response to Conclusions agreed by Ministers responsible for counter-terrorism in November, following the terrorist attack in Paris, which called for “a targeted revision of the Schengen Borders Code to provide for systematic controls of EU nationals, including the verification of biometric information, against relevant databases at external borders of the Schengen area, making full use of technical solutions in order not to hamper the fluidity of movement”.7

2.12The Schengen Borders Code codifies the rules applicable to controls at the EU’s external Schengen border as well as rules on the absence of internal border controls within the Schengen free movement area. The rules contained in it are “without prejudice to the rights of persons enjoying the right of free movement under Union law”.8

2.13Protocol 20 annexed to the EU Treaties recognises the UK’s right (shared with Ireland as part of the arrangements governing the Common Travel Area) to exercise “such controls on persons seeking to enter the UK as it may consider necessary” in order to verify (in the case of EU citizens or others entitled to exercise EU free movement rights) that they have the right to enter the UK. The Protocol operates on a reciprocal basis, meaning that other Member States are also entitled to exercise similar controls on UK nationals for the purpose of verifying that they are entitled to exercise free movement rights.9

2.14Our earlier Reports (listed at the end of this chapter) provide a detailed overview of the proposal and the Government’s position.

The Minister’s letter of 15 April 2016

2.15The Minister confirms that the Council agreed its general approach on 25 February and that the Dutch Presidency intends to initiate trilogue negotiations once the European Parliament (EP) has established its negotiating position. He explains that the EP’s Civil Liberties Committee considered the proposal at the end of February and is expected to present a draft report towards the end of April.

2.16The Minister describes how the general approach agreed by the Council differs from the Commission’s original proposal. He begins with the provisions allowing Member States to carry out targeted entry and exit checks, following a risk assessment, at certain external land and sea borders if systematic checks would have “a disproportionate impact on the flow of traffic”. We noted in our earlier Report that the Commission proposal provided little detail on the procedures for introducing risk-assessed rather than systematic checks. We asked the Minister to explain when and how the detailed procedures would be agreed and whether the initiative for producing a risk assessment on controls at the Spain-Gibraltar border would rest with the UK or Spain. The Minister responds:

“The Articles around the derogation of systematic checks (on all persons enjoying the right of free movement under Union law where these would have a disproportionate impact on the flow of traffic) have been rewritten to include more detail on scope and duration. The derogation will not exceed what is strictly necessary, will be at specified border crossing-points only and defined in accordance with a risk assessment established by the Member State concerned. Therefore, in answer to your query as to whether the initiative for producing a risk assessment on controls at the Spain-Gibraltar border will rest with the UK or Spain, it will be Spain. My officials are working with the Foreign and Commonwealth Office on a co-operative and pragmatic approach to implement the proposal at the Spanish-Gibraltan border as careful planning will be required to minimise disruption to those who cross the border on a daily basis. The Commission has confirmed it will provide financial support to Member States to help them implement the new obligation.

“As well as assessing the risks, the risk assessment will explain the reasons for the temporary reduction to targeted checks, take into account the disproportionate impact on the flow of traffic, provide statistics on passengers and incidents related to cross border crime and be updated regularly. The Member State concerned will transmit its risk assessment and updates to Frontex (or the new Border and Coast Guard Agency) and further report to the Commission and Frontex (or the new Agency) every six months.

“A Member State intending to carry out targeted checks will take into account any concerns that other Member States, Frontex (or the new Agency) and the Commission may have about the intention. Within two years of entry into force, the Commission will submit an evaluation of the implementation and consequences of the Articles providing for derogation to the European Parliament and the Council.”

2.17The Commission’s original proposal envisaged that targeted rather than systematic checks could only be carried out at external land and sea borders. The Minister explains that the inclusion of external air borders was “a major point of debate”. He continues:

“A transitional derogation at air borders was agreed to allow time for Member States to adjust their resources and infrastructure as necessary, but the duration remains to be fixed at either six or twelve months. The Presidency recommends a period of six months, particularly as this will in actuality become ten months by the time the proposal comes into force.”

2.18The Minister confirms that the provisions on the verification of biometric identifiers have been re-drafted. Member States will be required to verify “at least one”, but not all, of the biometric identifiers (facial images and fingerprints) provided for in the EU Passport Regulation.10 As this Regulation does not apply to the UK, it will be sufficient as far as UK passports are concerned to limit verification to facial images.

2.19Finally, the Minister seeks to explain whether the intensity of checks on UK nationals will differ depending on whether the external border they are crossing is a Schengen external border or the internal or external border of an EU Member State in which the Schengen rule book is not yet fully in force (Bulgaria, Croatia, Cyprus and Romania):

“The obligation of systematic checks on entry and exit applies to the external borders of the Member States. It also applies, on entry and exit, to the internal borders of the Member States for which the verification in accordance with the applicable Schengen evaluation procedures has already been successfully completed, but for which the decision on the lifting of controls on their internal borders pursuant to relevant provisions of relevant Acts of Accession has not yet been taken.”

2.20He adds that the proposal has also been amended to enable the requisite checks to be carried out in advance, on the basis of advanced passenger information provided to the competent national authorities. The information will be verified at the border crossing point to confirm the validity and authenticity of the travel document used and the identity and nationality of the holder. The Minister indicates that these provisions would allow the use of automatic border control gates.

Previous Committee Reports

Twenty-fifth Report HC 342-xxiv (2015–16), chapter 1 (9 March 2016) and Twenty-first Report HC 342-xx (2015–16), chapter 2 (27 January 2016).


1 See the Conclusions agreed by Member States meeting within the Council on Counter-Terrorism on 20 November 2015.

2 See the general approach agreed by the Justice and Home Affairs Council on 25 February 2016.

3 Bulgaria, Romania, Croatia and Cyprus are referred to by the Commission as Schengen candidates—their full participation in Schengen is subject to a further Council Decision confirming that they have met all the necessary conditions. The UK and Ireland are non-Schengen EU Member States for the purposes of the Schengen Borders Code.

4 See the letter of 11 February 2016 from the Immigration Minister (James Brokenshire) to the Chair of the European Scrutiny Committee.

5 See para 10(v) of the Minister’s Explanatory Memorandum on the proposed Regulation.

6 See the Commission Communication, A European Border and Coast Guard and effective management of Europe’s external borders: Twentieth Report HC 342-xix (2015–16), chapter 10 (20 January 2016).

7 Council Conclusions agreed by Ministers responsible for counter-terrorism on 20 November 2015.

8 See Article 3(a) of the Schengen Borders Code.

9 See Protocol (No 20) on the application of certain aspects of Article 26 TFEU to the UK and Ireland.




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10 May 2016