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), 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), and Council document 8175/16 + ADD 1, a Commission Communication: First Report on the progress made in the implementation of the EU-Turkey Statement (decision reported 25 May 2016); drawn to the attention of the Home Affairs Committee
Proposal for a Regulation amending the Schengen Borders Code as regards the reintroduction of checks against relevant databases at external borders
Article 77(2)(b) TFEU; ordinary legislative procedure; QMV
(37448), 15397/15, COM(15) 670
1.1The 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 security, as well as identity, checks on EU nationals at the EU’s external Schengen borders. Under the current rules, security checks are carried out on a non-systematic basis. The introduction of systematic checks is intended to identify individuals who may present a threat to Member States’ internal security.
1.2The proposed Regulation would require Member States to:
1.3In 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”.
1.4The 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. The intensification of security checks will nevertheless 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 Government welcomes measures to strengthen the security of the EU’s external Schengen border and has previously confirmed that checks on UK nationals will not differ in nature from those carried out on nationals of other EU Member States but has also acknowledged that there could be “operational impacts” at the Spain-Gibraltar border.
1.5When we last considered the proposed Regulation in May, we asked the Government whether it contained adequate safeguards for the UK as a non-participating EU Member State, given the history of what the former Immigration Minister (James Brokenshire) described as “the political use of border checks by Spain”, and sought further information on the following questions:
1.6We also asked the Minister to confirm our understanding that the intensified checks on entry and exit envisaged in the proposed Regulation would 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 as these Member States do not yet fully implement the Schengen rulebook.
1.7We noted that the proposed Regulation formed 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 which we recommended for debate on the floor of the House in January. Despite requesting that the debate should take place before the Council agreed its general approach on 25 February, the Government still has not scheduled a debate. We asked the Minister to provide detailed reasons for the delay in scheduling the debate.
1.8Our scrutiny of the changes proposed in this Regulation has so far focussed on their likely impact on the Spain/Gibraltar border and on UK nationals exercising the free movement rights conferred by EU citizenship. The issues we have highlighted in this and earlier Reports remain relevant as there is every prospect that the Regulation will take effect before the end of the year and well in advance of the UK’s withdrawal from the EU. We conclude that there are some, albeit limited, means available to the UK to prevent Spain from using either systematic or targeted checks at its border with Gibraltar as a political tool. Besides diplomacy, much will depend on both the Commission and the EU’s External Borders Agency (Frontex) or its successor (the European Border and Coast Guard Agency) playing an active oversight role.
1.9Brexit raises different issues. UK nationals will no longer qualify as EU citizens but will be third country nationals for the purposes of this Regulation. This means that they will be subject to systematic checks on their entry to and departure from the Schengen free movement area and will not benefit from targeted or risk-assessed checks introduced at specific external border crossing points where there might otherwise be a disproportionate impact on traffic or passenger flows. There is also likely to be a tangible impact at the Spain/Gibraltar border.
1.10The implications of Brexit for the application of the proposed Regulation to UK nationals introduces a new dimension to the debate we recommended six months ago. The Government has not provided the detailed reasons we requested in our earlier Report to explain the reasons for the delay. We ask his successor to do so, and to schedule a debate at the earliest opportunity. We also ask his successor to confirm our understanding of the likely impact of the proposed Regulation on UK nationals, following the UK’s withdrawal from the EU, and his preliminary assessment of how it will affect the Spain/Gibraltar border.
1.11Meanwhile, the proposed Regulation remains under scrutiny. We draw it to the attention of the Home Affairs Committee.
1.12The proposed Regulation forms part of a package of measures announced by the Commission last 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. 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”.
1.13The 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”.
1.14Protocol 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.
1.15Our earlier Reports (listed at the end of this chapter) provide a detailed overview of the proposed Regulation and the Government’s position.
1.16The letter from the former Immigration Minister (James Brokenshire) “notes” our concern about the delay in scheduling a debate on this and other related proposals and says that “a debate slot is still awaited”.
1.17He sets out the background to and purpose of the proposed Regulation:
“Under this new Regulation, Member States in the Schengen zone will be required to conduct systematic entry and exit checks at the external Schengen border on EU nationals and their families and also on third country nationals on exit (third country nationals are already checked on entry). These checks will apply to all external air, sea and land borders, which would include the border between Spain and Gibraltar and the sea border between France and the UK. There is provision for Targeted Checks (a reduced level of checks) to be instigated by a Member State, in the event that systematic checks have a disproportionate impact on the flow of traffic, and following a risk assessment concluding that such a relaxation of checks would not lead to a security risk.”
1.18We noted in our earlier Report that the general approach agreed by the Council in February 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 former Immigration Minister previously described as “the political use of border checks by Spain”, we asked him whether the proposed Regulation contained adequate safeguards for the UK as a non-participating EU Member State. In particular, would Spain 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? The Minister responds:
“Article 1, 2b sets out that where a Member State intends to carry out a reduced level of checks (targeted checks), it shall notify the other Member States (and the Commission and Frontex (or the new Border and Coast Guard Agency)) without delay. It further states that if Member States within the Schengen zone have concerns about the intention to carry out targeted checks, they shall notify the Member State in question without delay and the Member State in question must take these concerns into account. However, for the purposes of this Regulation, ‘Member State’ does not include the UK, or by extension Gibraltar. Spain would not therefore be required to notify the UK, however we would want to work closely with Spain on such issues and encourage the sharing of information in order to minimise disruption at the border. It should be noted however that given that targeted checks are the lesser checks, it is unlikely that the UK would have concerns about Spain intending to carry out a reduced level of checks.”
1.19We asked whether the UK would have access to the risk assessment on which targeted checks would be based, including data on cross-border crime. The Minister responds:
“The Regulation states that the Member State intending to carry out targeted checks will without delay transmit its risk assessment, and updates to it, to Frontex (or the new Border and Coast Guard Agency) and shall report every six months to the Commission and Frontex (or the new Agency) on the application of the targeted checks. There is therefore no obligation on Member States within the Schengen zone intending to reduce their checks to share the risk assessment with Member States outside the Schengen zone. They must however share the risk assessment with Frontex (or the new Agency) with which the UK has close operational links.”
1.20We invited the Minister to comment on the means available to the UK to prevent either systematic or targeted checks being used as a political tool by Spain. He comments:
“As detailed above, the requirement to carry out systematic checks at the border is the default position for all Member States within the Schengen zone. The new Regulation does however include a mechanism that allows for targeted checks to be temporarily implemented where there may be a disproportionate impact on the flow of traffic.
“My officials will work with the Foreign and Commonwealth Office and with the Government of Gibraltar to seek to encourage Spain to implement the proposal at the Spanish-Gibraltarian border in a way that will minimise the inevitable disruption to those who cross the border on a daily basis. This work will include engaging the caretaker Spanish government to understand better their intended approach to implementation and to encourage the initiation of the permitted targeted checks; to work with the Commission to ensure adequate resourcing is made available to facilitate the transition to checks; and to increase awareness amongst local populations.”
1.21We asked the Minister to confirm our understanding that the intensified checks on entry and exit envisaged in the proposed Regulation would 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 as these Member States do not yet fully implement the Schengen rulebook. He responds by reproducing the wording of recital (4a) of the general approach agreed by the Council which provides:
“‘The obligation of systematic checks on entry and on exit applies to the external borders of the Member States. It also applies, both on entry and on 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…’.”
1.22The Minister also provides an update on developments in the European Parliament:
“Negotiations are progressing well in Europe. The European Parliament LIBE [Civil Liberties] Committee voted on 21 June to approve the report and a number of compromise amendments. The first trilogue with the EP took place on 24 June. Trilogues will continue under the Slovak Presidency with a view to securing, albeit on an ambitious timetable, a first reading voted through at the September EP plenary and adopted at the early October JHA [Justice and Home Affairs] Council. That would allow for the Regulation to enter into force by early November.”
1 Foreign terrorist fighters are defined in as “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict”.
2 See the agreed by Member States meeting within the Council on Counter-Terrorism on 20 November 2015.
3 See the of 11 February 2016 from the former Immigration Minister (James Brokenshire) to the Chair of the European Scrutiny Committee.
4 See para 10(v) of the then Immigration Minister’s Explanatory Memorandum on the proposed Regulation.
5 See the agreed by the Justice and Home Affairs Council on 25 February 2016.
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), (20 January 2016).
7 agreed by Ministers responsible for counter-terrorism on 20 November 2015.
8 See Article 3(a) of the .
9 See on the application of certain aspects of Article 26 TFEU to the UK and Ireland.
10 See para 10(v) of the Minister’s Explanatory Memorandum on the proposed Regulation.
11 See the of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs.
25 July 2016