Documents considered by the Committee on 27 February 2019 Contents

13UK participation in the Schengen rule book

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny; drawn to the attention of the Home Affairs Committee

Document details

(a) Proposal for a Regulation on the creation of a European network of immigration liaison officers (recast)

(b) Proposal for a Council Decision concerning the notification of the United Kingdom of its wish no longer to take part in some of the provisions of the Schengen acquis which are contained in Council Regulation (EC) No 377/2004 on the creation of an immigration liaison officers network

Legal base

(a) Articles 74 and 79(2) TFEU, ordinary legislative procedure, QMV

(b) Article 5(3) of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union, QMV

Department

Home Office

Document Number

(a) (39717) 9036/18 + ADDs 1–2, COM(18) 303

(b) (40354), 5939/19, COM(19) 23

Summary and Committee’s conclusions

13.1EU Member States currently deploy around 500 Immigration Liaison Officers (“ILOs”) to 105 third (non-EU) countries.79 Since 2004, these ILOs have operated as part of local or regional networks, with meetings convened and coordinated by the Member State holding (or acting as) the Presidency of the EU Council.80 In recent years, their numbers have been supplemented by European Migration Liaison Officers (“EMLOs”) deployed by the Commission in 13 priority countries and by officers from the EU’s European Border and Coast Guard Agency (formerly Frontex).81

13.2The European Commission considers that the networks established in 2004 do not ensure “optimal utilisation” of the “operational expertise, first-hand knowledge and contacts in third countries” obtained by ILOs.82 Its proposal for a Regulation—document (a)—would expand the networks to include EMLOs deployed by the Commission and EU Agencies, improve the exchange of information and ensure that the networks contribute more effectively to the EU’s migration policy priorities through the creation of a new Steering Board on which each Member State, the Commission, the European Border and Coast Guard Agency, Europol and the EU Asylum Agency would be represented. The Steering Board would provide strategic direction for the networks, oversee their work and identify deployment gaps. It would also be responsible for ensuring that ILOs upload and exchange information through a secure web-based information exchange platform.83

13.3Although the UK does not participate in the Schengen free movement area or apply Schengen rules on external border controls, it does take part in some Schengen measures concerning illegal immigration, including the 2004 Regulation establishing the existing ILO network which the proposed Regulation would repeal and replace. Under the Schengen Protocol annexed to the EU Treaties, the UK will be bound by the proposed Regulation unless the Government decides to opt out. The Government had until 1 October 2018 to notify the Council (the date on which the three-month deadline for opting out expired).84

13.4In her Explanatory Memorandum of 5 June, the Immigration Minister (Rt Hon. Caroline Nokes MP) described the proposed Regulation as “a bid by the Commission to provide an over-arching structure” to task and manage the activities of Member States’ ILOs more systematically and highlighted the creation of a Steering Board as “the key new element”. Whilst noting that the aims of the revamped ILO network were “aligned with UK migration priorities”, she indicated that the impact of the proposed changes “on a Member State’s ability to task their own staff effectively, without oversight of the Commission, and to develop bilateral relationships with third countries” would be a key issue for the Government.

13.5In our Report agreed on 12 September 2018, we asked the Government to inform us as soon as possible of the Government’s decision on participation in the proposed Regulation and to explain what consequences a decision to opt out would have for continued UK participation in local and regional ILO networks until exit day. We did so because Article 5(3) of the Schengen Protocol (annexed to the EU Treaties) requires the Council to determine whether a decision to opt out from the proposed Regulation would seriously affect the practical operability of the Schengen rule book (“acquis”) and, if it concludes that it would, to disapply parts of the Schengen rule book in which the UK currently participates. We await the Minister’s response. Meanwhile, a Council press release issued on 14 November 2018 announced that COREPER (the body on which Member States’ Ambassadors to the EU are represented) had agreed a mandate to begin negotiations with the European Parliament on a final compromise text.

13.6The proposed Council Decision—document (b)—indicates that the UK has decided not to opt into the proposed Regulation and notified the Council Presidency of its decision on 1 October 2018. Based on Article 5(3) of the Schengen Protocol, the purpose of the proposal is to clarify the consequences of that decision for the UK’s ongoing participation in other elements of the Schengen rule book. The analysis, set out in the recitals to the proposed Decision, describes the proposed Regulation (and the 2004 Regulation which it would repeal and replace) as:

[…] a self-standing measure within the Schengen acquis, which is not interacting operationally with other legal instruments that are part of the Schengen acquis.85

13.7The UK’s decision not to participate in the proposed Regulation would not therefore affect “the practical operability” of the other elements of the Schengen rule book in which the UK participates or undermine the overall coherence of the Schengen rules. The proposed Council Decision makes clear that the 2004 Regulation establishing an immigration liaison officers network (and any subsequent amendments to it) would cease to apply to the UK from the date on which the proposed successor Regulation enters into force. Similarly, corresponding provisions relating to the 2004 Regulation in two other Council Decisions setting out the parts of the Schengen rule book in which the UK participates would also cease to apply.86 The UK’s participation in other elements of the Schengen rule book would not be affected.

13.8In her Explanatory Memorandum of 11 February 2019 on the proposed Council Decision, the Immigration Minister (Rt Hon. Caroline Nokes MP) confirms that the Government notified the Council Presidency and the European Commission of its decision to opt out of the proposed Regulation on 1 October 2018, adding:

This decision reflected the Government’s view that the UK had seen little benefit from the EU ILO Network. Furthermore, our ability to continue to work bilaterally with ILO networks from the EU and non-EU states would not be impacted by non-participation. We would seek to attend EU meetings on an observer basis, as provided for in [the] recast Regulation and continue to participate in existing networks developed across the globe which already have EU and non-EU participants. It also reflected the UK decision to leave the EU on 29 March 2019.

13.9The Minister is content that the European Commission has correctly applied the criteria set out in Article 5(3) of the Schengen Protocol and that its proposal for a Council Decision will have no impact on the UK’s wider participation in the Schengen rule book. She anticipates that the Presidency will invite COREPER to agree the proposed Regulation and Council Decision on 20 February, with formal adoption by the Council following shortly afterwards, and asks us to clear the proposals from scrutiny.

Our Conclusions

13.10As far as we are aware, this is the first occasion on which the mechanism in Article 5(3) of the Schengen Protocol has been used, following a decision by the Government to opt out of a proposal which builds on parts of the Schengen rule book in which the UK has (previously) chosen to participate. We consider that the European Commission has properly applied the criteria set out in Article 5(3) of the Schengen Protocol and agree with its conclusion that the UK’s decision to opt out of the proposed Regulation should not affect its participation in other elements of the Schengen rule book. We note the Commission’s view that this is a “very exceptional case”. We are content to clear the proposed Council Decision from scrutiny.

13.11We also clear the proposed Regulation from scrutiny, albeit with some reluctance. We remind the Minister that the Government’s Code of Practice on Parliamentary scrutiny of EU justice and home affairs measures applies to Schengen opt-out decisions. The Code states clearly that the Scrutiny Committees in both Houses must be informed of the Government’s opt-out decision as soon as the Presidency has been notified (in this case, 1 October 2018) and a Written Ministerial Statement issued explaining why the Government considered the decision to be in the national interest. The Minister has complied with neither of these undertakings. We expect her to do so while the UK remains a member of the European Union and during any post-exit transition/implementation period in which EU law continues to apply to the UK. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

(a) Proposal for a Regulation on the creation of a European network of immigration liaison officers (recast): (39717), 9036/18 + ADDs 1–2, COM(18) 303.

(b) Proposal for a Council Decision concerning the notification of the United Kingdom of its wish no longer to take part in some of the provisions of the Schengen acquis which are contained in Council Regulation (EC) No 377/2004 on the creation of an immigration liaison officers network: (40354), 5939/19, COM(19) 23.

Background

13.12Schengen began as an intergovernmental agreement between five of the six Member States that founded the European Economic Community (the precursor to the European Union). Its purpose was to remove checks on people and goods at their common (internal) borders. Schengen cooperation was brought within the EU’s legal framework by the 1997 Treaty of Amsterdam. A Protocol to the EU Treaties incorporated the Schengen rule book, giving it the status of EU law, but also included special provisions to reflect the UK’s position (also shared by Ireland) as an EU Member State that does not participate in the Schengen free movement area. Article 4 of the Schengen Protocol allows the UK (and Ireland) to request to take part in some or all of the Schengen rule book. A Council Decision based on this Article (Council Decision 2000/365/EC) was adopted in 2000 and lists the provisions of Schengen in which the UK has chosen to participate. Article 8(2) of the 2000 Council Decision makes clear that the UK will be “deemed” to participate in any new proposals which build on these provisions (so-called “Schengen-building” measures). A further Council Decision adopted in 2004 (Council Decision 2004/926/EC) established 1 January 2005 as the date on which the Schengen measures applicable to the UK would take effect. The measures included the 2004 Regulation creating an immigration liaison officers network.

13.13The 2007 Lisbon Treaty amended the Schengen Protocol by establishing a mechanism to enable the UK to opt out of new Schengen-building measures which would otherwise be deemed to apply under Article 8(2) of the 2000 Council Decision. The mechanism is based on the following procedures:

13.14In reaching a decision, the Council must “seek to retain the widest possible measure of participation of the Member State concerned without seriously affecting the practical operability of the various parts of the Schengen acquis, while respecting their coherence”.

Previous Committee Reports

None on document (b). We have published two earlier Reports on document (a): Thirty-fourth Report HC 301–xxxiii (2017–19), chapter 9 (4 July 2018) and Thirty-eighth Report HC 301–xxxvii (2017–19), chapter 24 (12 September 2019).


79 17 EU Member States, plus Switzerland and Norway, deploy ILOs.

80 See Council Regulation (EC) No 377/2004 on the creation of an immigration liaison officers network, as amended by Regulation (EU) 493/2011.

81 EMLOs are deployed in Ethiopia, Jordan, Lebanon, Mali, Morocco, Niger, Nigeria, Pakistan, Senegal, Serbia, Sudan, Tunisia and Turkey.

82 See pp 2–5 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

83 The information would include relevant documents, reports and analytical products in the area of immigration as well as factual information on the host third countries or regions.

84 The three-month opt-out period starts to run from the date on which the last language version of the proposed Regulation is published.

85 See recital (5).

86 Article 8(2) of Council Decision 2000/365/EC and point 6 of Annex 1 to Council Decision 2004/926/EC.




Published: 5 March 2019