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Documents considered by the Committee on 5 June 2019 Contents

10Strengthening the European Border and Coast Guard Agency and combating document and identity fraud

Committee’s assessment

Politically important

Committee’s decision

(a) Cleared from scrutiny; further information requested

(b) Not cleared from scrutiny; further information requested

(a) and (b) drawn to the attention of the Home Affairs Committee

Document details

(a) Proposal for a Regulation on the European Border and Coast Guard

(b) Proposal for a Regulation on the false and authentic documents online (“FADO”) system and repealing Joint Action 98/700/JHA

Legal base

(a) Articles 77(2)(b) and (d) and 79(2)(c) TFEU, ordinary legislative procedure, QMV

(b) Article 87(2)(a) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Numbers

(a) (40060), 12143/18 + ADD 1, COM(18) 631

(b) (40427), 6676/19,—

Summary and Committee’s conclusions

10.1The first proposed Regulation—document (a)—would significantly enhance the operational capability of the European Border and Coast Guard (“EBCG”) so that it is equipped to operate as “a genuine border police”, providing Member States with operational and technical assistance to support the management of their external borders and the return of illegal immigrants.73 Our earlier Report agreed on 31 October 2018 describes the main features of the proposed Regulation, as envisaged by the European Commission. At its core is the creation by 2020 of a “standing corps” of 10,000 operational staff within the European Border and Coast Guard Agency (the successor to Frontex),74 some directly employed by the Agency and some seconded by Member States, which could be deployed whenever needed to support Member States in managing their external borders, including as part of a larger migration management support team involving other EU agencies operating in “hotspot” areas and “controlled centres”.75 The Agency would also have a larger equipment budget to enable it to acquire, maintain and operate its own air, sea and land assets.

10.2As the proposed Regulation builds on parts of the Schengen rule book on external border control which do not apply to the UK, the UK is not entitled to participate in (or vote on) the proposal and will not be bound by it once adopted.76 The UK may, however, be invited to attend meetings of the European Border and Coast Guard Agency’s Management Board (but without voting rights) or request to take part in some of the Agency’ activities while the UK remains an EU Member State and during any post-exit transition/implementation period agreed as part of the UK’s exit negotiations.77 Thereafter, cooperation with the European Border and Coast Guard Agency and with other EU Member States would be based on the third country provisions of the proposed Regulation.78

10.3In her Explanatory Memorandum of 17 October 2018, the Immigration Minister (Rt Hon. Caroline Nokes MP) reiterated the Government’s “strong interest in effective management of the EU’s external border, not just in combating illegal migration and cross-border crime but also as part of the EU-wide counter-terrorism effort” and said the Government saw “great value in supporting the Agency”. She noted that the proposed Regulation would entrust the European Border and Coast Guard Agency with the operation of the EU’s false and authentic documents database (“FADO”)—an EU police and criminal justice measure which assists Member States in combating document and identity fraud. As the UK participates in the FADO system, which currently operates within the General Secretariat of the Council, the Minister indicated that the Government would seek to clarify with the Commission how the new arrangement would affect the UK’s access to the database.

10.4The second proposed Regulation—document (b)—would repeal and replace the 1998 Joint Action establishing FADO.79 The proposal would clarify the types of document to be included within the database and rights of access to them.80 Information on genuine documents would be accessible to the public, whereas information on forged or falsified documents would only be accessible to the authorities within each Member State responsible for tackling document fraud, such as immigration or law enforcement officers. The proposed Regulation envisages that access to this (restricted) information may be extended to third (non-EU) countries, international organisations, third parties (such as airlines) or EU institutions and agencies, with the conditions decided on by the European Commission in an implementing act.

10.5In her Explanatory Memorandum of 20 March 2019, the Minister told us that a separate Regulation had been proposed to ensure that the UK (and Ireland) could continue to participate in FADO, despite it being brought under the control of the European Border and Coast Guard Agency. She confirmed that the proposal was subject to the Schengen Protocol and that the three-month period available to the UK to decide whether to opt out would expire on 20 May 2019. The Minister underlined the utility of FADO in validating identity and travel documents and in helping to prevent illegal entry to the UK and wider criminal activity linked to the use of false documents. She indicated that a decision to participate in the proposed Regulation before the UK’s exit from the EU would help to secure continued participation in FADO when negotiating the UK’s future relationship with the EU, adding that FADO would form part of “the package of current capabilities” which the UK would seek to retain in negotiations on a future internal security agreement with the EU.

10.6In our Report agreed on 19 December 2018, we noted that the Council had agreed a “partial general approach” on the proposed EBCG Regulation. We asked the Minister to explain:

10.7In our subsequent Report agreed on 3 April 2019, we reminded the Minister that she had yet to respond to the questions we had raised on the content of the agreement reached by the Council on the proposed EBCG Regulation. A Council press release issued on 20 February 2019 confirmed that the Council had agreed a mandate to begin negotiations with the European Parliament on a final compromise text. A further Council press release issued on 1 April 2019 confirmed that the Council and European Parliament had reached an agreement (awaiting formal approval) which envisaged phasing in a standing corps of “up to 10,000 operational staff by 2027”, with deployments starting from January 2021.

10.8On the proposed FADO Regulation, we asked the Minister:

10.9We also sought further information on the practical implications of placing FADO under the control of the European Border and Coast Guard Agency, asking the Minister whether this meant (if the UK were to remain part of FADO until it leaves the EU) that the UK would be bound by an obligation to transmit data to FADO without having any say over its operation and management and, if so, whether this was a matter of concern for the Government.

10.10Finally, noting the possibility that the UK could exit the EU without a deal allowing continued participation in EU databases such as FADO during a post-exit transition period, we asked:

10.11In her first letter of 9 May 2019 on the proposed EBCG Regulation, the Minister notes that the partial general approach agreed by the Council in December 2018 “amounted to only a relatively small proportion of the overall proposal”. The text agreed would enable the Agency to support Member States “in all areas of return operations”, give it greater scope to cooperate with third (non-EU) countries and to conclude status agreements setting out the terms on which border management and return teams may be deployed, and allow it to deploy its own liaison officers as part of local or regional networks of EU and Member State immigration liaison officers and security experts.81 The Minister continues:

It is very unlikely that the Agency would ever need to negotiate a status agreement with the UK as the intention behind these are to manage the EU border from external pressures. However, there is provision (at Article 73 of the current text) for Member States to make bilateral or multilateral agreements on operational cooperation and information exchange with one or more third countries—therefore the UK after EU exit—”in the areas covered by the subject matter of this Regulation”. Cross referencing this with the subject matter set out in Article 1, this includes managing external border crossings and migratory challenges such as returns and potential threats. As per the first paragraph of Article 74, the Agency may also cooperate with third countries in those matters covered by the draft Regulation.

10.12Following agreement within the Council to strengthen its oversight of the process for reviewing the overall size and composition of the European Border and Coast Guard standing corps, the Romanian Presidency began trilogue negotiations with the European Parliament. The Minister summarises their outcome:

In the spirit of compromise, Member States reluctantly agreed to a less robust review process and conceded on the Agency being able to assist with third country to third country returns, though neighbouring states can request technical assistance with returns. They also agreed to a fourth category of standing corps personnel which would be deployed only for rapid reaction interventions and only when staff in the first three categories have already been deployed; the requirement for this fourth category falls away in 2024. The Presidency held firm on giving the European Parliament a voting role on the Agency’s Management Board and a say on senior Agency appointments.

10.13The Minister explains that a Consultative Forum on Fundamental Rights was established in 2012 to provide independent advice to Frontex (the precursor to the EBCG Agency) on respect for, protection and promotion of, fundamental rights. She draws our attention to its latest Annual Report for 2017 which observes that the lack of sufficiently qualified staff in the Agency’s Fundamental Rights Office “seriously hinders the Agency’s ability to deliver on its fundamental rights obligations including on key areas such as Frontex operational activities, the newly established complaints mechanism or the protection of children”.82 The Report also states that the Consultative Forum “continues to face challenges” in obtaining access to the information it needs to carry out its mandate.

10.14The Minister notes that the proposed FADO Regulation has not progressed as rapidly as the proposed EBCG Regulation and will only be considered by the European Parliament (“EP”) after the May EP elections. In her second letter of 9 May 2019, she says that the decision to bring FADO under the management of the European Border and Coast Guard Agency “changes the character of the system” so as to become part of the Schengen rule book. She continues:

The Government understands that the Commission has, reflecting the original police co-operation legal base for the Joint Action, decided this is a Schengen police co-operation measure, allowing the UK and Ireland to participate but reflecting its Schengen characterisation. The Government does not object to this position (as we retain the right to decide whether to participate) and considers that Article 39 of the Schengen Agreement, which is an aspect of the acquis in which the UK participates, provides a thematic basis for police co-operation measures to be considered part of the Schengen acquis.83

10.15The Minister notes that the 1998 Joint Action on which FADO is currently based will be repealed and replaced. The proposed successor Regulation “has been made in a way that would not exclude the UK from continuing to benefit from participation in FADO as an EU Member State or during the Implementation Period, should that be the Government’s decision”. She indicates that the Government is “minded to remain part of this valuable resource” and adds:

We have always been a key contributor to the FADO database, and I would want that valuable relationship to continue. EU practitioners also value our contribution, which is why this separate draft EU Regulation has been proposed. Currently, we continue to have a seat at the Management Board that oversees FADO and we remain in a position to influence the management of FADO.

In the event of a ‘no deal’ exit from the EU, I would not rule out seeking ‘restricted access’ to FADO under Article 6, subject to further information from the EU on the terms of that access.

10.16In a further letter dated 4 June 2019, the Minister informs us that the Government has decided not to opt out of the proposed FADO Regulation:

This is a continuing measure and the Government values the benefits of FADO. It is a very useful EU tool which helps us to validate identity and travel documents, primarily for border, immigration and wider law enforcement purposes. It is a database which contains detailed images of genuine travel and identity documents issued by EU Member States and false documents encountered at the border and elsewhere.

We have always been a key contributor to the FADO database and the draft Regulation will ensure the continuity and development of FADO. The FADO system itself will remain fundamentally unchanged.

10.17She adds that, while the UK remains a full member of the EU, the Government will continue to approach Schengen opt-out decisions “on a case by case basis, with a view to maximising the UK’s efforts to collaborate with EU on a security partnership once the UK leaves the EU”.

Our Conclusions

10.18Our earlier Reports have underlined the importance of the proposed European Border and Coast Guard Regulation—document (a)—in substantially scaling-up the staff and equipment available to the EBCG Agency, strengthening its operational capabilities and powers, and increasing its funding (totalling €11.3 billion for the period 2021–27) to enable it to act as “a genuine border police”.84 Given the scale of the ambition, we have sought regular updates on the progress and outcome of negotiations, even though (as a Schengen measure) the UK will not take part in its adoption or application.

10.19As a compromise text has now been agreed and is awaiting formal approval by the Council and the European Parliament, we are content to clear the proposal from scrutiny. We nonetheless ask the Minister to address two outstanding concerns. First, we note that the proposed Regulation would allow Member States to continue to apply (or enter into new) bilateral or multilateral agreements or other arrangements providing for operational cooperation and information exchange with a third (non-EU) country in areas covered by the Regulation. However, Article 73 requires that these agreements or other arrangements comply with EU and international law on human rights and refugee protection, including the EU Charter of Fundamental Rights, and imposes an obligation on a contracting Member State to “assess and take into account on a regular basis the general situation in the third country”. We ask the Minister to confirm that:

10.20We also ask the Minister how she anticipates that Belgium and France intend to fulfil their obligation under Article 73 of the proposed Regulation to “assess and take into account on a regular basis” the UK’s compliance with EU and international human rights and refugee protection laws.

10.21Second, we are concerned by the recent findings of the Consultative Forum on Fundamental Rights, established as a source of independent advice for the European Border and Coast Guard Agency, which indicate that a lack of resources “seriously hinders the Agency’s ability to deliver on its human rights obligations”. We ask the Minister whether she supports the appointment of “at least 40 fundamental rights monitors” as part of the Agency’s staff (as envisaged in Article 107a of the proposed Regulation) and whether she is satisfied that they will have the powers needed to fulfil their monitoring role effectively.

10.22Turning to the proposed FADO Regulation—document (b)—we note the Minister’s view that the decision to bring FADO under the management of the European Border and Coast Guard Agency “changes the character of the system” so as to become part of the Schengen rule book. We would be interested to know if there is any precedent for a non-Schengen EU measure (such as the 1998 Joint Action) to be repealed and replaced by a Schengen-building measure.

10.23In our earlier Report, we expressed concern that UK participation in FADO once it is brought under the management of the European Border and Coast Guard Agency would mean that the UK would be under an obligation to transmit data to FADO without having any say over its operation and management. We ask her to confirm whether this will indeed be the case, now that the Government has decided to participate.

10.24Pending further information, the proposed FADO Regulation remains under scrutiny. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

(a) Proposal for a Regulation on the European Border and Coast Guard and repealing Council Joint Action no. 98/700/JHA, Regulation (EU) no 1052/2013 and Regulation (EU) no. 2016/1624: (40060), 12143/18 + ADD 1, COM(18) 631; (b) Proposal for a Regulation on the false and authentic documents online (“FADO”) system and repealing Joint Action 98/700/JHA: (40427), 6676/19,—.

Previous Committee Reports

Sixty-second Report HC 301–lx (2017–19), chapter 7 (3 April 2019), Forty-ninth Report HC 301–xlviii (2017–19), chapter 7 (19 December 2018) and Forty-third Report HC 301–xlii (2017–19), chapter 7 (31 October 2018).

73 See the press release issued by the Council on 20 February 2019 and p.12 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

74 See Articles 5, 55–9 and Annexes I-IV of the proposed Regulation and p.2 of the Commission’s accompanying explanatory memorandum. Members of the standing corps would include officials capable of carrying out border control or return tasks.

75 The types of deployment are set out in Articles 37 and 43 of the proposed Regulation and include “rapid border interventions”, “joint operations” with Member States and/or third countries, “migration management support teams” and “return teams”.

76 See recital (108) of the proposed Regulation.

77 See recitals (110) and (111) and Articles 71, 98(5) and 102 of the proposed Regulation.

78 See Articles 72–79 of the proposed Regulation.

79 Council Joint Action 98/700/JHA.

80 The database will include images of genuine travel, identity, residence, civil status and other official documents, as well as driving and vehicle licences issued by EU Member States, third countries and international organisations. It will also include images of false, forged or counterfeit documents and information on forgery techniques.

81 See the Council press release issued on 6 December 2018.

82 See p.6 of the Report’s Executive Summary.

83 Article 39 of the Schengen Convention 1990 provides for cross-border police cooperation to prevent and detect crime.

84 See p.1 and p.3 of the Commission’s explanatory memorandum accompanying the proposed Regulation and its press release of 12 September 2018, State of the Union 2018—Commission proposes last elements needed for compromise on migration and border reform.



Published: 11 June 2019