SCHENGEN
AND THE
UNITED KINGDOM'S
BORDER CONTROLS
PART 4: OPINION OF THE COMMITTEE
FRONTIER
CONTROLS
45. The Government's position on the maintenance
of frontier controls has repeatedly been made clear: in its election
manifesto, in the Protocol secured at the Amsterdam Treaty negotiations,
in its White Paper on Asylum and Immigration policy. This Committee
too was left in no doubt as to the strength of the Government's
conviction on this point.
46. The Committee does not believe that the status
quo remains a long-term option. The steadily-rising pressure of
numbers crossing United Kingdom frontiers from elsewhere within
the EEA necessitates closer co-operation with other Governments,
as all our witnesses made clear. The distinction between systematic
controls and selective checks is already becoming in practice
a very fine one. Frontier controls are applied in a much less
systematic way than was the case a generation ago. It is a matter
for semantic discussion whether 'light touch' controls are still
systematic; they differ substantially from traditional methods
of frontier control. We doubt, however, that British citizens
and visitors to Britain would accept the reimposition of traditional
controls. We therefore anticipate increasing moves towards selectivity
in controls between the United Kingdom and other EEA states, whether
or not the United Kingdom opts in to Schengen.
47. The Government's main argument in favour
of systematic frontier controls on all persons entering the United
Kingdom (whether from EEA countries or other third countries)
is that these controls prevent clandestine immigration and are
useful for crime control purposes. The Government believes that
Britain's island geography makes our frontier controls more effective
than those of our European Union partners. It doubts whether the
external borders of the Schengen area are policed as effectively
and to the same standards as the controls exercised by the United
Kingdom.
48. The Government failed to convince the Committee
that systematic border control as currently practised for all
arrivals in the United Kingdom, whether from the European Union
or elsewhere, is the most effective use of resources to control
illegal immigration or is focused on the main sources of illegal
immigration.
49. We question whether it will be practical
to maintain the principle that passengers arriving in the United
Kingdom are controlled by nationality rather than by point of
departure for the foreseeable future. Closer co-operation with
other European States in combating illegal immigration, coupled
with selective checks on entry, appears to present the most effective
way forward in managing cross-border flows which are increasing
at a compound 8 per cent per year. The logic of this is that the
United Kingdom should plan over the next 5-10 years to follow
other EEA states in distinguishing between arrivals across the
external frontier and arrivals crossing internal borders. The
costs of adapting British ports of entry over such a time-scale
do not seem excessive. In this respect it seems short-sighted
that Terminal 5 at Heathrow is still planned on the traditional
basis rather than with the flexibility to adapt to a change in
policy.
50. It is arguable that primary immigration control
is, in any case, no longer exercised at the frontier. An increasing
emphasis is being placed on other forms of "devolved"
control such as the issuing of visas, carriers' liability and
the checks on a person's immigration status for access to social
security, education and health services. We agree with Ms Guild,
of ILPA, who said "I think the border that we should actually
be looking at is the consulate abroad where the visa application
is made" (Q 130) and we consider that the cost-effectiveness
of the maintenance of systematic border controls on arrivals from
inside the EEA is open to question.
51. Witnesses also pointed to the safeguards
available under the Schengen system. France retains a systematic
frontier control at its ports. The Schengen Convention also allows
systematic border controls to be reinstated, albeit temporarily,
if circumstances dictate. We emphasise these points to make it
clear that opting-in to Schengen would not require the United
Kingdom to abandon for evermore its power to impose strict border
controls for compelling reasons of public policy or national security.
The power to designate the United Kingdom's seaports as "external
frontiers", in particular, is an important one. Moreover
the United Kingdom has recognised the positive benefits of a Common
Travel Area which allows free movement to and from the Republic
of Ireland. This has led to a much greater reliance being placed
on good police co-operation and sharing of intelligence between
the United Kingdom and Ireland. We believe that this positive
experience could serve as a powerful incentive for United Kingdom
participation in a wider Common European travel area. In this
context, it is worth noting that, even with open borders, the
United Kingdom's position as an island gives it a considerable
natural advantage in controlling illegal immigration and cross-frontier
crime. In our view, the case made out by the Government for the
retention of systematic border controls is a weak one. The evidence
does not support the Government's assertions that their policy
is the most effective one in terms of controlling illegal immigration
and organised crime. Experience from one Schengen State, at least,
suggests that the contrary is true: there has been no loss of
efficiency and the strengthened cross-border co-operation which
has resulted has been beneficial to all of the participating States.
There is therefore a case for reconsidering current policy.
52. If the Government does decide to abolish
systematic controls on arrivals from European Union countries,
it may wish to reconsider the question of identity cards. It should
however be noted that ID cards are not a requirement of Schengen,
nor is it compulsory to carry ID cards in all Schengen States.
There could well be strong opposition to such a course, and there
would have to be extensive prior consultation. The Committee sees
value in having a form of identification unequivocally establishing
an individual's immigration status. This has to be balanced against
concern about the potential threat to civil liberties and privacy
and the adequacy of any safeguards to prevent abuse and discrimination.
53. The Committee does not accept that identity
cards would necessarily involve a much higher degree of discretion
and intervention than is the case under the present system of
border controls. We note also that they could be used instead
of passports for travel between Schengen States. The critical
issues would be the intended uses of an identity card and the
underlying powers given to law enforcement officials and the safeguards
against the abuse of those powers.
COMPENSATORY
MEASURES
54. Whether or not the Government is prepared
to accept our recommendation on the lifting of frontier controls
on arrivals from European Union countries, it has still to define
its position in relation to the "compensatory measures"
in the Schengen system, namely, enhanced police co-operation,
a common immigration, visa and asylum policy, and judicial co-operation.
Broadly, the Government is in favour of participation in police
co-operation, but has strong reservations about opting in to the
other areas. The question arises whether the Schengen States will
be willing to accept "à la carte" participation.
We received evidence that, "legally, there was no reason
for other countries to say that it is all or nothing" (Q
190), but M. Pinauldt suggested that a range of considerations
would have to be taken into account by the Governments of the
other Member States, which might well complicate the United Kingdom's
position.
55. We share the Government's view that it would
be strongly in the United Kingdom's interest to participate in
the Schengen Information System. It has already proved its worth
and the United Kingdom will be unable to influence future developments
if it remains outside the SIS. It is highly unlikely, and undesirable
in terms of the protection of individual rights, that the present
informal data-sharing arrangements between the United Kingdom
and the Schengen countries could continue indefinitely.
56. There are, however, genuine civil liberties
concerns relating to data protection and identity checks in the
present Schengen arrangements. These concerns should be clarified
and, if possible, met before any decision is taken by the United
Kingdom to opt into the SIS. The Committee intends to return to
this question in a future enquiry.
57. Opting-in to common policies on visas, asylum
and immigration raises different issues. The United Kingdom has
secured a right of selective opt-in to any Title IV measures.
However, if these measures are a development of the Schengen acquis,
then United Kingdom participation will require the prior approval
of the Schengen States. We share JUSTICE's view that "to
stay out of the new Title IV on areas such as immigration and
asylum will result in a legal maze of great complexity."
58. We consider that it is practically difficult,
and politically unwise, for the United Kingdom to isolate itself
from the continuing development of European Union-wide policies
in such sensitive areas, and that the United Kingdom has an important
contribution to make in proposing measures for the effective preservation
of civil liberties. We therefore conclude that it would be prudent
for the Government to plan for a change in policy.
CONCLUSION
59. In principle, the Committee regard freedom
of movement within the EEA as a desirable objective. We share
Mr Ernest Bevin's robust view on the benefits of freedom of movement
when he said:
"my foreign policy is to be able to take
a ticket at Victoria Station and go anywhere I damn well please"[15].
We believe that in the three major areas of Schengen—border
controls, police co-operation (SIS) and visa/asylum/immigration
policy—there is a strong case, in the interests of the United
Kingdom and its people, for full United Kingdom participation.
Free movement throughout the EEA is a right which all citizens
of the United Kingdom should be entitled to enjoy. The United
Kingdom is effectively isolated from the Schengen arrangements
and their future development. The only other country to opt out,
Ireland, made it clear that its reasons for doing so were to preserve
the Common Travel Area with the United Kingdom, and also made
it clear that it intended to exercise its rights of opt-in to
as much of the acquis as possible (apart from the abolition
of border controls) at an early opportunity. It is by no means
clear that opting into part of the acquis will be welcomed
by the Schengen States. If the United Kingdom does not opt-in,
its influence over a broad range of Justice and Home Affairs matters
may be seriously diminished. The further development of Justice
and Home Affairs will however directly affect United Kingdom interests
and United Kingdom citizens. Weaker United Kingdom influence over
the development of European policies will mean that such policies
will reflect the preferences of others, and fail to take into
account particular United Kingdom concerns.
RECOMMENDATION
60. The Committee believes that the matters considered
in this Report raise important questions to which the attention
of the House should be drawn, and we make this Report to the House
for debate.
15 The Spectator, 20 April 1951 Back
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