Memorandum by Justice
As a human rights organisation, JUSTICE has
primarily considered the implications of this subject on the rights
of individuals within the European Union. We have therefore focused
on three main questions:
Does the retention of border controls
by the UK prevent it from participating in common policies under
the new Title IV?
What should be the UK's position
on opting in to Title IV measures?
What are the legal consequences of
the UK staying out the Title IV measures?
We also consider some of the issues around incorporation
of the Schengen Information System and the options for the UK.
We have been kindly assisted with this submission
by Nicholas Blake QC, Professor Eileen Denza, Tim Eicke (barrister),
Dr Richard Plender QC, and Peter Cullen and Dr James Sheptycki
form the Faculty of Law, University of Edinburgh.
1. To what extent, if any, does the UK's position
on retaining internal border controls preclude it from participating
in the new Title IV covering, inter alia, immigration and asylum?
1.1 The provisions of the Protocol on the application
of certain aspects of Article 7a of the Treaty establishing the
European Community to the United Kingdom and to Ireland (hereafter
referred to as the "UK Protocol on border controls")
makes clear that the special arrangements of the UK's entitlement
to retain border controls of people is for immigration purposes
only. Article 1 refers to controls that the UK "may consider
necessary" for the purpose of:
verifying the right to enter of
EEA nationals and their dependants, "as well as citizens
of other States on whom such rights have been conferred by an
agreement by which the United Kingdom is bound"; and
determining whether to grant permission
of other persons.
Its primary purpose therefore is to preserve
the status quo.
1.2 This right to maintain border controls is
set out in such absolute terms (and in its own separate Protocol)
that the only room for manoeuvre lies in the nature of the controlsthat
is, between "verifying a right to enter" as against
"the granting of permission to enter"rather than
their existence. The Protocol itself makes no reference either
to the Schengen acquis or the new Title IV; and does not
either expressly or by necessary implication link the issue of
border controls with the wider issues of either.
1.3 The scheme of the relevant provisions clearly
suggests that the maintenance of internal border controls is an
issue that is legally separate from (though to a large extent
conditional upon) the adoption of common rules for such matters
as the crossing of external borders, immigration and asylum as
well as co-operation of the police and judicial authorities. The
Protocol on UK border controls therefore appears not in any way
to prevent the UK from maintaining its internal frontier controls,
but at the same time to participate in new Title IV measures.
Rather, it appears that the provisions are in fact designed to
facilitate such an approach.
1.4 It is the separate Protocol on the position
of the United Kingdom and Ireland that provides the "opt-in"
to new Title IV. This permits the UK and Ireland to opt in to
the "adoption and application" of new legislation under
Title IV; it also provides for the power of the other member states
to adopt a measure without the UK and Ireland, even though they
have notified an "opt-in". A major consideration on
whether to use the opt-in clause will be the UK government's current
desire not to prejudice its border control powers. It appears
that in most instances this would not be the case. For example,
in the event that the UK co-operated with measures to lift internal
border controls on third country nationals (under new Article
62(1) of Title IV), the UK could still retain its right to control
such persons at the border under Article 1 of the border Protocol.
The only effect it could have is that the third country nationals
in question would fall within a category of persons subject to
controls to verify the right to enter, rather than falling within
the second category of persons whose entry requires a determination
of whether to grant permission (see paragraph 1.1 above).
1.5 The UK is in a similar position in relation
to the Protocol integrating the Schengen acquis into the framework
of the European Union. The provisions in Article 4 are concerned
with an "opt in" to part or all of the Schengen acquis
as it currently stands; any future proposals to "build upon
the Schengen acquis" is made subject to the relevant
EC Treaty provisions and therefore to the UK's position on border
controls. Again, the exercise of this opt-in under Article 4 would
not affect the operation of the UK's right to maintain border
controls expect, when using the same example as mentioned above,
by reallocating certain third country nationals between the two
categories of persons on whom controls may be imposed.
1.6 JUSTICE is not in a position to comment
on such questions as the UK's need to retain internal border controls
or their effectiveness for immigration purposes. We acknowledge
that there are arguments in favour of the UK taking advantage
of its island status in this respect. On the other hand, we would
like to see a dispassionate examination on the likely consequences
if the UK was to lift such controls. For example, how significant
are the number of illegal entries and failed asylum seekers, compared
with the nine million or so travellers crossing the UK borders
each year? Also, why is it that the UK is the only EU member state
that appears to require a double line of protection over border
controls? There is also the additional issue of whether, and to
what extent, the other EU countries will now impose controls on
persons entering their territory from the UK and Ireland under
Article 3 of the UK border control Protocol. In particular, how
much of an additional barrier might this place in the way of free
1.7 In any event, a distinction can be drawn
between controls and checks. Controls relate to full and systematic
entry procedures for all individuals at the point of entry. On
the other hand, checks are held to be selective measures, applied
against particular persons for particular reasons. For example,
using passenger manifests and data matching against information
held on police and other databases, it is possible to single out
persons for checks either on or after entry. This is supported
by the evidence given by John Abbott, Director of NCIS to the
Committee (18 November 1998) which indicates that "prior
intelligence" is the key to drugs and firearm seizures at
the borders. Although there is a growing movement towards selective
entry checks, they can (and, frequently, do) raise significant
problems especially as to the actual or perceived discriminatory
way in which they are carried out.
1.8 If the UK does formally withdraw from its
present position on border controls there would almost certainly
be a debate on the need for other ways of checking to ensure compliance,
for example, with common policies. Much of this will depend on
co-operation between member states including information sharing,
common documentary formats and systems for the detection of forgeries.
However, the UK's present emphasis on post-entry identity checks
which link access to services and benefits with immigration status
already appears to create a form of devolved immigration control.
1.9 It is also inevitable that the issue of
identity cards will arise in this context. JUSTICE's position
is set out in a report, Identity Cards Revisited, published
in 1995 with the Institute for Public Policy Research (IPPR).
We conclude that to introduce a system of ID cards would not only
require a fundamental change to the whole immigration system itself
but would also require registration of the citizenship and immigration
status of every person in the UK. This alone could cause huge
problems in terms of administration and community relations (see
pages 23-27). It is also clear that the effectiveness of ID cards
largely depends on two factors: the extent and rigour of checks
carried out by the police and other officials; and the linkage
of the cards with a series of databases, both universal and particular.
Both these issues raise important questions of civil rights (see
TITLE IV: IMMIGRATION
2. What should be the UK's position on opting-in
to measures adopted under new Title IV?
2.1 In practice, the UK has already signed up
to, or accepted in principle, a number of measures falling within
Title IV, particularly in the areas of immigration and asylum.
See the attached appendix for a full list: they include regulations
on visas, the Dublin Convention on asylum applications and recommendations
on such matters as harmonising the means of combating illegal
immigration, for example. At the same time, the UK is continuing
to negotiate on several instruments, including a draft Joint Action
on the treatment of displaced persons and the draft Eurodac Convention.
Many of these measures will be adopted as Community law measures
under Title IV after the Amsterdam Treaty is in force.
2.2 JUSTICE acknowledges that harmonisation
at EU level in any of these highly sensitive areas has inherent
dangers for individual rights. For instance, many non-governmental
organisations concerned with asylum are increasingly concerned
that greater adherence to the practices of the dominant EU member
states may lead to further deterioration in domestic humanitarian
standards including a loss of transparency, accountability and
judicial supervision. However, the practical realities are such
that the UK cannot effectively afford to opt out of a common system
on migration and asylum. To give an example: with visa regimes,
carrier sanctions, and increasing port surveillance at the place
of embarkation, many asylum seekers arrive in the UK overland.
They travel through Europe by lorry, coach, ferry or train. In
order to make sense of a regional policy, common measures are
needed on such questions as to who requires a visa, what constitutes
a false visa, what detection measures are necessary at the border,
particularly at ferry terminals, to prevent unauthorised access.
2.3 Once it is accepted that the UK has little
option but to participate in a common system, JUSTICE believes
that this should be from an opted-in position under Community
law. We reach this conclusion on a number of grounds.
To influence policy under Title IV
2.4 Although the UK could take part in a common
asylum system, for example, on the basis of bilateral agreements
with the rest of the EU member states, these agreements would
inevitably have to shadow the measures already adopted in Title
IV. In these circumstances, the UK would not have had the advantage
of formulating the policies. The direct influence of the UK is
important if progressive proposals, rather than the minimum, are
to be achieved. In particular, common and more generous measures
need to be identified in areas such as the admission of visitors,
the issue and review of refusal of visas and the criteria for
family reunification and admission of other dependants.
2.5 Title IV would also seem to provide a better
framework for introducing positive rights in these areas. Up to
now, the common measures agreed inter-governmentally under the
Third Pillar have been to extend visas, restrict the permissible
purposes for migration and, for example, ensure tougher sanctions
against employers of those without work permits. Little has been
done to achieve positive rights of free movement for EU residents.
For example, important questions remain unresolved as to the rights
of lawfully resident third country national workers, the residence
rights of EU nationals and their families who are not undertaking
economic activities; and the position of self-employed persons
under the Europe Agreements.
2.6 Furthermore, harmonisation under the third
pillar, in the absence of minimum Europe-wide substantive and
procedural rights, is also unsatisfactory. The effect of this
is most noticeable in the wide divergence between states in terms
of recognising refugee status in cases of either persecution by
non-state agents or where the unitary government of a country
has ceased to exist. Currently, Germany refuses to recognise present-day
Somali asylum seekers on either of these grounds, whilst the UK
and other EU Member States do so. Where fundamentally diverse
practices exist as to criteria for protection, the degree of assimilation
into the host state, and effective procedures for the review of
negative decisions, a common policy remains an empty promise.
It will also lead inevitably to competition in disincentives to
prevent asylum seekers arriving in a particular country (which
would be the one to decide on refugee status) and a spiral downwards
to the lowest common denominator degree of protection.
For judicial control
2.7 Under the Amsterdam Treaty, a measure adopted
under the new Title is subject to control by national courts and
(with some important limitations) by the European Court of Justice
(ECJ). To the extent therefore that the UK remains opted out of
measures, there is the potential for differentiation both in terms
of legislation and the case law. This not only undermines the
uniform application of important aspects of Community law but
it could also affect the rights of individuals. This is discussed
For reasons of co-operation and respect
2.8 On a political level it will be of importance
for the UK to be seen to be constructively involved in the negotiations
of such measures under Title IVfailure to be so perceived
may otherwise lead to retaliation by other Member States. They
could use the mechanism under Article 3(2) of the Protocol on
the position of the United Kingdom and Ireland to adopt certain
measures against the will of the UK, despite the UK and Ireland
notifying their intention to participate in the measures. Such
a position would clearly be contrary to the interests of the UK.
2.9 The likelihood must be that both the UK
and Ireland will seek to opt in to a large number of flanking
measures under Title IV. In fact, historical experience suggests
that, although the UK may decide to stay out in the initial stages,
it will in time accept the reality of the situation. However,
it is the Government's failure to set out the principles and criteria
on which such decisions are to be taken that undermines the UK's
position and seriously hampers any proper debate. Although there
appears to be less doctrinal adherence to inter-governmentalism
over justice and home affairs matters generally, there is nevertheless
no commitment on the part of the UK to play a leading role in
3. What are the legal consequences of the UK staying
out of Title IV measures?
3.1 Where there is a proposal to transfer the
substance of an agreed Third Pillar instrument or Convention (such
as the Dublin Convention on asylum) into the new Title IV, the
UK may clearly take part, on notification, in the negotiation,
but may not block the transfer. If the transfer goes ahead without
UK concurrence, the UK will retain the rights and obligations
set out under the Third Pillar measure. These will remain international
law rights and obligations. The position will be more complex
if the substance of the measure is changed during negotiationa
process that will not be capable of affecting the rights and obligations
of the UK.
3.2 Several of the inherent differences between
international law and European Community law relate to the way
in which new law is made. For example, the Amsterdam Treaty sets
out the legislative process for EC law in express terms. Other
important differences include the extent of automatic judicial
control, possible direct effect, rules of interpretation and loss
of national autonomy.
3.3 Where the UK opts in to a Title IV measure,
it will be bound by the new ECJ jurisdiction. The issue is what
happens when it does not do so. Where an international convention,
such as the Dublin Convention, is integrated as a measure under
Title IV, and the UK or Ireland does not take part (Denmark will
certainly take no part), the rights and obligations of these countries
as a matter of international law will be affected only if they
agree. The Convention could, for example, acquire a double status:
as an international treaty among those who do not accept it as
a Title IV measure so far as obligations between them and the
remaining EU countries are concerned; and, as a Title IV measure
so far as the obligations and judicial control of the obligations
between the other EU states are concerned.
3.4 Under Article 18 of the Dublin Convention,
where questions arise of application or interpretation of the
Convention, these are to be determined by an inter-governmental
committee. There is no other provision for settlement of disputes
or providing international remedies. Although Denmark, the UK
and Ireland could probably insist upon the Committee being maintained,
they probably could not prevent the other EU countries from superimposing
the additional level of judicial control emanating from Title
IV. This additional jurisdiction to the ECJ would give more extensive
remedies to asylum seekers and refugees in these countries. It
might, in these circumstances be argued by the "excluded"
states that this result could lead to shopping around by asylum
seekers and so undermine, and be possibly in breach of, the objectives
of the Dublin Convention.
3.5 In these circumstances, it would make sense
that some kind of re-negotiation takes place to ensure a consistency
of judicial control but this would require the UK overcoming its
present reluctance to accept ECJ jurisdictionin particular
references from national courtsover any measure which,
even in part, is inter-governmental. JUSTICE believes that the
decision on whether ECJ jurisdiction is necessary in these circumstances
should be based on certain fundamental principles, including the
need for consistent and uniform judicial control over EU-wide
measures and to protect the rights of individuals. This should
also be true in relation to ECJ jurisdiction over Third Pillar
3.6 The rules of direct effect developed by
the ECJ have related mainly to the Community treaties and to EC
legislation. Because jurisdiction over Third Pillar measures has
been so limited, the Court has not had the opportunity to rule
whether such rules are also applicable to such measures. There
appears to be no reason of principle why direct effect rules should
not be applicable to Third Pillar measures creating international
law obligations where such measures give clear and unconditional
rights to individuals but the question is certainly not settled.
Furthermore, in some Member States, individuals may, as a matter
of national law, be permitted to enforce those Schengen measures
which are translated into third pillar ones, but this would not
(in the absence of ECJ supervision being accepted) be required
in all Member States. This could further erode the uniformity
of European Union law.
Rules of interpretation
3.7 There are certain differences between the
rules of interpretation applied to international legal obligations
(now codified in Article 31 of the Vienna Convention on the law
of Treaties) and those developed in the jurisprudence of the ECJ.
The differences, however, are unlikely to be as important as the
possible effect of the provisions in the Amsterdam Treaty which
exclude Denmark, the UK and Ireland from being bound by interpretative
decisions of the ECJ. Given the deferences to the rulings of the
ECJ which has been established in national courts during the last
forty years, it is difficult to imagine that national courts in
these excluded countries would not regard rulings from Luxembourg
as highly persuasive. The rulings, however, would not be binding,
and so it could be more difficult and therefore more expensive
for the individual litigant to argue their authority.
Loss of autonomy
3.8 A final important distinction between international
law and EC law obligations is that international law looks only
to resultthat is the performance of the obligation assumed;
it does not further limit the law-making or treaty-making power
of the particular state. EC law, on the other hand, precludes
parallel domestic legislation or treaties which are capable of
affecting the Community rule (even if they have the same objective
and do not in fact prejudice that rule). This loss of autonomy
is among the main reasons why some Members States, like the UK,
have strongly resisted incorporation of obligations within the
EC legal order, preferring them to remain under international
law as an inter-governmental measure. This stance which is supposedly
for the benefit of their citizens has, however, the consequence
of creating a legal maze of great complexity.
4. THE SCHENGEN
4.1 With the UK having been a full player over
police co-operation in the Third Pillar up till now, there is
no obvious reason why this is likely to change post-Amsterdam,
though it may be less keen than others to see Europol develop
in the direction of an operational force. To move to a reduced
role after being a full partnerindeed, to some extent,
one of the leadersmight well be viewed as disadvantageous.
Nevertheless, incorporation of the Schengen Information System
(SIS) poses its own particular problems. JUSTICE is currently
undertaking research on this and will be publishing a report in
April 1999; this submission highlights some particular areas of
concern in relation to the SIS and individual rights.
4.2 The SIS is the most prominent instrument
of police co-operation devised under Schengen. It contains information
on persons and objects wanted by the signatory States or against
whom they want to warn the authorities of their neighbouring countries,
especially in relation to persons or vehicles involved in serious
crime. The system was reported to have a theoretical maximum of
eight million personal records and a further seven million records
on objects in 1995. Estimates produced at that time suggested
that it would handle roughly 2.5 million enquiries per year. The
1998 annual report reported that over 5.5 million alerts were
inputted during 1997.
4.3 Alongside the SIS is the Supplementary Information
Request at the National Entries (SIRENE) system that has been
described as the operational core of Schengen. Its principle purpose
is to provide police and immigration officers with a system to
exchange information additional to the rudimentary data on SIS.
It also, however, supports the freestanding exchange of information
permitted under Articles 39 and 46 of the Schengen Convention
in relation to prevention and detection of crime generally. The
operational structure for this system is set out in the confidential
"SIRENE Manual". This is not available in English and
has not been deposited in the UK Parliament as part of the Schengen
acquis. The categories of persons on whom data is exchanged through
SIRENE are the same as for SIS: individuals sought for extradition
purposes, third country nationals to be refused entry, missing
persons, witnesses and others summonsed to appear in criminal
proceedings, and individuals to be kept "under surveillance".
However, there are no limitations on the nature of the data exchanged
4.4 All persons wishing to enter the Schengen
territory must be subject to at least one check at the external
border in order to establish identity. Non EU nationals are subject
to more thorough checks, including a check against the SIS database.
In general, access to SIS has been reserved for authorities responsible
for border checks, other police and customs checks, and for those
responsible for the co-ordination of such checks. There is no
defined hierarchy of access; it is said that the system will only
operate effectively if all relevant users have equal and speedy
access. This point was taken up in a 1996 Court of Audit report
on the Dutch SIS. Whilst acknowledging that SIS data is potentially
of great value, it emphasised that the system depends on the integrity
of those who use it. More than 7,000 people are authorised to
access the system in the Netherlands; around 500 of these are
also authorised to change the data. The potential risk of unauthorised
access, unlawful disclosure and/or inaccurate information being
entered onto the database is therefore great.
4.5 It appears that no systematic records are
kept of action taken as a follow-up to a "match" occurring
with the database. It is therefore impossible to draw any conclusions
about the effects and benefits of the system as a whole.
4.6 Information collected and used by the police
originates from countless sources. This affects the reliability,
validity and veracity of the information which, in turn, affects
whether or not to record and circulate it within the various information
systemsSIS being just one of them. A particular issue that
arises from this complex process is that of "data laundering".
4.7 It emerged during the van Traa parliamentary
inquiry in the Netherlands which followed-on from several scandals
involving surveillance methods and undercover policing. The practice
involves the initial circulation of information via one or other
of the various channels available in the cross-border police nexus
and a later request for the same information via a different channel.
If (or when) the request is answered, it appears as confirmation
of the information which had been circulated in the first instance,
thus enhancing its apparent validity, reliability and veracity.
Since SIS operates in concert alongside other system of information
exchange there exists a complex of possibilities to hide the real
origin of (usually soft) information; and all the while to have
the face value of that information upgraded by multiplying the
number of apparent confirmations. This can produce a real risk
both for suspects and defendants.
4.8 Another point is the discretion left to
participating states in deciding upon the inclusion of personal
data in the SIS. Overall, a large margin of appreciation is given
in deciding what is meant by "serious offences", a "genuine
evidence" of intention to commit such offences; and "serious
ground for believing" that such offences have been committed
(all art. 98(2)(b)). This is compounded by the fact that the Dutch
audit report also found significant differences in criteria for
inputting data amongst the various agencies at the national level.
4.9 In principle Article 109 accords the right
of subject access for the purposes of verifying and correcting
inaccurate data or having it deleted. This is, however, subject
to the reporting State being given the opportunity to contest
the application, although the actual process of legal challenge
is left unclear. In addition, access can be denied on broad grounds
that to do so would undermine the performance of the legal task
for which the information was included, and will be refused in
all cases during the period in which (covert) surveillance is
4.10 The effectiveness of traditional data protection
safeguards in relation to the collection and dissemination of
intelligence data, especially internationally, is a matter that
JUSTICE considered in its recent report, Under Surveillancecovert
policing and human rights standards. We reached the conclusion
in relation to subject access rights, for example, that the broad
exemptions for policing purposes limits the right to such an extent
that it is largely illusory in practical terms. And, although
this may be justified in public policy terms, it nevertheless
removes a cornerstone of the data protection regime in an area
where the information held may even affect personal liberty.
4.11 In relation to judicial control, the SIS
is currently outside ECJ jurisdiction. Incorporation of the Schengen
acquis post-Amsterdam will diminish this judicial deficit
but to what extent will depend on the legal base allocated to
the SIS. This is still far from clear. The discussions vary between
a dual basis in the first and third pillar, a single legal basis
probably in the third pillar, or the SIS being maintained as a
4.12 Even then, there is a further question
whether the Treaty-makers of Amsterdam have hamstrung the Court
by inserting a clause to the effect that:
"The European Court of Justice shall have
no jurisdiction to review the validity or proportionality of operations
carried out by the police or other law enforcement services of
a Member state or the exercise of the responsibilities incumbent
upon Member States with regard to the maintenance of law and order
and the safeguarding of internal security."
4.13 This exemption is particularly important
in the context of the moves towards police co-operation across
a range of covert surveillance policing methods, as evidenced
by the provisions in the draft Convention on Mutual Assistance
in Criminal Matters, currently under discussion in the JHA Council.
Such operations raise questions as to the adequacy of judicial
control at national level, let alone, international level (see
JUSTICE's report, Under Surveillance). It is most unclear
what action taken by national law enforcement authoritieseven
if this is in support of Third Pillar co-operationwill
fall within this exception. It is also unclear whether it applies
to international bodies, such as Europol and the SIS, when they
act in support of the national police operation. Could it, for
example, result in national courts being left with sole responsibility
to decide cases that may well require interpretation of Third
Pillar legal instruments? The jurisdiction already given by 14
Member States to the ECJ can probably not be limited, but there
may be room for argument that the provision appears to run the
risk of taking away with one hand what has been given to the ECJ
with the other.
United Kingdom's position
4.14 The long standing nature of the status
of the liaison officer in European policing circles and the close
proximity of various data access terminals would seem to suggest
that information circulation is equally dependent on both formal
and informal access to the databases that exist and information
exchange generally. The current infrastructure for international
data transfer for the UK includes Interpol, Europol, the Customs
Information System and regional systems of co-operation, such
as the Cross Channel Intelligence Conference.
4.15 The formal link that the UK has with SIS
data flows from the Channel Tunnel Protocol (Protocol France
No. 1. 1992). Article 4 of this allows for permanent liaison
measures between operational police agents within the areas of
the fixed link. This means that French officers who have access
to the SIS are working directly alongside UK colleagues who do
not. Conversely, the UK police have direct access to the UK's
Police National Computers terminals on both sides of the fixed
4.16 The implications of the exchange of SIS-based
information between French and UK colleagues in this context raises
issues of judicial and data protection control on the UK side
which were recognised by the sub-committee in its 31st report
incorporating the Schengen acquis (paragraphs 150-153).
The Home Secretary's response is, in principle, reassuring in
that he promises that the "Government is committed to ensuring
full data protection rights to the SIS, should it decide to participate
in the System". But the linked question of ECJ oversight
of national data protection regimes when applied to a Community
or Union purpose continues to receive insufficient attention.
As we have indicated above, JUSTICE believes that the issue of
ECJ jurisdiction should be decided on the question of principle
of the need for uniform and consistent judicial protection of
supranational regimes, rather than on a case by case political
4.17 The present or potential links between
the SIS and Europol need to be clarified. The Home Secretary in
his reply to the 31st report (see above) states that Europol may
not currently gain access to the SIS. The Action Plan on Organised
Crime adopted by the Council on 28 April 1997 suggests that Member
States do indeed intend that Europol should have access to the
SIS (paragraph 25(e)). Has then a decision been taken to amend
Article 6 of the Europol Convention? If so, what are to be the
safeguards in terms of data protection?
4.18 JUSTICE is not in a position to comment
whether it is feasible for the UK to opt-in to either part of
the SIS or for policing purposes only. However, it would appear
that the SIS is set to develop and probably be the base for a
European Information System (see German Presidency's paper: Europe's
Path into the 21st Century). As the Director of NCIS, John
Abbott, said during evidence to the Committee (18 November 1999),
it is better for the UK to influence this development from the
inside, as it did with Europol. However, before making this decision,
the UK should insist upon a proper, up-to-date examination of
the SIS which covers questions such as the management of data,
impact on individuals and its overall effectiveness.
It appears that there is little or nothing to
prevent the UK from maintaining border controls whilst, at the
same time, participating in most Title IV measures. In fact, practical
considerations mean that there is probably no alternative to a
common immigration and asylum policy amongst all EU Member States.
It is therefore preferable for the UK to be involved to ensure
that such polices are fair and workable, and are subject to adequate
judicial control so as to ensure harmonised criteria and procedures
in practice. The alternative of separate systemsone under
Title IV and another mirroring it but bilaterally agreed with
the UK and Ireland (and Denmark)will result in considerable
confusion for citizens, who should be the beneficiaries of free
movement provisions rather than be faced by a legal labyrinth.