Select Committee on European Communities Minutes of Evidence

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 controls—that 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 travel.

  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 pages 42-44).


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 further below.

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 IV—failure 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 these areas.

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 negotiation—a 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.

Judicial control

  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 jurisdiction—in particular references from national courts—over 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 measures.

Direct effect

  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 result—that 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.


  4.1 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 partner—indeed, to some extent, one of the leaders—might 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 under SIRENE.

  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.

The data

  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 systems—SIS 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 taking place.

  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 Surveillance—covert 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.

Judicial control

  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 separate agency.

  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 authorities—even if this is in support of Third Pillar co-operation—will 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 link.

  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 basis.

  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 systems—one 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.

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