CHAPTER 5: the united kingdom's position
66. As we explained in Chapter 1, in 1997 the United
Kingdom and Ireland secured an opt-out at Amsterdam from the requirement
to remove frontier controls at their borders with other Member
States. The rationale for this position, adopted by successive
governments since 1986, and restated by Lord Filkin in his evidence
to us,[78]is
that the British Isles' island geography makes it much more effective
to check passengers' admissibility at the limited number of ports
of entry than to rely on controls at the more porous external
borders of the Community; and that removal of these controls would
make it necessary to rely on more intrusive internal controls
supported by some form of identity card system, which has traditionally
been resisted in this country.
67. In our report Schengen and the United Kingdom's
Border Controls in 1999 we examined the Government's arguments
for maintaining systematic frontier controls on all persons entering
the United Kingdom.[79]
We were unconvinced that such controls were the most effective
use of resources to control illegal immigration. We said then:
"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."
68. In our view developments in the intervening period
have demonstrated the increasing difficulty of maintaining the
Government's position. Until recently they took the view
that retention of the United Kingdom's frontier controls at its
borders with other Member States made co-operation on external
border security less of a priority. But a growing realisation
that the United Kingdom and Ireland could not insulate themselves
from the effects of an area without internal frontiers has led
to a shift of emphasis, signalled most notably by the Prime Minister's
initiative before the Seville European Council.[80]
69. With enlargement, the position of the United
Kingdom and Ireland will no longer even be geographically unique,
since as islands Cyprus and Malta will be in the same position.
However, they, like the other accession countries, will be required
to apply the full Schengen acquis.
70. The Government have made it clear on numerous
occasions, however, that they intend to maintain controls at the
United Kingdom's frontiers with other Member States, and to ensure
that the opt-out secured at Amsterdam is retained in the new Treaty.
71. We received evidence that showed clearly that
the United Kingdom has been to the fore in engaging in practical
co-operation with other Member States on a bilateral and multilateral
basis in many of the operations described in Chapter 3, and, as
we have already said (paragraph 50), we welcome that. But the
United Kingdom finds itself in an increasingly awkward position
in seeking to reconcile its retention of internal frontier controls
with more active participation in integrated border management
at the EU's external border. As we have already explained, the
rationale of integrated border management at the external border
is to compensate for the removal of internal frontier controls.
The Government's active participation in these measures makes
it increasingly difficult to argue convincingly that the United
Kingdom needs to retain its opt-out from Schengen.[81]
[82]
These difficulties can only increase. Several witnesses referred
to the importance of trust in operating external frontier controls
across the enlarged EU.[83]
However, we have no reason to doubt that the United Kingdom's
contribution to operational co-operation is valued by its partners,
even though it maintains a second line of defence at its internal
borders.
72. The United Kingdom is likely to face other difficulties
arising from an intensification of common border management. One
relates to financial burden-sharing. We noted above (paragraph
51) that there is general agreement within the EU that the burden
of controlling the external borders of the EU should not fall
disproportionately on those Member States responsible for the
longest sections of them. Despite having in the past been resistant
to proposals for burden-sharing, the Government now accept the
case for it, although they still seem to have an unrealistically
narrow expectation of what is likely to be involved. Mr Hain said
that burden-sharing "could include, for example, intelligence-led
joint operations and the provision of some experts and some training";[84]
and Lord Filkin similarly suggested that burden-sharing "may
be in kind rather than in cash, rather than there being a pooled
budget".[85]
73. At the time of writing the Commission had not
brought forward detailed proposals for a financial burden-sharing
mechanism, but in its June 2003 Communication it outlined the
general principles that it proposed should apply.[86]
It confirmed as the four main criteria to be taken into account
in evaluating the burden of each Member State:
- the geographical situation of a Member State
and the nature of the borders;
- the migratory pressure at the different types
of border (land, sea and airport);
- the number of checks carried out on persons entering
and leaving the Schengen area; and
- the quality standard of controls and surveillance
at external borders, as measured by the common risk analysis method
applied at each type of border.[87]
74. In his evidence to us Mr Faull explained, as
does the Communication, that the Community contribution would
always be supplementary to the effort being made by the country
concerned.[88]
Nevertheless it is clear that in the longer term substantial expenditure
is envisaged: the Communication concludes (page 17) that the principle
of solidarity is "of major financial importance" and
"should be reflected in budgets within the new post-2007
financial perspective".[89]
Moreover, the draft Constitutional Treaty includes specific provision
in the Title dealing with an Area of Freedom, Security and Justice
for the "principle of solidarity and fair sharing of responsibility,
including its financial implications, between the Member States".[90]
Although the precise long-term financial implications are unclear,
there is no doubt that burden-sharing will go far beyond operational
co-operation, and the United Kingdom will have no choice but to
pay its full contribution to the external frontier regime through
its contribution to the Community budget, while at the same time
meeting the cost of retaining its internal frontier controls.
75. Another potential problem for the United Kingdom
presented by the establishment of a European Border Guard arises
from the fact that most other Member States' border guards operate
as a uniformed police force and typically possess police powers.
The United Kingdom's Immigration Service is a civilian body that
is an integral part of the Immigration and Nationality Directorate
of the Home Office and directly responsible to the Home Secretary.
It may be difficult for the United Kingdom to participate fully
in joint operations with other Member States' border guards without
the powers and a structure akin to theirs. Lord Filkin acknowledged
this in telling us that in joint operations United Kingdom immigration
officers have a "secondary role" because of their civilian
status.[91]
This may be unavoidable. We have received no representations in
favour of a reorganisation of the Immigration Service on a continental
model, nor do we recommend one.
76. Short of becoming a full Schengen member, the
Government could demonstrate their commitment to the development
of common standards at the external border by adopting the common
manual on checks at external borders. This is one of the key means
of promoting common standards and procedures, and its application
by the United Kingdom would ensure that our procedures were closely
aligned with those of the Schengen States without requiring full
participation in Schengen. In oral evidence the Home Office said
that the differences between the common manual and UK procedures
were "reasonably slight" and it was something they could
look at, but that in practice it would be "extremely complicated"
to apply the common manual.[92]
We do not understand why this should be if the differences are
slight and we urge the Home Office to review its position. The
Commission is currently revising the manual,[93]
and it would be an opportune time for the United Kingdom to reconsider
adopting the manual. If the Government continue to maintain
controls at the United Kingdom's borders with other Member States,
they should consider the possibility of adopting the common manual
on checks at external borders.
78 Q 106. Back
79
1998-99 7th report, HL Paper 37. Back
80
See paragraph 27. Back
81
As Professor Guild put it in evidence, "This is a contradiction
in terms of the Community legislation in the field, in that the
whole idea of these increased controls is about compensating for
the abolition of controls elsewhere" (Q 162). Back
82
We have criticised in other contexts the Government's "pick
and mix" approach to participation in Title IV measures,
which derives from a separate protocol agreed at Amsterdam: see,
for example, our report, A Common Policy on Illegal Immigration
(37th Report 2001-02, HL Paper 187), paragraph 54. Back
83
Dr Guiraudon put it as follows: "Trust, which lies at the
basis of interstate cooperation can only be developed if all parties
feel they are treated equally and enjoy the same rights and obligations.
The fact that new member states cannot "opt-out" or
selectively "opt-in" as the UK does can only be detrimental
to trust-building" (p 90). Back
84
Q 100. Back
85
Q 131; see also Home Office evidence, p 38. Back
86
On the development of a common policy on illegal immigration,
smuggling and trafficking of human beings, external borders and
the return of illegal residents COM(2003) 323 final, 3 June
2003. Back
87
Page 15 of the Communication. Back
88
Q 208. Back
89
The Commission estimates that for the period 2004-2006 €140
million will be required to meet additional needs in the immigration
field, including protection of external borders (page 18 of the
Communication). Back
90
Article III-164 (CONV 725/03). Back
91
Q 121. Back
92
Q 107. Back
93
Q 194. Back
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