Select Committee on European Union Ninth Report

CHAPTER 7: united kingdom access to immigration data

135.  We have referred to our 1999 Report on Schengen and the United Kingdom's Border Controls.[94] That report concluded that retaining the United Kingdom's present frontier controls over passengers coming from Schengen States was not a long-term option.[95]

136.  Much has changed in the last eight years. Given today's climate of international terrorism, there is no likelihood of this country's frontier controls being diminished in the foreseeable future. For the purposes of this inquiry we have therefore proceeded on the assumption that these controls will be retained, and if anything strengthened.

137.  Since the United Kingdom maintains checks on its frontiers with other Member States and does not participate in the borders and visas rules of the full Schengen system, as things stand we will not have access to SIS II immigration data. At the beginning of this report we explained that the pooling of information, including immigration data, was a necessary pre-condition for the abolition of border controls. Does it follow as a corollary that the abolition of border controls is a necessary pre-condition for the sharing of immigration data? This is the question we address in this chapter. It raises questions of both law and policy.

138.  As we have explained,[96] the 1985 Schengen Agreement, the 1990 Convention, and the whole of the Schengen acquis became part of EU law by a Protocol annexed to the 1997 Treaty of Amsterdam. The United Kingdom (and Ireland) negotiated special provisions in that Protocol (Articles 4 and 5). It was on the basis of these provisions that in 2000 the United Kingdom applied to the Council for participation in the part of the Schengen system dealing with police and criminal cooperation, and approval was granted.

139.  It has been accepted as a matter of law by the legal services of the Council and the Commission, and by the Government's own legal service, that these provisions do not allow the United Kingdom to participate in the provisions concerning the alerts under Article 96 of the Convention (non-EU citizens who should be denied entry to any of the Schengen States).[97] This is the reason why the United Kingdom has never even applied to participate in those provisions. The Home Office told us that the Government accept that they have "no right to access immigration data for immigration purposes given that we have not acceded to the border control aspects of Schengen." (p 119)

140.  On the question of policy, the view of the Schengen States seems to be that the United Kingdom should not have access to SIS II data when it does not participate in the entirety of Schengen; they believe that a common list of persons to be denied entry to multiple Member States only has relevance if there is freedom to travel without border checks between those Member States. Other witnesses have also highlighted issues of principle and proportionality. Professor Kees Groenendijk expressed doubts about the fairness of the United Kingdom using "the system against certain
third-country nationals without giving the large group of third-country nationals the advantage [of free movement]." (Q 103) Professor Elspeth Guild expressed the position on behalf of ILPA in more forthright terms: "… if there is not the right of free movement without a border control there is no justification for access to a flanking measure to limit free movement, and therefore the UK should not have access to the SIS unless or until it is willing to lift its internal border controls with the other Member States." (Q 105)

141.  We do not think this is true in the case of decisions on the issuing of alerts under Article 96 which are "based on a threat to public policy or public security or to national security which the presence of an alien in national territory may pose".[98] We have therefore considered whether the United Kingdom should not have access to these alerts for the purposes of policing, and for other law enforcement purposes.

142.  The Government stated in their written evidence that "there may be operational merit in accessing and exchanging entry refusal data contained in the SIS II for purposes other than border control". (p 119) Mr Rob Wainwright, the head of the International Department at SOCA, agreed, and thought that "the United Kingdom, notwithstanding the fact that we are retaining our border controls … should have access to the relevant part of the Article 96 database that concerns the movement of suspects of interest to us in terms of organised crime or counter-terrorism". He said that if it were possible, technically and administratively, to differentiate within the database between information there purely for immigration control purposes and information there for the control of suspects entering the EU, then "we certainly would want to access the latter, and we have been arguing the case for a technical solution to be brought to bear as part of SIS II that can allow us to participate in that way." (Q 203)

143.  This position received some support from the Commission. Mr Faull did not resile from the position that "the United Kingdom not being part of the Schengen area should not have information relating to entry for the sole purpose of regulating entry because [it] has other arrangements in place regarding entry to its territory". But he felt that the United Kingdom and Ireland had contributions to make to the overall security of the European Union, and the other Member States likewise had contributions to make to the security of the United Kingdom and Ireland. There was a general perception that "the wider security implications of some of this information need to be taken into account". And, most significantly, "by making the proper distinction between the uses to which information is put ad hoc solutions can be found".(QQ 428, 429)

144.  This solution would depend on it being technically feasible for SIS II to distinguish between alerts on unwanted aliens for public policy, public security and national security purposes, and those based solely on immigration. Mr Huybreghts, when asked whether it was currently possible for the system to differentiate between these alerts, told us that it was not. (Q 375) We note however that the Commission's proposal for the SIS II immigration Regulation assumed that such a differentiation would be possible.[99] We think therefore that there is every reason for the Government to investigate whether it would be technically feasible to devise the future system so that it can differentiate between Article 96 alerts according to the use to which the information is to be put. Moreover it seems to us plain that this is a matter that should be looked at as soon as possible, while the future system is still in its relatively early stages. It would be doubly unfortunate if a way was found of adapting the system, but too late for this to be put into practice.

145.  An obvious issue which arises if the United Kingdom seeks to gain access to SIS II immigration data is the data protection standards which would apply. Clearly, it would be inappropriate (and probably unlawful) for the United Kingdom to seek access to that data unless it guarantees to uphold the same data protection standards as other Schengen Member States. Equally, this country would have to satisfy all the same procedural safeguards as the full Schengen States (such as the right of appeal against a SIS II listing, and the obligation to conduct an individual assessment) and the same data processing rules (such as the ban on the transfer of SIS II data to third countries).

146.  A specific approach should be taken on access to SIS II immigration data by asylum authorities. Since the United Kingdom is a full participant in EC asylum legislation, and since SIS II could make a limited contribution, subject to the necessary safeguards discussed above,[100] to the implementation of that legislation, there is a case for United Kingdom asylum authorities having access to asylum data. But given the need to adopt separate safeguards specific to the field of asylum, it would be preferable to regulate this issue by means of detailed amendments to EC asylum legislation. This would also permit our full participation in these rules, as they would constitute an amendment to legislation in which we already fully participate.

147.  The United Kingdom pays the same full contribution to the costs of the current SIS and the future SIS II that we would pay if we shared all the information on the system. (Q 28-31) This seems to us an extraordinary situation; plainly it cannot continue. We are not arguing that the United Kingdom should pay a reduced contribution, but that we should receive the information to which our full contribution entitles us.

148.  We accept, as do the Government, that the position under the Amsterdam Treaty is that the United Kingdom cannot have access to all SIS II immigration data as long as it retains its border controls. However the contribution this information can make to the overall security of the European Union needs to be taken into account. We hope that when amendments to the EC and EU Treaties are next negotiated the Government will seek to persuade our partners of the benefits, to them as well as to us, of securing amendments to the relevant provisions.

149.  In the meantime, Ministers should persuade their colleagues from the Schengen States that police and other law enforcement bodies in the United Kingdom must have access to other Member States' immigration data relating to the criminality of the individuals concerned. In return, the United Kingdom would make available to other Member States its own data on individuals who are undesirable due to their criminal activity.

150.  Time is of the essence. These recommendations rely on it being technically feasible to distinguish between alerts on unwanted aliens for public policy, public security and national security purposes, and alerts based on immigration control purposes. The sooner attempts are made to resolve these technical problems, the more likely they are to succeed.

151.  To help the United Kingdom and its EU partners in their joint fight against terrorism and serious crime, the Government must therefore press ahead with representations at the highest levels.

94   Paragraph 8 above. Back

95   Paragraph 46 of the 1999 report. Back

96   Paragraphs 15 et seq, above. Back

97   This was also the view of Mrs Laura Yli-Vakkuri, then chair of the Schengen Acquis Working Party: QQ 506-507. Back

98   The parallel provision for SIS II is Article 24 of the Regulation. This is not in identical terms, but the differences do not affect our argument.  Back

99   See Article 18 of the Commission's original proposal, COM(2005)236. Back

100   See paragraphs 102-107 above. Back

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