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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