Examination of Witnesses (Questions 540-559)
Joan Ryan MP, Mr Jonathan Sweet, Mr Mike Fitzpatrick
and Mr Kevan Norris
29 NOVEMBER 2006
Q540Chairman: Minister, good morning and thank
you for coming to give evidence to us again. As you probably know,
we have just returned from Brussels where we had two days taking
evidence on this subject of SIS II. Some of our questions may
relate to what we heard in Brussels but for the most part we shall
stick to the list of questions that you were given. This meeting
is on the record and is being broadcast. I think you are our last
witness in our inquiry into Schengen II. May I also welcome your
colleagues: Jonathan Sweet, a longstanding friend of this committee;
Mike Fitzpatrick; and Kevan Norris. Is there anything you want
to say to start or should we go straight into questions?
Joan Ryan: We can go straight into questions.
Q541 Chairman: Can I first ask about
the UK challenges in the Court of Justice on UK participation
in EC borders legislation and ask you what is the current status
of that?
Joan Ryan: Your Lordships will clearly know
that we have challenged the fact that the UK has not been allowed
to participate in the European Border Agency Regulation and in
the Passport Regulation. At the moment, we are at the point where
these cases are currently with the European Court of Justice.
I think we had reached the point where all written information
and statements have been submitted. We are now waiting for a hearing.
Q542 Chairman: May I interrupt you?
If I heard you right, you said that the UK is not permitted to
take part, but surely it is our choice, is it not, not to take
part?
Joan Ryan: The reason that we have not been
allowed to participate is because these two Regulations, these
two areas, have been seen as Schengen building measures. Of course,
we do not participate in all of Schengen and we are not going
to drop our borders. As this is seen as a Schengen building measure,
that is what we are challenging. What we are saying is that we
should be able to participate in European Border Agency Regulation;
we already work with other European Union members on border issues
and we should be able to participate in the Passport Regulation.
Our citizens cross what would be the Schengen border as anyone
else, and we are working alongside the European Union in development
of our passport. We can see no justification for us not being
allowed to participate or for these two measures being seen purely
in terms of a Schengen building measure.
Q543 Chairman: Where does the case
stand at the moment? What are the prospects?
Joan Ryan: I am not sure I can really answer
that. Obviously we think we have a reasonable prospect.
Q544 Chairman: Do we have any idea
of the timetable for the case?
Mr Norris: As the Minister said, the written
procedure is closed and we are now waiting for a hearing date.
Written procedure was closed in April of this year. We have not
yet been given a hearing date but I would expect it to take place
in the first part of next year with a judgment maybe six months
after that.
Q545 Lord Marlesford: Minister, it
would be very helpful if you would be kind enough to spell out
exactly what it is we are not being allowed to do and in practical
terms how that adversely affects British national interests.
Joan Ryan: In terms of the European Border Agency
issue, currently for instance we are working with Spain, Italy
and Malta around issues of Libya being used as a transit country
and the issues of the porous nature of the southerly border, which
will be the Schengen border. We are all working together there
to address those issues. On the basis of doing that kind of work
with our partners in the European Union, we think it is not acceptable
that we are not part of this Regulation. We already work together
with our other partners. There seems no sensible reason why we
should not be allowed to continue to work closely together on
Border Agency issues.
Q546 Lord Marlesford: I am sorry,
Minister, I did not make myself clear. I understand the point
you have just made because you have already made it. What I do
not understand is what, in practical terms, effect this has on
the United Kingdom and our national interests.
Joan Ryan: I will ask one of the officials to
speak in a moment. From my own point of view, my understanding
is that with measures such as the one I have described, we need
to be part of discussions and planning and have all the information
available around issues such as the one I have outlined because
we are affected by that. When people attempt to come in illegally
through the border at that part of the European Union, they do
not just stay there; they work their way up towards the northern
states. We are affected by those kinds of issues. We want to be
involved at the very heart of dealing with those issues. This
Regulation, as I understand it, puts limits on the level of our
involvement.
Mr Norris: As the Minister has said, provision
is made in the Border Regulation for co-operation with the UK.
I think the other Member States have recognised that our participation
and co-operation relating to border control is important and valuable,
but because we were not allowed to participate in the Regulation,
we do not have full status. For example, we do not have a representative
on the management board of the European Border Agency. The management
board sets out the programme for the agency. Although in practice
we can participate in some of the activities of the Border Agency,
we do not have full membership. It is a kind of half-way house.
We think that is unacceptable and unnecessary in legal terms.
Q547 Lord Marlesford: What is the
practical result?
Mr Norris: The practical result is that, although
we can participate, we have to make requests to participate. Those
requests are subject to agreement by the management board. They
can refuse. Also, because we do not have a representative on the
management board, we do not have the same voice as the other Member
States who do participate. It is not that we have been excluded
practically altogether but we do not have the full membership
status as do the Schengen Member States.
Q548 Chairman: Does the access that
we want from SIS II include alerts on refusal of entry? Does it
include some portion of those alerts for instance for someone
with criminal convictions and presumed criminal activities? Is
that part of our challenge?
Joan Ryan: We have law enforcement access but
we do not have access to immigration information within Schengen
SIS II. We are asking that where data is available for those refused
entry to the Schengen area who are said to be a threat to public
policy or public security or to national security, we should have
that data because that relates to law enforcement if they are
refused for the reasons I have given. We also think that where
there is data on those refused entry to the Schengen area who
have been subject to measures involving deportation or refusal
of entry or removal, if that information is available to other
Member States, it should be available to us because it applies
to asylum issues and we participate in asylum issues within the
European Union. So we want access to that information.
Q549 Chairman: When we originally signified
our opt-out to parts of Schengen, did we specify that these were
things that we opted out of or did we express our interest in
opting in to them?
Joan Ryan: We accept that, as we are not participating
in dropping our borders on some of the immigration side of Schengen
in that way, some data we do not have access to, but on law enforcement
and asylum issues, we do not accept that. I do not think we ever
did specify that we did not want certain things. I think we have
mostly been in the position of arguing for the things that we
do want rather than talking about the things we do not want.
Q550 Lord Avebury: My question goes
back to an earlier issue we were discussing. That is that if we
do not have any say in the amnesty that has been granted by some
European countries allowing large quantities of people to remain
within the European Union, have we found in practice that this
affects us directly in that, for example, when the 700,000 people
were given an amnesty in Spain, some of them would finish up in
the United Kingdom later on? Is that one of the reasons why we
need to have a say in these issues?
Joan Ryan: I think that strikes me as a very
good reason why we should have a say in these issues. There was
a discussion on these grounds at the informal Justice and Home
Affairs meeting in Tampere in Finland in September. A lot of Member
States around the table get very upset at other Member States
giving amnesties because they feel it is a very strong pull factor
and it does not help us as a European Union together in trying
to deal with these issues. I think there is merit in the point
you have made and it is certainly one we would recognise.
Mr Sweet: May I add that I am not sure that
there is any particularly important strong pull factor in relation
to people coming specifically to the United Kingdom as a result
of mass regularisations of the sort that have been described.
As the Minister said, it is clearly a concern for all Member States
generally and a number of other EU Member States have actually
engaged in this discussion precisely because they are worried
about the potential movement of people from one Member State where
they, say, might have been regularised into others. That is obviously
particularly true for those who have contiguous land borders.
Q551 Chairman: Can I ask a question
that will probably apply to quite a number of questions we ask?
Is the Irish position identical to ours and is the Irish wish
list the same?
Mr Sweet: Essentially it is, yes. The policy
that has developed in relation to these issues, in part because
our relationship with Ireland and the common travel area, means
that essentially their policy approach on these issues mirrors
ours.
Q552 Lord Corbett of Castle Vale:
Minister, your colleague Mr Norris said that one of the practical
effects is that when we want to access information on the immigration
side, we have to make requests to the management board. How many
times have requests been refused, if that has been the case, and
can you give us a couple of examples of what we were not allowed
to have if that has happened?
Joan Ryan: I am not sure I have a practical
example for you.
Q553 Lord Corbett of Castle Vale:
Have any requests been refused by the board?
Mr Sweet: I am not sure that there is an example.
Q554 Lord Corbett of Castle Vale:
Has the board on occasions said, "No, you cannot have it"?
Joan Ryan: This has not happened yet.
Mr Sweet: This is in relation to operational
activity that the borders agency is undertaking and projects of
one sort or another. On those occasions to my knowledge where
the UK has asked to participate in those joint operations, it
has always been able to do so. We have not, to my knowledge, had
an occasion where the UK has requested the opportunity to participate
in a joint operation and it has been refused. I think most Member
States recognise that the UK has a great deal of practical experience
that it can offer to these sorts of exercises.
Q555 Lord Corbett of Castle Vale:
I am sorry to pursue this but it was given as an example in response
to Lord Marlesford's question as to what are the penalties for
us not being wholly in it. In practice, the management board issue
does not matter, does it, in that sense?
Joan Ryan: It has not so far in a sense, but
that does not mean it would not in the future.
Q556 Lord Corbett of Castle Vale:
I understand that.
Joan Ryan: Also, it does not in any way take
away from the fact that we feel in principle we should be allowed
to participate in this way.
Q557 Lord Corbett of Castle Vale:
It is also a two-way street, is it not? We have information which
would be useful to some of our partners from our own experiences?
Joan Ryan: Yes, indeed.
Q558 Baroness D'Souza: Minister,
to what extent has the Government already arranged, or is planning
to arrange, access to those alerts other than through the SIS
II system? In particular, what are the provisions of any agreements
or informal arrangements with Member States to obtain access to
such alerts?
Joan Ryan: At the moment, that is something
we are looking at. The Government will explore alternative methods
of sharing information on third country nationals who are refused
entry for security purposes. We will look at mutual information-sharing
agreements with other Member States, possibly through a bilateral
exchange of information, but at the moment that is something we
are looking at and hoping to make some progress towards some firm
ways forward that we can pursue with other countries. We are no
further than that at the moment.
Q559 Baroness D'Souza: When might
you expect to arrive at those agreements or is that really pushing
it?
Joan Ryan: I do not have an answer to that at
the moment. As I say, we are just starting to look at that as
a way forward.
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