House of Lords - Correspondence with Ministers October 2006 to April 2007

Correspondence with Ministers October 2006 to April 2007 - European Union Committee Contents

BORDER SECURITY: RAPID BORDER INTERVENTION TEAMS (RABITS) AND STRENGTHENING SOUTHERN MARITIME BORDERS (11880/06, 11881/06, 16126/06)

Letter from the Chairman to Joan Ryan MP, Parliamentary Under-Secretary of State, Home Office

Sub-Committee F of the House of Lords' Committee on the European Union examined the proposed Regulation establishing Rapid Border Intervention Teams (RABITs) (11880/06, 11881/06) at a meeting on 18 October 2006. This proposal raises various important issues on which we would like to receive your comments. These issues include the justification of the proposal, the extent of the powers given to guest officers, the accountability mechanism, and the UK's likely participation in the proposal, as well as its current involvement in FRONTEX joint operations.

JUSTIFICATION OF THE PROPOSAL

The European Borders Agency (FRONTEX) is at the early stages of its operation and an evaluation of the functioning of the Agency and the implementation of its tasks is not due until 2007. With its operations not yet evaluated, it would appear premature to call for an amendment of the existing framework. Indeed, this apears to be your position too. In your Explanatory Memorandum to the Commmission's Communication on policy priorities in the fight against illegal immigration (document 11881/06) you state, with regard to the proposal to establish RABITs, that "FRONTEX should be given time to develop its operational role before consideration is given to broadening its remit". We support this argument and would be interested to hear whether other Member States share your views that any talk of extending the Border Agency's remit is premature.

Moreover, we are not persuaded by the Commission's argument that the current framework is inadequate to address the situations of particular migratory pressure faced by Member States. Why for instance should the Joint Support Teams, which pool officers of Member States' national border guards for the purpose of participation in joint operations organised by the Agency, not be adequate for crisis situations?

EXTENT OF BORDER GUARDS' POWERS

We are particularly concerned by the provisions in the proposal on the exercise of executive powers by guest border officers in all FRONTEX joint operations, not just those involving RABITs. The Regulation would grant guest border officers very substantial powers, effectively equating them with border guards of the host State. They would be empowered to check travel documents and the identity of persons wishing to cross the border, interview them and refuse entry. They would also be able to "prevent illegal crossings". These are far-reaching powers and rules on applicable law and jurisdiction and the remedies available to individuals who are wronged by the exercise of these powers should be clearly defined. We would particularly object to powers being given to "prevent illegal crossing" in the absence of an understanding of what "prevention" means in this context and what such power implies.

ACCOUNTABILITY

The draft Regulation strengthens the role of the Executive Director, who decides on requests for deployment of a RABIT. However there has been no corresponding strengthening of the accountability mechanism. While it is provided that his decision is to be notified to the FRONTEX Management Board and reasons of this decision given, the draft Regulation does not contain any detailed provisions on reporting on RABIT operations—presumably the FRONTEX limited framework consisting of the production of an annual report will apply here as well. This is regrettable. Discussions over the extension of the Agency's remit in the context of the current proposal should include a review of the mechanisms for ensuring proper scrutiny and accountability of both RABITs and other FRONTEX joint operations.

THE UK POSITION

Given the pending challenge to the UK exclusion from the FRONTEX Regulation, we understand that it is not clear yet whether the Government will be allowed to opt into the draft Regulation. Would the Government be interested in doing so? We further note that, regardless of its participation in the Regulation, the provisions on executive powers of guest officers participating in FRONTEX joint operations would also apply to guest officers of the UK when they participate in such operations. We would be grateful for detailed information on the extent of the UK's participation in FRONTEX joint operations to date and the assessment it has made of them so far.

The Committee has decided to keep document 11880/1/06 under scrutiny pending receipt of further information. Document 11880/06 has been superseded and will be cleared.

18 October 2006

Letter from the Chairman to Joan Ryan MP

Sub-Committee F of the House of Lords Committee on the European Union examined this communication (16126/06) at a meeting on 31 January 2007.

The Committee welcomes the attention given to this area. We note that the Commission has put forward a heavy agenda of measures. They appear to us to push the development of an integrated management of the EU external borders perhaps even beyond what should remain within the responsibilities of Member States. We will examine carefully the specific proposals as and when they emerge. We find it somewhat frustrating, however, that a document dealing with a matter of such importance should not include more quantitive data that would allow for a meaningful assessment of the dimension of the challenge and the issues at stake.

We understand that there are many difficulties with EU operations to manage the Union's southern maritime borders which have yet to be resolved. Those of a legal nature seem to evolve around the lack of clarity of the applicable rules for operations that take place outside the jurisdiction of Member States, and which involve staff seconded by Member States to act as border guards. Given the drive to extend these surveillance and interception operations at the external borders, would it not be desirable that they take place on the basis of clear rules regarding the applicable law and jurisdiction?

With regard particularly to FRONTEX, you write that the Government "believes that it has done well in its first year of operation". We would be interested to know what the basis for this assessment is, given that an evaluation of operations and other activities carried out by the EU Border Agency has yet to be carried out. You further inform the Committee that the Government has contributed to FRONTEX both financially and through staff secondments and participation in operations. Could you tell us what the number of UK staff recruited to FRONTEX is and what the UK's participation in FRONTEX operations so far has consisted of? Also, what were the practical outcomes of such operations?

We wrote to you on 18 October 2006 in relation to the proposal for the establishment of Rapid Intervention Border Teams (document 11880/1/06) asking, amongst other things, for information on the UK's involvement in FRONTEX operations. We have yet to receive a reply to that letter. I would be grateful if you could promptly address the issues we have raised both in this letter and the earlier one. In the meantime we will keep this document under scrutiny.

2 February 2007

Letter from Joan Ryan MP to the Chairman

Thank you very much for your letter of 2 February. I am glad to hear that the Committee welcomes this Communication. It is clear from last summer's events that coordinated activity is needed to address illegal migration to the EU's southern maritime border.

Regarding the first of your specific points, I entirely agree that operations outside the jurisdiction of Member States but which involve staff seconded by Member States should take place on the basis of clear rules regarding the applicable law and jurisdiction. I await the European Commission's study on the International Law of the Sea with interest, and hope it can clarify this issue.

You also asked me to elaborate on the comment I made in the Explanatory Memorandum on this Communication that I thought the European Border Agency, Frontex, had done well in the first year of its operation. I completely agree that Frontex activities must be properly evaluated. As you are no doubt aware, Frontex will be formally evaluated later this year. My judgment was simply an informal perception based on UK participation in Frontex operations and experience of Frontex's Management Board Meetings. Frontex is a very new organisation, and still quite small for the amount of expectation it must bear. It ran a number of operations in its first year, as well as building up its intelligence capacity and conducting a range of training courses for Member States' border officers. The operations are internally evaluated and the results fed back into planning processes. Frontex's annual report, likely to be issued in March, will provide a further source of evaluation.

You also asked for details of Frontex activities that the UK has participated in. Please find this attached. Regarding outcomes, which you also asked about, UK involvement in Frontex operations gained us much useful intelligence on patterns of illegal migration in other parts of Europe. UK staff have been able to assist colleagues working at the EU's external borders to establish nationality and identity of illegal migrants by drawing on their own experience. Our seconded national experts have been able to share their knowledge of migration risk analysis and expertise in the control of air borders and have been able to advance proposals for Frontex operations. UK-based staff have made a particular contribution to the delivery of a common training programme for border guards, providing much of the material on forgery detection and ensuring that the modules are presented and delivered in English, which is the common language of Frontex and of European border guards.

Finally, please accept my apologies for not having replied to your letter of 18 October. The proposal establishing Rapid Border Intervention Teams is very complex. It is being considerably revised during its passage through the Brussels working group process and we are still considering the implications for the UK. I hope to send you a response to that letter very soon.

22 February 2007

Annex A

UK PARTICIPATION IN FRONTEX OPERATIONS

The UK role in Frontex operations has so far consisted of:

Operation Torino February 2006:

Medsea and Bortec support groups May-July 2006:

Operation FIFA June 2006:

Operation Poseidon June-July 2006:

Operations Agios and Gate of Africa July-September 2006:

Operation Hera 1 August 2006:

Operation Support to Malta September 2006:

Planning expert October 2006:

Operation Amazon November 2006:

Operation Agelaus February 2007:

The UK has also participated in several Frontex training activities:

— Common Core Curriculum—development of training packages for border guards in a variety of areas.

— Frontex Risk Analysis Network—developing risk analysis and intelligence.

— Returns—developing best practice on returns.

— Partnership Academies—Partnership academies are formed between Frontex and Member states to aid training for EU border guards. The UK has agreed that UK border control officials based in Dover will act as a Partnership Academy focusing on training in detection technology.

The UK also has two seconded national experts in Frontex, one based in the air borders section and one as a special advisor to the Executive Director.

Letter from the Chairman to Joan Ryan MP

Thank you for your letter of 22 February which Sub-Committee F of the House of Lords Select Committee on the European Union has examined at a meeting on 28 March 2007.

We are grateful to you for giving us an idea of the extent and the nature of Frontex operations and the UK's involvement in them in the list you have provided. The list, however, does not include any figures and specific information which would allow us to make even a basic assessment of the impact of these opereations. We are not told, for instance, how many false documents were detected as a result of these operations. How many migrants were intercepted at sea? What were their nationalities? Where were they returned to? How many of those intercepted were asylum seekers? It might be that this information is contained in the Frontex Annual Report which is to be issued shortly. If this is the case, we would expect the Report to be deposited for scrutiny. Could you confirm this or provide us otherwise with the figures and detailed information concerning the operations so far carried out?

With regard to the proposal for the establishment of Rapid Border Intervention Teams (RABITs), it is regrettable that the Government has not only failed to respond to my letter of 18 October, but to send an EM for a revised draft of the proposal deposited in November (document 15745/06) and an EM for another revised draft deposited in February 2007 (document 6613/07). Whatever the reason for the delay to the EMs, we find it incomprehensible not to have received a reply to a letter written over five months ago. The handling of this dossier is deplorable, particularly since you are well aware that it is a priority dossier for the German Presidency and likely to be agreed at the Justice and Home Affairs Council on 19/20 April. We are very disappointed that these delays have undermined scrutiny of a proposal of great significance and one which, although the UK is not party to it, the Government is very keen to support. If, as it seems, the proposal will be agreed at the April JHA Council, there will be no time to clear the original document from scrutiny, nor indeed will there be time for meaningful scrutiny of the revised drafts.

We will retain this document under scrutiny pending receipt of further information.

28 March 2007

Letter from Joan Ryan MP to the Chairman

Thank you for your letter of 28 March regarding the above dossiers. I apologise for taking so long to reply to your first letter of 18 October and for the delay in depositing an Explanatory Memorandum (EM) on the revised RABITs Regulation drafts. I very much regret the delays in handling of this dossier which have led to reducing the time available for scrutiny. There are a number of reasons for this, the main ones being the complex and changing nature of the text and the UK's complex legal relationship to this proposal—where a Regulation in part amends another Regulation from which we are excluded but participate operationally. The text altered six times in a six week period. This meant that even as one draft was completed and the corresponding EM was being prepared, the proposal was swiftly and substantially revised, and a new draft published. This, in turn, required careful reconsideration of the new draft, its implications and the UK position, and revision to the EM.

I am aware of the priority the German Presidency is giving to this dossier. The Presidency have advised that the draft RABITs Regulation will be voted on at the LIBE committee on 10-11 April, put to COREPER on 17-18 April, a general approach sought at the JHA Council 19-20 April plus a state of play report, to the EP for adoption on 25 April and then to the 21-22 June Council for adoption.

We remain supportive of RABITS and UK participation therein. However, rather than risk delay in adoption through efforts to seek any necessary complex textual amendments to clarify UK participation, the UK has proposed, with Presidency support, a Council Declaration. This repeats the UK's support for Frontex and its willingness to participate in Frontex activities and invites the Agency and its Management Board to explore ways in which the UK can likewise practically support the operations of RABITs. This will involve further detailed consideration of the most appropriate process and legal framework for UK involvement. We consider it prudent to wait for the preliminary ruling of the Frontex. ECJ case before commencing this process. I attach a text of the proposed Council Declaration to this letter.

In addition to depositing an Explanatory Memorandum on the latest draft of the Regulation today I also address the specific concerns raised in your letter of 18 October in turn below.

Firstly, you ask about the wisdom of expanding the remit of Frontex at this early stage in its development and other Member States' views. It has become apparent in the first year of Frontex operations that individual Member States may lack the means to be able to react swiftly to unexpected irregular migrant pressures at the external border. This draft regulation is a response to those clearly expressed needs but does not expand Frontex's responsibilities, which remain focussed on planning and coordination of operations, risk assessment and training. Other Member States clearly support the RABITs concept.

You ask why RABITs are needed at all, and you suggest that Frontex Joint Support Teams are adequate for crises. The key difference is the speed at which an intervention team will be deployed and the enhanced training which its officers will receive over the course of the next year. The current draft of the proposal says that Frontex has five days in which to consider a request for an intervention team. An operational plan must then be drawn up immediately if a RABIT is to be deployed, and deployment then must take place within five days of the operational plan being agreed. In our view the potential for the intervention teams to support operations rapidly at the EU's borders is important.

I fully support your view that the applicable law and jurisdiction should be clear in the text. The proposed Regulation provides that guest officers will be acting under the command of the Member State hosting the operation, and according to the operational plan drawn up by Frontex and the host state. Criminal and civil liabilities are also set out clearly in the draft. It will be important for both the officers' home states and for Frontex to ensure that participating officers understand their duties and responsibilities under these provisions.

You have objected to the lack of clarity in the provision for powers being given to "prevent illegal crossing". This is language drawn from the Schengen Borders Code and refers to the need for patrolling and surveillance of the external border in order to prevent unauthorised crossing. The latest draft of the proposal is clearer as it refers specifically to the Schengen Borders Code.

You also raise the question of scrutiny and accountability of Frontex operations. Frontex is accountable for its activities through the Executive Director to the Frontex Management Board, the European Commission and the European Parliament. Articles 3.3 and 20(2)(b) of the Frontex Regulation (2007/2004) set out its evaluation and reporting procedures, which include its Annual Report. Additionally, individual operational plans make specific provision for evaluation which is considered within the Agency to inform further action and the external reports.

Finally, you also ask about opting in. Due to the UK's exclusion from the Frontex regulation we are not able to opt into this proposal. However, we will explore with the Agency and the Management Board ways in which the UK can practically support these additional Frontex activities when it is in our overall interests to do so on a case by case basis. This is a continuation of our current position regarding Frontex operations.

If the UK is successful in the case before the ECJ, and opts in to the Frontex and the RABITs Regulations, we would be fully bound by both. We anticipate it is highly unlikely that the UK would ever want to request a RABIT or a joint operation on UK territory in response to an influx of immigrants from the UK to the Schengen area. However, we will develop a mechanism with you for consulting Parliament beforehand, in the unlikely event that the UK needs to make a request. We will consider any opt in position as and when we have the results of the ECJ case but are keen to strengthen Frontex and see it develop in the future.

As requested, you have already received a list of UK participation to date in Frontex activities with the response to your letter of 2 February. Our assessment is that Frontex has done well to coordinate approximately 23 joint operations and pilot project in its first year. It is perhaps to be expected that there remains scope for improvement in the planning, coordination and evaluation of the work carried out. The need for engagement with third countries of origin or transit has been highlighted by last year's migration across the Mediterranean and into the Canary Islands.

In your most recent letter you have asked for additional figures and information which would allow you to make a more thorough assessment of the impact of Frontex operations. Achieving the balance between maintaining confidentiality as an Agency charged with enforcement matters, and, precisely because it is a European institution, needing to show transparency and accountability, is not unique to Frontex—Europol faces the same issues. The Frontex Report 2006 to be placed before the European Parliament on 15 June is expected to contain some more detailed information as do operational reports on their website.[111] We continue to engage with Frontex on the importance of full evaluation of operations. The UK is taking part in a four day workshop on 16 April where these issues will be looked at in much more detail with specific attention on certain operations on the external border. Officials will push for more information to be included to enable effective evaluation. I will deposit the Annual report for scrutiny as soon as it is published and provide an update on the outcome of the evaluation workshop.

As stated in my previous letter, through our cooperation with Frontex we have gained much useful intelligence on the routes and methods used by irregular migrants and those who profit from them, and we have contributed to expanding Frontex's capacity. It is much harder to put a figure on the numbers of irregular migrants who have been prevented from reaching the UK border as a direct result of Frontex operations as those who are turned back at the external border will not necessarily have intended onward travel to the UK but we take the view that strengthening security at the external EU border is firmly in the UK interest.

5 April 2007

Annex A

SUBJECT

Proposed Council Declaration concerning the Regulation of the European Parliament and of the Council establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) 2007/2004 as regards that mechanism

The Council welcomes the full support the United Kingdom is giving to the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union and its development, as well as its willingness to participate in its activities pursuant to Regulation (EC) 2007/2004. It invites the Agency and its Management Board to explore ways in which the United Kingdom can likewise practically support the operations of Rapid Border Intervention Teams.

Letter from Joan Ryan MP to the Chairman

I am writing to update you on progress on negotiating this Regulation and to encourage you to consider this document as soon as possible as the German Presidency have again moved the timetable for adoption forward.

The European Parliament's Committee on Civil Liberties, Justice and Home Affairs approved the RABITs Regulation text on 11 April as set out in document 8325/07 which has already been sent on to you. The proposal was then discussed at the JHA Council on 20 April with the Presidency urging rapid adoption in light of the expected summer pressures and with the outcome that a general approach was agreed on the current text. The Commission suggested that formal approval could be taken before the June JHA council so that RABITs could be up and running as soon as possible. On 25 April the European Parliament plenary also approved the Regulation so we now expect the Presidency to put the Regulation forward as an "A" point to a Council before June. As soon as we know when this will be, we will let you know.

I also want to clarify two points. Firstly, that Member States have agreed the text of the Council Declaration that the UK has proposed in support of Frontex and RABITs. This will be annexed to the protocols of the Regulation when it is adopted at Council. Secondly, that we will consider our opt in position on Frontex and RABITs when we have the results of the ECJ case. I will keep you informed of the outcome of our Frontex ECJ challenge.

30 April 2007

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