House of Lords - European Union

Select Committee on European Union Ninth Report

CHAPTER 2: Borders

The significance of national borders

9. "National borders are hugely symbolic. They define the territory over which a state exercises sovereignty; they are an integral part of its identity; and they traditionally represent the point at which a person seeking to enter the country must demonstrate their admissibility." These are the opening words of our report on the Proposals for a European Border Guard.[6] To this we would add that national borders also define differences of jurisdiction, of legal systems and, usually, of language. These are important for the purposes of our inquiry, but the most important of all is that the borders between Member States and third countries also usually represent a sharp contrast in economic prosperity.

10. Mr Liam Byrne MP, the Minister of State at the Home Office with responsibility for immigration, explained this graphically: "The World Bank in Global Economic Prospects, which was published last year, forecast that something like a billion people will join the labour market in the developing world between now and 2025. The International Labour Organisation estimates that there is a five-fold difference in household income between low income and high income countries. My warning is that over the next 20 years the pressure on Europe's borders will not diminish. It will grow and it will grow sharply. We are already seeing that pressure across the Mediterranean" (Q 475).

11. We accept this view. The migratory pressure on Europe's borders will grow because there are a growing number of failed states where a combination of economic incompetence, uncertainty of property rights, corruption, internal conflicts, political anarchy and repressive regimes has created intolerable conditions for the local population. Conditions may also be intolerable in states where poverty is endemic, or in those which, though once prosperous, are now ravaged by war. It is therefore inevitable and predictable that people will attempt to escape to countries which they see as offering a chance of a better life.

12. The needs of Member States for economic migrants from outside the EU will vary, but most have benefited from migration both from within and from outside the Union.[7] United Kingdom Prospects, a quarterly report from the Centre for Economics and Business Research, published on 27 December 2007, estimates that the growth of the United Kingdom GDP will be maintained at 1.8% in 2008 only because of an increase in the number of predominantly unskilled economic migrants entering the country, mainly from the Eastern European Member States.

13. Many of those seeking to escape from countries at or near the bottom of the United Nations Human Development Index are likely to be the more talented. Yet these are the people those countries particularly need to retain if they are not to stay anchored near the bottom of the Index, unable to rise because they increasingly lack the talent they need.

14. It is only natural for those in developing countries who wish to improve the economic prospects for themselves and their families, and who can see that crossing the border into the EU is likely to help them to do just that, to attempt to do so. Any detailed analysis of the root causes of migration, the merits of EU migration policies, the capacity to absorb the numbers involved, and what should be done to regulate migration flows, are all outside the scope of this inquiry. We have proceeded on the premise that the current EU and national rules to regulate immigration are there to be obeyed, and that borders and border guards are there for this purpose. We are however mindful that the developing cooperation of national border guards at the external EU borders takes place in the context of the rules of public international law designed to ensure the safety and dignity of human beings.

15. The larger the Schengen area, and the greater the freedom of movement within it, the greater the burden which falls on those borders which become the external borders of the EU, and the greater the responsibility of those who guard them. The duty to guard what were previously only national borders becomes a duty owed to all the Schengen States. The changes which took place at the end of 2007 are particularly significant for the States with the Eastern land borders. Twenty years ago it was the Western borders of those States which were designed to keep citizens of the former Soviet bloc from escaping to the economic nirvana of the EU;[8] today it is the Eastern borders of the same States which have the duty of regulating the flow of immigration into the EU from other States which formerly were part of the Soviet bloc. This is the reason why the Polish border guard has had to be built from scratch.[9]

16. The external borders of the Member States are defined by Article 1(4) of the Regulation setting up Frontex as "the land and sea borders of the Member States and their airports and seaports, to which the provisions of Community law on the crossing of external borders by persons apply". We consider these in turn.

The land borders

17. The land borders to which an important part of the work of Frontex relates—those of the Member States—are not the same as those of the Schengen States. They do not include the border between Russia and Norway, which is a Schengen Associated State but not a Member State; but they do include the external borders of Romania and Bulgaria, which are Member States but not yet Schengen States.[10]

18. Until May 2004 Finland, Germany, Austria and Italy guarded the main Eastern land border of the EU, which was 4,095 km long (2,545 miles).

TABLE 1

The Eastern external land border of the EU before 1 May 2004

Border between			Length in km
Finland	Russia	1,340
Germany	Poland	454
Germany	Czech Republic	810
Austria	Czech Republic	466
Austria	Slovakia	107
Austria	Hungary	356
Austria	Slovenia	330
Italy	Slovenia	232
Total		4,095

19. After the accession of ten new Member States on 1 May 2004 the place of Germany, Austria and Italy in guarding the Eastern external land border was taken by Estonia, Latvia, Lithuania, Poland, Slovakia, Hungary and Slovenia. When Frontex started its work, before the accession of Romania and Bulgaria on 1 January 2007, the external land border was 6,220 km long (3,866 miles).

TABLE 2

The Eastern external land border of the EU from 1 May 2004

Border between		Length in km
Finland	Russia	1,340
Estonia	Russia	455
Latvia	Russia	276
Latvia	Belarus	161
Lithuania	Belarus	651
Lithuania	Russia (Kaliningrad)	272
Poland	Russia (Kaliningrad)	232
Poland	Belarus	418
Poland	Ukraine	535
Slovakia	Ukraine	98
Hungary	Ukraine	136
Hungary	Romania	448
Hungary	Serbia	174
Hungary	Croatia	344
Slovenia	Croatia	680
Total		6,220

20. Neither of these two tables includes Greece. Although of course a Member State, it was not then geographically part of the main body of EU States, although its borders with Albania, the Former Yugoslav Republic of Macedonia (FYROM), Bulgaria and Turkey were external land borders of a Member State and hence part of the responsibility of Frontex. However the accession of Romania and Bulgaria has changed matters radically. Greece has now joined the main continental bloc, so that the Eastern external land border now runs from the Arctic to the Black Sea and the Aegean, and is 6,378 km long (3,964 miles). As a result the West Balkan States have become an enclave whose collective land frontiers form a lengthy and sensitive part of the external borders of the EU, adding a further 1,580 km (982 miles) to a land border now totalling 7,958 km (4,946 miles).

TABLE 3

The external land border of the EU from 1 January 2007

Border between		Length in km
Finland	Russia	1,340
Estonia	Russia	455
Latvia	Russia	276
Latvia	Belarus	161
Lithuania	Belarus	651
Lithuania	Russia (Kaliningrad)	272
Poland	Russia (Kaliningrad)	232
Poland	Belarus	418
Poland	Ukraine	535
Slovakia	Ukraine	98
Hungary	Ukraine	136
Romania	Ukraine (East and West of Moldova)	649
Romania	Moldova	681
Bulgaria	Turkey	259
Greece	Turkey	215
Greece	Albania	282
Greece	Former Yugoslav Republic of Macedonia	246
Bulgaria	Former Yugoslav Republic of Macedonia	165
Bulgaria	Serbia	341
Romania	Serbia	546
Total		7,958

21. Frontex cannot lose sight of other land borders; the problems they raise are often wholly disproportionate to their length. A month after it began operations Frontex found itself in the front line when, in November 2005, hundreds of mainly sub-Saharan nationals breached the borders of the Spanish enclaves of Ceuta and Melilla in Morocco.

22. The Schengen Evaluation Working Party consists of experts from the Member States whose remit is to evaluate against key performance indicators, on behalf of all the states, the manner in which checks and surveillance are carried out at external borders, their practice when issuing visas, police and judicial co-operation at internal borders, and the use of the Schengen Information System. This evaluation mechanism serves to check that Member States implement the Schengen acquis properly. But its other—and recently its more important—purpose has been to evaluate whether the Member States which acceded in 2004 fulfilled the conditions laid down for applying the Schengen acquis.[11] Before the Schengen area was extended to the nine states which joined it on 21 December 2007,[12] an elaborate evaluation took place of the quality of the border protection. Teams of experts examined the border posts and the areas between them and reported back to the Council with recommendations for improvements. Most of these recommendations have been acted on, and the borders are more secure than they were.[13]

23. Anyone remembering the problem of policing the short common border between Northern Ireland and the Irish Republic during the Troubles, or the Sino-Hong Kong border, will readily understand the difficulty of guarding a border some 8,000 km long against large numbers of determined and sometimes desperate immigrants. However good the border posts may be which guard the main crossing points, in between them are long stretches of border, often sparsely populated, sometimes through country which is difficult to police. Even if they are fenced, this is of little use unless they are also guarded, which in the nature of things they cannot always be. A border is only as secure as its least well guarded area, and it is this area which will attract illegal immigrants.[14]

24. With frontiers of this length, and very large numbers of border guards, there may also be a problem of corruption. Border guards are not usually well paid compared to other workers, and those on the East of the frontier considerably less well than those on the West. We think it likely that even the best guarded border posts may not prove too much of an obstacle to immigrants who are well funded.

25. The enlargement of the Schengen area was an opportunity for the British press to comment on the security of the new borders. Much of the comment we saw was adverse. By way of example, an article in the Sunday Telegraph of 16 December 2007, subtitled "Eastern defences are undermanned and overwhelmed", tells of a visit to Beregsurany on the border between Hungary and Ukraine, where officials said they caught fewer than a third of those attempting to cross the border illegally.

The Polish-Ukrainian border

26. In the course of our visit to Poland, on 24 October 2007 we visited Dorohusk to see in operation a border post on the eastern external border of the EU. The border with Ukraine is at that point formed by the River Bug, and Dorohusk is one of the main road entry points from Ukraine. The border post was rebuilt in 2004 and is one of the most modern and best equipped on the Polish border. It is well equipped to monitor traffic on the arterial road, but like all land border posts it covers a large surrounding area which it is not so well placed to supervise.

27. Earnings in Poland are low by EU standards, but are still some four times higher than in Ukraine, and higher still compared to some of the other countries of the former Soviet Union to the East of Ukraine. The pressure from migrants seeking to enter the EU from and through Ukraine is therefore very great. Much of the migration is organised, and we were told of groups from Moldova, Georgia, Chechnya, Pakistan, Vietnam and as far afield as China (QQ 332, 340, 347). Other main concerns of the border guards are entry of criminal gangs from the East, and the smuggling of cigarettes, alcohol, drugs, and works of art.

28. Much of the traffic in the opposite direction consists of articulated trucks exporting goods from, principally, Germany to Ukraine and beyond. On the day of our visit there was a queue of lorries well over a mile long waiting to pass into Ukraine. In that direction the chief concern is the smuggling of stolen luxury cars.

29. In addition to the oral evidence which we took (QQ 314-350), we inspected the border crossing itself, we saw the equipment for detecting illegal immigrants in use, and we saw the practical liaison between the Polish and Ukrainian border guards.

Juxtaposed border controls at Coquelles and Calais

30. The nearest the United Kingdom comes to a land border with a Schengen state is the terminus of Eurotunnel in France, at Coquelles. The Home Office arranged for us to visit on 8 January 2008 the juxtaposed controls there and at the ferry port of Calais. The controls at Coquelles have existed since 1994, and the agreement now allows staff from the Border and Immigration Agency (BIA) and HM Revenue and Customs (HMRC) to apply United Kingdom immigration law within this very limited area of France, and so to control passengers and vehicles travelling to the UK before they leave France. The agreement covering Calais does not allow participation by HMRC. Replies to a number of detailed questions from the Committee are printed with the written evidence on page 161.

31. In 2006 BIA, as a result of its juxtaposed controls in France, stopped 16,898 people from crossing the Channel illegally in trucks and refused 6,801 people entry.[15] Examination of both passengers and freight vehicles is by targeted selection. At Calais over 80% of passengers identified as requiring detailed examination are subsequently refused entry. Forged documentation features in a third of those cases. Calais identifies more forgeries than any other BIA control.

32. We saw in action the targeted searching which screens freight vehicles to prevent clandestine entry to the United Kingdom. The use of gamma ray scanners is not permitted in France where the presence of humans is suspected, but we saw in use the following new detection technology:

passive millimetre wave imager, which uses natural background radiation to generate an image of the interior of soft-sided freight vehicles;
CO₂probes, which operate by detecting in a vehicle the elevated levels of CO₂exhaled by humans;
body detection dogs; and
heartbeat detectors, sensors which when placed on the main chassis of a vehicle can within seconds detect the presence of a hidden person.

33. We were very impressed by this equipment: its sensitivity, and the way it was handled. One thing which surprised us was that, after lorries have successfully cleared the detectors at Calais, and can therefore be presumed not to be carrying clandestines, they have to wait near the ferry berths in an area which is accessible to determined immigrants. We were told that every year some 1,500 clandestines are found to have boarded lorries at this point, and that the area which is fenced is larger than it need be, and the fencing inadequate. This seems to us to be the one weak point in an otherwise excellent system which is greatly to the benefit of the United Kingdom. We are glad to hear that British officials are addressing this question with the French authorities, and we recommend that more effective fencing should be put in place as a matter of urgency.

Maritime borders

34. The maritime borders of the EU are nearly 80,000 km (50,000 miles) long, and getting on for half of this (34,109 km or 21,199 miles) is the vulnerable Southern maritime border.

TABLE 4

The Southern maritime border

Country	Length in km
Portugal (including the Azores and Madeira)	2,555
Spain (including the Canaries)	4,964
France	4,720
Slovenia	48
Italy	7,600
Greece (including over 3,000 islands)	13,676
Malta (including Gozo)	253
Cyprus[16]	293
Total	34,109

35. Greece with its 3,000 islands has the longest maritime border of any Member State, longer even than the United Kingdom. Most of the islands are very close to Turkey, a fact exploited by many criminal gangs which seek to infiltrate them. The Black Sea borders of Romania and Bulgaria, 572 km (358 miles) long, are now equally at risk from criminal gangs operating from Turkey.

36. Only a minority of illegal immigrants enter the EU through the sea borders. Nevertheless, when the media consider the work of Frontex, they tend to focus on the Southern maritime borders. It is operations on those borders which consume the majority of that part of the Frontex budget which is spent on operations. The journeys from West Africa to the Canaries (and hence onwards to mainland Spain), and from North Africa across the Mediterranean, can be very perilous when undertaken in small and inadequately equipped craft.

37. In 2006 media interest concentrated mainly on immigrants from West Africa aiming for the Canaries and Spain. In 2007, as immigration from West Africa decreased and a greater proportion of immigrants were leaving North Africa and aiming for Italy and Malta, it was there that media interest was directed.

38. Malta is in an especially sensitive geographical position. The LIBE Committee of the European Parliament,[17] on a visit to Malta on 23-25 March 2006, were told by Mr Tonio Borg, the Deputy Prime Minister and Minister for the Interior, how difficult it was for a country such as Malta, with a surface area of 316 km² and a population of 400,000, to cope with the influx of migrants and asylum seekers arriving on the island: 1,388 in 2004 and 1,822 in 2005.[18] The average annual number of arrivals was equivalent to 45% of Malta's annual birth-rate. One person arriving illegally in Malta is equivalent, in terms of population, to 140 in Italy, 150 in France or 205 in Germany. On the basis of the country's size, the numbers are even larger: one immigrant would be equivalent to 953 in Italy and 1,129 in Germany.

39. These are the migrants who reach Malta. An unquantifiable number perish in the attempt; a great many more would perish were it not for search and rescue operations mounted by the Member States on the Southern maritime border, and especially by Malta, whose search and rescue area goes all the way to Crete in the East.[19] We believe that the media descriptions of these events are often partial and incomplete, condemning expressly or by implication the countries bordering on the Mediterranean which are mounting search and rescue operations. In the view of General Laitinen they tend to ignore the main modus operandi of the human smugglers and facilitators in the central Mediterranean, which he described as making the journey become a search and rescue operation which guarantees reception and a way to the closest haven (Q 246).

40. An event which received very wide international media coverage in May 2007 was the apparent disappearance of a boat with 53 Eritrean nationals on board. Major Andrew Mallia of the Maltese Armed Forces came to London and gave us evidence which we found impressive and compelling. Since he was personally involved in this, we think it useful to summarise his account in some detail (Q 385).

BOX 1

The disappearance of 53 Eritrean nationals

When the call was initially received the boat was 200 km from Malta, closer both to Libya and to Lampedusa. The call as usual provided a satellite telephone number which was on board the boat. All the boats are equipped with a satellite telephone, given to them by the traffickers, which allows them to call for help, and because it has an embedded GPS, it also provides the navigation details. That is standard procedure. On receiving the call about six o'clock in the morning, because the position was still within the Libyan Search and Rescue Region, our first step was to inform the Libyan authorities. We did not receive a response from them so we continued to monitor the progress of this boat by regular contacts with these people. At one point, they stated that they were in a position within the Maltese Search and Rescue Region, their craft was adrift and they required assistance. We immediately deployed a vessel and also an aircraft because sometimes the positions are not exact. Two hours after the initial alert we had an aircraft on scene—which also took those pictures which were shown in the media. The craft did seem to be adrift.

It took seven hours for our boat to transit from Malta to the position—which gives you a feel of how far away it was. During that time the aircraft was withdrawn for refuelling and sent again to the position. On arriving it did not find a boat either in the position where it had been initially sighted nor within a substantial radius around it. We had also alerted merchant shipping but we received no reports of the sighting of this craft. Our vessel began a search during which it found a second craft with 25 people on board which had just capsized. It rescued those persons and proceeded directly to Malta because a number of them required medical assistance. The next day we flew a further sortie with an aircraft and also liaised with the Italian Rescue Co-ordination Centre to fly at least one sortie in the area and ask any other aircraft in the area to keep a sharp look out, and they found nothing. Given that a number of the people on board were wearing life-jackets it is highly unlikely that a boat like that would sink without leaving at least minimal trace. Some three days later we noted on a couple of Eritrean websites that this craft had been reported to have arrived again in Libya; they had lost their way and had landed again in Libya. That is the only further information that we have.

We reacted fully in accordance with our search and rescue plan. The only unknown was that when we got there we found another craft, so instead of searching for longer we had to return to base. We did search the area extremely well, both ourselves and the Italians. We can find a drifting object quite easily but a boat being driven in a particular direction is very difficult to find. We could not really have done much more and I have my doubts whether this craft disappeared as completely as was said by the press.

Air borders

41. The air borders of states are the most secure because it is very difficult for would-be immigrants to land otherwise than at an international airport where their status will always be checked. The airports of the new Schengen states will join the system only on 30 March 2008.

42. On Tuesday 4 December 2007 we visited the border control at Heathrow. We viewed the border controls for outbound and inbound flights, and had explained to us the reasons incoming passengers were selected for fuller checks, and the nature of those checks. We saw the Iris Recognition Immigration System (IRIS) enrolment station in the departure lounge, and had a demonstration of document forgery detection techniques. Finally we had a question and answer session, the results of which are printed with the written evidence on page 154.

The position on Schengen

43. Maritime borders are by and large more secure and easier to guard than land borders. It is often clearer exactly where a sea border lies, and crossing the border is frequently more difficult, so that it is usually easier to identify and to intercept persons attempting to cross it: "21 miles of sea is the most effective border control you can have".[20] When the Schengen acquis was incorporated into the law of the EU by the Treaty of Amsterdam, one reason why the United Kingdom negotiated an opt-out was because this country's frontier controls "match both the geography and traditions of the country and have ensured a high degree of personal freedom within the UK"; whereas in mainland Europe, "because of the difficulty of policing long land frontiers, there is much greater dependence on internal controls, such as identity checks."[21] The United Kingdom and Ireland participate only in those parts of the Schengen acquis concerning criminal law and policing.[22]

44. In February 1999, in the course of our inquiry into Schengen and the United Kingdom's border controls, Ms Kate Hoey MP, then a Parliamentary Under-Secretary of State at the Home Office, was asked whether the Government was maintaining its position on frontier controls with the rest of the EU only until it was satisfied that external border controls of other EU members were adequate, or whether this was seen as a permanent position. She replied that there was no chance that the Government would in the foreseeable future feel that there was no longer any need for these frontier controls.[23] In the current inquiry we put to Mr Liam Byrne the question whether it was not now time for this country to become a full Schengen member. He replied: "Possibly, but not yet. Speaking candidly, until we have greater confidence than we have today in the strength of the external border, I do not think that would be something that I could recommend yet" (Q 475).

45. Given the views of successive Governments on the comparative strengths of the United Kingdom and Schengen borders, it seems to us that "Possibly, but not yet" will for many years to come be the reply to the question of the United Kingdom becoming a full Schengen State.

Guarding the United Kingdom's borders

46. In the course of taking oral evidence we heard from Home Office Ministers and officials about current developments in the guarding of the United Kingdom's borders: the creation of the Border and Immigration Agency (BIA), the Prime Minister's announcement in July 2007 that it was to integrate its work with Customs and UK visas to establish a Unified Border Force, and the review of this by Sir Gus O'Donnell which culminated in the publication in November 2007 of the report "Security in a Global Hub".[24] These are matters of great importance, and this evidence, together with our visits to Calais, Coquelles and Heathrow, allowed us to form our own views about the management of this country's borders. This in turn made a useful background to our assessment of the work of Frontex.

47. The case for Britain remaining outside Schengen is that we can protect our borders better than the Schengen states control their own external borders. We therefore find it astonishing that although there is an elaborate system for allowing certain persons from outside the EU temporary or limited entry to the United Kingdom, there is no way in which the BIA can know whether these time limits and conditions are being complied with, because there is no routine recording of entries into or departures from the United Kingdom. As Mr Byrne accepted, "one of the most basic requirements of a border control is the ability to count people in and to count people out of the country"—and, he added, "you had better make sure that the person you are counting in is the same person as you are counting out" (Q 457).

48. We are glad to know that the Minister accepts the importance of remedying this defect. He told us that passenger screening systems would be put first on the high risk routes, and "the point at which we hit 100% high risk groups will be substantially in advance of 2010" (Q 457). However it will be 2014 before the gap is closed by the full implementation of e-Borders.[25] This undermines the Government's arguments against Schengen. The fact that the Irish e-Borders system will not be ready until even later is no justification for delaying ours. We believe the work on e-Borders should be brought forward as a matter of urgency to protect Britain's territorial integrity.

6 29th Report, Session 2002-03, HL Paper 133. Back

7 For the specific benefits to the United Kingdom, see our report Economic Migration to the EU, 14th Report, Session 2005-06, HL Paper 58. The House of Lords Select Committee on Economic Affairs is currently inquiring into the Economic Impact of Immigration. Evidence given to that inquiry can be found at www.publications.parliament.uk/pa/ld/ldeconaf.htm. Back

8 At that time, the European Economic Community. Back

9 Mr Wieslaw Tarka, Under-Secretary of State, Polish Ministry for the Interior and Administration, Q 355. Back

10 We do not consider the border between Sweden and Norway, since it is a Schengen Associated State, nor the land borders with Switzerland, which from 1 November 2008 will become a Schengen Associated State. Back

11 Plan for the management of the external borders of the Member States of the European Union agreed by the JHA Council on 13 June 2002 (Document 10019/02). Back

12 Cyprus was the only one of the ten which did not join. Back

13 The reports of the Schengen Evaluation Working Party are classified, but on 7 September 2007, less than 4 months before the enlargement, the Working Party reported concerns about the continuing entry of Croatian residents into the territory of Hungary and Slovenia with an identity card only, something which had been identified during a land-border mission as far back as May 2006. The working party continues its evaluation of border security of the Schengen States. Back

14 We have referred in our reports on Schengen and the United Kingdom's Border Controls (7th Report, Session 1998-99, HL Paper 37) and Illegal Migrants: proposals for a common EU returns policy (32nd Report, Session 2005-06, HL Paper 166) to the pejorative use of the term "illegal immigrant" in this context, with its imputation of criminality. While this is the term used by most of our witnesses, a number prefer the term "irregular migrants". However "illegal immigrant" is the most commonly used English expression, and "illegal" is the word used in Article 63(3)(b) of the EC Treaty and in Regulation 863/2007. We have therefore used this term, but emphasise that it will include persons whose intention is to settle legally in the EU. Back

15 These figures are taken from Security in a Global Hub, paragraph 3.2, but have been updated by the Home Office. The great majority relate to Coquelles and Calais, but they also include some from other juxtaposed controls: Dunkerque, Boulogne, Paris, Fréthun and Lille. There are also juxtaposed controls in Brussels. Back

16 This relates to the southern part of the island under the control of the Republic, and excludes the British sovereign base areas. Back

17 The Committee on Civil Liberties, Justice and Home Affairs. Back