Memorandum by Border and Immigration Agency,
Home Office
Whether Frontex staffing and funding are adequate
to enable it to carry out its tasks
1. Frontex received a substantial budget
increase in 2007 to increase its capacity to deliver. The 2007
work programme was allocated €35.3 million of which €20.7
million is for operations, €9.4 million for staff and €5.2
million for administration. We believe this is sufficient, once
the new staffing is in place by the end of the year, for Frontex
to carry out its tasks as envisaged by the Frontex Regulation.
It now needs the necessary time to embed and train staff, and
to focus on improving the quality of operations before further
expansion.
Whether the institutional and legal framework
ensures adequate accountability of Frontex activities
2. 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 an Annual
Report which is made public.
3. Responsibility for operations, within
the framework of the Schengen Borders Code, is first agreed by
the Member States involved as part of the operational plan. The
host Member State leads on the operation itself. Individual operations
make provision for evaluation which is considered within the Agency
to inform further action, and the annual report.
4. European and national parliamentary scrutiny
take place when legislation is being negotiated and adopted. Both
the European and national Parliaments also routinely call Ministers
and EU and national officials to give general evidence on EU organisation
activities. Our view is that all the above processes, and the
review mechanisms built into both Regulations, which the UK has
the opportunity to feed into, ensure accountability proportionate
to Frontex's current remit.
Comments on the legal framework for border guards'
exercise of control and surveillance powers in the course of Frontex
operations
5. Member State border guards taking part
in Frontex operations until recently acted only as observers.
The amendments to the Frontex Regulation by the RABITs Regulation
clarify and strengthen the powers of Member State officers participating
in Frontex operations (including RABITs), enabling them now to
carry out tasks and exercise powers of border control and border
surveillance. This includes, for example, examining documents
and stamping passports. The legal framework for the border guards
to apply is the Schengen Borders Code as this is the law which
governs the crossing of the border where the guards are operating.
6. In respect of UK participation, the legal
position is more complex. Subject to the forthcoming decision
of the ECJ on the issue, neither the Frontex Regulation nor the
RABITs regulation apply to, or bind, the UK. However, under Article
20(5) of the Frontex Regulation, the UK may take part in joint
operations or pilot projects with the agreement of Frontex. Where
UK immigration officers do so, they will be "guest officers"
under the new Article 1(9) of the Frontex Regulation (as amended
by the RABITs regulation). Were we to choose to do so, UK immigration
officers could be able to exercise executive powers as part of
the law of the host Member State (through the directly applicable
Regulation). However, as UK immigration officers are appointed
under the Immigration Act 1971, and their powers and duties derive
from statute, it is likely that primary legislation will be needed
to enable UK immigration officers to exercise executive powers
as a matter of UK domestic law. In the meantime, UK immigration
officers will continue to participate in joint operations and
pilot projects as observers/advisors.
7. In respect of RABITs, it may be the case
that, as a matter of European law, UK immigration officers cannot
take part in RABITs under the RABITs and Frontex Regulations as
members of teams exercising executive powers because the text
of the RABITs Regulation does not contain provision allowing UK
participation by agreement. We are exploring with Frontex and
its Management Board ways in which the UK could participate in
RABITs in an observing/advisory capacity.
Whether and how international obligations with
regard to search and rescue at sea affect the Agency
8. Those Member States who take part in
operations in the territorial waters of Member States, in international
waters or in the territorial waters of third countries, will have
to do so in accordance with their obligations under the international
law of the sea, including those obligations concerning search
and rescue. The UK has not yet participated in such operations.
Our position is that responsibility and the legal framework which
applies to the particular circumstances of the operation should
be determined by the Member States involved as part of the operational
plan, taking account (as they must) of international law.
9. We welcome the Commission's recent publication
of a working paper calling for clarification of the international
law of the sea as it relates to illegal migration. A working group
has been established, in which the UK participates, to discuss
general guidelines on the application of the law of the sea specifically
to Frontex maritime operations. The UK supports the Commission's
view that we need clear guidelines for the interception of ships
suspected of carrying illegal migrants. The UK is keen to have
guidelines that provide greater clarity on obligations regarding
the disembarkation of migrants. The next meeting of this working
group is on 24 September in Brussels.
Whether it is practical to retain a distinction
at operational level between preventing irregular immigration
and preventing crime
10. Irregular migration can involve criminal
acts by individuals ranging from low level facilitation to organised
crime. The exercise of immigration control can have an impact
on other crime so close co-operation between the different authorities
is needed. There is currently a distinction at operational level.
However, wider Government organisation to ensure border security
is being reviewed by Sir Gus O'Donnell as announced by the Prime
Minister on 25 July.
The number and nature of working agreements Frontex
has in place with Member States, third countries, EU agencies
and international bodies
11. The Frontex and RABITs Regulations provide
the legal framework for co-operation with EU Member States and
Framework Partnership Agreements set out administrative detail
such as reimbursement procedures. Separate agreements exist for
the UK and Ireland. The Management Board authorises all mandates
for the Executive Director to negotiate Working Arrangements between
Frontex, third countries and other international organisations.
These arrangements agree terms for facilitating operational co-operation
between Frontex and the country/organisation concerned including
capacity building assistance and support for joint operations.
Working Arrangements have been agreed with three countries and
mandates agreed to negotiate with a further 10. Progress is being
made on a Working Arrangement with Europol but close co-operation
already exists. Dialogue continues on co-operation with other
international organisations and countries. Feedback on the progress
or outcome of negotiations is provided at Management Board meetings.
Whether there is sufficient cooperation from Member
States in terms of personnel and equipment for joint operations
12. In our view, Frontex does not generally
face difficulties in obtaining personnel and equipment for joint
operations. It has built up a significant Central Register Technical
Equipment (CRATE) that Member States have made available for operations
(in accordance with Article 7 of the Frontex Regulation). This
includes helicopters, aircraft and ships. Member States have signed
MoUs to provide the equipment that they have pledged and this
should assist Frontex with better operational planning.
How Frontex pools information from Member States
to carry out risk analysis
13. Currently Frontex collects information
by sending out questionnaires to central points of contact in
each Member State. This data is collated and informs both tailored
risk assessments on particular issues throughout the year and
the annual risk assessment, in addition to drawing on other existing
data sources, for example CIREFI reports. The compiled reports
are discussed at quarterly Frontex Risk Analysis Network (FRAN)
meetings and issued for onward distribution within relevant Member
State departments. Frontex continues to examine whether it should
use Iconet, a web-based database, as its primary tool for receiving
information from Member States.
The extent of Frontex involvement in surveillance
operations
14. Frontex is involved in surveillance
operations at both sea and land borders. Surveillance at sea is
carried out by ships and aircraft as part of joint maritime operational
plans and through the pilot European Patrols Network (EPN), which
co-ordinates and harmonises existing southern Member State patrolling
and surveillance activity. Subject to review, the EPN is due to
become permanent in 2009. On land, surveillance is a component
of existing Member State practice so is built into individual
Frontex operational plans.
How Frontex joint operations are planned and mounted
15. Frontex publish a work plan at the beginning
of each year which sets out in very broad terms the number of
the different types of operation (sea, air, maritime) they plan
to mount in the course of the year. Frontex provides an outline
of each operation to Member States and calls for expressions of
interest. Interested parties are invited to a planning meeting
at which further details of the operations are discussed and agreed.
The operational plan is then issued to participants and Frontex
appoints a co-ordinator. The host Member State retains the lead
for the operation. Participants travel to the location of the
operation on the agreed date and the operation begins and runs
according to the operational plan.
How Frontex joint operations are monitored and
the outcomes evaluated
16. All Frontex operations are organised
by a project manager who is responsible for all aspects of the
operation, including finance. Project managers hold evaluation
meetings after every operation for participants to provide feedback
prior to the completion of the final report, produced for all
operations. This is only circulated to the Member States that
have participated.
Whether there is, or should be, any involvement
of, or assistance from, the military in Frontex operations
17. On the whole, Frontex operations are
not focussed on military activities. Although we do not object
to EU Member States assisting Frontex with military assets where
this is part of their normal procedures (which some do), we believe
that the first port of call for such operations should be civilian
agencies or commercial options which are likely to be more readily
available and cheaper. Where Frontex calls for the use of specific
UK military assistance we will treat each request on a case-by-case
basis.
The disadvantages, if any, to the UK in not participating
in Frontex
18. We are leaders in strengthening border
control in Europe by creating a new offshore line of defence,
by checking individuals as far from the UK as possible and through
each stage of their journey, using new technology particularly
biometrics and new approaches to managing risk and intelligence.
While we have sought to parallel and co-operate with Schengen
in so far as possible, as an island, we have seen the maintenance
of checks at points of entry as the best means of securing our
border.
19. Nevertheless, an effectively managed
and secure EU border is in the interest of all Member States,
including the UK, not just in terms of combating illegal migration,
and cross-border crime but also as part of the EU-wide counter-terrorism
effort. The UK values the role played by the agency in providing
a co-ordinating link between the various border and immigration
agencies to contribute to this goal.
20. Although we are excluded from full participation,
we believe we can and do make a valuable contribution by exchanging
experience, knowledge, best practice and technology, and are keen
to continue working closely with our partners to ensure more structured
and effective management of the EU external borders. Were the
UK not able to participate in Frontex, we would lose a significant
opportunity to demonstrate a tangible UK commitment to supporting
EU efforts to strengthen external frontier security and respond
to illegal migration.
21. In addition, we know that irregular
migrants often travel through other European states on their way
to the UK so non-participation would reduce our opportunities
to share and develop intelligence, identify needs, plan disruption
and assist in building capacity both in Member States at the external
EU borders and in the third countries from which migrants embark.
22. We also recognise that Member States
are responsible for the operational control of their own borders
and want Frontex to develop as an adjunct to Member State border
control activity. If we did not participate, the UK position on
its development and our desire as a matter of principle to have
access to Schengen building measures for migration purposes may
not be given appropriate weight.
How the Advocate-General's Opinion in the case
challenging its exclusion from Frontex affects its current position
23. The Advocate-General's Opinion is that
the UK cannot participate in the Frontex Regulation in the sense
that the Regulation applies to and binds the UK. If the ECJ also
reaches this conclusion, then the position of the UK in relation
to Frontex will be as at present, that is: the Frontex Regulation
does not bind nor apply to the UK, but the UK may take part in
operations on a case-by-case basis, with the agreement of the
Frontex Management Board under Article 20(5) of the Frontex operation.
How the Agency's role should develop in the future
24. Frontex has met its objectives in a
number of ways. It has demonstrated an ability to coordinate the
efforts of the Member States in operations at the external Schengen
borders. Those operations have demonstrated that they are not
capable, by themselves, of preventing irregular migration, but
a drop in illegal migration across the Mediterranean this summer
suggests Frontex activities are having some effect on stemming
the flow. Malta experienced a 20% fall in seaborne migration by
13 July this year compared to the same period of 2006 (967 to
769). 12,419 migrants have landed on Italy between January to
August 2007, compared to 14,511 in 2006. Illegal immigrants arriving
at Spain in boats have decreased 55% to 6,306 in the first six
months of 2007 compared with the same period last year.
25. Frontex also performs a useful role
in raising the level of expertise in European border management
and promoting a consistent application of the Schengen Borders
Code. Other developments this year include the pooling of technical
equipment, operational co-ordination with third countries and
the introduction of Rapid Border Intervention Teams to further
strengthen its work.
26. We are particularly keen that Frontex
makes progress with operational co-ordination with third countries
from which illegal migrants originate and transit. This is in
line with the EU's Global Approach to Migration. Third countries
of origin and transit may themselves lack the expertise, legislation
or capacity for national border management. We see an increasing
role for Frontex in providing scoping studies for improvement
to border crossing points and port security, as well as the provision
of advice and assistance to allow these countries to manage their
own migration flows or to mount effective search and rescue operations.
27. The European Parliament considers that
Frontex should take responsibility for maritime search and rescue
(SAR) missions in the Mediterranean. Frontex's aim is to improve
the integrated management of the external borders of the EU, with
the co-operation of third countries. It has no specific search
and rescue remit. It is inevitable that a maritime operation to
control the external borders has a SAR dimension, hence our keenness
for clear guidelines on these in the context of international
obligations. We consider, however, that the strengthening of external
border security should remain the priority for Frontex, and Member
States retain responsibility for search and rescue. The European
Patrols Network will continue this effort but securing engagement
from third countries in maritime operations is imperative, both
for increasing effectiveness of the operations and in humanitarian
terms by reducing the number of migrants attempting hazardous
crossings from Africa to the EU.
28. Frontex has also come under pressure
to expand its remit in joint EU returns. While Frontex clearly
has an important role to play, its resources should be targeted
where they can add real value ie assisting those Member States
with less experience. Joint charter flights should remain a Member
State responsibility and the lead Member State should continue
to be responsible for its own joint operations. Were Frontex to
adopt a role whereby they were to ensure details of spare capacity
on any Member State flight to a specific destination gets well
advertised, this could work well.
29. We want to see Frontex develop in a
sustainable manner. The agency is still relatively young and we
are concerned about overstretch. It is already under pressure
to deliver in areas that might be considered to be beyond its
original remit. The UK believes there is a continuing need to
refine the Agency's approach both to planning, based on the effect
the operation is expected to achieve, and to evaluation of operations
to further increase effectiveness. Following recent staffing and
budget increases, it needs time to embed and train staff, and
focus on improving the quality of operations before further expansion
of its role. We look forward to contributing to the Commission
Frontex review in early 2008. This will be a chance to take stock
of Frontex's achievements and development needs.
Development of training/skills for border guards
30. The Frontex Training Unit runs specific
training courses and seminars and cascades common training tools
to Member States via training co-ordination points. This includes
Common Core Curriculum training on key facts and procedures in
each Member State and includes a specialist training topic each
year, this year document forgery detection. Mid-level officer
training on leadership, management styles and operational activities,
including application of the Schengen Borders Code, has also recently
been set up. In addition, each country offers training in their
particular specialisms to other Member States. The UK makes a
significant contribution to production and delivery of Frontex
training, offering expertise in document forgery detection and
use of detection technology and has sent one delegate to attend
the September mid-level officer course.
2012 Olympics Co-operation
31. We are committed to making sure that
Olympic security planning is robust. We recognise that the 2012
Cultural Olympiad and the Games will attract a large number of
visitors from overseas and that some individuals may seek to use
the 2012 Cultural Olympiad and the Games as an opportunity to
enter the territory of the EU Member States for purposes which
may pose a security, criminal or immigration threat.
32. Whilst we want to welcome visitors,
it will be necessary for us to undertake comprehensive and rigorous
immigration and security checks on all those working, participating
or watching the Games, to prevent anyone planning to exploit or
disrupt the London Games from doing so.
33. We intend to discuss with Frontex the
potential for a joint operation of the type mounted for both the
last Winter Olympics in Italy and World Cup 2006 in Germany. These
operations were mounted at major continental European hub airports
in the Schengen area. The provision of information from the UK
to the control authorities in the participating states on the
issue of visas and the accreditation of members of the Olympic
family and the deployment of UK officials to the hub airports
would be likely to form a central part of such an operation.
UK CONTRIBUTION TO
FRONTEX
1. The UK's contribution to Frontex is subject
to a complex legal framework arising from our exclusion from the
Frontex Regulation. Regulation 2007/2004 of 26 October 2004 (the
Frontex Regulation) does not apply to, nor bind, the United Kingdom
(Paragraph 25 of the preamble to the Regulation). This is subject
to the forthcoming decision of the European Court of Justice on
this issue. However, the UK is able to participate in joint operations
and pilot projects on a case-by-case basis with the agreement
of the Frontex Management Board (Article 20(5) of the Frontex
Regulation). Under Article 12 of the Frontex Regulation, the Agency
shall facilitate the operational cooperation of the Member States
with the UK in matters covered by its activities and to the extent
required for the fulfilment of its tasks under Article 2(1).
2. We have demonstrated our commitment to
Frontex by negotiating the amendment to the Frontex Regulation
and through an annual financial contribution to Frontex which,
with the agreement of the management board, enables us to participate
in joint operations and wider Frontex activities on a case-by-case
basis wherever we see benefit to the UK and the EU. The UK's contribution
to the Agency can be broken down into three categories: finance,
staffing and equipment.
Finance
3. In 2006 the UK contributed €226,300.00.
In 2007, the UK increased its contribution to €570,300 in
line with Frontex's increased budget, based on intention to participate
in: up to 17 joint operations, pilot projects, at least one return
operation, training activities and at least five research and
development studies. We receive up to 80% reimbursement for joint
operation travel and subsistence costs and up to 100% reimbursement
for other Frontex activities.
Staffing
4. In staffing terms, the UK contributes
in three ways, through attendance at the Management Board, seconding
staff to the Agency HQ and participating in joint operations and
Frontex activities in an observing/advisory capacity.
5. In line with Article 23 (4) of the Frontex
Regulation the UK is invited to attend meetings of the Management
Board and does so on all occasions, as well as actively contributing
to discussions. Tom Dowdall, Border Control Director of European
Operations, is the official UK delegate and John Fothergill is
his alternate.
6. The UK has seconded two staff to the
Agency's headquarters in Warsaw; one Airport Operations Officer
who plans and co-ordinates joint airport operations; the other
having initially been seconded as Head of the Risk Analysis Unit
is now a special adviser to the Executive Director of Frontex
with particular responsibility for third country relations. We
are considering increasing the number of UK secondees to the Agency,
subject to suitable posts and qualified UK candidates being available.
7. In 2006 the UK participated in seven
joint operations at the EU external borders. So far in 2007 we
have participated in 11 joint operations with plans for at least
a further two (see Annex A). This includes support for tackling
illegal seaborne migration from Senegal and Mauritania and enhancing
border checks and surveillance on the land and sea borders of
the Mediterranean. We have contributed experts who advise on debriefing
and maritime intelligence techniques and experience and new detection
technology experts who can advise on the use of equipment and
techniques for searching vehicles and freight. The UK will continue
to support projects that are intelligence-led, cost effective
and aim to strengthen vulnerable points on the EU external border.
8. We have participated in several training,
research and pilot project activities. February 2007 saw UK participation
in a project focusing on detecting minors being trafficked by
air. Training experts have contributed to developing both the
Common Core Curriculum for EU border guards and common standards
on forgery detection and use of detection technology, in addition
to delivering courses. The UK is participating in a research and
development project on developing new technologies to enhance
border security and controls.
Equipment
9. The UK has provided the loan of Border
and Immigration Agency equipment, including New Detection Technology,
to the agency's Central Register of Available Technical Equipment
(CRATE/"toolbox"), to assist with border checks in joint
operations. So far we have loaned six CO2 probes and three Heartbeat
units in response to two joint operations. All are still on loan
except for two CO2 probes which have proved unsuitable for the
type of freight being examined during one operation.
14 September 2007
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