THE SCHENGEN SYSTEM

9.  The origins of the Schengen system, and a detailed description of its component parts, are to be found in our earlier report. Paragraphs 14 to 44 of that report are reproduced in Appendix 3.

The essential points are these:

·  the overriding objective of the Schengen arrangements is to create an area of free movement by removing controls at the common borders of the participating states;

·  to compensate for the lifting of internal border controls, there are strengthened controls at the external frontiers of the Schengen area, accompanied by an array of "flanking" measures designed to enhance security within the Schengen area.

·  the most significant flanking measures from the point of view of the present report are:

¨  strict control of the external frontier of the Schengen area according to common rules, contained in a Schengen Manual for the External Frontier

¨  the exchange of information, through the Schengen Information System (SIS), on prohibited immigrants, wanted persons, stolen vehicles etc.

¨  enhanced police co-operation between the participating states

¨  movement towards a common visa, asylum and immigration policy.

10.  The Schengen system has developed out of the merger of a number of Common Travel Areas among European states. The original Schengen Agreement, in 1985, brought together the Benelux Common Travel Area with the proposed open frontier agreement between France and Germany. The long-standing Nordic Common Travel Area provides for open frontiers between Denmark, Sweden, Finland (all now members of the European Union), Norway and Iceland; its merger with the Schengen Common Travel Area has necessitated special arrangements with the two non-European Union states. The United Kingdom has maintained a Common Travel Area with Ireland since before entry to the European Community. Between the two countries systematic controls have been replaced by selective checks, supplemented by intelligence about potential suspects and by cross-border co-operation between police and immigration services. The existence of this Common Travel Area means that United Kingdom and Irish policies towards participation in Schengen are closely linked. The Irish Government has made it clear that its opt-out from full participation in Schengen is due only to its commitment to maintaining an open frontier with the United Kingdom.

TERMINOLOGY - "CONTROLS" AND "CHECKS"

11.  A distinction is currently made between frontier controls and frontier checks. Frontier controls are systematic, and require every individual who enters a country to pass through an immigration control channel (QQ 16, 42). Frontier checks are intermittent, and are used mainly for customs and policing purposes (such as anti-terrorist measures). Some Schengen countries, such as France, operate checks in a 20-kilometre frontier zone where mobile patrols stop individuals and vehicles which they suspect are engaged in illegal activity. There are, however, no systematic static controls at the border.

"FRONTIER" AND "BORDER"

12.  As far as possible in this report, when discussing the Schengen States, a distinction is made between the external frontiers of the Schengen area (for example, between Italy and Switzerland), and the internal borders between Schengen states (for example, between France and Germany). When discussing the United Kingdom's arrangements, the word "frontier" is preferred. This usage cannot however be entirely consistent when quotations from witnesses are used.

UNITED KINGDOM POLICY ON FRONTIER CONTROLS

13.  The policy of the previous government was to resist any erosion of United Kingdom sovereignty over frontier controls. The current Government published a comprehensive statement of its policy in July 1998, in the White Paper Fairer, Faster and Firmer—A Modern Approach to Immigration and Asylum[9]. Among the 'policy principles' set out is the 'key objective' to:

"give effect to the 'free movement' provisions of European Community law while retaining controls at frontiers operated by a civilian Immigration Service." (2.3)"

This is amplified as follows:

"The Government has already made clear its commitment to maintaining the UK system of frontier controls and we have translated that commitment into practice. In the negotiations last year……which culminated in the Treaty of Amsterdam, the Government sought and obtained legally binding confirmation that the UK could continue to maintain its internal frontier controls at the frontier with other EU Member States." (2.10)

The Government argues that

¨  frontier controls are "an effective means of controlling immigration and of combating terrorism and other crime"

¨  these controls "match both the geography and traditions of the country and have ensured a high degree of personal freedom within the UK"

¨  this approach is different from that in mainland Europe, "where because of the difficulty of policing long land frontiers, there is much greater dependence on internal controls such as identity checks". (2.9)

14.  A Protocol to the Amsterdam Treaty expressly allows the United Kingdom to exercise frontier controls on persons seeking entry[10]. This was a necessary safeguard, as it was also agreed at Amsterdam to bring the Schengen arrangements within the European Union framework. The relationship between the United Kingdom and Ireland on the one hand, and the other European Union members of Schengen on the other, is set out in a further Protocol annexed to the Amsterdam Treaty[11] This describes the terms of the United Kingdom and Irish opt-outs of Schengen. But it also makes clear that each has a right at any time to request to take part in some or all of the Schengen acquis. The White Paper refers to co-operation between the Schengen States and notes that under the Amsterdam Treaty "The United Kingdom obtained various rights to opt into such co-operation in a flexible way so as to enable us to preserve our particular approach whilst also participating in those areas of co-operation which we judge important" (2.11). The Government will "give careful consideration" to opting-in taking into account three factors:

¨  the need to ensure effective co-operation within Europe in tackling organised crime

¨  the need to preserve the UK system of frontier controls

¨  and the maintenance of UK control of policy on immigration and asylum (2.12).

UNITED KINGDOM FRONTIER CONTROLS IN PRACTICE

15.  In practice, the frontier controls exercised over EEA nationals arriving in the United Kingdom are significantly less than those exercised over non-EEA nationals ("third country nationals"). Mr Warne, Director of the Organised and International Crime Directorate of the Home Office told us that "we treat them with a very light touch" (Q 3). The nature of the control exercised at the United Kingdom frontier therefore depends on the nationality of the persons seeking entry. Their place of embarkation (where they have come from) is irrelevant. Under the Schengen system, nationality is irrelevant. EEA and third country nationals alike may move freely between the Schengen States. But all are subject to a systematic control if they seek entry to the Schengen area from a non-Schengen (third) country. The key distinction between the United Kingdom and Schengen system of controls, as Mr Boys Smith, Director General, Immigration and Nationality Directorate, Home Office, observed, is that one distinguishes between "categories of person" and the other "places of origin". He added: "To that extent, therefore, the distinction we make between EEA nationals and third country nationals is fundamental to the control and to the general position on the Government's retention of its frontier controls". He did not envisage "any change of categorisation towards the geography rather than the person" (Q 321). The United Kingdom thus maintains a position which is incompatible with full membership of Schengen, in that no distinction is made between arrivals crossing the European Union's external frontier and arrivals crossing internal borders.

16.  The White Paper notes the steady increase in passenger arrivals in the United Kingdom over the past 10 years, from 44 million in 1987-8 to 80 million in 1997-8. On current projections of a continuing increase of around 8 per cent per year there will be close to 100 million arrivals in the United Kingdom in 2001-2, 90 million of which will arrive from elsewhere in the EEA, 10 million from outside. Witnesses explained to the Committee that the United Kingdom has lightened the implementation of frontier controls over the years, to enable larger numbers to flow through British frontiers without lengthy delays. Staffing levels at ports of entry have risen by less than 10 per cent in the past five years, while the numbers of passengers arriving has risen by 50 per cent. According to the White Paper, (6.5):

"without modernisation and greater operational flexibility, so that resources are targeted more effectively on tackling abuse and clandestine entry rather than routine work, it will become increasingly difficult to maintain effective frontier controls, cope with passenger growth, deliver the kind of service standards that facilitate trade, tourism and education, and maintain the United Kingdom's position as an international hub."

The Immigration and Asylum Bill contains new provisions to make the operation of immigration controls more flexible and effective. But the Home Secretary has made clear that "these provisions will not change the fundamental basis on which our immigration control operates. All arriving passengers will continue to be seen by immigration staff and may be refused entry if they do not qualify"[12].

THE COMMITTEE'S APPROACH

17.  In view of the Government's firm policy on frontier controls described above, the Committee's enquiry focused on two main issues. First, we examined the cogency of the Government's reasons for wishing to maintain its own frontier controls on arrivals from the EEA. Second, we considered the extent to which it might be possible or desirable for the United Kingdom to opt into the "compensating measures" of the Schengen Agreement.

10   Protocol on the application of certain aspects of Article 7a of the Treaty establishing the European Community to the United Kingdom and Ireland. Back

11   Protocol on the position of the United Kingdom and Ireland. Back

12   HC Deb, 22 February 1999, Col 37. Back