This post is part of a series about the UK review of the balance of competence between the EU and the Member States (and the UK in particular). For more details about the review as a whole see my earlier post.
The review on to Asylum and Migration is being undertaken by the Home Office. They published a call for evidence (a summary of the current situation as they see it) along with a legal annex (which covers the same ground in more detail) and a response form.
The documents were published on 16 May and the deadline for responses is 5 August 2013.
The call for evidence is divided into three core sections:
- The EU and the UK Border (this post relates to this part only)
- The EU and Asylum
- The EU and Legal Migration
Policy Context and Extent of this Review
In an introductory section, the document sets out what it sees as the policy context. It makes it clear that this review is not about the free movement of persons within the EU; that is dealt with by another review being done at the same time, also by the home office.
The EU and the UK Border
The document starts from the so-called Schengen Agreement. This is an agreement made by a number of EU (and non-EU) countries; it originally came into force in 1985 and it allows for border free travel between the countries that have signed up to it. In other words, the reason why you don’t get stopped in your car when you travel from France to Germany or from Spain to Portugal (for example) is the Schengen Agreement.
Whilst the Schengen agreement was signed in 1985, the so called Schengen area came into effect only in 1995; at that point, the countries which belonged to it were: Belgium, France, Germany, Luxembourg, Netherlands, Portugal and Spain.
Italy and Austria joined in 1997; Greece in 2000; in 2001, the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden) joined; this was the first time a non-EU Member State joined and the reason for Norway and Iceland to join related to the Northern Passport Union.
Most of the so-called ‘new’ Member States of the EU joined in 2007: the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia; Cyprus did not join at that point because of the conflict which continues between the northern and southern part of Cyprus.
Switzerland joined in 2008 and Liechtenstein in 2011.
Romania and Bulgaria are not members yet because in the view of the Council of Ministers they do not yet fulfil the requirements of joining the Schengen area in terms of their control of their external (i.e. non-EU) borders. Croatia, which joined the EU in July 2013, is also yet to join the Schengen area.
The UK and Ireland do not participate in this open borders agreement. Therefore, when you board the Eurostar in Brussels or Paris, you have both a Belgian/French border control (because you are leaving the so-called Schengen area) and a UK border control because you are entering the UK.
The Schengen Agreement was incorporated into the Amsterdam Treaty in 1997; the UK and Ireland have an opt-out from this part of the Treaty. That means that they participate only in parts of this part of the Treaty. Whether or not they participate in specific parts of this depends on whether they agreed to do so at the outset and/or whether they applied to participate later on. Application for later participation in elements of that section of the Amsterdam Treaty is subject also to the agreement of the other Member States.
Visas and Residence Permits
The UK is bound by a regulation that predates the Amsterdam Treaty, which relates to the format of visas for third country national – i.e. people from outside of the EU/EEA (EEA = European Economic Area; this includes the EU Member States and Norway, Iceland, and Liechtenstein) area. What that means is basically that all visas issued by all countries within the EU have the same format.
The other element that the UK has opted into is a regulation relating to the format of residence permits.
Because the UK does not participate fully in the Schengen Agreement, it does not have access to the Schengen Visa Information System which allows those countries that do have access to check on visas issued to third country nationals by other Schengen countries; and by implications, information about overstays of visas, refusals of visas and the like.
There must be a question as to whether it is in the UK’s interest not to exchange such information with other countries within the Schengen Area.
As stated above, the UK maintains its own border controls at all points of entry (whether from within the Schengen Area or not).
This raises two points: first, is it more efficient and cost effective to do this? The only border crossing point, which could be called a land border, is the Eurotunnel where passengers transit from Belgium/France into the UK on land – either by car or on foot. The fact that they have to have border checks there requires significant infrastructure and personnel in Brussels, Lille, Paris, Calais, Folkestone and London (and in a few other places in France where the Eurostar goes at certain times of the year).
This slows down boarding of trains and from personal experience, the fact that there is now a control by UK border forces both at the point of entry into the Eurotunnel (in Brussels, Lille and Paris) and at the point of exit (in London) is certainly irksome.
Whether it actually achieves anything is hard to judge; there appears not to have been any research into the efficacy of this arrangement.
Given that all other border crossing points into the UK – with the exception of the border with the Republic of Ireland; and as Ireland is also not in the Schengen Area, we don’t need to consider that border here – are sea or air borders having UK border controls there would in any event be necessary because they are borders with non-EU countries just as much as with EU countries because ships and planes can come from anywhere and they would not have been subject to prior controls at another EU border point.
But of course, this also applies in Schengen countries where ships and planes arrive from outside the EU. So even if the UK were in the Schengen Area it would need border control at most of its points of entry.
Hence, non-participation in border control under the Schengen Agreement is probably of minimal impact in terms of the cost effectiveness of the UK border arrangements.
The Schengen Area has a joint border control force called FRONTEX; the UK does not participate in this; but it does participate in some aspects of the work of FRONTEX. Recent examples (as quoted in the call for evidence) are:
- Joint operations with an EU- wide approach such as Poseidon Land which targeted illegal migration on the Turkish/Greek Border
- Pilot Projects – including Vega; the development of a handbook on best practice for the detection and interception of facilitators using airports for human smuggling and trafficking
- Research and Development activities on Automated Border Controls and Passenger facilitation Advanced Passenger Information
The UK does participate in EU legislation to exchange passenger data.
Questions to the respondents to the call for evidence
The call for evidence asks 5 questions in relation to this part of the consultation:
- What are the advantages or disadvantages of the UK opting out of the border and visa aspects of the Schengen Protocol?
- If the UK had decided not to opt out of the border and visa aspects of the Schengen Protocol, what impact would this have had on the EU competences? Would this have been in the UK national interest?
- What future challenges do you see in the field of borders and visas and what impact might this have on the national interest?
- Could action be taken in a different way i.e. could the EU use its existing competence on borders and visa matters differently which would deliver more in the UK national interest?
- Are there any other general points you wish to make which are not captured above?
The form provided to respond to these questions gives only a very short space for response and the respondent can’t alter the space provided.
To me, the questions have a number of flaws:
The first question in particular sounds more like an A-level exam question to test that respondents have understood the document provided. That’s not really the way to consult people effectively because it is not requesting opinions or experience.
The second question asks whether the UK not opting out would have had any impact on EU competence; the opt out isn’t changing EU competence, though, it is only changing the applicability of that competence to the UK. It also asks about the impact on the national interest. My main criticism of this ill-designed consultation has to be this questions which is posed without any attempt at defining the national interest in any way.
Despite the problems with the questions I have attempted a submission. If you are interested, you can read it here.
But more importantly, make your own submission. If there are not many responses from ordinary citizens, the only voices that will be heard are those of the vested interests.