08 May 2003
1. Statewatch welcomes the chance to comment on the possible development of a European border guard'. Our chief concern is that there would not be adequate rules on accountability of such a body, and that the need for such a body is unproven.
2. Also, while it seems that the formal development of such a body has been placed on the back burner for the time being, the EU has instead been developing an alternative approach to greater cooperation on external border control. In place of purely national or wholly or partly 'European' external border control, the EU is setting up a complex system of coordination between national border authorities, likely to involve the use of coercive power by 'visiting' border guards. Our concern is that there is no adequate arrangement for accountability and many aspects of the EU's developing plans raise serious civil liberties concerns.
A European border guard
3. It is difficult to examine the prospect of a European border guard in the abstract. The Commission's plan to move toward such a body was detailed in its May 2002 communication on border control (COM (2002) 233), which set out a number of proposals for developing common control of the EU's external borders. The principal elements in this plan are a 'common unit' of senior border control officials to control the implementation of a common border control policy; further exchange of information between a large number of authorities, including the Schengen Information System, the visa information database, police authorities and Europol; and the development of a Common European Border Corps with powers to check people at the border, deny them entry, board vessels and arrest individuals.
4. The planned Border Guard would be a 'European Corps' of guards with coercive powers, answerable to the 'common unit'. They would have the power to do the following, within a defined territorial area close to the external borders:
- check the identity papers, travel documents and visas of persons crossing the external border legally or illegally;
- question aliens on the reasons for their stay in the common area of freedom of movement, or on the reasons why they have crossed the external border outside the official crossing points;
- go on board a civilian ship or boat in the territorial waters of a Member State to question the captain as to his route and to verify the passengers' identity;
- notify a person that he is admitted or refused entry to the common area of freedom of movement;
- apprehend a person and hand him over to the competent national authorities to take the appropriate preventive or enforcement measures (administrative, police, customs or judicial) where "necessary".
5. While the Commission claims that 'democratic and legal control of all these activities must be assured', the Communication is not reassuring on any of these points. As regards the European Border Guard Corps, the Commission acknowledges at the end that creation of the Corps may require amendment of the EC Treaty, at least for many of its functions. Implicitly, this is because the coercive powers imagined go well beyond the powers that Europol can exercise or that EU and Schengen rules permit national police or customs forces of one Member State to exercise in another. As such the extent of judicial and political control and accountability is essential. There is no discussion of the rules that would have to govern such a Corps as regards data protection, protection of human rights and asylum rules or judicial and political accountability. The main route of accountability envisioned seems to be control by the 'common unit' comprised of officials, but this would further beg the question in turn as to the adequacy of judicial and legal controls on the common unit.
6. The draft provisions before the EU Convention concern the creation of new EU powers over 'integrated border management'. It is not at all clear whether this would extend to the development of a European Border Guard. No specific provisions on accountability of an integrated border management system are provided for. For example, how could the legality of the force's entry onto a civilian ship or boat be challenged? How could the notification of the refusal of entry be challenged? How could the force's liability for its actions as regards apprehension of persons be challenged? It would often be necessary to detain persons pending handing them over to national authorities; to what extension could the detention and/or detention conditions be challenged?
7. In addition to the weaknesses as regards accountability, there is no convincing case for creating an EU-wide border control force. Existing national systems have established structures and systems for accountability and if need be, arrangements could be made for national border control staff to work together jointly within the framework of those systems, with possible modifications to ensure full accountability in such a cross-border context.
The current position: the EU Council plan
8. The June 2002 Council plan on external border control (Council doc. 10019/02) leaves until the future the possibility of developing a 'European Border Guard' (paras. 118-120). But much is planned in the meantime. The plan has 'five mutually interdependent components': a common operations coordination and cooperation mechanism; common integrated risk analysis; personnel and inter-operational equipment; a common corpus of legislation; and burden-sharing between Member States and the Union. The border guard heads meeting within SCIFA (now called 'SCIFA+' in this context) are in charge of the common mechanism, and their main task is to supervise a highly decentralised network of ad hoc centres, mostly to be set up by summer 2003, that contribute to the application of the plan. There are to be 16 ad hoc centres, each focusing on a different practical issue. However, despite the central importance of this network, it is mentioned only briefly in the final version of the plan and the 16 issues are not listed. The list of the issues can only be found in a separate Italian feasibility study on an EU border guard.
9. The 16 issues in the Italian study were:
- setting up an immigration liaison officer network at international airports;
- setting up an immigration liaison officer network in non-Member States, or at Member States' headquarters;
- a network of centres for forged documents;
- the creation of an integrated secured intranet between different national border police units;
- the creation of a uniform practical guide for border control guards;
- personnel exchange among border checking points;
- common risk assessment;
- common training;
- rationalising repatriation operations;
- rapid response unit;
- an expert group for missions abroad;
- coordinated criminal investigations;
- creation of a permanent technical support facility and new technical equipment for border guards;
- quality management;
- centres for border police and customs at external borders;
- a common core curriculum.
10. The institutional framework for the cooperation in the Council plan is very light. There was no agreement to set up a secretariat to assist with further detailed coordination as the 16 elements get going. Instead, the activities of the ad hoc centres will simply be coordinated by SCIFA+. However, since SCIFA is a Council committee, it will presumably be possible for the Council secretariat to perform such a role without need of a formal agreement to this effect. Each of the 16 issues is to be coordinated by one or more lead Member States, and it is also possible for a Member State to coordinate more than one. It was up to Member States to volunteer for this task, and many have done so, including the UK. Other Member States then decided which of the projects they wished to participate in. The Council plan also provides for continued joint operations, which to some extent cross over with the work of the ad hoc centres.
11. The plan was endorsed by the Seville European Council (summit meeting), which set deadlines to achieve several elements: end 2002 for joint operations, pilot projects and a network of immigration liaison officers, and June 2003 for a common risk analysis model, a common core curriculum and consolidation of EU border rules and a Commission study on EU financial support for border control.
12. A number of these ad hoc centres and joint operations have now apparently begun operations, but there is no overall published report on the present situation as regards implementation. But it is clear that so far the entire process has involved no legally binding rules. So the position if anyone wants to test the legality of or sue for damages following one of the EU's joint operations is very unclear. It is similarly unclear where accountability would lie if there were complaints about activities relating to the joint centres, for example the 'risk analysis' centre which could become involved in profiling people based on race, nationality or religion or the exercise of coercive force by one Member State's guards visiting the territory of another Member State. Will the risk analysis system be applied to persons living in-country, with the result that there will be further calls for further registration, data collection and control of foreign citizens? Will it take account of the 'profiles' of those who have, or who arguably have, a well-founded claim for asylum or other form of international protection?
13. No system has apparently been established for accountability to the European Parliament and/or national parliaments. This is particularly problematic in light of the intention to use EU funds from the 'ARGO' programme for many of these activities.
14. The participation of the UK in these plans is also problematic, because it has formally opted out of EU border control rules. It appears that the UK may participate or have already participated in the German land borders project, the Finnish risk analysis project, the French expulsion project and a joint operation on visa checking at airports, on top of proposing projects of its own. Why does the UK consider it legitimate to participate in these measures when it has not abolished internal border checks with other Member States?
15. There is also an apparent tendency to expand the plan beyond the normal scope of border controls. The plan on mass expulsions clearly concerns persons already inside the country, and similarly the Portuguese argued that the new joint operation should concern visa checks not just at airports, but in-country - effectively arguing for a massive coordinated check on 'foreign-looking' persons inside the EU. Although the Portuguese were rebuffed for now, the French programme was approved. Member States will thus be participating in joint expulsion operations without regard for whether the other participating Member States meet the same basic standards on expulsions, and there may be pressure to speed up and/or increase the number of expulsions in order to participate in the plan.
16. It should be noted that repatriation operations were not discussed in the Commission communication on border controls and developments in the Council on this topic preceded assessment of the results of the public consultation launched by the Commission's Green Paper on return of illegal immigrants, which has since resulted in an (unpublished) Council Action Plan on return.
17. Also, there is no system to ensure that the right to asylum is respected within the context of this new plan. Will the common curriculum on borders deal with this issue, and will guards be trained to recognise a claim for asylum and apply the international (and soon EU) rules on this subject? Or do some Member States see this is as an opportunity to train others in methods of refusing applications at the border? Moreover, there is no recognition in the plans for the new joint operation that fraudulent visas are sometimes legitimately used by persons who wish to claim asylum.
18. The prospect of any move toward a European border guard should be rejected as unnecessary and lacking in any effective system for control and accountability. The current move towards an informal 'European border guard' should be subjected to clear limits and moves must be taken to enhance its accountability to the public and parliaments, for example by the adoption of legislation to govern its operation, including effective data protection rules, and a system of regular public reporting (at least every six months) to the public at large and the European and national parliaments.
8 May 2003
(prepared by Steve Peers)
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