EU Schengen: UK given rough ride
01 September 1999
The UK’s "pick-and-mix" approach and obstinance over security and border controls in opting into the Schengen provisions has been widely criticised in the EU
The United Kingdom government has formally applied to participate in the provisions of the Schengen acquis relating to police cooperation, mutual assistance in criminal matters, narcotic drugs and the Schengen Information System (SIS). The application was provided for by Article 4 of the Schengen Protocol to the Amsterdam Treaty which integrates the acquis into the EU framework. Because the "special position" of the UK in regard to its "island geography" is enshrined in the Treaty, it is able to remain outside Schengen's (fundamental) provisions on the free movement of persons - those on border control and visa policy (Schengen asylum provisions are now all but supplanted by the Dublin Convention). While the UK Parliament will be required to legislate on amendments to British criminal law, it was not asked to agree on the UK's application.
Intention to apply was announced at the Justice and Home Affairs Council in March (see Statewatch, vol 9 no 2), but the formal application had to wait until the entry into force of Amsterdam and the following JHA Council in May (28-29). Acceptance of the UK's application requires unanimity among the 13 Schengen states. And although the Finnish Presidency has just submitted a first draft of the Council Decision for discussion within the EU JHA Council groups, several important issues remain unresolved.
Representatives of a number of countries are critical of the UK's "pick-and-mix approach", and raised concerns about setting a precedent of the possibility of partial application of EU laws by the applicant countries. There was also widespread opposition to the splitting of individuals articles, i.e. partial implementation of Schengen measures and directives.
Ireland also has the right to seek to participate in Schengen provisions, and its application had been expected with that of the UK (the two countries have been discussing aspects of implementation) but is now not expected until late in the year.
"Freedom, security & justice"? The UK's obsession with security
The Commission underlined that its approach in regard to the UK's application was positive but that it had nevertheless to be pointed out that the request was very security-orientated and would to a large extent not cover freedom- and justice-related aspects..." (Outcome of proceedings, EU Schengen Acquis Working Group, 27 July 1999).
The European Commission, who are obliged to submit an opinion on the UK's application, is not alone in suggesting that its scope should be widened. The Commission wants the UK to participate in freedom of movement provisions for lawfully resident third country nationals. Article 21 of the Schengen Implementing Convention grants the right of free movement to non-Schengen nationals who hold a residence permit (or equivalent) in a member state. Its application in Britain would benefit a large number of people who are lawfully allowed to live here but require visas for travel in Europe.
SIS: a single integrated system?
The UK's pick and mix of Schengen provisions is most problematic in respect to the SIS. Data to assist immigration authorities and border control exists alongside that relating to policing and criminal matters, necessitating some kind of partial access to the system by the designated UK authorities. France was not alone in opposing the splitting of the SIS and in considering it a single integrated system suggested that the UK should instead widen its application to all SIS-related provisions. Solutions to the technical problems are based on either alteration of the C.SIS (the central system) to prevent the UK receiving the "alerts", or measures in the UK's N.SIS (the national interface) to either prevent access or delete the alerts on receipt. Both are problematic: the former com