[ARTICLE 62]

ASYLUM AND MIGRATION POLICY:

UK SURRENDERS INCREMENTAL POWERS <= o:p>

ON BORDER CHECKS, ASYLUM AND IMMIGRATION

[ARTICLE 62]

AMENDMENT TO: Treaty of Lisbon amending the Treaty on European Union and t= he Treaty establishing the European Community (Lisbon, 13 December 2007)<= /span>

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Policy Area: Treaty on the Functioning of the European Union, Part Three Policies and Internal Actions of the Union, Titl= e IV – Area of Freedom, security and Justice, Chapter 2 – Policies on border checks, asylum and immigration, Article 62

Amendment:

Clause= 2, page 1, line 12, after ‘excluding’ insert –

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‘= ;(i) Article 2, paragraph 65, replacement Chapter 2 and Articles 62 to 63b TEC (TFEU) relating to policies on border checks, asylum= and immigration; and

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(ii)’.

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<= st1:City w:st=3D"on">Lisb= on Treaty: =

“= ;65) Articles 62 to 64 shall be replaced by the following Chapter 2 and Articles 62 to 63b. Article 62 shall replace Article 62, paragraphs 1 and 2 of Article 63 shall replace points 1= and 2 of Article 63, paragraph 3 of Article 63 shall replace paragraph 2 of Art= icle 64 and Article 63a shall replace points 3 and 4 of Article 63:

ARTICLE 62

1. The Union shall de= velop a policy with a view to:

(a) ensuring the absence of a= ny controls on persons, whatever their nationality, when crossing internal borders;

(b) carrying out checks on pe= rsons and efficient monitoring of the crossing of external borders;

2. For the purposes of paragraph 1, the European Parliam= ent and the Council, acting in accordance with the ordinary legislative procedu= re, shall adopt measures concerning:

(a) the common policy on visa= s and other short-stay residence permits;

(b) the checks to which perso= ns crossing external borders are subject;

(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;

(d) any measure necessary for= the gradual establishment of an integrated management

system for external borders;

(e) the absence of any contro= ls on persons, whatever their nationality, when crossing

internal borders.

3. If action by the Union should prove necessary to facilitate the exercise of the right

referred to in Article 17(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council s= hall act unanimously after consulting the European Parliament.=

4. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.”

Consolidated Treaty Article(s):

“Article 62<= /span>

The Council, acting in accordance with the procedure ref= erred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:

1. measures with a view to ensuring, in compliance with Article 14, the absence of any controls on persons, be they citizens of the Union or nationals of third countries, when crossing internal borders;

2. measures on the crossing o= f the external borders of the Member States which shall establish:

(a) standards and procedures = to be followed by Member States in carrying out checks on persons at such borders= ;

(b) rules on visas for intend= ed stays of no more than three months, including:

(i) the<= /span> list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement;

(ii) the procedures and condi= tions for issuing visas by Member States;

(iii) a uniform format for vi= sas;

(iv) rules on a uniform visa;=

3. measures setting out the conditions under which nationals of third countries shall have the freedom = to travel within the territory of the Member States during a period of no more than three months.”

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Expl= anation:

This Chapte= r concerns border checks, asylum and immigration policies. This new Article 62 (1) relates to the abolition of checks= on persons at the Union internal borders and “checks on persons and efficient monitoring of the crossing of external borders”, it is similar to the present Article 62 (1) (2) TEC. The= UK can = choose to opt into measures under this Article. The Schengen Protocol, the Protocol on the Position of the UK in r= espect of the Area of Freedom, Security and Justice are amended by the Lisbon Trea= ty. There is a Protocol on Transitional Provisions with respect to acts of the Union in the field of police cooperation and judicial cooperation in crimin= al matters which have been adopted before the Treaty of Lisbon entered into fo= rce, with special provisions for the UK. Although it is arguable if it is a free choice, the = UK has the right to choose wh= ether to take part in JHA legislation. Nevertheless, once opting in, the UK is subject to Commission powers of enforcement and jurisdiction by the ECJ.

Under the Protocols annexed to the Amsterdam Trea= ty, the UK is entitled to exercise fr= ontier controls. The UK has not given up its right to exercise controls on persons seeking to enter the United Kingdom. Neither is th= e UK boun= d by the Schengen acquis but is allowed to opt in to som= e of it. According to the Protocol on the position of the Uni= ted Kingdom and Ireland in relation to the Treaty of Amsterdam, the= UK does not take part in the adoption of measures under Title IV (visas, asylu= m, immigration) – nor are they bound in any way by them. However, the UK may = notify the Council of its wish to take part in the adoption and application of a measure and it is also allowed to opt-in to a measure after it has been adopted. Nevertheless, the UK Government= has opted into several immigration and asylum measures rather than staying out = of them. Therefore, a= lthough the UK has prevented t= he enactment of various pieces of asylum and immigration control, the UK from= has begun to lose its sovereign power to the EU over control of its own borders. =

The Article also makes tough moves towards an integrated EU management system for external borders. The new Article 62 = (1) (C) will also provide for a specific legal base for “the gradual introduction of an integrated management system for external borders.”= ; The EU has been undertaking activities in this field such as the Commission com= munication, Towards integrated management of the external borders of the Member States of the European Union, Management plan for the external borders of the Member States of the European Union. This was adopted by the JHA Council on 13 J= une 2002, the June 2002 Seville European Council= which called on the Commission and the Member States to implement several steps before June 2003. The establis= hment of FRONTEX, t= he External Borders Agency, was a major step in EU developments through an integrated EU border management system.

The European Agency for the Management of Operational Cooperation at the Extern= al Borders, known as FRONTEX, was established on 1 May 2005 by order of Council Regulation (EC) No 2007/2004 of 26 October 2004. Among FRONTEX’s tasks are: coordinating operational cooperation between Member States in managing= the external borders, assisting Member States in training national border guard= s, including the establishment of common training standards, conducting risk analyses, provides Member States with the necessary support= for organizing joint return operations, and assistance to Member States in circumstances requiring increased technical and operational assistance at external borders. Regulation on settin= g up rapid border intervention teams was adopted in 2007 which expands the FRONT= EX action. The Rapid Border Intervention Teams (RABITs) consists in the creation of a pool of experts= from the Member, trained by FRONTEX that can be deployed for a limited period of time in exceptional and urgent situations. Under the principle of “mandatory solidarity”, Member States will have to contribute deploying trained border guards at the request of the agency for external borders, FRONTEX. The UK is not a member of FRONTEX, and the UK appl= ication to participate was refused by the Council. Therefore, the UK has = not taken part in the adoption of the regulation on setting up rapid border intervention teams, and therefore, is not bound by it. However, the government wants to opt into the RABITs. FRONTEX does not constitute a ‘European Border Guard’ but it does create a coordinating comma= nd structure, and it can issue instructions to national border guard forces. T= he EU External Border Agency represents a major step towards the development o= f a super-integrated EU network structure of border guard forces. The inclusion of the concept of an "integrated system of external border management" in the Lisbon Treaty represents another step towards the creation of a 'European Border Guard' with mass= ive consequences for national sovereignty. The cre= ation of a European Border Guard entails external border control standards which would have to be implemented by national forces in charge of border controls, all with different powers, priorities and cultures. Moreover, the European Border Guard will have coercive powers. It would requ= ire significant changes to Member States’ national services on border controls. It remains to be seen what this Lisbon Treaty provision in realit= y entails in practice but it would mean further integration and interference in the f= ield of border controls.

When the Treaty of Amsterdam entered = into force, the rule concerning the adoption of measures in the field of visas, asylum, immigration in relation to the free move= ment of persons was that decisions would be made through Council unanimity and t= he consultation procedure. However, according to the present Article 67 (2) TE= C, the Council was allowed, acting unanimously and after consulting the European Parliament, to change the voting procedure for Title IV (visas, asylum, immigration) measures to the co-decision procedure, after a transitional period of five years following the entry into force of the = Treaty of Amsterdam. =

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According = to Article 67 (3), the rules on visas for intended stays of no more than three months, including: the li= st of third countries whose nationals must be in possession of visas when cros= sing the external borders and those whose nationals are exempt from that require= ment and a uniform format for visas are adopted by the Council acting by QMV aft= er consulting the European Parliament.

According to Article 67 (4) rules on visas for intended stays of no more than three months, including the procedures and conditions for issuing visas by Member States and rules on a uniform visa, after a transitional period of five years when the Amsterdam Treaty entered into force, are to be adopted through the co-decision procedure. A Council decision of 22 December 2004 provided that as from 1 Janu= ary 2005, the Council shall act in accordance with the co-decision procedure wh= en adopting measures concerning the absence of controls of persons when crossing intern= al borders (Article 62 (1)), standards and procedures for checking persons crossing external EU borders (Article 62 (2) (a)) and measures relating to third country nationals travelling within the EU during a period no longer than three months (Article 62(3)). Presently, only the list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, a uniform format for visas are adopted through the consultation procedure. The Lisbon Treaty confirms the = rule that policies on border checks are subject to the ordinary legislative procedure (co-decision) and QMV. The Lisbon Treaty provides that policies on border controls will be driven toward the achievement of common policies.

It should be observed that “any measure necessary for the gradual establishment of an integrated management system = for external borders” is to be adopted through the ordinary legislative procedure (codecision procedure) with the Counc= il acting by QMV.

The Council acting through special legislative procedure may adopt measures concerning passports, identity cards and residence permits. According to the exi= sting Article 18(3), the Council cannot adopt measures on passports, identity cards, residence permits, social secu= rity or social protection to ensure freedom of movement if such measures are not expressly provided for in the Treaty. There is no provision o= n the EC Treaty conferring express powers for the Community to adopt measures concerning measures on passports and identity cards. H= owever, this had not prevented the Council from adopting a Regulation on standards for security features and biometrics in pas= sports and travel documents issued by Member States using as legal base Article 62(2)(a) TEC, t= he Community border control powers. The Lisbon Treat= y introduces a new legal base, Article 62(3) which provi= des that if the Treaties have not provided the necessary powers, the Council ac= ting unanimously and after consulting the European Parliament (special legislati= ve procedure) may adopt measures concerning passports, identity cards, residen= ce permits or any other such document in order to supposedly support the exerc= ise of the right to move and reside freely within the territory of the Member States.

The Lisbon Treaty adds a new paragraph stating th= at “This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.” In fact, apart from this there is not much left f= or the Member States concerning border controls.

Finally, it should be noted that the Lisbon Treaty repeals Article 68 TEC involving the limits of ECJ power. According to Arti= cle 68 (2), the ECJ shall not have jurisdiction to rule on any measure or decis= ion taken pursuant to Article 62 (1), measures with a view to ensuring the abse= nce of any controls on persons when crossing internal borders, relating to the maintenance of law and order and the safeguarding of internal security. How= ever, Article 240b of the Lisbon Treaty expressly excluded ECJ jurisdiction “to review the validity or proportionality of operations carried out by the police or other law-e= nforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security&qu= ot; but within the provisions of Chapters 4 and 5 of Title IV, judicial cooperation in criminal matte= rs and police cooperation, the ECJ will have jurisdiction.