European Law Monitor

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Is the UK in control of its borders as an EU Member?

This is a key question as:

  • It was a major factor in the EU Referendum
  • Lack of control over our borders was heavily pushed by a number of Leave campaigners
  • It is still an important factor for many voters

The aim of this article is to discuss whether or not it is true that the UK is not in control of its borders as an EU Member. A significant number of people are under the impression that

  • Any EU national can move to another EU country without any controls.
  • We can’t stop benefit tourists
  • We can’t stop terrorists and criminals from coming in.
  • We don’t know who is coming in.

In fact, free movement is a very specific right. It gives you the right to:

  • Move to another EU country if you have a job lined up.
  • Go and look for work in another EU Member State, provided you have the money to support yourself so you do not become a drain on the State. You can only job-seek for up to six months and after that you can be sent home, unless you have the funds to support yourself so you don’t need to claim benefits, and you are actively seeking work.
  • Study in another EU Member State or set up a business in another EU country.
  • So, free movement gives you the right to travel, work and study in 28 countries.

Free movement is not an absolute right. Member States have the power to over-ride the free movement provisions on the grounds of Public Policy, Public Security and/or Public Health. Further information on the powers of Member States to either exclude someone or kick them out can be found in Article 27 of Directive 2004/38.

Can the UK protect itself from terrorists and criminals as an EU Member?

It has long been recognised that free movement carries the risk that terrorists and criminals will use the free movement rules to commit crimes and terrorist acts. In response, the EU , in conjunction with the Member States has developed judicial cooperation in criminal matters rules.

There are therefore two systems that apply to judicial cooperation in criminal matters, the EU system and the international system. The EU system of judicial cooperation in criminal matters includes

  • The European Arrest Warrant which was used to catch the London bombers.
  • The European Criminal Records Information system (ECRIS) which allows every EU country to share up to date information on the criminal records of their nationals with every other EU member state via a central authority, including information sharing on paedophiles and sex offenders. This information is transmitted electronically.
  • Freezing orders, where criminal assets are frozen across all EU countries once a freezing order is issued
  • EU rules relating to financial penalties in criminal matters, which mean that if a criminal is fined he can’t just move to another EU Member State to avoid paying, as the penalty will follow him and can be enforced in any EU Member State where he lives, or owns property.
  • EU wide confiscation orders allow proceeds of crime to be confiscated in every EU Member State. These are used particularly in relation to organized crime networks which often have illegal assets across different EU Member States.
  • EU Rules on the transfer of prisoners between Member States, which means that if an EU national commits a crime in another EU Member State they will be sent back to their own country to serve their sentence rather than staying in the country where they committed the crime.
  • EU wide rules on managing prisoners on probation. Prisoners on probation will be sent back to their own country whilst they are on probation, after committing a minor criminal offence.
  • The European Evidence warrant (which will be replaced from May 2017 by the European Investigative Order ) which allows evidence to be collected in criminal cases across different EU Member States.

The other system that the UK would default back to post Brexit (in the absence of access to these systems being agreed as part of the negotiation) is the international system, which basically covers the work done by Interpol and uses extradition as a way of bringing people to trial in another country. This is of limited efficiency, and difficult to manage, as it's largely a political process.

The former head of Interpol, Ronald Noble, had this to say about the UK:

"Among the European countries that are not parties to the Schengen Agreement is the United Kingdom, which began screening passports against Interpol’s database following the 2005 terrorist attacks there that killed 52 people and injured more than 700. The U.K. now screens about 150 million passports a year, more than all other European Union nations combined, and catches more than 10,000 people a year trying to cross its borders using invalid travel documents"

This strongly suggests that the UK is very much in control of its borders as an EU Member.

In Theresa May’s Brexit objectives speech, she said “I want our future relationship with the European Union to include practical arrangements on matters of law enforcement and the sharing of intelligence material with our EU allies.”

This means that Theresa May is hoping to keep the same systems, rather than default away from them. As the former Home Secretary she is well aware of how well these systems work, which is why she still wants to have access to them, as she knows they help keep the UK safe. From this, we can only conclude that the UK was in control of its borders as an EU Member. It will have less control outside the EU as it won’t have access to the same mechanisms and information, unless the other Member States agree.

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