End of Brexit Transition: Security Cooperation: Briefing Paper

BRIEFING PAPER
Number 9086, 23 December 2020
End of Brexit transition: By Joanna Dawson

Security cooperation Melanie Gower
Contents:
1. Background
2. An agreement on future
security cooperation?
3. No-deal at the end of the
transition period
4. Operational impact
5. Impact on border security
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2 End of Brexit transition: Security cooperation
Contents
End of Brexit transition: Security cooperation 1
Summary 3
1. Background 5
1.1 Security cooperation with the EU 5
1.2 Data adequacy 7
Possible obstacles to an adequacy decision 7
2. An agreement on future security cooperation? 9
2.1 What would an agreement cover? 9
The EU draft text 9
UK draft text 12
3. No-deal at the end of the transition period 14
4. Operational impact 15
Data and intelligence 16
Extradition 17
Membership of agencies 17
4.1 Contingency planning 18
Existing fall-back mechanisms 18
Bilateral arrangements 20
5. Impact on border security 22
5.1 Operational impact 23
5.2 Applying UK criminality standards 26
Immigration checks on EU nationals January -July 2021 26
Immigration Rules grounds to refuse 26
5.3 The long-term plan for border security 29
Cover page image copyright Flagging support by Dave Kellam. Licensed under CC BY
2.0 / image cropped.
3 Commons Library Briefing, 23 December 2020
Summary
Security cooperation with the EU
During the transition period the UK has continued to participate in EU
measures aimed at supporting and enhancing internal security and
criminal justice cooperation. These include:
• Fast track extradition under the European Arrest Warrant;
• Access to law enforcement databases including the Schengen
Information System and European Criminal Records Information
System;
• Exchange of Passenger Name Record (PNR) data on travellers
• Membership of agencies such as Europol and Eurojust
The UK has also continued to apply EU data protection rules that
underpin the free flow of data between member states.
What will change at the end of the transition period?
At the end of the transition period the UK will lose access to these
measures. Security cooperation with the EU will change in either a deal
or no-deal scenario. Draft treaty texts published by the EU and the UK
during the negotiations identified agreement on a number of key issues,
such as fast track extradition, ongoing cooperation between UK law
enforcement and Europol, and exchange of PNR. However, the EU has
made clear that the UK will not have direct access to EU databases.
Some existing measures were not replicated at all in the negotiating
texts, and other areas of cooperation, such as the relationship with
Europol, would be diminished under the proposals.
In a no-deal scenario, the UK would have to fall back on pre-existing
Council of Europe Conventions in certain areas, such as extradition.
Information such as wanted notices could be exchanged via Interpol
systems and cooperation between law enforcement agencies would
take place on a bilateral basis with EU member states.
In order to ensure that data can continue to be exchanged freely
between the UK and the EU, the UK is seeking a data adequacy decision
from the European Commission. If this is not forthcoming at the end of
the transition period, organisations will need to ensure they have
alternative arrangements in place to exchange data on a lawful basis
under the General Data Protection Directive and the Law Enforcement
Directive.
Operational impact
Senior law enforcement officials have made clear since the referendum
that losing access to EU based mechanisms for cooperation would result
in a ‘capability gap’ because the alternatives would inevitably lead to a
reduction in available information, and would be slower and more
complex.
Assistant Commissioner Neil Basu of the Metropolitan Police said in
November that the country would be less safe in a no-deal scenario.
Even with a deal, Chair of the National Police Chiefs’ Council Martin
Hewitt has said that losing access to databases would have a “major
operational impact”.
Nonetheless, contingency measures that have been put in place since
the referendum would mitigate the impact of the capability gap,
including transferring alerts onto Interpol databases and establishing an
International Crime Coordination Centre.
The Government has sought to emphasise that the UK will remain a
very safe country, and that there may be a “security dividend” from
having greater control over borders.
Impact on border security
The Government has said that gaining greater scope to refuse entry and
remove EU national offenders from the UK is an example of how UK
security will benefit from leaving the EU.
Stricter immigration rules on refusing immigration permission on
criminality/conduct grounds will apply to EU nationals from 1 January
2021. But border staff will not be able to make full use of these until
July 2021. This is because until the deadline for eligible EU nationals to
apply to the EU Settlement Scheme has passed, and a new IT system for
border staff (‘Border Crossing’) has been fully rolled out, they will not be
able to distinguish between non-resident EU nationals seeking entry as a
visitor, and EU nationals (and family members) with rights protected
under the Withdrawal Agreement.
A concern for some stakeholders is whether, under the new relationship
with the EU, border staff will have access to less information on which
to base decisions about who to allow into the UK.
Information shared through EU security co-operation arrangements,
such as SIS II, will no longer be available to border staff through
searches of the domestic border security databases after the end of the
transition period, unless provided for in a new agreement with the EU
or through alternative arrangements.
Ministers have pointed to the availability of “domestic fallbacks” and
the possibility of information sharing through Interpol and bilateral
channels. Similar doubts to those expressed in the context of law
enforcement more generally have been raised about the adequacy of
the post-transition systems for identifying people who might not be
suitable for entry to the UK.
1. Background
1.1 Security cooperation with the EU
As a member of the EU, the UK participated in more than 40 EU
measures that aim to support and enhance internal security and criminal
justice cooperation.
Much of this cooperation has continued unchanged throughout the
transition period, as provided for by the EU UK Withdrawal Agreement. 1
At the end of the transition period the UK will cease to have access to
these cooperation mechanisms and it is therefore necessary to agree a
new basis on which to extradite people between the UK and the EU; to
exchange law enforcement intelligence and data; and to facilitate
cooperation between law enforcement and criminal justice agencies.
Measures deemed to be particularly significant include:
• The European Arrest Warrant (EAW): this is a streamlined system
for extradition between EU Member States. It allows for arrest
without a warrant on the basis of a request from an appropriate
authority; provides for limited enquiry into the basis of the
request; and requires adherence to strict time limits. It is therefore
significantly cheaper and quicker than traditional extradition
arrangements
• Access to databases and exchange of information, including:
─ Second Generation Schengen Information System (SIS II): SIS
II is a database of real time alerts about individuals and
objects (such as vehicles) of interest to EU law enforcement
agencies. It includes information on people wanted under a
European Arrest Warrant, suspected foreign fighters and
missing people. It contains around 70 million “alerts” on
individuals or objects likely to be of interest to border
control, customs and law enforcement authorities. Alerts
created in any of the 29 countries operating SIS II are stored
in a central database and are immediately accessible to end-
users. SIS II alerts are made available to the police through
the Police National Computer and to Border Force officers
at ports of entry.
─ European Criminal Records Information System (ECRIS):
ECRIS provides a system for the exchange of information on
criminal convictions between Member States. 2 Member
States are obliged to inform each other when they convict
one of their nationals. 3 Member States are also required to
respond to requests for previous convictions for criminal
proceedings. This means that previous convictions in
another Member State can be taken into account for
sentencing purposes and in decisions about deportation.
ECRIS can also be used to run criminal record checks against
1
The Withdrawal Agreement provided that EU member states and the UK could
refuse to extradite their own nationals, where national law prohibited it. Germany,
Austria and Slovenia chose to exercise this option.
2
Decision 2009/316/JHA
3
Council Framework Decision 2009/315/JHA
individuals where required under national law, for example

to screen individuals seeking a firearms licence or applying
for a job involving vulnerable groups, such as children.
─ Passenger Name Records (PNR): PNR is information collated
by a carrier as part of the travel booking process, such as
contact details and travel itinerary. The EU adopted
legislation in April 2016 on the use of PNR data for flights
flying into the EU, for the prevention, detection,
investigation and prosecution of terrorist offences and
serious crime. 4
─ Prüm : The Prüm Decisions are EU Council Decisions 5 which
embed into EU law a pre-existing Convention between
several EU member states, providing mechanisms to
exchange information between member states on DNA,
fingerprint and vehicle registration data for the prevention
and investigation of cross-border crime and terrorism. Prüm
significantly reduces the time taken to run an initial check
against biometric data (DNA profiles and fingerprints).
• Participation in agencies, including:
─ Europol: 6 Europol’s main objective is to support and
strengthen action by Member States’ law enforcement
authorities and facilitate cooperation between these
authorities in preventing organised crime, serious crime and
terrorism, where the crimes affect two or more Member
States. It has analytical capabilities, processing data and
making links between crimes in different countries. It also
hosts a number of investigative hubs including the
European Counter Terrorism Centre; the European
Cybercrime Centre; and the EU Internet Referral Unit The
Europol Information System (EIS) pools information on
criminals and terrorists from across the EU. Seconded
Liaison Officers from the EU Member States and certain
third countries are based at its headquarters in The Hague.
─ Eurojust: Eurojust 7 provides support and coordination to
investigations and prosecutions in cases of cross-border
crime. This may involve advising on the requirements of
different legal systems; supporting the operation of mutual
legal assistance arrangements; facilitating the execution of
arrest warrants; and providing legal, technical and financial
support to Joint Investigation Teams (JITs).
4
Directive 2016/681
5
Council decisions 2008/615/JHA (Articles 3,4,9 and 12) and 2008/616/J
HA, Framework Decision
2009/905/JHA
6
EU Regulation 2016/794
7
Council Decision 2002/187/JHA
Other measures include prisoner transfer arrangements; 8 the European

Investigation Order (EIO); 9 the European Protection Order; 10the
European Supervision Order; 11 and arrangements for the confiscation
and freezing of assets in connection with criminal investigations. 12
Articles 62 and 63 of the Withdrawal Agreement provide that relevant
EU law continues to apply with respect to these measures, where
appropriate, if initiated by the relevant competent authority before the
end of the transition period.
1.2 Data adequacy

As a member of the EU, the UK was subject to EU data protection law -
the General Data Protection Regulation (GDPR), and the Law
Enforcement Directive (LED). The Data Protection Act 2018 (DPA)
applied GDPR in the UK and implemented the LED. However, in order
for the UK and the EU to continue to exchange data after the end of
the transition period, the EU will need to be satisfied that the UK will
continue to provide adequate protection to EU citizens’ data (as the UK
will of the EU).
This issue is not subject to a negotiation. Each party will have to take a
unilateral decision as to whether the other satisfies the requirements of
its data protection laws. The UK Government has said that it will treat
the EU as adequate.
On the EU’s part, the Commission would have to make this decision in
accordance with Article 45 of the General Data Protection Regulation
for the transfer of PNR data or anti-money laundering and counter-
terrorism data. For all other data transfers the Commission would have
to make a data adequacy decision in accordance with Article 36 of the
Law Enforcement Directive. 13
If no adequacy decision is granted, data may be exchanged but this
would be on the basis of specific agreements governing the exchange
of data between organisations. Such arrangements may be more costly
or cumbersome for organisations.
Possible obstacles to an adequacy decision
Concerns have been raised by stakeholders that the Investigatory
Powers Act 2016 (IPA), which governs the UK’s surveillance regime,
could prove to be an obstacle in obtaining an adequacy decision,
8
Council Framework Decision 2008/909/JHA established a system for transferring
convicted prisoners back to their country of nationality or habitual residence,
provided they have 6 months to serve. Deportation may take place without the
consent of the convicted person.
9
The EIO governs requests for evidence between member states: Directive
2014/41/EU
10
The EPO enables a judge to impose ‘protection measures’ in order to protect a
person against a criminal act, such as prohibitions or restrictions imposed on a
person causing the danger: Directive 2011/99/EU
11
Council Framework Decision 2009/829/JHA
12
Regulation 2018/1805
13
Directive (EU) 2016/680
particularly in light of recent CJEU case law, which invalidated the EU-
US Privacy Shield on the basis of concerns about surveillance. 14
Giving evidence to the House of Lords Security and Justice
subcommittee, Sir Rob Wainwright, former director of Europol
acknowledged that recent CJEU decisions made the position difficult
with respect to national security laws in the UK. However, he suggested
that if there was political consensus to ensure some form of continuity
on data transfers, a data adequacy decision should be possible. 15
Another recent CJEU decision concerned the regime for acquiring and
retaining bulk data under the Telecommunications Act 1984, the
predecessor to the IPA. 16 The court concluded that the powers were not
compatible with EU law. However, the Government’s view is that the
additional safeguards introduced by the IPA are sufficient to ensure
compatibility. The Security Minister James Brokenshire said in a recent
letter to Lord Ricketts, Chair of the House of Lords Security and Justice
Sub-committee,
We believe that we are in a far stronger position than any other
country that has yet been granted adequacy, none of which have
been former EU members and we hope that this process will
therefore be finalised quickly. 17
14
Schrems II (C-311/18)
15
EU Security and Justice Sub-Committee, Oral evidence: Post-Brexit police
cooperation, 3 November 2020, Q 14
16
Privacy International (C-623/17)
17
Letter from James Brokenshire to Lord Ricketts, 21 December 2020
2. An agreement on future
security cooperation?
The EU and UK both published draft treaty text during the negotiations
proposing arrangements for future cooperation in this area. 18
The EU’s proposal was that an agreement on cooperation should form
part of the overarching future relationship agreement, with the effect of
creating co-dependencies with other aspects of the negotiation.
Part Three of the EU’s draft treaty provided for a Security Partnership.
Title I covered law enforcement and judicial cooperation in criminal
matters. Title II, on foreign policy, security and defence was left to be
dealt with in a separate document, in recognition of the UK’s position
that it should not form part of the negotiations on the future
relationship. Title III covered thematic cooperation, including irregular
migration; health security and cyber security.
The UK proposed a stand alone agreement on law enforcement and
judicial cooperation in criminal matters.
2.1 What would an agreement cover?

The EU draft text
Human rights and data adequacy
The EU text introduces three forms of conditionality on human rights.
The first condition relates to the agreement as a whole, making a
continued commitment to the European Convention on Human Rights
(ECHR) an “essential element” of the future relationship. Failure to
comply would mean that part or all of the agreement could be
suspended. In relation to the specific provisions on law enforcement and
judicial cooperation, cooperation would be conditional on the UK’s
continued adherence to the ECHR, and the UK continuing to give effect
to the Convention in domestic law. This would mean that individuals
could continue to rely on ECHR rights in UK courts, as is currently
provided for by the Human Rights Act 1998 (HRA).
Adequate data protection is another precondition for security
cooperation. Under the EU’s draft text, any transfer of personal data
would require the Commission to grant an adequacy decision with
respect to the UK. That would be a unilateral assessment by the
Commission that the UK’s data protection regime is “essentially the
same” as EU data protection laws. Without this there would be no
cooperation under those parts of the agreement. If the Commission did
grant an adequacy decision, cooperation would be immediately
suspended if it was subsequently repealed or declared invalid by the
CJEU.
18
Draft of the Agreement on the New Partnership with the United Kingdom; UK Draft
working text for an agreement on law enforcement and judicial cooperation in
criminal matters
Data exchange
The treaty would enable automated searching and comparison of DNA
profiles, fingerprints and vehicle registration data.
Exchange of PNR data would be permitted, subject to safeguards as
previously determined by the CJEU. 19 The UK would be required to
share analysis of PNR data with Europol, Eurojust, and Member States’
authorities.
The treaty would provide for ‘cooperation on operational information’,
which refers to the exchange of existing information and intelligence for
the purpose of conducting criminal investigations, or otherwise
detecting, preventing or investigating certain criminal offences.
This would be a replacement for the capabilities currently provided for
by SIS II. However, the draft treaty makes clear that these provisions
would not give the UK access to data processed in databases
established on the basis of Union law, and that information would be
provided in response to a request. It would not therefore provide
capabilities comparable to those of SIS II.
Participation in agencies
The draft treaty would provide for ongoing cooperation with Europol
and Eurojust, including the secondment of liaison officers to Europol,
and of liaison prosecutors to Eurojust. It sets out safeguards and
limitations on the exchange of personal and non-personal data in this
context.
The scope of cooperation with Europol envisaged, beyond the exchange
of personal data, includes
[E]xchange of specialist knowledge, general situation reports,
results of strategic analysis, information on criminal investigation
procedures, information on crime prevention methods, the
participation in training activities, the provision of advice and
support in individual criminal investigations as well as operational
cooperation. 20
There is no indication that the arrangements would go beyond existing
precedents for cooperation with third countries.
Extradition
The treaty would provide for a fast-track system of extradition, or
‘surrender’, between the UK and Member States to replace the
European Arrest Warrant (EAW).
The provisions are similar to those of the EU-Norway/ Iceland Surrender
Agreement, 21 which was identified as a precedent. That agreement is
19
In Opinon 1/15 of 2017 on the EU-Canada PNR Agreement
20
Article LAW.EUROPOL.49: Scope of cooperation
21
Agreement between the European Union and the Republic of Iceland and the
Kingdom of Norway on the surrender procedure between the Member States of the
European Union and Iceland and Norway, OJ l 292. This agreement provides for
political settlement of disputes and requires the parties to keep under review the
case law of the CJEU and national courts to ensure uniform application and
interpretation: Articles 37 and 38
based largely on the EAW, but includes further grounds on which

extradition can be refused. These include:
• As with the Withdrawal Agreement (but not the EAW), the draft
treaty would permit the parties to refuse to surrender their own
nationals.
• It includes a requirement of ‘double criminality’ (the act for
which the individual is sought must constitute an offence in both
jurisdictions), but the parties can waive this requirement on a
reciprocal basis for certain serious offences. 22 Unlike the EAW, this
waiver would be optional.
• It also provides for the parties to refuse on a reciprocal basis to
surrender individuals sought for political offences, with the
exception of certain specified terrorist offences. 23
It sets out a procedure for the transmission of arrest warrants to replace
the arrangements under the EAW, which include issuing alerts via SIS II
and communication through EU mechanisms. Under the draft treaty,
arrest warrants could be issued via Interpol, or directly to the relevant
authority.
The draft treaty would also guarantee certain procedural rights for the
requested person, which are currently provided for in other EU
instruments. These include the right to legal representation, translation,
legal aid, and specific safeguards for children.
It sets out time limits for dealing with requests in line with existing limits
under the EAW, but also provides for the parties to notify each other of
cases in which these time limits would not apply. As with the Norway/
Iceland Agreement it provides that arrest warrants be dealt with and
executed as a matter of urgency.
Mutual legal assistance and criminal records
The provisions on mutual legal assistance would supplement and
facilitate the application of the 1959 European Convention on Mutual
Assistance in Criminal Matters. They do so by setting out in detail the
procedure for making requests for assistance (such as evidence or access
to witnesses) and the parameters and timeframe for responding to such
requests.
This accords with the position of both parties’ negotiating mandates,
which called for time limits and standardised or streamlined procedures.
The provisions on exchange of criminal records also supplement, and in
some respects replace, the 1959 Convention. Rather than a system of
periodic communication of criminal record information on each other’s
nationals at least once a year, the treaty would provide for this
information to be communicated at least once a month.
22
Offences carrying a custodial sentence of at least three years, listed at Article
LAW.SURR.78: Scope
23
Article LAW.SURR.81: Political offence exception
With respect to requests for information via ECRIS, the draft treaty
provides for the electronic exchange of information, but leaves the
technical and procedural details to be finalised. 24
UK draft text
Human rights and data protection
Human rights has proved to be a sensitive issue in the negotiations. The
UK Government’s paper on the future relationship published in February
said the agreement:
should not specify how the UK or the EU Member States should
protect and enforce human rights and the rule of law within their
own autonomous legal systems’
The UK’s draft text recognises that concerns about the level of
protection of human rights, fundamental freedoms, democracy, or the
rule of law may be a ground for suspending or terminating cooperation,
but makes no mention of the ECHR specifically, or the HRA.
The UK Government has recently launched an independent review of
the HRA but has also reaffirmed its commitment to the ECHR. 25
The UK would also need to make an adequacy assessment of the EU’s
data protection regime in order to continue to exchange personal data
freely, but the draft text on cooperation in this area doesn’t depend on
data adequacy, and instead has bespoke data protection provisions. The
UK’s position is that it expects to get an adequacy decision, and to grant
one to the EU, because it will be operating the same data protection
regime at the end of the transition period, but also that it wants to be
free to pursue its own independent data protection policy.
Other significant differences with the EU text
The UK draft text diverges from the EU text on a number of substantive
issues.
With respect to extradition the UK text provides for a number of
additional grounds for refusing extradition. These are:
• Human rights;
• Proportionality; and
• Trial readiness – where extradition could be refused if no decision
had yet been taken to charge or try the person
The most significant area of disagreement is on access to or a
replacement for the SIS II database. The UK’s text includes a placeholder
for “Real time data exchange” 26, which acknowledges the EU position,
but says that the UK’s view is that it is in the parties’ mutual interests to
maintain this capability, and that it is legally possible to do so. It says the
UK maintains its offer that the agreement should provide capabilities
similar to those delivered by SIS II, recognising arrangements with
Switzerland, Norway, Iceland and Liechtenstein. This can be contrasted
with the EU text, which provides for ”cooperation on operational
24
Article LAW.EXINF.126
25
Human Rights Act Review, gov.uk
26
Part 10
information”, but includes the caveat that “no data processed in a

database established on the basis of Union law will be provided in
response to a request”. This is consistent with the SIS II Law
Enforcement Regulation which provides that data processed in SIS and
related supplementary information can’t be transferred to third
countries.
The UK text would make provision for prisoner transfers for those with
more than 6 months to serve. In some circumstances this would take
place without the prisoner’s consent. No equivalent provision is included
in the EU text.
The UK text would also cover continued cooperation on freezing and
confiscation of assets. By contrast, the EU text includes provisions on
Anti-Money Laundering and Terrorist Financing, but not freezing and
confiscation.
3. No-deal at the end of the

transition period
If there is no-deal on security cooperation at the end of the transition
period the UK will lose access to all existing EU measures, including
those identified above.
The European Commission has consistently taken the position that the
negotiations on security cooperation are tied to those on trade.
Therefore, if that position is maintained, failure to reach an agreement
on trade will result in there being no-deal on security.
In this scenario the UK would need to fall back on pre-existing
arrangements, bilateral cooperation mechanisms and other contingency
arrangements.
It might be possible in the future to negotiate formal bilateral
agreements in specific areas with individual member states, but this
would be determined by whether the EU had exclusive competence.
It would also be necessary to negotiation future association agreements
as a third country with Europol and Eurojust.
4. Operational impact
In November Assistant Commissioner Neil Basu, Head of Counter
Terrorism Policing for the Metropolitan Police, told the BBC that in a no-
deal scenario the country would be less safe. 27 This assessment is
consistent with evidence provided to parliamentary Committees by
security experts and senior law enforcement officials since the
referendum.
Steve Rodhouse, Director General of the National Crime Agency (NCA),
has said that public safety is enhanced
…if we have fast and effective routes to share information and
intelligence and to mobilise activity across Europe. Public safety is
supported when we are able to identify opportunities to intervene
against organised criminals. The current tools do that well. They
are not perfect but they do that well, so we have been really clear
we want to retain those capabilities in some form or another. 28
He also endorsed AC Basu’s assessment that there would be an
operational deficit in the loss of EU tools, and suggested that they could
not be replicated at a bilateral level. 29
Martin Hewitt, Chair of the National Police Chiefs Council (NPCC), has
said that in a no-deal scenario involving the loss of all EU law
enforcement and national security measures
… even with contingencies in place, the fallback systems will be
slower, provide less visibility of information/intelligence and make
joined up working with European partners more cumbersome. 30
The Government has argued that such assessments may underestimate
the security benefits of having greater control over borders (border
security is discussed further below at section 5).
The Government has also pointed to the fact that some of the measures
to which the UK is likely to lose access have only been recently
implemented, and expressed confidence that the UK will remain a safe
country.
By contrast with senior law enforcement officials, the Security Minister
James Brokenshire told the Home Affairs Select Committee (HASC) on
21 December that in light of the contingency measures put in place he
was confident that the country would be as safe without an agreement
on future security cooperation as it was with existing levels of
cooperation. 31
In light of the parties’ negotiating positions, even with an agreement in
place, cooperation arrangements will be less extensive and efficient than
27
Brexit: UK ‘will be less safe without EU security deal’ -police chief, 19 November
2020, bbc.co.uk
28
Home Affairs Committee, Oral evidence: UK-EU security co-operation, 17 December
2020, Q7
29
Letter to Yvette Cooper, Chair of the Home Affair Select Committee, 5 November
2020
30
Letter to Yvette Cooper, Chair of the Home Affairs Select Committee, 11 November
2020
31
Oral evidence: UK-EU security co-operation, 21 December 2020, Q 177
existing EU based mechanisms. In particular, loss of access to

information and intelligence will lead to a reduction in capability, and a
requirement for more manual processes will place an additional demand
on resources. There is also likely to be a loss of strategic influence in
terms of setting priorities and developing future cooperation
arrangements at an EU-wide level.
Data and intelligence
Loss of access to multilateral platforms for sharing information, and to
real time data and intelligence from EU databases have been identified
as a change that will have a significant operational impact. As noted
above, the UK is likely to lose access to EU databases in either a deal or
no-deal scenario.
In addition to losing ongoing access to databases, the UK will also need
to remove all SIS II data from domestic systems such as the PNC and
Warnings Index at the end of the transition period.
Writing in the Times in September, former head of MI6, John Scarlett,
and former EU Commissioner for the Security Union, Julian King
described the anticipated loss of capability as “potentially a very serious
worry”. 32
Deputy Assistant Commissioner Richard Martin, NPCC Brexit lead, told
the House of Lords EU Security and Justice Sub-committee that despite
the contingency work that has been undertaken with respect to
information on databases, the change would still represent a capability
gap and would have a “massive impact”, and that he worried “very
much” about losing SIS II. 33
He also identified ECRIS as very important and valuable in providing
information on previous convictions of people travelling to the UK and
UK citizens who have been convicted overseas. 34
Martin Hewitt, Chair of the NPCC, told HASC that loss of access to SIS II
and Prum would have a “major operational impact” and that an
inability to access PNR would have a “major impact for CT and Serious
and Organised Crime related matters”. 35
Steve Rodhouse, Director General of the NCA told HASC that the
multilateral nature of Europol was very valuable
One of the beauties of Europol is that you can engage with the
entire organisation and share information that is applicable or
sourced from a range of member states, and that may not be
possible in the future. It is fair to say, and we have been quite
clear on this, that we also benefit from some of the analytical
capacity and capabilities that Europol offers. That helps us make
some links between EU member states, and between criminals at
times, that we would not otherwise appreciate. 36
32
Losing European Security data poses serious threat, The Times, 28 September 2020
33
Q 14
34
Q 18
35
Letter to Yvette Cooper, Chair of the Home Affairs Select Committee, 11 November
2020
36
2020, Q2
Sir Rob Wainwright, former Director of Europol, told the Committee

that the loss of intelligence would be strongly felt in areas such as
serious and organised crime and cybercrime. It would mean that less
criminal activity would be visible, so there would be fewer opportunities
to control it. He also suggested that there would be a loss of strategic
resilience, due to the loss of pan-European instruments. 37
Extradition
In relation to extradition, the difference between a deal and no-deal
would be significant. Both the UK and the EU have proposed
replacement arrangements which would, in many ways, replicate the
EAW.
DAC Martin told the Lords Security and Justice Sub-committee that
negotiating a replacement was important and that the priority was an
efficient arrangement that would allow officers to identify wanted
persons, arrest them immediately without a warrant, and provide for a
swift court process. An agreement similar to the Norway/ Iceland
agreement would be good because it would allow for arrest without a
warrant. However, he also noted that there would be challenges, such
as the bar on extraditing own nationals. An effective replacement for
SIS II as a means of circulating information about wanted persons would
also be required to close the capability gap with respect to extradition. 38
He expressed confidence that in any scenario, relationships with law
enforcement agencies in other jurisdictions were good and would help
to prevent criminals from exploiting the situation to avoid extradition.
James Brokenshire told HASC that the number of extradition requests
over the last 10 years from the UK to the countries that had exercised
the nationality bar under the Withdrawal Agreement was low. He
suggested that when such cases arose in the future the Crown
Prosecution Service would work with prosecuting authorities in those
jurisdictions to enable them to prosecute such individuals in their home
countries. 39
Membership of agencies
Both Eurojust and Europol have association agreements with third
countries and it should therefore be possible for the UK to come to
some agreement on the basis of these precedents, whether or not there
is a wider deal. However this would not be equivalent to the UK’s
existing role as a member. For example, it would not provide direct
access to databases, or participation in the Europol management board.
DAC Martin suggested that if there was an agreement on security
cooperation at the end of the transition period it would be possible to
continue working operationally while a third party agreement was
negotiated. However, in a no-deal scenario it would be necessary to
37
Lords EU Security and Justice Sub-Committee, Corrected oral evidence: Post-Brexit
police co-operation, 3 November 2020
38
police co-operation, 3 November 2020, Q 12
39
Oral evidence: UK-EU security co-operation, 21 December 2020, Q130
negotiate an agreement from the outside, which would result in an

operational interruption. 40
Both Sir Rob Wainwright and DAC Martin agreed that it would
nonetheless be possible to play a significant role, citing the example of
the USA as “a significant external player with a big security contribution
to make”. 41
However, lack of direct access to databases would have an impact on
the speed with which the UK could gain access to information relevant
to investigations which would be likely to result in opportunities being
lost. Sir Rob Wainwright also noted that managing the volume of
intelligence currently shared by the UK via a non-automated system
would be challenging for Europol.
4.1 Contingency planning

Law enforcement agencies together with the Home Office have been
involved in preparations over the past 18 months aimed at mitigating
the reduction in capability that would result in either a deal or no-deal
scenario. Representatives have expressed confidence in the contingency
measures that have been put in place, including the establishment of
the International Crime Coordination Centre (ICCC) and a new national
extradition unit. Nonetheless there is broad consensus that there will
inevitably be less information available, and that mechanisms will be
slower and more complex.
Existing fall-back mechanisms
In some areas there are existing fall-back options which the Government
has indicated would provide the legal basis for cooperation in a no-deal
scenario, or where a negotiated agreement did not cover cooperation in
specific areas. They are widely regarded as suboptimal in comparison
with EU measures.
European Arrest Warrant
The 1957 Council of Europe Convention on Extradition would be the
fall-back option for extradition. However, it does not impose time limits
and requests are made through diplomatic rather than judicial channels.
There are also more grounds on which extradition can be refused, so
this process would be slower, more costly and lead to fewer
extraditions. Further, since implementation of the EAW, some EU
Member States have repealed legislation giving effect to the
Convention.
The Law Enforcement and Security (Amendment) (EU Exit) Regulations
2019 (the ‘no-deal Regulations’) would re-designate the 27 EU
members states for the purposes of the Extradition Act 2003 from
category 1 to category 2. This means that in the absence of an
agreement on a replacement for the EAW, extradition requests from EU
countries would be subject to the same procedures as other countries
40
Ibid
41
with which the UK has extradition agreements. Under this procedure

the Home Secretary must approve extradition as well as the courts,
unlike the EAW.
The Extradition (Provisional Arrest) Act 2020 provides a provisional arrest
power with respect to wanted persons from certain designated
territories. The Government has indicated that it could be applied to EU
member states if alternative arrangements are not in place. 42
DAC Martin suggested that the new national extradition unit within the
ICCC would be important in minimising the capability gap in a no-deal
scenario for extradition. 43
European Investigation Order & Joint Investigation Teams
The 1959 Council of Europe Convention on Mutual Assistance in
Criminal Matters would provide a fall-back for cooperation in criminal
investigations. This would also be a slower, more bureaucratic process
than the existing arrangements, and it has not been ratified by all EU
Member States.
There are no strict time limits imposed on the execution of MLA
requests, unlike under the EIO scheme, and more grounds on which
they can be refused. The process also relies on diplomatic channels for
the transmission of requests.
The same Convention would allow UK personnel to be involved in JITs,
but they would need to be invited, and only EU member states can
receive Eurojust and Europol funding to support their participation in
JITs.
Prisoner transfers
The EU’s draft text did not provide for prisoner transfers. If there is no
agreement on the issue, the Council of Europe Convention on the
Transfer of Sentenced Persons would provide a fall-back option for the
transfer of prisoners. However, the Government has noted that this
provides extensive grounds for EU Member States to refuse to take
prisoners. 44
Policing cooperation and data sharing
At a multilateral level, the UK would have to rely on cooperation
through the International Criminal Police Organization (Interpol). This
would include Interpol’s data base of alerts, i-24/7.
DAC Richard Martin told the House of Lords EU Security and Justice
Sub-committee that a lot of work had been undertaken to put the most
important alerts from SIS II on to the Interpol system, so that policing
would still have access them if SIS II “is literally switched off at 23:59
hours on 31 December”.
Steve Rodhouse told HASC that the extent to which other EU countries
would use the Interpol database was unclear because they would still
42
For further detail see CBP 8689 Extradition Provisional Arrest Bill 2019-2020
43
44
Assessment of the security partnership, para 42
have access to SIS II. This would therefore potentially create a gap for
the UK. 45
It should be possible for information to be exchanged at a bilateral level.
In the absence of a data adequacy decision, this would need to take
place in accordance with alternative mechanisms in the LED.
James Brokenshire noted in evidence to HASC that information is
already exchanged via Interpol with EU members states which do not
have access to SIS II, such as Ireland. 46
The Home Office is also developing a new system called iLEAP which
would seek to replicate SIS II. 47
Passenger Name Records
In a no-deal scenario EU based carriers would no longer be required to
provide the UK with PNR data and there would not be a clear legal basis
for doing so.
James Brokenshire told HASC on 21 December that the Government
was in the process of negotiating data sharing agreements with
individual carriers which would enable them to continue to share PNR
data on the basis of Standard Contractual Clauses. He noted that it was
a decision for individual airlines as to whether or not to conclude these
agreement, but that there were sanctions for not transferring the
information. 48
The no-deal Regulations would amend the retained PNR Directive
Regulations to maintain most of the legislative framework governing the
way the UK would treat PNR data from other countries. This includes
retaining the data protection safeguards but removing data sharing
obligations that apply among EU member states. The explanatory
memorandum states that this will enable the UK Passenger Information
Unit to cooperate with EU member states on the same terms as they
would cooperate with the UK as a third country. 49
Bilateral arrangements
In addition to identifying fall-back legal mechanisms for cooperation,
contingency planning has focussed on improving bilateral relationships
with law enforcement and criminal justice agencies in EU member
states.
DAC Martin told the House of Lords Security and Justice Committee
that one of the NCA’s contingency plans in a no-deal scenario was to
surge overseas liaison officers in Europe. The officers had already been
trained and selected and locations had been prioritised on a strategic
and tactical basis.
45
2020, Q&
46
Oral evidence: UK-EU security co-operation, 21 December 2020, Q 145
47
48
Oral evidence: UK-EU security co-operation, 21 December 2020, Q146. It should be
noted that there are also sanctions for EU based organisations that fail to comply
with EU data protection standards.
49
Para 2.8
Steve Rodhouse told HASC that in the event of a loss of access to

Europol, a further 11 international liaison officers would be deployed
into embassies of key countries across Europe. These were chosen on
the basis of where there is the greatest overlap on organised crime. 50
50
2020, Q1
5. Impact on border security

Ministers have acknowledged that losing access to certain resources in
either a deal or no-deal scenario will have repercussions for the
information available to border and immigration staff, but argue that
the UK’s new relationship with the EU will yield “security dividends” in
certain other respects. 51
They have consistently highlighted the fact that the UK will have greater
scope to refuse entry and remove EU national offenders from the UK. 52
They have also said that there are security advantages to being able to
cease accepting EU national identity cards as acceptable travel
documents for entry to the UK. From 1 October 2021 EU nationals
travelling to the UK will require a passport to travel to the UK. But
people with rights protected under the Withdrawal Agreement will be
able to continue to use a national identity card for travel until at least 31
December 2025 (and thereafter if the cards are compliant with
International Civil Aviation Organisation standards). 53
A concern for some stakeholders is whether border staff will have
access to less information on which to base decisions about who to
allow into the UK. Some doubts have been raised about the adequacy
of the mechanisms that will apply post-transition for identifying at the
border people who might not be suitable for entry to the UK.
Sir Rob Wainwright, former director of Europol, has described the
potential gains and losses for border security as a “mixed bag”:
If we have more freedom to set UK border control policies that
are outside the EU framework, particularly on the extent to which
we restrict freedom of movement, that potentially gives us more
options to manage border security, although I should stress that
that is not the front-line area of my expertise. On the other hand,
as we have all been saying, the access that border officials
currently have to instruments like the Schengen Information
System provides everyday value .... We should not underestimate
the impact of those losses, either. It is a mixed bag, I guess, but
we have been laying out this morning that there will be important
impacts from losing those. 54
Domestic border security databases
Border-specific domestic database systems, which inform ‘watchlists’ of
people potentially unsuitable for permission to enter/remain in the UK,
are used to screen people seeking permission to enter the UK before
and upon arrival in the UK. The most relevant ones are:
• The Warnings Index – a 26-year-old system for storing details of
people of interest to the authorities. Information accessed via the
51
Home Affairs Committee, Oral evidence: Work of the Minister for Future Borders
and Immigration, HC 919, 4 November 2020 Q109; BBC, Andrew Marr Show 13
December 2020, Transcripts, Dominic Raab
52
The term ‘EU nationals’ used in this section covers non-Irish nationals of EU member
states as well as EEA and Swiss nationals.
53
HM Government, The Border with the European Union, October 2020, p.131
54
police co-operation, 3 November 2020, Q7
Warnings Index system is aggregated from a range of

immigration, criminality and intelligence sources, which currently
include INTERPOL and SIS II. 55 Checks against the Warnings Index
are mandatory at various stages of the immigration/border
crossing process. All scheduled passengers are checked against
the Warnings Index as part of the mandatory checks upon arrival
in the UK. The Warnings Index system is due to be replaced by
March 2022.
• Border Crossing – a successor for the Warnings Index system,
due to be fully in place by mid-June 2021. It is intended to provide
a more advanced and faster system for checking arriving
travellers. The Home Office’s Digital Systems at the Border
programme is managing the transition to the new system.
• Semaphore - a 16-year-old system for analysing advance
passenger information provided by transport carriers. It was due
to be replaced by a faster and more advanced new system
(‘Advance Border Control’) alongside the roll-out of Border
Crossing, but work on a replacement for Semaphore is now being
progressed over a longer timescale under a separate programme.
5.1 Operational impact

As noted above, continued UK participation in some systems, notably
SIS II, is not expected even if a new security relationship is agreed.
The Home Affairs Committee asked senior Home Office officials and
Kevin Foster, Minister for Future Borders and Immigration, in early
November about what tools and information would be available to
border control staff at the end of the transition period. Mr Foster
emphasised the UK’s desire to continue dialogue and reach an
agreement on security co-operation with the EU. He also referred to the
availability of “domestic fallbacks” and information sharing through
INTERPOL and bilateral channels if a future UK-EU security deal isn’t
agreed. 56
Expert witnesses have raised concerns about a reduction in the volume,
quality and immediacy of information available to border staff. These
echo issues raised in the context of law enforcement more generally.
Asked by the Home Affairs Committee in late December about the
implications for immigration staff of a reduction in exchange of security
data with EU member states, Steve Rodhouse, Director General of the
National Crime Agency (NCA) commented “I come back to the point
that a system is as good as the data that is put into it.” 57
Deputy Assistant Commander Richard Martin, NPCC Lead for Brexit,
made a similar point in relation to the loss of ECRIS:
Obviously, the more information you have at the border the more
effective decision-making you can have, whether somebody has
55
Checks against the Warnings Index also count as checks against SIS II.
56
and Immigration, HC 919, 4 November 2020, Q93
57
Home Affairs Committee, Oral evidence: UK-EU security co-operation, HC 1087,
17 December 2020, Q9
previous convictions that will not be on. At the moment, we have

what we call the Home Office serious offenders list. That is on the
PNC, the police national computer. (...). ECRIS is very important....
PNC will still be there, and we will be trying to put as much as we
can on there to make those decisions in effect. 58
Losing access to SIS II alerts

Losing access to SIS II will have implications for what information is
available to border staff for the security checks on visa applicants and
travellers arriving in the UK. SIS II data is scheduled to be removed from
those systems on 31 December 2020. 59
There are some differences, and some overlaps, in the type of
information that can be circulated on the SIS II and INTERPOL systems.
In response to the imminent loss of access to SIS II, UK law enforcement
agencies have been double-entering their information through SIS II and
the INTERPOL system, so that it will remain available to UK and overseas
authorities after the end of transition. They have encouraged their
counterparts in EU member states to do the same, although it is unclear
to what extent this is happening. 60
Witnesses to parliamentary Committees have noted that, where the
criteria for the two systems overlap, authorities in member states might
not consider it necessary to duplicate SIS II alerts, for example if the
person is not considered likely to travel to the UK. 61
Steve Rodhouse recognised that there is the potential for a “cohort of
people who may come through that border who will not be on
INTERPOL, will not be highlighted to the Warnings Index (...).”Asked
how law enforcement bodies can be confident of identifying dangerous
people coming into the country after 31 December, Mr Rodhouse
referred to action that has been taken to ensure that the Warnings
Index “is as up to date as possible with material circulated by European
partners primarily through the INTERPOL I-24/7 system.” He confirmed
that information circulated via INTERPOL is added to the Warnings Index
within 24 hours. 62
Bilateral information -sharing
The Home Affairs Committee repeatedly asked Kevin Foster and officials
about how losing access to SIS II data will affect the UK’s ability to
identify and refuse entry to people who may pose a risk. The Committee
was keen to establish what alternative systems will be in place. 63
58
Lords EU Security and Justice Sub-Committee, Corrected oral evidence, 3 November
2020, Q18
59
NAO, Digital Services at the Border, HC 1069 of 2019-21, 9 December 2020,
para 3.2
60
17 December 2020, 9; Q17-18
61
Foreign Affairs Committee, Oral evidence: The UK’s role in strengthening multilateral
organisations, HC 513, 20 October 2020; Home Affairs Committee, Oral evidence:
UK-EU security co-operation, HC 1087, 17 December 2020
62
17 December 2020, Q34; Q82; Q27
63
and Immigration, HC 919, 4 November 2020 Q93-114
The Minister alluded to various possibilities, including continued co-

operation and information sharing with EU countries, and the scope to
capture such information on domestic databases (as discussed above).
But the Committee remained unclear about how the underlying
mechanisms would work, and particularly whether it would be possible
for border staff to identify information about a person held by EU
member states without having to specifically request it. 64
The Government’s 2025 UK Border Strategy identifies the ILEAP system
and the Secure Real Time Platform (SRTP) as existing mechanisms which
will be used to “maintain and enhance” the UK’s capabilities for law
enforcement alerts and biometric data sharing with international
partners. ILEAP is described as “the practical enabler for future security
data sharing agreements...critical to mitigate the UK’s withdrawal from
EU-wide real-time alert data sharing agreements.” 65
Steve Rodhouse told the Home Affairs Committee that he did not
anticipate that EU states would not want to continue to share
information bilaterally with the UK. He continued:
The issue is the value that is added by being able to bring all EU
member states material together in one place to deep reflect and
to operate multilaterally rather than unilaterally. 66
INTERPOL
Incoming INTERPOL circulations are already available to border staff
through the UK’s domestic border security databases. Arriving
passengers’ passports are also routinely checked against INTERPOL’s
Stolen and Lost Travel Document database. 67
David Armond, former Deputy Director General of the National Crime
Agency and a former member of INTERPOL’s executive committee, has
suggested that more information on people wanted in other
jurisdictions could be available to border staff if the UK also made
routine use of INTERPOL’s TDAWN (travel documents associated with
notices) database at border control. 68
The Home Office’s current position is that “existing border security
capabilities (including having access to Interpol notices and diffusions at
the border) negate the need for adoption of TDAWN.” 69 Mr Armond
suggested that one of the UK’s concerns about adding TDAWN
searches to the set of routine border security checks in the past had
been the implications for processing times at the border. 70
64
Ibid, Q105-111
65
HM Government, 2025 Border Strategy, CP352, 17 December 2020 p.44
66
17 December 2020 Q39
67
Letter from Kevin Foster to Chair of Home Affairs Committee, 26 November 2020
68
organisations, HC 513, 20 October 2020, Q203
69
Letter from Kevin Foster to Chair of Home Affairs Committee, 26 November 2020
70
organisations, HC 513, 20 October 2020, Q204
5.2 Applying UK criminality standards

Regardless of the outcome of negotiations on the UK’s future
relationship with the EU, EU free movement law ceases to apply in the
UK at the end of the transition period. EU nationals are becoming
subject to the UK’s Immigration Rules. The Government considers that
this is a significant security dividend arising from the UK’s new
relationship with the EU.
It was possible to refuse permission to enter/stay in the UK to EU
nationals for reasons of character, criminality and conduct whilst the UK
was an EU member state. But the Immigration Rules give greater scope
to refuse permission than the comparable provisions in EU free
movement law.
Immigration checks on EU nationals January -July
2021
Stricter rules on ‘suitability’ for permission to enter/remain in the UK
(discussed below) will apply to EU nationals from 1 January 2021.
In practice, arriving EU travellers are likely to remain subject to a light-
touch regime at UK border control until July 2021. This is because the IT
systems used at border control do not yet have the capacity to
distinguish between non-resident EU nationals seeking entry as a visitor
and EU nationals (and family members) who are eligible for, or have
been granted, permission under the EU Settlement Scheme (i.e. people
who were lawfully resident in the UK prior to 31 December 2020 and so
have residence rights protected by the Withdrawal Agreement).
Furthermore, people with rights protected by the Withdrawal
Agreement have until 30 June 2021 to apply to the EU Settlement
Scheme for confirmation of their legal status in the UK. Most successful
applicants are given a digital, rather than physical, proof of immigration
status.
The Immigration Services Union has said that Border Force staff are
receiving training to the effect that “as long as the [EU] traveller tells
you they have applied, have been granted or will apply [to the EU
Settlement Scheme] before the cut off date entry should be given.” It
contends that “This ... potentially undermines the provision to be able
to more easily refuse EU nationals who have committed minor criminal
offences in the UK.” 71
Border Force anticipates that staff will be able to check a person’s digital
immigration status from July 2021. This will be achieved through the
roll-out of the new IT system for border staff (‘Border Crossing’).
Immigration Rules grounds to refuse
Everyone seeking permission to enter the UK must satisfy general
suitability requirements, in addition to the eligibility requirements
specific to the immigration category they are applying under. 72
71
Home Affairs Committee, Written evidence submitted by the Immigration Services
Union, SEC0001, 15 December 2020
72
Depending on the immigration category, the suitability requirements are either
specified in Part 9 of the Immigration Rules or alongside the category-specific rules.
The general suitability rules set out a range of mandatory and

discretionary grounds to refuse/cancel permission to enter/stay in the
UK. They are broadly based on a person’s character, criminality, conduct
and perceived risk to the UK.
Stricter rules on suitability came into effect on 1 December 2020. 73 They
apply to EU nationals from the end of the transition period. The grounds
most directly linked to security considerations are detailed below.
Refusal on criminality grounds is mandatory if the person:
• has been convicted of a criminal offence in the UK or overseas
and received a custodial sentence of 12 months or more; or
• is a persistent offender who shows a particular disregard for the
law; or
• has committed a criminal offence which caused serious harm.
There is discretion to refuse if the person:
• has been convicted of a criminal offence in the UK or overseas for
which they received a custodial sentence of less than 12 months;
or
• has been convicted of a criminal offence in the UK or overseas for
which they received a non-custodial sentence or received an out-
of-court disposal that is recorded on their criminal record.
There are further provisions specific to people seeking entry as a visitor
(whether in advance or upon arrival in the UK as a non-visa national).
Refusal is mandatory if:
• they have been convicted of a criminal offence in the UK or
overseas and received a custodial sentence of less than 12
months, unless more than 12 months have passed since the end
of the custodial sentence; or
• they have been convicted of a criminal offence in the UK or
overseas and received a non-custodial sentence or an out-of-court
disposal recorded on their criminal record, unless more than 12
months have passed since the date of conviction.
Where a person with a criminal conviction is seeking entry as a visitor
and more than 12 months have passed since the end of the
sentence/date of conviction, they may be considered for refusal under
the discretionary grounds detailed above.
EU and non-EU national family members whose rights are protected
under the UK-EU Withdrawal Agreement are subject to different
criminality thresholds. Criminal conduct committed before 31 December
2020 is subject to the thresholds specified in EU free movement law
(detailed in Box 1 below). Conduct occurring after the end of the
transition period is considered against the Immigration Rules thresholds.
Refusal on exclusion or deportation grounds is mandatory if the
Secretary of State has personally directed that the person be excluded
73
HC 395 of 1993-4 as amended by HC 813 of 2019-21
from the UK, or the person is the subject of an exclusion order; or a

deportation order/decision to make a deportation order.
Refusal is mandatory if the person’s presence in the UK is not
conducive to the public good due to their conduct, character,
associations or other reasons (which can include convictions which do
not fall within the criminality grounds).
Box 1: What was the position when the UK was an EU Member State?
EU free movement laws determined the scope to restrict the rights of EU nationals and their family
members to enter and reside in the UK. The criteria were narrower than the comparable provisions in
the UK’s Immigration Rules (which applied to non-EU nationals).
Briefly, EU law permitted host member states to refuse admission, exclude, refuse, revoke or remove EU
nationals and their family members on grounds of public policy, public security or public health.
Measures taken on public policy or public security grounds had to reflect the principle of proportionality
and be based exclusively on the individual’s personal conduct. A person’s previous criminal convictions
did not in themselves justify such measures. The person’s personal conduct must have represented a
genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
Matters isolated from the particulars of the case or justifications relying on general preventative
grounds could not be relied on.
Additional protections were given to people who had a longer history of lawful residence in the host
member state. “Serious” grounds of public policy/security were required for people who had acquired a
permanent right to reside in the UK under EU law (usually after 5 years). “Imperative” grounds were
required for people who had accumulated 10 years’ lawful residence.
How are security threats at the border identified?

Visa requirements
People are required to disclose information relevant to their character,
conduct and associations, including details of all offences and related
penalties in the UK and overseas, as part of the immigration application
process. A failure to do so, or submission of false documents,
representations or information, can trigger a refusal decision.
A minority of visa categories require the applicant to provide an
overseas criminal record certificate(s). But most visa categories appear to
be largely dependent on applicants’ self-declaration of criminal conduct
in other jurisdictions.
Mandatory checks
As part of the visa application process decision-makers must check the
applicant’s details against relevant UK databases, notably the Warnings
Index and UKVI and UK police databases.
Not all non-British travellers are required to apply for a visa in advance
of travel to the UK. For example, people from ‘non-visa national’
countries seek permission to enter as a visitor upon arrival in the UK.
People from EU member states will be classed as non-visa nationals after
the transition period.
The mandatory checks conducted on all arriving passengers arriving at
UK passport control include checks against the Warnings Index.
Pre-arrival screening
Border Force receives passenger and crew advanced passenger
information and passenger name records data from carriers in advance
of travel. The information is checked against security watch lists and
alerts (including the Warnings Index) in order to identify known
terrorists and serious criminals before their arrival in the UK. Under the
pre-departure checks and authority to carry schemes, border staff have
powers to prevent the boarding of high-risk individuals. 74
PNR data is considered particularly important for preventing the travel of
would-be terrorists and identifying returning people who might be a
threat to the UK. 75
5.3 The long-term plan for border security

The 2025 UK Border Strategy document, published on 17 December
2020, sets out the Government’s strategic vision for 2025: “to have the
world’s most effective border that creates prosperity and enhances
security for a global United Kingdom”. 76 The document sets out the
long-term Target Operating Model for the border for 2025 and beyond,
covering traders and passengers.
The target model includes previously published plans to apply a
universal ‘permission to travel’ scheme by 2025. This requirement will
apply to all non-British/Irish national travellers to the UK. As part of this,
people seeking to transit the UK and all non-visa nationals seeking entry
as a visitor (including EU nationals) will be required to apply for an
‘Electronic Travel Authorisation’ (ETA) in advance of travel. The
permission to travel requirements is expected to facilitate security checks
and better-informed decisions to be made at an earlier stage in the
process about whether a person should be given permission to come to
the UK. The ETA requirement is similar to the EU’s planned ETIAS
scheme, and schemes already in place in various other countries,
including Australia, New Zealand, Canada and the USA.
The 2025 UK Border Strategy gives some details for the phased rollout
of the permission to travel scheme, and how it fits in with other planned
developments such as the transition to digital-only proof of immigration
status. Initial testing of the permission to travel programme is scheduled
to begin in September 2021. Primary legislation is needed to introduce
the ETA requirement. 77
Various Home Office programmes have aimed to reform and modernise
the UK’s border systems and processes, by making greater use of
technologies and automated systems, identity management, and
information capturing. Since 2014, upgrades to core border security
systems have been progressed through the Home Office’s Digital
Services at the Border programme (DSAB). The original scope of the
programme “aimed to deliver a digitally driven border security IT system
74
PQ UIN 206314, answered on 29 January 2019
75
Lords EU Committee, Brexit: future UK-EU security and police cooperation,
HL Paper 77, 16 December 2016, para 101-2
76
HM Government, 2025 UK Border Strategy, CP352, 17 December 2020
77
HM Government, 2025 UK Border Strategy, CP352, 17 December 2020, p. 63-66
and new processes to support Border Force and law enforcement,

immigration, customs and counterterrorism organisations. To
strengthen border security it wanted to: replace existing systems; enable
improvements in technical capability; and gather, analyse and share
passenger data.” 78 The National Audit Office (NAO) describes the
programme as “crucial to delivering the Department’s objectives for
national security at the border.” 79
As noted in the NAO’s December 2020 report on Digital Services at the
Border, the scope and timescale of the programme have since changed.
Further requirements related to the consequences of leaving the EU
were one of the contributing factors, alongside changing priorities and
broader plans for a fully digitised border and immigration system (the
‘Future Border and Immigration System - FBIS’). 80
The timescale for delivery of the project is now the end of March 2022
rather than March 2019. Following a ‘reset’ in 2019, DSAB has
refocused on “its core national security requirement to provide more
control over who enters the UK”. 81 The development and rollout of the
new Border Crossing IT system is a key element of the programme.
The NAO report identified the successful rollout and operation of Border
Crossing as a “key dependency” for the Home Office’s plans for post-
Brexit border control. It observes that the Home Office has set a
“challenging” timetable to complete this work by March 2022.
Remaining milestones include national rollout of Border Crossing to all
56 ports covered by the programme by mid-June 2021; upgrading of
the Semaphore system; and a replacement of the watchlist and
Warnings Index system. It warns that there are already delays to plans
for the modernisation of Sempahore.
In terms of the impact of losing access to SIS II data, the NAO found
that
... the majority of law enforcement stakeholders depending on
the programme’s watchlisting services remained unclear about
how and when their requirements would be met. Furthermore,
together with partners across law enforcement and government,
the Department has yet to work through the implications for the
programme’s stakeholders of not using the Schengen Information
System II (SIS II)
Following publication of the NAO’s report, the Home Affairs Committee
has written to ask the Home Secretary to explain how the loss of SIS II
data will impact on the Digital Services at the Border programme. 82
78
NAO, Digital Services at the Border, HC 1069 of 2019-21, 9 December 2020,
para 1.4
79
Ibid, para 4
80
Ibid, para 3.12
81
Ibid, para 12
82
Home Affairs Committee, Letter to the Home Secretary on digital services at the
border, 16 December 2020
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End of Brexit Transition: Security Cooperation: Briefing Paper

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BRIEFING PAPER

Number 9086, 23 December 2020

End of Brexit transition: By Joanna Dawson

www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | papers@parliament.uk | @commonslibrary

individuals where required under national law, for example

Other measures include prisoner transfer arrangements; 8 the European

1.2 Data adequacy

2.1 What would an agreement cover?

based largely on the EAW, but includes further grounds on which

information”, but includes the caveat that “no data processed in a

3. No-deal at the end of the

existing EU based mechanisms. In particular, loss of access to

Sir Rob Wainwright, former Director of Europol, told the Committee

negotiate an agreement from the outside, which would result in an

4.1 Contingency planning

with which the UK has extradition agreements. Under this procedure

Steve Rodhouse told HASC that in the event of a loss of access to

5. Impact on border security

Warnings Index system is aggregated from a range of

5.1 Operational impact

previous convictions that will not be on. At the moment, we have

Losing access to SIS II alerts

The Minister alluded to various possibilities, including continued co-

5.2 Applying UK criminality standards

The general suitability rules set out a range of mandatory and

from the UK, or the person is the subject of an exclusion order; or a

How are security threats at the border identified?

5.3 The long-term plan for border security

and new processes to support Border Force and law enforcement,

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