Oral evidence - Brexit: future UK-EU cooperation on asylum and international protection

Examination of Witness

Jan Bayart.

Q46 The Chairman: Good morning. You are extremely welcome. We are very grateful to you for coming and giving evidence to us today. We are doing an inquiry into future UK/EU asylum co-operation and the relations between France and Britain and between Belgium and Britain. Indeed, we may come onto the relations between Belgium and France on this important subject. We are grateful to have your expert evidence on this issue, so thank you for that.

We are of course glad about the election last night of the President of the European Commission, who is a graduate of LSE. Could you start by bringing us up to date a little with Belgian politics? We are conscious that your Prime Minister has been elected as President of the European Council, but I am not quite certain what the timing is between the Belgian political scene and his taking up that appointment. It would be helpful to have that as a preliminary, if that is okay with you.

Jan Bayart: We have been governed, as usual, by a coalition Government for about four years. At the end of last year, one of the parties in the coalition, the nationalist conservative Flemish party, decided to leave the Government. Since then, we have been governed by a minority Government in current affairs, which still comprises the Flemish-speaking and French-speaking liberal democrat and (the Flemish) Christian Democrat parties.

I do not really know exactly when a new Government will be in place following our May elections. I reassure the House that Governments in current affairs have quite some manoeuvring space to attend to a broad interpretation of “current affairs”, though of course they cannot do everything. There might not be a new fully-fledged Government in place before Mr Michel takes up his new position. A new Prime Minister would have to be appointed, and a general expectation would be that he would then also come from the French-speaking liberal democrat party. However, I am not privy to the gods’ secrets and I do not know how the balance between the coalition parties will play out.

The Chairman: But the assumption is that, if we are in that position, then Mr Michel will take up the job in the European Council and a new Belgian Prime Minister will be found?

Jan Bayart: It is fair to assume that.

Q47 The Chairman: That is very helpful. Let us move on to the substance of our agenda. One of the difficult periods in the whole process of asylum and migration was the crisis in 2015. Could you give us something of an overview of how public opinion and the Government in Belgium responded to that crisis and whether it led to a hardening of attitudes towards asylum seekers in the common European asylum system?

Jan Bayart: It is undoubtedly fair to say that the crisis of 2015 put the whole migration and refugee issue higher up the political agenda. It is difficult to assess in a scientific way the exact impact that it had on public opinion. I am under the impression that there was a bit of a polarisation in public opinion with a segment of—it is difficult to say—20% to 25% favouring a more restrictive approach but, on the other hand, a similar percentage of people favouring a more generous one, with a variety of opinions in between.

Some observers have been tempted to explain the result in the elections by referring to attitudes towards migration and asylum, but I would be cautious about overinterpreting election results. After all, people can decide to vote for one party or another for a dozen reasons, and there is no proof that migration and asylum is the single most important point of reference for them.

The Chairman: Did you see a spike in public interest or concern after 2015? Has that declined since?

Jan Bayart: There was a surge in concern about and attention to the issue. It remained high up the agenda of public opinion and a matter of concern, not least because the issue of transmigration, notably to the UK, has been quite prominent in the news since then—certainly, let us say over the last two and half years.

The Chairman: That is very helpful, thank you. We will come on to some of those points during the rest of the session.

Q48 Baroness Jolly: Mr Bayart, what is Belgium’s position on the proposed reforms to the common European asylum system?

Jan Bayart: As you know, it is quite a vast and complex package of legislative proposals and it will take a team of experts to give you an exhaustive review.

To keep it short, Belgium is favourable overall to a reform of the European asylum system because we recognise the need to make it more crisis resilient, and we think that that should be done by finding a new and better balance between the need to take responsibility by all member states concerned with the external border and, on the other hand, the need for solidarity among member states not on the external border in the correct management of the mixed inflow.

We think that the general thrust of the Commission’s proposals would contribute to that result. As you probably know, it is not easy to find a package deal of several legislative proposals for such a complex area, but still we would prefer a package approach to an agreement.

Q49 Lord Soley: There was quite a crackdown, as you know, by the British and French authorities on migrant smuggling and so on across the Channel from France. Has any of the movement that has dried up on that run moved over to Belgium? If so, how are you dealing with it? But, first, has it increased or is it still much as it was?

Jan Bayart: This concerns three countries, so a bit of a delicate and balanced answer will be necessary. We fully understand that the French authorities had to act in the way that they did to manage the situation that had become problematic around Calais, and it would be unfair to say that the only effect of their actions had been to move the problem to Belgium. After all, the efforts of French authorities to offer asylum procedures to people, sometimes with nationalities with a good recognition rate, are well documented.

On the other hand, it is also true that to some extent the problem has moved to Belgium because a number of people do not wish to file an asylum application in either Belgium or France. Especially in 2016 and 2017, the number of police interceptions of people trying to infiltrate transport means or port zones in Belgium has significantly increased. In 2018, we had 7,000 interceptions in the coastal province of western Flanders alone, and apparently that is an increase on the previous years of 2016 and 2017, when we first saw a surge in interceptions.

In 2019, we are apparently at an average of 445 interceptions per month, which is even more than in the same months last year. I have to say that this puts a considerable strain on the security services at the ports and on the police forces.

As for how to deal with the problem, several things have been tried. There is now what we call a national centre, where intercepted people are being delivered. The problem is that, as these people seldom file an asylum application, and obviously they cannot be forced to do so, and as they have nationalities that sometimes make it legally and operationally difficult to return them to their countries of origin, they stay at the centre for a while, but we cannot keep them there for ever.

We also increased the capacity of what we call the closed centres, where people are detained with a view to a forced return to the country of origin where that is feasible. We are now in the process of extending the number of available places from 600 to, we hope, over 1,000 places next year. About one-third of those places are presently occupied by transmigrants.

We have increased the number of police controls, which is a strain on the police force. We have increased the effort on dismantling the networks that are behind much of the smuggling, and police co-operation with the UK is quite important in that regard. We are looking at improving the security management infrastructure at the port of Zeebrugge, which, as you might know, is quite specialised in maritime transport towards the UK. The Home Office in Belgium has started securing motorway parking spaces where truckers from various countries that send trucks to Zeebrugge take a rest, because we noticed that these were places where transmigrants were trying to force their way into containers or trucks.

This measure has made it more difficult for transmigrants to try to force their way into trucks, but it has displaced the problem towards parking slots further towards the interior of the country, which then forces the police or private security firms that we hire to secure parking spaces over a larger area. That is a bit of an ongoing struggle.

Lord Soley: The figure of 7,000 that you gave was for 2017-18, was it not? What was the figure before? In other words, how much has it gone up by? Do you happen to know that?

Jan Bayart: The figure of 7,000 in 2018 refers only to the coastal province. I have failed to find the exact figures for specially the coastal province referring to previous years, but the note that our Home Office kindly sent me said that there was quite a surge, on the same reference base, compared to last year.

Lord Soley: Can you tell me where the centre is? You said that you move people to a centre. Is there a danger of creating another camp area like the one at Calais?

Jan Bayart: The centre is around Brussels. We have noticed that, in two specific places in Brussels, there has been a spontaneous gathering of transmigrants: a park in Brussels not far from the EU institutions, and the northern railway station in Brussels.

Lord Soley: Can I ask you about co-operation between Belgium and France? Obviously, a lot of this has come from France. That is right, is it not? What is the co-operation like between Belgium and France on this?

Jan Bayart: I cannot speak for the French authorities, obviously, but my impression is that both in France and in Belgium the main axis of co-operation is with the UK because this is apparently the country of destination for those transmigrants.

Lord McNally: Would that not suggest some sort of tripartite body to exchange information?

Jan Bayart: There is already some trilateral co-operation with regard to border controls that is centred mostly on Eurostar. I think there is a platform for exchanging information between the police forces of the three countries on what is happening and where and which networks might be behind it. For obvious reasons, as we are talking about transmigration to the UK, the co-operation is mostly between France and the UK, and Belgium and the UK.

The Chairman: In this inquiry and others, we have sometimes felt that there is a distinction between co-operation at the practical level—people who know that they have to co-operate because they are dealing with this day to day—and co-operation at the political level, which is sometimes not quite as co-operative, if I can put it that way. Do you feel that that is the case here: that there is a difference between the people who are dealing with it day by day and the political level, where it is more complicated?

Jan Bayart: In the present situation, I am under the impression that, on both the political and operational levels, both on the Belgian side and on the British side, people are keen on co-operation and there is not the divergence that you speak about. The perspective on the future is of course a bit blurred. We are living in uncertain times, which may complicate the contextual considerations that will occur in a few months’ time.

The Chairman: Very diplomatically put, if I may say so.

Jan Bayart: I am doing the best I can.

Q50 Lord Best: The UK is providing financial assistance at the moment to help with security at the Belgian ports. Are we likely to get demands from your new federal Government for more financial help from us? Will they ask for it?

Jan Bayart: I would certainly not exclude it. At the moment, the British Border Force and the Metropolitan Police give valuable operational expertise and assistance in Belgium ports. We understand that this comes with a cost.

Of course, over the past years, a number of assessments have been made of possible improvements to port security infrastructure which have met with a constructive reception by Belgian authorities. Discussions are at a very preliminary stage, but as both sides at the operational level have concluded that we face a joint challenge and that a joint effort is the best way to tackle it, there is a logical hope and expectation on the Belgian side that such a joint effort would extend to a joint financial effort—all the more so because we have noticed that such agreements have been reached between the United Kingdom and France and we think that we are as valuable a partner and friend to the UK as our French neighbours.

Lord Best: Does this mean that Brexit will perhaps have some additional costs?

Jan Bayart: Given that management of migratory flows, and specifically the fight against the organised crime networks behind people smuggling, are assisted in quite a cost-efficient way by a number of EU instruments for police and judiciary co-operation, and that leaving the EU means leaving those instruments and falling back on more old-fashioned frameworks, it could come with a cost, yes. I fear that that is a fair assessment.

Q51 Lord Ricketts: Thank you. Rather following on from Lord Best’s second question, can we go back to the issues of practical co-operation between the operational authorities on border or immigration control, around the juxtaposed controls? I saw that co-operation at first hand in France, as you did, and it was very close.

Can you characterise how it works between the Belgian and the British authorities? You mentioned dismantling networks and going after the trafficking gangs, which is clearly an important part of upstream handling of the pressures of illegal migration.

Jan Bayart: Launching a joint information campaign in upstream countries to make it clear to potential candidates what they would risk in engaging in illegal immigration towards Europe is an idea that came up recently. It could also make it clear that many of their expectations about arriving in the UK or other European countries, which smugglers sometimes misrepresent for obvious “commercial reasons”, are unfounded and that they may be bitterly disappointed. We have some positive experience with the Balkan countries, where such information campaigns have worked. Perhaps they could work also for the countries that we are concerned about here.

Lord Ricketts: On the ground in Dover, Zeebrugge and the provinces, are the police and border authorities working well together in trying to get at the gangs, the traffickers and the facilitators who make this trade possible? Without disclosing any secrets, can you say whether co-operation is close and effective?

Jan Bayart: I am not into the operational details; neither should I be from my position. However, I have sat in a number of meetings at the political level accompanying our Minister. There, I have always listened to both Belgian and British police forces saying how good co-operation was, so I assume that it is indeed the case. I was also invited to an internal British police seminar for the British police forces on the challenges posed by organised crime from the south-east of Europe.

I heard several testimonies on how good the co-operation was. Indeed, it has proved possible in recent years to dismantle at least two criminal networks, one involved in drug trafficking and the other in people smuggling. In the latter case, it was after the interception of some smuggled people near Zeebrugge that a link was made to the smuggler in the UK and the network could be dismantled.

Lord Ricketts: One last question, if I may. I realise that you have been very diplomatic about Brexit, so I shall not push you on that subject. Would you worry that, if there were a no-deal Brexit, co-operation around the juxtaposed controls could be jeopardised? Even though they depend on a Belgian-UK-French treaty, would a difficult Brexit perhaps make that operational work more complicated?

Jan Bayart: In the case of a no-deal Brexit, the general context would certainly be far more complicated and challenging than in the case of an orderly Brexit on the basis of a withdrawal agreement. In the latter case, we have a transition period where we can continue as now. That gives us time to negotiate a bilateral co-operation treaty which could include police and criminal investigation co-operation.

Then, perhaps, the general political context would be quite favourable to bilateral, possibly trilateral, agreements which complemented EU-UK co-operation on these EU instruments. Although the UK’s position in the instruments would be more that of an associate than of a full participant, it would still be useful in the framework of bilateral, concrete co-operation.

On a no-deal Brexit, I have to be careful about what I say because I have no mandate to say anything on behalf of the EU institutions or member states as a whole. As a matter of fact, there is no official Belgian Government position on what would or would not be possible on a bilateral basis in the case of a no-deal Brexit, not least—I will be open about it—because we fear that too many declarations of that kind would not be conducive to a chance still of concluding a withdrawal agreement.

It could perhaps lead to what we think is a misrepresentation of reality sometimes heard in some parts of British politics: that a no-deal Brexit would not be a big problem after all and it can all be managed on a bilateral basis. People are entitled to their beliefs, but this is not a representation of reality that we share.

The Chairman: Thank you very much.

Lord Ricketts: Thank you for your frankness.

Q52 Lord Watts: Keeping on the no-deal scenario for a moment, what are the implications of a no-deal scenario for UK-Belgian border co-operation? Is there likely to be a build-up of traffic around Belgium’s ports if we have a no-deal situation?

Jan Bayart: It cannot be excluded. Our customs services are busy preparing contingency measures in case of a no-deal Brexit, which would mean that customs and internal market rules controls on goods traffic between Belgium and the UK would have to take place. There is some margin for manoeuvre to organise them in such a way that traffic jams are avoided as much as possible, but that manoeuvring space is limited.

Therefore, some control would still have to take place in the port, even if it were complementary to controls perhaps implemented in a broader customs control zone or at facilities of companies managing logistics and expedition of goods. The traffic is so intensive that it could indeed cause traffic jams.

Lord Watts: How well prepared is Belgium for that? If there is a build-up, it seems that the only way to avoid a logjam is to have sites away from the port where you could park the vehicles while you waited to be called in through the port and through the check-up. The problem with that is that it would make it easier for people to board vehicles that are parked up and waiting for hours, and it would be much more difficult to control.

Jan Bayart: We are preparing as well as we can. I am not an expert in this specific matter, but I am aware of our customs considering the possibility of carrying out part of the controls at the point of loading and sealing containers. However, one has to control in the ports whether what comes in corresponds to what is registered at the point of loading. Traffic between Zeebrugge and the UK is so intensive that even that could cause some delay and traffic jams. The risk that you mentioned is indeed a risk. We are preparing as well as we can, but the risk is there.

Lord Watts: What capacity is the port already operating on? Is it at the top level? Is there some space? Is there room for manoeuvre?

Jan Bayart: It is quite limited. Belgium is a densely inhabited country. Around the port of Zeebrugge there are also residential areas. The manoeuvring space is limited. Expanding a port is a very long process. Expropriation and things like that require lengthy judicial process.

The Chairman: You talked about contingency planning going on in Belgium. Is that contingency planning between Belgium and Britain, or between Belgium and France? I am talking still about a no-deal Brexit. Are you doing this entirely on your own or with the British Government and British police authorities?

Jan Bayart: As far as I am aware, contingency planning is co-ordinated more or less among EU member states under the broad, distant supervision of the European Commission, but it is still very much every member state preparing for itself. I do not exclude the customs services of member states, especially neighbouring member states which see one another frequently, occasionally mentioning where they stand, but the basic principle is very much that every member state prepares unilateral measures to manage the impact of a no-deal Brexit.

Q53 Lord McNally: My question follows on from that. I greatly admire how you are tip-toeing through the minefield of Brexit. Should we not be giving some urgency to the concept of a new, bilateral agreement between Britain and Belgium on these matters? Whatever happens, there is a clear need for a strong, clear and mutually supportive bilateral agreement.

Jan Bayart: As I mentioned before, there is some reluctance to take a position on this matter, because, as things stand, the European Union, including Belgium as a member state, favours the signing of a withdrawal agreement. Speculating on how things could be managed on a bilateral basis would not be conducive to the chances of such a withdrawal agreement being approved.

I cannot prejudge what the assessment would be if ever we landed in a no-deal Brexit. Various matters would have to be taken into consideration. However, it is useful to point out that in a no-deal Brexit—again, I have no mandate to speak for the EU—it might be erroneous to assume that the EU would then engage in negotiations on bilateral co-operation in various matters, simply forgetting about the issues addressed in the withdrawal treaty—contentious or not—and engaging in negotiation on EU-UK co-operation. I cannot prejudge its assessment, but it might be erroneous to assume that it will simply leave aside the issues in the withdrawal agreement and start negotiating a new relationship.

If there is no EU-UK agreement on, for instance, the instruments of police and judicial co-operation, that is bound to have an impact also on the possible options for bilateral co-operation. It is fair to say that, on both the British and the Belgian side in the operational services, there is clear recognition that transnational police and judicial co-operation is key to tackling transnational criminal networks and that it would be to the benefit of both countries. But, of course, a bilateral agreement between Belgium and the UK, or any EU member state and the UK for that matter, cannot be about the EU instruments, which have proven to be such a cost-efficient way of co-operating in these matters.

In the political context that ensues a no-deal Brexit, will Belgium look favourably on a bilateral agreement, doing what is still possible? It is possible, but I cannot prejudge it. In the case of a no-deal Brexit, there are a number of other existing international instruments, such as Interpol and the Council of Europe conventions on extradition and judicial co-operation, which are still valid and still there. Can these be usefully complemented by strictly bilateral agreement? From an operational point of view, possibly. What will my Government’s assessment be in case of a no-deal Brexit? I cannot at this stage prejudge it.

Lord McNally: I think we understand that. Some of our colleagues who are more relaxed about a no-deal Brexit would argue that, as in 2015, force majeure would come into play. We would have a real crisis, organised crime would take advantage of the gaps, and it would be massively in the interests of Belgium and France, as well as the UK, to intervene and say simply that the EU rules will operate or not operate. There will be massive public pressure for action—to quote our former Prime Minister, “action this day”—if a crisis is caused by a rupture.

Jan Bayart: I gather that the consideration that there is a mutual benefit in safeguarding as much police and judicial co-operation as possible between both countries would be an important one in the decisions that my Government would have to make in a no-deal Brexit.

However, there are two considerations that also come with that. The bilateral relationship with the UK is highly valued in Belgium. But the necessity of safeguarding the integrity and perspectives of the European project is also a consideration of massive importance for a country such as Belgium. In any case, there are legal constraints on the possible subject of a bilateral agreement and it cannot extend to these EU instruments.

So in our view, even in the case of a bilateral agreement, the result would be less desirable than it was before Brexit or in the case of an orderly Brexit that would open the perspective on an EU/UK co-operation agreement with regard to these EU instruments. But, yes, there would still be space for a useful complement on a bilateral basis.

Would the Belgian Government, on the basis of those considerations, choose to have such a bilateral agreement with limited scope? That is quite possible, but I could not say before the Committee today that it will be the case. Even if it were to be the case at that stage—I stress this message because of the representation of facts sometimes outside this room—it would be a bit suboptimal compared to either the present situation or an orderly Brexit. Sorry, I come back to—

Lord McNally: We are broadcasting.

Jan Bayart: Indeed.

The Chairman: May I ask a follow-up question? This shows my ignorance about Belgian politics. If there is still an interim Government in Belgium, are an interim Government able to negotiate a formal bilateral agreement with the UK Government, were we to come to that, or would we have to wait until there was a properly constituted Belgian Government?

Jan Bayart: That would have to be assessed at the very moment. The current doctrine is that a current-affairs Government can and should do everything necessary to ensure the continued functioning of public administration and governance and everything necessary to prevent unamendable damage to the interests of the country. The longer that “current affairs” lasts, the broader the interpretation tends to get; that is what we know from previous experience. Perhaps a broader interpretation would prevail, but there again I cannot really prejudge it from our position here.

Q54 Lord Haselhurst: Hopefully, the UK and Belgium will still be talking to one another after 31 October, or any such further extended date that I see the head of the Commission contemplates might be possible. This build-up of asylum seekers is likely to continue; indeed, those who are pushing people towards the Channel ports may feel that they need to step up their endeavours in this situation. The particularly emotional aspect of it, above all else, is the issue of family reunion. Do you imagine the interim Government in your country being anxious to come to some understanding with us as to how we can facilitate family reunion?

Jan Bayart: It is a very specific subject, but we are confident that the UK will remain a country—perhaps also on the basis of the Council of Europe’s legal instruments—where family reunification is a legitimate goal in these matters. If minors in Belgium have family established in the UK and there is therefore a ground for family reunification, that could still be communicated and met with a constructive approach by the UK, and indeed vice versa.

That may be possible even without an explicit new bilateral agreement. If there is a legal basis for it in the UK and on a unilateral ground within our own legal orders, and the public administrations on both sides communicate what they know, it might still be possible to do that. But perhaps I am missing a specific consideration that I am not aware of.

Lord Haselhurst: The emotional pressure of it means that one has to handle that even more delicately. It is a matter within a family as opposed to simply numbers and desperate people.

Jan Bayart: Indeed. That is precisely why there are specific rules in both our legal orders on family reunification.

Lord Haselhurst: We in the UK have sought to upstream the handling of the refugees arriving at the Channel ports. Is there any feeling in Belgium that the upstreaming could go further eastwards so that fewer came into Belgium because they were being intercepted at your borders as opposed to the English Channel border?

Jan Bayart: I guess that brings us back to the broad issue of, on the one hand, the reform of the European asylum system and, on the other, the enforcement of the external EU border. Considerable effort has been made by the EU to improve that, and probably considerable further effort will have to be made. That is why in general we are supportive of the Commission’s proposals. If the asylum systems in various member states were a bit more harmonised, that would, hopefully, limit what we call secondary movements, which tend to bring people to Belgium too, and keep out of the EU people who had no founded claim to a status of protection.

There is of course a lot of speculation among people outside the EU about how much chance they would have to obtain a protection status and what arrival in the EU would mean for them, hence also the relevance of information campaigns upstream. So, yes, the harmonisation of standards in asylum procedures in various member states and more efficient management of the external border might be conducive to external management even further eastwards or southwards of Belgium. It must of course all happen in the correct manner, taking into account the values and legal bases that apply, but yes, it would be useful.

The Chairman: Thank you very much indeed. We are extremely grateful to you. This has been very helpful to our inquiry. I should have said at the start of the session that it was being broadcast and would be transcribed, as Lord McNally reminded us a little while ago. We will send you the transcript so that any matters of fact can be amended. Thank you very much indeed for coming to see us.