ISE01/17-18

• The 26-kilometre long Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link ("XRL") is scheduled for operation in the third quarter of 2018.^{1Legend symbol denoting XRL will link Hong Kong with the Guangzhou South Station through the Futian Station and the Shenzhen North Station at Shenzhen, with a total length of 142 km. According to the Government, with this new intercity rail corridor, the journey time between Guangzhou and Hong Kong is expected to be halved from 100 minutes to about 50 minutes. The link also enables Hong Kong to connect to the fast-growing national high speed rail network in the Mainland totalling over 20 000 km in 2016.} On 25 July 2017, the Government announced the proposed clearance procedures for customs, immigration and quarantine ("CIQ") at the West Kowloon Terminus ("Terminus"), under which travellers entering or leaving Hong Kong will have to pass through boundary control points of both Hong Kong and Mainland co-located at the Terminus in one-go. It obviates the need to go through the CIQ clearance again in the Mainland, resulting in commuters' convenience and enabling Hong Kong to connect to the national network of High-speed Rail.^{2Legend symbol denoting Under the proposal, passengers departing from Hong Kong can go or connect to any city on the national high-speed rail network without going through the CIQ clearance again in the Mainland. On the other way round, Hong Kong-bound passengers from the Mainland can board a train from any station on the national high-speed rail network regardless of whether CIQ clearance facilities are available in that station. Without this arrangement, passengers might only board or alight from trains at few Mainland stations with clearance facilities.} For this purpose, a special zone named as the Mainland Port Area ("MPA") will be designated at the Terminus where Mainland laws will be applied.^{3Legend symbol denoting Under the proposed arrangement, the trains and adjacent platform areas are also designated as MPA. MPA will be regarded as "outside the territorial boundary" of Hong Kong for application of Mainland laws. Five types of Mainland law enforcement officers (immigration inspection, customs, entry exit inspection and quarantine, port office, police) will carry out their duties at MPA for departure and arrival at the designated areas in the Terminus. Mainland laws will be enforced within MPA, except certain matters such as those relating to the development rights, maintenance and operation of the rail system.} There are various public concerns over this proposed arrangement, such as the application and enforcement of the Mainland laws in MPA.
• Co-location of boundary control facilities has been introduced in various places across the globe in recent decades. For instance, co-location has been implemented in the Shenzhen Bay Port ("SBP") where Hong Kong has been authorized to exercise full jurisdiction in criminal and civil matters in the Hong Kong Port Area ("HKPA") within SBP since 2007.^{4Legend symbol denoting Under the decision of the Standing Committee of the National People's Congress ("NPCSC") in 2006, Hong Kong is authorized to exercise full jurisdiction in HKPA within SBP. Boundary control officers of Hong Kong are posted to the boundary control point in SBP, which is in the Mainland and connected to Hong Kong via a cross-boundary bridge under the jurisdiction of Hong Kong. Mainland-bound travellers from Hong Kong should enter HKPA through the bridge. They will be cleared by Hong Kong border control officers before entering the adjacent area which is under Mainland jurisdiction. Similar arrangements apply to Hong Kong-bound travellers from the Mainland. Although physically located in the same building, boundary control officers of the two jurisdictions perform CIQ duties for travellers' exits and entries in separate areas adjacent to each other, without any overlapping in their jurisdiction.} In Europe, "juxtaposed control arrangements" have been in place at some Eurostar stations for rail commuters between the United Kingdom ("UK") and France since 2001. In North America, "preclearance arrangements" have been practised at selected Canadian airports for air passengers going to the United States ("US") since 1952.
• This issue of Essentials provides a broad overview on the overseas practice of co-location arrangements, beginning with a discussion of the general rationale and some of the more recent examples. It will then focus on the "juxtaposed control arrangements" in the UK and France as well as the "preclearance arrangements" in Canada and the US as case studies, as they are widely regarded as representative examples of co-location arrangements in the world.^{5Legend symbol denoting Unless specifically referred to the "juxtaposed" model in the UK and France, or the "preclearance" model in the US and Canada, the term "co-location arrangements" will be used in this paper to describe the posting of boundary control officers by one jurisdiction to boundary control points in another jurisdiction to perform CIQ related duties.}

Recent global developments of co-location arrangements

• For the conventional forms of boundary control arrangements, the exit procedures are cleared at the place of departure and entry procedures at the place of destination. For co-location arrangements, they still share broadly similar objectives in border clearance, including:
  
  

  (a)	preventing undesirable elements (i.e. terrorists) from entering and wanted persons from leaving the territory;
  (b)	facilitating movement of travellers;
  (c)	preventing smuggling and collecting revenue from dutiable commodities; and
  (d)	enforcing quarantine measures to protect public health.

• Two major benefits arise from co-location arrangements. First, it saves the time of travellers to go through the same boundary control procedures at the points of exit and arrival. Secondly, it can improve security especially for the destination jurisdiction, as the latter can identify and prevent security threats before arrival.
• To this end, the power exercised by enforcement officers while carrying out boundary control duties are usually related to CIQ matters. The duties of the officers include inspection of goods and luggage, screening travel documents for approval or denial of entry, and conducting health and agricultural inspection.
• As regards the legal basis of co-location arrangements, a bilateral agreement between the jurisdictions concerned is generally required, covering the rationale, aims and overall blueprint for implementation. This is followed by enactment of the local legislation, which sets out the details such as the location of the shared boundary control facilities and the functions and powers of law-enforcement officers for implementation.
• CIQ clearance can appear in many forms, including on cross-border trains. Taking the high-speed trains between St. Petersburg in Russia and Helsinki in Finland as an example, the 430-km journey lasting for about 3.5 hours has commenced operation since December 2010. Train passengers are required to provide their passport information to the border and customs authorities through train operators at the time they purchase train tickets. When on board, the identity checking and immigration procedures are conducted by boundary control officers from Russia and Finland separately when the trains are in their respective territories, through the use of mobile devices connected to the respective databases in the two countries.
• Alternatively, co-location arrangements can take place in only one direction, such as the northbound rail service from Singapore to Malaysia since July 2011. While boundary control officers from both places are responsible for carrying out duties at the Woodlands Train Checkpoint located within the northern border of Singapore adjoining Malaysia, only Malaysia-bound travellers can go through clearance procedures in one-go (first by the Singapore officers, and then the Malaysian officers). However, for the southbound travellers to Singapore, they still need to complete CIQ clearance twice, first at the point of exit in Malaysia and then at the point of entry in Singapore.^{6Legend symbol denoting The one-way pre-clearance arrangements were agreed in 1990, following a long sovereignty and rail property ownership dispute between the two governments over the closure of the Malaysian CIQ facility at the Tanjong Pagar rail terminus right at the city centre of Singapore.}
• Looking ahead, more new forms of co-location arrangements are coming on stream. In December 2016, Singapore and Malaysian governments reached an agreement over the co-located CIQ facilities for the 350-km long high-speed rail between Singapore and Kuala Lumpur where the construction work is scheduled for completion by 2026. Under the agreement, only passengers embarking at both terminus (i.e. Singapore and Kuala Lumpur) can benefit from the co-location arrangement at the point of departure. Nonetheless, for those Singapore-bound passengers boarding the train at the six intermediate stations in Malaysia, they will have to get off at the last station in Malaysia, before taking the shuttle train to Singapore for immigration clearance. Separately, the Macao government and the Central Government are still working on a "joint boundary control system" for travellers between Macao and Zhuhai via the Hong Kong-Zhuhai-Macao Bridge scheduled for launch by end-2017.^{7Legend symbol denoting Under the scheme, Macao residents going to Zhuhai via the Bridge's boundary crossing facilities would need to use only the Mainland Entry Permit for Hong Kong and Macao Residents. For their trip home, Macao residents need to present their Macao identity card to complete boundary clearance. At this juncture, additional implementation details of the "joint boundary control system" are yet to be announced by the Macao government.}

Juxtaposed control in the United Kingdom and France

• Background: In 1994, the co-location of boundary control officers or the so called "juxtaposed control arrangements"^{8Legend symbol denoting The concept of juxtaposed controls was first raised in the Canterbury Treaty agreed between the UK and France in 1986 for the construction of the Channel Fixed Link. This treaty required the enactment of a protocol to make provision to "enable public authorities to exercise their functions in an area in the territory of the other State where controls are juxtaposed."} was first established to speed up entry and exit procedures for travellers using the 50 km long Channel Tunnel between the UK and France. The arrangements were subsequently extended to selected passenger train stations of Eurostar since 2001, and selected cross-Channel ferry ports since 2003.
• Under the juxtaposed control arrangements for Eurostar passengers travelling between the UK and French cities (e.g. London, Paris and Calais-Fréthun), immigration control procedures are conducted only once at the departure train terminus, without further check at the arrival station in normal circumstances. Yet passengers are still subject to luggage checks by the customs on arrival. For Euro Tunnel vehicle-shuttle trains running between Folkestone of Kent in the UK and Coquelles in France, juxtaposed control for both immigration and customs clearance can be done at the point of departure. Similar arrangements also apply at the ferry ports of Calais and Dunkirk in France and Dover in the UK.
• Objectives: The juxtaposed control arrangements are to "simplify and speed up the formalities" of travellers crossing the Channel, according to a bilateral agreement between the UK and France.^{9Legend symbol denoting See the Sangatte Protocol.} Yet it is noted that the emphasis is now placed more on controlling "the flow of illegal immigrants and asylum seekers to the UK", according to a study report.^{10Legend symbol denoting See Public Safety Canada (2016).}
• International agreements: Three major bilateral treaties were signed between the UK and France, including the Sangatte Protocol in 1991^{11Legend symbol denoting The full title of the Sangatte Protocol is "The Protocol concerning Frontier Controls and Policing, Cooperation in Criminal Justice, Public Safety and Mutual Assistance Relating to the Channel Fixed Link". There is also another tripartite agreement for rail traffic between Belgium and UK via France.}, Additional Protocol to the Sangatte Protocol in 2000, and the Le Touquet Treaty in 2003.^{12Legend symbol denoting Under the Le Touquet Treaty (Treaty concerning the Implementation of Frontier Controls at Sea Ports of both Countries on the Channel and North Sea) between the UK and France signed in 2003, UK officers exercise boundary controls at the control zones at the ferry ports in Calais and Dunkirk of France. Reciprocally, French officers can exercise the same powers at the port of Dover in the UK.} These agreements, along with other supplementary agreements made in subsequent years set out the arrangements of boundary control regarding passengers and vehicle train services travelling through the Channel Tunnel^{13Legend symbol denoting Under Article 7 of the Sangatte Protocol, UK and French boundary control officers are authorized to conduct boundary control procedures for in-coming passengers on board Eurostar trains during the journey between Paris and London. However, until 2001, passengers were only required to go through immigration control upon arrival in London or Paris. The rise in the number of illegal immigrants arriving in London to claim asylum led to the signing of the Additional Protocol to the Sangatte Protocol in 2000, which created the juxtaposed control zones in Paris and London. Since then, passengers may be cleared by boundary control officers of the destination countries before boarding the train.} and cross Channel ferry services.
• Local legislation: A series of local legislation was enacted by the UK Parliament to put into force the bilateral agreements, dealing with issues such as setting up control zones in selected Eurostar stations and sea ports in the UK and France, and the operation of the UK and French boundary control officers in these control zones.^{14Legend symbol denoting Regarding the cross channel tunnel link, the relevant domestic legislation in the UK includes: (a) The Channel Tunnel Act 1987 implementing the Treaty of Canterbury; (b) The Channel Tunnel (International Arrangements) Order 1993, for giving effect to the Sangatte Protocol; (c) The Channel Tunnel (Miscellaneous Provisions) Order 1994 for giving effect to the tripartite agreement concerning rail traffic between Belgium and the UK via France using the Channel Fixed Link signed in 1993; (d)the Channel Tunnel (International Arrangements) (Amendment No.3) Order 2001 for giving effect to the Additional Protocol to Sangatte Protocol which established juxtaposed controls at Eurostar rail stations in France and the UK; (e) The Channel Tunnel (International Arrangements) (Amendment No.4) Order 2001 requiring the management of a terminal control point to provide free of charge accommodation, installations and equipment necessary for the performance of the French officers; and (f) The Channel Tunnel (Miscellaneous Provisions) (Amendment) Order 2004 for extending juxtaposed controls to rail services between the UK and Belgium making a commercial stop in France. Regarding the cross Channel ferry, the National, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003 gives effect to the Le Touquet Treaty.} Moreover, UK legislation on frontier controls^{15Legend symbol denoting The Sangatte Protocol defines frontier control as "police, immigration, customs, health, veterinary and phyto-sanitary, consumer protection, and transport and road traffic, controls, as well as any other controls provided for in national or EU laws and regulations."} and the related criminal laws apply in the control zones in France.^{16Legend symbol denoting See Part 3 of the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003. These laws include the Immigration Act 1971, Terrorism Act 2000 and Immigration and Asylum Act 1999.} Reciprocally, the French Parliament also passed a law to approve the Sangatte Protocol in April 1993 and the Treaty of Le Touquet in November 2003.
• Powers and restrictions: Both officers of UK Border Force charged with border immigration and customs controls under the Home Office and the UK police officers may be deployed to the control zones in France. The powers of these officers include search, arrest and detention of persons violating the relevant boundary controls legislation. The arrested persons may be transferred back to the UK, although the French authorities reserve the right not to transfer its nationals. Yet these powers are subject to certain restrictions. For example, detention of travellers should not last for more than 24 hours and it should take place in designated places such as a police station.
• On the other way round, French border control officers in the control zones of the UK have similar powers as their British counterparts, including arrest, detention and transfer of arrested persons back to France. While it is not a tradition for UK officers to carry firearms, French officers in the UK control zones are allowed to do so while on duty. The use of firearms is subject to conditions agreed by the UK and France.
• One of the special features of the Sangatte Protocol is the shared jurisdiction within the Channel Tunnel. Under the agreement, each party may claim jurisdiction over the section from its own frontier up to the mid-point of the tunnel. To address any uncertainty over jurisdiction on a moving train inside the tunnel, the agreement specifies that each country shall have jurisdiction and shall apply its own laws, while the country which has first received or arrested a suspect for an offence will generally be given the priority of jurisdiction.
• Protection of rights: According to Article 18 of the Sangatte Protocol, travellers may decide not to pass through the frontier control of the State of arrival. Under such circumstances, the country of departure may not refuse to accept back such travellers and their accompanying goods and animals. Regarding the liability of the officers, neither UK nor French officers in the control zones can be prosecuted for any act or omission committed in the exercise of their functions. For civil claims and compensation filed against the officers in the control zones, they will only be dealt with in accordance with the national laws of the officers' country.

Preclearance arrangements between the US and Canada

• Background: Preclearance arrangements in Canada were first introduced at the Toronto Pearson International Airport in 1952. It started off as a pilot programme on a few flights operated by an airline between Toronto and New York.^{17Legend symbol denoting At the request of the American Airlines, the US and Canadian government introduced a four-month pilot preclearance programme at the Toronto Pearson International Airport (formerly known as Malton Airport) in January 1952. The airline believed that such a programme would lead to better resource utilization such as relieving congestion at the New York's La Guardia airport. The pilot scheme involving four daily flights between Toronto and New York initially allowed US bound passengers to undergo US customs and immigration examinations before boarding. The pilot programme was found successful and was later extended to other airlines and airports.} The arrangements were extended to three more airports including Vancouver, Montreal and Winnipeg by 1974 and further to Calgary, Edmonton, Halifax and Ottawa afterwards. For other Canadian airports intending to be pre clearance airports, they need to apply to the US Department of Homeland Security.
• Objectives: According to US Customs and Border Protection^{18Legend symbol denoting The US Customs and Border Protection is an executive agency within the Department of Homeland Security charged with the management, control and protection of the US border. In 2016, the agency had 15 preclearance locations in six countries including Ireland, Aruba, Bahamas, Bermuda, Abu Dhabi, and United Arab Emirates handling 18 million travellers for entry into the US. Of which about 12 million were from Canada. The agency also reported that it had prevented 6 m451 inadmissible travellers from boarding flights bound for the US in 2016.}, the primary objective of the preclearance arrangements is to improve national security and prevent terrorists from entering US territories, although improved convenience also helps boost aviation travel between the US and Canada. To this end, US-bound passengers in the Canadian airports are first screened by Canadian boundary control officers, before entering into the US preclearance area where the deployed US boundary control officers will in turn inspect and screen both passengers and goods seeking entry into the US.
• International agreements: There have been three bilateral agreements between the US and Canada, setting out the preclearance arrangements. First, the Air Transport Preclearance Agreement was signed in May 1974, formalizing the arrangements put in place since 1952.^{19Legend symbol denoting The preclearance arrangements already in existence since 1952 were extended and formalized through the Air Transport Preclearance Agreement in 1974. According to a report of the United States' Comptroller General, the agreement was intensely lobbied by airlines and tourism industry in the few years before 1974 when there were worries that the preclearance programme would be terminated. The arrangements could help make Canadian airports transit hubs to many United States domestic airports without immigration and customs facilities.} Secondly, the Preclearance Agreement on Air Transport between the US and Canada was signed in January 2001, replacing the first agreement and still governing the current arrangements. Thirdly, the Agreement on Land, Rail, Marine, and Air Transport Preclearance was signed in March 2015, extending the preclearance arrangements for air transport to land, rail and marine modes of transport. Local legislation is being considered for the implementation of the latest bilateral agreement at this juncture.^{20Legend symbol denoting Under the new agreement, preclearance arrangements are planned to be extended to two more airports in Canada and two cross border train services including the New York-bound train services at the Montreal train station.}
• Local legislation: In 1999 the Canadian Parliament passed the Preclearance Act to put in place "statutory authority" for the preclearance agreements and arrangements. The need for such legislation arose in view of new individual rights granted to Canadians under the Canadian Charter of Rights and Freedoms introduced in the 1980s and the increasing boundary crossing demand and traffic. The Preclearance Act authorizes the US preclearance officers to perform customs and immigration duties at preclearance areas at up to 11 selected Canadian airports designated under the agreements.^{21Legend symbol denoting A bill to extend the preclearance arrangements to other modes of transport stipulated in the 2015 bilateral agreement (Bill C-23) was introduced by the Canadian government in June 2016. The bill provides a specific section to govern the Canadian preclearance in the US, and makes other amendments to the powers of US preclearance officers in Canada, such as allowing the US preclearance officers to conduct strip search for urgent security purposes even when there is no available Canadian officer around to assist, authorizing US officers to carry firearms at non-airport locations, and exempting US officers from criminal liability. The House of Commons of Canada passed Bill C-23 on 21 June 2017. The Senate of Canada is still deliberating the bill.} Reciprocally, the US Congress had introduced laws in 1986 to allow stationing of foreign customs officers in the US if similar privileges are also extended to the United States officers overseas.^{22Legend symbol denoting The US Congress passed laws in October 1986, allowing the US to station officers in overseas for the purpose of examining persons and merchandise prior to their arrival in the US. Reciprocally, upon an agreement with a foreign country, foreign officers may also station in the United States. These officers may "exercise such functions, perform such duties, and enjoy such privileges and immunities as the United States officials may be authorized to perform". In 2015, the Congress also passed the Preclearance Authorization Act 2015, specifying the conditions upon which the Department of Homeland Security may establish Customs and Border Protection preclearance operations in a foreign country.} However, although Canadian officers are allowed to perform similar duties at 13 selected US airports under the agreements, there is so far no such deployment in the US in practice.
• US preclearance officers are authorized to administer six pieces of US legislation at designated preclearance areas at Canadian airports, including (a) Agriculture; (b) Aliens and Nationality; (c) Customs Duties; (d) Food and Drugs; (e) Immigration and Nationality; and (f) Public Health and Welfare. Nonetheless, the Preclearance Act of Canada states explicitly that no US criminal law will be applied at the preclearance area.^{23Legend symbol denoting See preamble of the Preclearance Act 1999.}
• Powers and restrictions: At present, US preclearance officers have the powers to inspect and search (except strip search which has to be conducted by a Canadian officer) and detain people when performing their duties, and to seize goods and possessions. While US officers are not allowed to carry firearms, they are allowed to use force when necessary on the condition that such force is unlikely to cause death or grievous bodily harm, unless personal safety of the officers or other people is in danger.
• Within the preclearance area, the US officers are not empowered to arrest, as any arrest must be made by Canadian officers in accordance with Canadian laws. For those persons wanted for criminal offences by the US, such persons can be allowed on board if they enter the preclearance areas in Canada for US-bound flights. The wanted persons may be arrested upon arrival in the US destinations, after getting the alert from the US officers in Canada.
• Protection of rights: The administration of the US laws and the exercise of any power by the US officers in the preclearance areas may not infringe provisions in Canadian human rights legislation, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act. To protect the rights of travellers, the Preclearance Act of Canada allows any traveller to freely leave the preclearance area, unless the traveller is reasonably suspected of having violated specific rules under the Preclearance Act of Canada, such as obstructing US officers.
• In terms of civil liability, the US preclearance officers cannot be held accountable for acts or omission that might lead to injury or loss while carrying out their duties at the preclearance area. Regarding the criminal liability of US officers, it was agreed in 2015 that the US will have primary jurisdiction over their preclearance officers committing criminal offences while performing their functions and duties.^{24Legend symbol denoting The US Congress passed the "Promoting Travel, Commerce, and National Security Act" (H.R. 6431) in December 2016. This bill amended the federal criminal code to allow the US to prosecute certain US employees who engage in conduct in Canada that would constitute a federal criminal offence if the conduct had occurred in the US. This bill applies to a Department of Homeland Security or Department of Justice employee, contractor or employee of a contractor who is stationed in Canada pursuant to a border security initiative.}

Concluding remarks

• Co-location of boundary control facilities take place in many forms, with variations in law application and enforcement power according to local circumstances. It is also noted that some more new forms of co-location arrangements are under planning in selected places, upon completion of cross-boundary transport infrastructure in coming years.

Prepared by CHEUNG Chi-fai
Research Office
Information Services Division
Legislative Council Secretariat
16 October 2017