Data protection European fundamental rights Human Rights interoperability tech

a Perilous Combination for Fundamental Rights – EU Immigration and Asylum Law and Policy

a Perilous Combination for Fundamental Rights – EU Immigration and Asylum Law and Policy

By Evelien Brouwer, Vrije Universiteit Amsterdam

This weblog has already been revealed on 25 Might 2019 on Verfassungsblog and we thank the editors of Verfassungsblog for his or her type permission to re-publish this contribution.

On 14 Might 2019, the Council adopted two laws, Regulation 2019/817 and Regulation 2019/818, establishing a framework for the interoperability between EU info techniques within the Space of Freedom, Security, and Justice. The new guidelines on interoperability, upon which the European Parliament agreed in April 2019, will allegedly provide for simpler info sharing and ‘significantly enhance security in the EU, permit for extra efficient checks at exterior borders, enhance detection of a number of identities and assist forestall and fight unlawful migration’. All this, based on the press launch of the Council, ‘while safeguarding elementary rights’.

It is questionable whether this dedication made by the EU legislator is justified. Interoperability only ‘works’ as long as the reliability and trustworthiness of knowledge within the databases concerned are sufficiently guaranteed. Considering the variety of states and the large-scale databases concerned, the results of decision-making based mostly incorrect or even illegal knowledge will probably be detrimental not just for the protection of elementary rights but in addition for the effectiveness of interoperability as a knowledge and border surveillance device as such.

‘Interoperability’ and ‘interstate trust’ is a dangerous mixture if this is able to permit nationwide authorities to rely on knowledge saved in EU knowledge techniques, as an alternative of creating a cautious examination of every individual case. Despite formal safeguards in the laws and the applicable knowledge protection standards, will probably be onerous for knowledge topics to oppose decision-making based mostly on incorrect knowledge, when the supply or the writer of that info is unknown or when states can ‘cover’ behind the again of interstate belief without offering access to efficient legal cures. The issues which may arise for individuals via the ‘blind’ use of large-scale databases shall be illustrated with two current case-studies:

the primary considerations the entry of a human rights activist into SIS II, and the second one the reliance on Eurodac/DubliNet to find out the age of a minor asylum seeker. Contemplating the in depth scale of knowledge processing, the fact that interoperability impacts primarily third-country nationals, and because of the complexity of rules, the adopted instruments fail to satisfy the standards outlined by the CJEU and the ECtHR on the idea of the rights to privateness and knowledge protection.

Interoperability and multipurpose use of EU large-scale databases

Each Regulation 2019/817 which applies to info techniques within the area of borders and visa and Regulation 2019/818 on methods in the area of police and judicial cooperation, asylum and migration, construct on the same interoperability elements, which embrace:

  • A European search portalallowing competent authorities to look multiple info methods simultaneously, using both biographical and biometric knowledge.
  • A shared biometric matching serviceenabling the looking and evaluating of biometric knowledge (fingerprints and facial photographs) from a number of methods.
  • A widespread id repositorywhich incorporates biographical and biometric knowledge of third-country nationals out there in several EU info methods.
  • A a number of id detectorto verify whether or not the biographical id knowledge contained in the search exists in other techniques coated, to allow the detection of a number of identities linked to the same set of biometric knowledge.

The interoperability construction is thus based mostly on a community or a mechanism via which totally different authorities can examine whether info on a specific particular person is on the market in one of the present (and future) EU databases. This search might be facilitated by the use and storage of biometrics within the totally different databases. The databases which may be related by way of interoperability are quite a few. They embrace the prevailing large-scale databases Schengen Info System or SIS II, Eurodac, and Visa Info System (VIS), and the Europol and Interpol databases. Moreover, the interoperability scheme applies to the following methods when operational: the Entry Exit System (EES), the European Journey and Authorisation System (ETIAS), the European Legal Document Info System on third-country nationals (ECRIS-TCN).

With the aforementioned widespread id repository together with biometric and ‘biographical’ knowledge, the interoperability guidelines solely involve a centralized database with regard to third-country nationals. In response to the European Fee in the explanatory memorandum to the proposal, this differentiation between EU residents and third-country nationals is justified by the goal of preserving safety in the EU: ‘While indirectly affecting EU nationals […]the proposals are expected to generate elevated public belief by making certain that their design and use increases the security of EU residents.’

Multipurpose entry to centralised databases

In response to the press release, the interoperability methods won’t ‘modify the rights of access as set out within the legal basis relevant for each European info system, but will ease and improve info sharing’. Right here the legislator has some extent as it was not even vital to increase access to the totally different databases involved for additional functions: this was already offered for in the numerous legal guidelines adopted in the previous few years. In 2015, Eurodac, an administrative system with knowledge on asylum seekers within the EU set up for the implementation of the Dublin system, has been prolonged for regulation enforcement purposes on the idea of Regulation 603/2013. VIS, together with knowledge on all candidates for short-term visas, has been developed as a multipurpose software from the start, and in addition the new border techniques ETIAS and EES might be accessible for regulation enforcement and safety functions. And the inclusion of biometric knowledge in SIS III on the idea of the Regulation 2018/1861 for the aim of border management and the Regulation 2018/1862 in the subject of police and judicial cooperation already modified the structure of SIS II right into a extra common investigation device.

Vice versa, the ECRIS-TCN, a database which was introduced as needed for the purpose of judicial cooperation, shall be accessible for immigration management functions. ECRIS-TCN offers for a centralised system with knowledge on all third-country nationals with felony data in the EU. In accordance with Article 7 of the ECRIS-TCN Regulation 2019/816 the knowledge saved on earlier legal convictions on third-country nationals might be requested for legal proceedings ‘or for another of the following purposes, if offered beneath and in accordance with nationwide regulation.’ Regardless of early and critical considerations of the Elementary Rights Agency (FRA) towards the use ECRIS-TCN for nationwide immigration regulation functions, the adopted Regulation now explicitly defines as one of many ‘following functions’: ‘visa, acquisition of citizenship and migration procedures, together with asylum procedures’.

This suggests that ECRIS-TCN knowledge can be used not just for rejecting short-term visa, but in addition for the refusal or withdrawal of residence permits of third-country nationals. The FRA warned towards these secondary results from national convictions based mostly on earlier irregular entry or stay, particularly for refugees and youngsters and referred to the differentiated practices in the Member States with regard to criminalization of irregular stay and entry. In line with the Commission in the explanatory memorandum to the 2016 proposal, the extent to which felony document info is processed for different functions can be ‘a matter of national regulation’. Subsequently, limitations to this further use wouldn’t be potential within the ECRIS-TCN proposal. The adopted rule in the interoperability Regulation exhibits that the legislator just isn’t solely conscious, but in addition approves that Member States will use info on legal data within the ECRIS-TCN for immigration regulation purposes, even when these selections are based mostly on the (probably very totally different) felony regulation techniques of different states.

The case of a human rights activist in SIS II

On 13 August 2018, Lyudmyla Kozlovska, Ukrainian nationwide, President of the Open Dialog Foundation (ODF) and married to a Polish citizen, was detained by the Belgian authorities following a passport management on the Brussels airport on the idea of a Polish alert in the SIS II for the purpose of refusal of entry or stay. The subsequent day, the Belgian border authorities deported her to Kiev, Ukraine. Previous to the issuing of the SIS alert, Kozlovska was legally resident in Poland and had utilized for an EU long term residence permit. Throughout that process, she was knowledgeable by the Polish authorities that she was not listed within the SIS II. In the period following her expulsion from Belgium, Mrs Kozlovska was allowed to go to a number of Schengen states (including Belgium and Germany) for several days to talk with members of the European Parliament and national parliaments, even if the Polish alert was not withdrawn. In March 2019, the Belgian authorities offered her with a 5 yr residence permit, after which choice Poland is obliged to withdraw the SIS alert in accordance with the Schengen guidelines.

In E., addressing the duty of session between Member States in these matters related to SIS, the CJEU confirmed that a person has the correct to rely before courts on the duty to withdraw an alert from SIS if that’s the consequence of this consultation. Access to authorized cures towards the Polish alert is nevertheless troublesome, also because she has never been knowledgeable concerning the precise reasons for the SIS alert. Furthermore, till the SIS alert is deleted, Mrs Kozlovska risks to be denied entrance or expelled by other Schengen states. Her case illustrates what occurs if national authorities ‘blindly’ rely on knowledge in EU databases and the impact of those selections for human rights, including the fitting of freedom of expression, freedom of movement and efficient judicial protection. Even if in the long run she obtained a residence allow by one state, it’s going to remain troublesome to eliminate this ‘digital entry ban’. It’s to be feared that interoperability will solely enhance this informational paperwork, affecting the effective protection of elementary rights.

The case of a minor unaccompanied asylum seeker in Eurodac

In Might 2019,  the Dutch radio-programme (VPRO) broadcasted a documentary on a case of a minor asylum seeker who, when getting into EU territory by way of Italy, was registered into Eurodac as being an grownup by the Italian authorities. Traveling additional north, she applied for asylum in the Netherlands the place she informed the immigration authorities (IND) she was 15. The IND nevertheless refused to treat her as a minor relying on the info submitted by the Italian authorities by way of DubliNet after consultation of Eurodac on the idea of the precept of interstate belief. Due to this refusal the minor did not receive further protection despite the fact that in the course of the procedure she substantiated her age with paperwork and, as her lawyer submits in this documentary, from sight and behavior, she clearly is a minor.

This Dutch policy of counting on knowledge as registered by one other Member State on the idea of the precept of interstate belief without any further investigation in to the age of the minor, has been authorised by the Dutch highest administrative courtroom (ABRvS). In aforementioned case, the minor herself had lied about her age to the Italian authorities in worry of being separated from the group with which she entered Italy. However the documentary officials of IOM and UNHCR affirm that incorrect registration of age of minors is widespread apply. A fallacious delivery date could be registered in durations of chaos when giant numbers of asylum seekers arrive, but typically also on the idea of miscommunication or lack of know-how offered to minor asylum seekers.

As the report Digital Id within the Migration and Refugee Context exhibits, through the identification means of migrants and refugees, the protection of privateness, knowledgeable consent and knowledge safety are sometimes compromised, not only for minors. The precise issues of youngsters in registration procedures for immigration functions have been also established within the report Underneath watchful eyes of the FRA. Coping with the gathering of knowledge throughout visa purposes or for the aim of the Dublin system, the FRA discovered that rights of youngsters have been affected in several ways, dealing with child-unfriendly remedy, doubts with regard to the quality and reliability of fingerprints, and danger of re-traumatization. The place interoperability may be a device to hint missing youngsters, the FRA in a report of 2017 underlined rightfully that that is only the case if Member States will make extra use of the prevailing risk to report missing youngsters into SIS II and enhance cooperation between their nationwide authorities.

Why perilous?

  • The primary purpose why interoperability of databases mixed with interstate trust might have critical human rights and accuracy implications is the large extent of using the stored into info. Giant-scale databases are large-scale databases: they include tens of millions of knowledge units on people and they are utilized by a high number of nationwide authorities, with totally different tasks and powers. Which means incorrect or outdated info in one of the aforementioned databases has a excessive danger of being multiplied in different EU databases and at the nationwide degree.

For instance, Eurodac, utilized by 32 EU and non-EU states, at the end of 2017 included more than 5 million ‘fingerprint datasets’. Multiple million transactions to Eurodac occurred in 2017, with a peak in February 2017 of 6.000 transactions a day. At this moment knowledge on age of individuals registered in Eurodac are exchanged by way of DubliNet, but the Commission proposal (COM (2016) 272 ultimate) for a recast-Eurodac Regulation offers for the registration of not solely age, but in addition identify, native land, citizenship and facial picture. For the aim of regulation enforcement, 550 Eurodac searches have been carried out by the ‘designated authorities’ of Member States and 114 by Europol.

At the end of 2018, SIS II contained more than 82 million alerts of which just about one million alerts have been on persons. SIS II in 2018 was accessed more than 6 billion occasions by Member States and Associated Nations, representing an increase of 20% compared to 2017. In 2018, 267.239 overseas hits have been reported of which 77% have been triggered by alerts on individuals. And eventually VIS, accessible by 26 states (EU and non-EU Member States), contained on the finish of 2017 about 49 million visa purposes and 42 million fingerprints units.

  • Second, the consequences of interoperability will within the first place have an effect on third-country nationals. As identified by the EDPS in Opinion 4/2018, the interoperability regulation in itself create a new centralised database containing details about tens of millions of third-country nationals, including their biometric knowledge. The results of any knowledge breach might critically hurt a probably very giant number of people and, in line with the EDPS, if ‘such info ever falls into the incorrect arms, the database might develop into a harmful software towards elementary rights’. The danger of misuse of knowledge is a danger which addresses the guts or ‘essence’ of the best to non-public life and knowledge safety, protected in Article eight ECHR and seven, respectively eight of the Constitution on Elementary Rights.

Each the CJEU and the ECtHR have repeatedly warned of their case-law towards the unrestricted or disproportional processing and use of private info. In S. and Marper v. UK, the EctHR warned towards the danger of stigmatisation where info on giant groups of unsuspected citizens is stored into centralised databases for regulation enforcement functions. One of many standards in Digital Rights Eire for the CJEU to seek out the Knowledge Retention Directive in violation of the appropriate to privacy and knowledge safety, concerned the fact that its implementation would entail the info processing of ‘practically your complete European inhabitants’, additionally involving individuals without any link to felony prosecution. And in Schwarz v. Bochum, the CJEU found that the Passport Regulation 2252/2004 did not quantity to violation of the rights protected in 7 and eight of the Charter, as a result of it solely offered for the recording of two fingerprints and facial image on the passport, it did not prescribe a central storage of the info of passport holders, and the aim of using the info was restricted to identification of the owner and verification of the authenticity of the document and would not be used for different functions.

These standards are relevant when assessing using large-scale databases and the consequences of interoperability, particularly where these measures primarily tackle third-country nationals. Discretionary nationwide powers and the supply of cellular units will make it attainable to examine individuals not only at the borders, but in addition inside the nationwide territory. The danger of discriminatory checks inside the EU borders is enhanced, as pointed out by Vavoula in her eumigrationlawblog, by Article 20 of the Regulation 2019/818 based on which police authorities can verify the aforementioned CIR or Widespread Id Repository solely for the aim of identification of a person, for instance if ‘a person is unable or refuses to cooperate’. This entails the danger of in depth use of databases, in violation of the strictly necessity check as defined by the CJEU in Digital Rights Ireland and Schrems and emphasised within the EDPS toolkit on assessing the necessity of knowledge processing. The fact that interoperability and the centralization of knowledge bases primarily have an effect on third-county nationals (or EU citizens with a third-country nationality as in ECRIS-TCN) fails to respect the elemental right to non-discrimination.

  • Third, there’s a drawback of transparency of powers. As underlined by the EDPS within the aforementioned Opinion four/2018, the interoperability laws only add one other layer to the complexity of practices and laws of present knowledge methods. The in depth number of devices coping with knowledge processing, with each their own set of knowledge safety rules, together with the overall rules within the GDPR and the Knowledge Protection Directive, doesn’t end in a really transparent legal framework.

This complexity of rules additionally triggers questions on accountability and liability with regard to incorrect or unlawful knowledge processing. If more databases and users are involved, will probably be onerous for the info subject to know not solely which specific regulation applies, but in addition which state or organisation ought to be addressed with regard to utilizing their rights to access, correction or deletion of knowledge, and, finally, their right to effective judicial protection. This lack of transparency shouldn’t be only a problem for knowledge subjects. Efficient enforcement of knowledge safety rights is indispensable to make sure the accuracy and legitimacy of knowledge processing by Member States and thus to achieve the objectives of the Area of Freedom, Safety and Justice.

The writer thanks Eric Töpfer for his helpful comments with regard to using Eurodac for the trade of knowledge on age.

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