As mainstream political parties lose votes to opponents of immigration, national Home Affairs ministries are feeling mounting pressure to combat irregular migration. In February 2013, the European Commission proposed establishing a system to register non-European Union (EU) citizens when they enter and exit the Schengen area (the “EES”). Using this common electronic register, border authorities can identify non-EU nationals who have entered the Schengen area and overstayed their visas. The proposal, however, does not seem to be an effective tool to combat irregular migration, partly because it cannot help authorities detect or find “overstayers.” Because of this, it is difficult to justify legally the interference it causes with the right to the protection of personal data, guaranteed by Article 8 of the EU’s Charter of Fundamental Rights.
According to the European Commission, a shared register that records the entry and exit of all non-EU nationals will allow authorities to combat irregular migration better. FRONTEX, the EU’s border agency, estimates that most of the non-EU nationals living in the EU without proper authorization entered its borders legally (rather than by avoiding detection at a land or sea border), and then overstayed their visas.
Current mechanisms are inadequate for identifying overstayers in the Schengen area. The EU’s Schengen Information System and Visa Information System do not register border exits and are designed to detect criminal activity and verify the identity of travellers. But because national entry/exit systems are not interconnected, authorities can only identify overstayers where they enter and remain in the same country. The absence of an exit record in national systems cannot help national authorities identify overstayers because they might have moved to or exited through another Schengen state.
The Commission states that the EES will help to combat irregular migration in three ways. First, it will allow national authorities to identify people who have overstayed their maximum permitted stay in the Schengen area (which is not currently possible). Second, the EES will generate a list of overstayers that national immigration authorities can consult as part of their efforts to detect and confirm the identity of irregular migrants. Third, statistics compiled from the EES database will be made available to FRONTEX and national immigration authorities, which can be used by policy-makers to give more accurate figures of how many irregular migrants are present in the Schengen area.
The downside is that the proposed regime risks violating the right to the protection of personal data. Under the EES, the border authorities of Schengen members would collect personal data on travellers, including the name, nationality, sex, date and place of birth, and place and date of entry and exit. In addition, fingerprints will be required for people exempt from a visa requirement (the EU has visa-waiver agreements with many countries, including the United States, Japan, and parts of Latin America and the Western Balkans). This data will be kept for up to six months, but this period will be extended to five years if there is no record of the individual having left the EU.
The very act of European authorities collecting and storing personal information interferes with the right to data protection. This interference can be justified if the Commission can prove that collecting and storing the data is “necessary” to achieve a “legitimate aim” (the standard test applied by courts in cases alleging interferences with a human right). Combatting irregular migration can be considered a legitimate aim because, apart from a few exceptions, international law gives every country a right to regulate who enters and remains on its territory.
It is more difficult, however, to show that the EES is necessary to achieve this. Fundamental rights rules make it illegal to limit a right unless the measure in question can actually achieve the legitimate aim. However, the ability of the EES to contribute towards the combat of irregular migration is probably minimal. Even though the EES will generate lists of overstayers for national law enforcement agencies to consult, this cannot help them locate or apprehend an individual, or even indicate the country in which that person is residing. Furthermore, people smugglers and traffickers are able to obtain false travel documents or provide false identities to their clients and victims. When these individuals overstay their visas, the information stored will be of no or little use in helping national authorities confirm their identities.
In addition, although the EES will provide statistics on the number of overstayers in the Schengen area, it is difficult to see how it can inform immigration policies at national level, because individuals cannot be assumed to remain in the country where they entered the EU. The statistics would only be valid for the Schengen area as a whole, and even then they would not give policy makers a full picture of the number of irregular migrants, since, according to FRONTEX, “there is currently no estimate of the annual flow of irregular migrants crossing the border illegally.” These considerations make it difficult to conclude that the EES is compatible with the right to data protection.
Apart from the regime as a whole, the proposal itself contains specific rules that could conflict with the right to data protection. First, it allows data stored in the EES to be shared with non-EU countries or certain international organizations (the United Nations, International Organisation for Migration and the International Committee of the Red Cross), where this is necessary to prove the identity of a non-EU national. However, the Commission accepts that the data protection guarantees in the proposal are essential to ensure the legality of the EES. Those guarantees include monitoring and complaints mechanisms under: national data protection authorities, the European Data Protection Supervisor, and the Commission itself. EU data protection standards are considered to be the most rigorous worldwide, and it is extremely unlikely that most non-EU countries could match them.
Second, the proposal gives individuals a right to access, correct and delete data held in the EES that are inaccurate. It also gives individuals the right to bring a complaint to national authorities where this right is refused, but it does not guarantee the right to take a complaint to a court. This conflicts with the EU’s Charter of Fundamental Rights (Article 47), which guarantees the right to an effective remedy before a court to enforce rights that are granted under EU law. Furthermore, the EU’s own general rules on data protection also require individuals to have access to courts in these circumstances.
Aside from these fundamental rights concerns, the proposal leaves a number of other issues unanswered, such as what rules will apply to non-EU nationals on visas valid for more than three months. And will it be worth the cost? The launch of the Schengen Information System II is seven years late and ten times over budget. Adoption of this proposal might allow the EU and national Home Affairs ministries to show that they are doing something about migration. But the EES proposal probably violates the EU’s own human rights standards, and might in the end achieve very little in combating irregular migration.