5 Carriers' obligation to communicate
passenger information
| (a)
(24985)
11406/1/03
—
(b)
(25079)
15165/03
—
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Draft Council Directive on the obligation of carriers to communicate passenger data.
Draft Directive on the obligation of carriers to communicate passenger information.
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| Legal base | Articles 62(2)(a) and 63(3)(b) EC; consultation; unanimity
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| Document originated | (b)24 November 2003
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| Deposited in Parliament | (b)26 November 2003
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| Department | Home Office |
| Basis of consideration | (b) EM of 9 December 2003
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| Previous Committee Report | (a) HC 63-xxxvii (2002-03), paragraph 7 (12 November 2003)
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| To be discussed in Council | Date not set
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| Committee's assessment | Politically important
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| Committee's decision | (a) Cleared
(b) Not cleared; further information requested
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Background
5.1 Document (b) is an amended text of document (a). The aim
of both is to combat illegal immigration. Document (b) proposes
that carriers, at the request of the authorities responsible for
carrying out checks on people at the external borders of the Member
State of destination, should have a duty to transmit to those
authorities in advance of departure information about the passengers
they will carry to the Member State. Member States may also establish
an obligation on carriers, at the request of the Member State,
to transmit information about third country nationals who have
not returned, or have not travelled on to a third country, by
the date stipulated on their tickets.
5.2 When we considered document (a) in November,
we noted that the Government would be seeking further amendments
to the text. We also noted that there remained a difference of
opinion between us and the Government about the appropriateness
of including in the Directive a specific level of financial penalty
on carriers for non-compliance with the proposed obligations.
We decided that we should keep the document under scrutiny until
the Information Commissioner's opinion on the text was available,
the outcome of the further negotiations was known and the cost
of the proposal to the UK had been assessed.
The revised proposal
5.3 In the revised draft Directive (document (b))
Article 2 has been amended to extend the definition of "carrier"
to include any natural or legal person who provides passenger
transport (in document (a) only providers of air passenger transport
were covered by the definition).
5.4 Article 3(1) contains two amendments. First,
the carrier is required to transmit the information "in advance
of departure" rather than at the end of boarding checks.
Second, the information to be transmitted is to concern "passengers"
rather than "third country nationals".
5.5 Article 3(2) provides that the information to
be transmitted is:
- number and type of travel document;
- nationality;
- full name;
- date of birth;
- border crossing point of entry;
- mode of transport;
- departure and arrival time;
- total number of passengers carried;
- initial point of embarkation.
5.6 Article 3(4) now gives Member States discretion
whether to create an obligation to transmit, on request, information
about third country nationals who have not returned by the date
stipulated on their tickets. In the previous draft, there was
a mandatory duty on carriers to supply this information when requested.
5.7 Article 4(1) has been amended to provide that
the financial penalties for carriers who do not transmit the required
information is to be paid "for each [passenger] journey for
which passenger data were not communicated or were communicated
incorrectly". Moreover, there is a new requirement that "the
maximum amount of the penalty imposed as a lump sum for each
infringement is [to be] not less than €500,000",
irrespective of the number of passengers carried. Provision is
retained in Article 4(2) for Member States to have discretion
to seize, immobilise or confiscate the means of transport or suspend
or withdraw the operating licence.
5.8 Article 6(5) proposes a new obligation on carriers
to tell passengers that personal data on them will be collected
to send to the border control authorities of the Member State
of destination and of their right to see the personal data on
them stored in the carrier's and authority's databases.
The Government's view
5.9 The Explanatory Memorandum by the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) summarises
the existing UK requirements, contained in the Immigration and
Asylum Act 1999 and the Immigration (Passenger Information) Order
2000,[13] for carriers
to supply advance personal data on passengers.
5.10 The Minister encloses the opinion of the Information
Commissioner on the proposal. He comments that the area of concern
is information relating to the use of the return part of a travel
ticket. The Information Commissioner can see that occasionally,
in relation to a specific enquiry, it may be necessary for a competent
authority to ask a carrier to provide this information. But the
routine provision of such information would lead to competent
authorities holding irrelevant and excessive personal data on
passengers. Any obligation on carriers should be confined to specific,
case by case enquiries by a competent authority.
5.11 The Minister tells us that, from the outset,
the Government has supported the proposed Directive in principle,
but had concerns which document (b) goes some way to address.
However, some of those concerns remain and the Government will
seek further amendments to deal with them.
5.12 Article 6(3) proposes that the border control
authorities should delete the data sent to them by carriers "immediately"
all passengers have passed through immigration control. However
the Minister says that some Member States want the information
to be available to other border agencies. The UK has suggested
that the Article be redrafted to allow the data to be used for
other border control purposes and to provide no time limit for
deletion.
5.13 Article 6(5) proposes a new obligation on carriers
to inform passengers about the collection of information on them.
The Minister comments that this requirement comes from the EU
Data Protection Directive but that, in the Government's view,
it is not an accurate reflection of the provisions of that Directive.
The Government and other Member States consider that a general
reference to the Data Protection Directive would be more acceptable.
5.14 The Minister also comments that many Member
States have asked for the deletion of the provision for carriers
to supply, on request, information on passengers who have not
returned by the time stipulated on their tickets. The Minister
understands that Spain wishes to retain the provision for domestic
reasons and the Government is, therefore, considering what alternative
text might be agreed.
5.15 The proposals for financial penalties to be
charged per person and for a maximum lump sum penalty of not less
than €500,000 are acceptable to the Government.
5.16 The Minister says that the proposed Directive
would have significant financial implications for the UK but no
assessment of the costs has yet been made. She also says that
"as UK legislation already exists covering the principles
of the Directive, a regulatory impact assessment is not yet required".
Conclusion
5.17 We are grateful to the Minister for her Explanatory
Memorandum and for providing us with the Information Commissioner's
opinion on the proposal. We agree with the Minister that the latest
draft of the Directive contains improvements. But we also share
the doubts of some Member States about the inclusion of a discretionary
power to require carriers to supply data on third country nationals
who have overstayed the return date on their tickets (Article
3(4)).
5.18 We note that Article 3(1) of document (a)
required carriers to transmit data on third country nationals,
whereas document (b) applies the requirement to all "passengers"
without qualification. We should be grateful for the Minister's
comments on this, notably as to its proportionality.
5.19 There remains a difference of opinion between
us and the Government about the appropriateness of including
in this Directive provision for specific financial penalties on
non-compliant carriers. We also reiterate our view that the additional
sanctions in Article 4(2) — seizure, immobilisation and
so on — are disproportionate and we ask the Minister to
comment on this point.
5.20 Since the Minister considers that the Directive's
financial implications for the UK are likely to be substantial,
we believe that a Regulatory Impact Assessment (RIA) is required
and that the RIA should be completed before it is too late for
its findings to influence the drafting of the Directive.
5.21 We clear document (a), which has been superseded
by document (b). We shall keep document (b) under scrutiny until
we know the outcome of the further negotiations on the text, the
Minister has replied to our questions and the RIA is available.
13 S.I., 2000, No. 912. Back
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