3 Carriers' obligation to communicate
passenger information
| (a)
(25079)
15165/03
—
(b)
(25258)
5183/04
—
|
Draft Directive on the obligation of carriers to communicate passenger data
Draft Directive on the obligation of carriers to communicate passenger data
|
| Legal base | Articles 62(2)(a) and 63(3)(b) EC; consultation; unanimity
|
| Document originated | (a)24 November 2003
(b)9 January 2004
|
| Deposited in Parliament | (a)26 November 2003
(b)19 January 2004
|
| Department | Home Office |
| Basis of consideration | (a) EM of 9 December 2003
(b) EM of 29 January 2004
|
| Previous Committee Report | (a)HC 42-iv (2003-04), para 5 (7 January 2004)
|
| To be discussed in Council | Date not set
|
| Committee's assessment | Politically important
|
| Committee's decision | (a)Cleared
(b)Not cleared; further information requested
|
Background
3.1 Document (b) is an amended text of document (a). The aim
of both is to combat illegal immigration. Document (b) requires
Member States to establish an obligation on air and sea carriers,
at the request of the authorities responsible for carrying out
checks on people at the external borders of the Member State of
destination, 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 air and
sea carriers, if requested, 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.
We have considered two previous drafts of the Directive.[7]
3.2 When we considered document (a) in January, we
agreed with the Minister that the new text contained improvements
but said that we shared the doubts of some Member States about
the inclusion of a discretionary power in Article 3(4) to require
carriers to supply data on third country nationals who have outstayed
the return date on their tickets. We noted that Article 3(1)
proposed that carriers should be required to transmit data on
"passengers" whereas the previous drafts required transmission
of data only about third country nationals; we asked the Minister
to comment on this. We reiterated our view that the discretionary
power in Article 4(2) for Member States to seize, immobilise or
confiscate the means of transport of a carrier which had not transmitted
the required data was disproportionate to the offence. We said
that we believed a Regulatory Impact Assessment (RIA) was required
and should be completed before it was too late for its findings
to influence the drafting of the Directive. We decided to keep
document (a) under scrutiny until we knew the outcome of the proposed
further negotiations on the text, the Minister had replied to
our questions and the RIA was available.
The revised proposal
3.3 Document (b) has been proposed by the Irish Presidency
in the hope of achieving a compromise on some important issues,
about which the views of Member States differed. The compromise
would:
- limit the application of the
Directive to air and sea carriers;
- leave Member States discretion whether to oblige
carriers, on request, to supply information on passengers who
have not returned by that date shown on their tickets;
- not add biometric data to the list of information
to be transmitted;
- not add a requirement for the supply of information
about transit arrangements; and
- deal with the data protection issues in the light
of the discussion at the Strategic Committee on Immigration, Frontiers
and Asylum in December.
Accordingly, document (b) contains only the following
amendments to the text proposed in document (a).
3.4 The definition of "carrier" in Article
2 has been amended so that it applies only to carriers by air
or sea (in document (a), carriers by land were also covered by
the definition).
3.5 Article 3(1) (obligation to provide advance passenger
information to the authorities responsible for border checks)
is unchanged. Moreover, the data to be transmitted (Article 3(2))
has not been amended. The data to be transmitted would be, therefore:
- 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; and
- initial point of embarkation.
3.6 There are, however, amendments to Article 3(4)
(discretionary power for Member States to create an obligation
on carriers to transmit information about third country nationals
who have not returned by the date stipulated on their tickets).
The obligation has been amended so that it applies not to requests
by border authorities but to the transmission of information "in
particular cases at the request of the authorities responsible
for combating illegal immigration". The request for the
information must "be based on a national risk assessment"
and the request "shall be transmitted to the carrier within
24 hours after the end of boarding". There are no definitions
of "in particular cases", of "national risk assessment"
and of "the end of boarding".
3.7 The text of Articles 4 (sanctions on carriers
for failing to transmit the required data) and Article 5 (carriers'
right to defend and appeal in proceedings to impose penalties
on them under Article 4) has not been amended.
3.8 Article 6 has been amended to apply to data transmitted
to the authorities responsible for combating illegal immigration
the same data protection safeguards as apply to the protection
of data transmitted to the authorities responsible for border
checks.
3.9 There are no amendments to the remaining articles.
The Government's view
3.10 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) tells us that, although the amended
text in document (b) falls short of many Member States' expectations,
the Presidency hopes that it will enable the core of the proposal
to be adopted, leaving matters such as the use of biometric data
and the extension of the requirements to other carriers to be
addressed in the future.
3.11 The Minister says the information-gathering
powers available to the UK authorities under existing UK legislation
extend to international rail carriers as well as air and sea carriers.
The Government regards it as essential that nothing in the proposed
Directive should prevent the UK authorities from exercising their
present powers to require advance passenger information. The
Minister reminds us that air carriers made representations to
the Government about the anti-competitiveness of the original
proposal that the Directive should apply only to carriers by air.
She says that the current proposal to limit the application of
the Directive to air and sea carriers in the first instance might
be acceptable if the UK authorities could continue to use their
national legislation and if acceptable advice were received on
the anti-competitiveness point.
3.12 The Government considers that the provision
in Article 3(4) for Member States to have discretion to require
carriers to provide information on third country nationals who
have not returned on the date stipulated on their tickets has
no added value and is unworkable. The Minister says that:
"the UK has proposed an alternative outbound
control measure where carriers may be required to provide, at
the request of the control authorities, information on passengers
embarking from the Member State, thereby enabling control authorities
to identify those passengers who have not complied with their
conditions of stay. The emphasis is therefore on the control
authorities to measure compliance rather than on the carriers.
"It is essential that the UK authorities are
able to exercise their national passenger information gathering
powers in respect of departing passengers. The inclusion of an
optional element may be acceptable to the UK, subject to legal
confirmation that, should the UK elect not to apply the obligations
set out in Article 3(4), the Directive does not prevent the establishment
or implementation of alternative measures based on national legislation.
The UK would prefer Article 3(4) [to] be deleted, subject to
legal confirmation that the absence from the Directive of any
obligation relating to the provision of information on departing
passengers would not prevent the UK from establishing measures
based on national legislation".
3.13 In response to our question about the requirement
to provide advance passenger information about all passengers
rather than about third country nationals only, the Minister tells
us the amendment is necessary because holders of European Economic
Area (EEA) travel documents are not regarded as third country
nationals and there is significant abuse of EEA travel documents.
The power to require advance information about all "passengers"
is important in order to have the information necessary to make
the checks needed to prevent abuse and illegal immigration.
3.14 The Minister says that the Government is concerned
about the data protection provisions of document (b). Under national
legislation, the UK Immigration Service may share information
with other agencies. The Government is particularly concerned,
therefore, that Article 6(1) provides that personal data is to
be "communicated to the authorities responsible for carrying
out checks on persons at [the] external borders for the sole purpose
of facilitating the performance of such checks". This would
not permit the information to be shared with other agencies and,
accordingly, the "sole purpose" restriction should be
removed from the Article.
3.15 Article 6(1) also requires the authorities to
delete personal data immediately after the passengers have entered
the Member State of destination. The Government is concerned
that this requirement would preclude the retention of information
for the purposes of government agencies which could otherwise
be retained under the EU Data Protection Directive.[8]
The Government considers that a general reference to the obligations
placed on Member States by the Data Protection Directive would
be sufficient for the purposes of this Directive. The Minister
says that the Directive must not prevent the UK authorities from
sharing the passenger information with other agencies and must
not prevent the authorities and agencies from retaining the information
for as long as necessary.
3.16 The Minister tells us that the Directive would
have significant financial implications for UK businesses. She
says, however, that the Government does not consider that an RIA
is required. This is because UK law already exists "covering
the principle of this Directive" and because an RIA was completed
before the Immigration (Passenger Information) Order 2000 was
laid.
3.17 Finally, the Minister reminds us that Article
67(1) of the EC Treaty provides that, as this is a proposal initiated
by a Member State, it must be adopted by 30 April 2004 or it will
expire. The Government will continue to give its support to the
Directive in general but will press for essential amendments to
ensure that the UK authorities can continue to exercise their
statutory powers for the control of the UK's borders and can
continue to share information with other agencies.
Conclusion
3.18 We are grateful for the Minister's helpful
Explanatory Memorandum. We note that the Government considers
that certain further amendments to the Directive are essential.
We should be grateful if the Minister would keep us informed
of the progress of the negotiations and if she would tell us the
advice she receives relating to the concern about fair competition
created by limiting the application of the proposal to air and
sea carriers.
3.19 We are grateful for and accept the Minister's
explanation of the reason why the obligation to provide advance
information should not be limited to third country nationals but
should rather apply to all passengers.
3.20 We share the Government's view that it would
be preferable to delete Article 3(4) (power to request information
on third country nationals who have not returned by the date stipulated
on their tickets). But if Article 3(4) were to be retained, we
consider that definitions may be needed of "in particular
cases", "national risk assessment" and "within
24 hours of boarding".
3.21 We remain troubled by the provision in Article
4(2) for Member States to seize, immobilise or confiscate the
means of transport of a carrier which has not provided the required
information. Article 4(1) provides for financial penalties on
carriers. It seems to us most unlikely that it would ever be
necessary, reasonable or proportionate to seize, immobilise or
confiscate a carrier's ship or aircraft as an alternative or in
addition to the imposition of a fine. Moreover, the draft Directive
makes no provision for compensation to carriers in any case where
a Member State wrongly or unreasonably exercises the powers of
Article 4(2). We should be grateful, therefore, for the Minister's
further views on the necessity and proportionality of Article
4(2) and on the need for a compensation provision for carriers.
3.22 We note that the Government considers that
it would be sufficient to replace Article 6 with a general reference
to the EU Data Protection Directive. We should be grateful to
know if it is the opinion of the Information Commissioner that
this would provide sufficient safeguards for passengers' personal
data.
3.23 We have considered the Regulatory Impact
Assessment (RIA) that was done in preparation for the laying of
the Immigration (Passenger Information) Order 2000. We are not
persuaded, however, that it provides a justification for not doing
an RIA for this Directive. The RIA on the Order provided an estimate
only of the cost to UK businesses of compliance with the requests
of the UK authorities. By contrast, the Directive would enable
all Member States (and, ultimately, the ten accession states)
to demand passenger information from UK carriers. It seems to
us likely, therefore, that the impact of the Directive on the
carriers would be much greater than the effect of the Order.
We believe, therefore, that an RIA is required.
3.24 We clear document (a) because it 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 and the Minister has replied to our questions.
7 See (24513) 7161/03: HC 63-xxix (2002-03), para 11
(10 July 2003), HC 63-xxxi (2002-03), para 7 (10 September 2003)
and HC 63-xxxvii (2002-03), para 7 (12 November 2003); and (24985)
11406/1/03: HC 63-xxxvii (2002-03), para 7 (12 November 2003)
and HC 42-iv (2003-04), para 5 (7 January 2004). Back
8
Directive 95/46/EC. Back
| 
