1 Introduction
1. In the mid to late 1990s, successive UK governments
decided to abandon the paper-based system of embarkation controls
on passengers. With the growth of political interest in determining
the extent of migration, and increased fears over terrorism and
other serious cross-border crime, the Government decided to institute
a system to gather information electronically on all travellers
entering or leaving the UK, whether by air, sea or rail—the
e-borders programme. Work on the e-borders programme began in
2003.
2. In the autumn of 2008, TUI Travel (acting
on behalf of the charter airline industry in general) contacted
us arguing that the programme was being rushed into place without
proper consideration of the operational requirements on the travel
industry. We were unable to consider the issue at that stage,
but in June 2009, when our work programme allowed, we asked whether
the company still had significant concerns about the programme
and were told that not only they but many other sectors of the
travel industry had a variety of concerns about the implementation
of the scheme. A representative sample of the companies involved
was therefore invited to give oral evidence to us on 30 June:
TUI Travel, representing the chartered airlines industry, the
Chamber of Shipping, the Port of Dover and Eurostar.[1]
We subsequently took evidence from Lin Homer, Chief Executive
of the UK Border Agency (UKBA).[2]
We received written evidence from these witnesses and also from
the Board of Airline Representatives UK (BAR UK); the British
Air Transport Association (BATA); the airlines bmi, Flybe and
Virgin Atlantic; and the Royal Yachting Association. A number
of other companies and organisations wrote to us associating themselves
with the comments made by these witnesses. We also visited the
Ports of Dover and Calais to look at the current configuration
of these ports, and in particular the juxtaposed border controls.
We wish to thank all those who provided evidence and who arranged
the visit for their help in enabling us to understand this complicated
project.
Outline of the e-Borders programme
3. The e-Borders programme provides for electronic
collection and analysis of information on all passengers entering
or leaving the UK from carriers (including airlines, ferries and
rail companies). UKBA says this will allow them to:
significantly strengthen the security of the United
Kingdom by:
- identifying in advance passengers who are a potential
risk;
- telling us who plans to cross our border;
- checking travellers against lists of people known
to pose a threat;
- provide background checks to other agencies;
and
- compile a profile of suspect passengers and their
travel patterns and networks;
enable us to focus staff resources better to:
- stop passengers most likely to pose a risk; and
- allow the vast majority of passengers to pass
through our border more quickly; and
- improve our ability to arrest criminals and people
who break our immigration rules, and prevent them from returning
to the United Kingdom;
automate processes to enable us to deal with the
forecast 50% increase in passenger numbers over the next 10 years;
help identify those who avoid paying tax by claiming
to be resident outside the United Kingdom; and
provide more accurate information on migration to
and from the United Kingdom, allowing us to plan public services
more efficiently.[3]
Responsibility for the e-Borders programme lies with
UKBA (which has recently been merged with the border-related section
of HM Revenue & Customs) and the police. On its website in
June 2009, UKBA claimed to be "working closely with the travel
industries, whose support is crucial to the programme's success."
THE LEGISLATIVE FRAMEWORK AND THE
DATA TO BE COLLECTED
4. The Immigration, Asylum and Nationality Act
2006[4] created powers
for the UKBA and the police to obtain passenger, crew and service
data from carriers in advance of all movements into and out of
the United Kingdom and a duty for the border agencies to share
that data among themselves. The requirements on carriers were
set down in more detail by five statutory instruments in 2007
and 2008.[5] These commenced
the powers; extended the powers to cover Channel Tunnel trains;
specified the data that can be requested by the UKBA and the police;
specified the data that must be shared between the border agencies;
and brought the code of practice regarding data sharing into force.
5. The legislation defines two types of data:
mandatory data, which must be collected and supplied when requested
at particular times; and additional data which must be supplied
only to the extent that the carrier knows the data. It is mandatory
to provide certain types of data when passengers and crew have
boarded and are ready for departure, and no one else can join
them. The mandatory data for passengers and crew comprise service
information (for example number, name of carrier, departure and
arrival points) and the travel document information (TDI) which
are the data held in the machine readable zone of the passport
or identity document. (TDI is known in the airline industry as
advance passenger information data or API.) This information can
be requested on more than one occasion; but if the request is
made before boarding, the information needs to be provided only
to the extent to which it is known to the carrier.
6. The additional data are other passenger information
(OPI), which airlines call passenger name record data (PNR). This
is information collected for a carrier's own commercial purposes
and includes details such as the passenger's name, address, telephone
numbers, ticketing information and travel itinerary. This information
need only be provided to the extent to which it is known to the
carrier, regardless of when it is requested.
7. Border agencies must share specified travel
information with one another where it is likely to be of use for
immigration, HM Revenue & Customs, or police purposes. They
may also disclose this information to the security and intelligence
agencies, if the information is likely to be of use for certain
security purposes. The sharing of this information is covered
by a code of practice which sets out what data may be shared,
the ways in which and purposes for which it may be shared and
the safeguards that must be applied.[6]
In particular it highlights that the data must be handled
and shared in compliance with the European Convention on Human
Rights and the Data Protection Act 1998. The code of practice
also sets out the sanctions which may be imposed on staff for
the misuse of data.
PRECURSOR PROGRAMME: SEMAPHORE
8. Project Semaphore was the e-Borders operational
pilot launched in November 2004 on selected routes. It enabled
the UK authorities to monitor the movements of passengers before
they left or arrived in the United Kingdom. UKBA considers it
very successful, listing on its website a variety of cases where
people suspected of criminal activity or illegal immigration have
been arrested or detained as a result of the project.
9. The joint border operations centre (JBOC),
established in January 2005, is the operational centre of Project
Semaphore. Staffed by officers from the UKBA and the police, JBOC
is responsible for providing detailed information to border agencies
about passengers who are suspected of crime or who are of other
interest to the agencies. JBOC is evolving into the e-Borders
Operations Centre (EBOC), which will, according to the UKBA's
website, enable UKBA "to create travel histories for passengers".
TIMETABLE FOR IMPLEMENTATION OF E-BORDERS
PROGRAMME
10. According to UKBA's website at the time of
writing, the timetable for implementing the e-Borders programme
is:
2009: the e-Borders operations centre, the National
Border Targeting Centre (NBTC) starts operating;
December 2009: e-Borders aims to collect details
of 60% of all international passengers and crews from a range
of carriers and to check that 60% against lists of people who
are of interest to authorities;
December 2010: e-Borders aims to collect details
of 95% of passengers and crews;
April 2011: UKBA starts to "activate modernised
entry methods" at UK ports;
July 2012: improvements including an ability to give
clearance to passengers who are already on a train;
March 2014: e-Borders is fully operational, covering
all international travellers using all UK ports, including matching
passengers' arrivals to their departures.
NEED FOR CO-OPERATION OF FOREIGN
GOVERNMENTS AND BORDER AUTHORITIES
11. Because carriers bringing passengers to the
UK will be required to gather the TDI/API from their customers,
they need to organise their operations outside the UK in such
a way as to achieve this. There are two major problems. One is
logistical—whether foreign port authorities are both willing
and able to re-organise their facilities to enable the carriers
to obtain the required information from passengers. The other
is legal—there are concerns that the collection of the data
required by UKBA may be contrary to the data protection laws of
some countries, and it may also be in breach of EU data protection
law. We discuss this legal problem more fully in paragraph 40
below.
12. UKBA recognises the role played by foreign
governments in the scheme but its published information merely
says: "We will market e-Borders widely internationally. We
will address any issues in requesting data from certain countries
on an individual basis through established communication channels".[7]
1 This oral evidence and most of the written evidence
received in the course of this inquiry have been published together
as The E-Borders Programme: Oral and Written Evidence,
HC 817 of Session 2008-09 Back
2
Lin Homer's oral evidence has been published with another Report
of the Home Affairs Committee, The work of the UK Border Agency,
Second Report of Session 2009-10, HC (hereafter referred to as
'Work of UKBA evidence') Back
3
UKBA's website: http://www.ukba.homeoffice.gov.uk/managingborders/technology/eborders/ Back
4
Sections 32 to 38. Back
5
The statutory instruments are: the Immigration, Asylum and Nationality
Act 2006 (Commencement No 7) Order 2007; the Channel Tunnel (International
Arrangements and Miscellaneous Provisions) (Amendment) Order 2007;
the Immigration and Police (Passenger, Crew and Service Information)
Order 2008; the Immigration, Asylum and Nationality Act 2006 (Duty
to Share Information and Disclosure of Information for Security
Purposes) Order 2008; and the Immigration, Asylum and Nationality
Act 2006 (Data Sharing Code of Practice) Order 2008.
Back
6
Code of Practice on the management of information shared by
the Border and Immigration Agency, Her Majesty's Revenue and Customs
and the Police brought into force on 1 March 2008 Back
7
UKBA's website: http://www.ukba.homeoffice.gov.uk/managingborders/technology/eborders/
Back
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