Conclusions and recommendations
Airlines
1 We are delighted that the airlines' lack of
confidence in the e-Borders programme appears to be diminishing
as a result of a more positive engagement by UKBA. Without attributing
this change entirely to our intervention, we note that the airlines
had been raising their concerns with UKBA for at least a year
before our inquiry and we cannot but conclude that the subsequent
swift response of UKBA was a result of political interest in this
technical area. (Paragraph 21)
2 The very senior people, formally in chare of
e-Borders do not have day-to-day responsibility for managing the
programme, and we understand that turnover amongst those who work
more or less full-time on the project has been frequent. We suspect
that this instability may have played a significant part in the
breakdown of communications between UKBA and the carriers. It
may also have led to the perception that UKBA had been 'captured'
by its chosen provider and lost sight of what was reasonable and
practicable. We hope that there will be greater continuity among
the senior officials responsible for day-to-day management of
the programme in future. (Paragraph 22)
Juxtaposed Controls
3 We do not understand why it is thought necessary
for the ferry operators to send to UKBA the same information from
every passenger's passport as UKBA's own officials have done minutes
beforehand. If the argument is that, having passed passport control,
a vehicle or individual might be found not to have a valid ticket
and be turned back or held for a later ferry, then surely in these—presumably
fairly infrequent cases—the UK border control official could
be informed by the operator that a particular vehicle or passenger
was not going to be carried on that ferry. Ferry operators anyway
have to send a manifest of their passengers on each sailing, for
health and safety reasons. This could be used as the checklist
against which the information from the swiped passports is compared—in
much the same way as for airlines, which are unable to produce
a final list of their passengers until boarding is completed and
the plane is ready to depart. (Paragraph 29)
Maritime Sector
4 Anything that significantly slows down transit
through the Port of Dover will result in congestion in the port
that will overflow into the town, and, in severe cases, onto the
approach roads such as the M2. (Paragraph 31)
5 It is difficult to see how customers could
be motivated to provide information in advance when, for each
passenger, inputting data electronically is more of a chore than
waiting for a passport to be swiped, and there is no easy way
of fast-tracking those who have complied through the port. The
alternative—that ferry companies would no longer operate
turn-up-and-go—is something that UKBA itself has stated
that it does not want to see. (Paragraph 34)
6 There appears to be complete stalemate between
the maritime sector and UKBA. We do not understand why UKBA cannot
accommodate some of the practical suggestions made by the ferry
and port operators, such as transmitting data from the juxtaposed
UK border control in Calais rather than the ferry check-in desk,
or putting a requirement to collect passenger data onto coach
companies rather than the ferry operators. The problem of the
configuration of the Port of Dover also requires co-operation
rather than confrontation, and we urge the involvement of the
Department of Transport in practical discussions, given the potential
for serious consequences elsewhere on the road network. If the
only solution in Dover is the rebuilding of facilities, UKBA must
recognise that its present timetable for implementation of the
programme is not feasible. (Paragraph 35)
Railways
7 It is obvious that the e-borders programme
will have to be adapted to meet the needs of the railway sector,
which is part of a much more integrated transport network, with
many more embarkation points, than airlines and ferries. It is
also clear that UKBA has only just started to consider the difficulties
posed by national data protection regulations and national laws
to protect citizens against the spread of state powers beyond
a tightly defined cadre of officials. UKBA cannot impose one-size-fits-all
requirements on such different sectors as planes, ferries and
railways. It would be more productive if, instead of trying to
do so, they adapted their requirements more closely to how each
sector actually operates. In the case of railways, the unique
problem is that of intermediate stops. It is not at all clear
to us what is supposed to happen in relation to e-Borders if,
for example, a passenger boards a train at Brussels but decides
to disembark in France instead of travelling through the Channel
Tunnel—or, indeed, to stay on the train instead of disembarking
in France. (Paragraph 43)
E-Borders and the EU
8 We conclude that it is only in exceptional
cases, based exclusively on the conduct of the individual concerned
rather than as part of a blanket requirement, that an EU Member
State can impose any requirement other than simple production
of a valid identity document to restrict the entry into or exit
from that Member State of an EU citizen. The e-Borders programme
is therefore, as far as we can ascertain, likely to be illegal
under the EU Treaty. (Paragraph 48)
9 Despite constant reassurances to the contrary,
we have seen no proof that UKBA's predecessors held serious discussions
with the European Commission about the e-Borders programme. More
recent and frequent efforts by a variety of carriers to clarify
these legal issues with UKBA have met with no success. We suspect
that UKBA has only recently started to take these issues seriously,
possibly as a result of setbacks such as the forced postponement
of the programme in relation to air routes to Germany because
of national legislation. This is not good enough. UKBA is imposing
expensive requirements on the private sector in the name of urgent
public good apparently without having confirmed that the requirements
are lawful. UKBA must urgently seek an authoritative opinion from
the European Commission on this issue, and must make it a priority
to discuss all data protection problems with the relevant national
bodies. (Paragraph 49)
10 UKBA must report the results of these discussions
to us by, at the latest, the end of February. In the meantime,
any proposals to extend 'go live' to further intra-EU routes must
be put on hold. (Paragraph 50)
| 
