Memorandum submitted by bmi
I am just about to write to the Ministry of
the Interior for Spain regarding the disparity that has now arisen
between their API programme and e-Borders.
The Spanish have implemented a mandatory API
programme for ALL passengers travelling on flights arriving into
Spain from Non-SCHENGEN countries, regardless of whether the country
is an EU Member State.
Amongst other things the European Commission
have declared in their recent response to the UK authorities[20]
that the provision of API (TDI) data must not be made a condition
of purchase or sale of a ticket and that EU citizens and their
family members must be offered the opportunity to decline the
provision of data to the carrier. Furthermore, there must be no
sanctions imposed of any kind on either the carrier or the individual
for failing to provide or transmit the data. The UK had already
given the EC assurances of this nature. Such assurances and conditions
place carriers in an impossible position.
The final words of the Prime Minister's statement,
therefore, are very misleading:
"And today my Right Honourable Friend the
Home Secretary is meeting with his European counterparts to push
for swift agreement at EU level on the ability to collect and
process data on passenger records, including on travel within
the EU, and to enforce the European Commission's recent approval
of the transmission of advanced passenger information to our e-Borders
system by carriers based in other member states."
The "opt-out" position leaves rather
a large gaping hole in the programme.
In addition, the UK Government have given the
European Commission, and subsequently the National Data Protection
Agencies of each EU Member State, an assurance that the e-Borders
programme is NOT an "Authority to Carry" (ATC) scheme,
in which advance "clearance" for travel to the UK would
be required. The EC have already murmured that such a scheme would
not be compatible with EC Directive 2004/38/EC (Right of free
movement).
Numerous references to ATC can be found, specifically
in section 124 of the Nationality, Immigration & Asylum Act
2002[21]
and Section 2b of the Final Regulatory Impact Assessment on e-Borders[22]
and the e-Borders Memorandum published on 22 September 2009[23],
as well as others. It is astonishing that a change in direction
with respect to ATC has now surfaced, considering that for the
past few years the e-Borders programme have been informing the
industry that their preferred method of data transmission is on
a "passenger-by-passenger" basis, an arrangement which
would be mandatorily enforced in due course, and which would "also
position carriers well for supporting any Authority to Carry scheme
which may be introduced in the future".
In the absence of a full ATC scheme, it begs
the question about how watch-list checking will be undertaken.
Manual checking/intervention rather than an
electronic response to carriers would not be practical, or indeed
feasible.
The Prime Minister's further statement "As
a result of the £1.2 billion investment we are making in
the e-Borders system, we will by the end of this year be able
to check all passengers travelling from other countries to all
major airports and ports in the UK, whether they are in transit
or whether the UK is their final destination, by checking against
the Watchlist 24 hours prior to travel and taking appropriate
action" is also very unclear.
In many cases API (TDI) data will not be available,
nor transmitted 24 hours prior to arrival. If this statement refers
to the "OPI" (Other Passenger Information) component
of the e-Borders data acquisition requirements, there will be
circumstances where API data may be recorded within reservations
records (for some carriers), although the EC have been given an
assurance by the e-Borders programme that OPI data would not be
pursued from carriers for intra-EU services until an EU-wide PNR
framework has been established. This could be quite some time
away.
Of course we are bewildered as to why the Prime
Minister's statement is at such odds with the very clear message
from the European Commission, which for some reasons does not
appear to have found its way to Ministers or No 10.
January 2010
20 See correspondence from the European Commission
to the UKBA, December 2009, Ev 30. Back
21
Section 124 of the Nationality, Immigration & Asylum Act 2002,
p 77. Back
22
Section 2b of the Final Regulatory Impact Assessment on e-Borders,
p 28. Back
23
See Appendix. Back
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