Correspondence from the Chamber of Shipping
to the European Commission, 7 February 2010
Thank you for your letter of 1 February under
reference JLS/D2/MM/itD(2010)376 concerning the UK's e-Borders
scheme. I have also, courtesy of the UK Border Agency, seen a
copy of your letter to Jonathan Sedgwick of 17 December 2009 under
reference JLS/D-5/MDF/et(2009)D19374.
As you know from my original letter to you of
28 April 2008, the Chamber of Shipping has been concerned for
some time that the e-Borders scheme appeared to infringe the rights
of EU citizens to move freely from one Member State to another,
by making travel to and from the UK by ferry conditional upon
providing their passport data in advance.
As you may also know, those concerns have recently
been echoed by the Home Affairs Committee of the House of Commons,
which held an Inquiry into e-Borders last summer. Drawing on advice
from the Speaker's Counsel (the UK Parliamentary legal service)
the Committee concluded, in its report dated 15 December 2009,
that the e-Borders scheme was "likely to be illegal under
the EU Treaty" in imposing a systematic formality additional
to the presentation of a valid passport or an ID card at a border
control checkpoint.
The Chamber of Shipping is therefore very grateful
for the clear guidance in your letters on those aspects of e-Borders
that require modification in order for the scheme not to breach
EU law. The notion that ferry operators must not be liable to
penalties for failing to transmit data that they do not possess
is clearly very welcome. So, more fundamentally, is the stipulation
that the provision of Advance Passenger Information data must
not be made a condition of carriage nor of purchase of a ticket,
and that there must be no sanction of any kind on passengers who
do not provide it.
Your clarification in your letter of 17 December
that the provision of API must not be imposed as a condition of
travel on any passengers, regardless of their nationality, is
particularly helpful. It makes clear that, in imposing a requirement
for API to be provided by a person who is at the time in another
Member State, e-Borders would offend against the provision in
the chapeau to article 1 of the UK's Protocol to the Treaty of
Amsterdam that the UK may exercise controls "at its frontiers"
only, as weil as offending against the provision in sub-article
(a) that the UK may impose no systematic formality on EU citizens
beyond the production of a passport or ID card.
Shortly after seeing your December letter, the
Chamber wrote to the UKBA asking to see the three letters and
six emails mentioned in your first paragraph. We are keen to see
the exact terms of the commitments they gave to you—not
least because, on the basis of your summary, those commitments
do not match statements made by the UKBA to us. For example, ferry
operators were told unequivocally, in a document dated 1 September
2009, that "the UK authorities require that TDl [ie passport
data] must be provided for all passengers without exception".
This, clearly, is not consistent with the UKBA's professed recognition
that no such requirement may be imposed on EU citizens travelling
to or from another Member State.
Similarly, in relation to penalties on carriers,
the UKBA said in a letter of 2 October that a ferry operator would
be "unlikely to be prosecuted" for failing to transmit
API data that an EU passenger had not supplied. This formula makes
dear that a ferry operator would remain liable to prosecution
in such circumstances, and it is reasonable to infer from the
UKBA's failure to give a definitive undertaking that a ferry operator
would not be prosecuted that it does indeed intend to prosecute
on some occasions. It is of note that, on 12 November 2009, the
UKBA published a draft legislative Bill that would double the
penalty on carriers for not providing API, about EU passengers
as well as others, from six months' imprisonment to 12.
That draft Bill would also make EU citizens
liable to "examination" on arrival in the UK (as non-EU
citizens already are), and to detention pending completion of
this process. This appears to conflict with settled case law,
that no examination is permitted once an individual has presented
his passport. Furthermore, the Bill would make carriers liable
to a fine (again, as they already are for non-EU passengers) in
respect of any EU citizen not carrying a passport or ID card.
The purpose of this liability would be to oblige carriers to refuse
to carry such individuals—a refusal which, as is dear from
your colleague Ernesto Bianchi's letter to me under reference
JLS/D2/MM/sdD(2009)5805, would deny them their rights under Directive
2004/38.
Overall, the UKBA appears to be pursuing a strategy
of applying border controls at the UK's frontiers with other Member
States that are equivalent in effect to those that operate at
external borders and which, in practice, would frustrate the exercise
by EU citizens of their right of free movement. The UKBA's continued
pursuit of this wider strategy, as is evident in its publication
of the draft Bill while simultaneously negotiating with yourselves,
must cast doubt on the sincerity of the contradictory assurances
which it was giving in the context of those negotiations.
Indeed, on receipt of your letter of 17 December,
the UKBA issued a circular to all ferry operators on 18 December
stating that you had confirmed that its e-Borders scheme does
not breach EU law. This circular referred only briefly and obliquely
to the assurances that had been given to you, and concluded by
demanding "immediate and full compliance" with the (unmodified)
requirements of the e-Borders scheme. I attach a copy. This circular
similarly casts doubt on the UKBA's intention to honour the commitments
and assurances that it has given to you.
Such concerns would, of course, be dispelled
if, as stipulated in your letters, those commitments and assurances
were made legally-binding. The Chamber of Shipping therefore responded
to the circular on 22 December, asking the UKBA when it was planning
to amend UK law accordingly. The UKBA has yet to reply but its
answer was set out dearly in a circular letter dated 23 December
2009 to the data protection authorities of other Member States:
that it does not intend to change UK law. I attach a copy, in
which the critical sentence is highlighted.
This statement of intention gives cause for
profound concern. UK law currently does not bind the UKBA in any
way in relation to its implementation of its e-Borders scheme.
The law creates broad powers that enable the UKBA to choose whether
to act in accordance with the commitments and assurances it gave
to you, but it does not bind the UKBA to do so; and the sole logical
reason for wishing not to be bound by those commitments would
be an intention to act in defiance of them.
In conclusion, let me place on record our appreciation
for the clear guidance in your letters about the changes that
are required to the e-Borders scheme in order to align it to the
framework of EU law on free movement of persons and data protection.
As you may have seen, your letter of 17 December was widely reported
in the UK press (after copies were supplied to journalists by
the UKBA), and the response from many members of the public makes
plain their appreciation of your confirmation of their rights
to travel freely between the UK and other Member States, unencumbered
by border formalities other than the simple presentation of a
passport or an ID card.
I would ask that in your continuing discussions
with the UKBA, you hold it to the obligation to bind itself in
law to meet in full the commitments it gave, and to change the
relevant Immigration Acts accordingly in order to ensure that
those rights are indeed upheld, and that you keep this file open
until it has done so.
February 2010
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