Documents considered by the Committee on 25 April 2017 Contents

18Establishing a European Travel Information and Authorisation System

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Committee on Exiting the European Union

Document details

Proposal for a Regulation establishing a European Travel Information and Authorisation System (ETIAS)

Legal base

Articles 77(2)(b) and (d), 87(2)(a) and 88(2)(a) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Number

(38261), 14082/16 + ADD 1, COM(16) 731

Summary and Committee’s conclusions

18.1The Commission’s proposal for an automated European Travel Information and Authorisation System (ETIAS) is intended to strengthen security, reduce the risk of irregular migration and protect public health by requiring nationals of around 60 countries who do not need a visa to visit the Schengen area to complete an online application form and obtain authorisation before they travel.47 The information provided would be screened against a set of risk indicators and checked against a variety of migration and law enforcement databases, as well as an ETIAS “watch list” of criminal suspects established by Europol. The ETIAS travel authorisation would be valid for five years and for multiple journeys. The Commission expects the ETIAS to be operational from 2020, after the expected date for the UK’s withdrawal from the EU.

18.2The UK is not entitled to participate in (and vote on) the proposed Regulation establishing the ETIAS, as it builds on parts of the Schengen rule book which do not apply to the UK, but is entitled to play a full part in negotiations. British nationals will not need to obtain an ETIAS travel authorisation for as long as the UK remains a member of the EU. The immigration status of UK nationals wishing to travel to the Schengen area once the UK leaves the EU is one of the issues to be resolved during the Article 50 exit negotiations. The Immigration Minister (Mr Robert Goodwill) told us in his Explanatory Memorandum: “It is too early to say how these proposals would impact on the UK once we have left the EU. This will be considered as part of wider negotiations”.48

18.3He indicated that the Government was exploring “a number of options as to how EU migration might work once we have left the EU”, that the Government would “work to ensure the best possible outcome for the British people” during Article 50 exit negotiations, and that “it would be wrong to set out further positions at this stage”.49

18.4We suggested that the application of the full Schengen visa regime to UK nationals post-Brexit would be far more costly and onerous than the ETIAS model. Whilst recognising that, in a complex negotiation, the Government could not guarantee any particular outcome, we questioned why the Minister could not share with us details of the options under consideration and explain how they would influence the UK’s negotiating position on the proposed Regulation. We specifically asked the Minister whether it was the Government’s intention to seek to avoid the imposition of a full Schengen visa regime on UK nationals during the Article 50 exit negotiations.

18.5We noted that the Minister had not explained whether and how the Government intended to seek to influence negotiations on Article 55 of the proposed Regulation which prohibits the sharing of ETIAS data with third (non-EU) countries. Given the potential impact of this provision on the UK’s ability (as a third country following its exit from the EU) to obtain access to information held in the ETIAS Central System which may be of interest for border control or law enforcement purposes, we asked whether the Government had made any interventions on Article 55 during the negotiations to date, or intended to do so in future.

18.6We urged the Minister to engage fully in discussions on the personal information to be included in an ETIAS application and the screening rules used to develop the risk indicators which may lead to the refusal of a travel authorisation, given their potential impact on British nationals once the UK leaves the EU. We asked whether he was satisfied that there were adequate safeguards built into the proposed ETIAS Regulation, and how feasible it was likely to be in practice for UK nationals to seek redress in a foreign jurisdiction for the refusal of an ETIAS travel authorisation.

18.7We noted that there was some doubt whether the obligation on carriers to verify that visa-free third country nationals have a valid travel authorisation prior to boarding would apply to rail carriers. We asked the Minister why this apparent anomaly in the position of rail carriers could not be addressed by an amendment of Article 26 of the Schengen Implementing Convention. We also asked the Minister:

18.8We requested progress reports on the negotiations, including on the concerns raised previously about possible inconsistencies between the ETIAS and the Schengen Information System (SIS II).

18.9In his response, the Minister repeats that “it would be wrong to set out further positions at this stage” on how EU migration might work post-Brexit but says that “the UK will not be following any other nation’s model—the position we build outside the EU will be unique to Britain”. The Government “will not make decisions until we are ready”. He reiterates that how the UK shares data with the EU—including personal data held centrally in the ETIAS or obtained from it by a Member State—“will be an issue for discussion during the Brexit negotiations” but adds that the Government remains committed to “strong cooperation with Member States on security and law enforcement, both now and after we leave the EU”. He indicates that discussions on the safeguards contained in the proposed Regulation are at too early a stage to form an assessment of their adequacy and that “the practicalities of individuals seeking redress for a refusal in a foreign jurisdiction […] will be an issue for all visa-free third country nationals covered by the ETIAS requirements” and is likely to be addressed in greater detail as negotiations progress. The Minister helpfully clarifies the requirements for rail carriers and explains that the proposed Regulation is not intended to interfere with these.

18.10We question the Government’s assertion that it would be “wrong” to share with Parliament details of the options it is considering for “how EU migration might work post-Brexit”. The Minister tells us that the UK “will not be following any other nation’s model” and will be developing “our own British model” yet, in this area, the options appear to be very limited—either UK nationals travelling to the Schengen area post-Brexit will require a Schengen visa or they will require an ETIAS travel authorisation. Given the Government’s aspiration to secure “the best possible outcome for the British people”, it does not seem unreasonable to ask which of these options would represent “the best possible outcome”. Now that the Article 50 trigger has been pulled, we expect the Government to be far more transparent in explaining how proposals we are scrutinising will play into the exit negotiations.

18.11We accept that the question of how the UK shares data with the EU from the point of exit will be an issue for discussion during the Brexit negotiations, but it also arises in the context of negotiations on this proposed Regulation which includes a specific Article (Article 55) on the communication of personal data stored in ETIAS to third (non-EU) countries. The Minister does not tell us whether the Government has made any interventions specifically on this Article. We ask him to do so. We also ask him to clarify whether it is the Government’s position that all data sharing arrangements in the field of security and law enforcement will be dealt with in the EU-UK withdrawal agreement (or any EU-UK future relations and/or transitional agreements) and that this agreement or agreements will take precedence over any explicit provisions on data sharing in EU secondary legislation, such as the proposed ETIAS Regulation to the extent that the two are incompatible?50

18.12We can see no impediment to the Minister providing the assessment we have requested of the adequacy of the safeguards proposed by the Commission in relation to the protection of personal information provided as part of the ETIAS application process, particularly as his assessment can be updated to take account of any significant changes resulting from the opinion issued by the European Data Protection Supervisor or the progress of negotiations. We recognise that seeking redress in a foreign jurisdiction for the refusal of an ETIAS travel authorisation will, as the Minister indicates, be an issue for all visa-free third country nationals covered by the ETIAS requirements, but we are particularly concerned about the potential practical and legal obstacles which UK nationals may encounter post-Brexit and would welcome a more informed view.

18.13We are grateful to the Minister for clarifying the position with regard to rail carriers and are content with his response.

18.14We look forward to receiving the additional information we have requested, as well as progress reports on the negotiations. Meanwhile, the proposed Regulation remains under scrutiny. We draw this chapter to the attention of the Home Affairs Committee and the Committee on Exiting the European Union.

Full details of the documents

Proposal for a Regulation establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 515/2014, (EU) 2016/399, (EU) 2016/794 and (EU) 2016/1624: (38261), 14082/16 + ADD 1, COM(16) 731.

Background

18.15Our earlier Reports listed at the end of this chapter provide a detailed overview of the proposed Regulation and the Government’s position.

The Minister’s letter of 19 April 2017

18.16The Minister repeats the Government’s position outlined in earlier correspondence that “we are considering various options for how EU migration might work post-Brexit, and it would be wrong to set out further positions at this stage”. He continues:

“There will be no immediate change to our relationship with the EU; until we have left the EU, the UK will remain a member of the EU with all the rights and obligations that membership entails. The UK will not be following any other nation’s model—the position we build outside the EU will be unique to Britain. It is about developing our own British model so we will not make decisions until we are ready.”

18.17Turning to the provisions of the proposed Regulation dealing with third country access to personal data held in the ETIAS, the Minister observes:

“The UK has made a number of interventions during the course of negotiations to date on the proposed ETIAS Regulation, and will continue to participate in discussions over the coming months in line with our position as a full member of the EU with all the rights and obligations of EU membership remaining in force. The question of how the UK shares data with the EU from the point of exit will be an issue for discussion during the Brexit negotiations. We remain committed to strong cooperation with Member States on security and law enforcement, both now and after we leave the EU.”

18.18The Minister explains that the proposed Regulation sets out “a range of safeguards to protect an individual applicant’s personal information and provides applicants with the ability to appeal a refusal issued under the ETIAS”. He continues:

“Discussions on the issue of safeguards are still at an early stage and as such it would not be appropriate to form an assessment of their adequacy. The European Data Protection Supervisor (EDPS) has now issued an opinion on the ETIAS proposals, including on an individual’s right to the protection of personal data, since a number of different types of data will become accessible to a wider range of public authorities through the ETIAS proposals. The EDPS has recommended, amongst other things, that an assessment is conducted of the impact of the proposals on the right to privacy and the right to data protection enshrined in the Charter of Fundamental Rights of the EU. This continues to be discussed at working level.“On the practicalities of individuals seeking redress for a refusal in a foreign jurisdiction, I expect this issue to be addressed in more detail as development of the European Commission’s proposals continues, as this will be an issue for all visa-free third country nationals covered by the ETIAS requirements”.

18.19The Minister re-states the Government’s understanding that rail carriers will not be required to verify that an individual is in possession of an ETIAS travel authorisation by virtue of specific provisions set out in Article 26 of the Convention Implementing the Schengen Agreement. He says he cannot comment on the case for specific changes to the Schengen Agreement or Implementing Convention as the UK is not a party to either instrument. He continues:

“I understand that Article 26(1)(a) of the Convention Implementing the Schengen Agreement does apply to rail carriers. Annex V of the Schengen Borders Code (Regulation 2016/399) provides for any carrier to be ordered to take charge of a third-country national who has been refused entry at the border and to transport them to the third country from which they were brought or another third country where they are guaranteed admittance. Annex VI (1) sets out additional specific rules for the various types of border and the various means of transport used for crossing the Member States’ external borders. In particular, Annex VI (1.2) sets out requirements for checks on rail traffic, and allows for Member States to agree, with one or more relevant third countries, to conduct entry checks in the departure stations of that third country rather than on arrival at the EU’s external border. Under such an agreement, the relevant rail carrier would not have to conduct any verification as individuals who do not qualify for entry to the Schengen area would have already been refused entry before boarding. I also understand that some Member States do not currently provide in national legislation for specific rail carriers to undertake routine document checks for immigration purposes. The Commission has confirmed that it is not seeking to change the nature of the requirements currently placed on rail carriers as a result of the ETIAS proposals”.

18.20Finally, the Minister notes our request for a progress report on the concerns raised previously about possible inconsistencies between the ETIAS and the Schengen Information System (SIS II). He adds: “The UK continues to discuss this issue with the Commission and the Presidency in the context of the wider negotiations on SIS II”.

Previous Committee Reports

Thirty-fifth Report HC 71-xxxiii (2016–17), chapter 7 (15 March 2017); Thirty-first Report HC 71-xxix (2016–17), chapter 12 (8 February 2017) and Twenty-fifth Report HC 71-xxiii (2016–17), chapter 12 (11 January 2017).


47 See the European Commission’s factsheet on the ETIAS.

48 See para 24 of the Minister’s Explanatory Memorandum.

49 See the Minister’s letter of 26 January 2017 to the Chair of the European Scrutiny Committee.

50 For the relationship between an international agreement and EU internal rules, see Case C-308/06, Intertanko.




27 April 2017