4Establishing a European Travel Information and Authorisation System
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Committee’s assessment |
Legally and politically important |
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(a) and (b) Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Exiting the European Union Committee |
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Document details |
(a) Proposal for a Regulation establishing a European Travel Information and Authorisation System (ETIAS) (b) Proposal for a Regulation establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulation (EU) 2016/794 |
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Legal base |
(a) Articles 77(2)(b) and (d), 87(2)(a) and 88(2)(a) TFEU, ordinary legislative procedure, QMV (b) Article 88(2)(a) TFEU, ordinary legislative procedure, QMV |
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Department |
Home Office |
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Document Numbers |
(a) (38261), 14082/16 + ADD 1, COM(16) 731; (b) (38815), 9763/17 + ADD 1 |
Summary and Committee’s conclusions
4.1These documents would establish a European Travel Information and Authorisation System—”ETIAS”—for the nationals of around 60 countries who do not need a visa to travel to the Schengen area for short stays of up to 90 days in any six-month period. The proposed ETIAS Regulation—document (a)—would require these visa-free third country nationals to complete an online application form and obtain authorisation before they travel.33 The information provided would be screened against a set of risk indicators and checked against a variety of EU migration and law enforcement databases, as well as an ETIAS “watchlist” of individuals suspected of taking part in or planning to commit terrorist or other serious criminal offences. The UK is not entitled to participate in (and vote on) the proposed ETIAS Regulation, as it builds on parts of the Schengen rule book which do not apply to the UK. By contrast, the UK is entitled to participate in the second proposed Regulation—document (b)—which would amend Europol’s founding Regulation to enable Europol to manage and provide information on criminal suspects to the ETIAS watchlist. The UK participates fully in the current Europol Regulation (applicable since 1 May 2017).
4.2The Justice and Home Affairs Council agreed a General Approach on both proposed Regulations in June 2017. The Government decided not to opt into the proposed Europol amending Regulation as it “had concerns about the number of unknowns that there still are with regard to how the watchlist will be hosted by Europol and how it will function” and because it was unclear “what obligations opting-in might place on the UK”.34 When we last considered the proposed Regulations in November 2017, we noted that the decision not to opt in meant that the Government would be unable to vote on any changes agreed during negotiations which might reduce “the number of unknowns” about the functioning of the watchlist and the obligations it might create for Member States. We noted also that the UK would be bound by the Europol Regulation but not by this subsequent amending proposal. This raised the possibility, under Article 4a of the UK’s Title V (Justice and Home Affairs) opt-in Protocol, that the Commission and other Member States might seek to eject the UK from the Europol Regulation if they considered that the UK’s decision not to participate in the ETIAS watchlist would make it “inoperable”.
4.3We recalled that the Government had chosen not to make any interventions on Article 55 of the proposed ETIAS Regulation which set out highly restrictive conditions for the sharing of ETIAS data with third countries. We asked whether the Government intended to seek law enforcement access to ETIAS data as part of a post-exit internal security agreement with the EU and whether the provisions of such an agreement would take precedence over incompatible provisions in EU secondary legislation, such as the proposed Regulation.
4.4We highlighted the possibility that the personal data of a large number of British nationals might be stored in the ETIAS Central System following the UK’s exit from the EU and be checked against other EU databases and the ETIAS watchlist. We sought an assurance that the Government would press for extremely robust safeguards and effective enforcement mechanisms and requested regular progress reports on this and other aspects of the negotiations.
4.5A Council press release published on 25 April 2018 stated that the Council and European Parliament had concluded negotiations and reached a final agreement on both the proposed Regulations. A Statement issued by the European Commission on the same day announced that ETIAS should be fully operational by 2021 and would:
[……] carry out pre-travel screening for security and migration risks of travellers benefiting from visa-free access to the Schengen area. By cross-checking visa-exempt travellers against our information systems for borders, security and migration, the ETIAS will help us identify anyone who may pose a security or migration risk before he or she even reaches the EU border. The process for travellers to obtain an authorisation will be affordable, simple and fast and will always be carried out in full respect of fundamental rights and EU data protection rules. The ETIAS will also help us to strengthen and safeguard mobility for visa-free travellers who do not pose risks, while identifying those who do.
4.6The final version of the ETIAS Regulation and the Europol amending Regulation were published in the EU’s Official Journal in September 2018.35 The ETIAS travel authorisation will cost €7 but this fee will be waived for children and elderly people who are under the age of 18 or over 70 when they apply. It will be valid for three years (or the date on which the applicant’s passport expires, if sooner) and for multiple journeys.36 The travel authorisation will need to be produced before boarding a ferry or airplane bound for a Schengen country—this requirement will be extended to international coach travel three years after the ETIAS has become operational. The travel authorisation will not guarantee entry to Schengen territory. The final decision on admission will continue to rest with national border control authorities applying the rules set out in the Schengen Borders Code.
4.7In her letter of 22 January 2019, the Immigration Minister (Rt Hon Caroline Nokes MP) apologises for the delay in responding to the questions we raised more than a year ago. She confirms that the Regulations have been adopted and entered into force on 9 October 2018. She highlights two changes to the Europol amending Regulation made after we first examined the proposal in November 2017:
The first amendment reflects additional duties relating to management of the ETIAS watchlist and data entry. The second amendment provides additional detail on the agencies that will have indirect access to the ETIAS information stored by Europol.
4.8The Minister draws our attention to the EU’s Notice on travelling between the EU and the UK following withdrawal of the UK from the EU (published on 13 November 2018) which makes clear that the UK will become a third country on leaving the EU and UK nationals will cease to be treated as EU citizens. She notes that the European Commission’s proposal to grant UK nationals visa-free access to the EU for short visits post-exit also makes clear that they will need to obtain a travel authorisation in accordance with the ETIAS Regulation before travelling to the EU once EU law on the free movement of EU citizens ceases to apply to the UK.37
4.9The Minister explains that the UK’s exclusion from the ETIAS Regulation (a Schengen measure) has limited the opportunity to influence the final text but adds:
The European Commission has confirmed in its published fact sheet that its proposal fully complies with the EU’s Charter of Fundamental Rights and contains all appropriate safeguards, ensuring that ETIAS is developed in line with high data protection standards; in particular regarding data access, which is strictly limited. Processing of personal data must meet EU data protection law, and this is consistent with data protection applicable in the UK.
4.10Finally, the Minister notes that the Government’s White Paper, The UK’s future skills-based immigration system (published in December 2018) sets out the intention to introduce an Electronic Travel Authorisation (ETA) for visa-free travellers to the UK. She continues:
It is our intention to require EU citizens to obtain an ETA, but we intend to discuss this further with the EU in the next phase of negotiations.
Our Conclusions
4.11As we have stated in our earlier Reports, a requirement to obtain a travel authorisation before travelling to an EU or non-EU Schengen associated country (Iceland, Norway, Switzerland and Liechtenstein) will mark a significant change in practice for the many UK nationals who have become accustomed to moving freely within the Schengen area. It is disappointing that we have had to prompt the Government to provide an update on the progress and outcome of negotiations. We note the Minister’s assurance that the ETIAS Regulation and Europol amending Regulation contain “all appropriate safeguards” to protect the personal information submitted as part of the ETIAS application. We nonetheless remain concerned that it will be difficult in practice to appeal against a refusal of a travel authorisation or to rectify inaccurate information stored in the ETIAS Central System, given that the applicant will have to grapple with the laws and procedures in place in the country responsible for the application.
4.12We note that the provisions on third country access to personal data stored in or obtained from the ETIAS Central System are now set out in Article 65 of the ETIAS Regulation. Whilst there is a general prohibition on this information being made available to a third (non-EU) country, Article 65 includes possible derogations, for example where there is an imminent risk of terrorism or danger to life. We would welcome the Minister’s assessment of these changes and their implications for the UK once it becomes a third country following the UK’s exit from the EU and the end of any post-exit transition/implementation period. We also ask her to address the questions raised in our earlier Report (agreed on 13 November 2017) which asked:
- whether the Government intends to seek law enforcement access to ETIAS data as part of a post-exit agreement with the EU on internal security;
- whether the terms of such an agreement concerning cross-border data sharing and transfers for law enforcement purposes would take precedence over incompatible provisions in EU secondary legislation, such as the ETIAS Regulation; and
- if they would not, whether the Government is content with the restrictive conditions on access to ETIAS data set out in Article 65 of the ETIAS Regulation.
4.13The Minister has not told us whether the Government’s decision not to opt into the Europol amending Regulation places the UK at risk of being ejected from Europol, as contemplated in Article 4a of the UK’s Title V (Justice and Home Affairs) opt-in Protocol. We again ask her:
- whether the Government has sought assurances from the Commission that it will not activate the Article 4a procedure;
- what assessment the Minister has made of the risk of UK ejection from Europol;
- whether there is any legal precedent for the UK being bound by part, but not all, of a Title V (justice and home affairs) instrument as would be the case under the amended 2016 Europol Regulation; and
- whether the Government is contemplating a post-adoption opt-in.
4.14We will consider releasing the ETIAS Regulation and Europol amending Regulation from scrutiny once the Minister has addressed our outstanding questions. 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
(a) 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.
(b) Proposal for a Regulation establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulation (EU) 2016/794: (38815), 9763/17 + ADD 1.
Background
4.15The earlier Reports listed at the end of this chapter provide a detailed overview of the proposed ETIAS Regulation—document (a)—and Europol amending Regulation—document (b)—and the Government’s position.
Previous Committee Reports
First Report HC 301–i (2017–19), chapter 23 (13 November 2017). For document (a), see our Fortieth Report HC 71–xxxvii (2016–17), chapter 18 (25 April 2017), 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).
33 See the European Commission’s fact sheet on the ETIAS, April 2018.
34 See the letter of 6 September 2017 from the then Immigration Minister (Rt Hon Brandon Lewis MP) to the Chair of the European Scrutiny Committee.
35 Regulation (EU) 2018/1240 and Regulation (EU) 2018/1241.
36 The European Commission’s original proposal recommended a €5 fee and a five-year period of validity.
Published: 12 February 2019