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BRAVE NEW BORDERS Lecture 1: Introduction

BRAVE NEW BORDERS Lecture 1: Introduction. Jorrit Rijpma EUI Summer Academy 2013 . Abbreviation horror… how much do we know?. SIS/SISone4all/SISII Eurosur Article 8 CFR RTP Opt-out PNR Frontex NSA SBC Adil UK EU- lisa Eurodac @ migo -boras EUROPOL SCIFA

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BRAVE NEW BORDERS Lecture 1: Introduction

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  1. BRAVE NEW BORDERSLecture 1: Introduction Jorrit Rijpma EUI Summer Academy 2013

  2. Abbreviation horror… how much do we know? SIS/SISone4all/SISII Eurosur Article 8 CFR RTP Opt-out PNR Frontex NSA SBC Adil UK EU-lisa Eurodac @migo-boras EUROPOL SCIFA Return Directive VIS API TCN

  3. What will we talk about this first lecture? • EU competence • Migration technology, surveillance, biometrics • The securitisation of migration • Shifting borders • The broader picture: from Body Scanners to Personal Name Records

  4. 2. EU Competence It’s all about competence… how did the EU acquire powers in the field of asylum and migration? First of all, where do we find these competences? The EU’s Area of Freedom, Security and Justice Part Three, Title V TFEU, chapter 2 Policies on border checks, visas, asylum and migration

  5. Internal Market Article 3(3) TEU: The Union shall establish an internal market. (…) Article 26(2) TFEU: The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.

  6. Area of Freedom, Security and Justice Articles 3(2) TEUThe Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. Article 67(2) TFEU It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals.

  7. Cooperation in JHA From the mid 1970s an increasing number of informal cooperation structures developed at minsterial level (TREVI: Terrorisme, Radicalisme, Extremisme, Violence Internationale) In addition: • Schengen Agreement (1985) • Schengen Implementing Convention (CISA) (1990) Lifting internal border controls AND flanking measures: common visa regime, SIS, police cooperation, asylum

  8. “An area without internal frontiers” “ […] it is a matter of plain common sense that we cannot totally abolish frontier controls if we are also to protect our citizens from crime and stop the movement of drugs, of terrorists and of illegal immigrants” Margaret Thatcher, Bruges Speech, 1988

  9. EU Maastricht ECSC CFSP (TEU) JHA (TEU) Euratom TEC Migration &Asylum CriminalLaw I II III

  10. EU Amsterdam ECSC CFSP (TEU) PJCC (TEU) Euratom TEC Migration & Asylum Migration & Asylum Criminal Law I II III

  11. Role of European Council Art. 68 TFEU: The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice. • Tampere Agenda (1999-2004) • Hague Programme (2005-2010) • Stockholm Programme (2010-2015) • Rome Programme? See also: European Pact on Migration and Asylum (2008), Global Approach to Migration (2005, renewed 2011), Commission Communication on Migration (2011)

  12. Opt-outs and Opt-ins after Lisbon Protocols now cover the whole of the AFSJ • UK and Ireland’s opt-in to parts of the Schengen cooperation remains (Article 4 Schengen Protocol) • Article 8 of the UK/Ireland Protocol allows Ireland to end opt-out • If the UK does not accept the recast of Third Pillar legislation into which it has already opted in this measures will cease to apply (Article 10(4) Protocol Nr. 36) • Danish opt-in to Schengen developing measures - binding it under international law - remains (Article 4) • Article 7 of the Danish Protocol allows for a (partial) end to the opt-out • Denmark can unilaterally amend the Protocol, bringing into effect Annex I to the Protocol (Article 8) allowing for an opt-in to any AFSJ measure

  13. Schengen developing measures? Frontex: Council Reg. 2007/2004 Case 77/05, UK v Council Biometric Passports (RFID chips): Council Reg. 2252/2004 Case C-137/05, UK v Council VIS Access for law enforcement staff: Decision 2008/633/JHA Case C‑482/08, UK v Council You can’t have you cake and eat it…

  14. Law making in the Council in JHA Normally: Working Groups  COREPER  Council AFSJ: a) Working Groups  SCIFA  COREPER  Council b) Working Groups  CATS  COREPER  Council Extra layer to safeguard the interests of national ministries of justice and the interior against influence of ministries of foreign affairs

  15. Executive character of the AFSJ… …as opposed to legislation driven logic of EU integration. • In addition to their legislative role, the CATS and SCIFA developed an “operational” profile in the absence of powers for the Commission. This opertional role is now in the hands of the Internal Security Committee (COSI) • Focus on practical, on the ground cooperation between national law enforcement authorities • “Light” Institutional governance structures: JHA agencies such as Europol, Eurojust, Frontex • Exchange of financial, technical and human resources. Importantly: exchange of information

  16. 2. Migration technology, surveillance, biometrics Focus of our course will be on the way in which new technologies… 1) have been used as instruments for 2) and have shaped the EU’s policy on asylum and migration.

  17. Focus on new technologies Hague Programme: [t]he management of migration flows, including the fight against illegal immigration should be strengthened by establishing a continuum of security measures (…). In order to achieve this, a coherent approach and harmonised solutions in the EU on biometric identifiers and data are necessary. Stockholm Programme: (…) technology can play a key role in improving and reinforcing the system of external border controls.

  18. Focus on new technologies European Pact on Migration and Asylum (2008) deploy modern technological means to ensure that systems are interoperable and to enable the effective integrated management of the external border, in line with the conclusions of the European Council on 19 and 20 June 2008 and of the Council on 5 and 6 June 2008. From 2012, depending on the Commission's proposals, the focus should be on establishing electronic recording of entry and exit, together with a fast-track procedure for European citizens and other travellers;

  19. Focus on new technologies Communication on Migration: It is necessary to adopt a risk-based approach and to ensure greater use of modern technology at land as well as sea borders. These systems would lead the way towards a next generation of border checks relying on new technologies, while building in lessons learnt from current large scale IT-projects under development.

  20. Migration technology Technology includes all tools, machines, utensils, weapons, instruments, housing, clothing, communicating and transporting devices and the skills by which we produce and use them (Bain 1937)

  21. Migration technology • Movement of people across borders • Borders are a points of in- and exclusion • Modern state controls the legitimate means of movement (Torpey 2000) • New technologies, in particular information technologies, are transforming the way in which borders are guarded, and in doing so the nature of the border itself.

  22. Surveillance Surveillance: the focussed systematic and routine attention to personal details for purposes of influence, management, protection or direction (Lyon 2007) Panopticism: systematic ordering and controlling of human populations through subtle and often invisible powers (Focault 1977)

  23. Biometrics In information technology, biometrics refers to technologies that measure and analyze human body characteristics, such as DNA, fingerprints, eye retinas and irises, voice patterns, facial patterns and hand measurements, for authentication purposes. Biometric identifiers are the distinctive, measurable characteristics used to label and describe individuals (Jain, Hong, Pankanti, 2000) One can distinguish physiological and behavioral characteristics.

  24. Surveillance

  25. Biometrics New technologies allow for a translation of biometric data into digitally processable data, making the body “machine-readable (Van der Ploeg, 2002) This is done by processing specific match points using an algorithm, translating the biometric information into a numeric value. The “disciplined body” (Focault 1977) v the “coded body” (Aas 2006)

  26. 4. The securitisation of migration Since the late 1980s immigration has largely been construed as a societal security threat (Grabbe 2000, Huysmans 2004) Securitisation may take place either at the level of political discourse (Buzan 1998, Waever 2004) of policy praxis (Bigo 2002) Political discourse may legitimize certain security practices, while security actors participate in the “verbal and non-verbal reproduction of a security discourse” when implementing a policy (Boswell 2007)

  27. The securitisation of migration Securitization of immigration is the result and not the cause of the development of technologies of control and surveillance (Bigo 2002) New technologies often precede legal legitimation and safeguards and as such inform policy making rather than being the result thereof (Huysmans, 2006, Wilson 2008) The use of new technologies leads to a risk assessment approach towards migration management, steering away from individual threat to group responsibility (Beck 1992, Gammeltoft-Hansen 2006)

  28. 5. Shifting Borders The border is no longer a line delineating territory, but rather shifts in place, meaning and way in which it is experienced (Balibar 2002, Kesby 2007, Guild 2001) Place: • Policies that co-opt third countries in controlling their borders • Border zones behind the border • Extra-territorial controls on the high seas and in third countries • Advance Passenger Information • Check-in desks at airports and seaports: carrier sanctions

  29. Shifting Borders 2006 Council Conclusions on Integrated Border Management: Four-tier access control model: • measures in third countries • cooperation with neighbouring countries • border control • control measures within the area of the free movement (including return)

  30. Shifting Borders Meaning and way in which they are experienced: • Distinction between EU Citizens and Third Country Nationals • Distinction between nationals under visa obligations and those that are not • Distinction between regular migrants, irregular migrants, asylum seekers • Registered Traveller Programs The use of modern technology allows for risk assessment and hence diversification of travellers on the basis other than citizenship.

  31. Shifting borders: practice Article 21(1) Schengen Borders Code the exercise of police powers by the competent authorities of the Member States under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks; that shall also apply in border areas.

  32. Shifting borders: practice Article 21(1) Schengen Borders Code (i) do not have border control as an objective, (ii) are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime, (iii) are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders, (iv) are carried out on the basis of spot-checks

  33. Shifting borders: practice Joined cases C-188/10 en C-189/10 (Melki and Abdeli) 73 […] controls irrespective of the behaviour of the person concerned and of specific circumstances giving rise to a risk of breach of public order, contains neither further details nor limitations on the power thus conferred – in particular in relation to the intensity and frequency of the controls which may be carried out on that legal basis – for the purposes of preventing the practical application of that power, by the competent authorities, from leading to controls with an effect equivalent to border checks […]

  34. Shifting borders: practice Case C-278/12 PPU (Adil) • objective pursued • territorial scope • existence of a distinction between the basis of those checks and that of those carried out in the remainder of the territory Need for strict detailed rules and limitations laying down the conditions for the exercise by the Member States of their police powers in a border area and for strict application of those detailed rules and limitations, in order not to imperil the attainment of the objective of the abolition of internal border controls.

  35. Shifting borders: practice 83. With regard to checks carried out in order to obtain information concerning illegal residence after crossing of the border, [the national law] provides that those ‘information’ checks may be carried out only to a limited degree. 84. According to the Commission and the NL information controls • Comply with time restrictions for ordinary mobile checks (6 hours per day and a maximum of 90 hours per week). • Are not greater in number than ordinary mobile checks.

  36. Shifting borders: @migo boras Mobile Information-Driven Action – Better Operational Results and Advanced Security • to collect anonymous data for analysis and the construction of traffic profiles; • to observe vehicles and select those to be stopped and examined on the basis of analysis; • to respond to quick alerts in situations where there has been a serious or large-scale breach of the legal order or public order or in the interests of emergency assistance

  37. 6. The broader picture As said before our focus is on the use of new technologies in regulating the movement of people across borders. That does not mean that the use of new technologies, especially at the border does not take place in a much broader environment. When flying to Firenze from outside Schengen, you most certainly went both through border controls, as well as security checks. And when coming from within Schengen, you still went through security checks.

  38. The “broader” picture

  39. Body Scanners It’s all about competence: Air transport safety, Article 100(2) TFEU Regulation (EC) No 300/2008 of the European Parliament and of the Council of 11 March 2008 on common rules in the field of civil aviation security Commission Regulation 1141/2011 supplementing the common basic standards on civil aviation security as regards the use of security scanners at EU airports

  40. Advanced Passenger Information • the number and type of travel document used • Nationality • full names • the date of birth • the border crossing point of entry into the territory of the Member States • code of transport • departure and arrival time of the transportation • total number of passengers carried on that transport • the initial point of embarkation.

  41. Council Directive 2004/82/EC • Applicable only to incoming flights • A measure against irregular migration • Limited use of data for law enforcement purposes Recital 12: whereas it would be legitimate to process the passenger data transmitted for the performance of border checks also for the purposes of allowing their use as evidence in proceedings aiming at the enforcement of the laws and regulations on entry and immigration, including their provisions on the protection of public policy (ordre public) and national security, any further processing in a way incompatible with those purposes would run counter to the principle set out in Article 6(1)(b) of Directive 95/46/EC.

  42. Passenger Name Records Include i.a.: • Information on passenger (age, gender, nationality, etc) • Ticketing details • Itinerary • Booking information • Frequent flyer data • Special Service Request Code (SSR) • Optional Services instruction (OSI) • Vendor Remarks • Payment/billing information

  43. Personal Name Records Agreements with the US, Canada, Australia Parliament v Council: Joined Cases C-317/04 and C-318/04 Commission and Council had not been allowed to use the internal market legal basis (Art. 114 TFEU – linked to the Data Protection Directive), since this measure fell within the former Third Pillar. Essentially a legal basis dispute, which is now outdated and in terms of its result formed a Pyrrhic victory.

  44. Home-grown PNR COM(2011) 32 final Exchange of PNR of all incoming and outgoing EU flights, not (yet) internal flights Negative vote by the LIBE Committee, late April 2013. Referred back to the Committee by the Plenary.

  45. Link with other databases Article 4(2)(b) of the Proposal: In carrying out such risk assessments, the Passenger Information Unit may process PNR data against pre-determined risk criteria and against relevant databases, including international or national files or national mirrors of European files on persons or objects sought or under alert, in accordance with European, international and national rules applicable to such files.

  46. For tomorrow… A short case study on Aristide and his niece Joelle. Try to briefly assess which of their data are being stored (how, where, when and on what legal basis) during their journeys to and in the EU.

  47. “There will be no hiding place for illegal immigrants with the new #ImmigrationBill”.

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