The e-Borders scheme
We have received a request under the Freedom of Information Act 2000 for the following: Please provide with all correspondence dated 17 December…
Details
We have received a request under the Freedom of Information Act 2000 for the following:
Please provide with all correspondence dated 17 December 2009, and later, between the UK Border Agency (UKBA) and the European Commission (EC) on the matter of the e-Borders scheme.
In particular, I am interested in correspondence from the EC to UKBA dated 17 December 2009 regarding e-Borders. As cited as written evidence in the Twelfth Report by the Home Affairs committee, (cited in this report:
http://www.publications.parliament.uk/pa/cm200910/cmselect/cmhaff/406/40607.htm)
Also requests to provide any subsequent correspondence and meeting minutes between the UKBA and EC from 17 December 2009 to today.
We released the following information on 07 June 2010:
Some of the information requested is already reasonably accessible. It can be found under FOI request 13807.
In addition to the above please see below documents that fall within the scope of your request.
Letters requested:
First letter
Deputy Chief Executive
Policy and Strategy Group
Jonathan Faull
European Commission
15th February 2010
DRAFT WORKSHOP PROPOSAL
Dear Jonathan
I was grateful for our conversation last week. I said that I would let you have a proposal for a workshop to explore how we might implement e-borders on intra-EU routes in a way which does not impact on Free Movement but which does not place unacceptable limits on the UK’s ability to protect its border and that of the wider EU. As I said, I see this work very much in the context of the steps we are taking to work together across the EU to protect ourselves from the threat of crime and terrorism especially in the light of the attempted Detroit bombing.
I mentioned that a consequence of the assurances we had given and the interpretation placed upon them would be the creation of a two tier system whereby EU nationals and their family members could opt out of having their data sent to e-Borders but third country nationals could not. Some carriers have advised us that such a system is likely to be difficult to manage operationally and could well have a negative impact on the flow of passengers because it removes the ability to focus our interest, in advance, specifically on the small minority of travellers who pose a threat to the UK or the EU., leaving us unable to readily identify the majority to benefit from the greater efficiency in border processing that e-Borders will eventually provide. There is also an issue that carriers collect some data for their own (aviation security or commercial) purposes and one interpretation of your letter would prevent carriers from specifying even these data elements as a condition of carriage.
I am grateful for your agreement to a workshop between our officials, the aim of which would be to achieve a common understanding of what is the full extent of what is permissible under EU law. This would enable us to provide a greater level of reassurance, as we roll out the programme, to carriers, DPAs and the traveling public. At the moment, we do not feel that the Commission’s response provides that sufficient level of clarity around the data which we can request via the carrier without interfering with Free Movement, and because of that, it has been interpreted in different ways. Without the clarity required, we are unlikely to be able to move forward with the consensus of support we would like and without potential recourse to legal proceedings (which we have taken very great lengths to avoid). In addition to representation from the UK and the Commission, the workshop should therefore take into account the views of carriers - I mentioned to you that we are aware of several are keen to participate to ensure this is achieved.
Key areas of discussion at the workshop could include:
- whether the collection of data overseas is permissible under the Free Movement Directive as a border activity along the lines of juxtaposed control
- the impact on carriers’ conditions of carriage, especially where some data is already collected
- ensuring that the Commission decision does not have the unintended consequence of restricting Free Movement
- exploring the use of e-Borders to facilitate Free Movement.
You are aware of the increased interest in passenger information since the failed Detroit bombing on Christmas day. We have been continuing our dialogue with other governments and DPAs alongside our discussions on a revised timetable for the PNR Directive. However, without further clarity between us both, we unlikely to receive the level of support from the DPA community necessary to allow carriers based in other Member States to interpret your decision in a way that allows them to comply with e-Borders.
I look forward to hearing from you and would be grateful for your continued support for a workshop before the end of February.
Yours sincerely
JONATHAN SEDGWICK
Second letter
EUROPEAN COMMISSION
DIRECTORATE-GENERAL JUSTICE, FREEDOM AND SECURITY
Director General Brussels,
JLS/D2/MM/it/D(2010) 2779
Mr Jonathan Sedgwick
Deputy Chief Executive
1 Mars 2010
Dear Mr Sedgwick,
I refer to your letter of 15 February 2010 proposing a workshop between our officials and carriers to explore how e-Borders could be implemented on intra-EU routes in a way which would be in line with EU law on free movement and data protection and ensure the UK’s ability to protect its border efficiently.
My department is at your disposal to explain further the EU legislation framework and its requirements with regard to e-Borders. A meeting with you or your colleagues could be organised in Brussels at your earliest convenience. Please contact Mr Michal Meduna about your availability and number of participants to the meeting.
I would be grateful if you would send your questions in advance to the meeting in order to ensure the usefulness of this meeting.
Taking into account that some carriers are alleging that the UK authorities are not correctly presenting the assurances and commitments given in the past to the Commission (e.g. that no amendments of the legal e-Borders framework are necessary, that e-Borders has a proper legal basis in EU law etc.), may I ask you to provide my department before the meeting with copies of your recent communications with carriers and data protection authorities? I believe that carriers should not participate at the meeting as it is essential to resolve all the concerns between our departments and to achieve a common understanding of the requirements of EU law and how the assurances and commitments given by the UK authorities should be implemented.
Yours sincerely,
Jonathan Faull