Exzerpte aus Ruben Zaiotti: Cultures of Border Control Schengen and the Evolution of European Frontiers Chicago and London 2011
The Schengen conventions redefined the traditional meaning of borders. Two new categories were created: “internal” and “external” borders. The Implementation Convention referred to “internal borders” as “the common land borders of the [Schengen States], their airports for internal flights and their ports for regular ferry connections exclusively from and to other ports within the territories of the [Schengen States] and not calling at any ports outside these territories” (art. 1 SIC). “External borders” were classified as Schengen states’ “land and sea borders and their airports and sea ports, provided that they are not internal borders” (ibid.).
This “negative” definition of external borders was an attempt to avoid the sensitive issue of who should be legally responsible for their management. The formal distinction between “internal” and “external” was thus presented as neutral. Indeed, in this formulation both internal and external borders still coincided with national borders. Their creation did not entail any boundary redrawing. Yet, if we go beyond legal formalities, we can see that Schengen outlined a novel way to conceptualize borders. The external border marked the perimeter of a new area comprising the territory of all member states. It was therefore superimposed on national borders and represented a distinct entity with unique features. Internal borders were “subordinate” to their external counterparts (the former was a prerequisite of the latter, but not the other way around).
Internal and external borders were also considered a common good. When it is explicitly applied to internal borders, the term “common” seems to refer to the territorial line that two countries share; however, if we look at the equivalent term used for the external border of the Schengen area, it is clear that the term has a collective connotation. The border belongs to all countries in the Schengen area. Indeed, each country needs to take into account the interests of all contracting parties when conducing controls at the external borders (art. 6.1 SIC).
The Schengen conventions redefined not only the meaning of European borders but also their functions. Article 2.1 of the Schengen Agreement stipulates the de facto abolition of controls at internal borders. The function of “filter” played by borders does not disappear, however. The agreement transfers it to the external perimeter of the Schengen area (art. 17). The link between the abolition of internal border controls and their relocation to the external perimeter is deemed necessary. The logic is that of the “security deficit”: the abolition of controls inevitably creates a vacuum that needs to be constantly filled.
With the creation of a common external perimeter, controls would not only be transferred but also reinforced. At one level, this is the indirect result of policy harmonization that the establishment of a new regime entails. For example, when deciding on the applicable rules for admission of a person, what applies is the accumulation of rules (i.e., in the absence of common rules, a person must meet the requirements of all states to enter Schengen). At another level, it is a conscious policy choice. In response to the removal of common frontiers, the texts in fact envisaged a hardening of borders through the introduction of new security measures at the external borders (and sometimes even internal borders)
Exzerpt aus Evelein Brouwer: Digital Borders and Real Rights. Immigration and Asylum Law and Policy in Europe. Leiden, Boston 2008
Central Databases, Immigrants and Biometrics
SIS II, Eurodac and VIS have the common feature of being centralised largescale databases, focussed on the registration of third-country nationals and that they include biometric data. The set-up of these centralised databases is closely related to the aim of the EU governments to acquire an additional tool or mechanism for controlling the entrance and movement of migrants. These migrants include persons staying irregularly in their territory, asylum seekers and migrants declared inadmissible by national authorities. SIS II, VIS and Eurodac will not only be accessible at the external borders of Member States, but also within the national territory and at the embassies and consulates of third countries.
This means that border control is performed at diﬀerent levels: within the country, at the internal and external borders, and at the consular post abroad. The use of these EU databases implies a presumption concerning the legal or virtual status of an individual.
- A third-country national reported in SIS II on the basis of Article 24 of the Regulation is presumed “inadmissible” based on public order or security grounds, or because he or she may have infringed national immigration law.
- A hit based on Eurodac implies that the person concerned is presumed to have arrived through the territory of another Member State and thus may be sent back to this country. *Finally, a person whose visa has expired, according to the information stored in VIS, may be immediately expelled when his or her VIS record is checked by a national authority.
A third common feature of SIS II, Eurodac, and VIS is that in the decisionmaking, the decisions on the technical feasibility of these systems preceded the political decisions on the desirability or even necessity of these systems. The decisions to develop Eurodac, VIS and SIS II were taken without a fundamental discussion of the expected eﬃciency of these systems, the consequences for individual rights, or the balance between these interests. The legal and practical implementations of large-scale EU-wide databases, including the use of biometrics, were only dealt with as a matter of secondary concern or as a limiting condition.
Diﬀerences Between SIS, Eurodac, and VIS
Despite these common features, there are also diﬀerences between the systems. In the ﬁrst place, there is an important diﬀerence with regard to the criteria based on which an individual can be recorded.
- The inclusion of persons in SIS or SIS II is based on the individual behaviour of a person, taking into account who is likely to be a risk from the viewpoint of illegal immigration, security or criminal oﬀences. Since the Schengen rules do not give harmonised rules on the criteria for having a third-country national reported in SIS, situations in which a person can ﬁnd himself reported in SIS are to a certain extent arbitrary. Although individual behaviour is the basis for being registered in SIS II, the question of which types of behaviour exactly produce this eﬀect is still not transparent. This is particularly true when the person is reported by a Schengen State on the basis of national provisions and that person is not informed of the data or the reasons for this report. Furthermore, it is possible for SIS or SIS II to include ‘soft’ data on third-country nationals, in other words information of which the accuracy or correctness is not guaranteed. This is the case when data on third-country nationals are recorded in SIS II on the basis of the criterion that there is a “clear indication” that he or she intends to commit a serious criminal oﬀence.
- In principle, registration in Eurodac includes every asylum seeker applying for asylum in one of the Member States or every person entering the territory illegally. However, on the basis of the annual ﬁgures from Eurodac, one can see that practical implementation is diﬀerent for each EU Member State. The question of when and which third-country nationals are ﬁngerprinted for storage in Eurodac is dependent on national policies and the practice of the national oﬃcials in question. Furthermore, unlike SIS II or VIS, Eurodac does not include personal data: no name, address or date of birth: only the ﬁngerprints of the person concerned and the place and date of arrival. Using the reference number in Eurodac, the ﬁngerprint data may however be ‘connected’ to the personal information for that person.
- VIS will include data on each individual applying for a visa for one of the EU countries and data on the EU or non-EU citizens inviting (or sponsoring) the visa applicant. Since EU visa policy is based on the so-called ‘visa lists’, including the third countries whose nationals are obliged to obtain a visa before entering European territory, registration in VIS will only aﬀect the nationals of those states.
The decisions to develop Eurodac, VIS and SIS II were taken without a fundamental discussion of the expected eﬃciency of these systems, the consequences for individual rights or the need to balance the interests at stake.
Furthermore, the aforementioned measures are based on an absolute trust in the reliability and eﬃciency of the information held in these systems. The question is whether this trust is justiﬁed, considering the available information on the accuracy and lawfulness of data held in the current SIS. The national evaluations of Article 96 alerts, performed in 2004 for the Joint Supervisory Authority, showed that in the three countries (France, Germany and the Netherlands), the SIS included wrongful or unlawful data on third-country nationals. In particular, the reports of the French and German data protection authorities established that, in many cases, the data were stored in SIS I for unlawful purposes, that they were not deleted within the required time limits or that they were inaccurate.
With regard to Eurodac, we have seen that the annual reports of the Commission did not include an overall cost-beneﬁt analysis of the use of Eurodac, including questions on whether Member States or the EU save money by being able to send asylum seekers back to other EU countries or receive asylum seekers from other countries, or whether it is eﬃcient to “redistribute” asylum seekers within the EU.
The fact that these databases are to be used for both immigration law and criminal law purposes implies that persons registered for immigration law purposes will be at greater risk of being aﬀected by law enforcement measures or secret surveillance. Identity checks and the consultation of the above databases are generally based on data proﬁling. Using general criteria dealing with the “risk factors” of speciﬁc categories of persons, authorities place these groups of persons under extra surveillance. This “criminalisation” of individuals especially aﬀects certain groups of third–country nationals, for example, persons applying for asylum or citizens requiring a visa to come to the EU.
S. 520 ff
In Chapter 10, I developed three principles of EU law, arguing why the right to eﬀective remedies applies to both immigration law and data protection law decisions relating to the use of databases, such as the SIS. The ﬁrst of these principles is based on the incorporation of human rights and the ECHR within the legal framework of the EU. It is clear that the standards on the right to eﬀective legal remedies in the ECHR, and further developed by the ECtHR, apply to the implementation of EC immigration and asylum law in cases where human rights are at stake. Secondly, I pointed out the right to judicial protection to enable individuals to enforce their rights under Community law. In the words of the ECJ in the Panayotova case, Member States must provide for “eﬀective judicial scrutiny of the decisions of national authorities taken pursuant to the applicable provisions of Community law”. Thirdly, the right to eﬀective remedies follows on from the legal system within the Community which includes the system of preliminary references. Here, the right to remedies is necessary in order to enable both national courts and the ECJ to guarantee a coherent and clear interpretation of Community law.
As we have seen, the criteria developed on the basis of these general principles go much further than the rules adopted in the diﬀerent instruments at stake. From the law described in Part II of my study, I derived the following minimum criteria:
- access to an impartial tribunal, which might be a judicial or a non-judicial authority provided it is a permanent institution, established by law and independent of the national authority taking the decision or measure.
- Secondly, on the criterion of accessibility, we have seen that the decision-making should be in writing, indicate the reasons for the decision and include information on the authority taking the decision, the available remedies and the applicable time limits.
- The legal remedies should be available within a reasonable time and the person concerned should have the option to be advised, defended and represented during the procedure. *To guarantee the accessibility of remedies there must be access to legal aid for those “who otherwise would have no suﬃcient means of ﬁnding access to legal remedies”.
- The court or tribunal dealing with the individual complaint or appeal should be able to consider all relevant aspects of the case. In other words, its “scope of review” should include the legitimacy or lawfulness of the measures concerned and the necessity and proportionality of these measures. This applies, in our case, to the decisions of national authorities to report individuals in the SIS, as well as to the decisions or measures which are based on those SIS reports. ...
- Finally, a court or tribunal should have suﬃcient powers, in the words of Boeles, to “overcome fait accompli”. This means that the court or tribunal should be able to grant interim relief or suspensive eﬀect to a legal procedure, to impose binding decisions or ﬁnes and, if necessary, to order (ﬁnancial) repair of damage.
Exzerpt aus Dennis Broeders: Breaking Down Anonymity. Digital Surveillance of Irregular Migrants in Germany and the Netherlands. Amsterdam University Press 2009
‘The border is everywhere,’ wrote Lyon in 2005. We are accustomed to think of the border in terms of territorial lines dividing the world into countries. While these traditional territorial lines originate in politicolegal international agreements (often codifying the outcomes of war and civil strife), they have also been translated into legal documentary requirements, which, in turn have been translated into prerequisites for rights, obligations and entitlements for those ‘belonging’ to a specific side of those ‘territorial’ lines. In other words, the border has been translated into a myriad of smaller belongings and memberships that in everyday life determine rights and limitations. And if the border is everywhere, than logic dictates that it can also crossed – legally and illegally – everywhere.
From the perspective of internal migration control, the defining characteristic of an irregular migrant is his irregular residence. Irregular residence, however, does not presuppose irregular entry. There are three basic categories of irregular migrants: those who enter and stay illegally (the irregular migrant ‘proper’), those who apply for asylum and become irregular after their application is rejected and those who travel to the EU on a legal visa and become irregular its validity expires. These migration histories lay at the base of the development of the EU migration databases and their use for the exclusion of irregular migrants.
The main function of these systems in migration control is primarily linked to the external borders of the EU – the geographical borders and the access to legal procedures for asylum and visa – and therefore to external migration control. For the internal migration control, the main contribution of these systems can be expected in the support and instrumentalisation of the second logic of exclusion: that of exclusion through documentation and registration. The EU-wide scale of these systems that will document and register important legal migration flows into all of the member states brings the level of ‘identity management’ (Muller 2004) through database technology to a whole new level. Documenting identities and itineraries can be used for internal migration control as it may provide links to the missing information that frustrates national level expulsion policies. When these systems become operational in the context of the fight against illegal migration and especially in the internal control on irregular migrants they should become vital tools for the exclusion through registration, as their principal function is to re-identify irregular migrants (Broeders 2007).
In terms of instruments, the EU’s fight against illegal immigration is being equipped with state-of-the-art database technology. The analysis of the SIS II, EURODAC and the VIS shows that once all systems are online they will operate on an unprecedented scale that is likely to grow even further as a result of technological advancements and the political desire to increase the interoperability of the systems.
Steps towards linking the various databases have been taken and have not met with substantial resistance. For example, EURODAC’s goals have been significantly ‘broadened’ along the way. Though originally devised for the prevention of ‘asylum shopping’, the German intervention in 1998 made the system just as important for the internal control on irregular migrants. The active use of EURODAC for internal migration control by a small number of member states, first and foremost Germany and the Netherlands, underlines the value of this EU database for domestic use. The fact that all of the EU migration databases include biometric identifiers signifies a crucial new step in the internal surveillance of irregular migrants.
The biometric database turns ‘internal migration control’ into ‘internal migration control 2.0’, so to speak. The second generation of the SIS will include biometric identifiers and the VIS will even become the largest ‘ten fingerprint’ database in the world. The amount of data stored on potential irregular migrants is enormous and is set to grow at great speed as the EURODAC database fills up and the VIS and the SIS II will go online. These European databases seek to register as many immigrants from a ‘suspect’ legal category such as asylum applicants and from ‘suspect’ countries of origin, such as countries that require a visa to travel into the EU as possible, in order to get at the much smaller group of immigrants who crosses the line into irregularity at a later stage.
These systems can be used to re-identify irregular migrants who try to conceal their identity in order to avoid expulsion and thus contribute to solving the main problem of domestic expulsion policies. However, the more effective these systems will turn out to be, the more likely irregular migrants are to adapt to changing circumstances. If the ‘identity routes’ of asylum and visa will be cut off due to a high risk of identification by the new network of migration databases, this might provoke a counter-reaction. A possible side effect may be an increasing dependence of irregular migrants on smuggling and trafficking organisations (Broeders & Engbersen 2007). More recent proposals for a PNR system, an Entry-Exit System and the introduction of the biometric EU passport are testimony of the member states continuing on the path of making biometric identification the cornerstone of EU policies on mobile populations. This proposed second generation of migration databases casts the digital dragnet out even wider and will take in data from nearly all travellers entering and exiting the EU territory.
A crucial factor in this shift is the role that modern systems of surveillance and, in particular, database technology play in this development. Internal migration control on irregular migrants is expected to be a prime site for the use and development of new technological surveillance instruments focused on documenting and registering access and eligibility. It is also important for the identification of irregular migrants.
Germany will push through to make these systems ‘work’ for them: producing knowledge to increase expulsions. Throughout this study it has been noted that the information that government agencies publish, even in combination with the various academic studies that provide data for smaller or larger parts of the policy process, do not add up to a picture that enables one to get a full view of policy implementation or a clear view of its effectiveness. The gathering of data, or at least those data that are published, does not allow for more than indications of developments and effectiveness of policy. This lack of reliable data means that governments themselves are ‘dancing in the dark’ even though they are bound to have more information than is out in the open. However, it also means that scientists, journalists and parliament for that matter, have no way of evaluating the control system and the recent changes in its operation in any real empirical sense.
In sum, Germany and the Netherlands – with a little help from their European partners – are constructing a policy approach to internal migration control that is ultimately meant to break down the anonymity of irregular migrants. The intensifications of policies of societal and institutional exclusion are supplemented with the new policy priority of immigrant identification, for which new policies and instruments have been developed.
Surveillance by means of database technologies and biometrics are set to become an integral aspect of internal migration control over the years to come, making it harder and harder for irregular migrants to keep their identity a secret once they are apprehended by the police. Information and exclusion were always kindred phenomena and the digital age has greatly enlarged the information base of the modern state. It now stretches far beyond its own borders encapsulating the citizens of other nations instead of ‘just’ its own. However, there is a classic distinction between information and knowledge. Information is just raw date that has been structured and made accessible; it becomes knowledge only after it has been selected, validated and interpreted (WRR 2002: 38). That means that vast amounts of data can be both a valuable source of information and knowledge, but can also lead to an information overload.
It takes wellorganised procedures and often the input of the human factor to make good use of the information stored. It remains to be seen if and to what extent state authorities will be able make useable knowledge of the information gathered. The information gathered in this study gives only limited insight into this question for the systems currently available. However, the rather early stage of digitalising borders with a view to internal migration control combined with the already heavy use of the EURODAC data system makes it likely that the Netherlands and Germany will push through to make these systems ‘work’ for them: producing knowledge to increase expulsions.