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Fighting illegal immigration : should carriers carry the burden ?

Friday 12 November 2004, by House of Lords

Requirements for airlines and other carriers to assist national authorities to combat illegal immigration are nothing new. In the United Kingdom sanctions on carriers for transporting passengers without the required documents are well-established, as are arrangements for them to share passenger data with Customs and Excise [1]. At the European Union (EU) level a Directive adopted in 2001 obliges Member States to penalise carriers for transporting illegal immigrants [2].

The current proposal, which was tabled by the Spanish Government in March 2003, goes considerably further than that. It would require carriers to co-operate with Member States’ border control and immigration authorities by transmitting to them information on their passengers in advance of travel. When the Committee first examined the proposal in July 2003, we recognised that it would have considerable implications for both carriers and passengers and invited comments from both carriers’ associations and a number of non-governmental organisations (NGOs) [3]. A list of those who submitted written evidence is at Appendix 3. The Committee also took oral evidence from Ms Caroline Flint MP, Parliamentary Under-Secretary of State, Home Office, on 3 December 2003. The Committee’s correspondence with the Minister is reproduced in Appendix 4. We are very grateful to all those who responded so helpfully to our invitation to submit evidence.

The proposal contains two main elements. First, it would require Member States to establish an obligation on air and sea carriers to transmit passenger data to border control authorities at their request, in advance of departure. According to the latest draft [4], the data to be transmitted would comprise:

Secondly, the Directive would give Member States discretion to require carriers to transmit to immigration authorities data on passengers who have not used their return tickets. Such a request would have to be based on a national risk assessment and transmitted to the carrier within 24 hours of the end of boarding. The data required would comprise the passengers’ full names, the border crossing point of exit, the code of transport and the date and departure time.

The obligation on carriers to transmit passenger data in advance of departure is not a new concept in United Kingdom law, where similar «Authority to carry» schemes are already in place (although they have not yet been brought into effect). Section 18 of the Immigration and Asylum Act 1999 and the Immigration (Passenger Information) Order 2000 place a requirement on carriers to provide advance passenger information (API) on request. The Immigration Service has undertaken that only data contained in the machine-readable zone of a travel document will be requested [5]. An exception was introduced by Schedule 7 to the Terrorism Act 2000 (Information) Order 2000. This implements the provisions of the Terrorism Act 2000 relating to advance passenger information and allows for the transmission of other data, such as place of birth, which are currently not machine-readable.

The United States authorities have introduced stringent checks on passengers travelling to the United States, which have recently led to long delays and the cancellation of some flights. We have taken account of these developments-and we discuss them later in this report-but it needs to be borne in mind that the American arrangements were introduced for security reasons as a result of continuing concerns following the events of 11 September 2001, whereas the proposal that is the subject of this report is intended primarily to counter illegal immigration.

Fighting illegal immigration : should carriers carry the burden ?

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Fighting illegal immigration : should carriers carry the burden ?

Footnotes

[1] In accordance with Directions made by the Commissioners of Customs and Excise under sections 35 (1) and 64 (2) (b) of the Customs and Excise Management Act 1979.

[2] Official Journal L 187, 10 July 2001, page 45.

[3] The inquiry was undertaken by Sub-Committee F of the Select Committee on the European Union, whose membership is shown at Appendix 1. The letter inviting the submission of written evidence is reproduced at Appendix 2.

[4] Council document 5183/04, 9 January 2004. That version does not reproduce the Preamble, which is contained in the previous version, document15165/03, 24 November 2003.

[5] The main data contained in the machine-readable zone comprise full names, sex, date of birth, nationality, issuing State, passport number, and date of expiry.