Europaudvalget 2018
KOM (2018) 0302
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EUROPEAN
COMMISSION
Brussels, 16.5.2018
SWD(2018) 195 final
COMMISSION STAFF WORKING DOCUMENT
IMPACT ASSESSMENT
Accompanying the document
Proposal for a Regulation of the European Parliament and of the Council
amending Regulation (EC) No 767/2008, Regulation (EC) No 810/2009, Regulation (EU)
2017/2226, Regulation (EU) 2016/399, Regulation XX/2018 [Interoperability
Regulation], and Decision 2004/512/EC and repealing Council Decision 2008/633/JHA
{COM(2018) 302 final} - {SWD(2018) 196 final}
EN
EN
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Table of contents
1.
INTRODUCTION: POLITICAL AND LEGAL CONTEXT ............................................................... 5
1.1.
1.2.
1.3.
1.4.
1.5.
2.
Visa Information System and the security of the Schengen area ...................... 5
Closing the information gap on long-stay visas and residence documents ....... 7
The VIS setup .................................................................................................... 8
VIS REFIT Evaluation .................................................................................... 10
Consequences for the VIS ............................................................................... 11
PROBLEM DEFINITION................................................................................................................... 12
2.1. What are the problems? ................................................................................... 12
2.2. What are the problem drivers? ........................................................................ 23
2.3. How will the problem evolve? ........................................................................ 24
3.
WHY SHOULD THE EU ACT?......................................................................................................... 26
3.1. Legal basis ....................................................................................................... 26
3.2. Subsidiarity: Necessity of EU action .............................................................. 26
3.3. Subsidiarity: Added value of EU action .......................................................... 27
4.
OBJECTIVES: WHAT IS TO BE ACHIEVED?................................................................................ 27
4.1. General objectives of the revised VIS proposal .............................................. 27
4.2. Specific objectives........................................................................................... 28
5.
WHAT ARE THE AVAILABLE POLICY OPTIONS? ..................................................................... 29
5.1. What is the baseline from which options are assessed? .................................. 29
5.2. Description of the policy options .................................................................... 32
5.3. Options discarded at an early stage ................................................................. 38
6.
WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? ........................................................... 38
6.1. Assessment of policy options .......................................................................... 39
7.
HOW DO THE OPTIONS COMPARE? ............................................................................................ 55
7.1.
7.2.
7.3.
7.4.
8.
Copy of the travel document ........................................................................... 55
Fingerprinting of minors ................................................................................. 56
Long-stay visas and residence documents ...................................................... 58
Migration and security checks......................................................................... 63
Copy of the travel document ........................................................................... 64
Fingerprinting of minors ................................................................................. 65
Long-stay visas and residence documents ...................................................... 65
Migration and security .................................................................................... 66
REFIT (simplification and improved efficiency) ............................................ 66
PREFERRED OPTIONS..................................................................................................................... 64
8.1.
8.2.
8.3.
8.4.
8.5.
9.
HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? .................................. 67
ANNEX 1: PROCEDURAL INFORMATION ............................................................................................ 68
ANNEX 2: STAKEHOLDER CONSULTATION ....................................................................................... 70
ANNEX 3: WHO IS AFFECTED AND HOW?........................................................................................... 78
ANNEX 4: REFIT ........................................................................................................................................ 82
ANNEX 5: METHODOLOGY..................................................................................................................... 85
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ANNEX 6: MONITORING AND EVALUATION...................................................................................... 90
ANNEX 7: EXECUTIVE SUMMARY OF THE STUDY ON STORING A SCANNED COPY OF
THE VISA APPLICANTS' TRAVEL DOCUMENT IN THE VISA INFORMATION
SYSTEM (VIS) ................................................................................................................................... 92
ANNEX 8: EXECUTIVE SUMMARY OF THE STUDY ON FEASIBILITY AND
IMPLICATIONS OF LOWERING THE FINGERPRINTING AGE FOR CHILDREN ................. 102
1.
2.
3.
4.
Analysis of the problems ............................................................................... 102
Objectives ...................................................................................................... 102
Policy options ................................................................................................ 102
Assessment of impacts .................................................................................. 103
ANNEX 9: EXECUTIVE SUMMARY OF THE LEGAL ANALYSIS ON THE NECESSITY AND
PROPORTIONALITY OF EXTENDING THE SCOPE OF THE VISA INFORMATION
SYSTEM (VIS) TO INCLUDE DATA ON LONG STAY VISAS AND RESIDENCE
DOCUMENTS .................................................................................................................................. 107
1.
2.
3.
4.
5.
5.
6.
Context of the study ...................................................................................... 107
What is the problem?..................................................................................... 109
What are the objectives of the initiative? ...................................................... 112
Why an EU action? ....................................................................................... 112
What are the options to address the problem? ............................................... 113
Findings and conclusions of the study .......................................................... 114
The way forward/what are the next steps ...................................................... 118
ANNEX 10: CONSIDERATIONS ON THE USE OF BIOMETRIC DATA (TOPIC 3) .......................... 119
ANNEX 11: AVAILABLE POLICY OPTIONS OVERVIEW (PREFERRED OPTION IN BOLD) ....... 121
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Glossary
Term or acronym
CFR
CVCA
ECRIS-TCN
Meaning or definition
EU Charter of Fundamental Rights
Country Verifying Certificate Authority
European criminal records information system
regarding third country nationals and stateless persons
EU
EDPS
EES
EIS
ESP
ESPs
eu-LISA
European Union
European Data Protection Supervisor
Entry/Exit System
Europol data
European Search Portal
External Service Provider
European Agency for the operational management of
Large-Scale IT Systems in the area of freedom, security
and justice
European Travel Information and Authorisation System
EU readmission agreement
Database of False and Authentic Documents Online
EU Agency for Fundamental Rights
General Data Protection Regulation
High-level Expert Group
Impact Assessment
International Civil Aviation Organization
Justice and home affairs
Joint Research Centre
Law enforcement access
ETIAS
EURA
FADO
FRA
GDPR
HLEG
IA
ICAO
JHA
JRC
LEA
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LSV
MRTD
MS
OJ
PA
REFIT
RC
RP
SIRENE
Long-stay visa
Machine-readable travel document
Member State
Official Journal
Passive Authentication
Regulatory Fitness and Performance Programme
Residence card
Residence permit
Supplementary Information Request at the National
Entries
–
national single point of contact for SIS.
Schengen Information System
Stolen and Lost Travel Documents database
Third-country national
Travel document
Interpol's database of Travel Documents Associated with
Notices
Visa holder
Visa Information System
SIS
SLTD
TCN
TD
TDAWN
VH
VIS
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1. I
NTRODUCTION
: P
OLITICAL AND LEGAL CONTEXT
1.1.
Visa Information System and the security of the Schengen area
The abolition of checks at internal borders of the states forming part of the
Schengen area
is one of the most valued achievements of EU integration. To uphold this achievement and
as a response to the increase of irregular migration to the EU and the threat to internal
security, in recent years
EU information systems for border management and security
have been considerably strengthened, new ones are being developed, and the
interoperability between them has been established
1
with the aim of creating a framework
for fast, seamless and systematic communication to face these challenges.
The common visa policy for short-stay visas is one of the Schengen area's
"flanking
measures"
(together with the harmonisation of the external border controls, enhanced
cross-border police cooperation, and the creation of the Schengen Information System
(SIS)) accompanying the establishment of a common area without checks at internal
borders. The common visa policy encompasses a set of harmonised rules
2
, allowing the
Member States
3
to mutually recognise short-stay visas issued.
As stated in the Commission Communication on the Delivery of the European Agenda on
Migration
4
, the EU's common visa policy is not only an essential element to facilitate
tourism and business, but also a key tool to prevent security risks and risks of irregular
migration to the EU.
Around 18 million applications for short stays are lodged with the Member States every
year by nationals of the over 100 countries around the world under visa obligation, and
more than 90% of them are issued a visa. In an area without internal border controls, the
risk of irregular migration and the risk to security and public order of one Member State
have an impact on the other Member States. This is why the decision to issue a visa is
a decision taken by national authorities, who should take into account not only their own
interests but that of all Member States. The VIS was established in 2004, following several
calls by the Council to have a common system to store visa data and it is operational since
2011. By January 2018, data on more than 52 million visa applications, with 52.27 million
facial-images and nearly 50 million fingerprint sets had been entered in the VIS.
5
In line with the April 2016 Communication on Stronger and Smarter Information Systems
for Borders and Security, the Commission proposed additional information systems in the
area of border management. The Entry/Exit System (EES) Regulation
6
will register entry,
1
2
COM(2017) 794 final and COM(2017) 793 final.
Visa Regulation (539/2001) laying down the common "visa lists" of countries whose nationals require a visa to
travel to the EU and those who are exempt from that requirement; Visa Code (Regulation 810/2009) establishing
the procedures and conditions for issuing short-stay visas; Regulation 1683/95 laying down a uniform format for
the visa sticker; and the VIS Regulation (767/2008) setting up the Visa Information System (VIS), in which all visa
applications and Member States' decisions are recorded, including applicants personal data, photographs and
fingerprints.
In this document, ‘Member States’ means Schengen Member States, i.e. EU Member States that are Schengen
members, as well as the Schengen Associated countries.
COM(2017) 558 final, p.15.
Figures from EU-Lisa.
Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an
Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing
the external borders of the Member States and determining the conditions for access to the EES for law
3
4
5
6
5
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exit and refusal of entry information of third country nationals crossing the external
borders of the Schengen area, thus identifying overstayers. The EES Regulation also
amends the VIS Regulation and stipulates rules on interoperability between EES and VIS,
establishing a direct communication channel between the two systems for the use of border
and visa authorities. This will allow border authorities to verify the validity of the visa and
the identity of a visa holder directly against the VIS at the external borders. Consular
authorities will be able to consult the EES file of an applicant to verify the use made of
previous visas.
The Commission also presented a proposal for a European Travel Information and
Authorisation System (ETIAS)
7
aiming at a more efficient management of the EU’s
external borders, and improved internal security by introducing advance checks on all visa-
free travellers before their arrival at the external borders.
In December 2017, the Commission presented a proposal to ensure interoperability
between EU information systems for security, border and migration management
8
. The
proposal also seek to facilitate and streamline access by law enforcement authorities to
non-law enforcement information systems at EU level including the VIS, where necessary
for the prevention, investigation, detection or prosecution of serious crime and terrorism.
However, ensuring various information systems are interoperable is only the first step. In
order to make use of interoperability, concrete measures need to be taken to make
interoperable IT systems work together.
In addition to these legislative developments, in September 2017, the Commission
Communication on the Delivery of the European Agenda on Migration
9
acknowledged the
need to further adapt the common visa policy to current challenges, taking into account
new IT solutions and balancing the benefits of facilitated visa and visa-free travel with
improved migration, security and border management, and making full use of
interoperability. In this context, the Commission presented a Communication on adapting
the common visa policy to new challenges on 14 March 2018,
10
in parallel with a proposal
to amend the Visa Code.
11
The proposal to amend the Visa Code aims to simplify and
strengthen the visa application procedure, to make it easier for tourists and business
travellers to come to Europe with a visa while strengthening the prevention of security and
irregular migration risks, most notably by linking visa policy with the return policy. The
VIS fits into this context as the electronic processing tool supporting the visa procedure.
The March Communication also announced the work towards enhancing security by
revising the VIS and making full use of interoperability. It furthermore announced the
three main modalities in which enhanced security would be achieved: 1. by enhancing
checks in visa processing using interoperability; 2. by closing remaining information gaps
for borders and security through the inclusion of long-stay visas and residence documents
7
8
9
10
11
enforcement purposes, and amending the Convention implementing the Schengen Agreement and Regulations (EC)
No 767/2008 and (EU) No 1077/2011.
COM(2016)731 of 16.11.2016.
COM(2017) 794 final and COM(2017) 793 final.
Cited above.
COM(2018)251.
COM(2018)252.
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in the VIS and 3. by addressing remaining information gaps in short-stay visa processing,
in respect of fingerprinting age of applicants and keeping copies of travel documents.
1.2.
Closing the information gap on long-stay visas and residence
documents
The Commission's April 2016 Communication on
Stronger and Smarter Information
Systems for Borders and Security
12
identified a need to address information gaps in the
EU's architecture of data management, including on third country nationals holding a long-
term visa. This Communication also signalled a shift from the principle of disconnected
databases towards their inter-operability in full compliance with fundamental rights. On the
other hand, the EU has also strengthened its data protection rules by adopting the General
Data Protection Regulation and the Data Protection Directive for the police and criminal
justice sector in 2016
13
. The new rules are based on principles of data protection by default
and by design (privacy and data protection as key considerations from the earliest stages of
development of any system).
On 10 June 2016, the Justice and Home Affairs (JHA) Council endorsed a roadmap to
enhance information exchange and information management
14
. One of the objectives was
to address the existing information gap in the documents issued to third-country nationals.
The Roadmap concluded that the fragmentation of information through different Member
States and systems is inefficient and could lead to errors when assessing a third-country
national’s situation and makes the border-crossing
procedure more difficult.
The Final Report of the High-Level Expert Group on Information Systems and
Interoperability (HLEG)
15
of May 2017 further described the existence of the information
gap at EU level and recommended the Commission to undertake, as a matter of priority,
a feasibility study on the establishment of a central EU repository containing information
on the documents which allow a TCN to stay for a longer period than the 90 days within
any 180 days allowed by the short-stay visa in a given Member State and whose issuance
falls under national competence.
In its Conclusions of 9 June 2017 on the way forward to improve information exchange
and ensure the interoperability of EU information systems
16
, the Council acknowledged
that new measures might be needed in order to fill the current information gaps for border
management and law enforcement, such as in relation to border crossings by holders of
long-stay visas, residence cards and residence permits. The Council invited the
Commission to undertake a feasibility study as a matter of priority for the establishment of
a central EU repository containing information on long-stay visas, residence cards and
residence permits, as recommended in the Final Report of the HLEG.
12
13
14
15
16
COM(2016) 205 final (see page 3).
Regulation (EU) 2016/679 (OJ L 119, 4.5.2016) and Directive (EU) 2016/680 (OJ L 119, 4.5.2016).
Roadmap to enhance information exchange and information management including interoperability solutions in the
Justice and Home Affairs area (9368/1/16 REV 1).
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3435.
ST/10151/17.
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The Report on the VIS Evaluation adopted in 2016
17
already included a recommendation
for further development of the VIS to include these documents.
In response, the Commission undertook a study to assess the need for a centralised EU
repository containing information on long-stay visas, residence permits and residence
cards, including its necessity, technical feasibility and proportionality. It analysed whether
including long-stay visas and residence documents in a central database was technically
feasible and desirable, compared to the creation of a new database to store data on these
documents. The study concluded that re-using the VIS structure to include these
documents would be the most feasible option in terms of IT security, ease of
implementation and cost-effectiveness.
18
The study also concluded on the need to further
analyse the necessity and proportionality of such a measure, which is done in this impact
assessment.
1.3.
The VIS setup
A comprehensive legal framework was adopted to establish the Visa Information System
(VIS) as a large-scale IT-system for exchanging short-stay visa data between Member
States
19
. The VIS was created for the purpose of processing data on short-stay visa
applications. The purpose, functionalities and responsibilities accompanying the VIS are
specified in the VIS Regulation and in a number of implementing acts
20
. The overall
objectives of the VIS are to improve the implementation of the common visa policy,
consular cooperation and consultation between central visa authorities by facilitating the
exchange of data between Member States on applications and on the decisions relating
thereto, in order to:
Facilitate the visa application procedure;
Prevent ‘visa shopping’;
Facilitate the fight against identity fraud;
Facilitate checks at external border crossing points and within the Member States’
territory;
Assist in the identification of any person who may not, or may no longer, fulfil the
conditions for entry to, stay or residence on the territory of the Member States;
Facilitate the application of the Dublin Regulation
21
;
17
18
19
20
21
Report from the Commission to the European Parliament and the Council the implementation of Regulation (EC)
No 767/2008 of the European Parliament and of the Council establishing the Visa Information System (VIS), the
use of fingerprints at external borders and the use of biometrics in the visa application procedure/REFIT Evaluation
COM(2016) 655 final.
Full report of the study can be accessed at DG HOME website.
Council Decision 2004/512/EC of 8 June 2004 (the VIS founding Decision) established the VIS as a system for
exchanging visa data between Member States; Regulation (EC) No 767/2008 of 9 July 2008 (the VIS Regulation)
laid down the VIS’s
purpose, functionalities and responsibilities, as well as the conditions and procedures for the
exchange of visa data between Member States to facilitate the examination of visa applications and related
decisions; Regulation (EC) No 810/2009 of 13 July 2009 (the Visa Code) set out the rules on the registration of
biometric identifiers in the VIS. Council Decision 2008/633/JHA of 23 June 2008 (the Law Enforcement Access
Decision) consequently laid down the conditions under which Member States’ designated authorities
and Europol
may obtain access to consult the VIS for the purposes of preventing, detecting and investigating terrorist offences
and other serious criminal offences.
For a full set of adopted acts see DG HOME online library.
Regulation 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for
examining an asylum application.
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Contribute to the prevention of threats to the internal security of any of the Member
States.
The variety of the purposes requires that the VIS is used by different authorities
(migration, law enforcement, and border control authorities) in full respect of access
safeguards. The VIS allows to verify that the person presenting a visa is indeed its rightful
holder, and that the visa is valid. Furthermore, by using VIS checks and issuance of visas
are made easier and abuses can be better detected. In addition, asylum authorities can
consult the VIS to determine the Member State responsible for the asylum procedures and
migration authorities can use it to identify unambiguously third country nationals subject to
a return procedure. Finally, law enforcement authorities (national and Europol) may
consult the VIS when there are suspicions of terrorism or serious criminal offences (see
Figure 1 below for VIS process and access).
22
The VIS central system was developed by the Commission and handed over to eu-LISA
23
in December 2012. It was gradually rolled out in all Member States' consulates around the
world between October 2011 and February 2016.
As one of the centralised EU information systems for security, border and migration
management, the VIS is an integral part of the Commission's new approach to the
management of data for borders and security
24
that seeks to ensure that border guards, law
enforcement officers, immigration officials and judicial authorities have the necessary
information at their disposal to better protect the external borders and enhance internal
security for the benefit of all citizens. To achieve that, there is a need to maximise the
benefits of existing information systems including the VIS, to develop the system to
address information gaps including on long-stay visas, residence permits and residence
cards, and improve the interoperability of EU information systems, in line with the April
2016 Communication on stronger and smarter information systems for borders and
security
25
and the call by the European Council of 23 June 2017 to improve the
interoperability between databases.
26
22
23
24
25
26
Such access must be necessary
for ‘the prevention, detection, or investigation of terrorist offences or other serious
criminal offences,’ it must be necessary in a specific case, and there must be reasonable grounds to consider that
consultation of VIS data ‘will substantially contribute
to the prevention, detection or investigation of any of the
criminal offences in question’ (Brouwer, 2010).
As provided by Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011
establishing a European Agency for the operational management of large-scale IT systems in the area of freedom,
security and justice, OJ L 286, p. 1 of 1.11.2011.
COM(2017) 261 final (16.5.2017).
COM(2016) 205 final (6.4.2016).
European Council conclusions, 22-23 June 2017.
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Figure 1: VIS process and access: current situation
1.4.
VIS REFIT Evaluation
As required by the VIS legal basis
27
and as part of the Commission’s REFIT programme,
in 2015, the Commission launched an evaluation of the system. The results of the
evaluation and the ensuing recommendations to improve the functioning of the system
were transmitted to the European Parliament and the Council on 14 October 2016.
28
Overall, the VIS evaluation showed that the system is effective in meeting its objectives, in
particular as regards simplifying and facilitating the visa application process, reducing the
administrative burden of national administrations, helping to fight fraud, facilitating at
external border crossing and within the territory of the Member States and identifying third
country nationals for migration or return purposes or examining asylum applications.
The evaluation also demonstrated a need to further develop the VIS in order to better
respond to new challenges in visa, border and security policies, including by seeking to
establish interconnectivity with existing and upcoming IT systems and exploring ways to
have information on national long-stay visas, including biometrics, registered in the VIS. It
also showed the need for improvements in particular in relation to the monitoring of data
quality and the production of statistics.
As regards the protection of personal data processed in the VIS, the evaluation found that
the VIS has a very good track record: inspections on the spot by the European data
Protection Supervisor
29
to monitor the lawfulness of the processing of personal data and
security audits of the VIS central system have not led to identify any data protection
concern. After five years of being in charge of the operation of VIS, eu-LISA has not
received any complaint related to data protection in VIS. VIS has been subject to two
auditing inspections by the EDPS
–
in 2012 and 2015. Furthermore, regular meetings
27
28
29
Article 50 of the VIS Regulation and Article 57(3) of the Visa Code.
COM(2016)655, SWD (2016) 327, SWD (2016) 328.
VIS Security audit, June 2012; VIS Inspection Report 2016; VIS Supervisory Coordination Group Activity Report
2015-2016; VIS Supervisory Coordination Group Report on access to VIS data subjects' rights, 2016.
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(twice a year) of VIS Supervisory Coordination Group are held, where national data
protection authorities and the Commission are gathered to discuss data protection issues
arising from the activity of the VIS, providing a forum to raise any data protection
concerns.
1.5.
Consequences for the VIS
The migratory and security challenges faced by the EU in the recent years together with
the update of EU information systems for border management and security and the
development of new ones require the update of the VIS. A number of changes to be
introduced in the VIS stem directly from the 2016 evaluation. Most of them are of a
technical nature and serve to further align the system with the new legislative proposals in
this area, while not presenting a significant economic, social or fundamental rights impact.
Therefore a detailed assessment of the impact of these technical improvements is not
needed. These changes mainly concern: 1) improvement of data quality; 2) integrating the
VISMail functionality into the VIS; 3) centralising the consultation and representation
functions; 4) support for facial image recognition or with latent fingerprints and 5) set up
of a reporting and statistics engine based on VIS data. The study on all envisaged
technical
impacts
resulting from the VIS evaluation was carried out by eu-LISA between October
2016 and July 2017 and its input was factored into this impact assessment to the extent
relevant.
However, several issues identified in that evaluation report require not only a technical
analysis, but also a further analysis of relevant impacts. There are
four
such
key issues:
1. the experienced difficulties to complete procedures to return irregular migrants to
their countries of origin in case travel documents are missing;
2. the risks of irregular migration and visa fraud, including in particular for reasons of
trafficking in human beings and other abuse involving children
30
under 12 years old
when applying for a visa;
3. the difficulties regarding the verification of long stay visas and residence documents
and their holders, by border or migration authorities;
4. the information gap on checks for irregular migration and security risks when
processing visa applications.
In order to analyse them two studies were contracted. The first one addressed aspects 1 and
2 and the second one aspect 3. In addition, it also seems necessary to update the VIS to
take into account the evolution that took place after the 2016 evaluation regarding EU
information systems for border management and security. Therefore, in striving to align
the initiative with the recently adopted (EES), proposed (recast Eurodac proposal, ETIAS,
interoperability) or envisaged Commission proposals (ECRIS-TCN
31
), a possibility to
30
31
Apart from child trafficking, child protection phenomena also encompass other violations which could be addressed
under this section, such as children in possession of a visa subsequently gone missing, parental child abduction etc.
Due to the very nature of these phenomena, available data is very scarce, therefore as a methodological strategy the
study exclusively focused on trafficking as the phenomenon most feasible to quantify.
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a
centralised system for the identification of Member States holding conviction information on third country
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enable
automatic consultation
of the other existing databases in the area of security and
borders for visa processing was raised, which is further analysed as problem 4. The
analysis builds upon the findings of ETIAS feasibility study, therefore no new studies were
contracted.
2. P
ROBLEM DEFINITION
2.1.
What are the problems?
2.1.1. Lack of travel document as evidence in return proceedings
Currently Member States have different national practices regarding the storing the travel
document presented when applying for a short-stay visa. Many of them require applicants
to submit hard copies of the bio data page (as a minimum) of the document, which are then
archived for an average period of 1-3
years in the consulates’ archives. However, national
authorities have no information regarding the existence of those copies kept by other
Member States and there are no EU-wide rules regulating their exchange. In the absence of
a valid travel document (or copy thereof), return proceedings for TCNs irregularly found
on EU territory and who entered the EU using a visa are slow and often unsuccessful.
The common EU rules governing return proceedings are stipulated in the Return
Directive
32
, which contains clear, transparent and common rules for the return and removal
of the irregularly staying migrants, while fully respecting the human rights and
fundamental freedoms of the persons concerned.
In the wake of the migration crisis of 2015, the numbers of irregular migrants in the EU
expected to return to their home country has grown considerably. In the six-year period of
2011-2016, 2 891 260 persons were ordered to leave, out of which 1 118 385 were returned
to third countries. This means that 1 772 875 persons were not returned, out of which 600
925 in 2015-2016 alone. It can be assumed that the majority of these persons remain in the
territory of the EU Member States.
33
Irregular migrants staying in the territory of the
Member States and waiting for return to their home country cause high costs for Member
States in terms of housing, food, medical expenses and related expenses, as well as
administrative costs, hampering in addition fast and effective procedures for legal
migration and asylum seekers. The failure to efficiently return migrants to their home
country is also an incentive for further irregular migration. The dangers along the road to
Europe are often disregarded by irregular migrants because they know that the risk of
being returned once in Europe is relatively low. The proposal to amend the Visa Code has
also pursued options on how to better link visa policy and return.
Among third country nationals (TCN) to be returned, there is a number of TCN who
overstayed their visa and became subject to return procedures. The total number of
32
33
nationals and stateless persons (TCN) to supplement and support the European Criminal Records Information
System (ECRIS-TCN system) and amending Regulation (EU) No 1077/2011.
Directive 2008/115/EC of the Council and the European parliament on common standards and procedures in
Member States for returning illegally staying third-country nationals.
Eurostat: Third-country nationals ordered to leave
–
annual data (rounded); Third-country nationals returned
following an order to leave
–
annual data (rounded).
12
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detected overstayers at EU-level is estimated at around 294 000 cases across the EU, on
average.
34
Visa overstayers who no longer possess a travel document
Based on the data provided by the Member States, it is estimated that roughly 10 to 20% of
all visa overstayer return cases involve TCN visa holders who no longer possess, or fail to
produce their travel document on request. This amounts to an estimated 26 445
–
52 891
cases of missing travel documents (as of December 2017).
Stakeholder testimony
35
further suggests that a significant number of return decisions are
not executed
due the authorities’ inability to obtain satisfactory evidence proving the
nationality of the third country national in question. If it is estimated that between 60% to
75% of such return cases are not implemented on these grounds. This amounts to an
estimated 15 867 to 39 668 returns of visa overstayers that could not be executed, which
represents a high administrative burden for Member States.
36
The 2016 VIS evaluation revealed that 8 out of 26 Member States had never even accessed
the VIS for the purpose of identifying TCN for return. Furthermore, 3 out of the 19
responding Member States declared that they communicated VIS data to non-EU countries
or international organisations for the purpose of return. It has to be noted that non-EU
countries usually do not accept information extracted from VIS as
prima facie
evidence of
nationality for return purposes. Recent trends
37
showed an increased use of the VIS as an
instrument which provides a proof of identity necessary in a return procedure. However,
there is currently no mechanism in place to mutually inform and to exchange travel
document copies of TCN between Member States, when needed to complete a return
procedure in cases where the Member State which has to execute the return is different
from the Member State which issued the visa. The absence of such a mechanism means
that Member States have
both practical and legal
difficulties when exchanging travel
document copies to this end.
34
35
36
37
Supporting study by Ecorys: Feasibility and implications of lowering the fingerprinting age for children and on
storing a scanned copy of the visa applicants' travel document in VIS, based on 2014
–
2016 average data. It is
worth noting that the figure is in line with the figure on visa overstayers that was used in the 2016 Impact
Assessment report on the introduction of an Entry-Exit System, which estimated a stable annual average of
approximately 250.000 visa overstayers EU-wide - SWD(2016) 115 final.
Targeted stakeholder consultations conducted in the scope of the Ecorys study.
Calculations within the Ecorys study estimate additional annual costs of EUR up to 33.3m. For more see Annex II
to the study.
COM(2016) 655 final,
“Report from the Commission to the European Parliament and the Council on the
implementation of Regulation EC) No 767/2008 of the European Parliament and of the Council establishing the
Visa Information System (VIS), the use of fingerprints at external borders and the use of biometrics in the visa
application procedure/REFIT Evaluation,” Brussels: 14 October 2016.
13
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Figure 2: Problem tree: storing a copy of the travel document in the VIS
Difficulties faced by Member States to acquire a copy of the travel document from the
diplomatic/consular representations of the issuing countries places a high burden on them
as they have to devote considerable time and resources to confirm the identity and
nationality of a TCN.
38
Not having a copy of the travel document means that it is
disproportionately difficult to carry out the return of TCNs issued return decisions in
practice. In this way, lack of travel document copies in VIS undermines the smooth
functioning of the EU return policy and, due to its role to prevent and respond to the risk of
irregular migration, indirectly also on the visa policy.
2.1.2. Lack of fingerprinting data allowing to identify minors
Current EU legislation on the visa application procedure for short-stay visas exempts
children under the age of 12 from providing fingerprints. This was mainly due to technical
limitations regarding fingerprinting children available at the time the provisions were set in
law.
39
However, the legislator requested the Commission in Article 57(4) of the Visa Code
to address in the future the issue of sufficient reliability for identification and verification
purposes of fingerprints of children under the age of 12. Without fingerprints it is more
difficult to unambiguously verify the identity of a child holding a visa at the border or
within the Schengen territory. This phenomenon is exponentially amplified by the fact that
a Schengen visa can go up to 5 years validity, which means that a child who applied with
12 years old can obtain a multiple entry visa with validity until the age of 17. On average,
children under 12 make up 10 to 15 % of visa applicants
40
, meaning that between 1.4 and
38
39
40
According to the stakeholders consulted in the scope of the Ecorys study, the return procedure may be delayed by 2
days during low-seasons, and up to 2 weeks during busier periods which brings additional annual costs of up to
EUR 12.7m. For detailed calculation see Annex II to the study.
Taking into account technologies available at the time, 12 years old was considered to be a reasonable minimum
age for automated fingerprint recognition.
For more details on the estimate methodology see Ecorys study, Chapter 4.1.2., p.109.
14
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2.1 million new visas are granted to children under 12 each year. Out of this category, it is
estimated that between 0.7 and 1.05 million are children younger than 6 years.
On the other hand, based on available data
41
, it is estimated that on a yearly basis there
could be between 1 500 and 2 000 TCN children <12 victim of trafficking in the Schengen
area. Although there is no precise information possible on how many of these child
trafficking victims have travelled with a visa to the Schengen area or come from countries
subject to the visa obligation (but have tried and failed to obtain such a visa),
extrapolations can be made on the basis of information available regarding the main
countries of origin
42
of the trafficked children according to which it is likely that around
25 % of them went through the visa process (375-500 children on a yearly basis
43
).
Furthermore, a multiplying factor should be taken into account, given that with a MEV
valid for up to 5 years, the real scope of the problem is extended potentially to children up
to 17 years old. For this age group figures on children victims of trafficking climb up to
3200-4250
44
on a yearly basis. Taking all these factors into considerations, it can be
estimated that between 820-1000 trafficked children arrive with a visa which was taken
without fingerprints each year.
The Commission Report on the progress made in the fight against trafficking in human
underlined that traffickers exploit loopholes in enforcement or control and that tools, such
as the VIS can assist in identifying victims of trafficking in human beings and detecting
traffickers.
“When a person regularly requests a new visa or has been issued with a
multiple-entry visa and is travelling repeatedly with different 'other' persons (for example
other children), there could be a suspicion of trafficking. The biometric data in the VIS
makes it furthermore impossible for multiple persons (looking alike) to travel on the same
visa or passport.”
45
A typical case scenario of trafficking would entail a family with children applying for a
Schengen visa. A photo of the child (which does not have to be taken live) must be
presented with the application. The child may or may not be present, although the family
would have to present a breeder document
46
(e.g. birth certificate) proving the relation
between the child and the adult applicant(s). If a visa is issued (which could be valid for up
to 5 years), the family does not have to appear again in the consulate for the period during
which the visa is valid, and multiple travels to the EU are possible. Verification that the
children travelling with the family are the rightful holders of the visas are done at the
border only on the basis of visual inspection of the travel document, by checking that the
child in front of the border guard resembles to a reasonable degree to the child in the
41
42
Idem.
According to Commission's Report to the European Parliament and the Council on the progress made in the fight
against trafficking in human beings, SWD(2016) 159 final Nigeria, China, Albania, Vietnam and Morocco are the
top 5 source countries for trafficked TCN children.
Source: Eurostat data on trafficked children.
According to figures from
Eurostat Report on Trafficking in Human Beings,
2% of victims of trafficking are under
12, whereas 17% are in the 12-17 age range. Using the same extrapolation logic, the number of potential victims of
trafficking is substantially higher if this age range is taken into consideration.
Commission Report to the European Parliament and the Council on the progress made in the fight against
trafficking in human beings, SWD(2016) 159 final.
Abundant evidence has been gathered by the Commission from Scheval Report and Local Schengen Cooperation
Reports, in particular from sub-Saharan Africa, on false applications involving fraudulent breeder document and the
low reliability of breeder documents issued in many third countries subject to visa obligation.
43
44
45
46
15
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passport in which the visa is affixed. Thus, while the travel document could be genuine and
the visa genuinely obtained, a trafficker could travel multiple times bringing different
children to EU territory without being detected at borders.
In case the child is later on found by authorities as a victim of trafficking, it would be
impossible to retrieve the information regarding the true identity, country of origin and
real family of the child, since identifications against the VIS (or other systems) are not
possible on the basis of facial image only, especially when the facial image initially stored
in the system is based on a scanned photograph.
As regards missing children (i.e. in case of a genuine family arriving as bona fide
travellers but where the child, for various reasons, might go missing during the stay in the
territory), the search, although legally possible through SIS alerts
47
on missing persons, is
not effective in practice because only alpha-numeric identity data could be included in the
alert (name, surname, place and date of birth, nationality
48
), and which, depending also on
the age and maturity of the child, would not be sufficient to allow identifying the child in
case found by the authorities.
Due to the lack of fingerprints for TCN children under 12, VIS benefits to prevent visa
fraud and facilitate checks at external borders and within the territory of the Member States
or asylum examination do not extend to all children. This is a loophole which can be used
by fraudsters and traffickers and does not contribute to ensure the protection of TCN (<12
years of age at the time of applying for a visa) children at risk of abuse, either from
trafficking with the help of a visa, or in case they are found in Schengen territory in a
situation where their rights may be or have been violated (through trafficking, missing
children, unaccompanied minors applying for asylum).
2.1.3. Lack of sufficient information on long-stay visas and residence documents
The issuance of long stay visas and residence documents is not fully harmonised at EU
level, since only for certain categories of third-country nationals admission conditions and
procedures are regulated under EU law.
49
Such authorisations give the right to the holder to
stay and move freely within the entire Schengen territory for 90 days in any 180-day
period
50
, provided they fulfil the entry conditions set out in the Schengen Border Code.
Residence documents include residence permits
51
–
issued to third country nationals for
stays longer than 90 days in 180 days for reasons varying from study, research, work, to
family reunification by third country nationals, and residence cards
52
–
issued to third
country nationals who are family members of mobile EU citizens (i.e. those who have
exercised the right to free movement).
47
48
49
By April 2018, nearly 70,000 missing children were reported in the SIS (although it is impossible to know the
nationality, whether EU or TCN).
Pursuant to Article 20(3) of Regulation (EU) No 515/2014.
This is the case in respect of rules on family reunification, long term residence, for the admission of seasonal and
highly skilled workers, Intra-Corporate Transferees, students, researchers and trainees with university degrees. For
more information,
see the dedicated site.
Article 21 Schengen Convention provides the mutual recognition of these documents as documents allowing free
movement within the Schengen area for 90 days in any 180 days (i.e. similar to a Schengen short-stay visa).
As defined under Article 2(16) of Regulation 399/2016 on a Union Code on the rules governing the movement of
persons across borders (Schengen Borders Code).
Issued under Article 21 TFEU, concerning the freedom of movement of EU citizens. Mobile citizens are those EU
citizens who are residing in another EU member state than their own.
50
51
52
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Currently, only TCN who applied for short-stay visas are in the VIS, as it is a centralised
mechanism at EU level containing short-stay visa applications and visas issued. Long-stay
visas, residence permits are residence cards are not contained in any EU system.
The lack of a centralised mechanism at EU level enabling Member States to exchange
information on these documents and their applicants or holders result in a two-fold
problem:
1. authorities at borders others than of the Member State who issued a document have
difficulties to effectively and efficiently verify the authenticity of these documents
in connection with their rightful owner, or to fully ascertain the identity of the
person holding them. Identity and document fraud are the major risks in this respect
(as elaborated further down).
2. Member States do not have access to nor can exchange, in an effective and efficient
manner, information enabling them to properly check whether the person is not a
threat to the security of the Member States before or when the person reaches the
external border (see further below).
Visa-exempt TCNs
coming for short stays
TCNs’
entries and exits
in and out of Schengen,
coming for short stays
Future systems
TCN who reside in the EU,
coming for a long stay
or who often cross the
external borders
EES
ETIAS
?
Asylum seekers and
some categories of
irregular migrants
Eurodac
SIS
Current systems
VIS
Visa-required TCNs
coming for short stays
Law enforcement
and border controls
Figure 3: Information gap on a category of third-country nationals
From a
border-control point of view and for checks carried out within the territory
of
the Member States, it is crucial to be able to ascertain the authenticity and validity of the
documents and the legitimate relation with the holder. Currently, this is done, for the
documents provided with security features, by verifying these elements. Of the three types
of documents (long-stay visas, residence permits, residence cards), only some residence
permits and residence cards issued in a residence permit format have a chip
53
, which
allows electronic verification and the possibility to verify the bearer identity
54
. Frontex
observes that both the quantity and quality of fraudulent residence documents (2546
53
The check that the residence permit belongs to the bearer is done by reading the facial image from the chip of the
document and comparing it with the one of the bearer. In case of failure or doubt, the stored fingerprints can be
accessed. However, the information on the chip needs to be checked on its authenticity which can be done by
exchanging cryptographic certificates between Member States.
However, to achieve a high level of security of checks, MS would need to systematically exchange the Country
Verifying Certificate Authorities (CVCA), which currently is only partially done. Furthermore, there is no evidence
showing that Member States use the fingerprints stored in the residence permits issued by another Member State to
carry out identity verification at borders.
54
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detections in 2017 on both permits and cards) circulating in the EU have increased in
recent years.
Moreover, an unsuccessful document authentication procedure based exclusively on
verifying the security features of the document does not automatically establish a fraud
case, and because it implies further second line checks, does not help to carry out a smooth
and fast border check procedure.
In addition, while many residence permits and long-stay visas formats are harmonised, and
for the residence cards measures to harmonise and secure them are under way
55
, this is not
yet the case for all these documents.
Thus, the visual inspection of the document’s security
features is made difficult by the different formats and
–
for some documents
–
the rarity
with which they appear at certain border-crossing points, in addition to the heterogeneous
use of security features.
The border guards have different tools to gather information to assess the validity of
a document, some automated (SIS and SLTD for lost, stolen, misappropriated and
invalidated documents), others to be used at second-line border checks (like the FADO
56
for images of authentic and forged documents). However, the information provided by
these systems is very limited and the objective of border checks cannot be achieved on this
basis in an efficient and effective manner. The SIS (which is the only EU centralised
databased used at borders) does not provide information on previous fraud attempt(s) by an
applicant and cannot provide information on documents that have not been reported as
stolen or lost, it does it include information on withdrawn documents, nor any information
on long stay visas.
In case of a doubt concerning the document or its holder, border guards have to rely on
bilateral contacts with the issuing Member States, via communication channels like
SIRENE
57
, the Police and Customs Cooperation Centres National Contact Centre (NCC),
phone, emails or fax
58
, which is limited by inherent constraints like language barriers and
waiting times for the traveller,
59
who sometimes runs the risk of being wrongly denied
entry or passage.
Moreover, the issuance of a residence document constitutes the enactment of a right
established under legal migration or freedom of movement legislation to enter and stay on
the territory of the Member States. The document is thus also a material proof that the right
exists, but it is not to be confused with the right A person may lose the document or the
document may expire (as it is the case with the validity of a residence card), but this is not
equivalent to the holder losing the right enacted by that document. However, in case of
55
The European Commission 2018 Work Programme includes the legislative initiative to harmonise and secure the
residence documents. The idea of such harmonisation is considered both in the contracted study and in this report
as covered by option (3.2) “Further harmonise and secure long-stay visas and residence documents”. COM(2018)
212 final, 17 April 2018.
The FADO is a public register of images of typical authentic or forged travel and identity documents as well as
information on security and forgery techniques that Member States can check online.
Which is limited to providing supplementary information in case of a SIS alert.
In the questionnaire of the 2017
Feasibility Study to include in a repository documents for Long-Stay visas,
Residence and Local Border Traffic Permits - Phase1:
Analysis of Options, 2017, Member States explained that
these procedures are used after an examination of the security features of the document at second-line border check.
For illustration purposes, an example from the public consultation can be given where a TCN described the
embarrassing experience of how their residence document was called into question by suspicious border guards on
the count of never having encountered such document before.
56
57
58
59
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expiry, loss or theft, the person cannot prove its right to enter, stay or move freely within
the territory of the Member States, and currently existing systems to be checked at borders
and within the territory cannot provide evidence to support the person ascertain its rights in
such cases.
Ultimately, this situation leads to
inefficient border-crossing procedures,
which are not
in the spirit of freedom of movement of bona fide TCN who have a right to enter and
reside in the territory of a Member State (Article 21 of TFEU and Directive 2004/38).
Consulted Member States
60
complained about these procedures as being time-consuming
and inefficient. For the large majority (80%) the lack of shared information on these
documents was a hurdle to their day-to day activities and as such
creates administrative
burden.
The absolute majority of respondents to the open public consultation also perceive the
identified information gap as leading to problems in the management of external borders
and irregular migration within the EU
61
. The lack of centralised storage of data on these
documents renders them more likely to be tampered with, thus more susceptible to being
misused. In order to be able to assess whether the person could pose a
threat to the
security of the Member States
or whether he or she could be an identity fraudster, it is
important to have access to relevant information on the previous applications made by that
person and which were rejected by other Member States on grounds of national security or
because of established fraudulent claims (of identity or documents). When a TCN applies
for a short stay visa, a full picture of the history of movements, enabling to assess security
and migration risks, including fraud, is possible by connecting information from either VIS
or (in the future) ETIAS with EES, ETIAS, Eurodac and VIS. However, there is no similar
possibility if the same TCN applies for a long stay document, as this information is not
connected with any central system. Information is not flowing either from the short stay
history of a person into a long stay assessment, nor vice versa. Apart from checking
national systems, the only EU-level exchange of information migration authorities have at
their disposal is the SIS for alerts on entry bans. There is no tool to share information on
applications and reasons for refusal for long stay applicants, which might lead to identity
fraud or security risks. This also affects negatively the efficiency of checks against the
integrated IT systems for borders, i.e. checks against the border and security systems using
interoperability is not possible if the information on the document is not present in at least
one of these systems.
Criminals are taking advantage of this loophole in the information exchange between
Member States. Consultations with Europol and national law enforcement authorities
revealed that due to the lack of information sharing between Member States on long stay
documents, combined with the lack of checks between the various centralised systems, the
exact size of the security risk posed by TCN holders of long stay visas or residence
documents is difficult to measure. However, individual national authorities provided
60
61
Member States were consulted as part of the supporting study carried out by PwC, see the Executive Summary,
Annex 9.
Open public consultation on sharing information at EU level on long-stay visas and residence document feedback
(see Annex 2).
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information
62
on cases involving serious criminality by TCN going through various legal
migration/asylum/residence statuses in the territories of Member States, which indicate that
the phenomenon is real and raises serious concerns
63
.
Stakeholder testimony:
In one such case
64
a TCN applied for asylum in Austria. His claim was rejected and he
received an entry ban (recorded in the SIS) after several convictions for drug dealing and
serious property crimes in Austria and other Member States. His biometrics and DNA were
recorded by the Austrian police on that occasion. Three years later a DNA hit against his
data was obtained in a rape case and a European Arrest Warrant, registered in the SIS,
was issued on his name.
The same TCN, under a different identity, applied for and successfully obtained a
Schengen visa from another Member State, with the help of which he travelled regularly
from Nigeria to the EU territory. Since SIS, VIS and Eurodac are not currently
interoperable and checks are not systematically launched to the other IT systems when a
visa application is lodged, the identity fraud could not be detected and the visa was issued,
although an arrest warrant was present in the SIS.
Later on the TCN married an Austrian national and obtained a residence permit on the
basis of his status as family member of an EU national. The residence document was
issued without problems as there are no compulsory checks against EU databases as part
of the issuance procedure for these documents.
The TCN was finally apprehended by the Austrian police when he was reported by his wife
for aggravated domestic violence. Based on fingerprints taken at that time and checked
against the Austrian police files, the link with the previous entry ban and arrest warrant
issued years before could finally be established.
In addition to the two main problems identified above, this information gap
65
and the
persisting fraud problem that comes with it can create spill over effects in the form of blind
spots in the border-management security framework, thus ultimately creating increased
risks for internal security and irregular migration. According to Frontex’s 2017 Annual
Risk Analysis
66
, smugglers frequently provide migrants with fraudulent travel and identity
documents. Fraud is used by organised crime as a means for a series of related serious
62
63
See Annex 2: Stakeholder consultation.
See also the phenomenon of
marriages of convenience.
Available statistics support the fact that marriages of
convenience do occur, but it is not yet possible to fully quantify this across all (Member) States and certainly not in
a comparable manner. In 2010, the EU-27 total of permits issued for family reasons was 747 785, some 510 305 (or
68.2% of the total) of which were issued to a third-country national joining with a third-country national. With
regard to the identified cases of marriages of convenience, and noting that in many cases no distinction between
those occurring between third-country nationals and those occurring between a third-country and an EU national
was possible, residence permits refused or revoked by a (Member) State ranged, in 2011, from 5 up to 990, and in
2010 again from 5 up to 1 360. In terms of marriages of convenience detected in other ways by a (Member) State,
this varied, in 2011, from 5 to 130 and, in 2010, from again 5 up to 425. Suspected marriages of convenience in a
(Member) State ranged in 2011 from 1 740 down to 35 (Misuse
of the Right to Family Reunification,
European
Migration Network,2012).
Source: Ministry of Interior
–
Criminal Intelligence Service, Austria.
Currently, Member States can use alerts stored in the Schengen Information System (SIS) to inform other Member
States of lost, stolen, misappropriated or invalidated residence documents and the European Image Archiving
System (FADO) to detect counterfeit documents at the borders. However, these systems do not constitute a positive
list of issued documents.
Risk Analysis for 2017,
Frontex, page 22.
64
65
66
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offences, notably for terrorism, trafficking in human beings, migrant smuggling or drug
67
and firearm trafficking
68
. Smugglers are supported by criminal networks with access to
expert counterfeiters who, financed by the strong demand, have set up print shops.
Figure 4: Problem tree
–
long stay documents
Problems
1.
Fraud
Consequences
Problem Driver
Fragmentation of
the information
Operational difficulties at the
borders
2. Security and migration risks
3. Administrative burden
Difficulties in gathering
information to perform an
assessment
of the TCN’
situation
4. Lengthy border-crossing procedures
5. Lack of statistics
Finally, this gap also entails costs for the society as people obtaining residency through
fraudulent means make wrongful use of social security benefits or gain unjustified access
to the labour market.
2.1.4. Lack of sufficient checks on migration and security risks when processing visa
applications
Currently the visa procedure is not taking into account the possibilities offered by available
large-scale IT systems nor interoperability between them. For instance, when assessing a
visa application, SIS is checked as part of the risk assessment for irregular migration
pursuant to the Visa Code. However, only the checks against alerts for the purpose of
refusing entry are currently done because this is an automatic ground for refusal under the
Visa Code. In practice, Member States' implementation of SIS and other national databases
checks depend on the technical availability and national arrangements in any case, varying
from direct access to SIS in consulates to consultations of national police authorities, who
themselves carry out a number of checks for migration or security risks purposes, including
larger checks against SIS categories, as well as SLTD, TDAWN, as well as a number of
national migration and security databases. However this remains in all cases a manual non-
automated operation.
This leads to different checks carried out by each Member State, which creates an uneven
playing field for visa applicants who are subject to more or less stringent checks,
depending on each Member State and consequently could lead to undetected security risks
and granting a right to enter the territory to (see
case on page 21 also relevant for this
problem).
This problem is worsened by the fact that in some third countries e.g. West Balkan,
Caucasus countries but also in some EU countries the legal change of personal data, either
family or first names, is rather easy and cheap administrative procedure. International
criminals convicted or wanted for arrest in EU can change their names and get new
identities. It is therefore cheaper for them to legally change identity than to use alias
identities and forged documents. They can obtain genuine biometric travel documents,
67
68
See
Eures-Crim projet
(for instance a drug criminal network of TCN with Spanish residence permits operating in
Belgium).
Communication from the Commission to the European Parliament and the Council on an “Action Plan To
Strengthen The European Response To Travel Document Fraud” of December 2016.
21
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which do not yield any hit against previously known identities for irregular migration or
criminal acts carried out with alpha-numeric data only.
Furthermore, this situation does not ensure the same minimum level of checks against
large-scale databases in the field of border and security to which visa free TCNs
–
who in
principle pose lower risks in terms of security or irregular migration
–
will be submitted
through ETIAS
69
, nor those to which EU nationals are currently subject when crossing an
external border
70
, both at entry and exit.
Moreover, the current system of checks during the visa examination is no longer adequate
for the new layered border management strategy comprising a number of large-scale IT
systems, as illustrated in Figure 5, which depicts the role that different IT systems currently
have for visa-required (VIS) and visa-exempt travellers (ETIAS), in combination with the
upcoming EES, as part of EU integrated border management.
Not having the possibility of direct, seamless and efficient checks of other databases adds
to the burden of visa application processing, making it more cumbersome. In this way it is
hampering the functioning of the common visa policy.
Figure 5: Place of VIS in the EU layered border management strategy
69
70
Article 18 of the proposal for ETIAS Regulation (see footnote 7) provides for the automated processing of all
applications for an ETIAS authorisation against all centralised databases mentioned under the current measure.
Article 28 of the same proposal provides for screening rules along similar conditions as those provided under the
current measure, although tailored for the particular situation of visa free TCN.
As of 7 April 2017 systematic checks against relevant databases are carried out on all EU citizens who are crossing
the EU's external borders (http://www.consilium.europa.eu/en/press/press-releases/2017/03/07/regulation-reinforce-
checks-external-borders/)
22
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2.2.
What are the problem drivers?
2.2.1. Lack of travel document as evidence in return proceedings
Two main drivers were identified in the course of the study.
Driver 1: The absence of a legal framework allowing Member States to
exchange/transfer information on travel documents of TCN subject to return.
Currently, EU legislation
–
including in the areas of visa policy and migration
–
does not
provide for the storage of digital copies (i.e. scanned pages) of the visa applicants’ travel
document in a centralised European system, nor for making them available to other
Member States. Member States may, however, establish such an obligation in their
national legislation.
71
In practice, many Member States systematically require applicants to
submit such copies of the bio data page (as a minimum), which are stored in paper or
digital format by the individual Member States (i.e. there is no central storage of travel
documents associated to the visa).
Driver 2: Insufficient (or non-existent) and/or slow cooperation of third countries
in return procedures in the absence of a (copy of) the travel document
.
The consensus view among consulted stakeholders is that the degree to which third
countries cooperate in this field is critically dependent on the quality of relations between
the third country and the returning Member State, or the EU more broadly. Bilateral return
agreements between Member States and countries of origin and EU readmission
agreements (EURAs) are one of the tools that can be used to ensure cooperation with
countries of origin for the effective and smooth implementation of return decisions.
However, even in the context of EURAs and bilateral readmission agreements, Member
States face practical challenges to their implementation in the absence of valid travel
documents which can prove the nationality of the person to be returned.
72
In particular,
Member States have reported that third countries often do not issue travel documents to
enable the readmission / return, do not reply within deadlines or they require different
levels of evidence to confirm a person without travel documents as their national.
73
2.2.2. Lack of fingerprinting data allowing to identify minors
The lack of a legal basis allowing to collect fingerprints from children under 12 and check
with these data was identified as the main driver behind this problem. Competent
authorities are having difficulty to identify or verify the identity of some of the third
country nationals below 17 who enter or try to enter the EU territory using a short stay visa
because the EU legal framework does not allow for collecting fingerprints for TCN visa
applicants under 12.
71
72
73
Only three Member States were identified as not having formulated the obligation (within the Ecorys study
stakeholders consultation).
European Migration Network, Synthesis Report for the EMN Focussed Study 2014
–
Good practices in the return
and reintegration
of irregular migrants: Member States’ entry bans policy and use of readmission agreements
between Member States and third countries, 2014.
Ibid. See also the national reports of Austria and Greece in support of the EMN 2014 study: “Austria’s return
policy: application of entry bans policy and use of readmission agreements,” p. 52; “EMN Readmission Report
Greece,” p.21, amongst others.
23
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The inclusion of biometric identifiers, comprising the facial image and ten fingerprints in
the VIS is provided for in Article 13(2) of the Visa Code. However, children under 12 are
exempt from this obligation to have their fingerprints taken. Therefore, competent
authorities have difficulties to identify and/or verify the identity of third country nationals
under the age of 17 (taking into account the possible 5-year validity of the visa) who enter
or have tried to enter the EU using a visa. Current legislative framework does not
correspond to the technological progress either
–
taking fingerprints of children under 12
was not technically feasible at the time of the adoption of the original VIS legal act, as will
be demonstrated later when presenting the rationale for policy options.
2.2.3. Lack of sufficient information on long-stay visas and residence documents
The identified problem driver has to do with the lack of and fragmentation of the
information on long-stay and residence documents.
Data on long-stay visas and residence documents are kept at national level. They allow
border guards to check the information on a document presented against these systems and
a match occurs when the document is valid and issued by the same Member State.
However, border guards and migration authorities have no fast and systematic access to
information on documents issued by another Member State. The available data is partial
and scattered in different systems and tools (SIS, SLTD, FADO, bilateral contacts between
Member States etc.) which leads to lengthy procedures to collect all the necessary data for
the day-to-day activities of national authorities. Member States and the respondents to the
public consultation
74
confirmed this: 86% agreed with the identified information gap that
leads to problems in management of external borders and irregular migration within the
EU.
2.2.4. Lack of sufficient checks on migration and security risks when processing visa
applications
The problem stems from the changed security and migratory context
,
legislative
developments, such as ETIAS and new technical feasibility stemming from
interoperability. Furthermore, the outcome of the Schengen evaluation shows that Member
States would welcome the security cross-check against other applications as a way of
enhancing security. This also leads to difficulties when assessing irregular migration and
security risk in the process of issuing short-term visas. It also leads to less stringent, less
harmonised and less evidence-based assessment of these risks because of the impossibility
to use automated database-searching.
2.3.
How will the problem evolve?
2.3.1. Lack of travel document as evidence in return proceedings
Return of a TCN to the country of origin or to another country of transit requires an
individual assessment of the person's situation and in particular an unequivocal
establishment of his nationality. In the absence of solid proof such as a travel document,
third country authorities are usually unwilling to confirm that a TCN subject to return is
their national, which further hampers cooperation in return procedures. As regards TCN
74
Open public consultation on sharing information at EU level on long-stay visas and residence documents feedback
(see Annex 2).
24
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subject to a visa, their identity and nationality could currently be established on the basis of
a biometric match against the VIS, which is however not an acceptable evidence for third
countries. These two factors: no systematic obligation for storage and the unwillingness of
third countries to accept VIS data instead of copy of travel document lead to the problem
of difficult returns and accrued additional costs. This, in turn, leads to hampering of the
return and indirectly of the common visa policy.
Based on forecast data on future trends in visa applications, it is estimated that, in the
absence of further action at EU level, the proportion of visa overstayers in 2019 will
increase to more than 350 000, between 30 000 to 60 000 of which will find themselves in
return proceedings without valid travel documents.
75
It can be assumed that the political
pressure to enforce return decisions will grow accordingly.
2.3.2. Lack of fingerprinting data allowing to identify minors
In the continuous absence of fingerprinting from the visa application procedure and
consequently of the means to verify the identity of a TCN child going up to the age of 17
years, the identified problems will continue and might even grow, as networks of irregular
migration and trafficking could become increasingly aware of the existing gap and would
try to
exploit it.
As organised criminal networks are increasingly professionalising and modernising their
modus operandi
and there are no indications of a reversal in migration trends
76
, the number
of children that are at risk of being trafficked will probably remain high or even increase.
Under the assumption of the continuation of the current scenario, it is expected that the
trafficking of TCN children (<17 and who therefore potentially entered with a visa
obtained without fingerprints, thus making their subsequent identification nearly
impossible) into the EU using genuine visas will remain high
–
or may even rise further
due to the increasing number of applications and the involvement of organised criminal
networks, which are becoming more professional.
77
2.3.3. Lack of sufficient information on long-stay visas and residence documents
The risks for internal security and irregular migration created by the information gap
regarding long stay visas and residence documents may increase with the existing and
ongoing strengthening of border checks for other categories of travellers (e.g. ETIAS for
short-stay visa-exempt travellers and EES for all short stay visitors, combined with the
existing VIS for short-stay visa holders). This has an impact on overall security and safety
of the Schengen Area, as well as the freedom of movement. These developments could
motivate irregular travellers to look for other, less secure types of documents that would
still allow them to enter the Schengen area and move across Member States. This
phenomenon has already been observed with ID cards, whereby fraudsters target less
secure EU ID cards for intra-Schengen movements
78
(fraud
based on the ‘weakest link’
approach).
75
76
77
78
For more information see Chapter 3.1 of Ecorys study.
Eurostat reported
that 4,7 million immigrants immigrated to one of the EU-28 Member States in 2015. An
estimated 2.4 million citizens came from non-member countries, around 19.000 were labelled stateless.
Europol (2016). Situation Report Trafficking in human beings in the EU.
Risk Analysis for 2017,
Frontex, page 23.
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2.3.4. Lack of sufficient checks on migration and security risks when processing visa
applications
If all the envisaged proposals are finally adopted and subsequently implemented (EES,
ETIAS, interoperability proposal), it would lead to an asymmetric situation where
automated checks would be mandatory for visa-free TCN in ETIAS against all EU
information systems
79
and other databases
80
, whereas for visa required TCN
–
who are
considered, in general, to pose a higher irregular migration or security risk, which is why
they need a visa to enter the EU, there is no possibility of automated checks. This would
have an impact on a better assessment of migration and security risks when deciding on an
application, and would create a less favourable treatment for visa-free TCN in comparison
with TCN under visa obligation, as well as lead to additional administrative burden for
Member States when trying to overcome the lack of direct means to properly assess
migration and security risks.
3. W
HY SHOULD THE
EU
ACT
?
3.1.
Legal basis
The current legal basis of the VIS is provided in Article 77 (2) (a) and (b), Article 87(2)(a)
and Article 88(2)(a). Similar to other recent proposals in the area of IT systems for security
and borders, Article 16(2) could be added in the revised VIS Regulation, as a horizontal
principle. Article 74, and Article 77(2)(c) and (d) of the Treaty on the Functioning of the
European Union can be added to the legal basis for amending the VIS Regulation. Article
78(2), and Article 79(2) (c), and (d) correspond to ancillary objectives of the VIS and
could also be added.
3.2.
Subsidiarity: Necessity of EU action
81
The objectives of the revised VIS Regulation, to set up a common system and common
procedures for the exchange of visa data between Member States, cannot be sufficiently
achieved by the Member States and can therefore, by reason of the scale and impact of the
action, be better achieved at EU level. The further improvement of these common
procedures and rules on the exchange of data consequently requires EU action.
The problems elaborated in the previous sections are unlikely to disappear in the near
future and they are directly related to the current provisions of the VIS. Amendments of the
VIS legal framework and related legislation are only possible at EU level. By reason of the
scale, effects and impact of the envisaged actions, the fundamental objectives can only be
achieved efficiently and systematically at EU level. As regards in particular the copy of the
travel document and fingerprinting of minors, the subsequent analysis of the option will
further demonstrate how non-EU action cannot sufficiently address the problem, as they
require a solution through a centralised storage and access to data that none of the MS
taken individually can achieve. As regards in particular the problem of long-stay visas and
79
ETIAS Central System, Schengen Information System (SIS), Visa Information System (VIS), Entry/Exit System
(EES). Interoperability with Eurodac for the purpose of the automated processing of ETIAS applications against
Eurodac is pending adoption of the recast Eurodac proposal.
Europol data, Interpol databases (SLTD, TDAWN).
For more information on this please see relevant section in the executive summaries of supporting studies in
Annexes 7, 8 and 9.
80
81
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residence documents, more than 90% of the Member States consulted considered necessary
an EU legislative response to address the information gap. As regards migration and
security checks, it relies by its nature on an immediate access to all other MS information,
which can only be achieved through EU action.
The initiative will further develop and improve the rules in the VIS, which implies the
highest degree of harmonised rules that cannot be solved by Member States acting alone
and can only be addressed at EU level.
3.3.
Subsidiarity: Added value of EU action
82
As described in the baseline scenario(s) below, the continued application of the current
legal framework is not going to lead to resolving these problems.
Regarding taking fingerprints for visa applicants under 12, the Member States cannot
unilaterally decide on changing the system because the VIS Regulation is already
stipulating a number of rules.
National action is possible, and desirable, to try to obtain better cooperation of third
countries on matters of return of irregular migrants. Nevertheless, it is unlikely that any
such activities will achieve the same effect as making the travel document available in VIS
for duly justified purposes.
Regarding long-stay visas and residence documents, it is unlikely that national action
would address the problem; Member States could act on an individual basis, by
strengthening their documents, their issuance process, document checks at border-crossing
points or by reinforcing or systematising bilateral cooperation. However, this approach has
inherent limitations, as will be explained further below.
Regarding automated checks of other databases, Member States are free to develop
solutions to consult both their national, as well as EU and international databases.
However, harmonising those rules at EU level seems preferable in order to enable Member
States to apply the common Schengen rules in a coordinated way.
4. O
BJECTIVES
: W
HAT IS TO BE ACHIEVED
?
This section lists the general and specific objectives any initiative should have to address
the above-mentioned problems faced by Member States and visa applicants.
4.1.
General objectives of the revised VIS proposal
Contribute to the implementation of the common visa policy;
Facilitate the checks at EU external borders and the subsequent movement within the
area without internal borders;
Improve security within the EU and at its borders;
Improve the management of the Schengen external border.
82
For more information on this please see relevant section in the executive summaries of supporting studies in
Annexes 7, 8 and 9.
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4.2.
Specific objectives
The specific objectives are defined for each area for which problems and problem drivers
were described.
4.2.1. For copy of the travel document
Contribute to improving the identification and return of third country nationals that do
not, or no longer fulfil the conditions for entry to, or stay on the territory of the Member
States in accordance with the Return Directive.
Improve the efficiency of the VIS for the purposes of facilitating return procedures.
Achieving these objectives would lead to lowering administrative burden for Member
States
–
with positive impacts in terms of cost savings for Member States public authorities
(in terms of housing, food, administration and related expenses), better acceptance of the
EU migration policy by the European public and a deterrent effect on potential future
irregular migrants, thus reinforcing EU common visa policy.
4.2.2. For fingerprinting of minors
Two specific objectives are defined:
Better achieving the VIS objectives in relation to the facilitation of the fight against
fraud, facilitation of checks at external border crossing points and facilitation of the
application of the Dublin II Regulation.
Strengthen the prevention and fight against children's rights abuses, such as trafficking,
in particular the identification/verification of identity of TCN children who are found in
Schengen territory in a situation where their rights may be or have been violated
(through trafficking).
4.2.3. For long-stay visas and residence documents
Figure 6: Schematic representation of the specific objectives
4.2.4. For migration and security checks
Making full use of interoperability, granting fast, seamless and systematic access to other
IT systems in the area of migration, border management and security would contribute to
lowering the burden for Member States and contributing to the objective of a more secure
common visa policy by facilitating and improving the assessment of the risk of irregular
28
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migration and security in the visa procedure (while following the rules stipulated by the
Visa Code).
5. W
HAT ARE THE AVAILABLE POLICY OPTIONS
?
5.1.
What is the baseline from which options are assessed?
General considerations concerning data protection aspects
Data protection is closely linked to respect for private and family life protected by Article
7 of the Charter. This is reflected by Article 1(2) of the General Data Protection
Regulation
83
, which indicates that the EU protects fundamental rights and freedoms of
natural persons and in particular their right to the protection of personal data. It has also to
be noted that the Court of Justice of the EU
84
has stated that the right to the protection of
personal data is not an absolute right, but must be considered in relation to its function in
society
85
.
The GDPR, and, where relevant, Directive (EU) 2016/68054 apply to the processing of
personal data carried out for the purpose of processing the visa application by the Member
States and by the EU institutions, bodies and agencies involved, respectively.
According to the Commission Communication of July 2010 on information management in
the area of freedom, security and justice, data protection rules should be embedded in any
new instruments relying on the use of information technology. This implies the inclusion
of appropriate provisions limiting data processing to what is necessary for the specific
purpose of that instrument and granting data access only to those entities that ‘need to
know’. It also implies the choice of appropriate
and limited data retention periods
depending solely on the objectives of the instrument and the adoption of mechanisms
ensuring an accurate risk management and effective protection of the rights of data
subjects.
In this respect, the VIS revision is based on data protection by design and by default
86
. The
importance of the concepts of data protection by design and by default
87
was repeatedly
highlighted by the European Data Protection Supervisor regarding the e-Privacy reform
88
.
Safeguards are already part of the current VIS setup, namely:
-
Data protection is embedded into the design and architecture of the existing VIS and
apply to all new functionalities added to it.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of
natural persons with regard to the processing of personal data and on the free movement of such data, and repealing
Directive 95/46/EC (General Data Protection Regulation).
Court of Justice of the EU, judgment of 9.11.2010, Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke
and Eifert [2010] ECR I-0000.
In line with Article 52(1) of the Charter, limitations may be imposed on the exercise of the right to data protection
as long as the limitations are provided for by law, respect the essence of the right and freedoms and, subject to the
principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the
European Union or the need to protect the rights and freedoms of others.
In the meaning of Article 25 of the General Data Protection Regulation.
A recent Eurobarometer survey showed that almost 90 % of EU citizens indeed agree on the importance of data
protection by default settings. TNS Political & Social at the request of the European Commission, ‘Flash
Eurobarometer 443
— July 2016, ‘e-Privacy’ Report, EN’ (December 2016), at p. 43.
European Data Protection Supervisor, Opinion 6/2017, EDPS Opinion on the Proposal for a Regulation on Privacy
and Electronic Communications (ePrivacy Regulation).
83
84
85
86
87
88
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-
Specified purposes should be clear, limited and relevant to the circumstances (purpose
specification); the collection of personal information is limited to that which is
necessary for the specified purposes (collection limitation); the collection of personally
identifiable information is kept to a strict minimum (data minimisation); the use,
retention, and disclosure of personal information is limited to the relevant purposes
(use, retention and disclosure limitation).
It is important to note that the safeguards currently present in VIS (baseline scenario)
will
also
be part of the revised VIS, for any of the proposed options.
Each of the proposed measures will be assessed against the following three criteria:
(a) Whether they meet an objective of general interest;
(b) whether they are necessary;
(c) If so, whether they are proportional.
When assessing these criteria, a series of principles are taken into account under the terms
of the GDPR, including respect of the data minimisation principle (Article 5(1)(c)),
according to which access to personal data must be adequate, relevant and limited to what
is necessary in relation to the purposes for which they are processed, data accuracy (Article
5(1)(d)) and purpose limitation (Article 5(1)(b)), according to which data is to be collected
for specified, explicit and legitimate purposes and not further processed in a manner that is
incompatible with those purposes.
For the purpose of understanding the ensuing data protection considerations, it is important
to clarify the scope of current data processing in the VIS:
- the VIS processes and stores data from the application form,
89
which includes
biographical information of the person;
- picture
- fingerprints
- decision of Member States on the application, i.e. visa issued, visa refused, visa
revoked or annulled.
No information is stored on supporting documents (secure messaging system VISMail is
used to exchange additional information, upon request).The
VIS setup already includes a
robust set of data protection safeguards,
such as limited and strictly controlled access to
the data (Article 6), limited retention period with clear deletion deadlines (Article 23),
advanced data deletion in case the data subject has acquired the nationality of a Member
State (Article 25), responsibility for the use of data (Article 29), rights to request
amendments and deletion of data and obligations for the Member States to do so in case of
unlawfully or erroneously processing (Articles 24 and 38), strict data security rules (Article
32), strict embargo on transfer to third countries (Article 31)
–
except for very limited
situations in case of return (further explained in section 2.1.1), strict rules on the liability in
case of misuse of data (Article 33), detailed rules on keeping of records (Article 34), self-
monitoring by Member States (Article 35), cooperation between Member States to ensure
the right to data protection of the applicants is upheld (Article 39), right to effective
remedy in respect of the personal data (Article 40), as along with a supervisory framework,
89
According to Annex I to the Visa Code.
30
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both by National Supervisory Authorities (Article 41) and by the European Data Protection
Supervisor (Article 42).
5.1.1. Copy of the travel document
The current divergent approaches taken by Member States regarding the collection and
storage of copies of visa applicants’
travel documents during the visa application procedure
and the possibility of making them available to other Member States will continue. This
would lead to an increased backlog of TCN under return procedure, with increased
administrative burden and costs for Member States. The TCN under return procedure will
remain in limbo, often in administrative detention. The inefficiency of the return policy
will lead more TCN staying irregularly in the territory of the Member States. .
5.1.2. Fingerprinting of minors
Current VIS rules regarding taking fingerprints from children under 12 remain unchanged.
Technological progress and available means are not taken into account, while the risk of
children right's abuses, such as trafficking of children, remains insufficiently addressed,
given the available possibilities. Relevant authorities would continue to have challenges
both to identify or verify the identity of young children and to offer appropriate protection
if case of suspected trafficking, and to use more effective means enabling to detect and
fight against trafficking networks.
5.1.3. Long-stay visas and residence documents
In the current situation Member States do not share information prior to or upon issuance
of a long stay document. SIS is the only system required to be checked in respect of a TCN
applying for a visa or residence document, but only as regards refusals of entry and stay
(i.e. entry bans). However, no means are in place to check whether the holder of the
document is not a threat to the security of the Member States other than the one that issued
the visa or residence document.
Current inefficient border-crossing procedures will continue. In case of doubt on the
document or the bearer (i.e. document unknown to the border guard due to the non-uniform
format, expired document, document with non-functioning chip or simply a document
holder who lost the document), there are no rapid and effective means at the border to
verify the identity of the traveller. This has consequences on the waiting time for the
traveller with negative consequences on the right to move freely of bona fide TCN who
have a right to enter and reside in the territory of a Member State (Article 21 of TFEU and
Directive 2004/38). Consulted Member States
90
complained about these procedures as
being time-consuming and inefficient. For the large majority (80%) the lack of shared
information on these documents was a hurdle to their day-to day activities and as such
create administrative burden.
5.1.4. Migration and security checks
As regards the assessment of the irregular migration and security risks at the time of
application, Member States will continue to rely on national checks and on existing
90
Member States were consulted as part of the supporting study carried out by PwC, see the Executive Summary,
Annex 9.
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bilateral exchange of information on a case-by-case basis. Member States would still have
to check SIS (manually), as there would be no possibility of automated checks and,
depending on their national rules, check their national or other international databases. A
full assessment of the risks is not possible, which leads to both an uneven playing field for
the applicant (i.e. conditions are more or less stringent, depending on the Member State of
application) and security gaps are possible, depending on checks carried out by Member
States.
5.2.
Description of the policy options
5.2.1. Copy of the travel document
Policy options to address the problem of lack of travel documents for return should ensure
that the Member States' need for a travel document to certify the identity and nationality of
a TCN is covered in each individual case.
Option 1.0
–
Status quo
–
this situation corresponds to the baseline situation described
above.
Option 1.1
–
Include a digital copy of the travel document in the central VIS
(centralised)
Under this option, the digital copy of the visa applicants’ travel document would
be
systematically stored in the VIS system. The competent authorities for identification
(and/or verification within the territory) and return
–
namely migration and return
authorities
–
and which already have access to search the system using the fingerprints of
the apprehended TCN, would be able to retrieve this copy, subject to strict access rules.
Article 2(e) of the VIS Regulation foresees that one of the objectives of VIS is ‘to assist in
the identification of any person who may not, or may no longer, fulfil the conditions for
entry to, stay or residence on the territory of the Member States.’ Article 31(2) enables the
Member States to transfer or to make available a limited set of these data to a third country
for the purpose of proving the identity of third-country nationals for the purpose of
return.
91
Thus, although not explicitly defined in Article 2, when taken together, these
provisions foresee that the VIS can be used to facilitate both the identification of the
irregular migrant and the return itself.
92
Option 1.2
–
Include a digital copy of the travel document in national visa systems
(decentralised)
Under this option the digital copy would be stored in the national visa systems (NS-VIS) of
the Member States with which the application for a visa was lodged. When a VIS hit is
obtained in respect of a TCN subject to return procedure, the MS responsible would submit
a request to the MS that owns the data. In this scenario, a fast and secure channel of
communication must exist between the Member States' authorities allowing them to send
91
The Regulation allows the designated competent authorities to transfer the following data from the visa application
file: first name, surname and former surname (if applicable); sex, data, place and country of birth; current
nationality and nationality at birth; type and number of the travel document, the authority which issued it and the
date of issue and of expiry; residence; and in the case of minors, the surname and first name(s) of
the applicant’s
father and mother.
EMN Ad-Hoc
Query on COM AHQ on Member States’ Experiences with the use of the Visa Information System
(VIS) for Return Purposes.
Requested by COM on 18th March 2016. 24 responses were provided
92
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the request and receive the information. This channel could be ensured by the existing
VISMail facility within the VIS.
In addition to the main options, two additional sub-options were defined regarding the
scope of the data to be stored in VIS:
Sub-option A
–
Storage of biographical page only
This sub-option will involve the incorporation of the standardised MRTD size 3 data
page.
93
Sub-option B
– Storage of all used pages of the applicant’s travel document
Another approach would be to scan and store a digital copy of all used visa pages of the
applicants’ travel document, i.e. those containing visa stamps and stickers. Blank pages
and any other pages in the TD (i.e. annotations, the back-side of the biographic data page,
the page adjacent to the data page) would not be stored in VIS.
The two sub-options can be applied to both Option 1.1 and Option 1.2 described above.
5.2.2. Fingerprinting of minors
Policy options to address this problem should ensure that children having obtained
a Schengen visa before they were 12 years old have their verification of identity correctly
made at the border or within the territory, or are correctly identified in case found victims
of trafficking or other forms of abuse. The reason for taking fingerprints stems from the
fact that misidentification is more likely when based exclusively on alphanumeric data.
Adding fingerprints to the file reduces the likelihood of misidentification to virtually zero.
By storing fingerprints in the VIS the system provides a secure link to the identity to the
visa applicant through biometrics. This applies to adults as well as children. Consultations
with stakeholders that technological developments, including on the collection and use of
biometrics, could contribute and should be used to enhance the protection of children. A
majority of the respondents also consider fingerprinting children applying for a short-stay
visa necessary or useful to address or prevent trafficking or other forms of abuse
94
.
Option 2.0
–
Status quo
–
this situation corresponds to the baseline situation
described above.
Option 2.1
–
Lowering the fingerprinting age to 6 years
95
Under this scenario, fingerprints will be taken from every visa applicant from 6 years of
age and above, thereby effectively increasing the group of applicants by adding the age-
group of 6 to 11 year-old.
This option is based on technological progress: in 2013 the European Commission’s Joint
Research Centre (JRC)
96
carried out a study on the question whether or not automated
fingerprint recognition for children is possible with recognition rates similar to those
93
According to ICAO standards, this is the page onto which the issuing State or organisation enters the personal data
relating to the holder of the document as well as the data concerning the issuance and validity of the machine
readable travel document (MRTD).
Open public consultation feedback (see Annex 2).
It is worth noting that Option 2.1. is also in line with the proposal for a revised EURODAC Regulation, which
would lower the fingerprinting age from 14 to 6.
JRC (2013). Fingerprint Recognition for Children.
94
95
96
33
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reached for adults. The JRC study concluded that fingerprint recognition of children aged
between 6 and 12 years is achievable with a satisfactory level of accuracy under
appropriate conditions. One such condition would be, for example, to ensure an
appropriate level of training of operators to acquire high quality images.
Option 2.2
–
Lowering the fingerprinting age including all ages
Under this scenario, fingerprints would be taken from visa applicants of all ages thereby
effectively increasing the group of applicants by adding the age-group of 0 to 11 year-old.
In the same JRC study evidence is presented from other studies that it is feasible to take
reliable fingerprints of children even younger than 6, although this would have an impact
on the reliability of the fingerprints and be more challenging in terms of technical and
procedural requirements.
5.2.3. Long-stay visas and residence documents
The policy options to address the identified problem should ensure that verifications of the
irregular migration and security risks for a TCN applying for a long stay visa or residence
document, verifying the entry conditions at external border, as well as any subsequent
exchange of information on the person are done in an efficient and effective manner.
Option 3.0
–
Status quo
–
corresponds to the baseline situation described above
Option 3.1.a
–
Improve the exchange of bilateral information on a case-by-case
basis
Non-legislative options:
This would mean strengthening the ways MS currently exchange information in case of a
doubt on long-stay or residence documents at a border check or during an application
process. The main means of collaboration are via phone, fax, email and through existing
networks; SIRENE, national liaison offices, Police and Customs Cooperation Centres
(PCCC), National Contact Centre (NCC), etc.). However, this would overload already busy
communication networks, like SIRENE, while not meeting the policy objectives. Since
stakeholders described it as burdensome and inefficient, this option did not meet
sufficiently the objectives to be further assessed.
Option 3.1.b
–
Improve the feeding and use of information in the SIS as regards
alerts on withdrawn long-stay and residence documents
This option would entail improving the amount and quality of data fed into the SIS. Article
38.2(e) of Council Decision on the establishment, operation and use of the second
generation Schengen Information System (SIS II)
requires MS to log “issued identity
papers such as passports, identity cards, driving licenses, residence permits and travel
documents which have been stolen, misappropriated, lost or invalidated''. Although
undoubtedly beneficial, this option would not make the exchange of information
systematic and would only focus on SIS alerts. Since it does not contribute to the objective
of addressing the lack of cooperation and information exchange at time of issuance it is
also discarded from further analysis.
Option 3.1.c
–
Promote the use of security features for the documents containing
a chip: Passive Authentication and Extended Access Control
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This option would promote the necessity among MS to perform the systematic
authentication of the content of the electronic chip of the documents that have a chip. Even
if used at its full extent and in combination with the harmonisation of residence cards,
would not have any benefits for long-stay visas (since they do not contain a chip). As well
as the previous option, it cannot address the objective of cooperation and information
exchange at time of issuance and it only partially addresses the objective of fast and
effective border controls. This is why it was not further assessed.
Legislative options:
Option 3.2
–
Further harmonise and secure long-stay and residence documents
Residence permits
97
and long-stay visas
98
are already issued in harmonised format
throughout the Schengen area. Both legal bases have been reinforced in 2017. In practice,
this sub-option would mean strengthening the format and security features of the remaining
residence cards
99
issued without the harmonised format of residence permit. During the
adoption of Regulation 380/2008, Member States committed
100
to use the uniform format
for residence permits for residence cards. However, some Member States still do not apply
this approach (7/25).
101
Option 3.3
–
Create an interconnection between national databases that would
allow all MSs to query each other’s relevant national databases
This option entails setting up a distributed database
102
system by interconnecting the
existing national databases of long stay visas and residence documents. A distributed
database system would allow all MS to query each other’s relevant databases when
assessing a long-stay visas or residence document together with the identity of a document
holder at an external border crossing point (at second line border check).
Option 3.4.A and 3.4.B
–
Integration in the VIS
This option is the integration of data on long-stay visas, residence permits and residence
cards from national systems into the VIS. Whether to store data or not on applications
differentiates the two sub-options analysed 3.4.A (without data on rejected applications) or
3.4.B (with data on rejected applications, which would allow to support future assessment
procedures).
Long-stayers as a category are now the only TCN category not covered in any of the IT-
systems (as was already illustrated with ''missing piece of the puzzle'' in Figure 3, section
2.1.3). By including the category of documents in VIS would ensure they are included in a
EU IT-system, under a comparable regime for the same TCN for documents issued either
under visa-free conditions (the category of TCN whose data will already be in ETIAS, and
Regulation (EU) 2017/1954 of the European Parliament and of the Council of 25 October 2017 amending Council
Regulation (EC) No 1030/2002 laying down a uniform format for residence permits for third-country nationals
(amended in 2017).
98 Council Regulation (EC) No 1683/95.
99 A further harmonisation on long-stay visas (e.g. change of format of the sticker and addition of a chip) and
residence permits has been deemed not feasible and therefore not discussed in this study.
100 Council Document of 11 June 2008 (13.06), PV/CONS 26 JAI 188, 8622/08 ADD 1.
101 CSES study.
102 For more information see the supporting study ''Legal analysis on the necessity and proportionality of extending the
scope of the Visa Information System (VIS) to include data on long stay visas and residence documents'', chapter
.3.1,3, p. 34.
97
35
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EES) and visa-required (TCN coming for a short-stay, whose data is already in VIS, as
well as EES). Since long-stayers are not covered by EES, VIS would be the
only system
where their data could be checked.
5.2.4. Migration and security checks
For visa-free travellers, the ETIAS proposal stipulates automatic consultation of ''the data
present in a record, file or alert registered in the ETIAS Central System, the Schengen
Information System (SIS), [the Entry/Exit System (EES)], the Visa Information System
(VIS), [the Eurodac], [the European Criminal Records Information System (ECRIS)], the
Europol data, the Interpol Stolen and Lost Travel Document database (SLTD) and the
Interpol Travel Documents Associated with Notices database (Interpol TDAWN)''.
The same principle could by analogy be applied to checks on visa required travellers
through VIS by extending its possibility to query additional databases. In this respect,
several options exist:
Option 4.0
–
Status quo
In this option the current situation of uneven and manual checks against other non-
connected systems would persist. Depending on which Member State is doing the checks,
the visa applicants would be checked against different national and European databases. As
compared to visa-free travellers, fewer checks will be carried out against centralised
European databases.
Option 4.1
–
Systematic and automated check against available databases
(ETIAS model)
Since the VIS is also part of the legal framework setting up interoperability, technical
possibilities have opened up to explore the practical communication between various
databases in a fast, seamless and systematic manner by authorised users. In fact, after the
interoperability proposal was presented, this is the first time that this framework is applied
to an EU policy line. In this way, the option 4.1 is building on the benefits opened by the
interoperability proposal.
VIS automated database check would follow the same logic as ETIAS. When verifying and
assessing the information submitted by applicants, the system would automatically cross-
check each application against each of the above mentioned systems (also illustrated in
Table 1 below), as well as a dedicated watchlist and would consist of data related to
persons who are suspected of having committed or taken part in a criminal offence or
persons regarding whom there are factual indications or reasonable grounds to believe that
they will commit criminal offences.
In this option, the interoperability components will be used. The risk assessment based on
checks against databases will be performed in an automated manner using the
interoperability component (European Search Portal).
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Table 1: Databases to be checked for the purpose of VIS risk assessment
Risk assessment
Security
Serious / cross border
crime
Migration
Entry bans / return
decisions
Refusal of entry
Selection criteria
Databases
SIS
ETIAS
SLTD
TDAWN
EES
+
+
+
+
+
104
+
+
+
+
103
+



+
+
+
++
+
+
-
+

++
-
105
++
++
--
106
VIS Components
Screening
+
+
Rules
Candidate databases for future integrations
ECRIS
EIS
Watchlist
EURODAC
+
+
+
+
+
+
+
--
-
-
--
Option 4.2
–
Automated cross-checks + screening rules
In addition to automated cross-checks of other databases (option 4.1), automated
processing through introducing screening rules in VIS could be envisaged, analogous to
the ones used in ETIAS. The screening rules is a new tool, which would be an algorithm
enabling the comparison of data in the applications for a short stay visa with specific risk
indicators. The screening rules would thus contain on the one hand data analytics rules, and
on the other specific values provided by Member States as well as statistics generated from
other relevant border management and security databases. This would enhance risk-
assessment capability and in particular to allow for the data-analytics method to be applied.
The screening rules would not contain any personal data and would be based on statistics
and information provided by Member States concerning risk indicators or threats,
abnormal rates of refusal or overstay by certain categories of TCN and public health risks.
As was stated for the option 4.1, this option is also about applying the interoperability
framework, building even further on the benefits opened by the interoperability initiative.
103 According to ongoing discussions, return decisions could be stored in the SIS in the future.
104 ETIAS would be checked for applicants coming from a country which has just changed visa regime.
105 The assessment of ECRIS is based on the current situation. Should the system evolve into ECRIS-TCN, the
assessment could have to be repeated.
106 The assessment of Eurodac is based on the current situation. Should Eurodac evolve into a case-management
system, the assessment would be repeated.
37
Implementation
complexity
+
++
++
++
++
++
--
--
--
--
Data protection
Irregular stay
(overstay)
Relevance
terrorism
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5.3.
Options discarded at an early stage
Copy of the travel document
Regarding travel documents, the option of incorporating a digital copy of the travel
document in another system, e.g. EES, was discarded, because there are no other large-
scale IT systems, existing or planned, which could be used to obtain the same result in
respect of the same target population.
Long-stay visas and residence documents
Option 3.1.a
–
Improve the exchange of bilateral information on a case-by-case
basis.
Option 3.1.b
–
Improve the feeding and use of information in the SIS as regards
alerts on withdrawn long-stay and residence documents
Option 3.1.c
–
Promote the use of security features for the documents containing
a chip: Passive Authentication and Extended Access Control
Three non-legislative options were discarded early on:
To sum up, while acknowledging their benefits, none of the non-legislative options would
fully support the objective of exchange of information, therefore they would not reduce the
fragmentation of the information available on TCNs during the issuance process of a new
document
107
.
6. W
HAT ARE THE IMPACTS OF THE POLICY OPTIONS
?
A summary of different impacts (including fundamental rights, social impacts and
economic impacts) can be found in Annex 3.
A detailed consideration on the available data, categories impacted by the envisaged
measures and general considerations on data protection are presented in Annex 5.
107 See supporting study Legal analysis on the necessity and proportionality of extending the scope of VIS to to include
data on long stay visas and residence documents (chapter 3.2.1.) for in-depth explanation.
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6.1.
Assessment of policy options
6.1.1. Copy of the travel document
Economic costs and benefits
Two cost estimates were provided during the study
108
on all relevant costs (both one-off
and recurrent, as well as recurrent compliance costs) from the options and their sub-
options. Eu-LISA estimates the one-off
cost for the central system (option 1.1) between €
3,3
– 4 m, while the study places it above €
5 m. For the decentralized system (option 1.2)
the study suggests it would entail costs as high as € 200 m. As regards operational costs,
eu-LISA
places them at around € 375,000 –
560,000 / year.
As shown in the following table, the measures will also produce several important
economic benefits for consulates as well as Member States’ migration and return
authorities. If implemented, they would reduce administrative burden for processing return
cases, reduce delays in the procedure and eliminate inefficient procedures involved with
retrieving, scanning, zipping and coding hard copies. In fact, both options would be very
feasible in practice, since the vast majority Member States are already storing copies of
travel document
–
the options would simply impose a harmonised rule on such storing.
Such a change of administrative procedures would in many cases lead to simplification of
storing (digital storage). Furthermore, rules on the retention of the travel document (which
currently vary among Member States which store copies of it) would be harmonised, which
implies moderate changes in national administrative practices.
The identified economic benefits are primarily driven by the choice of main option. While
Option 1.1 (centralized storage) performs marginally better compared to Option 1.2
(decentralized storage), both options would
significantly reduce inefficiencies associated
with the current procedures,
reflected in significant cost savings (reflected in Table 2
below).
Table 2: Summary of benefits of the policy options
Option 1.1
–
Centralised
Consulates
Cost savings from time spent on responding
€ 0,7m – € 2,8 m
to supporting document requests
(€ 366 – € 1.462 per consulate)
Migration and return authorities
Cost savings from time spent on retrieving
€ 3,2 –
12,7 m
TD copy
Cost savings from reduced delays in return
procedures
Daily costs of delays reduced by
up to 14 days
€ 46,3 m –
92,6 m
€ 6,7 m –
21,4 m (if 50%
improvement)
€ 10,0 m –
32,1 m (if 75 %
improvement)
€ 57,5 m –
132,2 m
€ 60,8 m –
142,9 m
Option 1.2 - Decentralised
€ 0,7 – € 2,8 m
(€ 366 – € 1.462 per
consulate)
€ 3,0 –
12,3 m
Daily cost of delays reduced by
up to 13,5 days; costs incurred
for delays of �½ day
€ 44,6 –
89,3 m
€ 6,6 m –
21,3 m (if 50%
improvement)
€ 9,9 m –
31,9 m (if 75%
improvement)
€ 55,6 m –
128,3 m
€ 58,9 m –
139,0 m
Cost savings from executing a higher
proportion of return decisions, in less time
Total benefits (50 % improvement)
Total benefits (75 % improvement)
108 Further details on the estimates can be found in the Ecorys study (chapter 3.6.2) and in the annexed eu-Lisa study
(p. 79) respectively.
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In terms of the impact on duration and timeliness of return proceedings, both options
would significantly reduce the waiting time of migration and return authorities during the
process of confirming the identity of TCNs.
Under Option 1.1, the delays will be
effectively eliminated, resulting in a delay reduction of up to 14 days.
Option 1.2 would
have a slightly lower impact as Member States’ authorities may still be required to wait for
several hours before receiving a reply from the responsible national authority for storing
the travel document. The potential benefits to be realised from both options will be
sufficiently substantial to offset the costs incurred to implement and comply with the
respective options,
especially for option 1.1 (centralised storage).
Policy impacts
Whereas the baseline scenario could not achieve any of the two objectives, the storage of
visa applicants’ travel documents in VIS will improve the implementation of the objective
of facilitating returns of TCNs who have been issued with a return decision. Both Option
1.1 and Option 1.2 will enable Member States to obtain the necessary evidence for proving
the nationality of TCN visa overstayers who have been issued with return decisions, but
who lack a valid travel document, to equal effect. Moreover, the VIS is the only EU
instrument storing data on TCN outside the EU borders, i.e. in the country of origin or
another country where the person applies for a visa, therefore the only EU instrument that
could provide, in a systematic manner, the necessary data to achieve the stated policy
objectives in this case. No other measure is currently available at EU level enabling
authorities to obtain a copy of the TCN's travel document.
As regards the change of return effectiveness, the copy of the
TCN’s travel document will
be extremely useful as a means of evidence for the third country regarding the identity and
nationality of the person to be returned and thus sufficient for facilitating the return. As
return effectiveness hinges also on external factors, such as general cooperativeness of
third countries on return, the actual impact is not easy to measure.
Table 3: Effectiveness in meeting the objectives
Objective
Option
Specific objective I: assist in
the identification and return
of TCN
0
++
+
+
++
Specific objective II:
efficiency of VIS in return
procedures
0
++
+
+
++
1.0 Baseline
1.1 Digital copy of the travel
document in the central VIS
1.2 Digital copy of the travel
document in national systems
A
–
Biographical page only
B
–
All used pages
Based on inputs provided during the stakeholder consultation, the contracted study
cautiously assumed that the proportion of effectively executed returns of TCN visa
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overstayers without travel documents will increase by 50% to 75% as a result of the
proposed options.
If the proportion of effectively executed returns increases by 50%, then the benefit is an
additional 7.934 to 19.834 TCNs returned compared to the current situation.
If the proportion increases by 75%, then benefit is an additional 11.900 to 29.751
persons returned.
These considerations are reflected in considering the scoring of the options for meeting the
objectives in Table 3 (above).
Table 4: Estimated benefits for the implementation of returns
Impact on the implementation of returns: Additional returns of TCNs without travel documents
Estimated
number of
Number of additional returns:
Number of additional returns:
returns not
Scenario of 50% improvement
Scenario of 75% improvement
% improvement
implemented
Lower Upper
Lower
Upper
Lower
Upper
+ 7.934
+ 19.834
+ 11.900
+ 29.751
15.867 39.668
50%
–
75%
TCNs returned TCNs returned TCNs returned TCNs returned
Fundamental rights impacts
The
storage of a digital copy of the visa applicants’
travel document in the central VIS
(Option 1.1) or national VIS (Option 1.2) can have a positive impact for the right to asylum
(Article 18 CFR) and the protection of the principle of
non-refoulement
(Article 19 CFR)
by providing designated authorities which already have access to the VIS with access to
additional evidence to prove an asylum seekers’ identity. The sub-options
could be useful
to asylum authorities for verifying the identity of a person in need of international
protection (sub-option A) or for the assessment of merits of asylum cases (sub-option B).
The existing safeguard which bans the transfer of personal data to third countries if that
person has requested international protection continues to apply (Article 31(3)), mitigating
the risk of serious harm for asylum applicants or their families.
Sub-options A and B would create an interference with the right to privacy and family life
(Article 7 CFR) and the right to the protection of personal data (Article 8 CFR), as it
involves the processing of personal data and access to these data by public authorities.
Sub-option A implies the processing, of nearly the
same amount and type of personal
data as is processed in the current situation, merely stored in a different format.
The
additional category of data is limited to the personal (national) identification number of the
document holder. This additional information does not further affect the privacy of the
person, and for this reason the limitation to the right to privacy is modest. With respect to
the right to data protection, storing a copy of the passport involved further data processing
of the image of the document; however, it does not extend the information already
available to authorities and the existing rules and conditions of access to this information.
Sub-option B involves the processing of a larger amount of new data, consisting in images
of used visa pages in addition to data in sub-option A, for all TCNs under visa obligation.
Both sub-options meet the objective of enhancing the return rate of TCN under visa
obligation and do not go beyond what is necessary to achieve this objective.
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Existing safeguards, including prohibiting the further processing of these data by
authorities as well as to prevent unauthorised access and unlawful sharing with third
parties should limit any potential negative impacts implied by both sub-options. As regards
sub-option B, additional safeguards should explicitly prohibit the sharing of these data with
third parties, given that it is not foreseen to positively contribute to the objective of
facilitating return.
For both option 1.1 and 1.2 risks with regard to purpose limitation and accessibility of
personal information can be mitigated by introducing strict safeguards against unauthorised
access.
6.1.2. Biometric data of minors
Economic costs and benefits
In terms of costs, the one-off costs are higher for option 2.2 (taking fingerprints of all
children) than for option 2.1 (lowering the fingerprinting age to 6). This is due to the fact
that taking fingerprints of children younger than 6 is likely to require a new, different type
of scanners and software.
Table 5: Overview cost-benefits option 1 and 2
Option 1 (6-12 years)
One-off costs
Child- friendly equipment
Increased size of biometric
samples in VIS- BMS costs
Training costs (ESPs, Consulates)
Operational costs
Workload and administrative
burden
No costs
Increased cost by 4.4 %
€ 138 175
€13 002 000
increased costs by 8.8 %
€ 138 175
Range
from € 208 832 to € 1 044
264
Option 2 (all ages)
Range from €52 208 to €261 066
Costs for Member State authorities and opportunity costs
Impacts on TCN visa applicants
Less than one minute additional
(not related to fundamental
waiting time per child
rights)
Impacts for Member States’ visa
No costs/ savings
authorities
Impacts for Member States’
authorities dealing with missing
children/ unaccompanied children
Savings unknown
Less than two minutes additional
waiting time per child
No costs/ savings
Savings unknown
Policy impacts
Taking fingerprints of children under 12 would support border authorities in detecting
identity fraud as it would help them to ascertain whether the child present at the border is
the child that has been granted a visa, which means options 2.1 and 2.2 would satisfy the
VIS objectives. However, the JRC study on fingerprints concluded that the reliability of
fingerprints is lower for children under the age of 6. This is reflected in the scoring of
whether the measures would meet the objectives (lowering the fingerprinting age to all
ages thus scores lower since fingerprint reliability cannot be guaranteed).
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Fingerprints constitute a child protection safeguard since collecting and storing them
facilitates the identification of traffickers and trafficking networks, as the file of the child
in the VIS is linked to that of the parent/adult that accompanied the child. However, as
already mentioned in the Eurostat Report on Trafficking in Human Beings, only 2% of
victims of trafficking are under 12 years old. On the other hand, 17% of victims are in the
12-17 age range and this much more significant percentage of victims can already be
helped if fingerprinting is lowered under 12 years, to take into account the 5-year
maximum duration of the validity of the visa (i.e. the 12 to 17 age range for visa holders,
corresponds to a potential range of applicants between 7 and 12 years of age). These two
factors taken together: lower reliability of fingerprints for children under 6 and relatively
lower number of children which could be helped with this measure means that options 2.1
and 2.2 would satisfy the objective of fighting child trafficking to a different degree
–
as
reflected in the scoring:. option 2.2. is less effective in fighting child trafficking than
option 2.1.
The prevention of identity fraud is raised by several consulates consulted as part of the
supporting study as the main potential benefit of the proposed measure, which means
stakeholders recognize it as a positive measure.
Table 6: Effectiveness in meeting the objectives
Objective
Option
2.0 Baseline
2.1 Lowering the fingerprinting age
to 6 years
2.2 Lowering the fingerprinting age
to all ages
Specific objective I: VIS
objectives (fraud, checks,
Dublin regulation)
0
++
+/0
Specific objective II: Fight
against child trafficking
0
++
+/0
Under the baseline scenario the fingerprints of each incoming TCN child are not checked
nor verified at Schengen entry ports, which means that the baseline scenario 2.0 does not
help to meet either of the objectives (neither with VIS objectives nor with the fight against
trafficking).
Fingerprints contribute to the subsequent identification and verification of the identity of
TCN children who were <12 when applying for the visa, on Schengen territory, hereby
allowing for family unity within and outside the Schengen area, verifying the family
relationship, Dublin and asylum examination (i.e. VIS objectives).
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Moreover, the VIS is the only EU instrument storing data on TCN children of nationalities
subject to a visa obligation, and collecting these data outside the EU borders, i.e. in the
country of origin or another country where the person applies for a visa. Hence the VIS is
the only means to ensure, in a systematic manner, that the necessary data to achieve the
stated policy objectives of the visa policy. No other instrument is currently available at EU
level enabling authorities to perform identifications on TCN children or to provide such
information in case needed for identifying victims of trafficking or launching SIS alerts on
missing children.
Fundamental rights impacts
Both options 2.1 and 2.2 should have an overall positive impact on the protection of
fundamental rights. Fingerprints would assist in protecting children against trafficking and
in identifying children who have gone missing, or who are abducted or became victims of
human traffickers. It would also facilitate reuniting these children to reunite with their
family members (but only if it is in their best interest).
Although the existing VIS legal basis has no explicit purpose in regard to protecting
children, VIS procedures and the application of the VIS should, like all EU actions, in all
times respect the best interests of children as stipulated in Article 24 of the EU Charter of
Fundamental Rights. Explicit safeguards in this respect will be added in the Visa Code and
the VIS Regulation as regards carrying out the application procedure for children. These
safeguards are part of both proposed options (against the benchmark of the baseline
scenario
–
which already contains strong safeguards, as explained in section 5.1).
FRA provided insights into the impact on children
109
in relation to the proposal for a
revised Eurodac Regulation, which also provides a lowering of the fingerprinting age for
children in the asylum process to 6 years of age, which is why the comments are valid for
this proposal as well. FRA reminded that, as is stated in the Article 3 of the United Nations
(UN) Convention on the Rights of the Child, for all actions and decisions concerning
children, the child’s best
interests must be a primary consideration. Children are an
extremely vulnerable group and the storage of biometric data could have both positive and
negative impacts, therefore lowering the age can only be justified if it explicitly pursues a
child protection objective and sufficient safeguards are in place.
Both option 2.1 and 2.2 will also have an impact on the rights to human dignity and
privacy and personal data protection. It concerns the collection and storage of further
sensitive data (fingerprints) of a particularly vulnerable group in a large scale IT system.
However, fingerprints are the only means to unambiguously identify a child and, in this
way, to better prevent child related abuses using visa, such as using false identities to
traffic children into the EU.
Furthermore, the processing of fingerprint data for children will be subject to the strict
safeguards, which already exist for the processing of biometric data of TCN visa applicants
above the age of 12.
As described earlier, cases of children entering or attempting to enter the EU on a visa who
are victims of child trafficking or other abuses, could be detected by a more complete
109 See
http://fra.europa.eu/en/opinion/2017/impact-proposal-revised-eurodac-regulation-fundamental-rights.
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information file in the VIS. This objective requires that the relevant or designated
authorities would need access to search and process the data stored in VIS. Child
protection authorities currently do not have access to the VIS.
Fingerprints must be taken in full respect of human dignity and in a manner that is
appropriate to the child’s age and maturity. A provision
to the Visa Code could be included
explicitly requiring that fingerprints be taken in a child-friendly and child-sensitive manner
by personnel who have been specifically trained to collect biometric data from children.
6.1.3. Long-stay visas and residence documents
Economic costs and benefits
The Feasibility Study
110
already looked at the feasibility of different options for storing
long-stay documents and assessed IT-security, ease of implementation, management and
costs of different options, namely a decentralised and centralised database (corresponding
to options 3.3 and 3.4a/b). It concluded that a central repository as part of the VIS would
score higher in all the criteria, especially at technical and operational levels. The impact
that the repository (option 3.4.a / 3.4.b) would have on the existing VIS is low when
considering the data model, services and overall capacity. The eu-LISA study on the
technical and budgetary impacts of the VIS developments estimated an on-off cost of 10-
12M€ for the repository.
Economic costs and benefits of further harmonisation (option 3.2)
are analysed in more detail in the IA for residence document harmonisation by DG
JUST.
111
Policy impacts
With non-legislative options already discarded for not meeting the proposed objectives, all
retained options would meet the general objectives, as seen below in Table 7. Whereas, the
baseline scenario 3.0 meets neither of the two specific objectives, further harmonisation of
documents (option 3.2), would help to strengthen checks at external borders / in the
territory, but it would not be helpful with improving security though better information
exchange, which is reflected in the scoring. In fact, the objective of information exchange
can only be achieved if there is a data-base of documents, which means that only options
3.3, 3.4.a/3.4.b meet this objective, as is reflected in the Table 7 below.
110 See Feasibility Study, page 8.
111 See IA on ID cards and residence documents, chapter 6.2.
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Table 7: Effectiveness in meeting the objectives
Objective
Option
Specific objective 1: Strengthen
checks
Specific objective 2: Information-
exchange
3.0 Baseline
3.2 Further
harmonisation
3.3 Decentralised
database
3.4.a Store data on
issued documents
3.4.b Store data on
applications
112
0
0
+
0
+
+
+
++
+
++
Impact on fundamental rights
Impacts on fundamental rights mainly focus on data protection and are assessed for the
options and sub-options that meet the two main policy objectives (non-legislative options
were already discarded for not meeting the proposed objectives, as was the case with the
baseline scenario). Therefore, the analysis focuses only on options 3.2, 3.3, 3.4.a and 3.4.b.
Table 8: Analysis of impacts on fundamental rights (against Articles of EU Charter of Fundamental Rights )
Article 2
Article 7
Article 8
Article 45(2)
Policy options
(life)
(privacy)
(p.data)
(freedom of movement)
+
Option 3.2 Further
+
0 to -
0 to -
(if residence cards are included)
harmonisation
0 (if they are not)
+
Option 3.3 Decentralised
+
-
-
(if residence cards are included)
database
0 (if they are not)
Option 3.4 Include long-
stay documents in the VIS
++
Sub-option a): Store data
+
--
--
(if residence cards are included)
on issued documents
0 (if they are not)
++
Sub-option b): Store data
++
---
---
(if residence cards are included)
on applications
0 (if they are not)
Option 3.2 (further document harmonisation) would have a limited impact on personal data
protection, as it would not significantly change data processing as compared to the
baseline. The situation is different for the options which entail collecting and storing data
in a database.
Whether to store data or not on applications differentiates the sub-options 3.4.a (without
rejected applications) and 3.4.b (with data on rejected applications) (see Figure below). In
order to understand the impact of data processing, it is important to explain which data will
112 Except on residence cards, whose sole requirement for issuing is a proof of a family link with a mobile EU citizen.
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be collected. The following categories of data will be collected: biographical data of the
holder or applicant, travel document data, decision data, issued document data.
Figure 7: Dataset for long stay visa/ residence permit file
Biographical data
1. First name
2. Last name
3. Date of birth
4. Nationality
5. Sex
Decision data
12. Previously issued documents
(short - stay visa, long - stay visa, residence permit)
Document data
6. Travel document (passport) number
7. Type of document
(long - stay visa, residence permit or residence card)
13. Rejected applications
(only sub - option b)
14. Authority that took the decision
15. Date and time of the decision
16. Reasons for the negative decision
(only sub - option b)
8. Document number
9. Issuing MS
10. Validity period
11. Status
(valid/extended/withdrawn)
In the case of option 3.4.b, the data stored upon
applying for a long-stay document
would
be a combination of the biographical and travel document data presented above and would
also include: the fact that an application for a certain type of document was lodged, when,
where and with which Member State authority.
Figure 8: Dataset for residence card file
Document data
Biographical data
1. First name
2. Last name
3. Date of birth
4. Nationality
5. Sex
6. Travel document (passport) number
7. Type of document
(long-stay visa, residence permit or residence card)
8. Document number
9. Issuing MS
10. Validity period
11. Status (valid/extended/withdrawn)
Residence cards are a special case: as regards the residence card file, information will only
be stored upon issuing the document (i.e. the residence cards). Authorities responsible for
issuing these documents (consulates or legal migration authorities) would have access to
introduce and store data upon application/ issuance (of the residence card), and
subsequently to amend, and update the file. Border authorities and authorities responsible
for checks within the territory, would only have access to check with the data provided by
the person and would not have access to carry out modifications of the personal data.
The table 9 below summarises the processing applicable to the options.
Table 9: Data processing
Option
3.3 Decentralised
database
3.4.a Store data on
issued documents
Collection
0
√
Storage
0
√
Access
√
√
Transfer
113
0
√
Deletion
0
√
113 To a third-country or international organisation - in line with what currently exists for VIS data, exceptional
transfer of some data could take place for the prevention, detection and investigation of terrorism or other serious
criminal offences. In such case, the same conditions and safeguards that currently exist in the VIS would apply.
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3.4.b Store data on
applications
√
√
√
√
√
Option 3.3 would have an impact on data protection, as it would add an additional access
to existing data
114
(and thus more processing, and more risks of unlawful access to or use
of the data).
Option 3.4.a would have a stronger impact on data protection, as, in addition to access, it
entails the collection and storage of data.
115
Finally, option 3.4.b would have a slightly stronger impact on data protection compared
with option 3.4.a as it involves the processing of application data in addition to issued
document data. It would thus entail the processing of a larger dataset.
Both options 3.4.a and 3.4.b entail more risks to data than option 3.3 as they rely on
a central database (the VIS) for storage.
116
However, it also has to be taken into account
that while more data is at risk, the likelihood of a breach is smaller as there is only one
system to protect and monitor. This consideration should nevertheless be qualified, as both
option 3.4.a and 3.4.b propose a limited dataset: as per the current proposal, they would
entail the processing of 16, 11 respectively, data items, most of which are based on the
document dataset. The dataset does not encompass the special categories of data that are
considered as particularly sensitive.
117
The “reason for the negative decision” might,
if left
as a free text field, reveal data related to private life or sensitive data on rare occasions.
The use of a drop-down menu, tick boxes or another technical feature of the form will
prevent this as an additional safeguard. The reasons for the negative decision should be
provided in a manner that is limited to allowing the designated authority to achieve the
purpose of carrying out the assessment of security and irregular migration checks (through
verifications on whether the person is registered in the system with previous refusal due to
identity or document fraud or for being a threat to the national security of one or more
Member States), subject to the existing limitations in law. Additional safeguards will be
included to ensure that the use of the data is fully in line with applicable legislation in the
field of legal migration or freedom of movement, as applicable, at either EU or national
level, notably that a previous refusal of a document should not automatically lead to a new
refusal and that each application should be considered on its own merits.
Options 3.3 and 3.4 would not affect the right of the individuals to access their personal
data, rectification and objection. No derogation to the general data protection regime of
Member States or of the VIS Regulation would be created. All existing provisions and
114 According to the European Court of Human Rights and the European Court of Justice, access and use of personal
data by the authorities
constitute a further interference with the right of privacy. See EDPS (April 2017) “Assessing
the necessity of measures that limit the fundamental right to the protection of personal data: A Toolkit”,
page 11.
See also and
Weber and Saravia v. Germany no. 54934/00, paragraphs 76 to 79,
115 Indeed, distinct processing operations may constitute separate limitations on the right to personal data protection
and when applicable
with the right to privacy. See EDPS (April 2017) “Assessing
the necessity of measures that
limit the fundamental right to the protection of personal data: A Toolkit”,
page 11.
116 From a data protection perspective, it is considered that central databases
create a “single point of failure” and an
addition attractiveness for hacking considered the amount of data stored in a single place. On the other hand,
consulted stakeholders mentioned that decentralised storage (having multiple, small databases only containing a
subset of information) could be seen as more vulnerable than central storage of all data.
117 Article 9 of the General Data Protection Regulation (GDPR).
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safeguards would apply, including for option 3.3 the ones present in the current VIS
Regulation, among which Article 38 (Right of access, correction and deletion).
Options 3.3, 3.4.a and 3.4.b would not affect the right of the individuals to access their
personal data, rectification and objection. No derogation to the general data protection
regime of Member States or of the VIS Regulation would be created. All existing
provisions and safeguards would apply, including for option 3.3.
Only a limited data set would be collected, at most, on about 22 million documents
118
(including residence cards). It must be taken into account that this figure does not represent
net new sets of
personal data
as compared to what is already registered in the EU large
scale IT systems for borders and migration:
-
As regards TCN under a visa obligation, depending also on the regime in place in each
Member State, there is a high likelihood that a person applying for a residence
document has already access the territory of the Member States with a short stay visa in
order to apply for the residence document. In those cases, these persons are already
registered in the VIS.
As regards a visa-free TCN, with the entry into operations of ETIAS the data of each
person travelling for a short stay to EU will be registered (except fingerprints). With
the entry into operations of EES, the data of all visa free TCN entering the EU territory,
including biometric (live facial image and four fingerprints), will also be registered in
this system, with the exception of holders of residence cards (who are exempted from
registration in the EES as in their respect the obligation of stays on the territory not
exceeding 90 days in any 180 days does not apply).
-
The above considerations also imply that for the persons applying for a long stay document
(visa or residence permit), the personal data is already recorded in a centralised database,
VIS and in the future ETIAS and EES, and therefore creating the file for the long stay
application will entail reusing personal data, including biometrics, where available, from
existing records.
Right to life
(Article 2 CFR): options 3.2, 3.3 and both sub-options under 3.4 may have a
positive impact on the right to life by increasing security. The extent of the link between
long-stay and residence documents fraud and the right to life of EU residents is difficult to
assess, due to limited data available.
Option 3.2 would have a positive impact on the right to life, as it would reinforce the
security of the EU through making long-stay and residence documents more secure;
Options 3.3 and 3.4.a would have a similar positive impact on the right to life, as they
would both reinforce the security of the EU through the access of border guards, law
enforcement and migration authorities to long-stay and residence document data. This
positive impact may be more significant than the one of option 3.2 since the options
would create a “white list” of valid documents
adding another level of security on top
of existing security features;
118 Numbers taken from the previous study on the extension of the VIS. Currently there are an estimated 22 million
documents in circulation (19 million residence permits, 2 million long-stay visas and an amount of residence cards
not exactly known but estimated at 1 million).
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Option 3.4.b would have, compared to options 3.3 and 3.4.a, a more significant positive
impact on the right to life, as it would further reinforce EU residents’ security via the
consideration, during the issuance process of long-stay visas or residence permits, of
relevant information linked to the person’s previous applications.
Similarly, access by law enforcement authorities for preventing terrorism and other serious
criminal offences could also have a further positive impact on this right.
Right to privacy
(Article 7 CFR):
Option 3.2 would have a limited impact on the right to privacy, as it would not
significantly change data processing as compared to the baseline;
Option 3.3 would have a more significant negative impact on the right to privacy than
3.2, as it entails additional access to and use of existing data by public authorities
119
;
Option 3.4.a would have a more significant negative impact on the right to privacy
than 3.3, as the option entails the storing, access and use by a public authority of data
related to private life
120
.
Option 3.4.b would have a more significant negative impact on the right to privacy than
3.4.a, as the option entails the same processing by public authorities as 3.4.a, but for a
larger dataset.
Right of freedom of movement and of residence
(Article 21 TFUE, Directive 2004/38,
and Article 45.2 CFR)
121
: options 3.2, 3.3, and 3.4 (both sub-options) would have a
positive impact on this right if residence cards are included in their scope. It would lead to
facilitation and time savings during external border checks (and internal ones, when they
are exceptionally carried out as border guard would more easily recognise the validity of
the residence card.
Option 3.3 would have a slightly more significant, positive impact on the right than 3.2,
as the check to the database would also solve issues related to technical problems in
reading the chips and thus prevent lengthy second-line checks in such cases;
Option 3.4 (both sub-options) would have a more significant, positive impact on the
right than 3.3, as the check to a central database would be quicker than a check to a
decentralised one, therefore time and convenience as facilitation gained would be more
important.
As regards the inclusion of TCN members of family of a mobile EU citizen (i.e. of
residence cards data), it must be underlined that this impact assessment treats the situation
of all categories of TCN in a non-discriminatory manner. The distinction made between
family members of mobile EU nationals and the other TCN, family members of an EU
119 See Digital Rights Ireland, paragraph 35, available at the following
link.
120 EDPS (April
2017) “Assessing
the necessity of measures that limit the fundamental right to the protection of
personal data: A Toolkit”,
page 11. The European Court of Human Rights has further specified that “data related to
private life” should not be interpreted
restrictively and encompasses business and professional activity. Within the
proposed dataset, the reason for the negative decision on an application could contain such information (e.g. the
person employment, family, health situation has changed). See European Court of Human Rights, Amann v.
Switzerland [GC], no. 27798/95, § 65, available at: https://hudoc.echr.coe.int/eng#{"itemid":["001-58497"]}
Article 45.2: “Freedom of movement and residence may be granted, in accordance with the Treaty establishing the
European Community, to nationals of third countries legally resident in the territory of a Member State”.
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national or not, is driven by the difference in the residence document that is issued, i.e. a
card for the first category, a permit for the second. The difference between these two
categories of documents comes from the different conditions of issuance, i.e. based on EU
legislation which distinguishes between the conditions applied to issuing residence permits
to family members of EU nationals in general (the Family Reunification Directive), and the
conditions applied to issuing cards to family members of mobile EU nationals (Directive
38/2004).
However, this initiative is without prejudice to the conditions or grounds of issuance of
these documents. Instead, it focuses on two objectives (faciliting checks at borders and
ensuring the security of the Schengen area) which stem from the conditions of crossing an
external border to which all TCN, irrespective of the reasons for which a document of
residence was issued to them, are subject.
There is currently no mechanism in place to exchange information among Member States
enabling them to assess at borders and even before a residence document is issued, whether
the person could pose a security risk or is an identity fraudster, as the current assessment is
based exclusively on national information. Hence, if this category of TCN was left outside
the scope of this initiative, the information gap and thus the security gap identified in the
problem definition would be reduced, but not closed and advantage of this could be taken
in order to obtain an easier, less checked and more comprehensive (due to extensive rights
attached to it) access to enter, freely move and reside in the EU territory.
Considerations on biometric data in option 3.4
Adding biometric data, and particularly fingerprints, to the data set to be accessible in the
database would have the advantage of allowing identification of the bearer of the residence
permit, residence card or long-stay visa
122
with a level of certainty much higher than as it
would be without (relying solely on visual identification and/or identification based on
biographical data). It would thus ensure that these documents are solely used by the
genuine bearer. Border guards, law enforcement or migration authorities would be able to
detect cases of multiple identities across systems using biometrics in line with the
interoperability proposal recently tabled by the Commission
123
and similarly to what
already happens for short stay travellers whose biometrics are collected in the EES and
VIS.
However, the collection and storage of long-stay
travellers’
biometric data
by Member
States is currently
not harmonised.
While some Member States collect and store
fingerprints in national databases, some other Member States delete the biometric data
from their databases after placing it on a residence permit or a card. Therefore,
while for
some persons biometric data is available, for some others it is not.
The number of
fingerprints may also vary depending on the Member State. Due to this situation, collecting
biometric data from national databases to store them in the EU database would lead to
122 According to the 2017 Feasibility study (p.33), there is no EU legislative provision for the collection of biometric
data for long-stay visas. Some MSs collect fingerprints (a variable number depending from the MS) and facial
image. However, in some cases no biometrics are collected at all or they are deleted shortly after the issuance of the
document (e.g. after 90 days).
123 COM(2017) 794.
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differences in the collected data set depending on the person and the Member State that
collects it.
According to the strict necessity principle in data protection, if the system can achieve the
objectives without biometric data for some persons (e.g. when they are not available, as
some Member States have not stored them in a database), it means that biometric data is
not strictly necessary. However, given that biometrics of most of the TCN affected by this
measure are or will be available in the central EU databases and that with the proposed
Shared BMS of the interoperability proposals there would be no technical issue in handling
different types and different combinations of biometrics, the impact on data protection is
significantly limited. The system could work with just storing the minimum denominator
of biometrics per documents (e.g. two fingerprints and facial image for residence permits,
facial image for long stay visa and residence cards).
6.1.4. Migration and security checks
Economic costs and benefits
The budgetary impact of this measure could be estimated on the basis of extensive existing
analysis of the similar measure in ETIAS. However, it must be taken into account that
significant differences exist: there are no setup costs for the VIS, which is already up and
running. Costs to be taken into account would include the search interface to other systems
to be developed. In option 4.1 the interoperability platform will be reused. This will reduce
the overall cost in a consistent manner and would avoid natural redundancies of
heterogeneous elements.
Based on similarities with ETIAS (although for a size of the population of about half that
of ETIAS)
–
and taking interoperability development costs as already incurred, a high level
estimate would place the investment for the central system (eu-LISA implementation) for
implementing option 4.1 (automated and systematic checks against multiple databases) at €
10 m. Regarding the business impacts for the MS, the interface and process for the ETIAS
may be reused, thus significantly limiting the costs and complexity for MS integration.
Both option 4.1 and 4.2 (automated cross-checks + screening rules) would entail similar
costs from this perspective.
Policy impacts
The legitimate public interest of ensuring a high level of security is positively affected by
the implementation of automated data-base check. A better and more accurate
identification of the security risk of TCN crossing the external border of the Schengen area
supports the detection of cross border criminality, and it more generally facilitates the
identification of persons whose presence in the Schengen area would pose a security,
migration or public health threat. It would thus contribute to improving the security of the
citizens present in the Schengen area and enhancing internal security in the EU.
Benefiting from interoperability proposal, it would be illogical to enable such cross-checks
for visa-exempt TCN, yet choose not to use it for visa required TCN, who by definition
come from countries with a higher migratory-security risk for the EU. Thus, the proposed
measure, for both options 4.1 and 4.2, is rebalancing a potential unbalanced treatment
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between visa-exempt travellers and visa-required travellers, whereas option 4.0 (the
baseline) does not meet this objective.
Table 10: Effectiveness in meeting the objectives
Objective
Option
4.0: Baseline
4.1: Automated cross-checks
4.2: Automated cross-checks and screening rules
0
+
++
Migration and security assessment
Fundamental rights impacts
The proposed measure (for options 4.1. and 4.2 which entail taking action) has an impact
(positive, negative or both) on each of the following fundamental rights: right to liberty
and security (Article 6 of the Charter), the protection of personal data (Article 8 of the
Charter), the right to non-discrimination (Article 21 of the Charter), and the right to an
effective remedy (Article 47 of the Charter).
As mentioned by FRA in its report on interoperability
124
: "Receiving the full picture about
a person contributes to better decision-making. To this end, safeguards need to be in place
to ensure the quality of the information stored about the person and the purpose of the data
processing. Such safeguards should prevent unauthorised access and unlawful sharing of
information with third parties. To ensure the right to an effective remedy, practical
possibilities to rebut a false assumption by the authorities and to have inaccurate data
corrected need to be in place." At the same time, this measure guarantees non-
discriminatory checks for all short stay visa applicants, irrespective of the Member State
with which they are applying
–
which is currently not the case. The VIS Regulation already
contains guarantees ensuring information for the person who submitted an application and
effective remedies (as explained in section 5.1 in the baseline description).
The proposed measure aims at enhancing security and irregular migration checks, hence
contributing to the legitimate public interest of ensuring a high level of security. As such, it
can contribute to the protection
of people’s right to life (Article 2 of the Charter). A better
and more accurate identification of the security risk posed by TCN applying for a visa
allowing them to cross the external border and move freely within the Schengen area
facilitates the identification of persons whose presence in the Schengen area would pose a
security threat. This way the proposed measure would contribute to improving the security
of the citizens present in the Schengen area and enhancing internal security in the EU.
The proposed checks against a number of migration and security databases do not entail
collecting new data from the applicants, however they entail new processing, by checking
their bio-data, in particular biometrics, against a number of large-scale databases which
were previously not part of the compulsory checks in the visa procedure. However, these
checks are currently either already done by national authorities (SIS, Eurodac, SLTD,
124
Fundamental rights and the interoperability of EU information systems: borders and security,
Report by the EU
Agency for Fundamental Rights.
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TDAWN) within the consulates (at an uneven or ad-hoc basis) or at borders (compulsory),
or will become compulsory checks in the future (ETIAS). The only new system that will be
checked against is ECRIS-TCN, which is however included as a compulsory check for
ETIAS applicants.
Given the purpose of the visa examination procedure which entails an assessment of the
security and migratory risk of the visa applicant, and that all the above mentioned
databases respond to this purpose, the processing against databases will be limited to what
is necessary to attain the objective of ensuring a high level of security of the visa
processing. The checks will be carried out with a limited sub-set of biographical data
together with fingerprints, thus limiting significantly the possibility of false matches.
Moreover, the searches will be foreseen so as to return an informative result to the visa
processing authority. They will not trigger an automatic refusal of the visa and cannot,
taken alone, constitute a reason for refusal.
The search results will not be stored, therefore no possible breach of its integrity or of the
confidentiality of the data subject could take place. The measure is also subject to the
purpose limitation principle, as the data that will be used for these checks will not be
further processed in a manner that is incompatible with the stated purposes. The envisaged
data processing is therefore adequate, relevant and not excessive in relation to the purposes
defined. Finally, all existing VIS safeguards regarding the right of the data subject,
including the right to access, deletion and the effective remedy will apply to this procedure
as well.
As regards the screening rules, they are devised on the exact same conditions as those
applied in ETIAS to visa free TCN. They do not entail processing of personal data, only a
check against a number of statistical indicators, based on a model customarily used in
migratory and risk assessments (e.g. Frontex annual risk assessment). Specific safeguards
ensuring that the right to non-discrimination
based on a person’s race, colour, ethnic or
social origin, genetic features, language, political or any other opinions, religion or
philosophical belief, trade union membership, membership of a national minority,
property, birth, disability, or sexual orientation will be expressly provided. To ensure the
supervision of the set up and application of the screening rules and in particular of the non-
discrimination principle, the specific risk indicators on the basis of which the screening
rules will be developed, will be defined, established, assessed ex ante, implemented,
evaluated ex post, revised and deleted based on the appraisal and recommendations of the
Fundamental Rights Guidance Board established by the ETIAS Regulation, and which is
composed of
the
Fundamental Rights Officer of the European Border and Coast Guard
Agency, a representative of the consultative forum on fundamental rights of the European
Border and Coast Guard Agency, a representative of the EDPS, a representative of the
European Data Protection Board and a representative of the Fundamental Rights Agency.
In terms of proportionality, limitations to privacy and data protection brought about by
options 4.1 and 4.2 (which is similar to 4.1 in terms of data protection impact, as the
screening mechanism does not entail processing personal data) preserve the essence of the
rights.
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7. H
OW DO THE OPTIONS COMPARE
?
The options for all four problems analysed will be scored for their effectiveness in meeting
the objectives; the efficiency (the result of striking a balance between costs and benefits);
their social impact and impact on fundamental rights
–
given the fact that the measures
involve a trade-off between fundamental rights impacts and gains in other terms (i.e.
security); and lastly for their coherence with overarching EU policies.
7.1.
Copy of the travel document
Efficiency and effectiveness
Both Option 1.1 (centralised storage of travel document copy) and Option 1.2
(decentralised storage), as well as their sub-options, can contribute to the identified
objectives of general interest, though Option 1.1 performs moderately better and in a far
more cost-efficient manner than Option 1.2. This is reflected in the scoring for cost
efficiency and effectiveness in meeting the objectives, in Table 11 below.
Beyond improvements that would be achieved by sub-option A
–
which would already be
sufficient for the identified purposes of facilitating return procedures, sub-option B would
translate into an improvement when it comes to proving the travel history, which is
important for VIS's ancillary purposes in return and asylum procedures.
Social impacts and fundamental rights
The analysis of impacts fundamental rights (section 6.1.1.) showed that the all proposed
options would have a positive effect on asylum procedures (to identify persons in need of
international protection).
In terms of negative effects on fundamental rights, storing a copy of the travel document
would entail further processing of personal data. These considerations are also reflected in
the scoring for fundamental rights in the Table 11 below.
Necessity and proportionality
For options 1.1, Option 1.2 and Sub-option A the measure would be demonstrably suitable
with respect to achieving its purpose, therefore both options satisfy the proportionality test.
The travel document data page is precisely what is required by third country authorities as
proof of nationality in the absence of a valid travel document.
While both options will achieve the same level of effectiveness in fulfilling the objectives,
Option 1.1 achieves a higher level of efficiency (timeliness, cost-efficiency and security).
Furthermore, Option 1.2 (decentralised storage) cannot necessarily be considered as less
intrusive given that the same information would ultimately be made available to the
designated return authorities in all Member States. No matter which technical architecture
is selected, the measure is intended to enable a Member State’s authority to access data
stored by (an)other Member State during the visa procedure.
As to the proportionality of the sub-options, the scope of personal data to be stored under
sub-option A is both relevant and necessary for the stated purposes of facilitating returns.
The intrusiveness of the proposed sub-option is in itself very modest, as the same data are
already entered in VIS in the current situation, albeit in a different format.
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As regards sub-option A, assuring that appropriate safeguards prevent against the
processing of these new data, the interference on the right to privacy and the protection of
personal data would not be greater than the current VIS system, for which no complaint on
data protection has been registered to date
125
, and adequate safeguards have been put in
place. By contrast, the data implied by sub-option B is more intrusive and it would not
substantially contribute to the explicit objective of the measure, which is to facilitate the
return of TCNs without a valid travel document. Since sub-option B is more intrusive and
no more effective for achieving the identified objectives it could be concluded that the
processing of these data is considered disproportionate
if it were to be stored centrally.
Therefore, the necessity and proportionality of a measure involving storage
–
either
at central level (Option 1.1) or decentral level (Option 1.2)
–
of a digital copy of the
data page of the visa applicants’ travel document in the VIS system would be
justified.
Coherence
All proposed options and sub-options are coherent with other EU policies also in particular
the return policy, as well as the asylum policy. They are also fully coherent with the visa
policy and the proposal amending the Visa Code.
126
Table 11: Overall comparison of policy options (1)
Option
Coherence
Effectiveness in
meeting the
objectives
Social impacts
and
fundamental
rights
Efficiency
(economic costs
and benefits
1.0
1.1
Baseline
Digital copy of the
travel document in the
central VIS
Biographical page only
0
0
0
0
A
++
+++
++
+++
-/+
--/+
++
-
B
All used pages
Digital copy of the
travel document in
national systems
Biographical page only
All used pages
1.2
A
B
+
++
+
++
-/+
---/+
+
-
7.2.
Fingerprinting of minors
Efficiency and effectiveness
As stated when describing the impacts in the section 6.1.2, lowering the fingerprinting age
of children in VIS meets the objectives, which is why both option 2.1 and 2.2 are
125 See COM(2016) 655 final, page 12.
126 COM(2018)252, Return of migrants is analysed here as a part of visa policy.
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considered to be effective. Option 2.1 is more effective because research shows that the
fingerprints of children
under
the age of 6 are not as reliable as fingerprints of the children
above the age of 6. This scientific finding, coupled with the fact that there is a relatively
low number of children affected by abuse of rights phenomena (including trafficking) in
this age group (i.e. meaning below the age of 11 years, taking into account the maximum
period of validity of a granted visa), means that the option 2.2. is less effective in meeting
the objectives, which is reflected in the score for effectiveness in Table 12 below.
From the description of the costs/benefits in section 6.1.2, results that option 2.1 (lowering
fingerprinting age to 6) involves much less economic costs than option 2.2 (including all
ages), which is fully reflected in the rating of efficiency in the Table 12 below.
Social impacts and fundamental rights
The analysis of fundamental rights impacts (section 6.1.2) showed that the measure
includes a trade-off between positive and negative impacts: it would have a positive impact
for the protection of the fundamental rights of children, protecting them against human
trafficking or protecting the right to family life by reuniting trafficked children with their
family members. However, storing such sensitive personal data of a vulnerable age-group
would naturally also entail negative impacts, as was duly stated in the analysis. However it
was considered that the positive impacts outweigh the negative ones. The rating of the
fundamental rights in Table 12 reflects these considerations.
Necessity and proportionality
From a data protection point of view, both options are found to be appropriate, strictly
necessary and not excessive for the objective of border checks, by providing the only
means available to allow an unambiguous identification of the child at the border or within
the territory, both to prevent trafficking but also allowing to identify and return to the
family children that had gone missing or were found victims of trafficking.
Option 2.1
–
Taking into account the immense positive impact for protecting the right to
family life and best interests of the child, this option can be considered a proportional
measure under specified purposes and given the strict conditions and safeguards existing
on data protection ensuring that the fingerprints are only accessed under the visa and
border procedures provided by law and otherwise only used to protect children from
trafficking or identify and protect trafficked children and missing children.
Option 2.2
–
Since all children are entitled to protection, this option would have a positive
impact with regards to the protection of all TCN children under 6 having applied for a visa.
However, there are several limitations: the number of potentially affected (i.e. trafficked)
children appears to be relatively low, for this age group there is less reliability of the
fingerprints taken and there would be significantly higher practical hurdles in carrying out
fingerprinting in a child-friendly and adequate manner for very young children. This
hampers the overall effectiveness of the measure: the effectiveness of the measure for all
children from 0 to 12 years is lower than for children between 6 and 12 alone. In
conclusion, whereas taking fingerprints of children below the age of 6 would still meet the
policy objective to a certain degree, it appears to be less proportionate in view of the
technical limitations it entails, as well as the relatively low number of children targeted in
this age group.
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In light of these considerations, the data collected under option 2.1 is relevant and needed
to contribute to the first objective of improving the implementation of the common visa
policy, whereas the option 2.2 does not reach this threshold.
Coherence
Both proposed options are coherent with other EU policies
–
namely the visa policy, and
also respect for the principle of primary consideration of the best interests of the child,
which should be taken into account in all EU action. Additionally, option 2.1 presents full
coherence with the recent Eurodac proposal which provides for lowering the fingerprinting
age for children in asylum procedure or found in irregular migration process from the
(current) 14 years of age to 6 years. Taken together, the data registered in the VIS
(covering children arriving on EU territory as part of a regular migration process) and
Eurodac (covering children arriving with irregular flows or seeking asylum) cover to a
very large extent the spectrum of third country national children arriving on EU territory
and that could be identified in case they are found as victims of trafficking or other forms
of abuse or who had been reposted as missing. To complement this framework, the SIS
that contains alerts on missing persons (including children) could be fed with identity
information, including biometrics, from the VIS, to support the search operations, in case
the child that had gone missing is a TCN under visa obligation.
Table 12: Overall comparison of policy options (2)
Effectiveness in
Option
Coherence
meeting the
objectives
2.0 Baseline
0
0
2.1
Lowering the
fingerprinting age
to 6 years
Lowering the
fingerprinting age
all ages
Social impacts
and fundamental
rights
Efficiency
(economic costs
and benefits
0
++/-
++/-
0
++
--
+++
+
++
+/0
2.2
7.3.
Long-stay visas and residence documents
Efficiency and effectiveness
Effectiveness:
Ultimately, sub-option 3.4.b (Integrate in the VIS) is the only option that
fully addresses the second objective (i.e. information exchange), as storing data on
documents and applications would offer migration authorities a complete picture on the
situation of the TCN applying for a new document. It would be effective regarding false
documents, including forged documents, as in these cases the information in the database
would differ from the information in the document presented to the border guard. And
would be effective regarding letting migration authorities know of security issues
encountered by other Member States with previous applications or use of the document by
the TCN.
Concerning Option 3.3 (the distributed database), it would allow improving security within
the EU and provide border guards and officers carrying checks within the territory access
to a “white list” of valid documents. However, its complexity and difficulty of
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implementation, together with the difficulties in delivering high performance searches with
such setup, would reduce its effectiveness in addressing the policy objectives.
While taking into account the upcoming Commission proposal to further harmonise the
format of the residence cards, the Option 3.2 (further harmonisation of the format) would
meet the general and the specific objectives related to checks at external border as it will
make it more difficult to forge or counterfeit the document - and thus improve security
within the EU. This option would also make it easier for border guards to recognise valid
residence document. However it does not meet the specific objective of exchanging
information between Member States on third-country national holders of, or applying for,
long-stay and residence documents, and cannot fully address the problem at borders
either.
127
These considerations are reflected in the scoring of options for effectiveness in
Table 13 below.
Efficiency
:
Option 3.2
–
Further document harmonisation scores positively for efficiency in
securing borders128, albeit limited to the documents that are subject to harmonisation and
contain security features. However, for this option it must be emphasized that the objective
of facilitating the exchange of information for enhancing the security of the Schengen area
is not met (which is reflected in the score given to this option for effectiveness).
Option 3.3
–
creating a decentralised database
–
will be complex and overly costly to
implement, due to major difficulties deriving from the different governance, legal basis,
languages and technical solutions used across national systems. These difficulties could
delay implementation by several years. Moreover, it would not leverage on the existing
infrastructure of the VIS.
Option 3.4
–
(either sub-option a/b) offers significant advantages and a much better cost-
benefit. In particular, only this option would allow ''triangular verification'' (person <=>
document <=> system), which has proven to be a successful approach for the efficient
tackling of unlawful use of documents through the correct assessment of (i) their validity
and authenticity and of (ii) the identity of the holder. It provides a higher level of security
than reinforcing the security of documents, as it cannot be affected by material damage
(e.g. broken chip in a residence document) or loss of the document. This approach also
allows accurate identification (in particular if biometrics are stored in the central database
–
as explained in section 6.1.3 in the consideration on biometrics) in a less cumbersome
manner than using fingerprints stored in the chip. Overall, this option would have
a positive societal impact both on EU citizens who would benefit of the additional security
of the Schengen Area, and on TCNs who would benefit of an automated and potentially
faster border crossing. Furthermore, this option is supported by the public consultation:
a majority of the respondents who consider that an EU solution should be given to address
the identified information gap would also support a repository of long stay visas and
127 As described by Frontex: by making documents secure, fraudsters start targeting the previous steps i.e. breeder
documents.
128 Based on the assessment included in the IA of the DG JUST proposal.
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residence documents as part of the already existing Visa Information System, while
respecting the principle of separation of data and access rights by the various authorities
129
.
Table 13: Overall comparison of policy options (3)
Option
3.0
3.2
3.3
3.4.a
Baseline
Further format
harmonisation
Distributed database
Coherence
Effectiveness in
Social impact
meeting the
and fundamental
objectives
rights
Efficiency
(economic costs
and benefits)
0
++
+
+++
+++
0
+/-
+
++
+++
0
0/-
+/---
+/--
++/---
0
+
--
++
++
Extend the VIS with
documents data
Extend the VIS with
3.4.b documents and
application data
130
Additional benefits of VIS stem from the fact that it is already used and well known by
Member States
131
and it serves similar business processes. As part of the new
interoperability platform, the inclusion of data in the VIS opens the possibility for
detection of multiple identities of TCN applying for one of these documents, and to police
identity checks within the territory. With this option, MS would be able to benefit of its
search services offered centrally, in a proven, controlled and highly performing manner. It
would maximise the re-use of existing infrastructure, including benefitting from ancillary
services such as logging, reporting, data quality, statistic extractions, access control etc.
For border checks:
The central system would be consulted by border guards to verify the
documents arriving at the borders against a centralised system and the travel document of
the holder (triangular verification). It would simplify the administrative burden, by
enabling fast, electronic checks via the central system. It would also reduce the need of
bilateral exchanges triggered by doubts on the documents. It would also help efficiently
implement the future Carrier Gateway of EES and ETIAS
–
in the absence of these
documents in the system, the gateway would give a false negative as a short stay visa or an
ETIAS travel authorisation would not be found for that traveller, thus generating confusion
for the carriers, adding to the administrative burden of procedure and potential negative
consequences for the TCN that would then have the burden of proof that they do not
require them.
For migration and security assessment:
By centralising information, this option would
mitigate the information gap and support the cooperation among MS during the assessment
of new applications, by enabling them to perform upstream checks on the applicant, in
129 Open public consultation feedback (see Annex 2).
130 "application data" refers to whether a person has applied for a document and what was the outcome of the
application process.
131 As regards the particular case of residence cards, which give a right of free movement not only within the Schengen
area but in all MS, additional access to the VIS will need to be provided, for the purpose of storing the cards and
checking those issued by other MS, also to Bulgarian, Croatia, Cyprus, Ireland, Romania and the UK (to be noted
that Bulgaria, Croatia and Romania have already built the national VIS in the preparations to become part of the
Schengen area, although they do not have legally the right to access the system for the purpose of processing short-
stay visas until a Council Decision on lifting the internal border controls with these countries is taken. Hence, new
access to VIS repository on cards would be limited to Ireland and Cyprus.
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particular to assess irregular migration and security risks e.g. by accessing information on
previous applications in other Member States, the use made of previously issued
documents, or to use VIS's interoperability to other databases to perform basic security
checks and detect identity fraud. Additionally, the information on long-stay and residence
document holders could support the examination of asylum applications and determining
the MS responsible for such applications (similarly to what is already done for short-stay
visas in the VIS
132
). Furthermore, the stakeholders' consultation confirmed the need for
developing a shared EU repository that would contribute to reducing identity and
document fraud, combatting irregular migration, and preventing, detecting and
investigating terrorist offences and other serious criminal offences
133
.
Social impact and fundamental rights
In terms of social impacts and fundamental rights there is a trade-off between increased
security for the society and impact on fundamental rights (namely through processing of
personal data): by helping to increase security of the EU through information-exchange,
the options which meet the objective of information exchange (options 3.3, 3.4.a and 3.4.b)
also score high for their social impacts, whereas option 3.2 and the baseline 3.0 do not
meet the security objective, so they score much less in terms of benefits on social impacts.
As analysed in greater detail in section 6.1.3 under impacts on fundamental rights, the
options which include putting personal data in a repository (3.3., 3.4.a/b) will have an
impact on fundamental rights. However, already existing and proposed safeguards will
minimise these impacts, as is explained in more detail in the next section on the necessity
and proportionality of the options. These considerations are reflected in the scores in
Table 13. It is important to note that option 3.4.b (centralised repository, with data on
applications) scores best in terms of trading off positive social impacts and impacts on
fundamental rights (on the other hand, option 3.2 of document harmonisation entails less
impacts on fundamental rights, but positive social impacts are all minimized as well).
Necessity and proportionality
In an area without internal borders, no Member State alone is able to cope with irregular
immigration and to cover for the risks to the security of this area, including international
terrorism and serious crime. A person may enter the Schengen area using a document
issued under national competence by one Member State and circulate freely to the territory
of the other Member States. A comprehensive verification of the compliance with EU rules
on crossing external borders therefore cannot be ensured by Member States acting alone.
While Member States will retain fully their current competence in issuing long stay visas
and residence documents in accordance with national legislation and applicable EU law, in
particular data protection rules, storing data on these documents in the VIS would allow
Member State authorities to access data on third-country nationals who cross the EU
external border with a document issued by another Member State in an easy, safe, secure
and streamlined manner, as well as use the data stored on previous applications to take
informed decisions on whether the person could be a threat to the security of the Schengen
area or an identity or document fraudster.
132 Articles 21 and 22 of Regulation (EC) No 767/2008.
133 Open public consultation feedback (see Annex 2).
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By reusing the VIS technical setup and infrastructure, the investments necessary are kept to
a minimum and will only entail connections between the national systems and the VIS. As
regards the former, the national visa systems are already fully interconnected to the VIS,
for the issuance of short stay visas. Therefore, only connection of national systems will
only be necessary in those cases and for those Member States that have separate national
systems for managing residence documents. Therefore the preferred option is also
proportionate in terms of costs, taking into account the benefits the system will provide to
all Member States in managing the common external border and protecting the area
without internal borders.
As regards fundamental rights, including the protection of personal data, the preferred
option based on a VIS solution, whose concept is driven by the
privacy by design,
is
proportionate in terms of the right to protection of personal data in that it does not require
the collection and storage of more data and for a longer period than is currently the case for
the same categories of affected TCN in similar processes
–
short stay visas, ETIAS, EES
–
and absolutely necessary to allow the system to function and meet its objectives, including
what a border guard currently sees when checking a long-term visa, residence card or
permit presented at the border. Only personal data that is adequate and relevant for the
purposes of the processing would be collected and processed
134.
Similar to what happens today with all existing EU information systems, the rights of the
TCN applying for these documents are affected to a limited extent
135
. These limitations are
necessary to achieve the general and specific objectives described in section 4 and so are
necessary and proportionate. They will however be accompanied by all the safeguards and
mechanisms required for the effective protection of the fundamental rights of TCN
concerned, in particular the protection of their private life and personal data will be
foreseen and implemented.
Thus, the limitation is justified as the advantages outweigh the disadvantages caused with
respect to the exercise of fundamental rights; therefore, the limitation is deemed
proportionate.
Coherence
All options (except the discarded status quo baseline 3.0) are coherent with the overarching
objectives of EU policies at least to some extent. Option 3.2 on further harmonising the
residence documents is fully coherent with existing and upcoming developments in the
area of harmonising documents and securing them
136
. Option 3.3 on the decentralised
database is coherent with the general efforts to increase the cooperation between national
administrations. Option 3.4 is fully coherent with the EU policy on the gradual
introduction of an integrated management system for external borders and on the checks to
which persons crossing external borders are subject. Moreover, this option is also coherent
134 Biographical and document data would be used to compare with the data of the presented document and to detect
forged, counterfeited and stolen blank documents. Decision data would be used by migration authorities to inform
their decisions during the application process. Data generated by the repository would be used to structure the
database.
135 The CJEU established the criteria for justification of such interference in the context of Regulation 2252/2004 in
Case C-291/12 Schwarz v Stadt Bochum, ECLI:EU:C:2013:670.
136
COM(2018) 212 final, 17 April 2018.
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with the EU policies in the field and return and asylum, respectively. This is reflected in
scoring in the Table 13.
7.4.
Migration and security checks
Efficiency and effectiveness
Both proposed options meet the objectives of conducting robust migration/security
assessment, whereas the baseline scenario does not guarantee that this objective is
uniformly met (as analysed in section 6.1.4). These considerations are reflected in the
scoring for effectiveness in Table 14 below. Both proposed options are building upon the
costs undertaken for the interoperability proposal (as mentioned in section 6.1.4), which is
reflected in their score for cost efficiency in Table 14.
Social impact and fundamental rights
In terms of social impacts and fundamental rights there is a trade-off between increased
security (due to more thorough security assessments of TCN) and negative impacts on
fundamental rights of the TCN (since their personal data would be subject to new types of
processing). Achieving the goal of increased security prevails in this case, since all
appropriate safeguards will in place to limit the negative impacts on fundamental rights (as
explained in the description of the baseline scenario and further developed below in the
section on necessity and proportionality). These considerations are reflected in the score
for social impacts and fundamental rights in the Table 14.
Necessity and proportionality
The assessment of whether additional systems should be queried during the assessment of
a visa application and whether such searches are proportionate and necessary as part of
migration and security risk assessment reveals that the measure is needed to properly
assess migratory risk and fraud and to ensure a level playing field across Member States. It
is not a disproportionate measure since at least the same amount of checks would need to
be carried out on visa applicants as would be done for visa free travellers under ETIAS and
very similar to the systematic checks upon entry and exit to which
every
EU citizen is
currently subject.
The VIS will be interoperable with other police, judicial and immigration systems in order
to cross-check information contained in VIS against information recorded in these systems.
From a data-protection point of view, it can be noted that cross-checking data available in
the VIS with all information contained in other systems may not be relevant for the VIS
purposes. Therefore as an additional safeguard, provisions will be added to the VIS
Regulation defining precisely with which set of limited data a search will be launched
against other systems, and include biometrics in order to obtain the most accurate answer
and avoid false positives. The Visa Code provisions in this respect will define precisely
which information in other systems is relevant to the purposes of these checks and
therefore which types of data will have to be returned by the checks, in order to strictly
limit the cross-check of VIS data with this information. The existing safeguards in the VIS
Regulation and the Visa Code in respect of data processing, fundamental rights and
purpose limitation will apply (i.e. the information obtained will be strictly used for the
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purpose of checking whether the conditions of entry as set out in Article 21(3) of the Visa
Code, while refusal of a visa must strictly correspond to one of the grounds laid down in
Article 32 Visa Code).
Coherence
The proposed options 4.1 and 4.2 are using synergies created by the interoperability logic;
therefore it is fully coherent with other EU existing legislation and proposals in the area of
border management. A similar mechanism has been proposed
137
to support the processing
of the ETIAS authorisation for visa-free TCN. The introduction of the automated checks
and screening rules for TCN subject to a visa obligation would therefore ensure that at
least the same level of checks done for visa free TCN and thus ensure coherence between
the regime applicable to the two categories of TCN by EU policies.
By enabling authorities to have readily available and streamlined security and migration
information on the applicant during the examination procedure, the mechanism of
automated checks accompanied by screening rules enables the detection of any irregular
migration or security risk early on in the process and thus contributes to the prevention of
irregular migration and security risks on EU territory and is thus also coherent with the EU
policies in these areas.
Furthermore, views from stakeholders support the introduction of options 4.1 and 4.2.
During regular Schengen evaluations, Member States and border management authorities
stated they would welcome automatization of the security cross-check against other
applications in order to facilitate the border check procedure while enhancing security;
additionally to this, introducing screening rules in VIS would allow for an advanced risk
assessment
138
.
Table 14: Overall comparison of policy options (4)
Effectiveness in
Option
Coherence
meeting the
objectives
4.0 Baseline
4.1 Automated
cross-checks
4.2 Automated
cross-checks and
screening rules
Social impacts
and fundamental
rights
Efficiency
(economic costs
and benefits
0
++
+++
0
++
+++
0
++/--
++/-
0
+
+
8. P
REFERRED OPTIONS
8.1.
Copy of the travel document
The preferred option to emerge from this study is
Option 1.1.A
–
Centralised storage of a
digital copy of the bio-data
page of the visa applicants’ travel document in the VIS.
The contracted study concluded that sub-option B is more intrusive and no more effective
for achieving the identified objectives and that as a result, the processing of the additional
137 Agreed in trilogues between EP, Council and Commission during March 2018.
138 Schengen Evaluation Report, presented by the Commission in October 2016.
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data (all used passport pages) was considered disproportionate if it were to be stored
centrally.
8.2.
Fingerprinting of minors
The preferred option is
Option 2.1
–
Lowering the fingerprinting age to 6 years.
Option 2.1 (lowering fingerprinting age to 6
–
thus covering visa holders as of 11 years of
age, which is at the start of the age segment, 12 to 17 years of age, which is the most
affected by trafficking and other abuse of rights phenomena) contributes to the policy
objectives as identified; it facilitates the protection of these children while traveling with a
visa and after arrival in the Schengen area, while attaining necessity and proportionality
thresholds.
8.3.
Long-stay visas and residence documents
Option 3.4.b
–
Extend the scope of the VIS to include long-stay visas and residence
documents
–
Store also data on all applications
is the preferred option since it satisfies
the criteria of necessity and proportionality, while also meeting the criteria of coherence,
effectiveness and efficiency more than any other alternative. While option 3.2
–
further
harmonisation of residence documents
–
is not the preferred option for this IA, the analysis
carried out recognises its significant contribution to the achievement of the specific
objective related to an increased security at borders. Ideally, all documents allowing a TCN
to cross the external border, stay and/or reside in the territory of the Member States should
be harmonised, to facilitate border checks. Exchanging information on TCN applying an
entry and residence document ensures upstream verification of the person and its bona fide
intentions, while harmonisation of the issued documents ensures downstream proper
verification at the border or within the territory. Therefore, important synergies exist
between these two options, taking into account in particular the Commission legislative
initiative to harmonise and secure the residence cards, which would advance significantly
the further harmonisation of documents and thus further contribute to the objective of an
increased security at borders.
Through facilitating the systematic and better exchange of information among Member
States on TCNs holding or applying for long stay visas and residence documents, the
second specific objective would result in
enhancing the internal security of the
Schengen area,
thus closing the identified information gap. When records of long-stay or
residence documents are placed in a central system and accessible to all relevant Member
State authorities, each Member State would be able to make a more precise and impartial
assessment of the security risk, based on the records found in the system while checking
TCNs at the border crossing points or assessing the application.
139
The second specific objective also presents a dimension of
support to fraud detection
linked to obtaining authentic documents on the basis of false breeder documents,
140
as
better information exchange between Member States could help identify these cases and
118 As regards residence cards, it must be noted that application data will not be stored, as the sole requirement for
issuing this document is a proof of a family link with a mobile EU citizen.
119 E.g. birth, marriage and death certificates.
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pass the information to all Member States. Currently if a person tries to apply to a long-
stay visa or residence document in one MS with falsified application documents, there is
no systematic ways for other MS to know about the situation of this TCN.
In addition, facilitating the better and systematic exchange of information among MS
would also minimize administrative burden and overcome the language barrier when
contacting another MS to verify authenticity of the TCN’s document..
8.4.
Migration and security
The preferred
Option is 4.2
–
Automated cross-checks + screening rules
.
This option meets
the objectives by allowing for proper migratory and security checks for TCN to be
conducted uniformly across the EU. Furthermore, the option puts the recently proposed
interoperability initiative to practical use, by making interoperable IT-systems work
together. The selected option is necessary and proportionate to meet the objectives, since
the trade-off between negative impacts on fundamental rights and the gains in terms of
improved security is offset by tight safeguards (already existing and newly developed as
part of the proposed option).
8.5.
REFIT (simplification and improved efficiency)
The 2016 REFIT evaluation of the Visa Information System (VIS) looked into the legal
framework of the VIS and examined whether this instrument is fit for purpose, delivers on
its objectives at reasonable cost, is relevant, coherent and has EU added value. The
evaluation shows that the VIS was effective in meeting its objectives.
The evaluation concluded that the
VIS meets its objectives and functions well.
The VIS’s
benefits were found to outweigh its costs, and the system remains relevant and continues to
have EU added value. No specific problems of regulatory changes were identified, or
administrative burden that needs to be cut. The Report recommended that the
VIS be
maintained and further developed
to respond to the new challenges in visa, border and
migration policy.
The measures proposed by the Commission under the present initiative entail both
measures addressing the problems identified in the evaluation, as well as new initiatives,
that extend the scope of the VIS beyond its current application (see notably topics 1 and 3
addressed under the present IA).
As regards the costs and benefits provided by the measures analysed by the current IA,
they are presented in the tables in section 2 of annex 3. As regards the benefits, for a vast
number of areas impacted, these are non-quantifiable by nature and so figures could not be
provided.
As regards the costs for additional technical measures which will be dealt with by the
proposal but which were not identified with a major economic, social or fundamental rights
impact (and are thus not analysed by this IA), an estimate of the costs entailed for the
central system to operate the proposed modifications was made by eu-LISA in its 2017
"study on VIS developments" and are presented in the tables in Annex 4.
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9. H
OW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED
?
The Commission will ensure that systems are in place to monitor the functioning of the
VIS and evaluate its main policy objectives. Four years after the start of the application of
the revised VIS Regulation and every four years after, the Commission will submit a report
to the European Parliament and to the Council. The report will present an overall
evaluation of the functioning of the system, including its direct and indirect impacts and
practical implementation on fundamental rights. It should examine results achieved against
objectives, assess the progress with respect to the four main problem areas, and assess the
continuing validity of the underlying rationale and any implications for future options.
The table in Annex 6 provides a list of operational objectives, its detailed performance
indicators, sources and methods for data collection. The monitoring will be facilitated
through three main channels. The proposal is introducing a central repository of data for
the purposes of reporting and statistics which will allow for collecting data without causing
an additional administrative burden. The monitoring indicators are essentially expected to
be collected on an ongoing basis by the systems or technical components themselves. This
will provide precise data on detected use of fraudulent documents, system security checks
and successful hits, and identification for the purpose of a return/readmission procedure.
Secondly, Member States and Europol will prepare annual reports on the effectiveness of
access to VIS data for law enforcement purposes containing information and statistics on
the consultation including the type of terrorist or serious criminal offence, the number of
requests for access to the VIS and cases which have ended in successful identification,
including child TCN. In addition to this, consultations with stakeholders, such as
FRONTEX and Member States' visa-issuing authorities, will compliment monitoring
activities at the EU level and provide the Commission with their input on the impact of the
proposed policy measures.
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ANNEX 1: P
ROCEDURAL INFORMATION
1.
Lead DG, Decide Planning/CWP
references
The lead DG is Directorate-General for Migration and Home Affairs (DG HOME). The
Decide Planning reference is 2017/HOME/208. The initiative is mentioned in the
Commission Work Programme for 2017
–
COM(2016) 710 final, Annex 2, N
o
18. Visa
Information System, and in the Commission Work Programme for 2018
–
COM(2017) 650
final, Annex 1, N
o
20. Delivering on the EU Agenda on Migration.
2.
Organisation and timing
Work to prepare the draft proposal and the impact assessment began in 2017. The
Interservice Steering Group for the impact assessment was composed of the representatives
from JUST, SG and SJ. Several meetings were held between 15 March 2017, and 15
March 2018 to discuss the ToRs, interim and final reports of the individual studies, as well
as the draft COM IA Report, with numerous written consultations in between.
3.
Consultation of the RSB
The draft Impact Assessment was submitted to the Regulatory Scrutiny Board on 16 March
2018. The Board examined the Impact Assessment on 28 March and delivered its opinion
on XXX.
4.
Evidence, sources and quality
This initiative builds on the evaluation of the VIS
141
which analysed its performance as
a system, its implementation in practice and the extent to which it has reached its policy
objectives, including its added value to the common visa policy. On the basis of this
evaluation, the Commission issued recommendations regarding the need for revision or
extension of the VIS functions. Despite the very good performance of the common system
for storing, processing and exchanging visa data, the evaluation demonstrated a need to
further develop the system in order to respond to new challenges in visa, border and
security policies. The evaluation further demonstrated a need for a number
of improvements in particular in relation to monitoring of data quality and production of
statistics.
In order to collect widespread evidence, two open public consultations were launched by
the Commission. The Schengen evaluation and monitoring mechanism consisting of the
on-site visits and questionnaires also provided the Commission with valuable first-hand
evince and the opportunity to carry direct stakeholder consultations right at the borders, the
in-depth knowledge has been exploited wherever possible. Additional specific data,
141 Report from the Commission to the European Parliament and the Council on the implementation of Regulation
(EC) No 767/2008 of the European Parliament and of the Council establishing the Visa Information System (VIS),
the use of fingerprints at external borders and the use of biometrics in the visa application procedure (COM(2016)
655 final).
Evaluation of the implementation of Regulation (EC) No 767/2008 of the European Parliament and Council concerning
the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS
Regulation) (SWD(2016) 328 final); Executive Summary (SWD(2016) 327 final).
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including opinions and testimonies of directly involved stakeholders, were collected in the
scope of studies carried out by external contractors.
A specific study was commissioned in order gather additional data on the necessity,
proportionality and implications of lowering the fingerprinting age of children and of
storing a digital (i.e. scanned) copy of the travel document in the VIS. Findings of the
study on technical feasibility of all possible VIS developments carried out by eu-LISA
during November 2016 and February 2017 were also taken into account. Furthermore,
a Feasibility study on Integrated Border Management (IBM) for persons not recorded in
EES and a study on legal analysis on the necessity and proportionality of extending the
scope of the VIS to include data on long stay visas and residence documents have been
conducted.
The data collection process was designed to meet the information needs; however, several
limitations were encountered in the data collection process, which have implications for
the ensuing analysis. While Member States collect various data on two topics under
investigation, methods and definitions can differ significantly across Member States, thus
making data difficult to compare. Moreover, where collected, the data generally do not
distinguish between cases of TCNs who have entered on a visa and those who have entered
the EU via irregular channels. Also available data often do not distinguish between the
different age categories.
For the quantification of key impacts, a methodology was developed to assess the main
changes that can be expected from the proposed measures relative to a continuation of the
baseline scenario. The quantitative analysis was, however, conducted separately for each
policy area, and therefore the presented quantification does not include considerable cost
reduction aspects, such as economies of scale and potential investment overlaps, which
would finally result from implementing the combination of preferred policy options.
The calculation of costs incurred by the different stakeholders is mostly based on
a simplified estimation model relating to assumptions on the amount of time that might be
reasonably taken to perform the additional activities, which would be required to comply
with the proposed changes. The evidence base underlying these assumptions draws from
the results of the in-depth interviews with
Member States’ competent authorities and
consular staff, in combination with available statistics.
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ANNEX 2: S
TAKEHOLDER CONSULTATION
In preparation of the revision of the Visa Information System legal basis and the
accompanying Impact Assessment, the Commission services conducted directly and
indirectly through its contractors a number of surveys and consultations. The objectives
were to gather and analyse views, experience and suggestions for better practice from the
main stakeholders in order to tackle the identified problem drivers in the most
comprehensive manner. Additionally, findings of the previous studies, documents referring
to one of the four policy aspects covered in this Impact Assessment, related consultations
and Schengen evaluation have been taken into account. The summary of the stakeholder
consultations is presented bellow following the four respective policy aspects.
The European Commission also launched two open public consultations on (1) lowering
the fingerprinting age for children in the visa procedure from 12 years to 6 years and
(2) extending the scope of the Visa Information System to include data on long stay visas
and residence documents for a period of 12 weeks. The consultations were conducted
through an online questionnaire published on the internet in all EU official languages, with
the exception of Gaelic. The results of the open public consultations are summarized
below.
The Inception Impact Assessment was published on the European Commissions' webpage
on 28 March 2017 with the feedback period from 29 March 2017 to 26 April 2017. No
feedback was received.
1.
Stakeholders
In the course of the study on lowering the fingerprinting age for children and on storing
a digital copy of the visa applicants' travel document in VIS
142
, a number of interviews
were conducted with following entities:
EU Agency of Fundamental Rights (FRA)
European Data Protection Supervisor (EDPS)
eu-LISA (and VIS Advisory Working Groups)
Europol
Frontex (EBCG)
Missing Children
The study team also performed field visits to 4 third countries. Interviews were carried out
with consulates of the pre-selected Schengen States. The following four countries were
visited:
The mission to Rabat, Morocco took place from 13
–
15 November, 2017. A total
of 9 interviews were carried out with a combination of MS consulate staff, ESPs
and the EU Delegation.
142 Feasibility and implications of lowering the fingerprinting age for children and on storing a scanned copy of the
visa applicants' travel document in the Visa Information System (VIS).
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The Nigeria mission took place from 26
–
29 November 2017. A total of 6
interviews were carried, including with 4 consulates, one ESP and the EU
Delegation to Abuja.
The mission to Moscow, Russia took place from 4
–
6 December, 2017. A total of 8
interviews were carried out, including 6 with consulate representatives, 1 with
immigration liaison officers and 1 with the EU Delegation.
The mission to Istanbul, Turkey took place from 20
–
23 November, 2017. A total
of 7 interviews were carried out with consulate officials and one ESP.
In addition to the field visits, an intensive interview programme in 8 Schengen Member
States (BE, DE, EL, ES, FR, IT, LT, PL) was conducted in order to gather the necessary
inputs. Consulted stakeholders represented departments responsible for managing National
VIS connection, ESPs (where relevant), migration authorities
143
, consular affairs
departments
144
, border police authorities, return authorities, law enforcement authorities
dealing with terrorism and/or serious crime, National Data Protection Authorities,
Ministry/department of the rights of the child, Anti-trafficking authorities, and
Ombudsperson for Children.
The
results of the stakeholder consultation revealed that Member States’ authorities
overwhelmingly agree that if digital copies of scanned travel documents were
systematically available and accessible to the relevant authorities, it would:
(i)
(ii)
(iii)
greatly reduce the
burden to confirm this category of TCNs’ identity and
facilitate the return process;
reduce delays associated with ad hoc communications and exchange between
Member States’ authorities and the consulates; and
eliminate inefficient procedures involved with retrieving, scanning, zipping and
coding hard copies.
An annual average of 1,100 to 17,445 visa overstayers was detected in the consulted
Member States between 2014 and 2016.
145
As a percentage of visas issued, the 6 Member
States for which data was available indicate a rather consistent average of 2%. Indeed, one
Member State estimates that the number of detected overstayers represents just 40% of all
visa overstayers (i.e. the undetected population). According to stakeholders interviewed,
around 90% of visa overstayers eventually become subject to return proceedings, and it is
estimated that 10% to 20% of these cases involve TCNs without travel documents at the
time of apprehension; and that more than half will not be executed due to Member States’
inability to obtain satisfactory evidence to prove the nationality of the third country
national in question.
According to interviewed Member States’ authorities, the effort involved in confirming the
identity of TCNs who no longer possess a valid travel document, or who fail to produce it
on request, can be significant in the current situation. In such cases, Member States need to
143 Typically: department of Interior Ministry (e.g. DE), Security/Justice (NL) or Work (FR).
144 Typically: department from MFA.
145 MS responses: Belgium, France, Germany, Greece, Lithuania and Poland.
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obtain a digital copy of the visa holders’ travel document that provided the basis for
issuing the visa from the issuing Embassy. Regardless of which route of communication is
utilised, interviews with Member States and Consular officials indicate that the average
response time on the part of the consulates varies and is highly dependent on the workload
at the respective consulate. As a result, return procedures may be delayed by 2 days during
low-seasons, and up to 2 weeks during busier periods. Whereas the proposed policy
options would effectively eliminate this step enabling Member States to directly or
indirectly search in the VIS for the required documents.
Moreover, in the experience of several authorities interviewed, the consulates' and border
authorities' staffs are not immune to making mistakes when it comes to translations. These
problems are multiplied in the event of court proceedings, or if other Member States
require the information. Three Member States indicate that personal data used for a query
does not always return any matches because the TCN received a visa in another Member
State using different personal data. The consultations also revealed further unnecessary
administrative burdens related to the current practice of retrieving, scanning, zipping and
coding hard copies. The workload associated with each request may vary depending on the
number of archived files at the consulate, the accessibility of the files, etc. For example,
one Member State indicated that the paper copies are not destroyed by the diplomatic
representations, but rather continue to pile up, thus adding to an increasingly cumbersome
retrieval process.
As for lowering the fingerprinting age for children, according to the interviewed Member
States' authorities the main benefits of the proposed policy measure reside in
unambiguously identifying these children allowing for:
(i)
(ii)
(iii)
(iv)
family unification of children found unaccompanied with parents, family or
care givers within and outside the Schengen area;
verifying the family relationship between a child and adults presenting
themselves as parents or guardians;
determining which Member State is responsible for examining an application
for international protection under the Dublin Regulation; and
preventing visa fraud or irregular migration involving children.
In the current legislative context it was impossible for interviewed stakeholders to have
readily available data on this phenomenon; however, stakeholders' testimonies did reveal
example cases and suggested potential benefits of the proposed initiative.
A general statement of one Member States' authority summarised the initiative as
following:
“the optimization of identification procedures for children at risk, irrespective
of where they are located, has decisive impact, on the one hand for the protection of
children on the other hand for the prevention of further victimization and ultimately the
consolidation of the sense of security among the public”.
Field visit in Morocco did not allow to obtain conclusive information on the issue of
lowering the age for taking fingerprints. Interviewees in Turkey noted that the proposed
measure would have more impact when fingerprints were taken and checked at Schengen
borders.
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On the contrary, lowering the fingerprinting age of children was unanimously considered a
positive measure by all consulates and interviewees during the field visit in Nigeria, and
apparently would not take much additional effort as it may take one to a few minutes per
child to process the fingerprints. The necessary equipment is already available. It would
not be necessary to create separate booths for this purpose, as experience shows that
children are generally excited to ‘do what the adults do’ and want to give their fingerprints
eagerly.
The interviewees in Russia were not aware of cases of child trafficking, smuggling, or
related trends of TCNs who enter the EU on a Schengen visa, all but one Member State are
in favour of the measure. As one interviewee noted,
the Member States should not be
reluctant to increase the arsenal of tools available for the purposes of protecting children;
thus, various databases, authorities and countries shall be coordinated to be effective.
Example case indicated by two interviewees:
A family of three from the North Caucasus applies for a Schengen visa in a Schengen
Consulate. The family consists of the two parents and their 4 year old child. The family
travels to the EU and, before the Schengen visa expires, the parents return to their country
of origin, yet leave the child with extended family residing in one of the Member States.
The child then applies for asylum / residence as an unaccompanied minor, whose identity
cannot be established via the VIS because fingerprints were not taken (and the parents did
not leave the passport with the family, or they fail to produce it on request). After some
time, once the residency is granted, the parents apply for a family reunification visa and
move to the Schengen Member State to receive permanent resident status. It is expected
that this type of case is an increasing phenomenon, based on the observations of the
interviewees; however none have concrete statistics to back this up.
In the course of feasibility study on including additional documents into the VIS
146
,
stakeholders were consulted via a questionnaire sent to the Member States in May 2017.
The questionnaire was divided into five sections: a general set of questions on the current
situation at external borders, the main added value for the repository and its main uses and
four sets of questions focusing on the documents
analysed (“as-is” situation, national
repository, situation at the borders, data included…). 17 Members States answered to the
survey; additionally, another 21 answers to a European Migration Network survey sent in
April 2017 were also taken into account.
All Member States answered that the repository would be useful/very useful, in particular
for border control purposes.
146 Integrated Border Management (IBM) - Feasibility Study to include in a repository documents for Long-Stay visas,
Residence and Local Border Traffic Permits, Phase: Analysis of Options.
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Table 1: Answers from MS about the possible objectives for the repository
Objectives of the repository
1
1.a
1.b i)
1.b ii)
2
2.a
2.b
3
Facilitate border checks
Authentication of the document
Determining that the TCN is the rightful owner of the
document
Identification of the document’s holder using biometric data
Assess migration risk
Access to the history of
issued/withdrawn documents
valid
and
previously
Importance
147
3.75/4
3.8/4
3.8/4
3.7/4
3.1/4
3.3/4
3.3/4
3.4/4
Access to the history of denied applications
Support investigating a serious and organised crime
Additionally, on the utility to include the different documents in the repository,
the Member States replied the following:
Table 2: Preliminary table summarising the MS questionnaire on the added value of the documents
Documents
Long-stay visas
Residence permits
Residence cards
Local Border Traffic Permit
Average score
148
3.7/4
3.9/4
3.8/4
2/4
One Member State also included an additional objective in the questionnaire:
support to
the decision-making process for asylum authorities.
These authorities could use the
biometric data to check if a TCN applying for asylum is known as a holder of a document
issued by another country. This practice is of common use with the information contained
in the VIS (art. 22 of the VIS Regulation), so reusing the system would allow for this
objective to be met with less implementation complexity.
The questionnaire from January 2018 revealed that all Member States have detected cases
of false/counterfeit/forged long-stay visas, residence permits and residence cards issued by
other Member State; documents and impostors being mostly counterfeit. Visual inspection,
verification of the documents' security features and checks against SIS are the most
common ways to check its authenticity at the border; whereas, only 5 out of 16 Member
States use passive authentication to verify residence permits and only 6 out of 13 residence
cards. When it comes to contacting other MS, the most common tools are National Contact
147 From 1 to 4; 4 being the best score.
148 From 1 to 4; 4 being the best score.
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Points (11/12), emails (11/12), followed by telephone (7/12), SIRENE (6/12); some
Member States noted that they contact the issuing embassy if necessary. Additionally,
some Member States argued that the major obstacles of contacting other MS are the
language barrier and poor reachability between some Member States. The majority of
responding MS (12 out of 15) noted that there is the lack of shared information on the
long-stay visas, residence permits and residence cards that hurdle day-to-day activities; this
is mostly seen for border control checking residence permits and for processing a new
application of long-stay visas and residence permits.
A majority of responding Member States (13 out of 16) answered that an EU legislative
response is needed for the extension of the VIS to long-stay visas, residence permits and
residence cards, two MS noted that that a non-legislative response at EU level would
suffice (better use of existing tools), and one MS abstained. The proposed legislative
option to extend the scope of the VIS to include long-stay visas and residence documents
was rated highest score by the responding Member States.
The Schengen evaluation and monitoring mechanism consisting of the on-site visits and
questionnaires provides the Commission with the first-hand evince on weaknesses of the
Schengen acquis application by Member States and direct stakeholder consultation right at
the borders. One of the main findings of the evaluation presented by the Commission in
October 2016 was the low quality and insufficient scope of data in VIS. Moreover,
verifying authenticity of the TCNs' documents and performing systematic security and risk
checks against other applications and national databases revealed to be an additional
administrative burden; especially concerning the current migration flows and security
situation at the external borders. The Member States and border management authorities
would therefore welcome automatization of the security cross-check against other
applications in order to facilitate the border check procedure while enhancing security;
additionally to this, introducing screening rules in VIS would allow for an advanced risk
assessment.
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2.
Open public consultation
The European Commission launched an open public consultation on lowering the
fingerprinting age for children in the visa procedure from 12 years to 6 years on 17 August
2017 which closed on 9 November 2017 and attracted a total of 25 responses.
15 respondents replied as individuals and 10 in their professional capacity or on behalf of
an organisation.
The respondents didn't agree whether children should be submitted to the same procedures
when applying for a Schengen visa as adults; however, 60% of respondents would support
lowering the fingerprinting age
149
. A majority of respondents consider fingerprinting
children applying for a short stay visa, by helping with their identification, necessary or
useful to address or prevent
–
trafficking, child abduction, children going missing, irregular
migration, visa fraud, and identity fraud. More than a half of respondents would consider
specific or additional protection safeguards in place when collecting, biometric/fingerprint
data of third country national children
150
. Finally, the majority of respondents agree that
technological developments, including on the collection and use of biometrics, could
contribute to and should be used to enhance the protection of children
151
.
Table 3: To what extent do you consider that fingerprinting children applying for a short stay visa, by helping
with their identification, is necessary or useful to address or prevent?
Number of
replies (n=25)
Necessary and
very useful
Useful
Very useful, but
it can be
achieved
Not useful
through other
means
7
5
7
5
7
6
4
4
4
2
5
4
2
4
2
6
3
4
Child
trafficking
Child abduction
Children going
missing
Irregular
migration
Visa fraud
Identity fraud
12
12
12
12
10
11
The open public consultation on extending the scope of the Visa Information System (VIS)
to include data on long stay visas and residence documents was opened from 17 November
2017 to 09 February 2018. The consultation attracted a total of 28 replies out of which 19
149 Open public consultation feedback: 24% as of birth, 36% as of 6, 20% as of 12, 20% as of 18 (n=25).
150 Open public consultation feedback: 52% yes, 36% no, 12% no views (n=25).
151 Open public consultation feedback: 44% fully agree, 36% partly agree, 4% neither, 16% partly disagree (n=25).
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respondents replied as individuals and 9 in their professional capacity or on behalf of an
organisation.
86% of respondents agreed with the identified information gap
152
(i.e.
currently Member
States do not share information on long stay visas and residence documents they issue with
other Member States)
that leads to problems in management of external borders and
irregular migration within the EU. A majority of respondents noted that it is necessary to
share the data contained in long-stay visas, residence permits and residence cards among
Member States authorities in order to allow their verification at the border and within the
territory of the Member States. A shared EU repository is necessary first and foremost to
combat irregular migration according to the most of respondents (92%), followed by better
informing visa and migration authorities for an authorization to enter EU territory by
a third-country national (89%).
Full sharing of information between Member States' authorities in order to enable them to
check their authenticity and validity was selected as the most appropriate mean to address
the gap by 55% of respondents, better cooperation between national authorities by 29%,
and reinforcing security features of the documents by 9%. As for a proper EU tool to
address the identified gap, 52% respondents support a repository of long stay visas and
residence documents as part of the already existing VIS, followed by 35% respondents in
favour of storing long stay visas in the VIS, together with short stay visas and creating
a separate new instrument to store residence documents. Furthermore, the stakeholders
consultation revealed that the public considers a shared EU repository necessary for
reducing identity and document fraud
153
, combatting irregular migration
154
, better
informing visa and migration authorities as to the history of previous documents for an
authorization to enter EU territory by a third-country national
155
, and preventing, detecting
and investigating terrorist offences and other serious criminal offences
156
.
152
Open public consultation feedback: 61% fully agree, 25% agree to an extent, 11% mostly don't agree, 3% don’t
agree at all (n=28).
153 Open public consultation feedback: 75% fully agree, 4% agree to an extent, 7% mostly do not agree, 4% do not
agree at all, 4% do not know (n=28).
154 Open public consultation feedback: 83% fully agree, 9% agree to an extent, 4% mostly do not agree, 4% do not
agree at all (n=23).
155 Open public consultation feedback: 75% fully agree, 11% agree to an extent, 4% do not agree at all, 4% do not
know (n=28).
156 Open public consultation feedback: 61% fully agree, 18% agree to an extent, 7% mostly do not agree, 4% do not
agree at all (n=28).
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ANNEX 3: W
HO IS AFFECTED AND HOW
?
1. Practical implications of the initiative
1.1.
Including a copy of the travel document in the VIS
Who?
Citizens/Consumers
How?
The additional time that would be spent per applicant / application for
scanning the copies may result in longer wait times and fewer appointment
slots per day.
Consulates and ESPs will be required to carry higher workload per
application. The consulates will, however, benefit from the reduced number of
supporting documents assistance requests.
Migration and return authorities will benefit from the reduced workload
associated with contacting the consulates and obtaining the digital copy of the
visa applicants' travel document. As a consequence, the return procedure will
be more cost and time-efficient.
Businesses
1.2.
Administrations
No direct implications.
Lowering the fingerprinting age for children
Who?
Citizens/Consumers
How?
Children will be required to provide fingerprints; additional time needed for
taking the fingerprints might bring negligible additional costs to their parents.
In the current situation, children already need to join their parents at the
consulate or the ESP in order to apply for a visa for them.
Consulates and ESPs will bear additional costs resulting from higher workload
per applications.
Member States' authorities dealing with trafficked/missing children will
benefit from higher efficiency when identifying/verifying TCN
unaccompanied children found in the Schengen area.
Administrations
Businesses
No direct implications.
Change in travel behaviour, and hence impact on businesses in the travel and
tourism industry, is expected to be negligible.
1.3.
Repository of long-stay visas and residence documents
Who?
How?
Third country nationals who are holders of the concerned documents will
benefit from smooth a quick border checks.
Border management and law enforcement authorities will have an access to
data on concerned documents and therefore will be able to verify its
authenticity and status in a time efficient manner.
Citizens/Consumers
Administrations
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Migration and consular authorities will be able to better consult the history of
applicants' documents and/or decisions on applications in other Member
states.
Businesses
1.4.
No direct implications.
Migration and security checks for when processing applications of visa required TCN
Who?
Citizens/Consumers
Administrations
Businesses
How?
Visa applicants will benefit from a faster visa application procedure.
Migration and consular authorities will benefit from automatic checks of other
databases which are currently conducted manually.
No direct implications.
2. Summary of costs and benefits
The tables below summarise the costs and benefits for the preferred option. Given the lack
of available data, the tables have been filled to the extent possible.
I.a Overview of Direct Benefits
–
Preferred options
Description
Amount
Comments
Migration and return authorities will not be
required to contact the consulates when
obtaining copies of travel documents.
Consulates will benefit from the reduced
number of supporting document assistance
requests from migration and return
authorities.
(€ 366 – € 1,462 per consulate)
Combatting identity theft
Not quantifiable due Administration will be provided with an
to the scarcity of data effective tool to verify identity of children.
Not quantifiable due The proposed measure will have a restrictive
to the scarcity of data impact on traffickers coercing children to
travel on a visa not theirs.
Not quantifiable due Authorities dealing with trafficked/missing
to the scarcity of data children will be able to identify/verify TCN
unaccompanied children more effectively.
the
border Not quantifiable due Border management and law enforcement
to the scarcity of data authorities will benefit from facilitated
document checks.
Savings in administrative costs
€ 3,2 m – € 12,7 m
(Migration and return authorities)
Savings in administrative costs
€ 0,7 m – € 2,8 m
(Consulates)
Reduction of child trafficking
Protection of children
Improvement
management
of
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Reduced workload
security screening
related
to Not quantifiable due Consulates and migration authorities will
to the scarcity of data primarily benefit from the automatic checks
against other databases.
I.b Overview of Indirect Benefits
–
Preferred options
Description
Reduced
delays
procedures
in
Amount
return
€ 46,3 m – € 92,6 m
Comments
Reduced delays in return procedure will help
to decrease cost related to pre-removal
detention centres, subsistence and other
relevant costs.
The proposed measures will provide a
reliable means to systematically present
evidence of a TCN visa overstayers’
nationality, thus facilitating the execution of
return decisions.
Executing a higher proportion of
€ 6,7 m – € 32,1 m
return decisions
Family (re)unification
Not quantifiable in A record stored in the VIS might help to
principle
reunite
children
who
are
found
unaccompanied in the Schengen area with
parents, family or care givers.
Verifying the parental/ guardian Not quantifiable in Fingerprints of children in the VIS would
relationship
principle
allow for verifying the claimed relationship
between a child and adults presenting
themselves as parents or guardians.
Facilitating Dublin and asylum Not quantifiable due Taking fingerprints of children might
examination
to the scarcity of data facilitate the application of the Dublin
Regulation, which determines the Member
State responsible for processing an asylum
claim.
Right to move and reside within Not quantifiable in Third country nationals will benefit from
the EU
principle
smooth and quicker border checks.
Facilitated
procedure
visa
application Not quantifiable due Visa applicants and consulates will benefit
to the scarcity of data from more efficient security screening and
thus faster procedure.
Not quantifiable in Societies at large will benefit from higher
principle
security resulting from more effective
protection of external borders.
Higher security
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The quantitative analysis was conducted separately for each policy area. The bellow
presented overview of costs does not therefore take into account considerable cost
reduction aspects, such as economies of scale and potential investment overlaps, which
would finally result from implementing the combination of preferred policy options.
II. Overview of costs
–
Preferred option (thousands EUR)
Citizens/Consumers
Preferred options
Direct costs
1.1.A
Indirect costs
Direct costs
2.1
Indirect costs
Direct costs
3.4.B
Indirect costs
Direct costs
4.2
Indirect costs
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
10,100
–
12,120
-
10,000
-
2,400
–
3,600
-
3,000
-
-
-
-
-
-
-
44.6
–
223
One-off
-
Recurrent
-
Businesses (ESPs)
One-off
6,708
Recurrent
5,250
Administrations
One-off
3,325
–
4,000
-
147.4
Recurrent
375
–
560
-
7.6
–
38
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A
NNEX
4: REFIT
Baseline
records
of
100M
One-time cost
from € 4,030,000.00
to € 4,840,000.00
from € 17,265,000.00
to € 20,715,000.00
from € 5,250,000.00
to € 6,300,000.00
from € 6,090,000.00
to € 7,310,000.00
from € 1,500,000.00
to € 1,800,000.00
from € 3,325,000.00
to € 4,000,000.00
from €
10,100,00.00
to 12,120,000.00
from € 800,000.00
to € 960,000.00
from € 1,390,000.00
to € 1,670,000.00
SV
SW
H
W
0%
Maintenance
for 1 year
from € 320,000.00
to € 480,000.00
from € 1,850,000.00
to € 2,780,000.00
from € 630,000.00
to € 945,000.00
from € 535,000.00
to € 800,000.00
from € 120,000.00
to € 180,000.00
from € 375,000.00
to € 560,000.00
from € 2,400,000.00
to €3,600,000.00
from € 65,000.00
to € 100,000.00
from € 110,000.00
to € 165,000.00
G1
–
Integration of VIS
Mail into VIS
G2
–
Support for facial
image recognition
G3
–
Searching with latent
fingerprints
G4
–
Reporting and
statistics engine
G5
–
Data quality
indicators
G5
–
Central storage of
scanned passports
G5
–
Support for the
national visa
G5
–
Monitoring of service
health and availability
G5
–
Remaining changes
100%
0%
35%
25%
40%
60%
30%
10%
40%
50%
10%
100%
0%
0%
20%
0%
80%
55%
15%
30%
80%
0%
20%
100%
0%
0%
*Table with summary of estimated costs provided in the feasibility study on "VIS Evolutions" of
July 2017 by eu-LISA.
As regards the benefits for implementing these measures, they are non-quantifiable and
summarised in the table below:
Description
Comments
Possibility to store copies of the travel document in the VIS Cutting the high administrative burden for return and
(discussed as
problem 1)
consular authorities in return procedures.
Lowering the age limit for collecting fingerprints of children Lowering the age limit, whilst providing for robust
to 6 years of age (discussed as
problem 2)
fundamental rights safeguards and protection measures,
would enable easier access for child protection authorities to
an age group that is at a high risk of trafficking.
Information on national long-stay visas registered in the VIS Border management and law enforcement authorities will be
(discussed as
problem 3)
able to verify the authenticity and status of these documents
in a more time efficient manner, alleviating the
administrative burden for them.
Migration and consular authorities will be able to better
consult the history of applicants' documents and/or decisions
on applications in other Member states, alleviating the
administrative burden when performing such checks.
Interconnections between the various systems (discussed as Cutting the administrative burden for authorities performing
problem 4)
checks on migration and security risks by using existing
interoperable IT-systems more efficiently.
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Possibility for eu-LISA to use anonymised (alphanumeric Improved performance as a result of testing will benefit all
and) FP for testing purposes (similar to Article 5
Operational
end-users of the system.
management
of Eurodac Proposal
157
)
Extended responsibility of eu-LISA in generating/ publishing
the statistics for each system as well as on data quality
reports, including transfer of statistics reporting obligation on
visas from COM to eu-LISA, by establishing a central data
repository/warehouse.
Change of the VIS back-up system into active/active
Easier access to reliable statistics for all stakeholders
concerned, replacing the current system of manual gathering
and processing of annual statistics by COM and MSs.
Providing MS, COM and EU agencies with more
information for better evidence-based decision making.
Updating the legislative framework: by enhancing the
, Shared backup infrastructure, centralised system continuity business continuity aspect of the system, possible risks for
all stakeholders will be mitigated.
management
Measures improving the data quality
Rules aimed at improving quality would ultimately help all
authorities that are using VIS as end-users, most notably by
reducing the risk of error and not having to resort to
cumbersome manual procedures; costs related to managing
complaints from data owners or paying fines related to data
errors will be reduced.
Integration of VIS Mail into the VIS, also with regards to Reducing the administrative burden by enabling a quick and
necessary messages/notifications
reliable way for MS to get informed through VIS if certain
visas are granted.
Possibility to search in the VIS/BMS with latent (partial) The new functionality would enable a new service (flat FP
fingerprints
search for wanted individuals) leveraging on an already
existing system
–
without impacting current workflows and
without affecting system performance, resulting in a net gain
for end-users.
Obligation for the MS to register the authorities in the VIS Strengthening oversight: Currently, a list of authorities
(Consular posts, central authorities etc.) with access to the having had an access to the VIS in the previous day is
VIS.
generated when such an authority is not registered in the
VIS. By compelling MS to register (undeclared) authorities
the necessary MS oversight on the national authorities
having access to the VIS would be further strengthened,
without creating undue administrative burden.
Establish reliable communication channels between the Providing reliable communication channels between BCP
border crossing point and the visa issuing authorities.
and the visa issuing authorities to swiftly address cases
where doubts exist on the visa data when crossing a border,
thus eliminating the need for ad hoc cumbersome channels
and reducing the administrative burden for the authorities
concerned.
Enforce the obligation for a border guard to report simply and Digital solutions will make the reporting burden as light as
electronically a false match based on fingerprints (false possible, while keeping its effectiveness.
negative authentication, false positive identification)
Extend access to full VIS file to asylum authority to use in Updating the legislative framework in order to provide the
asylum examination
competent authorities with access to the data they need,
which will lead to cuts in administrative costs.
By implementing fingerprint
and
facial image matching in a
single system, rather than two separate systems, the overall
infrastructure footprint (and hence investment) is
Improving the quality of facial images to enable biometric considerably lower since computing resources for face and
matching
fingerprint recognition are shared. Multimodal identification
will increase overall system accuracy, thus presenting a net
Multi-modal searches with biometrics
157 COM(2016) 272 final
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benefit for end-users.
Facial image recognition (searches) for law enforcement By updating rules for access by law enforcement authorities
authorities.
to VIS data, with substantial safeguards, a contribution is
made to efficient investigations in Member States.
Prior consultations carried out on persons holding more than Updating the legislation to respond to practical needs of
one current nationalities
consular authorities.
Improvement of alphanumeric search for the different end Introducing flexible search profiles matching the
users
requirements of the different user groups (consulates, border
control, law enforcement agencies) will make it easier for
them to use the system, resulting in saved time and more
efficient use.
Integration in the VIS of the list of recognized travel Cutting the administrative burden for the border control
documents
authorities by providing an easier-to-use and up-to-date way
to check recognized travel documents. Cutting the
administrative burden for the Commission services
–
currently in charge to keeping the lists up to date.
Interoperability with EURODAC to allow checks by Cutting the administrative burden for authorities performing
consulates during the visa application process
checks on migration and security risks by stipulating
interoperability rules with existing IT-systems.
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A
NNEX
5: M
ETHODOLOGY
1. Available data
A general caveat has to be stated regarding data collection. Both studies reported
difficulties in finding reliable data because of scarcity of readily available data. Most
notably, the number of TCN children that accessed the EU territory with a visa and who
subsequently became victims of trafficking or other forms of abuse cannot be quantified
precisely. Similarly, there are no figures currently available and no processed to collect
that on third country nationals that accessed the EU territory legally and who subsequently
became irregular. This is why extrapolations and assumptions were used when complete
data was not at hand, as duly noted in the supporting studies and in this report.
The following assumptions were used calculating the costs of the policy options.
Storing a copy of the travel document
Additional servers:
o
Option 1
–
Number of entries within the 10 year period would
approximately double; estimate based on the Smart Border study
158
;
o
Option 2
–
Estimates based on interview feedback with relevant
stakeholders
159
;
Additional VIS storage
–
Assumed storage cost is EUR 1,200 / 1 TB;
o
Sub-option A requires additional 1100 TB storage;
o
Sub-option B requires additional 4160 TB storage;
Scanning equipment
–
Estimated cost of one new scanning system is EUR 2,500;
o
Consulates
–
1881 consulates;
o
EPSs
–
2,683 VFS Global and TLS Contact application centres;
Sub-option B assumes that 20-30% of ESPs will require more than
one additional scanner;
Training and awareness raising
–
Based on interviewee feedback and findings
from relevant studies
160
;
System operational cost
o
Option 1
–
The current operational cost of the VIS infrastructure is EUR
35 m. in FY2017
161
;
o
Option 2
–
Estimates based on interview feedback with relevant
stakeholders;
Workload impact
–
Consulates handle approximately 10% of applications
themselves (1.76m.) whereas the remaining 90% are outsourced to ESPs (15.8m.);
o
Consulates
–
the labour costs is EUR 26 / hour;
Sub-option A requires additional 40 s / application;
158
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/smart-
borders/docs/smart_borders_costs_study_en.pdf.
159 Detailed calculation in Annex 3 to the Feasibility and implications of lowering the fingerprinting age for children
and on storing a scanned copy of the visa applicants' travel document in the (VIS).
160 ETIAS Feasibility Study, 2016; Impact Assessment Report on the Introduction if the EES, 2016.
161
http://www.eulisa.europa.eu/AboutUs/Finance/EULISA%20Budgets/eu-LISA%202017%20Initial%20Budget.pdf.
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Sub-option B requires additional 190 s / application;
o
ESPs
–
the labour cost is EUR 17 / hour;
Sub-option A requires additional 70 s / application;
Sub-option B requires additional 220 s / application.
Table 1: Summary of investment (one-off) and recurrent compliance costs (thousands EUR)
Costs (thousands EUR)
One-off costs
Additional servers
Additional VIS storage
Scanning equipment: Consulates
Scanning equipment: ESPs
Training and awareness raising
Recurrent operational costs
System operational cost (10 years ret.)
Workload impact: Consulates
Workload impact: ESPs
35,000
3,875
5,250
35,000
5,750
16,500
16,000
–
33,000
3,875
5,250
16,000
–
33,000
5,750
16,500
5,000
1,320
4,703
6,708
161
5,000
4,992
4,703
7,244
–
7,512
161
244,000
–
414,000
1,320
4,703
6,708
161
244,000
–
414,000
4,992
4,703
7,244
–
7,512
161
Option 1.A
Option 1.B
Option 2.A
Option 2.B
Lowering the fingerprinting age for children
Child-friendly equipment
–
Assumed cost is EUR 3,000 / 1 new system;
o
Consulates
–
1,651 consulates
162
;
o
ESPs
–
2,683 VFS Global and TLS Contact application centres;
Additional VIS storage
–
Assumed storage cost is EUR 1,200 / 1 TB;
o
Option 1 requires additional increase of storage by 4,4%, i.e. 7.7 TB;
o
Option 2 requires additional increase of storage by 8,8%, i.e. 15.4 TB;
Training and awareness raising
–
Based on interviewee feedback and findings from
relevant studies
163
;
System operational costs
–
Assumed increase in operational costs is 4,4%, 8,8%
respectively;
Workload impact
–
The number of children applicants is estimated 0.7-1.05m.
with the average of 875,000; consulates handle approximately 10% of applications
themselves (1.76m.) whereas the remaining 90% are outsourced to ESPs (15.8m.);
o
Option 1 requires additional 0.2-1 min.;
o
Option 2 requires additional 0.4-2 min.
162 Number of consulates in non-Schengen countries in 2016.
163 ETIAS Feasibility Study, 2016; Impact Assessment Report on the Introduction if the EES, 2016.
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Table 2: Summary of investment (one-off) and recurrent compliance costs (EUR)
Costs (EUR)
One-off costs
Child-friendly equipment: Consulates
Child-friendly equipment: ESPs
Additional VIS storage
Training and awareness raising
Recurrent operational costs
System operational cost
Workload impact: Consulates
Workload impact: ESPs
1,540,000
7,583
–
37,941.50
44,625
–
223,124.50
3,080,000
30,332
–
151,766
178,500
–
892,498
-
-
9,240
138,175
4,953,000
8,049,000
18,480
138,175
Option 1
Option 2
2. Assessment criteria
In line with the better regulation guidelines on impact assessments, the methodology
underpinning the present report and its supporting studies focused on the significant social,
economic, and fundamental rights impacts. Depending on each problem area scrutinised by
the present study, the exact categories of persons and processes impacted by the foreseen
measure could vary. This is why the impact of the measure will be examined separately
under each problem area, to take account of its specificity.
The VIS concerns mainly two types of actors: visa applicants and Member States'
authorities and hence these are the two categories most impacted by the envisaged
measures. These impacts in turn can have broader consequences for the societies of EU
Member States and the EU's external relations.
3. Categories impacted by the envisaged measures
The first group which is directly affected are applicants for a short stay visa, i.e. third-
country nationals who are under the visa requirement and who apply for a short-stay visa at
one of the Schengen consulates. As regards checks against migration and security
databases, applicants will experience any change in the checks that they are subject of
when applying only indirectly. As regards the travel document, the obligation currently
exist for them to present it in a consulate and most MSs consulates already make copies of
it, therefore this change will not be immediately experienced by the applicant. However, if
this is to be used as evidence of nationality and identity in a return procedure, the impact
on the person will be direct. As regards the possibility to lower the fingerprinting age for
children, this will have a direct impact on children under 12 and their families. The family
member(s) accompanying the child will have to be physically present in a consulate with
the child at least for the first application, in order to submit fingerprints.
Under the proposed measure to include data on long stay visas and residence permits and
their holders, a new category of data subjects will be added to the VIS. The impact on this
category of TCN will not be direct, as the procedure to apply for these documents will not
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be changed. However, they will be indirectly impacted by the fact that their data will be
placed in a centralised database and checked against other databases in an automated
manner.
The second group directly affected are Member States' authorities, mainly consulates in
third countries as the visa-issuing authorities, as well as border, migration (including
return), asylum (including Dublin) and in some cases law enforcement authorities. These
authorities are directly impacted by all four measures. Additionally, the measure to extend
the VIS to long stay visas and residence document may require access by authorities that
currently are not involved in the VIS process (authorities issuing residence permits or
cards, depending on national organisation). If the VIS is to be used for identifying children
victims of trafficking or contribute to preventing this phenomenon, anti-trafficking
authorities and child protection authorities may also be granted access.
There are further consequences on the society at large. Reinforced migration and security
checks will impact the integrity of the visa processing and consequently the security of the
Schengen area. Similarly, increased leverage for the EU readmission policy and better
return rates will improve migration management, and thus the reliability and credibility of
the EU migration policy. As many people travel to the EU to visit their family members,
the protection of family life
164
will also be indirectly affected by increased or reduced
possibilities for travel.
Ultimately, the cumulative effect of changes on the categories of TCN and the number of
checks performed will have positive or negative impact on the EU's relations with third
countries and the EU's image in the world. This is particularly relevant regarding the link
between visa policy and readmission policy.
4. Summary of possible impacts of the policy options
The following table summarises the possible impacts of the policy options:
Table 4: Possible impacts of policy options
Economic impacts
Social impacts
Fundamental rights
impacts
Costs for public authorities (visa authorities/consulates):
direct (equipment, procurement to implement new etc.)
indirect (enforcement costs)
benefits
for
public
authorities
(visa/border/migration/asylum/police authorities):
Reduced administrative burden
cost savings
integrity and security of Schengen area
external relations/image of EU
right to dignity (Article 1 CFR);
right to liberty and security (Article 6 of the Charter),
respect for private and family life (Article 7 of the Charter),
protection of personal data (Article 8 of the Charter),
right to asylum and protection of the principle of non-
164 Articles 7, 9 and 33 of the Charter of Fundamental Rights of the European Union.
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refoulement (Articles 18 and 19 of the Charter) and protection
in the event of removal, expulsion or extradition (Article 19
of the Charter),
the right to non-discrimination (Article 21 of the Charter)
the rights of the child (Article 24 of the Charter)
the right to an effective remedy (Article 47 of the Charter).
The different possible interventions in the three problem areas are not likely to all have
noteworthy impacts in all of the above-mentioned areas. Therefore the assessment for each
problem area is focused on the fields where the different policy options are likely to have
significant impacts. A selection of the most relevant impacts will be established for each
problem area. However, given its significant impact on persons subject to VIS procedure
and the horizontal nature of its principles, the following sub-section will focus in particular
on the data protection aspects, which will thereafter be specifically analysed under each
policy option.
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A
NNEX
6: M
ONITORING AND
E
VALUATION
Specific objectives
-
Contribute to assisting in the
identification and return of third
country nationals that do not, or
no longer fulfil the conditions for
entry to, or stay on the territory of
the Member States in accordance
with the Return Directive.
-
Improve efficiency of the VIS for
the purposes of facilitating return
procedures.
Key Performance Indicators
Copy of the travel document
-
Number of cases of identity /
nationality proven regarding TCN
visa overstayers who lack or fail
to produce a copy of their travel
document upon apprehension
-
Return rate of third country
nationals in a return / readmission
procedure
-
Lower administrative burden for
Member
States
in
return
procedures
-
Cost savings for Member States
public authorities; e.g for
housing, food, administration and
related expenses related to return
procedures policy
Lowering the fingerprinting age
-
Better meeting the VIS objectives
(facilitation of the fight against
fraud, facilitation of checks at
external border crossing points,
facilitate the application of the
Dublin II Regulation).
-
Support with the prevention and
fight against child trafficking, and
with the identification/verification
of identity of TCN children.
-
Number of cases of child
trafficking TCN <17 discovered
through VIS
-
Number of cases of a VIS file
being used in asylum procedures
for TCN <17 (Dublin II)
-
Rating by relevant authorities
whether the change is helpful for
combatting child trafficking
-
Any additional costs incurred by
consulates and ESP
-
Annual report from Member
States and Europol to the
Commission
-
Survey among Member States
-
Survey among Member States
Method of data collection/source
-
Eurostat statistics, SIS statistics
on return (eu-LISA)
-
Survey among Member States
-
Survey among Member States
-
Survey among Member States
-
Survey among Member States
and ESP
Repository of long-stay visas and residence documents
-
Facilitate and strengthen checks
at external border crossing points
within the territory of the
Member States.
-
Number of checks performed at
external border-crossing points
-
Percentage of long stay visa and
residence document sent for
second line checks
-
Border guards’ satisfaction
-
Number of frauds detected at the
border for LSV and residence
documents
-
Migration
officers’
rating
whether the system is helpful in
the assessment
-
Number of cases in which fraud
was detected and reported during
the issuance process
-
eu-LISA statistics
-
eu-LISA statistics
-
Survey among Member States
-
eu-LISA statistics
-
Enhance the internal security of
the Schengen Area by facilitating
the exchange of information
among MS on TCNs holders, or
applying for long stay and
residence documents.
-
Survey among Member States
-
eu-LISA statistics
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-
Contribute to the prevention
detection and investigation of
terrorist offences or of the serious
criminal offences.
-
Number of cases where previous
history
of
documents
or
applications was checked
-
Number of investigations that
accessed data
-
Survey among Member States
-
Annual report from Member
States and Europol to the
Commission
-
eu-LISA statistics, annual report
from Member States and Europol
to the Commission
-
Survey among Member States
-
Number of successful hits
-
Gather statistics to support
evidence-based European Union
migration policy making.
-
Quality and usefulness of the
statistics extracted
Security checks for when processing applications of visa required third country nationals
Implementing the same procedural
search
standard
as
other
constitutive system-elements of the
visa policy, thus lowering the
burden for Member States and
contributing to the objective of a
common visa policy.
-
System statistics (number
cross-checks, number of hits)
of
-
eu-LISA statistics
-
Rating by relevant authorities
regarding usefulness of the
change
-
Survey among Member States
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A
NNEX
7: E
XECUTIVE
S
UMMARY OF THE
S
TUDY ON
S
TORING A
S
CANNED
C
OPY OF THE
V
ISA
A
PPLICANTS
' T
RAVEL
D
OCUMENT IN THE
V
ISA
I
NFORMATION
S
YSTEM
(VIS)
Article 2(e) of the VIS Regulation (EC) No 767/2008 foresees that one of the objectives of
VIS is ‘to assist in the identification of any person who
may not, or may no longer, fulfil
the conditions for entry to, stay or residence on the territory of the Member States.’ Article
31(2) enables the Member States
–
via the designated competent authorities for carrying
out checks at external border or within the territory of the Member States are allowed to
access certain VIS data for verification and identification purposes (specified in Article 19
and 20)
–
to transfer or to make available a limited set of these data to a third country for
the purpose of proving the identity of third-country nationals for the purpose of return.
165
Thus, although not explicitly defined in Article 2, when taken together, these provisions
foresee that the VIS can be used to facilitate both the identification of the irregular migrant
and the issuing of travel documents for return.
166
In its report on the implementation of VIS of October 2016, the European Commission
found that the use of VIS in return procedures has so far been limited, whereas recent
trends underline an increased need to use this instrument which provides a proof of identity
necessary in a return procedure.
167
1. Analysis of the problems
Under topic 1, two main problems are identified as contributing to a situation in which
Member States face high barriers to complete return procedures regarding third country
nationals who overstay their visa and fail to produce a valid travel document on request.
These two problems are:
Problem 1:
In the absence of a valid travel document (or copy thereof), return proceedings
for TCNs who entered the EU using a visa are slow and often unsuccessful;
Problem 2:
Delays in the return process result in increased costs and administrative
burdens realised by the Member States.
Although visa applicants, and subsequent visa holders, are under strong obligation to
establish their identity by presenting a valid travel document during both the application
process and upon entry to the EU, Member States report that many TCNs visa overstayers
165 The Regulation allows the designated competent authorities to transfer the following data from the visa application
file: first name, surname and former surname (if applicable); sex, data, place and country of birth; current
nationality and nationality at birth; type and number of the travel document, the authority which issued it and the
date of issue and of expiry; residence; and
in the case of minors, the surname and first name(s) of the applicant’s
father and mother.
166 EMN Ad-Hoc
Query on COM AHQ on Member States’ Experiences with the use of the Visa Information System
(VIS) for Return Purposes. Requested by COM on 18th March 2016. 24 responses were provided:
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-
do/networks/european_migration_network/reports/docs/ad-hoc-queries/ad-hoc-queries-
2016.1042_com_ahq_on_member_states_experiences_with_the_use_of_the_visa.pdf.
167
COM(2016) 655 final, “Report from the Commission to the European Parliament and the Council on the
implementation of Regulation EC) No 767/2008 of the European Parliament and of the Council establishing the
Visa Information System (VIS), the use of fingerprints at external borders and the use of biometrics in the visa
application procedure/REFIT Evaluation,” Brussels: 14 October 2016:
https://ec.europa.eu/home-
affairs/sites/homeaffairs/files/what-is-new/work-in-
progress/initiatives/docs/gmige/report_from_commission_en.pdf.
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who become subject to a (forced) return are no longer in possession of their travel
document, or fail to produce it upon request. In such cases, the sending Member State must
file an application for a replacement travel document, or
laissez-passer,
either with the in-
country diplomatic representation of the country of origin, or directly with the competent
authorities of the country of origin, pending the positive identification of the foreign
national in question. Most third country diplomatic representatives only issue an
emergency travel document once the identity and nationality of the TCN can be verifiably
proven by the sending Member State. Notably, the authorities of the majority of third
countries currently do not accept the information that can be extracted from the VIS as
sufficient evidence to verify the
person as one of ‘their’ nationals, and they request a
scanned copy of the TCN’s travel document as proof. In this context, Member States can
prove nationality by providing a scanned copy of the TCN’s travel document that provided
the basis for issuing the Schengen visa.
Indeed, in the absence of a valid travel document, the scanned copy of a former visa
holders’ travel document is key to being able to prove the nationality of a TCN. This is
particularly necessary for facilitating returns to traditionally non-cooperative countries of
origin in respect of readmission of their nationals. In the current situation, the process by
which Member States obtain the travel document copy is hampered by the absence of a
legal framework allowing Member States to exchange or transfer such information, as well
as the slow or non-existent cooperation on the part of third country authorities. While the
effectiveness of the measure ultimately depends on the willingness of third countries to
cooperate with the Member States, the evidence suggests that the measure would make it
more difficult for third countries to deny return, as both the information in VIS, as well as
copies of the travel documents would be available.
The study estimates that the total number of visa holders becoming irregular migrants by
overstaying their visa is approximately 294 000 persons per annum. According to
stakeholders interviewed for this study, around 90% of visa overstayers (i.e. 264 453) will
become subject to return proceedings, and we estimate that 10% to 20% of these cases
involve TCNs without travel documents at the time of apprehension; and that more than
half will not be executed due to Member States’ inability to obtain evidence to prove the
TCN’s nationality.
On this basis, the number of return decisions concerning TCNs who entered the territory
on a visa, and that could not be implemented due to missing travel documents, is estimated
between 15 867 to 39 668 casesError!
Reference source not found.
in chapter
Error!
Reference source not found..
This represents roughly 13% to 33% of effective returns of
visa-required third country nationals.
168
While the actual number of estimated cases is low,
based on our calculations, the impact of undetected cases is potentially high. Indeed, one
Member State estimates that the number of detected overstayers represents just 40% of all
visa overstayers (i.e. the undetected population). Moreover, according to migration officers
168 Based on the three-year average (2014
–
2016) of effective returns of nationals from visa-required third countries.
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that have run simultaneous searches of VIS against EURODAC for asylum searches, about
30-35% of asylum seekers can be identified using the VIS.
169
2. Objectives
The
general objectives
of the proposed adaptations to the VIS system are the following:
Contribute to assisting in the identification and return of third country nationals that do not,
or no longer fulfil the conditions for entry to, or stay on the territory of the Member States
in accordance with the Return Directive.
Improve efficiency of the VIS for the purposes of facilitating return procedures.
The
specific objectives
of the proposed measure may be formulated as follows:
Facilitate that Member States’ authorities are able
to confirm the identity and prove
the nationality of TCN visa overstayers who lack or fail to produce a copy of their
travel document upon apprehension
Improve the return rate of third country nationals found in a return / readmission
procedure
3. Policy options
The following policy options were investigated:
Option 0. Baseline (no change)
Option 1. Include a scanned copy of the travel document in the central VIS (centralised)
Option 2. Include a digital copy of the travel document in national visa systems
(decentralised)
In addition to the main options, two additional sub-options were defined regarding the
scope of the data to be recorded in VIS:
Sub-option A. Storage of biographical page only
Sub-option
B. Storage of all used pages of the applicant’s travel
document
The two sub-options can be applied to both Option1 and Option 2 described above.
4. Assessment of impacts
Economic Costs
Table 1 and Table 2 present an overview of all relevant costs (both one-off and recurrent,
as well as recurrent compliance costs) from the options and their sub-options. The cost
estimations are based on various sources (experience of related initiatives, stakeholder
consultation) and derive from a number of assumptions, which have been detailed in
Chapter 3.5.1 and in Annex III.
169 Commission Staff Working Document, XXX (2017), Impact Assessment accompanying the document for a
proposal for a Regulation of the European Parliament and the Council establishing interoperability between
European Union information systems for security, border and migration management.
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Table 1
Summary of investment (one-off) and recurrent compliance costs (millions)
Option 1
Option 2
Sub-option A
Sub-option B
Investment and operational costs
One-off costs (m)
Additional servers. VIS databases
Additional VIS storage
Scanning equipment: Consulates
Scanning equipment: ESPs
Training and awareness raising
Total one-off costs
Recurrent operational costs (m)
Operational cost 10 year retention
Total recurrent costs
Workload impacts: Costs to scan, prepare
and transfer the TD copies(m)
Consulates
ESPs
Total additional workload costs
Total investment and recurrent compliance
costs (m)
€5
-
-
-
€ 0,2
€ 5,2
€ 244 – € 414
-
-
-
€ 1.3
€ 4,7
€ 6,7
-
€5
€ 4,7
€ 7,2 –
7,5
-
€ 16,9 –
17,2
€ 0,2
€244,2-
414,2
-
€ 12,7
€ 35
€ 35
€ 16 – € 33
€ 16 –
33
-
-
-
-
-
-
-
€ 40,2
-
-
-
€ 260,2 –
447,2
€ 3,9
€ 5,3
€ 9,1
€ 21,9
€ 5,8
€ 16,5
€ 22,3
€ 39,1 –
39,5
Source: Ecorys calculations based on data provided during stakeholder interviews.
Note: Calculations may not add up due to rounding.
Table 2 Summary of additional workload-related costs
Costs to TCNs
Costs to TCNs
Visa fees (per TCN)
Opportunity costs (per TCN)
Total costs to TCNs
-
-
-
-
-
-
-
€ 0,60
€ 0,60
€1–€5
€ 1,89
€ 2,89 –
5,89
Option 1
Option 2
Sub-option A
Sub-option B
Source: Ecorys calculations based on data provided during stakeholder interviews.
Note: Calculations may not add up due to rounding.
Both options and the two sub-options require some one-off costs, both to implement the
proposed change and to train the relevant personnel and raise awareness along the chain of
stakeholders.
One-off investment costs are significantly higher for Option 2 than for Option 1, as the
former would involve the expansion or setting up of national systems. The study notes,
however, that since the history of previous applications can be easily checked in the VIS,
no new copies are requested from the applicant if documents have already been submitted
during a previous application, and if that document has not yet expired and been replaced
with a new one. This suggests that required investments in storage capacity under Option 2
may be substantially lower than the calculations suggest. The study was unable to collect
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data enabling an accurate estimation of the investments required at national level due to the
late inclusion of this option in the analysis. Regarding the sub-options, the technical
infrastructure to be added at ESPs and consulates is limited to a document scanner
connected to a computer.
On-going compliance costs are summarised as follows:
Costs incurred by visa authorities and ESPs stem from the additional time spent to (a)
make the scanned copy of the travel document, (b) transfer the data to the consulate and (c)
to transfer the data (digitised copies) from the consulate to the NS-VIS. The costs are
driven by the choice of sub-option; the main options do not affect the workload of the
consulates and ESPs. Thus, the costs for consulates and ESPs are substantially higher
under sub-option B compared to both sub-option A and the current situation (baseline
scenario).
Costs incurred by third country nationals are similarly driven by the two sub-options. In
the event that sub-option B is implemented, ESPs and consulates may pass additional
workload costs onto the TCNs in the form of increased visa service fees charged to
applicants. Given that the average service fee charged to applicants today is approximately
€ 25,00, the average fee increase will range from € 1,00 to € 5,00 per applicant under sub-
option B. By contrast, sub-option A would result in only a marginal increase in the
workload of ESPs relative to the current situation, therefore the ESPs are unlikely to
increase the service fee levied on visa applicants. Visa applicants may additionally
experience increased wait time at the application centres due to the increase in time spent
by ESP personnel for receiving each application. The identified opportunity costs are,
however, minor compared to the current situation.
Economic benefits
As shown in Table , the measures will produce several important economic benefits for
Consulates (and ESPs, as a result of the additional visa fees) as well as Member States’
migration and return authorities. Implementation of a measure to systematically include
scanned
copies of visa applicants’ travel document in the VIS, which would be either
directly or indirectly searchable and accessible to the relevant authorities, will:
Greatly reduce the burden to confirm this category of TCNs’ identity and facilitate
the return process while facilitating the likely cooperation on the part of third
country authorities to issue an emergency travel document to return their nationals;
Reduce delays associated with ad hoc communications and exchange between
Member States’ authorities
and the consulates; and
Eliminate inefficient procedures involved with retrieving, scanning, zipping and
coding hard copies.
The identified economic benefits are primarily drive by the choice of main option (Option
1 and Option 2). While Option 1 performs marginally better on these objectives compared
to Option 2, both measures will significantly reduce inefficiencies associated with the
current procedures.
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Table 3 Summary of benefits of the policy options
Option 1
Consulates
Cost savings from time spent on responding to supporting
document requests
Migration and return authorities
Cost savings from time spent on retrieving TD copy
Cost savings from reduced delays in return procedures
€ 3,2 –
12,7 m
Daily costs of delays reduced by up to 14
days
€ 46,3 m –
92,6 m
€ 3,0 –
12,3 m
Daily cost of delays reduced by up to
13,5 days; costs incurred for delays of �½
day
€ 44,6 –
89,3 m
Cost savings from executing a higher proportion of return
decisions, in less time
Total benefits (50 % improvement)
Total benefits (75 % improvement)
€ 6,7 –
21,4 m (if 50% improvement)
€ 10,0 –
32,1 m (if 75 % improvement)
€ 57,5 m –
132,2 m
€ 60,8 –
142,9 m
€ 6,6 –
21,3 m (if 50% improvement)
€ 9,9 –
31,9 m (if 75% improvement)
€ 55,6 –
128,3 m
€ 58,9–
139,0 m
€ 0,7 – € 2,8 m
(€ 366 – € 1.462 per consulate)
€ 0,7 – € 2,8 m
(€ 366 – € 1.462 per consulate)
Option 2
The saved costs for consulates from the reduced number of supporting document assistance
requests is estimated to range between € 0,7 million to € 2,8 million across all Schengen
consulates worldwide. The impact is the same across both main options.
The saved costs for migration and return authorities from the reduced workload associated
with contacting the consulates and obtaining the scanned copy of the via applicants’ travel
document is valued higher under Option 1 than under Option 2. This is due to the fact that
under Option 2, Member States will still need to request the information from the national
authorities responsible for storing the scanned copy, a procedure that would require an
estimated 15 minutes or less to carry out. Option 1 is therefore marginally more efficient
than Option 2.
The cost savings from executing a higher proportion of returns (in less time) will also
increase under both of the main options. The benefits are only marginally lower under
Option 2, due to the remaining workload associated with making requests to the storing
authority, as shown in Table 3 (lower benefit from slightly less efficient procedures). The
full impact is difficult to estimate with any accuracy as it is wholly dependent on the
cooperativeness of the third country authorities.
In terms of the impact on duration and timeliness of return proceedings, both options
would significantly reduce the wait time imposed on migration and return authorities
during the process of confirming the identity of TCNs. Under Option 1, the delays will be
effectively eliminated, resulting in a delay reduction of up to 14 days. Option 2 would have
a slightly lower impact as Member
States’ authorities may still be required to wait for
several hours before receiving a reply from the responsible national authority for storing
the travel document. The potential benefits to be realised from both options will be
sufficiently substantial to offset the costs incurred to implement and comply with the
respective options.
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Policy impacts
The storage of visa applicants’ travel documents in VIS will improve the implementation
of the objective of facilitating returns of TCNs who have been issued with a return
decision. Both Option 1 and Option 2 will enable Member States to Member States to
obtain the necessary evidence for proving the nationality of TCN visa overstayers who
have been issued with return decision, but who lack a valid travel document, to equal
effect. This is because both options entail the systematic collection and storage of the visa
applicants’ travel document that provided the basis for issuing the Schengen visa in VIS. In
both cases, however, the effective change is highly dependent on the third country in
question.
The experience of Member States to date indicates that there is a direct correlation between
the rate of effective returns based on VIS matches combined with a copy of the travel
document on the one hand, and the level of historical cooperation with the given country of
origin on the other. In other words, if a return is theoretically feasible (due to positive
confirmation of identity), and the country in question is typically cooperative in dealing
with returns, then
the information in the VIS matches coupled with a copy of the TCN’s
travel document will be extremely useful and sufficient for facilitating the return.
However, if the country in questions is non-cooperative on returns in general, Member
States have few recourses to compel the return.
Based on inputs provided during the stakeholder consultation, the study cautiously assumes
that the proportion of effectively executed returns of TCN visa overstayers without travel
documents will increase by 50% to 75% as a result of the proposed options.
If the proportion of effectively executed returns increases by 50%, then the benefit is an
additional 7.934 to 19.834 TCNs returned compared to the current situation.
If the proportion increases by 75%, then benefit is an additional 11.900 to 29.751 persons
returned.
Table 4 Estimated benefits for the implementation of returns
Impact on the implementation of returns: Additional returns of TCNs without travel documents
Estimated number
of returns not
implemented
Lower
Upper
50%
–
75%
Number of additional returns: Scenario A
(50% improvement)
Lower
+ 7.934
TCNs returned
Upper
+ 19.834
TCNs returned
Number of additional returns: Scenario B
(75% improvement)
Lower
+ 11.900
TCNs returned
Upper
+ 29.751
TCNs returned
% improvement
15.867
39.668
Fundamental rights impacts
In accordance with the Charter of Fundamental Rights of the EU, to which EU Member
States and institutions are bound when they implement EU law (Article 51(1) CFR), the
identified benefits of the proposed measure must be balanced with the obligation to ensure
that any corresponding interferences with fundamental rights are limited to what is strictly
necessary to genuinely meet the objectives of general interest pursued, subject to the
principle of proportionality (Article 52(1) CFR).The study does not look at all fundamental
rights issues arising from the proposed changes to the VIS Regulation. This analysis
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focuses on the possible (negative and positive) impacts of the proposed measure for the
following fundamental rights of the CFR:
Right to asylum and protection of the principle of non-refoulement (Article 18 and 19)
Rights to non-discrimination (Article 21)
Right to effective remedies (Article 47)
Rights to the protection of privacy and personal data (Article 7 and 8).
The proposed measure brings both risks and opportunities with respect to fundamental
rights. The storage of a scanned copy of the visa applicants’ travel document in the central
VIS (Option 1) or national VIS (Option 2) can have a positive impact for the right to
asylum (Article 18 CFR) and the protection of the principle of non-refoulement (Article 19
CFR) by providing designated authorities access to additional evidence to prove an asylum
seekers’ identity.
The sub-options could in fact be useful to asylum authorities for
verifying the identity of a person in need of international protection (sub-option A) or for
proving the escape route that the person used (sub-option B), which is important in an
assessment of merits for asylum cases. The existing safeguard which bans the transfer of
personal data to third countries if that person has requested international protection
continues to apply (Article 31(3)), mitigating the risk of serious harm for asylum applicants
or their families.
The proposed measure would create an interference with the right to privacy and family
life (Article 7 CFR) and the right to the protection of personal data (Article 8 CFR), as it
involves the processing of personal data. The limitation is modest under sub-option A, as
the only additional category of personal data that could potentially be stored relative to the
current situation is the personal identification number of the document holder. In fact, the
measure implies the processing of nearly the same amount and type of personal data as is
processed in the current situation, merely stored in a different format (i.e. the scanned copy
of the travel document, as opposed to an entry in the VIS file based on information
submitted as part of an application form). Safeguards prohibiting the further processing of
these data by migration and return authorities as well as to prevent unauthorised access and
unlawful sharing with third parties should limit any potential negative impacts implied by
the sub-option. By contrast, sub-option B involves the processing of a large amount of new
personal data, which would affect the entire population of TCNs under visa obligation. The
data is not currently stored into VIS, therefore new safeguards would need to establish the
purpose of the data processing. Such safeguards should explicitly prohibit the sharing of
these data with third parties given that it is not foreseen to positively contribute to the
objective of facilitating return.
Regarding the data protection impact of the main options, whereas Option 1 involves the
central storage of the scanned travel document copy, Option 2 involves implies storage at
national level. This means that the Member State which entered the data would own the
data, and thus be responsible for sharing its data with the requesting Member State
following a positive “hit”. Option 2 may include less risks with regard to purpose
limitation and accessibility of personal information serving as an additional safeguard
against unauthorised access.
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The measure has no impact on the right to an effective remedy as currently provided in
Article 40 of the VIS Regulation. The measure would also not affect the right to non-
discrimination, as it does not discriminate on any of the grounds established in Article 21
CFR.
Necessity and proportionality
The proportionality test requires demonstrating that the measure would be suitable with
respect to achieving its purpose. The answer for Option 1, Option 2 and Sub-option A is
affirmative, as the travel document data page is precisely what is required by third country
authorities as proof of nationality in the absence of a valid travel document. A separate
question is whether the measure can be made more targeted to reduce its interference on
the right to privacy and data protection. In addition to what is explained in the description
of fundamental rights impacts (chapter 3.4.3), the measures analysed are targeted to TCN
travellers to the EU who are under visa obligation.
Regarding the choice of main option, while both options will achieve the same level of
effectiveness, Option 1 achieves a higher level of efficiency (timeliness and cost-
efficiency). Furthermore, Option 2 (decentralised storage) would not be considered as less
intrusive given that the same information would be made available to the designated
authorities in all MS. No matter which technical architecture is selected, the measure is
intended to enable a Member State’s authority to access data stored by (an)other Member
State during the visa procedure.
To answer the question as to the proportionality of the sub-options, it is relevant to
distinguish between the personal data stored in the data page of one’s travel document and
the information that can be derived from the visa stamps and stickers affixed to the
documents’ visa pages. The scope of personal data to be stored under sub-option
A is both
relevant and necessary for the stated purposes of facilitating returns. The intrusiveness of
the proposed sub-option is in itself very modest, as the same data are already entered in
VIS in the current situation, though accessible in a different format. The only category of
data not currently collected and stored in VIS from visa applicants, which in some cases
may be present in the data
page of a visa applicants’ travel document, is the of national
personal identification number. Assuring that appropriate safeguards prevent against the
processing of these new data, the interference on the right to privacy and the protection of
personal data would not be greater than the current VIS system, for which no complaint on
data protection has been registered to date (COM(2016) 655 final, page 12), and adequate
safeguards have been put in place. By contrast, the data implied by sub-option B is
substantially more intrusive and it will not contribute to the explicit objective of the
measure, which is to facilitate the return of TCNs without a valid travel document. The
study concludes that sub-option B is more intrusive and no more effective for achieving the
identified objectives. As a result, the processing of these data is considered
disproportionate.
The analysis undertaken in the preceding sections suggest that it is possible to justify the
necessity and proportionality of a measure involving storage
–
either at central level
(Option 1) or decentral level (Option 2)
–
of a scanned copy of the data page of the visa
applicants’ travel document in the VIS system.
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5. Comparison of options
The preferred option to emerge from this study is Option 1, sub-option A: centralised
storage of a scanned copy of the bio-data
page of the visa applicants’ travel document in
the VIS.
Both Option 1 and Option 2, in combination with sub-option A, will achieve the roughly
the same level of effectiveness in terms of their contribution to the objective of facilitating
the return of TCNs visa overstayers who lack valid travel documents. Option 1 achieves a
marginally higher level of efficiency (timeliness and cost-effectiveness) than Option 2,
particularly in terms of: reducing the burden to Member States to confirm this category of
TCNs’ identity and facilitating the cooperation of Member States to issue ETDs for their
return; reducing delays associated with ad hoc communications between Member States
and their consulates; and by eliminating inefficient procedures involved with retrieving,
scanning, zipping and coding hard copies of travel documents.
While Option 1 performs only marginally better on these objectives compared to Option 2,
both measures will significantly reduce inefficiencies associated with the current
procedures. Moreover, the costs under Option 1 and the sub-options are, however,
expected to be broadly compensated in the first year of implementation, whereas Option 2
will be compensated within 3 to 5 years by the expected cost savings and delay cost
reductions at the level of Member States (also to be realised under Option 1). By contrast,
while sub-option B is slightly more costly than sub-option A, it does not provide any added
value for achieving the policy objective relative to sub-option A. Therefore sub-option B
can be discarded.
From a fundamental rights perspective, in additional to the fundamental rights impacts
described above, the main potential benefit of Option 2 vis-à-vis Option 1 is that the travel
document copy would be stored nationally and therefore access by the designated
migration or return authority in one Member State would be subject to the authorisation
granted by the Member State that entered the data into VIS. However, similar results could
be obtained under Option 1, by using a restricted authorizations regime. Moreover, in
terms of privacy impacts and the degree of intrusiveness, Option 2 (decentralised storage)
would not be considered as less intrusive given that the same information would be made
available to the designated authorities in all MS.
By ensuring that accessibility to the copies of travel documents in VIS is limited for the
purposes as currently provided in 15, 16, 18, 19 and 20 VIS Regulation, amending Article
31 (2) to limit transfer of travel document copies to third countries for the purpose of
facilitation return procedures, Articles 18, 19 and 20 VIS Regulation, and establishing
adequate safeguards to ensure rights to privacy and data protection are respected, Options 1
and 2, and sub-Option A pass the test of proportionality.
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A
NNEX
8: E
XECUTIVE
S
UMMARY OF THE
S
TUDY ON
F
EASIBILITY AND
I
MPLICATIONS OF
L
OWERING THE
F
INGERPRINTING AGE FOR
C
HILDREN
1.
Analysis of the problems
Current EU legislation on the visa application procedure for short-stay visas exempts
children under the age of 12 from the provision of fingerprints. Without fingerprints it is
more difficult to unambiguously verify the identity of a TCN child (<12) at the border or
within the Schengen territory. In relation to this root cause 2 problems have been
formulated that the introduced adaptation might be able to address.
Problem 2.1:
sub-optimal achievement of various objectives of the VIS set out in Article 2
of Regulation (EC) No 767/2008), in particular as regards to the prevention of visa fraud,
to facilitate checks at external border crossing points and within the territory of the
Member States, and to facilitate the application of the Dublin II Regulation.
Problem 2.1:
sub-optimal provision of appropriate protection to TCN (<12) children,
either from trafficking with the help of a visa , or in the case they are found in Schengen
territory in a situation where their rights may be or have been violated (trafficking, missing
children, unaccompanied minors applying for asylum).
2.
Objectives
In relation to the defined problems, two objectives of the proposed second adaptation can
be defined.
Better meeting the various VIS objectives (facilitation of the fight against fraud,
facilitation of checks at external border crossing points, facilitate the application of the
Dublin II Regulation,)
Support with the prevention and fight against child trafficking, and with the
identification/verification of identity of TCN children who are found in Schengen
territory in a situation where their rights may be or have been violated (trafficking,
missing children, unaccompanied minors applying for asylum).
3.
Policy options
The following policy options were investigated.
Option 0. Baseline (no change)
The VIS Regulation (Article 9(6)) requires Member States to enter the fingerprints of
applicants in the VIS. The inclusion of 10 fingerprints and a facial image is arranged
through Article 13(2) of the Visa Code. Biometric matching of fingerprints constitutes the
main method for of identification and verification. Children under the age of 12 are
currently exempt from the obligation to provide fingerprints. In the case the measure to
take fingerprints of children under the age of 12 would not be introduced relevant
authorities continue to have challenges to identify and verify the identity of young children
and to offer appropriate protection.
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Option 1. Lowering the fingerprinting age to 6 years
Under this scenario, fingerprints will be taken from every visa applicant from 6 years of
age and above, thereby effectively increasing the group of applicants by adding the cohort
of 6 to 11 year-olds.
In 2013 the European Commission’s Joint Research Centre (JRC) carried out a study on
the question whether or not automated fingerprint recognition for children is possible with
recognition rates similar to those reached for adults. The study concluded that under
appropriate conditions, fingerprint recognition of children aged between 6 and 12 years is
achievable with a satisfactory level of accuracy. One such condition would be, for
example, to ensure an appropriate level of training of operators to acquire high quality
images.
Option 1 is also in line with the proposal for a revised EURODAC Regulation, which
would lower the fingerprinting age from 14 to 6. The JRC study and recent developments
related to the protection of children in irregular migration were at the basis of this proposal.
Option 2. Lowering the fingerprint age including all ages
Under this scenario, fingerprints will be taken from visa applicants of all ages thereby
effectively increasing the group of applicants by adding the cohort of 0 to 11 year-olds.
In the JRC study evidence is presented from other studies that it is feasible to take reliable
fingerprints of children even younger than 6, although this may result in stronger technical
and procedural changes (see paragraph 4.4.2 for detailed explanation). These indications,
combined with the fact that all children have the same rights, including rights to protection,
result in the inclusion of option 2.
4.
Assessment of impacts
Economic costs and benefits
Three main categories of economic costs and benefits were included in the analysis:
(i)
(ii)
the investment or set-up costs (one-off costs) induced by modifications in
procedures and legal changes and;
the impacts in terms of workload and administrative burden (operational costs),
which may have a net positive or negative economic impact for the involved
stakeholders;
opportunity costs for TCN children and parents resulting from additional
waiting time at the visa application centres and costs incurred by authorities in
the Schengen area.
(iii)
The one-off costs are higher for option 2 than for option 1. This is first of all because
taking fingerprints of children younger than 6 is likely to require a new, different type of
scanner and software. Further investigation into the technical feasibility is recommended.
Secondly, as the size of biometric samples to be included in in the case of the second
option is larger, more is requested in terms of storage of the system and the capacity of the
BMS. The expected training costs are estimated to be the same for some options.
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With regards to operational costs, again the costs are expected to be higher for option 2
than for option 1. Not only are prints to be taken from double the number of children, but
also the time that it takes to capture a print is expected to be longer.
As for the third category of costs/ savings, the fingerprinting time of the youngest age
group is expected to be higher, resulting in more additional waiting (/higher opportunity
costs) time for a child under 6 and its family than for children aged 6-12. For member state
authorities no impacts are expected for Member States’ visa authorities.
It is expected that
the adaptation to the age limit might save Member States’ authorities dealing with
trafficked/ missing children considerable time identifying children. The specific impacts
are unknown but it seems logic to assume that total benefits are higher in the case of option
two as this option affects more children.
Policy impacts
Taking fingerprints of young children could support border authorities in detecting identity
fraud as it would help them to ascertain whether the child at the border is the child that has
been granted a visa. In addition, it facilitates also the identification of traffickers and
trafficking networks.
The prevention of identify fraud is raised by several consulates as the main potential
benefit of the proposed adaptation. However, no information is available to state the actual
size of the problem.
A necessary precondition to achieve the full potential effectiveness of entering fingerprints
of TCN children (<12) for the prevention of trafficking of TCN children (<12), is having
fingerprints of each incoming TCN checked and verified at Schengen entry ports. At the
moment such checks are not consistently executed.
The adaptation could also contribute to the Identification and verification of the identity of
TCN children <12 on Schengen territory, hereby allowing for:
Family unification within and outside the Schengen area
Verifying the familiar relationship
Dublin and asylum examination
Fundamental rights impacts
Both options under investigation could have positive fundamental right impacts. The
adaptations could assist in the prevention of children being trafficked and in identifying
children who have gone missing, or who are abducted or became victims of human
traffickers, thereby enabling these children to reunite with their family members (but only
if it is in their best interest). Also, it could support the execution of the Dublin Regulation.
The proposal of lowering the age of fingerprinting children, whether it being option 1 or 2,
will also have an impact on the rights to human dignity and privacy and personal data
protection. Fingerprints must be taken in full respect of human dignity and in a manner that
is appropriate to the child’s age and maturity. It is advised to include a provision to the
Visa code explicitly requiring that fingerprints be taken in a child-friendly and child-
sensitive manner by consulate officials or ESP personnel who have been specifically
trained to collect biometric data from children.
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With regards to privacy and personal data protection, as children are a particularly
vulnerable group, the pursued objectives of data processing must be clearly identified to
assess whether these measures are appropriate, proportionate and fully address the problem
at stake. The processing of fingerprint data for children will be subject to the same
safeguards and purpose limitations as exist for the processing of biometric data of TCN
visa applicants above the age of 12. The existing safeguards ensure the strict purpose limits
of the data processing. The safeguards continue to prevent unauthorised access and
unlawful sharing of this information to third parties.
As described in the problem analysis there are cases of children entering or attempting to
enter the EU on a visa who are victims of child trafficking, or have gone missing. Such
cases could be detected by a more complete visa policy. This objective requires that the
relevant or designated authorities would need access to search and process the data stored
in VIS. Child protection authorities currently do not have access to the VIS. If they should
be granted access this should be specified in the VIS Regulation. A difference must be
made between the use of children data in the interest of children, (such as with the
objective of protecting children, for example against human trafficking or re-unification
with parents), and its use for objectives that could possibly be in their detriment.
Necessity and proportionality
Lowering the fingerprinting age of children in VIS may have a positive impact for the
protection of the fundamental rights of children, protecting them against child trafficking
or protecting the right to family life by reuniting missing children with their family
members. Considering this objective of tracing or identifying missing children in Europe,
the proposed measure, may complement the existing tool in SIS II for the reporting of
alerts on missing persons.
The necessity and proportionality of the proposed measure of lowering the fingerprinting
age to children of 6 year old
(option 1),
or to include all ages
(option 2)
depends on the
size of the problem, with other words on the number of TCN children under 12 who after
their visa application are found to be involved in visa fraud, and the number of TCN
children (<12) who have gone missing in the Schengen area.
Between 1.4 and 2.1 million children under 12 are traveling into the Schengen area with a
uniform visa each year, half of them are presumably younger than 6 years old. There are no
numbers available on identity theft after a visa has been granted (as currently there is no
possibility to verify identity at border crossings). With regards to victims of trafficking,
taking the latest Eurostat data into account each year they are expected to be around 375-
500 TCN victims under 12 year old to be found each year. Studies and expert opinions
suggest, the lower the age the lower the share of victims. In 2015 it was estimated by
Europol that, at least 10 000 unaccompanied minors went missing (age unspecified). But it
is not known if they have a VIS record. Interviewed stakeholders believe this number to be
marginal. One remark: with regards to both trafficking and missing children numbers it
may be expected that the number of factual cases is a higher than the number of known
cases.
Option 1.
Although the number of potentially affected children appears to be low, taking
into account the positive impact for protecting the right to family life and best interests of
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the child, this option can be considered a proportional measure under specified purposes,
strict conditions and safeguards, ensuring that the fingerprints are only accessed and used
to protect children from trafficking or identify and protect missing children. Considering
the data protection impact and the right to information included in Article 37 VIS
Regulation, taking into account that children (generally) have no impact on the decision of
their parents, strict time limits must be applied to ensure that their data are no longer stored
than for what is strictly necessary. Sufficient safeguards must be provided to ensure that
the fingerprint are taken in a child friendly manner, not only at the time of collection
during the visa application, but also within the EU territory for the purpose of
identification of the child and the comparison of the fingerprints with data in VIS or other
databases. ESP’s should be bound by the same standards and ensure the protection of the
rights and best interest of the child when taking fingerprints.
Option 2.
All children are entitled to protection, and this option may have a positive
impact with regards to the protection of all TCN children with a visa. However, for this age
group there are practical problems with regards to the accurate collection of their
fingerprints. Further investigation is preferred but it is to be expected that investments in
scanners and software need to be made. This, in combination with the even smaller number
of children below the age of 6 that are at risk of human trafficking or go missing this
option could be concluded to lack both necessity and proportionality.
Comparison of options
The preferred option to emerge from this study is Option 1: lowering the fingerprinti
ng age to
6 years.
Both options contribute to the policy objectives as identified in section 4.3. The policy
impacts achieved by the options are in essence the same, they both facilitate in various
ways in the protection of these children while traveling with a visa and after arrival in the
Schengen area, but the main difference is that the number of children affected by the
second option could be larger as it is encompassing all children.
However, the evidence currently available indicates that the group of children under 6 that
is likely to be affected by the proposed adaptation is very small. This, in combination with
the needed additional investigations into the feasibility of taking accurate fingerprints of
this younger age group, and the presumed substantial investment costs that are associated
with the purchase of new tailored machines result in the conclusion that necessity and
proportionality are lacking.
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1895873_0108.png
A
NNEX
9: E
XECUTIVE
S
UMMARY OF THE
L
EGAL
A
NALYSIS ON THE
N
ECESSITY AND
P
ROPORTIONALITY OF
E
XTENDING THE
S
COPE OF THE
V
ISA
I
NFORMATION
S
YSTEM
(VIS)
TO
I
NCLUDE
D
ATA ON
L
ONG
S
TAY
V
ISAS AND
R
ESIDENCE
D
OCUMENTS
1.
Context of the study
General context
The fragmentation of information through different MSs and systems is inefficient. It could
lead to errors when assessing a third-country
national’s situation and makes the border-
crossing procedure difficult. These challenges have already been identified and described
by the European Commission, which published in April 2016 a Communication on
Stronger and Smarter Information Systems for Borders and Security
170
in which it commits
to working to enable a
better use of the data collected.
On 10 June 2016, the Justice and Home Affairs (JHA) Council endorsed a
roadmap to
enhance information exchange and information management.
It included an action
plan listing 50 actions to be undertaken by different stakeholders. Action 50 set an
objective to address the
existing information gap in the (travel) documents of third-
country nationals.
The Final Report of the
High-Level Expert Group on Information Systems and
Interoperability
of May 2017 identified an information gap at EU level concerning three
types of documents: long-stay visas, residence permits and residence cards. The Report
recommended the Commission to undertake, as a matter of priority, a feasibility study on
the establishment of a "central EU repository containing information on long-stay visas,
residence cards, and residence permits".
The High-Level
Expert Group’ sub-group
on new systems further discussed the idea of
such a database. It concluded that there were a number of similarities (in terms of desired
functionalities, purpose and uses) with the database on short-stay visas: the Visa
Information System (VIS). Hence, the VIS could potentially be extended to include long-
stay and residence documents. In this respect, the Report on the VIS Evaluation (2016)
171
also included a recommendation for further development of the system to include these
documents.
In line with the High-Level
Expert Group’s recommendation, a first feasibility study was
undertaken
172
. It analysed whether including long-stay and residence documents in a
central database was technically feasible and desirable, compared to the creation of a new
dedicated database to store data on these documents. It concluded that re-using the VIS
170 Available
at:
http://www.eulisa.europa.eu/Newsroom/News/Documents/SB-
EES/communication_on_stronger_and_smart_borders_20160406_en.pdf (see page 3).
171 Report from the Commission to the European Parliament and the Council the implementation of Regulation (EC)
No 767/2008 of the European Parliament and of the Council establishing the Visa Information System (VIS), the
use of fingerprints at external borders and the use of biometrics in the visa application procedure/REFIT Evaluation
COM(2016) 655 final.
172 Feasibility Study to include in a repository documents for Long-Stay visas, Residence and Local Border Traffic
Permits - Phase1: Analysis of Options, 2017.
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structure to include these documents would be the best option. The study also concluded
on the need to carry out further research and consultations on the
necessity and
proportionality of such a measure.
Objective and scope of the study
The European Commission’s Directorate-General
for Migration and Home Affairs (DG
HOME) commissioned this study, with the aim of analysing the
necessity
and
proportionality
of including data on long-stay visas and residence documents in the VIS.
As required by the necessity test, the study identified other options that could potentially
also address the problem, using the input collected during stakeholder consultations. More
specifically, the study aims at answering the following questions:
What is the
problem
to be addressed?
What are the
objectives
of the initiative?
What are the legislative and non-legislative
options
that can be considered? How do
they
compare?
What are the
impacts
on fundamental rights? Are they
proportionate
(does any other
option achieve the objectives with less interference on the rights of the data subjects)?
The scope of the study does not cover and is without prejudice to MSs' and EU’s
competence to define the conditions of issuing long-stay and residence documents. The
assessed measure would only address issues related to the lack of shared information on
these documents at the borders and during the processing of a new application.
Approach and methodology of the study
To achieve its aim, the study follows the guidance provided in the
Better Regulation
Guidelines
and Toolbox, in particular Tool 28
173
. It follows the instructions given in the
EDPS Toolkit for assessing the necessity of the measure as regards its impact on the right
to data protection.
The study used two main data collection tools:
Desk research
including, among others, the Treaties, the VIS and the SIS legal bases
and relevant case law;
Stakeholder consultations:
consultations with the European Commission (including
two meetings with the relevant Directorates-General), one interview with Frontex and
one interview with eu-LISA were carried out. In addition, a questionnaire was sent to
MSs. Finally, the study also took into account the results of the public consultation
carried out by the Commission between November 2017 and February 2018.
173
“Fundamental Rights & Human Rights”.
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2.
What is the problem?
Problems
1.
Fraud
Consequences
Problem Driver
Fragmentation of
the information
Operational difficulties at the
borders
2. Security and migration risks
3. Administrative burden
Difficulties in gathering
information to perform an
assessment
of the TCN’
situation
4. Lengthy border-crossing procedures
5. Lack of statistics
Figure 1 Problem definition
Problem driver: fragmentation of the information on long-stay and residence
documents
For short-stay visas (stays in the EU of less than 90 days within a period of 180 days),
there is a common format in all Schengen Member States and their application and
issuance procedures have been harmonised. Information on these documents and their
applications is stored in the VIS. The system is used by migration authorities and border
guards, as well as national and European law enforcement authorities under special
conditions. It provides reliable information on the authenticity and validity of short-stay
visas and on applications, including those handled by other MSs.
Long-stay and residence documents are not fully harmonised, and in the case of residence
cards, their format can differ from one issuing Member State to another. Moreover, there is
no systematic exchange of information on these types of documents between Member
States, which lead to operational difficulties at the borders and during the issuance process.
Border guards and migration authorities have no fast and systematic access to information
on documents issued by another Member State. The available data is partial and scattered
in different systems and tools (SIS, SLTD, FADO, bilateral contacts between MSs…)
which leads to lengthy procedures to collect all the relevant data for the day-to-day
activities of national authorities.
Member states and the respondents to the public consultation confirmed these issues: 86%
agreed with the identified information gap that leads to problems in management of
external borders and irregular migration within the EU.
Problem: operational difficulties at
the border and during the assessment of TCNs’
situations
From a border-control point of view, and during checks carried out within the territory of
the MSs, it is crucial to ascertain the authenticity and validity of the documents. The holder
of a long-stay or residence document can enter the Schengen Area via any external border-
crossing points, and not all these documents possesses the same, strong security features.
Of the three documents, only residence permits and residence cards issued in a residence
permit format have a chip
174
, thus allow electronic verification through Passive
Authentication (using the respective country cryptographic certificate). In addition, while
174 The check that the residence permit belongs to the bearer is done by reading the facial image from the chip of the
document and comparing it with the one of the bearer. In case of failure or doubt, the stored fingerprints can be
accessed. However, the information on the chip needs to be checked on its authenticity which can be done by
exchanging cryptographic certificates between MSs (this topic is further discussed in section 3.1.2).
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residence permits and long-stay visas format are harmonised, this is not the case for
residence cards. Thus, the visual inspection of document’ security features is made difficult
by the different formats and
–
for some documents
–
the rarity with which they appear at
certain border-crossing points, in addition to the heterogeneous use of security features.
Lastly, the border guards have different tools to gather information to assess the validity of
a document, some automated (SIS and SLTD for lost, stolen, misappropriated and
invalidated documents), others to be used at second-line border checks, like the FADO for
images of authentic and forged documents. However, the information contained in the
systems is not always sufficient (in terms of both quality and quantity). The SIS does not
provide information on previous fraud attempt(s) by an applicant and cannot provide
information on documents that have not been reported as stolen or lost. Border guards
ultimately have to rely on bilateral contacts with the issuing Member States, via
communication channels like SIRENE, but also by phone or emails. Consulted
MS complained about these procedures as being time-consuming and inefficient. For the
large majority (80%) the lack of shared information on these documents was a hurdle to
their day-to day activities.
From a migration assessment point of view, it is important to have information on relevant
elements of the situation of a person to assess accurately whether the applicant would pose
a migration or a security risk. In addition to checking national systems, the only EU-level
exchange of information migration authorities have at their disposal is the SIS for alerts on
entry bans. There is no dedicated tool to share information on applications and reasons for
refusal, which might be linked to migration or security risks.
Consequences: fraud, security and migration risks, administrative burden and lack of
statistics
This situation leads to five main consequences:
1.
Administrative burden:
as migration and border control authorities have to go
through different procedures in different systems and tools to gather an incomplete
picture on the TCN and her/his document. The bilateral exchange of information is the
last resource they use, which has different inherent constraint: language barriers and
long waiting times.
Lengthy border-crossing procedures:
the above-mentioned issues at borders directly
impacts the journey of bona fide TCNs holding long-stay or residence documents, who
suffers
delays
and who
risk being wrongly denied entry or passage.
When there is a
doubt on a document, the further checks and bilateral contact between MS are carried-
out at second-line border check, which means that the TCN has to wait at the borders
for his/her situation to be clarified. Ultimately, this situation can lead to the
infringement of the
Freedom of Movement
of bona fide TCN who reside in the
territory of a Member State (Article 21 TFEU and Directive 2004/38) if they are not
allowed to cross the internal (during an ad hoc check) or external borders due their
document not being trusted.
Document fraud:
the information gap can create blind spots in the border-
management framework and foster fraud on less secured documents. This is especially
important when considering the existing and ongoing strengthening of border checks
for other categories of travellers (e.g. mandatory checks of EU citizens at external
2.
3.
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borders, ETIAS for short-stay visa-exempt travellers, VIS for short-stay visa holders
and EES for all short-stay visitors). This reinforcement of security and border
management measures could motivate people with ill intentions to look for other,
less
secure types of documents
that would allow them to enter the Schengen Area and
move across Member States. This phenomenon has already been observed with ID
cards, whereby fraudsters target less secure EU ID cards for intra-Schengen
movements
175
(fraud
based on the ‘weakest
link’
approach).
In addition, obtaining authentic documents based on
false application documents
(birth, marriage and death certificates) is one of the biggest challenges in terms of fraud
as it is very difficult to detect. This type of fraud is increasingly attractive for
fraudsters, as the document become more secure. Better information exchange between
MSs during the application process could help identify more cases
176
.
Table 1: Fraudulent documents
–
Fronex Risk Analzsis for 2017
4.
Security and migration risks:
the fraud problem inevitably leads to a security issue
for the EU. Fraud is used by
organised crime
as a mean for a series of
related serious
offences,
notably for terrorism, human trafficking, migrant smuggling or drug and
firearm trafficking
177
.
In addition, forged documents are the gateway used by irregular migrants to enter and
move within
the EU. According to Frontex’s 2017 Annual Risk Analysis, smugglers
frequently provide migrants with fraudulent travel and identity documents. The agency
observes that both the quantity and quality of fraudulent documents circulating in the
EU have increased in recent years
178
. In fact, smugglers are supported by criminal
networks with access to expert counterfeiters who, financed by the strong demand,
have set-up print shops
179
.
5.
Lack of statistics:
as observed in the 2017 study
180
, the analysis of fraud related to
long-stay and residence documents is particularly complex due to a lack of available
data on the problem. On the one hand, and as explained above, any statistic on
175
Frontex,
Risk
Analysis
for
2017,
page
23,
http://frontex.europa.eu/assets/Publications/Risk_Analysis/Annual_Risk_Analysis_2017.pdf
176 Europol funded the development of a handbook on the detection
of false application or “breeder” documents. It
contains samples and short descriptions of European ID documents and breeder documents. It is not used as much
as it should be according to the EC Communication on Action plan to strengthen the European response to travel
document fraud.
177
Communication from the Commission to the European Parliament and the Council on an “Action Plan To
Strengthen The European Response To Travel Document Fraud” of December 2016, COM(2016)790.
178
Ibid, p. 22.
179
Ibid.
180 Feasibility Study to include in a repository documents for Long-Stay visas, Residence and Local Border Traffic
Permits - Phase1: Analysis of Options, 2017.
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detection of forgeries is bound to underestimate the actual size of the problem as the
successful fraudsters go undetected. On the other hand, there is a shortage of statistics
at EU level concerning this category of TCNs:
The data is kept at national level in MSs’ information systems;
Eurostat does not have statistics on long-stay visas and the statistics on residence
permits are limited;
Frontex data does not distinguish between residence permits and residence cards
and sometimes does not distinguish the fraud between Schengen (short-stay) and
long-stay visas. Similarly, frauds on the breeder documents are complex to quantify
as the data is kept at national level.
3.
What are the objectives of the initiative?
General objectives
In line with the problem defined above, the study identified the following general
objectives, validated by the European Commission:
I.
II.
III.
To improve security within the EU and at its borders;
To facilitate TCNs’ right to move and reside freely within the EU;
To improve the management of the Schengen external border.
Specific objectives
Two main specific objectives and two ancillary ones supplement the general objectives:
Figure 2: Policy objectives
4.
Why an EU action?
To address the problem, MSs could act on an individual basis, by strengthening their
documents, their issuance process, document checks at border-crossing points or by
reinforcing or systematising bilateral cooperation.
However, this approach has inherent limitations:
Its benefits are automatically dependent on the number of MSs committed to
the initiative(s).
The more MSs that implement individual actions, the more secure
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the EU territory. The action of all MSs would therefore achieve greater benefits
–
which EU action would necessarily entail, but which is unlikely without it
181
;
Part of the problem cannot be solved without the coordination of all MSs.
There is currently no way for one MS to know if other MSs possess relevant long-
stay information on a person without contacting each one of them. This process
would be overly cumbersome and lengthy, and is therefore infeasible;
Differences in MSs’ security levels may lead to weak points for the Schengen
Area.
For example, some MSs, on their own initiative, may continue to implement
policies towards harmonising long-stay documents by gradually phasing out
problematic ones and introducing improved security features based on international
standards. However, this approach would still result in a situation where the
security of documents would be inconsistent: documents from some MSs would
still be less secure than documents from others, therefore constituting a weakness
for the security of the Schengen Area as a whole;
Additional difficulties may arise from uncoordinated actions.
For example, the
different bilateral cooperation processes are likely to abide by different rules.
Systemising them would increase workload and possibilities for confusion for
border guards, thus increasing the possibility of mistakes.
Therefore,
Member States alone cannot adequately address the problem:
they can, at
best, partially address it. More than 90% of the MS consulted considered necessary an EU
legislative response to address the information gap.
5.
What are the options to address the problem?
The study identifies five options, some of them including sub-options that could potentially
address the problem.
Table 2: Policy options
No action
Option 1:
No policy change / “do nothing”
Non legislative action
Option 2:
Improve the current exchange of information
and checks
2a Improve the exchange of bilateral information on a case-by-case basis
Improve the feeding and use of information in the SIS as regards alerts on withdrawn long-stay
2b and residence documents
182
(improve amount/quality of information fed into the system) (e.g.
whether a residence permit was stolen, invalidated, misappropriated or lost)
Promote the use of security features for documents containing a chip: Passive Authentication
2c
and Extended Access Control)
Legislative action
Option 3:
Further harmonise and secure long-stay visas and residence documents (e.g. security
features)
Option 4:
Create an interconnection between national databases that would allow all MSs to query
181 As mentioned in footnote 23, the United Kingdom, Ireland and Denmark would not be bound by EU action in the
area of freedom, security and justice.
182 Council Decision 2007/533/JHA, article 38.2(e)
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each other’s
relevant national databases
Option 5:
Extend the scope of the VIS to include long-stay visas and residence documents
Store data on issued documents (including biographical data provided for in the document) and
5a
the document’s history (withdrawn, renewed,
etc.)
Also store data on all applications (e.g. the fact that an application has been lodged, when,
5b
where, by which MS, for what type of document, main reason for refusal if refused, etc.);
5.
Findings and conclusions of the study
Impact on fundamental rights
The study assesses the impacts on fundamental rights of the
options and sub-options that
meet the two main policy objectives.
Therefore, the
analysis focuses on options 4, 5.a
and 5.b.
Necessity
The table below summarises the assessment,
on a scale of “----” (strong negative impact)
to “++++” (strong positive impact).
Table 3: Analysis of impacts on fundamental rights
Policy options
Option
decentralised
database
4:
Article 2
Article 7
Article 8
Article 45(2)
+
(if residence
cards are
included)
0 (if they are
not)
+
-
-
Option 5: Include
long-stay documents
in the VIS
Sub-option a): store
data
on
issued
documents
+
--
--
++
(if residence
cards are
included)
0 (if they are
not)
Sub-option b): store
data on all applications
++
---
---
++
(if residence
cards are
included)
0 (if they are
not)
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As shown above, options 4, 5.a and 5.b have negative impacts on the right to privacy and
the right to data protection. The rights to privacy, to personal data protection and to
freedom of movement are not absolute and may be limited, provided the limitations are:
Provided for by law;
Respect the essence of the rights;
Meet objectives of general interest or the need to protect the rights and freedom of
others;
Necessary;
Proportionate
183
.
All options would meet the three general objectives, but to a different extent, as
summarised by the table below.
Table 4: Effectiveness in meeting the objectives
Objective
Option
General
objectiv
e I:
security
General
objective II:
freedom of
movement
+ (if residence
cards are
included)
0 (if they are
not)
+
(if residence
cards are
included)
0 (if they are
not)
++
(if residence
cards are
included)
0 (if they are
not)
++
(if residence
cards are
included)
0 (if they are
not)
General
objective
III:
manageme
nt of
border
Specific
objective
1:
strengthe
n checks
Specific objective
2: information-
exchange
3: further
harmonise
and secure
+
++
+
0
4:
decentralise
d database
+
+
+
+
5.a: store
data on
issued
documents
+
++
+
0
5.b: store
data on all
applications
++
++
+
+
183
EDPS (April 2017) “Assessing the necessity of measures that limit the fundamental right to the protection of
personal data: A Toolkit”, page 4
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The policy objectives to be achieved cannot be addressed by less intrusive measures than
option 5.b. Other less intrusive measures were considered but they do not reach the
objectives at all or only partially. The more intrusive measure, option 5.b, is therefore
considered as necessary.
Proportionality
The limitations to fundamental rights brought about by option 5.b are proportionate to the
desired aim, as demonstrated below.
The limitation would bring about significant advantages:
limiting the rights would
enable the general and specific objectives to be met.
It would also entail some
disadvantages as it would negatively affect the right to data protection:
option 5.b
entails collecting, storing and accessing 17 data items related to issued long-stay
documents issued and applications. It relies on the VIS, a central database, for storage.
This limited data set would be collected, on about 22 million people
184
(including residence
cards).
However, this limitation on the right to data protection is minor and strictly limited
to what is necessary
to achieve the objectives. The data set does not encompass the
special categories of data that are considered particularly sensitive, and contains little data
that would yield information on a person’s
private life. The “reason for the negative
decision” might, if left as a free text field, represent a risk to privacy or reveal personal
sensitive data (e.g. health data) on rare occasions. The use of a drop-down menu, tick
boxes or another technical feature in the form could prevent this. This limited data set
would be collected, at most, on about 22 million people
185
(including residence cards).
Only personal data that is adequate and relevant for the purposes of the processing would
be collected and processed
186
. This data set does not go beyond what a border guard
currently sees when examining a long-term visa, residence card or permit presented at the
border.
Thus, the limitation is justified as the
advantages outweigh the disadvantages
caused
with respect to the exercise of fundamental rights;
it is proportionate
to the desired
objectives as it reaches a fair balance between them and the fundamental rights at stake (in
this case data protection).
Comparison of options: coherence, effectiveness and cost-benefit
For each of the options and sub-options, the study analysed the following criteria (in
addition to impact on fundamental rights, necessity and proportionality):
Coherence:
is the option coherent with the overarching objectives of EU policies?
All options except option
1 (“do nothing”) are coherent with the overarching
objectives of EU policies.
184 Amount of residence
cards for ≈1
million people.
185
Amount of residence cards for ≈1
million people.
186 Biographical and document data would be used to compare with the data of the presented document and to detect
forged, counterfeited and stolen blank documents. Decision data would be used by migration authorities to inform
their decisions during the application process. Data generated by the repository would be used to structure the
database.
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Effectiveness:
does the option meet the objectives?
Sub-option 5.b is the only option that fully addresses the second objective, as
storing data on documents and applications would offer migration authorities a
complete picture on the situation of the TCN applying for a new document.
Efficiency:
do the benefits of the option outweigh its costs?
Efficiency was analysed for the options and sub-options that meet the two main
policy objectives (4, 5.a and 5.b).
Option 4
–
creating a decentralised database among all MSs with different data sets,
technical standards and access rights (due to the variable geometry of the topic of
legal migration)
–
is likely to be
very expensive and time-consuming to
implement
and pose major difficulties deriving from the different governance,
legal basis and technical solutions used across national systems. Option 5 (either
sub-option) offers significant advantages and a much better cost-benefit.
The table below summarises the assessment of each option against the criteria.
Table 5: Comparison of policy options
Coherence Effectiveness Efficiency
1 No change
0
0
Improve existing: bi-lateral exchange of
++
+
2a information
Improve existing: use of the SIS
++
+
2b
Improve existing: use of the electronic
++
+
2c document authentication
3 Further document harmonization
+
187
++
+
4 Distributed database
++
+
--
Extend the VIS with documents data
+++
++
++
5a
Extend the VIS with documents and
+++
+++
++
188
5b application data
Best-scoring option
Option 5b “Extend the scope of the VIS to include long-stay
visas and residence
documents
–
Store also data on all
applications” is the preferred option for the following
reasons:
Necessity:
There is no equally effective but less intrusive measure available: thus, the
measure is necessary;
Option
187 The option scored positively for efficiency at securing the borders in term of efficiency based on the assessment
included in the IA of the DG JUST proposal. However, the benefits cover only one of the two objectives in scope
for this legislative initiative. As explained through the study and in particular in section 3.2, this option will not
help MS cooperation, nor the exchange of information to strengthen the issuance process.
188 Not the full application data, but only whether a person has applied for a document and what was the outcome.
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Proportionality:
The measure’s impact on fundamental rights, including data
protection and privacy, is limited while it brings significant advantages: the measure is
proportionate;
Coherence, effectiveness and efficiency:
The measure meets the criteria more than
any other alternative. In particular, option 5 would allow
triangular verification
(person->document->system), which has proven to be a successful approach for the
efficient tackling of unlawful use of documents through the correct assessment of (i)
their validity and authenticity and of (ii) the identity of the holder. It provides a higher
level of security than just reinforcing the documents, as not only would work even
when the chip cannot be read or verified, but it would also strengthen the application
process. The system could be consulted easily at the border by scanning the passport,
thus simplifying the process at the border.
Should the collection of fingerprints be harmonised across MS for all documents, these
could be stored centrally further strengthening the EU against identity frauds, just like
what is done for short stay travellers whose biometrics are collected in the EES and
VIS. Finally, a central system setup would be able to leverage on the tools introduced
with the recent interoperability legislative proposal and benefit in terms of efficient use
of the information available.
Overall, this option would have a positive societal impact both on EU citizens who would
benefit of the additional security of the Schengen Area, and on TCNs who would benefit of
a potentially faster border crossing. .
6.
The way forward/what are the next steps
This study is a
first step
towards the possible future adoption and implementation of the
measure. The European Commission will present an
impact assessment building
on the
work carried out during the study.
The
final option, sub-option, design and set-up to be retained depend on political and
policy decisions.
Based on these decisions, the European Commission is expected to
present legislative amendments to the VIS.
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A
NNEX
10: C
ONSIDERATIONS ON THE
U
SE OF
B
IOMETRIC
D
ATA
(
TOPIC
3)
When coupled with biometric information, border checks are even more secure. Indeed,
the
triangular verification
(person->document->system) supported by biometrics has
proven to be a successful approach for the efficient tackling of unlawful use of documents
through the correct assessment of their
validity
and
authenticity
and of the
identity
of the
holder.
Falsification techniques evolve very quickly and criminal networks are increasingly
specialised, developing new forms of forgery (manipulation of anti-forgery devices and
techniques to circumvent biometric checks). As imposter fraud and fraudulent acquisition
of authentic documents are increasing and counterfeiting slightly decreasing, the triangular
verification is a better-equipped technique to deal with the new trends in document fraud.
As observed by Frontex
189
, “the
roll-out of the VIS and the obligation as of October 2014
for border-control authorities to check the fingerprints of all relevant visa holders are
likely to reduce the number of Schengen visa
impostors in the future and (…) increase the
likelihood of frauds of other types of travel documents”.
Figure 1: Triangular verification
Lastly, the inclusion of biometric data in the VIS could allow for the
identification of
undocumented TCNs,
in cases in which they entered the Schengen Area via a long-stay
or residence document before overstaying.
It is, however, important to note some shortcomings in terms of biometric data available
for long-stay and residence documents. These documents are nationally issued, as opposed
to short-stay
“Schengen” visas, with issuance process has been fully harmonised at EU
level. Although the regulations on the harmonisation of long-stay visas and residence
permits set a minimum biometric data to be collected, the situation very much differs from
one Member State to another. In fact, not all Member States collect and store biometrics
and even when they do, a different number of fingerprints is collected with different
quality criteria. This means that to enable such a use-case, the way the documents are
issued would have to be harmonised to include the requirements of capturing and storing
biometric identifiers according to common standards.
189 Annual Risk Analysis 2015
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Nevertheless, knowing MS collect biometric data for long-stay visas and residence permits
(as laid down by the harmonised formats of these documents) and considering the technical
capabilities for the proposed Share BMS, it would be
technically feasible to work with
the limited set of biometric data
as currently contained in the documents (only with facial
image for instance). The limitations observed are based on data protection considerations.
In light of the technical feasibility, of the potential benefits stemming from the use of
biometrics to fight frauds and to establish a person centric storage of information, the
inclusion of biometrics could be considered after a period of assessment
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A
NNEX
11: A
VAILABLE POLICY OPTIONS OVERVIEW
(
PREFERRED OPTION IN
BOLD
)
Copy of the travel document
Option 1.0
Option 1.1
Status quo
Include a digital copy of the travel document in the central VIS
(centralised)
Option 1.2
Sub-option A
Sub-option B
Fingerprinting of minors
Option 2.0
Option 2.1
Option 2.2
Status quo
Lowering the fingerprinting age to 6 years
Lowering the fingerprinting age including all ages
Include a digital copy of the travel document in national visa systems
(decentralised)
Storage of biographical page only
Storage of all used
pages of the applicant’s travel document
Long-stay visas and residence documents
Option 3.0
Option 3.1.a
Non-legislative
Option 3.1.b
Status quo
Improve the exchange of bilateral information on a case-by-case basis.
Improve the feeding and use of information in the SIS as regards alerts on
withdrawn long-stay and residence documents
Promote the use of security features for the documents containing a chip:
Passive Authentication and Extended Access Control
Further harmonise and secure long-stay and residence documents
Create an interconnection between national databases that would allow all
MSs to query each other’s relevant national databases
Integration in the VIS
–
without data on rejected applications
Integration in the VIS
–
with data on rejected applications
Option 3.1.c
Option 3.2
Legislative
Option 3.3
Option 3.4.A
Option 3.4.B
Migration and security checks
Option 4.0
Option 4.1
Option 4.2
Status quo
Systematic and automated check against available databases (ETIAS model)
Automated cross-checks + screening rules
121