Heinrich-Böll-Stiftung: Borderline. EU Border Surveillance Initiatives. An Assessment of the Costs and Its Impact on Fundamental Rights
A research paper written by Dr. Ben Hayes / Mathias Vermeulen, Berlin, May 2012
http://media.de.indymedia.org/media/2012/05//330401.pdf
Preface
The upheavals in North Africa have lead to a short‐term rise of refugees to Europe, yet, demonstrably, there has been no wave of refugees heading for Europe. By far most refugees have found shelter in neighbouring Arab countries. Nevertheless, in June 2011, the EU’s heads of state precipitately passed a resolution with far‐reaching consequences, one that will result in new border
policies “protecting” the Union against migration. In addition to new rules and the re‐introduction of
border controls within the Schengen Area, the heads of state also insisted on upgrading the EU’s
external borders using state‐of‐art surveillance technology, thus turning the EU into an electronic
fortress.
The resolution passed by the representatives of EU governments aims to quickly put into place the
European surveillance system EUROSUR. This is meant to enhance co‐operation between Europe’s
border control agencies and promote the surveillance of the EU’s external borders by FRONTEX, the
Union’s agency for the protection of its external borders, using state‐of‐the‐art surveillance
technologies. To achieve this, there are even plans to deploy unmanned aerial vehicles (UAVs) over
the Mediterranean and the coasts of North Africa. Such high‐tech missions have the aim to spot and
stop refugee vessels even before they reach Europe’s borders. A EUROSUR bill has been drafted and
is presently being discussed in the European Council and in the European Parliament.
Member states also want to introduce so‐called “smart borders” to achieve total control over all
cross‐border movements. Following the US model, the plan is to introduce a massive database that
will store information, including fingerprints, of all non‐EU citizens leaving or entering the Union. The
aim is to identify so‐called “over‐stayers,” that is, third‐country nationals who have overstayed their
limited resident permits. In the United States, a similar system has been a failure and nationwide
exit checks were never introduced. Still, the EU’s heads of state and its government representatives
persist – whatever the cost (the EU Commission estimates it will be up to 1.1 billion dollars). Under
pressure from member states, it is trying to introduce the smart borders bill during the summer of
2012.
EUROSUR and “smart borders” represent the EU’s cynical response to the Arab Spring. Both are new
forms of European border controls – new external border protection policies to shut down the influx
of refugees and migrants (supplemented by internal controls within the Schengen Area); to achieve
this, the home secretaries of some countries are even willing to accept an infringement of
fundamental rights.
The present study by Ben Hayes and Mathias Vermeulen demonstrates that EUROSUR fosters EU
policies that undermine the rights to asylum and protection. For some time, FRONTEX has been
criticised for its “push back” operations during which refugee vessels are being intercepted and
escorted back to their ports of origin. In February 2012, the European Court of Human Rights
condemned Italy for carrying out such operations, arguing that Italian border guards had returned all
refugees found on an intercepted vessel back to Libya – including those with a right to asylum and
international protection. As envisioned by EUROSUR, the surveillance of the Mediterranean using
UAVs, satellites, and shipboard monitoring systems will make it much easier to spot such vessels. It is
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to be feared, that co‐operation with third countries, especially in North Africa, as envisioned as part
of EUROSUR, will lead to an increase of “push back” operations.
Nevertheless, the EU’s announcement of EUROSUR sounds upbeat: The planned surveillance of the
Mediterranean, we are being told, using UAVs, satellites, and shipboard monitoring systems, will aid
in the rescue of refugees shipwrecked on the open seas. The present study reveals to what extent
such statements cover up a lack of substance. Maritime rescue services are not part of EUROSUR
and border guards do not share information with them, however vital this may be. Only just
recently, the Council of Europe issued a report on the death of 63 migrants that starved and
perished on an unseaworthy vessel, concluding that the key problem had not been to locate the
vessel but ill‐defined responsibilities within Europe. No one came to the aid of the refugees – and
that in spite of the fact that the vessel’s position had been known.
In reaction to the Arab Spring, EU member countries are not only promoting a total surveillance of
the Mediterranean, they are also pushing for an electronic upgrading of border controls. This means
that ordinary travellers, too, will come into the focus of border guards in what one may well call a
data juggernaut. Through its “smart borders” programme the EU would create one of the world’s
largest databases for finger prints – not with the aim to fight terrorism or stem cross‐border crime
(even that would be a questionable endeavour), but solely in order to identify individuals that have
overstayed their limited residency permits.
One of the fundamental findings of the study is that the EU’s new border regime would not only
infringe fundamental rights, it would also, in spite of its questionable benefits, cost billions – and
that against the background of pervasive budget cuts and austerity measures. Above all, this would
profit Europe’s defence contractors, as they would receive EU funding for “smart gates,” UAVs, and
other surveillance technologies. The technological upgrading of the EU’s external borders will
obviously open up new markets to European security and armament companies. What we witness is
a convergence of business interests and the aims of political hardliners who view migration as a
threat to the EU’s homeland security.
The EU’s new border control programmes not only represent a novel technological upgrade, they
also show that the EU is unable to deal with migration and refugees. Of the 500,000 refugees fleeing
the turmoil in North Africa, less than 5% ended up in Europe. Rather, the problem is that most
refugees are concentrated in only a very few places. It is not that the EU is overtaxed by the
problem; it is local structures on Lampedusa, in Greece’s Evros region, and on Malta that have to
bear the brunt of the burden. This can hardly be resolved by labelling migration as a novel threat and
using military surveillance technology to seal borders. For years, instead of receiving refugees, the
German government along with other EU countries has blocked a review of the Dublin Regulation in
the European Council. For the foreseeable future, refugees and migrants are to remain in the
countries that are their first point of entry into the Union.
Within the EU, the hostile stance against migrants has reached levels that threaten the rescue of
shipwrecked refugees. During FRONTEX operations, shipwrecked refugees will not be brought to the
nearest port – although this is what international law stipulates – instead they will be landed in a
port of the member country that is in charge of the operation. This reflects a “nimby” attitude – not
in my backyard. This is precisely the reason for the lack of responsibility in European maritime rescue
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operations pointed out by the Council of Europe. As long as member states are unwilling to show
more solidarity and greater humanity, EUROSUR will do nothing to change the status quo.
The way forward would be to introduce improved, Europe‐wide standards for the granting of
asylum. The relevant EU guidelines are presently under review, albeit with the proviso that the cost
of new regulations may not exceed the cost of those in place – and that they may not cause a
relative rise in the number of asylum requests. In a rather cynical move, the EU’s heads of
government introduced this proviso in exactly the same resolution that calls for the rapid
introduction of new surveillance measures costing billions. Correspondingly, the budget of the
European Asylum Support Office (EASO) is small – only a ninth what goes towards FRONTEX.
Unable to tackle the root of the problem, the member states are upgrading the Union’s external
borders. Such a highly parochial approach taken to a massive scale threatens some of the EU’s
fundamental values – under the pretence that one’s own interests are at stake. Such an approach
borders on the inhumane.
The research paper “Borderline” examines three new EU border surveillance initiatives: the creation
of a European External Border Surveillance System (EUROSUR); the establishment of an Entry‐Exit
System (EES); and the creation of a Registered Traveller Programme (RTP). EUROSUR promises
increased surveillance of the EU’s sea and land borders using a vast array of new technologies,
including drones (unmanned aerial vehicles), off‐shore sensors, and satellite tracking systems. The
EES would record the movement of people into and out of the Schengen area and extend biometric
ID checks to all non‐EU nationals (including those not currently subject to EU visa requirements) with
the aim of helping border guards identify “overstayers”. With the proposed RTP, third‐country
nationals who have been pre‐vetted and deemed not to pose a security risk to the EU would benefit
from faster entry into the Schengen area. This would rely on the use of automated border gates
already installed in some European airports. EU policy‐makers and the manufacturers of these gates
hope that this will lead to the roll‐out of so‐called smart borders across the EU.
The EU’s proposals were presented as a response to a perceived “migration crisis” that accompanied
the so‐called Arab Spring of 2011 and the arrival of thousands of Tunisians in France. But in reality
the policies have been under development for more than four years. They are now entering a
decisive phase. The European Parliament has just started negotiating the legislative proposal for the
EUROSUR system, and within months the Commission is expected to issue formal proposals for
smart borders and the establishment of an EES and RTP.
Taken together, the EUROSUR and smart borders package could cost in the order of €2 billion or
more. They would result in the gathering of biometric data on millions of travellers, longer waiting
lines at the EU’s external borders, and the establishment of costly new border surveillance systems
in the member states and at FRONTEX, the EU border agency. The European Commission has
produced several impact assessments but, according to the report, these have failed to demonstrate
a pressing social need for the new systems. The Commission’s financial estimates have a wide
margin of error. EU institutions have failed to take into account the insurmountable difficulties that
the United States has faced in introducing comparable systems (US VISIT, which is still unable to
record the exit of travellers from the United States; and SBINET, a border surveillance system along
the Mexican border that was scrapped after technological problems and exploding costs).
The authors call for a proper public debate about both the need for yet more expensive EU‐wide
databases and surveillance systems in an era of crippling austerity. They also argue that a high‐tech
upgrade to the “Fortress Europe” approach to migration control is a questionable response to what
is largely a humanitarian crisis, with thousands of migrants and refugees dying at sea every year.
The report is also critical of the decision‐making process. Whereas the decision to establish
comparable EU systems such as EUROPOL and FRONTEX were at least discussed in the European and
national parliaments, and by civil society, in the case of EUROSUR – and to a lesser extent the smart
borders initiative – this method has been substituted for a technocratic process that has allowed for
the development of the system and substantial public expenditure to occur well in advance of the
legislation now on the table. Following five years of technical development, the European
Commission expects to adopt the legal framework and have the EUROSUR system up and running
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(albeit in beta form) in the same year (2013), presenting the European Parliament with an effective
fait accomplit.
The EUROSUR system
The stated purpose of EUROSUR is to improve the “situational awareness” and reaction capability of
the member states and FRONTEX to prevent irregular migration and cross‐border crime at the EU’s
external land and maritime borders. In practical terms, the Regulation would extend the obligations
on Schengen states to conducting comprehensive “24/7” surveillance of land and sea borders
designated as high‐risk – in terms of unauthorised migration – and mandate FRONTEX to carry out
surveillance of the Open Seas beyond EU territory and the coasts and ports of northern Africa. The
Commission has repeatedly stressed EUROSUR’s future role in “protecting and saving lives of
migrants”, but nowhere in the proposed Regulation and numerous assessments, studies, and R&D
projects is it defined how exactly this will be done, nor are there any procedures laid out for what
should be done with the “rescued”. In this context, and despite the humanitarian crisis in the
Mediterranean among migrants and refugees bound for Europe, EUROSUR is more likely to be used
alongside the long‐standing European policy of preventing these people reaching EU territory
(including so‐called push back operations, where migrant boats are taken back to the state of
departure) rather than as a genuine life‐saving tool.
The EUROSUR system relies on a host of new surveillance technologies and the interlinking of 24
different national surveillance systems and coordination centres, bilaterally and through FRONTEX.
Despite the high‐tech claims, however, the planned EUROSUR system has not been subject to a
proper technological risk assessment. The development of new technologies and the process of
interlinking 24 different national surveillance systems and coordination centres – bilaterally and
through FRONTEX – is both extremely complex and extremely costly, yet the only people who have
been asked if they think it will work are FRONTEX and the companies selling the hardware and
software. The European Commission estimates that EUROSUR will cost €338 million, but its methods
do not stand up to scrutiny. Based on recent expenditure from the EU External Borders Fund, the
framework research programme, and indicative budgets for the planned Internal Security Fund
(which will support the implementation of the EU’s Internal Security Strategy from 2014–2020), it
appears that EUROSUR could easily end up costing two or three times more: as much as €874
million. Without a cap on what can be spent attached to the draft EUROSUR or Internal Security
Fund legislation, the European Parliament will be powerless to prevent any cost overruns. There is
no single mechanism for financial accountability beyond the periodic reports submitted by the
Commission and FRONTEX, and since the project is being funded from various EU budget lines, it is
already very difficult to monitor what has actually been spent.
In its legislative proposal, the European Commission argues that EUROSUR will only process personal
data on an “exceptional” basis, with the result that minimal attention is being paid to privacy and
data protection issues. The report argues that the use of drones and high‐resolution cameras means
that much more personal data is likely to be collected and processed than is being claimed. Detailed
data protection safeguards are needed, particularly since EUROSUR will form a part of the EU’s wider
Common Information Sharing Environment (CISE), under which information may be shared with a
whole range of third actors, including police agencies and defence forces. They also call for proper
supervision of EUROSUR, with national data protection authorities checking the processing of
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personal data by the EUROSUR National Coordination Centres, and the processing of personal data
by FRONTEX, subject to review by the European Data Protection Supervisor. EUROSUR also
envisages the exchange of information with “neighbouring third countries” on the basis of bilateral
or multilateral agreements with member states, but the draft legislation expressly precludes such
exchanges where third countries could use this information to identify persons or groups who are at
risk of being subjected to torture, inhuman and degrading treatment, or other fundamental rights
violations. The authors argue that it will be impossible to uphold this provision without the logging
of all such data exchanges and the establishment of a proper supervisory system.
Smart borders
Whereas the EUROSUR system focusses on unauthorised border crossings, the smart borders
proposals are supposed to enhance checks on third‐country nationals coming to the EU. Specifically,
the proposed Entry‐Exit System is supposed to identify and prevent overstayers, that is, persons who
entered the EU legally with a valid travel document and/or visa, but who became “illegal migrants”
when their legal entitlement to stay expired. According to the European Commission, this category
of migrants constitutes the largest group of “illegal immigrants” in the EU. The EES would work by
registering the time and place of entry and exit of third‐country nationals in order to verify their exit
and/or identify them if they have “overstayed”. In this case, an alert would automatically be sent to
relevant national authorities. The ESS plans the creation of a centralised European database that
would include biometric data such as fingerprints and facial images from all third‐country nationals
entering the Schengen area. Data gathering on such a large scale is only legal and legitimate if there
are compelling reasons that concern public safety or public order. The authors argue that the
European Commission has failed to demonstrate the necessity of such data gathering.
The authors also argue that since there are many perfectly legal explanations as to why people
overstay, an EES alert could never result in automatic sanctions. An alert could only constitute a
presumption of illegal residence, and a follow‐up (administrative) procedure would always be
needed to determine whether a person has the right to stay legally in the EU or not. Thus, at best,
the EES could only ever assist border guards in carrying out passenger checks; current claims that the
EES would lead to an increase in the detection and return of “illegal immigrants” are unfounded.
There is also a lack of reliable evidence supporting the effectiveness and the efficiency of entry‐exit
systems at the national level and outside the EU.
An EU EES would also result in significantly increased waiting times for third‐country nationals
wanting to enter the Schengen area. Whereas third‐country nationals subject to a visa requirement
are already required to provide biometric data on entry, those on the so‐called white list, who do
not require an advance visa, are exempt from this requirement. Extrapolating from border‐crossing
statistics collected during a comprehensive monitoring exercise in 2009, this could result in the
annual fingerprinting of an additional 57 million “white list” third‐country nationals. An earlier
impact assessment stated that, on average, 15 seconds were added to entry procedures in the
United States when biometrics were introduced to its US VISIT programme. If the EU were able to
achieve this target with regard to 57 million third‐country nationals, this would still add the
equivalent of 27 years of queuing time per year at EU borders! The Commission proposes to “offset”
these additional constraints on cross‐border travel by establishing a Registered Traveller Programme
that enables pre‐vetted individuals to cross borders much faster than their unregistered
counterparts. However, the Commission has also estimated that only 4 to 5 million travellers per
year might actually use an EU RTP, out of an estimated 100 million third‐country nationals entering
the Schengen area every year. While it would almost certainly make life easier for business
travellers, an EU RTP would clearly not facilitate travel for the vast majority of travellers or relieve
existing pressure at Schengen’s external borders.
According to the European Commission, the cost of developing the central EES and RTP could be in
the order of €400 million, plus annual operating costs of €190 million per year for the first five years.
Despite the absence of any draft legislation, or even an agreement in principle on introducing smart
borders in the EU, the Commission has already allocated €1.1 billion to the development of an EES
and RTP from the proposed EU Internal Security Fund (2013–2020). The authors of the study argue
that it is unwise that the EU is even considering embarking on another large‐scale IT system before
the Visa Information System and Schengen Information System II have been successfully
implemented. Assuming that the effectiveness of these two systems can be demonstrated, the
Commission will still have a long way to go to demonstrate the need for smarter borders.
Preface ……………………………………………………………………………………………………………………………… 5
Executive Summary ………………………………………………………………………………………………………………… 8
1
Introduction ………………………………………………………………………………………………………….. 12
2
Towards “smart borders” in the European Union? …………………………………………………….. 13
2.1
EUROSUR: European External Border Surveillance System ………………………………………….. 13
2.1.1 The EUROSUR roadmap ………………………………………………………………………………………….. 16
2.1.2 The draft EUROSUR Regulation ……………………………………………………………………………….. 18
2.1.3 Beyond border control: integrated maritime surveillance …………………………………………… 20
2.2
The EU “smart borders” initiative …………………………………………………………………………….. 26
2.2.1 Entry‐exit system …………………………………………………………………………………………………… 28
2.2.2 EES relationship to existing EU systems: VIS and SIS II ………………………………………………… 30
2.2.3 Registered Traveller Programme ……………………………………………………………………………… 32
3
The fundamental rights impact of the EUROSUR and EU “smart border” initiatives ……….. 35
3.1
The right to privacy and the protection of personal data …………………………………………….. 36
3.1.1 EUROSUR ……………………………………………………………………………………………………………… 36
3.1.1.1 The need for safeguards …………………………………………………………………………………………. 39
3.1.2 Smart borders ……………………………………………………………………………………………………….. 41
3.1.2.1 The need for safeguards …………………………………………………………………………………………. 42
3.2
Interference with the right to asylum ……………………………………………………………………….. 44
3.2.1 EUROSUR ……………………………………………………………………………………………………………… 44
3.2.2 Entry‐exit system …………………………………………………………………………………………………… 46
4
Cost, necessity, and effectiveness ……………………………………………………………………………. 47
4.1
Feasibility studies and cost estimates ……………………………………………………………………….. 47
4.1.1 EUROSUR ……………………………………………………………………………………………………………… 48
4.1.2 Entry‐Exit System and Registered Traveller Programme ……………………………………………… 51
4.2
Border security and the European Security Research Programme ……………………………….. 53
4.2.1 EU funded R&D projects supporting EUROSUR ………………………………………………………….. 56
4.2.2 Space‐based border surveillance and the Common Information Sharing Environment …… 61
4.2.3 EU funded R&D projects supporting smart borders ……………………………………………………. 63
4.3
Funding the implementation of EUROSUR and smart borders …………………………………….. 64
4.3.1 The EU External Borders Fund …………………………………………………………………………………. 64
4.3.2 The Development Cooperation Instrument ………………………………………………………………. 65
4.3.3 The Internal Security Fund ………………………………………………………………………………………. 66
4.4
The United States’ experience: SBI‐net and US VISIT ………………………………………………….. 67
5
Conclusions …………………………………………………………………………………………………………… 68
5.1
EUROSUR ………………………………………………………………………………………………………………. 69
5.2
Smart borders ……………………………………………………………………………………………………….. 72
6
Recommendations …………………………………………………………………………………………………. 74
6.1
The broader EU migration policy framework …………………………………………………………….. 74
6.2
EUROSUR ………………………………………………………………………………………………………………. 74
6.3
Entry‐Exit System and Registered Traveller Programme ……………………………………………… 75
Authors ……………………………………………………………………………………………………………………………….. 77
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List of Figures and Boxes
Figure 1: EUROSUR in action ………………………………………………………………………………………………….. 17
Figure 2: “Operational nodes” in the Common Pre‐Frontier Intelligence Picture ………………………….. 20
Figure 3: EUROSUR and the Common Information Sharing Environment…………………………………….. 21
Figure 4: “Policy options” for funding EUROSUR ………………………………………………………………………. 50
Figure 5: Estimated EUROSUR costs: National Coordination Centres and FRONTEX ……………………… 50
Figure 6: Estimated costs of the RTP and EES systems by the Commission ………………………………….. 52
Figure 7: Achieving border security in the EU …………………………………………………………………………… 55
Figure 8: Cost of establishing, upgrading, and maintaining NCCs 2011–2026 ………………………………. 65
Figure 9: Questioning the EUROSUR cost estimates …………………………………………………………………. 71
Box 1: The EUROSUR roadmap ………………………………………………………………………………………………. 16
Box 2: EUROSUR – A system of systems ………………………………………………………………………………….. 23
Box 3: The Visa Information System and the Schengen Information System/SIS II ……………………….. 31
Box 4: EU security research projects supporting EUROSUR ……………………………………………………….. 57
Box 5: GMES projects supporting EUROSUR …………………………………………………………………………….. 61