e-Borders scheme illegal under EU Law

The Home Affairs Select Committee has issued its report into the e-Borders programme. The report does not deal specifically with the concerns of the leisure boating community about the impending requirement of providing passenger data and details of an intended voyage before departure. As was suggested in an earlier post in so far as it applies to the movement of persons between EU countries the whole scheme falls foul of free movement of persons provisions in EU Law.

The legal argument rests on Directive 2004/82/EC. UKBA's view is that e-Borders implements Article 3(1) of Directive 2004/82/EC, which provides

"Member States shall take the necessary steps to establish an obligation for carriers to transmit at the request of the authorities responsible for carrying out checks on persons at external borders, by the end of check-in, information concerning the passengers they will carry to an authorised border crossing point ....".

The fundamental flaw in this argument is that "external borders" is defined as the borders between Member States with third countries. For these purposes, Iceland, Norway and Switzerland are treated as Member States not 'third countries'. Under EU law, Member States are required to grant EU citizens leave to enter their territory subject only to the production of a valid identity card or passport. The additional requirement of pre-notification of intended travel is contrary to freedom of movement provisions of EU law.

On the day the report came out, Phil Woolas MP, the Border and Immigration Minister, issued a statement claiming that "e-Borders is fully compliant with EU law and this has been confirmed by the European Commission". The Home Affairs Select Committee is seeking clarification and has asked the UKBA to take the matter up with the European Commission and report back by February 2010. In the meantime, according to newspaper reports, the scheme has been made voluntary in the sense that citizens of EU Member States seeking to travel within Europe, with departures or arrivals in the UK, have to be to told they do not need to provide e-Borders data.

Gus Lewis, Head of Government Affairs at the RYA, confirms that "the UK Government has assured the EU that travellers who have not provided the UK authorities with relevant personal information will not be denied the right to travel, thereby ensuring that the whole scheme does not fall foul of EU rules on the free movement of people within the EU." See Continued uncertainty over borders scheme on the RYA website.