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EU: Visa Information System: Commission proposals sneak in mandatory biometrics for long-stay visas

20 August 2018

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Visa Information System: Commission proposals sneak in mandatory biometrics for long-stay visas
20.8.18
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EU rules on visa processing oblige all applicants for short-stay visas to provide a variety of personal data, including a photograph and scans of all ten fingerprints, for storage in the central database of the Visa Information System (VIS). Regarding long-stay visas, it is up to Member States to decide what information is taken from applicants - but recent proposals to revamp the VIS include a provision that would introduce a mandatory biometrics requirement. There has been no attempt to demonstrate the necessity or proportionality of this proposal.

Expanding the Visa Information System

In mid-May the European Commission published proposals to amend the legal basis of the VIS, citing the need to "better respond to evolving security and migratory challenges and improve the EU's external border management.".

The VIS is a database used by all Schengen states to assist in processing short-stay visa applications, for example by making it possible to see whether an individual has made previous applications and whether they were successful or not.

The central system can currently hold up to 52 million short-stay visa applications, although under the proposals it is foreseen that it would be necessary to add data on some 22 million long-stay visas and residence permits issued by the Member States.

Inclusion of long-stay visas and residence permits

The proposal to include data on long-stay visas and residence permits in the VIS has come about following the identification of an "information gap" by the High-Level Expert Group on Information Systems and Interoperability, followed by a number of studies concerning the feasibility, necessity and proportionality of filling that gap, as well as two public consultations - one on lowering the fingerprinting age to six years old and the other on including long-stay visa and residence permit data in the system.

Under the proposals, various new items of personal data would be included in the VIS concerning long-stay visa and residence permit holders, including: names; nationality; sex; date of birth; travel document information; and employer, if relevant. [1]

Long-stay biometrics

That proposal also calls for the inclusion of "a facial image of the holder, particularly where taken live" and "two fingerprints of the holder, in accordance with the relevant Union and national legislation."

While there are already EU rules requiring the inclusion of two fingerprints and a photo in residence permits for non-EU nationals, the latter proposal is problematic regarding long-stay visas - as things stand, the Member States are responsible for determining the format of those visas and a number of them do not require long-stay visa applicants to have their fingerprints taken.

A study by the European Migration Network highlights some of the divergences between Member State practices concerning biometric data and long-stay visas and makes clear that there are some Member States that explicitly exclude fingerprinting, although regarding photos the situation is less clear.

One of the annexes to the European Commission's impact assessment states that:

"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."

The annex suggests that "the inclusion of biometrics could be considered after a period of assessment," yet the Commission has chosen to ignore this idea.

The proposal thus attempts to harmonise national practices, yet nowhere in the proposal or any of its supporting documentation is this explicitly recognised or discussed.

While there is a reference in the Commission's proposal to taking fingerprints "in accordance with the relevant Union and national legislation", this does not mean that a Member State could maintain its current choice not to take fingerprints for long-stay visas, as EU law takes precedence over national law - and in any case the proposal has the legal form of a Regulation, which would have direct effect in the Member States.

Furthermore, there has been no attempt to demonstrate the necessity and proportionality of what is yet another proposal to gather sensitive data from a huge number of individuals - yet such a demonstration is a requirement under the Charter of Fundamental Rights.

Fingerprinting everybody

All EU citizens (bar those from Ireland and the UK) must be fingerprinted for their passports. All short-stay visa applicants must be fingerprinted for inclusion in the VIS. All refugees (and soon irregular migrants, when they are "intercepted" by the authorities) are fingerprinted for inclusion in the Eurodac database. Meanwhile the Commission has recently proposed - with no justification other than "security" - to make fingerprinting mandatory for obtaining a national identity card.

Given these developments, the only logical conclusion that can be drawn is that the eventual aim is to fingerprint everybody inside the EU in order to rationalise and make 'legible' (to state institutions) the movement of individuals.

Even if, as the Commission has asserted elsewhere, the "political stance regarding systematic use of fingerprints for secure identification and generally the attitude towards data sharing and security has changed," it must still demonstrate the necessity and proportionality of each and every proposal to gather and process personal data - a requirement that, in this case and in others, it does not seem particularly interested in.

The Council began discussing the Commission's proposals in June, in the Visa Working Party. The European Parliament has adopted a rapporteur for the proposals (Carlos Coelho of the European People's Party) but has not yet held any discussions. [2]

It remains to be seen what response the institutions will have to the Commission's proposals on mandatory biometrics for long-stay visas - if they choose to amend the proposals at all in this regard.

Footnotes

[1] Article 22c on page 55 of the Commission's proposal sets out the full list of data to be taken from long-stay visa applications. The proposal is available here.
[2] Working Party on Frontiers meetings have taken place on 18 June and 9 and 10 July. The European Parliament's page for the procedure is here.

Further reading

All visa applicants to be profiled and children fingerprinted for revamped Visa Information System(Statewatch News Online, August 2018)

EU plans to include fingerprints in identity cards are unjustified and unnecessary (Statewatch News Online, 11 June 2018)

Visa Information System: proposal will "enhance internal security and improve border management" through interoperability and extended data collection (Statewatch News Online, May 2018)

Global fingerprinting: EU database of visa applicants expanding fast (Statewatch News Online, September 2016)

Fingerprinting for all? Inclusion of all travellers in new border database to be discussed by 'High Level Expert Group' (Statewatch News Online, July 2016)

Visa Information System: private companies gathering data, insufficient funding for data protection (Statewatch News Online, November 2015)

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