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Ann-Charlotte Nygård,

Programme Manager, FRA

Roundtable: Possibilities for cooperation on

consular and visa issues in the Danube Region

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Member State obligation:

Implementation of EU law in line with fundamental rights.

It is about the individual, the person affected.

Schengen evaluations – FRA participated

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EU Charter for Fundamental Rights applies when implementing EU law – Visa Code and the VIS Regulation

Dignity – Art. 1 Principle of non-discrimination – Art. 21 Right to remedy – Art. 47 Rights of the child – Art. 24 Data protection – Art. 8 Prohibition of trafficking – Art. 5(3)

Person affected: the visa applicant, visa holder

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EU law: Visa Code

Article 39 Conduct of staff 1. Member States’ consulates shall ensure that applicants are received courteously. 2. Consular staff shall, in the performance of their duties, fully respect human dignity. Any measures taken shall be proportionate to the objectives pursued by such measures. 3. While performing their tasks, consular staff shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation

• Applicants treated in a respectful and courteous manner

• Reception conditions• Excessive requirements for

supporting information for issuing a secure visa, may limit legitimate travel

• Harmonised lists of supporting documents per duty station promotes equal treatment

• Treatment of applicants forwarded by less trusted facilitators (travel agents)

FR Charter: Dignity – Art. 1 Principle of non-discrimination – Art. 21

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Dignity – Art. 1 Principle of non-discrimination –

Art. 21Article 21

Verification of entry conditions and risk assessment

9. A previous visa refusal shall not lead to an automatic refusal of a new application. A new application shall be assessed on the basis of all available information.

• Professional and fair treatment

FR Charter: Dignity – Art. 1

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EU law: Visa Code and VIS Regulation

Article 47 (Visa Code)Information to the general public 1. Member States’ central authorities and consulates shall provide the general public with all relevant information in relation to the application for a visa, in particular: etc..Article 37 (VIS Regulation)

Right of information1. Applicants and the persons referred to in Article 9(4)(f) shallbe informed of the following by the Member State responsible:(a) the identity of the controller referred to in Article 41(4),including his contact details;Etc.

• Necessary to exercise the right to appeal

• Professional and fair treatment

Right to remedy – Art. 47

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EU law: Visa Code

Article 32 Refusal of a visa 2. A decision on refusal and the reasons on which it is based shall be notified to the applicant by means of the standard form set out in Annex VI.

• Adequate information on the grounds for the refusal provided so that the right to appeal can be exercised in practice

FR Charter: Right to remedy – Art. 47

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EU law: Visa CodeArticle 32 Refusal of a visa 3. Applicants who have been refused a visa shall have the right to appeal. Appeals shall be conducted against the Member State that has taken the final decision on the application and in accordance with the national law of that Member State. Member States shall provide applicants with information regarding the procedure to be followed in the event of an appeal, as specified in Annex VI.

• Adequate information on the procedure to be followed in the event of an appeal

• Administrative requirements for submitting an appeal, such as time lines for handing in an appeal, language requirements or other requirements - Is there a risk that such requirements prevent appealing a negative decision, in practice?

• Last instance of the appeals bodies a judicial body. (Previous instances may have been administrative bodies)

FR Charter: Right to remedy – Art. 47

and VIS RegulationArticle 38 Right of access, correction and deletionArticle 39 Cooperation to ensure the rights on data protectionArticle 40 Remedies

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Identification of: - missing children- THB victims

FR Charter: Right of the child – Art. Victims of THB

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Service providers respect the principle of human dignity, the integrity of applicants and the principle of non-discrimination (Visa Code, Article 43, Annex X)

• Fundamental rights provisions reflected in training and training manuals, work manuals, instructions

• Mechanism for oversight should include monitoring of fundamental rights

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VIS – who are the individuals concerned?Visa applicants

Visa holders

(data subjects)

Asylum seekers

Apprehended irregular migrants within the territory

Returnees

Suspected terrorist or of having committed serious crime

Information inserted

Information searched

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….increasing use of modern technologies for border surveillance and border control purposes and its implications on fundamental rights…

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FRA Annual Work Programme 2014-2016:‘’Biometric data in large IT borders, visa and asylum databases’

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Fundamental rights implications

Eurodac VIS SIS II

Collection

Reading

Storage

Access to data

Exchange of data

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Dignity

Dignity

DignityRight to asylumRight to protection of personal dataRight to privacyRight to informationAccess to remedyDiscriminationRights of the childRights of victims of crimesLiberty and security of personInhuman or degrading treatment

’Biometric data in large IT borders, visa and asylum

databases’

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Positiveimplications

Negative implications

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Biometric identifiers contribute to fewer cases of mistaken identity

Searches for missing children and victims of trafficking may be optimised by making use of information stored in the databases

Use of technology may contribute to less profiling if correctly administered

Methods for collecting fingerprints may be more or less intrusive on the privacy of the person

Use of coercive measures if the person is unwilling to provide fingerprints

The person may be suspected of having deliberately destroyed the fingerprints if being physically unable to provide readable fingerprints

Low quality of fingerprints can lead to a false acceptance or a false rejection. The result of the false match can be mistaken identity or the person is suspected of hiding his or her identity

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Technical failure or lack of training of staff affecting the quality of the data of the person included in the database or access to procedures

Information on the purpose of including his/her information in the databases is not provided to the person

The person cannot exercise the right of access to data, according to the law, stored about him or her in the database

The person has no access to procedures for correcting or deleting wrong data

Decision affecting the person is based on wrong data

Asylum seekers and visa applicants are more often associated with crime due to access of law enforcement authorities to the databases

Purpose of use of information in the databases extending beyond original purpose

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How we are carrying out this project?

2014-2015 – Mapping the context and preparing field

research

•Comprehensive mapping of steps in the work process for using the databases in EU 28 - FRANET

•Preparation of field research

2016 – Field research

• Questionnaires among consulates, border guards and police

• Qualitative interviews with visa applicants, NGOs data protection authorities, etc

• Observations to understand how border, immigration and visa authorities use the biometric data and related personal information

2016-2017 –analysis, findings and opinions

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Thank you for your attention!

fra.europa.eu