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Based on its findings and research FRA provides practical guidance to support the implementation of fundamental rights in the EU Member States.
FRA provides practical guidance in the following areas:
- Apprehension of irregular migrants
- Fundamental rights considerations for law enforcement when processing Passenger Name Record (PNR) data
FRA has compiled a document providing practical guidance on the fundamental rights considerations of apprehending migrants in an irregular situation, drawing on input from stakeholders.
It includes do’s and don’ts for law enforcement officials. The findings were drawn up following two meetings with Member State experts, the Platform for International Cooperation on Undocumented Migrants (PICUM) as well as the European Commission. It is part of FRA’s larger work on the fundamental rights of migrants in an irregular situation and follows suggestions made during the Fundamental Rights Conference 2011. The conference showcased FRA’s work on the rights of irregular migrants which revealed that certain practices to detect irregular migrants may disproportionately discourage them from accessing essential services, such as health, education and legal services.
This latest document, providing operational guidance on fundamental rights, has been handed over to relevant EU institutions for further consideration. It was presented to the Council Working Party on Integration, Migration and Expulsion on 26 September and on 28 September to the Contact Committee of EU Member State representatives, which is convened by the European Commission under the Return Directive. The Contact Committee meeting, which took place on 15 March, decided to include the guidance document in the minutes of the meeting. The aim of the minutes is to develop joint views on how the requirements set out in the Return Directive might be met.
The obligation under Article 6(1) of the Return Directive to issue a return decision to any third-country national staying illegally on their territory is subject to the principle of proportionality expressly recognised by the Return Directive. The minutes state that the legitimate aim of fighting illegal migration may be balanced against other legitimate State interests, such as general public health considerations, the interest of the State to fight crime, the interest to have comprehensive birth registration, respect for the best interest of the child as well as other relevant fundamental rights recognised by the EU Charter.
FRA was requested by the European Commission (EC) in January 2014 to provide practical guidance on the processing of Passenger Name Record (PNR) data for law enforcement purposes, in light of efforts by Member States to establish national PNR systems. As a result, in informal consultation with EC services and the European Data Protection Supervisor (EDPS) and building on opinions by opinions by FRA, the EDPS and the Article 29 Working Party on PNR, FRA presented twelve fundamental rights considerations to EU Member States experts at technical level. These twelve fundamental rights considerations constitute a list of “dos and don'ts” on how to operationalise fundamental rights when establishing national PNR systems. They contribute to promote compliance with fundamental rights. They are a living document to be regularly updated based on experience gathered over time.
PNR data are information collected by air carriers for commercial and operational purposes in providing air transportation services. PNR data contain different information, such as travel dates, travel itinerary, ticket information, contact details, the travel agent at which the flight was booked, means of payment used, seat number and baggage information. They are provided by the passengers. PNR data are unverified information and are not necessarily accurate.
In recent times, law enforcement authorities increasingly use Passenger Name Record (PNR) data in an effort to combat serious crime and terrorism (see 2010 Guidance of the International Civil Aviation Organization). In the current absence of EU legislation, a growing number of Member States are establishing national PNR systems on the basis of domestic law.
The twelve fundamental rights considerations are not comprehensive. They do not absolve Member States from their duty to comply with all applicable legal obligations, including those set forth in national law and the relevant EU acquis, and in particular with core data protection principles, including the principles of necessity and proportionality, the principle of lawful processing as well as the principle of purpose specification and limitation. Practitioners can find guidance on these principles in the Handbook on European data protection law published by FRA, the European Court of Human Rights and the Council of Europe in January 2014. In order to ensure full compliance with data protection requirements, authorities responsible for processing PNR data are encouraged to collaborate with national data protection authorities, consulting them at an early stage of the process, including to carry out an impact assessment of the data protection implications of establishing a national PNR system.
At the EU level, the EC presented a proposal on the use of PNR data in February 2011 (COM(2011) 32 final) which is still subject to discussions between the co-legislators. The twelve fundamental rights considerations are without prejudice to any future EU law developments in this area, including conclusions that the EU co-legislator may reach on the necessity and proportionality of processing PNR data for law enforcement purposes.