EU: Smart borders: Commission impact assessments misleading, suggests European Parliament study

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A study produced for the European Parliament published in late October has criticised proposal for an EU "smart borders" system, arguing that the Commission made a political commitment to the project in 2008 and has since "focused on 'selling' the policies at the expense of impartially evaluating their necessity feasibility and impact." According to the study, the impact assessments produced by the Commission have been "designed to legitimise the policy option already chosen by the European Commission." [1]

In February the European Commission published the two legislative proposals that make up its "smart borders" package: one for an Entry/Exit System which would "record the time and place of entry and exit of third country nationals travelling to the EU" in order to automatically detect "overstayers", and the other for a Registered Traveller Programme, which would allow the "pre-screening and vetting" of frequent travellers to the EU, ostensibly in order to speed up their border crossings. [2]

The Commission has since 2007 produced four impact assessments and one feasibility study of its smart borders proposals. Impact assessments are supposed to act as "a decision-making aid" to give the legislature "more accurate and better structured information on the positive and negative impacts" of legislative proposals "but not taking the place of political judgment".

But its most recent impact assessments, published alongside the legislative proposals in March this year, ignore crucial findings of earlier studies.

Cost estimates

In 2010 the company Unisys provided a cost analysis to the European Commission, for which it said "all cost values… should be considered a median value, considering circa 25% as confidence range, plus or minus" - that is, the costs could be up to a quarter lower or higher.

The Commission failed to report on this margin of error in any subsequent reports which reproduced the Unisys estimates, and instead states that cost estimates for the EES and RTP were based on "'maximum value' estimates within a reasonable range meaning that the costs were calculated so that they should not overrun the budget in any circumstances."

This optimism is not borne out by examples of similar systems from other countries. In the US, the US-VISIT (Visitor and Immigration Status Indicator Technology) system was initially supposed to record the entry and exit of visa applicants and other selected foreign nationals, but followed a series of technical and organisational problems costs overran significantly and it now records only a limited number of entries and exits.

The UK's electronic border control schemes are supposed to allow the checking of all passengers against watch lists and also foresee the collection of data from transport service providers (ferries, flights and trains) on all travellers entering or leaving the United Kingdom.

While the practicalities of the systems are somewhat different to the proposed EES and RTP, the EP study argues that a comparison is worthwhile as in 2011 they suffered "a severe crisis tied to the practical consequences of introducing more stringent registration of entry and exit requirements".

This ultimately led to the abolition of the UKBA as an executive agency of the Home Office and the resignation of its director, and the beginning of legal proceedings by the prime contractor Raytheon for damages in excess of £500 million.

More recently, a report by the Independent Chief Inspector of Borders and Immigration found significant failings in the e-Borders component of the border checks system. [3]

The EP study argues every single comparable national initiative has experienced significant delays and escalating costs, and that the Commission's proposed smart borders package would be unlikely to avoid a similar fate.

Nevertheless, responding to questions from EUobserver on questions of cost, the Commission appeared to treat the establishment of the EES and RTP as a foregone conclusion: "the precise figure would be known only when the contracts are in place to develop the systems". [4]

More efficient border controls?

The EES would require all non-EU nationals to have their fingerprints recorded in a database, in order to improve identity verification and ostensibly to speed up border crossing times. The Commission has argued that the introduction of an EES would speed up the process by automating many of the processes currently undertaken manually by border guards.

A 2008 feasibility study produced by Unisys estimated that with an EES border crossings would take 35 seconds for visa holders, 26 seconds for those exempt from having visas and 15 seconds for EU citizens, and described these numbers as "plausible".

A Commission survey of EU Member States in 2009, meanwhile, found that "the average time at air borders on entry for visa holders is 1 minute 44 seconds, for visa exempt nationals 1 minute 3 seconds and for EU citizens 15 seconds". Despite the massive increase in border crossing times these figures represent, the Commission "made no attempt to reassess any of the models used in the feasibility study".

The proposals are still using figures modelled on the acquisition of four fingerprints from visa-exempt third country nationals, despite the fact that the Commission has proposed taking ten fingerprints. If this is taken into account in the models used by the Commission to demonstrate the effectiveness of the EES, it "substantially increases the time it takes the majority of TCNs to enter the EU".

The RTP is also supposed to speed up border crossings by allowing the "pre-vetting" of travellers registered with the scheme, thus side-stepping the need for lengthy checks at the border itself. Automated Border Crossing (ABC) points would be used to allow registered travellers to pass onto EU territory.

The Commission has argued that this would speed up the process, but the 2008 Unisys feasibility study "actually suggested that the crossing times for members of the RTP would be longer than for non-members entering through the manual EES".

The Commission has never explained the discrepancy between the findings of the feasibility study and its own claims, and the EP study notes that "no actual use case models demonstrating how the proposed EU RTP will benefit its member relative to the EES have ever been produced."

Evaluation of existing systems required

The problems with the EES and RTP are compounded by the fact that two major EU databases aimed either partially or wholly at immigration control - the Schengen Information System II (SIS II) and the Visa Information System (VIS) - only came into use in the last two years, and have not yet had their functioning evaluated.

The study argues that the functioning of these systems should be assessed before any new initiatives are launched, a point that has also been made by the European Data Protection Supervisor (EDPS). In July this year, the EDPS argued that:

"An EES should not be created before a thorough evaluation of existing systems can be performed, in order to ensure consistency and avoid repeating difficulties already encountered in the past."

He also stated that as the legislative proposals stand, they "do not fully meet the requirements of Article 8(2) ECHR [European Convention on Human Rights] in relation to necessity and proportionality."

Given its findings, the EP study makes a number of recommendations to the European Parliament, which is yet to debate the proposals. It argues that:

  • Parliament's Civil Liberties Committee (LIBE) should recommend suspension of discussions on the EES and RTP until the European Commission produces a report on the functioning of SIS II and VIS;
  • The LIBE Committee should request a new feasibility study explicitly addressing lessons that can be learnt from past and ongoing initiatives, such as those in the UK and US;
  • The LIBE Committee should demand a technical feasibility study for the EES and RTP from the EU Agency for Large-Scale IT Systems before resuming discussions on the legislative proposals;
  • "The costing of the smart borders measures is no longer credible" and LIBE should demand that the costing analysis be redone;
  • The RTP should be subject to a full reassessment that takes into account the possibility of establishing local RTP schemes, and the costs incurred to Member States' consulates by processing RTP applications.

    Further reading

  • 'Member States want access to the proposed Entry/Exit System for law enforcement and counter-terrorism agencies', 30 May 2013
  • 'Meijers Committee on the Smart Borders proposals', May 2013
  • 'European Commission: Smart borders proposals published', February 2013
  • 'European Parliament study on JHA databases and smart borders proposals', December 2012
  • 'Collection of personal data for the EU's Visa Information System spreads further across the globe', October 2012

    [1] European Parliament, 'The Commission's legislative proposals on Smart Borders: their feasibility and costs', October 2013
    [2] European Commission, 'Smart borders': enhancing mobility and security', 28 February 2013
    [3] Danny Shaw, 'E-borders system 'failing on passenger checks'', BBC News, 9 October 2013; Independent Chief Inspector of Borders and Immigration, ''Exporting the border'? An inspection of e-Borders', October 2013
    [4] Nikolaj Nielsen, 'EU virtual border scheme based on 'creative' figures', EUobserver, 28 OCtober 2013
    [5] European Data Protection Supervisor, 'Opinion on the Proposals for a Regulation establishing an Entry/Exit System (EES) and a REgulation establishing a Registered Traveller Programme (RTP)', 18 July 2013

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