EU: Smart borders: European Commission and Member States at odds over digitising passport stamps

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The EU wants to replace ink-on-paper passport stamps with a digital alternative as part of its plans for an Entry/Exit System supposed to detect visa "overstayers". Member States are not convinced by the idea.

A proposed new database known as the Entry/Exit System (EES) would require the fingerprinting of all non-residents entering the Schengen area, with the aim of making it easier to calculate and detect who has "overstayed" their visa entitlement. A Registered Traveller Programme (RTP), for the vetting of certain travellers before they reach EU borders, would also be introduced, along with amendments to the Schengen Borders Code. [1]

However, the Commission's plan has raised concerns amongst the Member States. Documents obtained by Statewatch show that a majority of Member States consider passport stamps to be the most effective way of detecting overstayers:

"All Member States [which replied] mentioned that the most effective way to detect overstay is by analysing entry/exit stamps."

This finding comes from the results of a questionnaire to which 24 Member States and four Schengen Associated Countries responded. It sought to gather information in order to "[optimise] the provisions on overstayers included in the draft Regulation establishing the Entry/Exit System." [2]

The findings also state:

"Concerns were raised on the impact of the abolition of the stamping of travel documents, especially with regard to the daily duties of immigration/police and municipal/social services within the territory of a state, consulates and ILOs. A clear link was identified regarding the need to define access rights policy to the systems for various stakeholders.

"Easily accessible data on entries and exits is considered important in daily duties for the responsible authorities. A key element for various stakeholders is their need for advanced technical solutions to consult the EES. The aim is to fully replace stamping functionalities."

One recommendation is for the Commission to: "specifically address the need to facilitate travel by means of a user-friendly and easily accessible system to be used for the calculation of the duration of a stay".

The Commission is already planning to use money from its Internal Security Fund to improve existing systems: "Upgrading / maintenance of the existing IT tool calculating the short stay in the Schengen area or developing a new calculator" is part of a €2.3 million collection of contracts. [3]

"Overstayers" are defined by the Council as those who have stayed:

"[T]hird-country nationals who have exceeded the authorised period of stay, most of them being short-stay visa holders. It is very difficult predict such cases at the border, because in those cases migrants have genuine travel documents and presumably some proportion do not intend to overstay at the actual moment of entering the EU." [4]

The aim of the questionnaire, which was distributed to Member States by the Latvian Presidency of the Council in May 2015, was to:

"[C]ollect information on practices followed by Member States in overstay cases…as it could contribute to optimising the provisions on overstayers included in the draft Regulation establishing the Entry/Exit System."

A full briefing of the results of the questionnaire and related issues can be found in the Briefing 'Preparing the ground for "smart borders": EU action on "overstayers"' (pdf).

Apprehensions and statistics

Beyond paper exercises, the EU has used other methods to find out more about how Member States deal with overstayers. In April 2015, the EU used a joint police operation codenamed 'Amberlight' to gather information on apprehensions of overstayers at airports across the continent. [5]

Information was gathered on checks carried out from 1 to 14 April and 18 to 30 April. Under the auspices of the Latvian Presidency, 28 countries participated in Amberlight, and the "results include 825 incident reports on 1409 overstayers detected and 3 impostor cases." [6]

Harmonised sanctions?

National penalties for overstaying range from small, medium and heavy fines to complete entry bans. [7] In 16 countries, fines for overstay are laid down in national legislation, and they differ widely. As the summary says:

"Member States implement sanctions differently, which could facilitate that a third-country national adapts his/her modus operandi to exit through a Member State not imposing an appropriate sanction."

An Italian Presidency document on overstayers from January 2015 proposes "the development of common standards for the implementation of procedures and imposition of sanctions in overstay cases at EU level." With harmonised sanctions in place, "there would be no scope to avoid being penalised for violations of migration provisions."

The ongoing migration crisis is also spurring the transfer of other national powers to EU level. For example, recent Council conclusions suggest setting up a common European list of "safe countries of origin". [8]

Smart borders: a smart idea?

Member States are not the only ones sceptical of the efficiency of an entirely digitised border control system. A study carried out for the European Parliament in 2013 cast doubt on the EES' ability to cut down border crossing times, another of its purported benefits:

"A survey of the member states in 2009 suggested that the contractor had massively underestimated actual border crossing times but no further feasibility study was conducted… The EES feasibility study was based on the collection and storage of four fingerprints but although the EES proposal envisages the use of ten, the Commission has not updated the estimated border crossing times." [9]

The same study also criticises the system for its negative implications for fundamental rights, and its massive cost. Similar criticisms have been made elsewhere. [10]

Jumping the gun?

The Commission's "smart borders" proposals were originally published in 2013 but later withdrawn so that a testing phase, taking place this year, could inform a new proposal due next year. [11]

Since withdrawing the Smart Borders proposal, the European Commission, the Council and the Member States have continued to work in secret to develop the plans. However, there will be no legal basis for the systems until the European Parliament and the Council agree on new legislation.

Further reading

  • Zakeera Suffee, 'Preparing the ground for "smart borders": EU action on "overstayers"', Statewatch Briefing, July 2015 (pdf)

    Previous coverage

  • Smart borders? Operation AMBERLIGHT: "Overstaying" in the EU: a problem for internal security, Statewatch News Online, March 2015
  • 'Smart borders: Commission impact assessments misleading, suggests European Parliament study', Statewatch News Online, November 2013
  • 'Member States reassert support for law enforcement access to proposed new Entry/Exit System', Statewatch News Online, October 2013

    [1] 2013 Commission proposals for: Entry/Exit System (pdf); Registered Traveller Programme (pdf); amendments to the Schengen Borders Code (pdf).
    [2] Presidency, 'The consequences of the abolition of the stamping', 1 April 2015, 7592/15
    [3] European Commission, 'Annual Work Programme for 2015 for support to Union actions and emergency assistance under the Internal Security Fund - Borders and Visa', C(2015) 3413 final, 26 May 2015
    [4] Presidency, 'Overstayers in the EU: methodology of gathering statistics; preventive measures; penalties', 5194/15, 22 January 2015
    [5] Smart borders? Operation AMBERLIGHT: "Overstaying" in the EU: a problem for internal security, Statewatch News Online, March 2015
    [6] European Commission, 'Seventh bi-annual report on the functioning of the Schengen area 1 November 2014-30 April 2015', COM(2015) 236 final, 29 May 2015; Latvian Presidency of the Council of the European Union, 'Presidency Activity "AMBERLIGHT 2015"', June 2015
    [7] Austria imposes a fine up to €7500. With regard to entry bans Spain, France, Croatia, Cyprus and Sweden take into consideration only overstay committed in their country. Germany, Estonia, Latvia, Hungary, Malta, Austria, Poland, Slovenia, Slovakia, Finland, Norway and Switzerland evaluate all conditions of overstay in order to take a decision on issuing an entry ban. The Czech Republic, Greece and Iceland partially (case by case) take into consideration overstay committed in other Member States
    [8] 'Migration crisis: EU discussing common list of "safe countries of origin" and resettlement programmes', Statewatch News Online, 14 July 2015
    [9] Julien Jeandesboz et al., 'The Commission's legislative proposals on Smart Borders: their feasibility and costs' , European Parliament, October 2013
    [10] 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; Vildana Suli? Kenk, Janez Križaj, Vitomir Štruc, Simon Dobrišek, 'Smart Surveillance Technologies in Border Control', European Journal of Law and Technology: Vol 4, No 2 (2013)

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