17 August 2018
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Profiling visa applicants
The Visa Information System consists of a database that can currently hold up to 52 million short-stay visa applications. The Commission's proposals would expand the system to include data on up to 22 million long-stay visa applications and residence documents, as well as making it "interoperable" with other databases and information systems and expanding the data collected and processing it in new ways.
According to the proposal, which was published in mid-May by the Commission and aims to "enhance internal security and improve border management", all short-stay visa applications will be run against a set of "risk indicators" or "screening rules" - described in the impact assessment as "an algorithm enabling the comparison of data in the applications for a short stay visa with specific risk indicators".
The "risk indicators" will apparently consist of "a combination of data including one or several of the following: (a) age range, sex, nationality; (b) country and city of residence; (c) Member State(s) of destination; (d) Member State of first entry; (e) purpose of travel; (f) current occupation." 
This is the same as the approach taken in the recently-approved European Travel Information and Authorisation System (ETIAS), a tool that mimics the US Electronic System for Travel Authorisation (ESTA) and which will be used to assess whether non-EU nationals that do not require a visa to travel to the Schengen are a "security, illegal immigration or a high epidemic risk."
Data protection critiques: from ETIAS to the VIS
The European Data Protection Supervisor (EDPS) highlighted that the ETIAS screening rules and risk indicators "clearly [constitute] profiling [and] should be explicitly named as such, so that all necessary safeguards for such processing be provided for."
More fundamentally, the EDPS also demanded that the Commission "produce convincing evidence establishing the need for their inclusion and use in the ETIAS system," as "profiling techniques raise serious technical, legal and ethical questions, related to their transparency and accuracy." If such evidence was ever produced, it was not made public.
"The limited research available on the feasibility of using risk indicators without engaging in discriminatory profiling weighs in favour of postponing a possible use of risk indicators to a later stage."
Nevertheless, the technique is included in the final ETIAS Regulation. An 'ETIAS Fundamental Rights Guidance Board' will monitor the implementation of the profiling provisions, although it merely has an "advisory and appraisal function". 
The Commission's impact assessment states that the ETIAS Fundamental Rights Guidance Board will also supervise the application of the screening rules and risk indicators in the VIS - although the Guidance Board is not mentioned once in the proposed Regulation.
The Commission has also proposed lowering the fingerprinting age from 12 to six years old. This could lead to up to 1 million children being fingerprinted, according to estimates produced for a Commission-contracted study.
According to the proposals, this change will make it possible "to unambiguously identify children," which it is foreseen "will better protect children and help fight against trafficking and irregular migration while keeping the child's best interests at the fore."
This controversial proposal has been the subject of both a public consultation and a detailed study produced by a consortium of consultants, both of which were in favour of lowering the age at which children could be fingerprinted as part of the visa application process.
However, that study also made clear that: "Only a few anecdotes were given [by consular staff interviewed] on cases were a visa was refused to a child because of suspected risks for trafficking. In these cases the children were mostly older than 12."
Furthermore, the numbers provided for the number of children that hold a visa and are trafficked, go missing or are abducted in the Schengen area each year are little more than assumptions and estimates.
The proposal to lower the fingerprinting age stems from earlier debates about fingerprinting children for inclusion in the VIS, following which it was decided that 12 would be set as the minimum age until it could be demonstrated that there was technology available to reliably fingerprint younger children.
Following the publication of a report by the EU's Joint Research Centre (pdf) that concluded that such fingerprinting was indeed technically possible, the Commission has set about proposing new fingerprinting ages for the VIS and, prior to that, Eurodac, the EU database of asylum-seekers' fingerprints that is to be expanded to include irregular migrants as well.
The Eurodac debate took a nasty turn when it became apparent that the Council was in favour of permitting the use of coercion against them to obtain their fingerprints, a debate that has yet to be resolved.
The debate over the VIS will likely be somewhat different - but the institutions should recall that the CJEU has made clear that "derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary," and given that the VIS proposal concerns the sensitive data (fingerprints) of a vulnerable group (children), the threshold for what is strictly necessary should be extremely high.
The proposals on the VIS are also trumpeted by the Commission as being "the first time that the interoperability framework has been applied in practice".
It is foreseen that visa authorities will undertake automated checks of other databases through the proposed European Search Portal, which will provide a single access point to a variety of EU and international information systems concerning migration and law enforcement.
However, the proposals on interoperability are yet to be agreed and are highly controversial, with significant splits amongst the different political groups in the European Parliament over how they should be implemented - if at all. For the time being, the VIS proposals are little more than the first time the interoperability framework has been applied in theory.
 The text quoted here
comes from a
proposed Article 21a of the Commission's proposal, pp.68-69 (pdf).
 The role of the ETIAS Fundamental Rights Guidance Board is set out in Article 9a of the Regulation as agreed by the Council and Parliament in April 2018 (pdf).
Visa Information System: proposal will "enhance internal security and improve border management" through interoperability and extended data collection (Statewatch News Online, 16 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)
EU calls for the fingerprinting of 6-year-old children (Statewatch News Online, April 2016)
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