[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 13.2.2008

SEC(2008) 153

COMMISSION STAFF WORKING DOCUMENT

Accompanying document to the COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Preparing the next steps in border management in the European Union IMPACT ASSESSMENT

{COM(2008) 69 final}{SEC(2008) 154}

TABLE OF CONTENTS

1 Procedural issues and consultations of interested parties 4

2. Problem definition 5

2.1. The current framework 5

2.1.1. Passenger flows 5

2.1.2. Integrated border management 7

2.1.3. Legislation and financial solidarity 7

2.2. Problems and other issues in the current situation 8

2.2.1. Illegal immigration 8

2.2.2. Terrorism and serious crime 9

2.2.3. Data gap 10

2.2.4. Bona fide passengers 11

2.2.5. Economic migration 12

2.2.6. Subsidiarity 14

1. political orientations and objectives of the entry/exit system and measures for facilitate cross-border flows (automated border control and registered traveller programme) 15

3.1. Political orientations 15

3.2. Objectives of the entry/exit system 16

3.3. Objectives of the measures for facilitate cross-border flows 17

4. policy options 18

4.1. Option 1: Status Quo 21

4.2. Option 2: Entry/exit System 24

4.3. Option 3: Measures for facilitating cross border flows 28

5. analysis of impacts 32

5.1. Option 1: Status Quo 34

5.2. Option 2: Entry/exit System 35

5.3. Option 3: Measures to facilitate cross-border flows (Registered Traveller Programme and Automated Border Control) 41

5.4. Comparative assessment 47

5.5. Preferred option 50

6. elaboration of the preferred option 54

6.1. European value added and proportionality 54

6.2. Legislative implications 55

6.3. Measures to ensure data protection and protection of rights of travellers 56

7. monitoring and evaluation 58

ANNEX 1 61

ANNEX 2 63

ANNEX 3 67

ANNEX 4 75

Lead DG: Justice, Freedom and Security

1 PROCEDURAL ISSUES AND CONSULTATIONS OF INTERESTED PARTIES

This strategic initiative is to be seen in the context of the progressive establishment of a European model of integrated border management of the external borders. In the Commission Legislative and Work Programme (CLWP) 2008 it is stated that "the EU needs to protect its external borders with common tools, to prevent illegal migration, and maximise efforts to counter human trafficking and reduce the tragic death toll of immigrants in the sea trying to reach our borders". According to the CLWP 2008 the main aims of this proposal are "to strengthen border control procedures on third-country nationals to help better management of migration flows, preventing illegal immigration, as well as any possible threats to the security of the EU and to facilitate border crossing (both on arrival and on departure from the EU) to both EU citizens and third-country nationals bona fide travellers, thus allowing to better focus resources on border controls". This impact assessment report examines policy options in order to achieve the above mentioned goals.

The report is based on data collected from interviews as well as from case studies, pilot projects and literature reviews. Interviews were mainly held with experts with regard to the already existing systems in the Member States. The data-gathering and a large part of the consultations with relevant authorities in the Member States were undertaken through two external studies ordered by the Commission in December 2006 and June 2007 (launch of request for services)[1]. The external studies constitute the main support for this report. The problem, objectives, policy options and technical implementation assessed were based on the draft final reports of the first study and the interim report of the second, prepared in close consultation with the Commission and on the basis of a desk analysis of appropriate analytical methods and applicable legal documents. The Contractors provided the methodological tools in line with the Commission’s guidelines and the handbook on impact assessments. They carried out an integrated assessment of the direct and indirect impacts of a range of policy options, derived after careful analysis of the problems and objectives by using the appropriate analytical methods. The external studies and this report have been drafted with input from numerous contacts between the Directorate-General for Justice, Freedom and Security and the contractors. An inter-service meeting with other services including Legal Service (SJ), Taxation and Customs Union (TAXUD), Fisheries and Maritime Affairs (FISH), Enterprise and Industry (ENTR) and External Relations (RELEX) was held in November 2007. However, it should be noted that DG TREN formed part of the steering committee for the external study and was involved in the process already from the very beginning. Taking in the account the nature of the Impact Assessment and the Commission Communication Minimum standards for consultation were met.

During the Portuguese Presidency the use of new technologies for enhancing border management, including an entry/exit system and a Registered Traveller Programme were discussed at the Informal Strategic Committee on Immigration, Frontiers and Asylum (Scifa) on 4-5 September 2007 and the Informal Justice and Home Affairs (JHA) Council on 1-2 October 2007. Most Member States agreed there is a need to make better use of new technologies in the area of border control and welcomed in principle the introduction of an entry/exit system and a Registered Traveller Programme.

The Impact Assessment was revised to take into account the opinion issued by the Impact Assessment Board (IAB) on 4 and 14 December 2007. All the comments made by the IAB were taken into consideration in the revised Impact Assessment. On the basis of the comments, amendments were made into the Impact Assessment, especially regarding economic migration and its management; sanctions; the responsibilities of the Commission and the Member States; also the assessment of the status quo and baseline was more defined and the omission of two policy options was better justified. The impact of different options on the time required for border crossing and the amount of border guards were considered only on a general level, due to the scarcity of available data and the fact that these impacts will vary from one border crossing point to another. In relation to productivity, two examples were added. They indicate that the productivity is completely different in each country and, in fact, at each border crossing point. The traveller flows and especially the traveller profiles and the capacity of the border crossing point have an impact both on the border crossing time and on the productivity.

This Impact Assessment, the Commission Communication and the separate Commission Staff Working Paper which will be published in the beginning of 2008 are the Commission´s response to the invitation set by the European Council. Based on these documents, it is the aim of the Commission to launch a political discussion with Member States on the way forward regarding the entry/exit system and the Registered Traveller Programme. The Commission will consider further the preparation of concrete proposals and the substance of those proposals on an entry/exit system and a Registered Traveller Programme in the light of discussions with the Member States and the European Parliament.

2. PROBLEM DEFINITION

2.1. The current framework

2.1.1. Passenger flows

The passenger flows at the external borders of the European Union have been growing and will continue to increase in the future. Most of the passengers are so called bona fide travellers and are granted entry in compliance with the existing Regulations and rules; but there are also serious crimes closely related to cross border movements of people: travel document and identity fraud, people smuggling, human trafficking and terrorism.

There are in the order of 300 million EU27 external border crossings per annum[2] (i.e. approximately 150 million movements into the EU and 150 million out) at designated border crossing points[3]. It is estimated that 160 million of these border crossings are made by EU citizens, 60 million [4] by third country nationals (TCN) not requiring a visa and 80 million by TCN requiring visas[5]. For the time being, only official data is provided by Eurostat. However, this data is based on overnight stays.

In accordance with the data from the Member States there were 880 million EU27 external border crossings in 2005 and 878 million in 2006. Member States do not record such movements in a coherent manner, so the rates are based on estimations or samples. It is not known how many of the border crossings were made by TCN.

Existing regulations require that checks are made at borders (entry and exit) of the identities of passengers and whether passengers are listed in various databases. The required resources in terms of border guards can be estimated to around 11,500 persons at a cost of 400 million euro[6]. No statistics are collected on the number of border guards in the field of border checks.

It is estimated that there were up to 8 million illegal immigrants within the EU25 in 2006[7]. An estimated 80% were within the Schengen area. It is likely that over half of illegal immigrants enter the EU legally but become illegal due to overstaying their right to stay[8].

The increasing traffic at the external borders has had both positive and negative effects on the Member States. One of the positive effects is increased social interaction between people and growth of the economy in the Member States. As to negative effects, it is hard to know exactly or even reliably estimate the number of third country nationals illegally residing in the Member States. The term "illegal immigration" is used to describe a variety of phenomena. However, border crossing procedures should be eased to the maximum for the bona fide majority of travellers, as long as the travellers´ current and future bona fide status can be guaranteed.

It is obvious that there exists a dichotomy in this dilemma. On the one hand, the bona fide passengers should be ensured a smooth border-crossing and on the other hand, the internal security of the Schengen area should be guaranteed. These challenges will be further examined in Chapter 2. It is also important to note that compared to air and sea borders, land borders are more complex to manage in instances when individuals arrive at land border crossing points in groups in cars, busses or even trains. Cars carried onboard ferries undergo similar checks as at land border.

2.1.2. Integrated border management

Efficient, extensive and effective border control makes a significant contribution to the level of security in the Member States. The Integrated Border Management System is used in the European Union to achieve these aims. On 14 and 15 December 2006, the European Council recalled the need to improve the management of the European Union's external borders on the basis of the integrated border management strategy discussed in the Council in 2006. Management of the external borders is built up around three pillars, namely common legislation, common operations and financial solidarity.

In order to manage increasing passenger flows, it is necessary to take advantage of modern and rapidly developing new technology in an open manner. To increase the number of personnel participating in border control or to improve the functionality of border crossing points, for example by enlarging the border crossing points or by adding more border check booths and lanes, is not necessarily cost efficient and in some cases not even possible. Over the last years, the Integrated Border Management System has developed significantly. For example through common legislation, Frontex coordinated operations and financial burden sharing among Member States. This development should be systematically continued.

2.1.3. Legislation and financial solidarity

Since the entry into force of the Treaty of Amsterdam in 1999, a number of common measures have been adopted to manage the external borders of the European Union in accordance with Article 62 (1) and (2) of the EC Treaty. In particular, four Regulations dealing with different aspects of this policy have been adopted aiming at the harmonisation of the legal framework and improvement of practical co-operation:

- Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex).

- The European Parliament and the Council Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).

- The European Parliament and the Council Regulation (EC) No 1931/2006 laying down rules on local border traffic at the external borders of the Member States and amending the provisions of the Schengen Convention.

- The European Parliament and the Council Regulation (EC) No 863/2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers.

There are also several other Regulations that are particularly relevant in this field, notably the European Parliament and the Council Regulation (EC) No XX/2007 on the Visa Information System (VIS) and the exchange of data between Member States on short stay-visas.

In addition, the Commission Recommendation establishing a common Practical Handbook for Border Guards was adopted on 6 November 2006. The external borders fund (EBF) was set in place on 23 May 2007, which on the basis of the principle of solidarity supports Member States with specific requirements for checks and surveillance of long or difficult stretches of external borders, and Member States confronted with special and unforeseen circumstances due to exceptional migratory pressures on their external borders. The EBF is operational already 2007 and it will apply for the financial period 2007-2013 with €1.82 billions.

1. Problems and other issues in the current situation

2. Illegal immigration

Even if it is likely that the majority of illegal immigrants enter Europe legally (e.g. with a short-term visa) and then fail to depart when their legal entitlement to stay expires, consistent and reliable data on the stock and inflow of illegal migrants in Europe is difficult to provide.

According to data collected by the external contractor there were up to 8 million illegal immigrants within the EU in 2006, over half of which entered the EU legally but become illegal or irregular due to exceeding their right to stay.

In 2006 in the order of 500,000 (year 2005 429 000; year 2004 396 000) illegal immigrants were apprehended in the EU27 and it is estimated that around 40% of these were removed[9]. In 2006 the EURODAC database stored 25,162 fingerprints of people who were detected crossing borders irregularly[10].

Data collected at national level indicate that more than 75% of the illegal immigrants that were apprehended on the territory of Member States in 2006 were from third countries where visas to visit the EU are required[11]. It is therefore likely that most overstayers originate from these third countries.

Illegal entry, transit and stay of TCN who are not in need of international protection, without effective countermeasures, undermine the credibility of the common European and the Member States´ immigration policy.

The costs of identifying, apprehending and returning illegal immigrants are high. Illegal immigrants are likely to be subject to exploitation including in particular by organised crime. One of the factors encouraging illegal immigration into the EU is the possibility of finding work. Illegal immigration is thus a widespread and continuing problem and current measures to detect and reduce its incidence are only partially effective.

Considerable efforts are underway within the EU and in particular within the Schengen area to combat illegal immigration. These are described under the status quo policy option in Section 4. Within the EU and elsewhere there are examples of initiatives with analogies to the proposed entry/exit system that have been implemented with a view to reducing illegal immigration such as the US –VISIT programme and the provision of advanced passenger information in the UK[12].

3. Terrorism and serious crime

Terrorism and serious crime are major problems with strong international dimensions. Organised crime is growing and though difficult to predict terrorism is likely to remain a major problem. The problems are extremely difficult to combat and generate h uge human and social costs. There are serious crimes closely related to cross border movements of people: travel document and identity fraud, people smuggling and human trafficking.

Border controls play a role in combating terrorism and serious crime. The controls involve identity checks and the information is searched against various databases of known persons to be either apprehended or denied entry to the territory. These procedures can lead to refusals to enter the EU. In 2006 over 300,000 (year 2006 280 000; year 2004 397 000)[13] persons were refused entry at EU borders[14]. Most of these were from third countries where visas are required[15]. This compares with the estimated 70 million TCN entries into the EU (both visa and non visa holders); approximately 4 per thousand are refused for entry at borders. However, the majority of those refused entries are neither terrorists nor serious criminals but those without the appropriate travel documents and suspected of being prospective illegal immigrants.

Data available from the Schengen Information System (SIS) provide some indication of the scale and trends. Since 1995 more than 17 million records have been created on the SIS. The vast majority of these concern lost or stolen items, such as identity documents. Information from 2006 indicated that:

- More than 13 million records have been created on stolen identity documents (passports, identity cards, driving licence) of which a majority concern travel documents issued by the Member States;

- More than one million records have been created on wanted persons (894,776 wanted persons plus 312,052 aliases);

- The vast majority of wanted people are TCN who should be denied entry under article 96 (e.g. people to be rejected on grounds of national security and public order and rejected asylum seekers);

- Over 33,000 people have been placed under ‘discreet surveillance’.

Specific restrictive EU measures are directed against certain persons and entities with a view to combating terrorism. They normally include groups posing a threat to public security, as well as the names of individuals belonging to such groups.

In view of the latest terrorist acts in the EU, it can be noted that the perpetrators have mainly been EU citizens or foreigners residing and living in the Member States with official permits. Usually there has been no information about these people or about their terrorist connections in the registers, for example in the SIS or national databases.

The international nature of crime and terrorism has contributed to the development of mechanisms through which border controls contribute to the detection and apprehension of criminals and terrorists. These developments are described under the status quo policy option in Section 4.

4. Data gap

As stated earlier in sub-paragraphs 2.1. and 2.2., for the time being the number of overstayers is the main problem in the European Union. There is no information source or data base that would explicitly provide the exact number of illegally residing TCN in the European Union. It is precisely for this reason that it is difficult to make any reliable estimation on the matter. In other words, it is very difficult to identify those TCN who have overstayed their visa or visa free period.

The passport of every TCN should be manually stamped when she/he enters and exits the Schengen area[16]. The time a third country national has spent in the area of the Member States is calculated based on these stamps, which are however often difficult to interpret; they may be illegible or the target of counterfeiting. Exact calculation of time spent in the Schengen area on the basis of stamps in the travel documents is thus both time-consuming and difficult. In addition, there is no record of the time spent in the Schengen area for TCN. Due to these reasons, at the moment there is

- at the border crossing point no easy manageable and reliable mean of determining if a TCN has overstayed his/her right to stay,

- no consistent record of entries and exits of travellers from the Schengen area, which could help to improve border management, security and planning and

- no possibility to gather information on overstayers.

- Bona fide passengers

It is reasonable to assume that many travellers cross the borders more than twice per annum and that a minority of the crossings are made by frequent travellers. For example, EU and TCN business travellers, researchers and their technical staff, students, EU citizens with close family connections to third countries, TCN and EU citizens living in regions bordering the EU are all likely to make multiple border crossings per annum.

It is estimated that around 20% of border crossings of TCN applying for Schengen visas are regular travellers seeking multiple entry visas[17].

The flows have been growing and are likely to increase. Taking into account the forecasts for international travel and its development in the mid-term[18], the current infrastructure at border crossing points will have even greater difficulties in dealing with the growing numbers than today. The increasing amounts of travellers can only be dealt with through the implementation of new systems and procedures or making considerable investment in physical infrastructure and human resources.

The biggest amount of crossings of the external border occur at the airports. Land border crossing points are the next most frequently used type of border crossing. There are 1792 designated EU external border crossing points with controls (665 air borders, 871 sea borders and 246 land borders)[19].

Existing regulations require that checks are made at borders (entry and exit). The process imposes costs on bona fide passengers. These costs relate to: the time taken at borders to complete formalities; the time and financial costs of getting appropriate travel documents and visas; and the consequences of mistakes being made. These costs are generally higher for TCN requiring visas than for EU citizens, as they have to spend time and money acquiring visas and because it currently takes longer to have their travel documents checked and processed at border crossing points. There are also costs associated with granting visas. In the order of 11.5 million Schengen visas are granted per annum.

Given the very large numbers of border crossings small changes in the time taken to make border crossings are potentially very significant. However, many other factors contribute to time spent at border crossings. These include: check in times; customs checks; time spent waiting for luggage; air traffic delays; and security checks. At many border crossings, passport controls contribute just one component of delays.

Within the EU and elsewhere there are examples of initiatives with analogies to the proposed Registered Traveller Programme that have been implemented with a view to facilitating bona fide border crossings. These include both Registered Traveller Schemes for particular border crossings and Automated Border Control systems that check the identity of passengers using biometric information. Several Member States have developed pilot programmes and projects at various airports throughout the EU (for example, in the UK at Heathrow, Gatwick, and Birmingham airports; in the Netherlands at Schiphol airport; in France at Charles De Gaulle airport; in Germany at Frankfurt airport; in Portugal at Lisbon airport).[20]

This seems to be a growing trend. Yet, it might not be desirable to have different national Registered Traveller schemes that are not interoperable across EU Member States and thus common standards and guidelines might need to be considered to avoid the need for multiple registrations with each programme individually.

5. Economic migration

In this Impact Assessment, economic migration has mainly been considered from the perspective of work-related legal migration. Economic migration is important to the development and competitiveness of the EU. It was estimated that in 2003 there were in the order of 16 million TCN residents in the EU[21]. Legal economic migration to the EU mainly involves: those with skills where there is demand exceeding supply and seasonal workers, largely working in the agriculture and tourist sector. Economic migration to the EU has increased. In light of demographic changes (a lower proportion of EU population will be of working age), economic migration is likely to grow.

Since the entry into force of the Treaty of Amsterdam in 1999, a number of common measures have been adopted in the areas of immigration. Despite such important steps forward in the creation of a common policy on legal migration, no common measures yet exist to admit TCN entering the EU territory for employment, even though the admission of economic migrants represents the cornerstone of any immigration policy.

The reasons for proposing an EU policy on labour migration have been explored in SEC (2005) 1680, annexed to the Policy Plan on Legal Migration, where the Commission has examined whether and for which reasons a common policy in this field would be necessary, by evaluating the following elements:

- interrelation of national immigration policies : at the current state of the acquis, it is acknowledged that admission of economic immigrants in a Member State can have an impact on other Member States and/or on the Community as a whole. For instance a regularisation procedure may attract illegal immigration into one Member State, from which regularised migrants could afterwards move easily to other Member States;

- the EU labour market and demographic change : Eurostat projections concerning demographic ageing and its impact on the labour market indicate that there will be a fall in the EU working age population by 2011, with an estimated fall of 52 million between 2004 and 2050 (STAT/05/48). Already existing needs in the high qualifications' segment of the labour market will become more and more evident in the years to come and will have to be addressed if Europe wants to remain competitive on the global market;

- the outcome of the public consultation on the Green Paper on managing economic migration: some elements clearly emerged, i.e. the need for EU common rules regulating admission for employment, including temporary work, coupled with the request to ensure a secure legal position to all immigrants in employment.

The Commission Communication "Towards a Common Immigration Policy" concluded that a renewed commitment to develop a common immigration policy is required to enable the Union to turn immigration to its advantage for economic growth and competitiveness. This new commitment would: build on an assessment of the situation of migrants in the Member States, including the current and future needs and skills gaps; define a plan leading to a common understanding of the kind of immigration Europe needs and the accompanying measures required to ensure proper integration; set out common measures on how to effectively tackle illegal immigration, addressing both new arrivals and illegal migrants already present in the EU; ensure genuine and efficient coordination and information between Member States as regards major decisions in the immigration field, particularly regularisation measures and measures to tackle illegal immigration; ensure policy consistency: all policy fields need to contribute and work in complementing each other to face common challenges; both national and EU levels and different sectorial policies; and continue the process of linking the EU immigration policy with the external agenda, including development.[22]

In the EU, there currently exist 27 national systems for the management of economic migration. These national systems are very diverse varying from databases at national level to micro management at local level. Thus, there is a lack of management systems at EU level and there are no EU wide real-time figures on the admission and return of third country workers for the whole EU area. The effective management of the economic migration is not possible without comprehensive and comparable data. In this Impact Assessment, impact of the entry/exit system and the Registered Traveller Programme in improving the management of economic migration have mainly been considered from the perspective of work-related legal economic migration.

Several EU Member States have strategies to attract workers with the desired skill levels. For example, in 2002 Germany adopted a major reform of their immigration laws to facilitate the entry of highly skilled workers. In 2005 the UK Government presented its five year strategy for immigration and asylum, which indicated an emphasis on highly skilled migrants.

Steps are being taken to harmonise procedures and set common standards for admitting workers from outside the EU. In the line with 2005 Policy Plan on legal migration[23], the Commission adopted two legislative proposals on 23 October 2007 in the area of economic migration. The first proposal sets out the conditions of entry and residence for the admission of highly qualified migrants to the EU, creating the EU Blue Card. The second proposal is a Framework Directive that establishes a single application procedure for a single residence and work permit and a common set of rights for third-country workers legally residing in a Member State.[24] The policy plan foresees further proposals in the area of economic migration for 2008, namely Directives on the conditions of entry and residence of seasonal workers', of intra-corporate transfers (ICT) and remunerated trainees. In addition to the direct economic contribution, labour migration to the EU generates and strengthens international links. Indeed, economic migration to the EU is an important factor for third countries. Those TCN working in the EU send home remittances that can represent a significant proportion of the gross domestic product (GDP) of the countries of origin. At the same time outward migration can also be a source of ‘brain drain’ and ‘loss’ of the public investments made in human capital.

To meet the key challenge of maintaining a good match between the requirements of the EU labour markets and economic migration is attained, efficient management arrangements need to be put in place. This in turn would maximise the reliability and public confidence in the system of control. Border controls have an important role to play in this.

6. Subsidiarity

Under Article 62(2)(a) of the Treaty establishing the European Community, the Community has the power to adopt measures relating to the crossing of the external borders of the Member States.

The need for intervention at the European level is clear. No Member State is able to combat alone against illegal immigration including overstayers. A person may enter the Schengen area at a border crossing point where a centralised register of entries/exits is used, but exit through a border crossing point where no such system is used. TCN that enter the Schengen area are able to travel freely within it. In an area without internal borders, action against illegal immigration needs to be undertaken on a common basis. This is the case not only at the common borders but also with regard to action to reduce pull factors.

Any measures relating to border control would have to apply to the Schengen area without internal border controls which currently includes all EU15 member states except UK and Ireland and two other European countries (Norway and Iceland). Nine new Member States are in the process of becoming full Schengen members by December 2007 (March 2008 for air borders). Schengen countries are committed to maintaining common EU borders and common standards for border controls. All the options are also relevant to non Schengen Member States as their citizens could be affected by their implementation when travelling elsewhere in Europe. Therefore, the objectives cannot be sufficiently achieved by the Member States acting alone but better achieved at EU level.

7. POLITICAL ORIENTATIONS AND OBJECTIVES OF THE ENTRY/EXIT SYSTEM AND MEASURES FOR FACILITATE CROSS-BORDER FLOWS ( AUTOMATED BORDER CONTROL AND REGISTERED TRAVELLER PROGRAMME )

The essential rationale of the introduction of an entry/exit system is that it would enable the maintenance of a record of TCN entering and exiting the EU. However, the introduction of such a system might increase the time necessary for TCN to go through EU external border controls. There could be, therefore, a basis for reducing the impact of new border control measures by introducing a cross border facilitation scheme which in a form of automated border crossing systems would apply to those assessed to be eligible. The implementation of such measures to facilitate cross-border flows would be voluntary and could have the extra benefits of enabling border guards to focus their resources on risky categories of persons.

At first glance the set of objectives may look conflicting with the need to deal with an ever increasing stream of travellers. Any additional means of entry-exit control invariably will lead to longer processing time at the point of border crossing and this in turn will lead to longer waiting queues overall. As it will be shown in the possible scenarios, the conflict can to some extent be resolved by leveraging advanced biometrics and technology for automating the border crossing process for different types of travellers.

The aim of the Impact Assessment is both to analyse the means to achieve defined policy objectives and to examine different implementation options for both the entry/exit system and for the Registered Traveller Programme. The objectives, mainly derived from various documents (The Policy Plan on legal Migration, The Communication on Policy Priorities in the fight against illegal immigration, The Action Plan on Combating terrorism, the Impact Assessment of the Visa Information System, Council Conclusions and the Commission Communication regarding EU-US Partnership) referring to the systems, had an essential part in making system options deal more with different traveller groups than with different systems.

8. Political orientations

The idea of creating an automated system registering the entry and exit of third country nationals at EU level was first raised by Germany in a letter addressed to the Commission and to the UK Presidency in September 2005.

After that the creation of an entry/exit system has been discussed as a possible policy option in several EU documents:

- The Commission included the "creation of an entry-exit system and the introduction of a border-crossing facilitation scheme for frequent crossers" among the possible long-term developments in its Communication on improved effectiveness, enhanced interoperability and synergies among European databases in the area of Justice and Home Affairs[25].

- The Policy Plan on Legal Migration[26] considered an automated entry exit system as a component of a possible future EU scheme for the admission of seasonal workers. It indicated that such a system would help Member States to verify overstayers and thus improve the management of economic migration.

- The Communication on Policy Priorities in the fight against illegal immigration of third-country nationals[27] noted that the Community rules do not provide for automated registration of TCN on entry to/exit from the EU territory. The creation of an automated entry/exit system would therefore facilitate the management of illegal migration as checks on the immigration and residence status of TCN entering and exiting EU territory would be undertaken.

- In the context of the EU Action Plan on Combating Terrorism[28] an automated entry exit system was included amongst the border control measures that could be taken to prevent terrorism.

- The question of setting up a (biometric) automated entry/exit system at the external borders of the EU was addressed also in the framework for the Impact Assessment for the setting up of a Visa Information System (VIS)[29].

In relation to the setting up of a Registered Traveller programme, this issue has been raised in the Communication as mentioned above as well as in the framework of the relations with the United States:

- The Commission Communication "A Stronger EU-US Partnership and a more open market for the 21st century”[30] suggested examining the possibility of a travel initiative for a special status of ‘trusted persons’ to facilitate the movement of international travellers and ensure compliance with security procedures at the same time.

On 14 and 15 December 2006, the European Council emphasized that existing and new technological possibilities will be fully utilised to enhance border control and to allow persons to be identified reliably; the Commission was invited to report before the end of 2007 on how to improve access control, including on the feasibility of establishing a generalised and automated entry-exit system for this purpose.

9. Objectives of the entry/exit system

The general objectives are, in order of priority:

- To reduce illegal immigration (especially overstayers);

- To contribute to the fight against terrorism and serious crime;

- To improve the effective management of economic migration (for example, seasonal workers).

The specific objectives are

- To generate information which would help to apprehend irregular and illegal immigrants especially overstayers and to deter illegal immigration;

- To generate information that would prevent terrorism and serious criminal activity and that would lead to (or help ensure) the apprehension of terrorist and criminal suspects;

- To enable border control resources to better focus on checking riskier groups of travellers and tackle illicit movements of people in order to maximise the reliability and public confidence in the system of control;

The operational objectives are:

- To identify overstayers;

- To facilitate the sanctioning of overstayers;

- To identify the cross border movements of potentially dangerous third country nationals;

- To identify the compliance of seasonal and other categories of third country national migrants to the EU to their conditions of migration.

- Objectives of the measures for facilitate cross-border flows

The general objectives are, in order of priority:

- To facilitate the crossing of EU external borders for bona fide travellers, while ensuring overall coherence of EU border policy;

- To improve the effective management of economic migration (for example, seasonal workers).

The specific objective is:

- To enable border control resources to better focus on checking riskier groups of travellers and tackle illicit movements of people in order to maximise the reliability and public confidence in the system of control.

The operational objectives are:

- To decrease the time and costs of border crossings to (frequent) bona fide travellers, both EU citizens and third country nationals;

- To free up border control resources from the checking legitimate cross border movements.

- POLICY OPTIONS

This Section describes each of the policy options and sub policy options in turn. The most relevant aspects of each policy option and sub option that could radically influence its feasibility, costs and the effects it might have relative to the policy objectives are elaborated.

Other policy options introducing various obligations on migrants to confirm return to the country of origin, and possibly combined with a bond system, were considered but eliminated. In the policy option "obligation on TCN to confirm their return to country of origin" TCN requiring visas to visit the EU would be required to provide upon return to the country of origin a proof of having respected the duration of stay as a condition to re-enter the EU. Such travellers will have to provide biometric information which will be stored in the VIS. Their identities will be checked on entry to and exit from the EU, passports will be stamped but the time and place of entry and exit will not be recorded. In order to verify that a TCN holding a visa had left the EU, this policy option foresees they would have to return to the visa consulate in their country of origin and provide biometric information to prove their identity and verify that they had left the EU in due time. Thus the sub policy option would provide information on exits made within the provisions of visas and information on the identity of ‘overstayers’ who had not verified that they had left the EU in due time.

This policy option would affect all TCN holding a visa with the possible exception of those holding multiple-entry visas. Around 11.5 million (Schengen) visas are granted each year. It is reasonable to assume that well over 5 million ‘returns’ to a visa consulate would be required per annum.

In the policy option "a system of bonds for TCN requiring visas to visit the EU" TCN requiring visas would be required to provide a bond (certain sum of money) to EU consular authorities if they have been granted a visa. This bond would be reimbursed to the TCN providing that they conformed to the requirements of their visa or right to stay. These requirements would normally include providing evidence that they have left the EU. Thus the policy option would provide information on exits made within the provisions of visas and information on the identity of overstayers who had not reclaimed their bonds in due time.

The policy option would not require investment in biometric recognition systems and thus could be operational in the short term. However, this option would need data generated by a central register. The data could be used to verify that TCN holding a visa had in fact left the EU and should therefore receive back the bonds paid by them or on their behalf.

These options were too wide and complex - both in the political sense and with regard to the practical implementation - to be carried out in the medium-term. For example, fast and sufficient transfer of information on overstayers would have been difficult to arrange, and from the viewpoint of a customer the options can be regarded unreasonable. Traveller should first go to a consulate to register or pay a bond and only after that s/he could enter the Schengen territory. This could mean hundreds of kilometres of travel within the country of origin and also additional costs (time and money) for the traveller. Moreover, these options go well beyond border control measures and are rather migration management tools in a wide sense. They might therefore better be reflected on in another, larger context as a part of wider policy considerations for the management of economic migration and international development. However, it should be stressed that their political feasibility would above all need to be evaluated from the perspective of how they would fit into the overall EU policy of encouraging people-to-people exchange, whilst ensuring a high level of security, having regard to the clear deterrent effect on travel that any options of this nature would have.

The possibility of extending the entry/exit system to EU nationals was also considered because of the possible benefits with respect to identifying histories of cross border movements of potentially dangerous persons from within the EU. However, questions as to the compatibility of any such system with Community rules on free movement were considered to outweigh the potential benefits. In addition, several technical options for the entry/exit system for TCN were considered but the assessment has focussed on a system that makes use of the developments that are taking place in the status quo and in particular the VIS.

Also the use of alternative biometrics particularly iris recognition in the harmonised Registered Traveller Programme for EU citizens was briefly evaluated but this was considered likely to be very expensive, requiring investment over and above biometric equipment that would rely on current plans for e-passport development and the VIS, and involving longer enrolment times, though greater accuracy could potentially be achieved.

A digital photograph and fingerprints have been established as biometric identifiers currently in use in EU large-scale IT systems - also in the VIS. These biometric identifiers are used in passports, visas and residence permits. The equipment have already been partly acquired at the consulates and at the border crossing points, and these investments will continue. If other biometric identifiers, such as iris, were used in the entry/exit system and Registered Traveller Programme, the consulates and border crossing points would need more equipment and no current information systems, such as the VIS and the SIS, could be efficiently used. Also, including iris into the biometric identifiers would require further training and place greater demands on the personnel[31].

The Biometric Matching System (BMS) is a system that will store the minimum amount of data needed to perform identification and verification requests by the VIS on behalf of the Member States. Initially, the BMS will only provide services to the VIS. From an architectural and structural point of view it can easily be expanded to provide services to additional systems, such as the SIS II, EURODAC, and a potential entry/exit system and automated border crossing systems in connection with a Registered Traveller Programme.

Identifying synergies and making effective use of EU systems such as the VIS, the SIS II and the BMS in order to leverage the information they contain can greatly facilitate the implementation of an entry/exit system and Registered Traveller Programmes. There are definitely potential savings from a shared approach to improving border control processes across the EU.

It should be remembered when reading the Impact Assessment that any of the sub-options can be implemented separately and individually. The already existing systems in the Member States exemplify this. For example, the entry/exit system only for TCN requiring a visa is possible because the implementation is relatively simple and requires minimal investments. The biometric identifiers of the TCN will be stored into the VIS database when issuing visas at the consulates, and the Commission is preparing a legislative proposal which would make a search compulsory in the VIS system when the traveller is entering the Schengen area.

It is also quite possible to implement the entry/exit system for TCN not requiring a visa. In the future, if necessary, it will be possible with the help of the VIS to identify the TCN requiring a visa also within the Schengen area. As to the TCN not requiring a visa this will not be possible, because without the entry/exit system their biometric identifiers will not be captured and stored in any database. Consequently in this option entries and exits of the TCN not requiring a visa would be registered, whereas the entries and exits of TCN requiring a visa would not. Yet, it would be possible to verify the identity of all TCN residing in the Schengen area by using biometric identifiers.

Respectively, any of the Registered Traveller Programme sub-options can be realized with justification as an own entity.

However, the entry/exit system and Registered Traveller Programme could be combined as both have impacts on the border checks carried out at the external borders, and the two systems clearly share a common ground as to the practical border checks and management of resources. The entry/exit system and the Registered Traveller Programme can be seen as the systems which complement each other; the entry/exit system will entail more careful and time-consuming border checks especially for those TCN not requiring a visa, whereas the Registered Traveller Programme will enable smoother border checks for bona fide travellers. Roughly estimated these systems will cancel out each others´ effects as to the management of border check personnel and the average time required for border crossings. Of course, in practise there may be huge differences among different border crossing points.

One example of the costs and the required time (incl. legislation) to develop a large-scale information system is the VIS. The development of the VIS was initiated in 2004, and the system should start operations in 2009. The estimated costs of the central system in 2004–2009 will be approximately 70 million euro (including the development of the Biometric Matching System, network, quality assurance contractor costs, etc.). The aforementioned figure neither includes the costs incurred by Member States nor the costs for maintaining the system. Nevertheless, the creation of an entry/exit system and Registered Traveller Programme should not incur comparable costs since the technical design of both should allow for maximum synergies with the VIS.

At this stage, it is worth mentioning that a potential entry/exit system should be based on a similar technical platform as the VIS and also could cover the Registered Traveller Programme. As concerns the specific issue of storing the entry/exit data for visa holders, the VIS database could be expanded to record the entries and exits of TCN requiring a visa; this data could be included in the entry/exit system and Registered Traveller Programme database.

In any case, only one new database would be needed in the future. The Commission will present a separate Commission Staff Working Paper on technical options of the entry/exit system and the Registered Traveller Programme in the beginning of 2008.

10. Option 1: Status Quo

The status quo policy option needs to reflect a large number of important developments that are underway and a substantial improvement in infrastructure for managing cross border flows are anticipated to occur. However, these improvements are not yet in place, but expected to be fully implemented over the next couple of years.

These measures are designed to contribute to policy objectives that are in place, or that will be put in place, irrespective of the adoption of proposals for the entry/exit system and the Registered Traveller Programme. The precise nature of these measures, particularly in so far as they relate to the checks that will be made on different types of passengers crossing EU borders, are critical to the assessment of the policy options.

The most fundamental aspects of the status quo pertinent to this Impact Assessment are:

- In accordance with Article 7 of the Schengen Borders Code, all persons crossing the external border shall be subject to a "minimum check", both at entry and exit, consisting of the examination of the travel document so as to verify the identity of the individual. This is the rule for EU citizens and other persons enjoying the Community right of free movement. Third-country nationals must be subject, at entry, to a "thorough check", which implies a check to determine their purpose of stay, whether they possess sufficient means of subsistence etc, as well as a search in the Schengen Information System and in national databases to verify that they are not a threat to public policy, internal security, public health and the international relations of the Schengen States. At exit, checks may be less thorough, i.e. be limited to a verification of the travel document, but they may also entail checks in the SIS and national database(s); a check to see, if the person has overstayed and a verification that the person holds a valid visa, if this is required. Article 8 of the Schengen Borders Code states that border checks may be relaxed as result of exceptional and unforeseen circumstances leading to excessive waiting time. When border checks are relaxed, entry checks takes priority over exit checks.

- The VIS will be in place by 2009[32]. Given a minimum two year worldwide roll out period at consular posts all TCN requiring visas to travel to the Schengen area will have supplied biometric details when acquiring a visa as of 2011. These biometric and other data will be held in the central VIS database. When TCN holding a visa cross the EU external borders on entry,[33] and optionally on exit also, they will have to provide their biometric information for verification. Data will be compared with the visa record held in the VIS central data base so that the identity of the traveller can be automatically validated.

- The equipment required to carry out the biometric checks for TCN holding a visa will be available at all EU border crossing points. Mobile devices will be required as part of the VIS implementation, in order to perform biometric checks. These mobile devices are to be used for carrying out specific border checks, such as in trains and buses at the land border.

- The checks will be undertaken with a very high degree of reliability (in terms of the identifications being correct) and at very high speed. It is estimated that the search with the fingerprints will take approximately 15-20 seconds and maximum of 5% of checks may be unreliable due to, for example, injuries.

- SIS and the second generation system that will replace it (SIS II), and national databases are systematically checked as part of the visa application procedure and of the border checks at the external borders when TCN cross the border.

The following measures (legislative instruments, funding, recommendations and general measures) would be maintained in the status quo option:

- Directive 2002/90/EC and Framework Decision 2002/946/JHA. This Directive and Framework Decision define the facilitation of unauthorised entry, transit and residence and sets a penal framework to prevent these phenomena. The Directive stipulates that Member States are to adopt sanctions on "any person who, for financial gain, intentionally assists a person who is not a national of a Member State, to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens". However, the type of sanctions is not specified, i.e. sanctions are not harmonised[34].

- Article 1 of the Framework Decision 2002/629 JHA on combating trafficking in human beings. This Framework Decision provides that Member States are to criminalise any form of recruitment, transportation, transfer or harbouring and any other treatment of a person for the purposes of labour exploitation. Article 3 clarifies that these offences have associated penalties.

- The Commission has elaborated a common policy on the return of illegally staying TCN in the 2002 Return Action Programme. This was followed by a directive on the assistance in case of transit for the purpose of removal by air[35], and a directive on the organisation of joint flights for the removals[36]. The Commission has also proposed a directive[37] on common standards and procedures in Member States for returning illegally staying third country nationals. The proposal, which is currently being discussed in the European Parliament and the Council, provides for common rules concerning returns, use of coercive measures, temporary custody and re-entry.

- Proposal for a Directive providing for sanctions against employers of illegal immigrants: One of the factors encouraging illegal immigration into the EU is the possibility of finding work. This proposal aims to reduce that pull factor by targeting the employment of third-country nationals who are illegally staying in the EU.[38]

- In 2007 the Framework Programme Solidarity and Management of Migration Flows for the period 2007-2013 was launched. This Framework Programme encompasses four new funds related to: (1) refugees; (2) external borders; (3) the integration of third-country nationals; and (4) return.

- Legislation on e-passports: All new passports issued since June 2006 contain biometrics (i.e. a digital photo), and all new EU passports and travel documents issued from autumn 2009 at the latest will include two biometric identifiers (i.e. a digital photo and fingerprints placed on the contact less chip)[39]. Given that passports are valid for up to ten years, all European citizens holding passports will have both biometrics in their passport by 2019 at the latest. The implementation of electronic travel documents allows for stronger document and identity verification, as well as automating procedures that are currently manual such as the introduction of automated border control systems at EU external border crossings for EU citizens. Technological advances have made automation of border control processes more feasible and less expensive. Automation in this context can also bring added value to the whole system by enabling a more efficient use of border control resources.

- Member States are transposing the Council Directive (EC) No 71/2005 on a specific procedure for admitting TCN for the purposes of scientific research, which will facilitate and speed up their entry and residence permit procedures. TCN researchers would have the possibility to work in other Member States for a period of up to three months on the basis of the residence permit delivered by another Member State; no work permit would be needed any more.

The following measures included in the Council Conclusions of 14 and 15 December 2006 are in preparation and it is assumed that they will be put in place under the status quo policy option:

- Improved management of the EU external borders via the continuous implementation of the integrated border management strategy adopted by the Council in 2006.

- Improved coordination and cooperation between countries of origin and countries of transit.

- Moves towards common visa offices that may increase efficiencies in the visa issuing process.

- Option 2: Entry/exit System

This policy option would involve the recording of the time and place of entry and exit of TCN crossing the EU external border. Improved information would be generated on the cross border flows of TCN. Such information could, for example, be used operationally to detect and or review the movements of overstayers. The data would also be useful in planning the use of border control resources and in migration management.

As stated earlier, the question of setting up an automated entry/exit system at the external borders of the EU was addressed in the framework for the Impact Assessment for the setting up the VIS. In that context, the view was taken that the entry/exit system would have been too costly and disproportionate[40] based on the status quo at the time. However, the technical feasibility of an entry/exit system has in the meantime improved due the development of the VIS and it is therefore timely to reassess the option more thoroughly.

There would be significant differences in the implications for applying an entry/exit system only to TCN requiring a visa and other TCN to enter the EU. In particular the latter group of passengers would need to be enrolled biometrically while the former are enrolled already under the VIS. Hence two sub options have been defined: one relating to TCN requiring a visa and one related to those not submitted to the visa obligation wishing to visit the EU.

Based on the Schengen Borders Code, as a general rule, persons travelling in vehicles may remain inside them during checks. However, if circumstances so require, persons may be requested to step out of their vehicles. Therefore one of the specificities of land borders and ferry traffic at sea ports concern the fact that it should be possible to perform border checks using devices that allow border guards to identify/verify travellers, when they are in a car or a bus. Concerning trains, the Schengen Borders Code specifies that border checks are carried out either on the platform in the first station of arrival or departure on the territory of a Member State; or on-board the train, during transit.

The minimum set of information that is required to describe an entry/exit event, suitable for storage in a database, contain: Border crossing point of entry and exit; date and time of event; travel document(s) type, number and issuing country; traveller’s personal details extracted directly from the travel credential; further details depending on the specific border type, traveller category and means of travel. The entry/exit system that would be established should include the following solution components: Data store for entry and exit data, service to create an entry record, service to create an exit record, service to track and calculate the time spent in the area, service to retrieve overstayer information, service to transmit alert information, service allowing updates to length of stay data and administration service (i.e. an automated housekeeping procedure which cleans up aged records according to the retention times).

The essential components of the entry/exit system are:

- There would be a system for recording the point and date of entry and of exit of TCN travellers at all EU external border (Schengen) crossing points. It is assumed that the information would be held in a database for an agreed retention period.

- Verification would be carried out at the external borders in accordance with the VIS Regulation and the Schengen Borders Code.

- The definition of who is identified as an overstayer, who is exempted under which circumstances and what might constitute an appropriate sanction should preferably be consistent at EU level. The definitions and sanctions would not necessarily be harmonised but there should not be marked variations between countries.

- The system would identify and provide information to the responsible authorities of those who had entered the EU but (apparently) not left before the expiry of their right to stay.

- The system would include the facility to amend the date of the exit deadline in the light of the actual date of entry.

- The system would take account of TCN being forced to extend their stay in the EU (e.g. should a national visa be granted due to flight cancellation, illness or other humanitarian reasons), or if a new entitlement to stay such as a long-term residence permit is issued.

With the help of information provided by an entry/exit system, it would be possible to impose a sanction on TCN who has not complied with the existing rules. However, sanctions will not be examined in this Impact Assessment and the feasibility of introducing such sanctions at European level will not form part of the Communication. Dealing with the sanctions and potential harmonisation of the sanctions would require a separate initiative where the sanctions should be reviewed within the context of an extensive and comprehensive migration policy, not only from the perspective of a border check or of the entry/exit system.

Within their national legislation, the Member States have an opportunity to issue sanctions on persons who have exceeded their legal time of residence in the Schengen area. The Member States have made use of this option and issued sanctions, including fines.

Various issues and measures may and will function as a sanction. Member States are responsible for issuing visas and the visa procedures belong under their competence. The visa administration officers could exploit the information on overstayers when handling the new visa application form of a previous overstayer. In the future, this information could be available in the entry/exit system.

If a TCN is found to be illegally staying within the area of the EU, the proposal for a Directive on common standards and procedures in Member States for returning illegally staying third-country nationals[41], currently under discussion in the Council and the European Parliament, foresees the introduction of “a re-entry ban”, which prevents a re-entry of an illegally staying TCN into the territory of all the Member States. The re-entry ban would accompany removal orders for illegally staying TCN. The length of the re-entry ban will be determined with due consideration to all relevant circumstances of each case. Normally, the re-entry ban should not exceed 5 years. It is the responsibility of a Member State to remove an illegally staying TCN from the area of the EU as soon as possible.

The Directive 2001/40/EC on mutual recognition of decisions on the expulsion of third-country nationals in combination with Council Decision 2004/191/EC setting out the criteria and practical arrangements for the compensation of the financial imbalances provides for a legal framework for mutual recognition of expulsion decisions. See also status quo (4.1.)

It should be noted that a coherent and proportionate approach at EU level to sanctions could extend the impact of the entry/exit system, reinforcing the deterrent to overstay while ensuring that sanctions could be imposed in practice. In the long term a coherent approach would provide the ground for adequate and similar treatment of illegally staying TCN, regardless of the Member State which carries out the sanction. Mere awareness of the existence of a sanction can be considered as a threat strong enough for a person who has intentions to overstay in the Schengen area. Therefore, it can be presumed that the sanctions could significantly decrease the amount of overstayers.

In further consideration of this issue there are also a number of risks that would need to be taken into account. Due to a system error a sanction could be imposed on a person to whom the sanction should not be imposed. Therefore, a person has to have the right to appeal against the sanction and prior to imposing any sanction, it should be carefully examined and ensured that the person really is an overstayer. Another risk is that some third countries may interpret the sanction as discriminating to their citizens and aim to apply a similar kind of system in their own country without the real possibility of ensuring that the sanction is justified (= that it really is possible to verify the time resided in the country). Yet another risk is the extension of the duration of overstaying, since the overstayers already are well aware of the fact that there will be a sanction imposed on them. Sanctions might also entice the overstayers to use illegal routes and/or means in order to leave the EU. An appropriate degree of proportionality would need to be found to limit any such effects.

The entry/exit system should be based on the same technology as the VIS system. In practice the border check procedure at the border crossing point will remain almost the same, therefore there will most likely not be a need for extensive training or other demands on border guards when using the entry/exit system. Once the VIS is in place, the border guards will already have enough experience in capturing and storing fingerprints, so there should be no further requirements from this perspective, either. The only major change would probably be related to the need for enrolling and storing fingerprints at the border crossing points as regards the TCN not requiring a visa.

It is worth noting that when registering entries and exits at the external borders, the TCN to be registered should not be categorised on the basis of the purpose for entry, but the registering should take place by following the same principles on every traveller. Registering should be part of the border check process and one important aim of it should be to monitor the compliance with the duration of stay in the EU. However, various authorities may, according to an agreed legal framework and when necessary, access and use the information on the different target groups that is available in the database.

Sub Option 2a: Entry/exit for TCN requiring visas

In this sub option the entry/exit system would apply to TCN holding a visa. Visas confer only limited rights to stay and work in the EU and hence TCN holding a visa could become overstayers. In terms of scope only holders of a short-term Schengen visa should be covered (excluding therefore holders of local border permits, holders of national long stay visas as they are not covered by the VIS, and holders of residence permits).

Since biometric identifiers have been captured already when issuing a visa, no specific enrolment would be needed. The biometric identifiers of the TCN requiring a visa could be used as such in the entry/exit system, exploiting the already existing VIS system. No increases in visa fees would occur.

The Commission would be responsible for acquisition and maintenance of the central database which for this category could be the central system of the VIS or a separate system. Member States would be responsible for arranging the required connections and equipment (including the fingerprint readers etc.) to all external border crossing points. In relation to the VIS, the required actions and investments are in practice already on the way both by the Commission and by the Member States. Furthermore, the Commission is responsible for the necessary amendments of the current legislation such as the VIS Regulation and the Schengen Borders Code.

Sub Option 2b: Entry/exit for TCN not requiring visas

In this sub option the entry/exit system would apply to TCN not requiring visas. TCN not requiring visas are subject to limited rights to reside and work in the EU and could hence become overstayers. If biometric verification is used at the borders, TCN not requiring visas would have to be enrolled at the point of entry to the EU or, for example, at Member State consulates and would provide biometric information equivalent to that provided by TCN holding a visa. This would ensure that the recording of their entry and exit information could be verified in the same manner as TCN holding a visa. No charge would be made for enrolment as this enrolment would be a condition of entry to the EU.

If biometrics would not be used in the entry/exit system, the machine readable zone of the passport may be used to save a traveller´s entry/exit information into the database. Queries concerning TCN are already being made in the SIS and in the national data bases at the time of the entry. Therefore, recording entry/exit time and place data could be integrated into these checks. However, it is clear that much improved reliability on a traveller´s identity can be achieved with the use of biometrics. This would be beneficial when comparing the identity of a person entering and exiting the Schengen area. This, in turn, has an impact on several facts, such as reliability of information, possibility of a sanction etc. To register entries and exits of TCN without biometric identifiers is faster and requires less investment, but it is also less reliable.

With third countries starting to issue passports with biometric identifiers, it could be possible to begin saving data of biometric identifiers of the passports of the TCN both into the entry/exit system and into a voluntary Registered Traveller Programme. Naturally, this would require a permission from the third country in question to deploy the biometric identifiers as well as the cryptographic key with which to read and "open" the biometric identifiers. At the moment also a traveller´s permission is required when re-saving the biometric identifiers contained in a national passport, for example, in a Registered Traveller Programme.

The Commission would be responsible for acquisition and maintenance of the central database, as there would be a need for a separate database. This same central database could be used also for the Registered Traveller Programme (options 3a, 3b, 3c) and for sub option 2a. Member States would be responsible for arranging the required connections and equipment (including the fingerprint readers) to all external border crossing points. Due to the roll-out of the VIS the relevant investments by Member States as concerns border crossing points are already on track. Additional investments may be needed for the purpose of enrolment and storage of fingerprints of this category. Furthermore, the Commission would be responsible for the necessary amendments of the current legislation such as the VIS Regulation and the Schengen Borders Code.

Key differences with the Status Quo of Policy Option 2

The key differences with the status quo are: there would be a systematic register and recording of the time and point of entry/exit of TCN; there would be an increased probability of being sanctioned for overstaying, including within the Schengen area for non visa holders, if biometrics are used; and improved information would be generated on the cross border flows of TCN.

11. Option 3: Measures for facilitating cross border flows

This policy option could take several forms, and be applied to different categories and apply different eligibility criteria. The aim of the policy option is both to shorten the existing waiting time and mitigate the effect of the entry/exit system on the border crossing times at the external border. Three sub policy options have been chosen so that the Impact Assessment process can assess the implications of the main differences that could apply. The sub policy option of a Registered Traveller Programme for TCN would be, in part, a response to the additional constraints and implications for cross border travel that the entry/exit system could impose. The assessment of the two sub policy options relating to EU citizens illustrates the differences in approach between establishing a single EU wide system and establishing minimum standards for the development of a number of systems tailored to the needs of particular border crossings and groups of EU travellers (e.g. both Registered Traveller Schemes and Automated Border Control). Technically, the same Automated Border Control facilities could be used by TCN participating in a Registered Traveller Programme and by EU citizens.

The essential components of this policy option that have been considered are:

- Travellers, potentially including both EU citizens without e-passport and TCN, would be able to register for the programme on a voluntary basis.

- Criteria and administrative procedures would be put in place to enrol a TCN applicant. EU citizens would be automatically included and would only need to enrol if they do not hold an e-passport and choose to participate in a Registered Traveller Schemes (only option 3c).

- Applicants would provide biometric details[42]. The biometrics taken could be similar to those that will be required for e-passports (i.e. two fingerprints and a digitised facial image) or ten flat fingerprints as recorded on the VIS[43].

- The biometric information would be held on a special token or on their e- passport or on a separate database identifying them as a member of a Registered Traveller Programme.

- Separate channels would be put in place at EU external border crossing points with automated lanes for those eligible to use them.

- TCNs entries and exits would automatically be recorded by the system. The movements of EU citizens would not be recorded.

- For Automated Border Control e-passports could be used to verify EU citizens’ identity and perform random checks within defined limits.

Sub option 3a: A Registered Traveller Programme available to TCN

A separate sub option for TCN was assessed, because border control procedures for this group take more time compared to EU citizens, as TCN must be subject to thorough checks at entry.

In this sub option, TCN wishing to travel to the EU would be able to apply to become members of a Registered Traveller Programme. Awarding the status of Registered Traveller and providing for automated checks for those persons will require that the verification of certain entry conditions at the border is waived (purpose of stay, means of subsistence, and absence of threat to public order). The criteria for awarding such a status should as a minimum include a solid travel history (no previous overstays; data to this effect can be retrieved from the entry/exit system), no threat to public order, proof of sufficient means of subsistence, and holding a biometric passport.

TCN granted multiple-entry visas could be granted Registered Traveller Status automatically. Vetting, which could take place at visa consulates or, for travellers not requiring visas, at the point of entry to the EU, would need to be periodically updated. Searches would be made of relevant databases, national as well as European (e.g. SIS II). Biometric data captured could be the same as for the VIS. Some border crossing points could introduce separate channels and, maybe, additional facilities such as parking places for registered travellers, particularly those where delays to TCN are severe. A fee could be charged for programme participants. However, the cost savings gained through reductions in the supervision of the separate channels by border guards could provide a case for not making a charge.

It is difficult to estimate the numbers of TCN that would chose to apply and be accepted on such a Registered Traveller Programme. Demand would depend upon the fees charged, the stringency of vetting, the time taken to process application and the difficulties faced in otherwise crossing borders. Eligibility criteria could limit the numbers deemed suitable. For example, the Programme could be limited to business travellers with strong verifiable connections to businesses in the EU. There are in the order of 11.5 million Schengen visas issued each year. It is estimated that around 20% of applications are for multiple-entry visas, which would entail around 2.3 million TCN among visa holders being awarded Registered Traveller Status. Considering the needs of business and economical cooperation including constant international travel, the demand should, at least, be similar among non visa holders.

The Commission would be responsible for acquisition and maintenance of a central database. This could be the centralised entry/exit system and Registered Traveller Programme database. Member States would be responsible for the acquisition and maintenance of other components of the system (e.g. equipment to store the biometric identifiers, potential (semi-)automated border checks, separate lanes etc) as well any equipment / staff needed for enrolment of registered travellers as such. Furthermore, the Commission would be responsible for the possible amendments of the current legislation such as the Schengen Borders Code.

Sub option 3b: A harmonised Registered Traveller Programme available to EU citizens

In this sub option Member States would be obliged to introduce the required systems for the Registered Travellers at all external border crossing points.

The systems would be harmonised at EU level to be identical including the use of biometric identifiers (one or two identifiers), technical compatibility, vetting criteria etc. All EU citizens (also those without an e-passport) would be able to apply to become a member of the Registered Traveller Programme, but facilitated border control procedures would be available only for those citizens meeting the vetting criteria separately set at EU level. The vetting criteria could take into consideration, for example, the need for frequent crossings of the external border; important business relations etc. Controlling the fulfilment of the vetting criteria would demand separate pre-screenings going beyond minimum checks as laid down in the Schengen Borders Code.

Vetting would take place at border crossing points. The Registered Traveller Programme would not require biometric information over and above that which will be required for e-passports. The EU citizens without e-passport could be issued a specific token on which the biometric identifiers would be stored. Use would be made of biometric identity verification, but random checks could still be made. Membership of the Programme would enable Registered Travellers to use special channels at all EU crossing points. No fees would be charged.

It is difficult to estimate the numbers of EU citizens that would chose to apply and be accepted in such a Registered Traveller Programme. Demand would depend upon the stringency of vetting, the time taken to process application and the difficulties faced in otherwise crossing EU external borders. Around 80 million trips are made by EU citizens outside of the EU. It is reasonable to assume there are at least several million regular EU travellers who would wish to become members of such a Programme.

The Commission would be responsible for acquisition and maintenance of a central database. This could be the centralised entry/exit system and Registered Traveller Programme database. Member States would be responsible for the acquisition and maintenance of other components of the system at all external border crossing points (e.g. equipment to store the biometric identifiers, potential automated border checks, separate lanes etc). Furthermore, the Commission would be responsible for laying down rules regarding eligibility, vetting and technical compatibility.

Sub option 3c: Minimum standards are established for Registered Traveller schemes and Automated Border Control system for EU citizens

In this sub option a number and range of different schemes would be developed at national level in response to demand and in order to improve the management of passenger flows[44]. Member States would decide at which border crossing points they would like to set up the required systems. EU citizens holding e-passports would be able to benefit from Automated Border Control at all border crossing points in which the facility is available without having to register or enrol in advance. E-passports would be used to automatically verify EU citizens’ identity. If a EU citizen does not have an e-passport, s/he could be nationally issued a specific token on which the biometric identifiers would be stored or the traveller could be asked to obtain an e-passport. No pre-screening would apply. Minimum standards would be established and applied to parameters such as: the use of the biometric identifiers (one or two identifiers), random checks; technical compatibility; data protection; and possibly pricing policies. The standards would need to be reviewed in the light of best practices and technological developments.

In order to compensate for ever-increasing queues at borders corresponding to an increase of travellers, including EU citizens, an automated system would offer EU citizens a more efficient service especially at busy border crossing points, and at the same time enable a more efficient use of border control resources.

There would be no need for a central database. Member States would be responsible for the acquisition and maintenance of the system (e.g. potential automated border checks equipment, separate lanes etc). Furthermore, the Commission would be responsible for minimum standards of the systems. However, each Member State could decide the border crossing points where the system will be used.

Key differences with status quo of policy option 3

For sub option 3a the key differences with the status quo would be that border crossings would need to be modified for two classes of TCN traveller, those on the programme and others; additional vetting of TCN in advance of travelling would be required.

For sub option 3b the key differences with the status quo would be the provision for EU travellers to use separate channels at border crossings through being part of a programme. Registered Traveller Programme facilities are introduced at all border crossing points.

For sub option 3c the key difference with the status quo would be the assurance that all registered traveller schemes and Automated Border Controls in the EU met minimum technical and performance standards. Member States can identify the border crossing points where such facilities should be installed. EU citizens holding e-passports would be able to benefit from the facility without having to register or enrol in advance.

12. analysis of impacts

This section considers each of the policy options and sub policy options described in Section 4 against the criteria deriving from the policy objectives and the wider considerations of the Impact Assessment introduced in Section 3. The policy options have been assessed on a six point scale with respect to their likely performance relative to the general objectives. The baseline situation against which the ratings are made assumes the successful implementation of the status quo e.g. the VIS is used at the external borders. In other words, the policy options 2 and 3 have been assessed against a status quo option which foresees dynamic development of the current situation, whereas the status quo policy option has been assessed against the current situation.

Each policy option has also been assessed relative to a common set of criteria. These criteria derive from the general economic, social and environmental criteria and wider considerations applied in Impact Assessments. The link between the other relevant criteria and policy options was created so that whenever possible, the other relevant criteria were comprised in the assessment of the objectives. In practice, this means that the assessments of the other relevant criteria were used when weighing the objectives.

The other relevant criteria are:

- Robustness in the light of substantive and policy changes.

- Costs and benefits to bona fide EU citizen travellers.

- Costs and benefits to bona fide TCN travellers.

- Social and economic repercussions on the EU.

- Social and economic repercussions on third countries.

- Environmental impacts.

- Impacts on fundamental rights, particularly privacy and data protection.

- Net costs of implementation.

- Need for changes in Community legislation.

- Necessary pre conditions, accompanying measures to achieve impacts.

- Key risks of technical feasibility[45].

The relative merits of the policy options are then considered and the preferred option identified.

The impacts have graphically been indicated with symbols:

- | Negative impact |

0 | No impact |

√ | Small impact |

√√ | Medium impact |

√√√ | Very significant impact |

√√√√ | Exorbitant impact |

It must be stated that with the Impact Assessment it was noted that it is extremely difficult to estimate the impact of the entry/exit system and the Registered Traveller Programme in practice on the number of border guards and on the travellers´ waiting time as these depend almost entirely on the individual border crossing point and the fact if the Registered Traveller Programme or Automated Border Control system is used at that specific border crossing point or not. It should also be borne in mind that in practise the organisation and tasks of national border guard authorities differ widely between Member States,

There are huge differences between the traveller profiles at different border crossing points at the external border (for example, the number of TCN vs. EU citizens differs greatly). In the case of TCN the main factor is whether the traveller requires a visa or not. Also the current capacity to manage (infrastructure, data transmission system, customs and security checks etc.) the passenger flows at the border crossing point has a huge effect on the travellers´ waiting time and also border guard resources needed. As a result of the above factors, precise estimates of the impact of each option on border crossing times and the need for human resources could only be done based on a detailed analysis of the current situtation at each and every border crossing point of the Schengen area.

13. Option 1: Status Quo

14. To reduce illegal immigration (especially overstayers): √√

Improved identity checks through the use of biometrics at entry and possible exit of the EU will deter the use of false or forged identity documents to enter the EU illegally. The provisions of the VIS and harmonised employer sanctions are anticipated to reduce illegal immigration. The identity of overstayers issued with a visa who are apprehended can be more readily validated as they would have provided biometric and other information under the VIS. Problems of overstaying will continue.

- To facilitate crossings of EU external borders for bona fide travellers, ensuring overall coherence of EU border policy: -

Possible deterioration for TCN requiring visas. In practice there could be deterioration in cross border travel by TCN requiring visas as waiting times may increase due to biometric checks being undertaken.

However, it is worth noting that the use of the VIS at external borders should not significantly prolong the duration of border checks. For example, in connection with the Biodev Study, it became evident that verifying biometric identifiers will take approximately 10-20 seconds.

- To contribute to the fight against terrorism and serious crime: √

The identity checks at borders should be improved through the use of biometrics for TCN requiring visas. These checks could help identifying those persons who have committed offences. Identity checks within the EU would also be possible for TCN requiring visas.

- To improve the effective management of economic migration (for example seasonal workers): √

The improvements anticipated in controlling illegal immigration through the VIS and the harmonisation of employer sanctions may increase the confidence to grant visa to temporary migrants. The VIS is however not designed as a system to manage economic migration.

In this Impact Assessment the management of economic migration has mainly been considered from the perspective of work-related legal migration. However, during the border checks the travellers are not generally categorised from one another, but the border checks are carried out in accordance with the Schengen Borders Code, whether the illegal entry is attempted by a person aiming to work in the EU or travelling as a tourist, irrespective of the person´s sex, race or age. In the case of minors, however, the best interests of the child must always be considered in accordance with the 1989 United Nations Convention on the Rights of the Child.

Other relevant criteria have already been identified in the Impact Assessment for setting up the VIS.

15. Option 2: Entry/exit System

Assessment of sub policy option 2a entry/exit system for TCN requiring visas

- To reduce illegal immigration (especially overstayers): √√

Legal entry into EU and subsequent overstaying by TCN holding a visa would be discouraged through the increased probability that overstayers would be identified and sanctions would be applied as necessary. Most overstayers originate from the countries where visas to visit the EU are required.

Information on a group of illegal immigrants, i.e. overstayers would improve (on TCN holding a visa). The entry/exit system would allow generating data to analyse profiles and patterns of overstaying and provide timely and reliable information on the identity and incidence of those entering the EU legally and overstaying their right to stay. This would allow border control resources to focus more on the detection of overstayers and illegal border crossings, and it would also contribute to maintaining internal security. Furthermore this would facilitate the apprehension and removals of illegal immigrants and enabling proper measures to be taken in order to review their status in the territory of the Member States and thus reducing the negative implications. Member States would be responsible for locating overstayers and mobilising the capacity for apprehending and returning them.

The simple presence of an effective entry/exit system would help to deter would-be over-stayers and criminals. This opportunity results from the psychological effect associated with the presence of a system that would track in a consistent, permanent and seemingly infallible way the flow of TCN in and out of the Schengen area.

- To facilitate crossings of EU external borders for bona fide travellers, ensuring overall coherence of EU border policy: √

Having a reliable record of the travel history of TCN holding a visa could help to identify and facilitate bona fide travellers. The entry/exit system would contribute to a risk-assessment. As this group would already provide biometrics at each entry under the VIS, no additional negative input should result from the entry/exit system. A register could give rise to changes in the visa policy, in the sense that citizens of certain countries would no longer require visas.

- To contribute to the fight against terrorism and serious crime: 0/√

The entry/exit system would provide travel histories of passengers including those that are considered suspects and thus complementing the information in the SIS II. Such data on the movements of terrorists and serious criminal suspects could be of value in locating them and in subsequent prosecutions.

It is worth noting that in the case of the TCN searches are already being made using the SIS system and national databases. In that respect, the entry/exit system does not bring any new dimension to the prevention of terrorism.

EU citizens entries and exits would not be registered. Therefore, it would be difficult to identify those EU citizens who have connections to terrorism or serious crime.

- To improve the effective management of economic migration (for example seasonal workers): √√

The system could provide for a tool for the management of an EU level seasonal workers scheme, for instance in that it could be used as a register for such workers and would allow to verify whether seasonal workers have complied with their obligation to return after the end of the contract and are thus allowed to re-enter. Also, the entry/exit system might have the potential to reduce illegal immigration due to overstaying and indirectly increase confidence that migration policies could be adjusted in light of supply and demand. To this end, the system could improve confidence to grant visas and work permits to temporary migrants due to the incentive to not overstay. Thus an entry/exit system would allow for the management of the common immigration policy and the efficient management of an EU migration instrument. Initiatives concerning border controls tend to make an indirect rather than direct contribution to the management of economic migration.

It is likely that (Member States´) quotas for the admission of seasonal workers would be agreed with third countries, as a component of future EU mobility partnerships. The system would allow verifying whether the agreed quota is filled and whether return has taken place at the end of the agreed term.

In the absence of a centralised system it is difficult to assess (at least for Member States not having a national database) whether the amount of TCN admitted matches with the labour market needs.

It is difficult to estimate the impacts of the entry/exit system with respect to numbers/spread of economic migration between Member States. Numbers of economic migrants admitted depend, and will continue to depend, on the needs of Member States labour markets and not on the system for management, be it national or at EU level. The aim is not to increase/decrease the numbers of seasonal workers admitted, but to provide for flexible rules on the admission of such workers that can be managed efficiently. A separate Impact Assessment on the upcoming proposal for a Directive on criteria for admission of seasonal workers was launched in December 2007.

Other relevant criteria:

- Robustness in the light of substantive and policy changes

Benefits would accrue whether or not there are adjustments in migration and visa policy.

- Social and economic repercussions on the EU (including impacts on enterprise, governments, NGOs etc.)

Enterprises applying for visas for seasonal workers may be helped, if the sub policy option improves confidence in granting visas to temporary migrants and/or enterprises can demonstrate a record of employees complying with visa requirements.

- Social and economic repercussions on third countries

The repercussions would depend on the changes of visa policy. Some potential negative effects for third countries would occur if remittances relating to illegal economic migration are reduced.

- Impacts on fundamental rights: particularly privacy, data protection, presumption of innocence, fair trial, etc.

Potential significant impacts on data protection and protection of privacy as data on cross-border movements of TCN would be recorded and retained. System fallback procedures and the control of error rates would be critical as the consequences for the individual wrongly identified as an overstayer (e.g. missed flight, accident) could be severe. The scope of access to data should be limited to border control and migration authorities and duly authorised law enforcement authorities (as under the VIS Regulation). Data of TCN becoming EU citizens or their family members would need to be deleted.

The entry/exit system should follow the requirements set for the VIS system as to the privacy, data protection and fundamental rights of the travellers.

- Environmental impacts

No effects.

- Costs and benefits to bona fide EU citizens travellers

No effects.

- Costs and benefits to bona fide TCN travellers

The sub policy option would be able to confirm that TCN holding a visa had complied with the requirements of their visas. Some potential risk of subsequent visa applications being rejected or the TCN holding a visa being prevented from entering the EU due to system error.

- Capital/investment costs

There are likely to be only small additional capital costs.

- Ongoing financial costs (EU, MS, border authorities)

Increases in ongoing resource costs could accrue, if additional capacity is required to respond to the alerts received of overstayers. However, apprehension rates would be anticipated to improve.

- Necessary pre-conditions, accompanying measures to achieve impacts

Successful implementation of the status quo including the VIS, and in particular very high levels of accuracy with respect to the recording and validation through biometric identity checks of the timing of the cross border movements of TCN holding a visa.

All border crossing points should be equipped to be able to register the time and place of entry and exit of TCN holding a visa.

Assessment of sub policy option 2b entry/exit system for TCN not requiring a visa

- To reduce illegal immigration (especially overstayers): √√√

Biometric identity checks would be applied to TCN not requiring a visa who might otherwise not be subject to them. Legal entry into EU and subsequent overstaying by TCN not requiring a visa would be discouraged through the increased probability that overstayers would be identified and sa