Proposal to amend regulation 767/2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas and Regulation 810/2009 establishing a Community Code on Visas (the visa code)
Date: 2017-03-29
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: area of freedom, security and justice



IMMC.Ares%282017%291687721.ENG.xhtml.PART-2017-104393V1.docx












INCEPTION  IMPACT  ASSESSMENT 






Title of the initiative




Visa Information System (VIS)  and Community Code on visas (the Visa Code)






Lead DG – responsible unit – AP Number




HOME/B2




Date of roadmap




28/03/2017






Likely Type of initiative




legislative






Indicative Planning




Insert hyperlink to forecast report






Additional Information




Insert link to "Commission decides" or to the specific website for the initiative






This Inception Impact Assessment aims to inform stakeholders about the Commission's work in order to allow them to provide feedback on the intended initiative and to participate effectively in future consultation activities. Stakeholders are in particular invited to provide views on the Commission's understanding of the problem and possible solutions and to make available any relevant information that they may have, including on possible impacts of the different options. The Inception Impact Assessment is provided for information purposes only and its content may change. This Inception Impact Assessment does not prejudge the final decision of the Commission on whether this initiative will be pursued or on its final content. 









A. Context, Problem definition and Subsidiarity Check  






Context  






The Visa Information System (VIS) was established by Decision 2004/512/EC and its purpose, functionalities and responsibilities were set out in Regulation 767/2008 (the VIS Regulation). Amendments to the VIS Regulation were put forward on 6 April 2016, as part of the proposal establishing an Entry/Exit System (COM(2016) 194 final). 


According to Article 50 of the VIS Regulation and Article 57(3) of the Visa Code (Regulation 810/2009),an evaluation of the system, part of the Commission’s REFIT programme, was finalised by the Commission in October 2016 (COM(2016)655, SWD (2016) 327, SWD (2016) 328). It analysed the performance of the VIS as a system, its implementation in practice and the extent to which it has reached its policy objectives, including its added value to the common visa policy. On the basis of this evaluation, the Commission issued recommendations regarding the need for revision or extension of the VIS functions. These recommendations, together with appropriate proposals, have been transmitted to the European Parliament and the Council.


This initiative builds on the evaluation of the VIS but also aims to respond to evolving policy, legal or factual developments in the field of visa and border crossing. This initiative was included in the Commission's Work Programme for 2017 as a REFIT initiative (Annex II).






Problem the initiative aims to tackle






The evaluation of the VIS has shown the system in general to be very effective in meeting its objectives, in particular as regards facilitating the visa application procedure, helping fight fraud and facilitating checks and enabling identifications at external border crossing points and within the territory of the Member States. However, despite the very good performance of the common system for storing, processing and exchanging visa data, the evaluation demonstrated a need to further develop the system in order to respond to new challenges in visa, border and security policies. The evaluation further demonstrated a need for a number of improvements in particular in relation to monitoring of data quality and production of statistics.


More specifically,  the evaluation identified the following shortcomings should be addressed in terms of efficiency:


Data quality – problems mostly stem from sub-optimal application of the legal provisions, although in a few cases the law insufficiently responds to the quality needs required for an efficient use of the system.


Obtaining informative and reliable statistics on the VIS was one of the major hurdles encountered while gathering information for the evaluation. Without hard quantitative evidence, the Commission is unable to properly monitor the application of EU law by the Member States (whether during the evaluation of a policy or in targeted processes such as the Schengen evaluation) and is therefore unable to justify policy developments.


Prior consultation and representation – currently, the lack of centralised technical solutions for carrying out these functions entails a lack of transparency and more procedural hurdles for both Member States' administrations and applicants;


VIS Mail mechanism for consultations between Member States – This is currently a separate network which should be integrated into the VIS infrastructure. Such a measure would also make it easier for the Member States to perform their tasks, because there would be fewer systems to manage and maintain at national level.


The legal provision allowing applicants to only give fingerprints once in 59 months is not being properly applied in practice. This could be addressed through a new provision in the Visa Code requiring consulates to issue a receipt certifying the collection of fingerprints of a particular applicant on a particular date.


The VIS has so far been accessed infrequently for the purposes of preventing, detecting and investigating terrorist offences and other serious criminal offences. Revised legal provisions should render such searches more useful and efficient. 


Finally, Article 57 of the Visa Code required the Commission to also address in this evaluation the issue of the sufficient reliability of fingerprints of children for identification and verification purposes. The evaluation took into account JRC's study on the reliability of fingerprinting of children below the age of 12
1
 and recommended to further explore the possibility to reduce the age limit for collecting fingerprints of children, taking into account the best interests of the child and its potential to assist in identifying victims of trafficking in human beings and detecting traffickers.


On the other hand, the evaluation found that the VIS is currently used for return purposes only to a very limited extent. The current possibility given by the law to use the VIS to identify people apprehended in connection with the irregular crossing of an external border or found to be illegally staying in a Member State is only occasionally applied. 






Subsidiarity check (and legal basis)






Article 74, and Article 77(2)(a) and (b) of the Treaty on the Functioning of the European Union provide the legal basis for amending the VIS Regulation. 


The objectives of the VIS Regulation, to set up a common system and common procedures for the exchange of visa data between Member States, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the action, be better achieved at EU level. The further improvement of these common procedures and rules on the exchange of data consequently requires EU action.






B. Objectives and Policy options      






Some of the areas of the improvement identified in the context of the VIS evaluation (such as reinforced use of the VIS at borders, more systematic use of the VIS to identify persons who do not fulfil the conditions for stay on EU territory, improved use of VIS functionality, etc.) can be done through non-legislative measures, such as guidance, including through technical standards at the level of eu-LISA, improved implementation in practice. 


However, some of the above problems can only be addressed through legislative amendments, to provide the system and the Member States' applying it with more effective tools to properly implement the VIS objectives. 


Thus, the main objectives which the initiative aims to achieve are:


-Improve efficiency of the VIS in terms of combatting visa fraud, visa shopping, facilitate checks at external border crossing points and within the territory;


-Further contribute to assisting in procedures to return third country nationals that do not or no longer fulfil the conditions for entry and or stay on EU territory.


In order to achieve those objectives, a series of measures could be envisaged, including:


As regards improved efficiency,


introduction of the possibility to have the information on national long-stay visas, including biometrics, registered in the VIS;


introduction of the possibility to reduce the age limit for collecting fingerprints of children from 12 to 6 years of age;


VISMail integration into the VIS;


better provision of statistics in order to better meet stakeholders' needs; 


improved data quality rules and the production of data quality reports; 


the possibility to adapt the configuration of the central system to better respond to the need to rapidly and efficiently adapt to availability needs in periods of disruption;


scrapping obsolete provisions of the current law (e.g. on the roll-out, the setup and transition to VIS Mail or various transition periods).


As regards more effective return procedures,


introduction of the possibility to incorporate copies of travel documents of Schengen visa applicants in the VIS.


In addition, following the Communication on Stronger and Smarter Information Systems for Borders and Security
2
 (‘Smart Borders’ Communication) adopted on 6 April 2016, the Commission set up a High Level Expert Group on Information Systems and Interoperability, tasked with addressing the legal, technical and operational aspects of the different options to achieve interoperability of the Entry-exit system Schengen Information System (SIS), the VIS and Eurodac. A final report with recommendations is expected by mid-2017, which may result in legal amendments to the VIS in order to achieve interoperability with the other systems.







C.  Preliminary Assessment of Expected Impacts 











Likely economic impacts






N/A 






Likely social impacts 






As shown by the VIS evaluation, the main impact of the VIS are at society level: 


-The VIS is essential for the good functioning of the common visa policy and in supporting the common free movement area; 


-it makes it possible to verify the persons crossing the EU external borders and identify any person who may not, or may no longer, fulfil the conditions for entry to, stay or residence on the territory of the Member States; 


-it facilitates the application of criteria and mechanisms to determine which Member State is responsible for examining an asylum application and when examining the application for asylum itself; 


-it contributes to preventing, detecting and investigating serious criminal offences. 


The amendments to the VIS are expected to consolidate these positive impacts.


In particular as regards the possibility of reducing the age limit for collecting fingerprints of children to 6 years of age (from the current 12), if retained in the legal revision, this is expected to assist in identifying victims of trafficking in children and detecting traffickers, when attempting to use a Schengen visa to access EU territory.


As regards the possibility of storing a copy of the travel document of the visa applicants in the VIS, if retained, this measure is expected to contribute to the procedures to identify and return third country nationals that do not or no longer fulfil the conditions for entry and or stay on EU territory.


Finally, as regards the possibility of extending the VIS database in order to include information on national long-stay visas, including biometrics, this is expected to help Member States' authorities improve their assessment by improving their access to more data regarding the history of applications of a third country national. It would also increase transparency as regards visa data.






Likely environmental impacts






N/A






Likely impacts on fundamental rights






When assessing the possibility of extending the use of fingerprinting of visa applicants to applicants who are younger than 12, the best interests of the child will be taken into account in accordance with Article 24 of the Charter of Fundamental Rights. 


In progressing and implementing further technical and operational interoperability and new functions the fundamental right to protection of personal data as recognised in Article 8 of the Charter of Fundamental Rights, and in particular the purpose limitation principle deriving from that right will be taken into account. Additionally, special consideration should be given to data protection by design - requirements as mentioned in Article 25 of the new General Data Protection Regulation 2016/679 and Article 20 of the Data Protection Police Directive 2016/680.






Likely impacts on simplification and/or administrative burden






As shown by the VIS evaluation, the VIS has led to 1) a simplification and facilitation of the visa application process by ensuring that data gathered by all Member States are stored and exchanged via a common system, 2) a reduction in the administrative burden of national administrations and 3) clearer, leaner and more effective procedures when dealing with processing visa applications, performing checks at external borders or in the territory, identifying third country nationals for migration or return purposes or examining asylum applications.


Similar benefits in terms of reducing administrative burden are expected if the possibility of extending the database to include information on long-stay (national) visas is utilised, by replacing the need to set-up and maintain 26 national systems in one centralised EU system.






D. Data Collection and Better Regulation Instruments 






Impact assessment






Most of the foreseen amendments are essentially technical in the sense that they are either required for the purposes of improving the functioning and operational effectiveness of the VIS or because of legislative and policy developments i.e. inter-operability with other systems. The proposed amendments would extend the purpose, functionality and responsibilities of the VIS in a very limited way, without relevant economic, social or environmental impacts. 


There are three aspects envisaged by the revision of the VIS legal basis with a more significant impact – the lowering of the age limit for the collection of fingerprints of children from 12 to 6 years of age, the registration of national long-stay visas data, including biometrics, in the VIS, and the incorporation of copies of the travel documents of Schengen visa applicants in the VIS. 


The Commission will carry out an impact assessment in relation to these measures in order to assess their feasibility (as regards the lowering of fingerprint age, a technical study has already been carried out by the Joint Research Centre and the results published in 2013 however this study did not touch on the issue of the policy opportunity of such a measure, in particular the assessment of its potential to assist in the identification of victims of trafficking in human beings and the detection of traffickers).






Data collection






For the three measures on which an IA will be carried out, specific data will also be re-collected, including the opinions of the Member States' visa authorities and of authorities dealing with children's rights and trafficking in children.


A specific study will be carried out to gather additional data on the necessity, proportionality and implications of lowering the fingerprinting age for children and of storing a scanned copy of the travel document in the Visa Information System. 


A specific study will also be carried out to assess the feasibility of extending the VIS to data regarding documents for long stay or residence and local border traffic. 


Both studies will collect data from Member States responsible authorities in the field of visa, border controls, migration, or child protection, according to the specificity of each topic. Additionally, data protection authorities, including EDPS will be consulted, FRA as well as NGOs active in the field of human and child trafficking and children's rights.


A study on the technical feasibility of all possible VIS developments has been carried out by eu-LISA during November 2016 and February 2017 and its results will also feed into the IA.






Consultation strategy






In the context of the VIS evaluation, extensive consultations have taken place with the Member States' authorities which manage or access the VIS, eu-LISA, Frontex and Europol regarding how this system works and how to improve its functions.


An open public consultation, targeting a broad audience, will be carried out between April and June 2017 to seek views in respect of the age for collecting fingerprints from children. 


Targeted consultations will be carried out to seek the views of national responsible authorities, EU agencies relevant in the field (eu-LISA, Fundamental Rights Agency) etc. with respect to documents to be included in the VIS and lowering the fingerprinting age for children.  impact assessment 






Will an Implementation plan be established?






No implementation plan is foreseen for this initiative, which is a Regulation. 










(1)
 Report EUR 26193 EN, ‘Fingerprint Recognition for Children’.



(2)


 
                           COM(2016) 205 final.