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Seanad Éireann debate -
Wednesday, 26 Apr 2023

Vol. 293 No. 9

EU Regulations: Motion

I move:

That Seanad Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Regulation of the European Parliament and of the Council on the collection and transfer of advance passenger information for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, and amending Regulation (EU) 2019/818, a copy of which was laid before Seanad Éireann on 13th January, 2023.

I welcome the Minister of State, Deputy James Browne, back to the House.

I seek Seanad approval to opt into a proposal for a regulation of the European Parliament and European Council on the collection and transfer of advance passenger information, API, for the prevention, detection, investigation and prosecution of terrorist offences and serious crime. This proposed regulation as it relates to law enforcement, is a key part of co-operation with other member states in the area of information exchange relating to terrorist offences and serious crime.

The proposed regulation aims to build on and improve the existing rules, in terms of the collection and transfer of API data. Today's motion follows on from the publication in December 2022 by the EU Commission of the two proposals for regulations, both regarding the collection and processing of API data relating to air travel. To provide some background, API refers to information contained in the machine-readable zone of a passenger's passport or travel document. This includes the name, date of birth, gender, nationality and document or passport number. API also includes flight information such as flight number and arrival and departure times. The first of the two proposed regulations is better known as the API border management regulation. This relates to the processing of API data for border management related purposes. However, Ireland does not need to opt into this proposal, as it is a Schengen building measure in which Ireland will automatically be participating.

The second proposal is known as the API law enforcement regulation and is the subject of today's motion. It relates to the processing of API data as part of the passenger name record, PNR, dataset for the purposes of the detection, prevention, investigation and prosecution of terrorist offences and serious crime. As the API law enforcement regulation has a Title V legal basis Ireland has until 6 May 2023 to notify the Presidency of the Council of the intention to opt into this measure under Article 3 of Protocol 21. To provide some contextual background to Senators, the Irish passenger information unit, IPIU, was established as a unit of the Department of Justice by the Minister for Justice under SI 177 of 2018, the European Union (Passenger Name Record Data) Regulations 2018. The IPIU is responsible for the collection and processing of passenger name record data related to the prevention and detection of terrorist offences or serious crime and for transferring the data to designated competent authorities. Schedule 3 to SI 177 of 2018 provides that a number of competent authorities are entitled to receive the results of the processing of PNR data, including An Garda Síochána, the Revenue Commissioners and the Department of Social Protection.

Passenger name record data are the information collected by air carriers for their commercial purposes during the flight reservation process. As mentioned, the two recent Commission proposals in this area are interrelated. The proposed sister regulation, the API border management regulation establishes and legislates for a central router, which will be established and maintained by the relevant European agency, known as eu-LISA. The central router will transfer the data gathered in pursuance of the API law enforcement regulation to each member state. Under the proposed API law enforcement regulation being discussed today, air carriers will be mandated to use a central router to transfer API data to the passenger information unit of each member state. Mandating air carriers to transfer API data to a central router within the EU will streamline the overall process and will also reduce the cost on airlines as a central router will significantly reduce the number of separate connections to be maintained.

The fact that data will be collected and transmitted solely via automated means will improve accuracy, enhance data protection measures and will also increase the reliability of data analysis carried out by competent authorities. The combined use of API data and PNR data enables the competent national authorities to confirm the identity of passengers and significantly enhance national security measures.

I welcome the Minister of State. From a Fianna Fáil perspective, this debate is very much welcomed. We are very happy to support the motion as outlined. It is heartening to see such positive co-operation between the EU states. It is important, as we try to prevent, detect, investigate and prosecute those involved in terrorist offences and serious crime. It is a positive thing that we have this co-operation.

Prior to Brexit, I would imagine the UK also was part of this EU agreement. What now is the protocol in relation to co-operation of a similar nature with the UK authorities? Do we have the necessary agreements in place with them? That aside, I am happy to support this motion on behalf of my party

I thank the Department for the helpful briefing document that was forwarded to us. I had raised some questions on these matters. I am noting, as the Minister of State has indicated himself, that the proposal being discussed today is part of a twin set of proposals published in December last year, both of which relate to the new rules around the sharing of advance passenger information. One of the proposals, which relates to border management, did not require an opt-in. I believe, and the Minister might confirm, that it automatically applies to countries within certain Schengen agreements.

The second proposal, which is the one we are opting into in this motion, relates to the use of API in the prevention of terrorism and serious crime. These twin proposals are part of a set of new changes to API rules. We are only getting a say in one of them, where in fact it is the other half of the set of proposals that raises some concerns. That is why I want to discuss how they will operate together as one suite of measures. Perhaps this is an opportunity where we might be able to get reassurances about the impact of this combined set of new API rules, for example, on those people seeking international protection. I have already noticed some contradictions. The Department has said that API data can be consulted for immigration purposes in accordance with existing API rules and used to identify persons of concern who are due to arrive or have arrived on a relevant flight, including undocumented arrivals. However, in the majority of cases, this cohort presents immigration officials with no documentation. In such instances, the immigration officer cannot refer to the API data. There is a little bit of a contradiction here because one part is saying that it can be used to identify persons of concern and then the second part is saying that people cannot be identified. We need clarity on this. I am concerned that this information should be used correctly. Everybody would support the use of API data in identifying persons of concern for terrorism or serious crime. However, we do not want a situation where there is, for example, a constant trawling and checking for persons who may simply have different documentation. This is in the context of the European Regions Airline Association stating on its website in January last year that the new API rules will be used to combat irregular immigration on all flights entering the Schengen area.

The right to seek asylum is a form of migration that should not be constrained in this regard. I am also concerned by some of the stories I have read in the Dublin Inquirer detailing cases of airlines stopping Bolivians from boarding planes to Ireland because they were preceptively trying to avoid fines they believed they may incur if those passengers landed in Dublin, despite the fact that Bolivians have the same right to visa-free travel to Ireland as many others have. A decision was made, in terms of policy, that Bolivians' travel would be made more difficult. A Dublin Inquirer reporter wrote that there is a danger that airline staff "may sometimes act as a kind of outsourced - and less accountable - form of immigration control.". Airlines can be fined up to €3,000 by the Garda National Immigration Bureau, GNIB, for flying in passengers who, in the view of a border control officer, do not have their documents in order. There is a real concern in relation to this. In 2022 the GNIB issued €1.1 million in carrier-liability fines. My concern does not solely relate to what we are discussing today, which I hope will be only used for terrorism and serious crime, but to the fact that we are seeing a situation evolve whereby we have an unaccountable immigration filtering system involving airline staff who are not necessarily trained in human rights, in the right to seek asylum and so forth. They are effectively having a chilling effect on travel within the Schengen area. In that regard, I hope that the Minister of State can give us reassurances on how this information will be used. Will it be used by the GNIB? Will it be used in relation to the potential issuing of fines to airlines?

Finally, advice published by the Irish Refugee Council reminds us that Article 31 of the refugee convention holds that persons seeking refugee status must still have their application processed, regardless of whether they have entered a state with legal documents. This rationale exists because there is no visa to claim asylum and it is very difficult for a person who is leaving a refugee-producing country or who is in a crisis, to access a visa.

I hope the Minister of State will address my concerns and clarify the issues I raise. My concern is not necessarily with these powers but with how they might be used.

Before I bring in Senator Seery Kearney, I welcome to the Public Gallery a group from CBS Kilkenny. You are all very welcome. I am a former pupil of a Christian Brothers school myself and school board chairman. I also welcome another group from Portadown College. I hope you all have a nice day in Leinster House and that you are enjoying the proceedings here in Seanad Éireann.

Our next contributor is Senator Seery Kearney, who has five minutes.

I speak on behalf of the Fine Gael party when I express my support for this in its entirety. I thank the Minister of State for bringing it before the House today. Apropos of the points made by Senator Higgins, Ireland is very much aware of the rights of those seeking asylum and operates thoroughly and comprehensively to vindicate to those rights. If further measures are needed to ensure that airlines are operating correctly with regard to the vindication of those rights, then I am sure we will be open to entertaining and considering that, with human rights as the basis for everything.

I have read the explanatory memorandum accompanying the motion and regulations before us today. The backdrop to this is the European Union's Serious and Organised Crime Threat Assessment. In its foreword, the executive director of Europol, Ms Catherine de Bolle, has stated:

I am concerned by the impact of serious and organised crime on the daily lives of Europeans, the growth of our economy, and the strength and resilience of our state institutions. I am also concerned by the potential of these phenomena to undermine the rule of law.

When one sees crimes such as the cyberattack on the HSE, one realises that, as the Minister of State, Deputy Ossian Smyth has said, we are under the threat of cyberattacks all of the time. There is not a village in the State that does not have someone who was trafficked into it. These people are operating various areas, not just in the sex trade, which is one of the traditional areas in which one would expect to come into contact with trafficked people. They are working in areas such as cleaning, construction, gardening and driveway maintenance, as well as in the nail care industry. There are people in every walk of life who have been trafficked into this country. These measures are part of combating that and of ensuring that the tragedy of the human beings who are being smuggled is dealt with in an appropriate manner. The measures give us an opportunity to respond to that.

The sums of money involved here are vast. Some of the communities in my own home constituency of Dublin South Central have the potential to be completely dominated by crime groups. I acknowledge the Minister of State has responded to this well. In this context, we must act as part of the European Union and make a serious intervention, as per the motion before us. This is an encroachment on our privacy rights but it is a rightful and proportionate response because the very existence of nation states is at threat, given the sums of money involved and the control commanded by organised crime. We cannot be naive about what we are up against here. The more we co-operate with others, the better. Little Ireland cannot do this on its own. We need European co-operation. Europe seems to be the regulatory body for the entire world at this point.

It is estimated that 80% of criminal networks are involved in drugs, organised property crime, fraud, human trafficking, online fraud and migrant smuggling. Of those, 65% are composed of members of multiple nationalities. There are 180 nationalities involved and seven out of ten of these networks typically operate in more than three countries. These statistics in themselves are sufficient to argue that all of this is justified, proportionate and necessary. We give it our complete support.

I thank Senators for their contributions. I will begin by responding to Senator Gallagher's point about Ireland and the United Kingdom. While Ireland does not currently collect API data for flights from the United Kingdom, UK flights came within the scope of the 2011 API regulations from January 2021, when the UK became a third country. The 2011 regulations provide that the Minister "may" require a carrier to provide API, as opposed to "shall". The text of the current proposal, combined with the borders proposal, mandates API collection for all flights into the Union, which would apply to flights from the UK to Ireland. From a law enforcement viewpoint, it can be seen as desirable to fully participate in these API proposals and to gather and exchange API data on flights between the UK and Ireland. However, both proposals are still in negotiation and during that process, Ireland will consider further the possible effects of these proposals on the common travel area between Ireland and the UK. This point is also important in the context of Senator Higgins's remarks. Both of these proposals, both the border management regulation and the law enforcement regulation, are at negotiation stage. The law enforcement regulation, which falls under Title V, requires an opt-in whereas the borders proposal does not because it is part of the measures of the Schengen acquis, in which Ireland takes part, in accordance with Article 6.2 of Council Decision 2002/192/EC of 28 February 2002, concerning Ireland's request to take part in some of the provisions of the Schengen acquis. That simply means that it does not require an opt-in but both proposals are still under negotiation. We will continue to actively participate in those negotiations.

These essential point is that these provisions are necessary and are important for EU co-operation. As Senator Seery Kearney noted, we have to work together. Ireland is a small country on the periphery of Europe and we need to work with all of our European colleagues and others to ensure that we can tackle terrorism and crime. While I acknowledge Senators' concerns in relation to the use of these regulations, the European Court of Justice has been quite clear on the limits of what such regulations can be used for. There cannot be a level of overreach and they must be used only for the very clear purposes set out. Furthermore, data can only be retained for certain purposes and for a certain length of time.

Of course, our State has a duty to protect its borders and, following examination, to ensure that all of those passengers arriving into Ireland have the necessary documentation to protect our borders and to prevent illegal immigration. Illegal immigration is very different from the seeking of international protection. That distinction is very important. Anybody coming here to seek international protection will be given such protection in accordance with the law and our international obligations to protect human rights. As Senator Higgins rightly points out, it is a matter of ensuring this practice is being used for its intended purposes. I am confident that is the case. The European Court of Justice has provided very strong oversight in this area through its court decisions as to how previous regulations have been used and for what purposes. As Senator Seery Kearney pointed out, we are very strong on protecting people's human rights and we will continue to do so.

If airlines have any questions, they can contact the border management unit for clarification. If they have doubts as to whether somebody attempting to board an aeroplane has a right to do so or whether a person's documentation is correct, they can reach out for information in respect of that particular case. That is what I suggest airlines do. It may be the case that some airlines are just not engaging to get the clarification needed. It certainly is available to airlines as needed.

Before I put the question, I welcome a second group from Portadown College, who I understand are in the Gallery. They are very welcome. I hope they are having a nice day in Leinster House and enjoy the rest of their time here.

Question put and agreed to.
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