Migration Policy Centre - MPC

Chair: Alexandra Karaiskou, PhD researcher, Department of Law (EUI)

ETIAS through the Lens of Legality: Rule of Law Challenges of Algorithmic Discretion, Automation and AI Use in Border Control by Amanda Musco Eklund, PhD researcher, Department of Law, Umeå University

Discussant: Evelien Brouwer, Lecturer in Public Law, Migration and Technology, Utrecht University

Abstract

Rule of Law is a cornerstone of liberal democracy and the EU legal order, with concrete expression in principles containing legally binding obligations. A rule of law perspective is necessary to fully understand the legal implications of automation and AI in EU external border control. The principle of legality and the European Travel Information and Authorisation System (ETIAS) is used as an illustration, focusing on the ETIAS screening rules which use mining and profiling of personal data to make automated predictive risk assessments. The article illustrates how automation leads to a new form of arbitrariness – algorithmic discretion – when the exercise of power and discretion is not sufficiently specified at the legislative level, but delegated to an algorithm. It further discusses how the legislative framework of ETIAS and its application on a decision-making level challenge rule of law principles related to legality, legal certainty, foreseeability, accessibility, transparency and limits on discretion. It calls into question the assumption that a guarantee of manual processing in case of a ‘hit’ is a panacea for all rule of law challenges stemming from semi-automated decision-making.

The regulatory phenomena of translating legal norms into potentially opaque automated systems requires (1) further analysis from a rule of law perspective on its effects on border control and (2) an updated understanding of legality in the context of automation.

Irregularly Staying Migrants and their Right to Regularise under EU Law by Kevin Fredy Hinterberger, Visiting Fellow, Department of Law (EUI)

Discussant: Daniel Thym, Chair of Public, European and International Law, University of Konstanz

Abstract

This contribution answers the following question: Is there an obligation under EU law to regularise irregularly staying migrants? In short, one may say that the Return Directive places the Member States in a position to choose between the return procedure or regularisation. Member States retain the discretion to grant a right to stay at each stage of the process or even after issuing the return decision. The Return Directive therefore leaves the Member States the possibility to regularise irregularly staying migrants. Nonetheless, in light of the ECJ case law and diverse scholarly opinions it is disputed whether there is an obligation to regularise under the Return Directive. I argue that Article 6(4) Return Directive provides two sets of circumstances in which the Member States are obliged to grant irregularly staying migrants a right to stay: where the return would violate the principle of non-refoulement under the ECHR and CFR and where the non-returnability of the migrant concerned is permanent. In both sets of circumstances the discretion afforded to the Member States under the first sentence of Article 6(4) Return Directive is removed entirely as the alternative option to return is not enforceable.