20_E borders: An overview of the legislative framework

E borders envisages the acquisition and sharing of passenger, crew, freight and service
information in respect of aircraft, ships and trains entering and leaving the UK (and in some
cases ships and aircraft travelling within the UK) by and between the UK Border Agency
(UKBA), the police and HMRC (collectively, the border agencies). The information will be
shared within ”e-boc”, a single database which will be accessed by the border agencies.

The amount of data that can be acquired varies between each of the border agencies
(depending on their needs). Each border agency runs the data they acquire against their
warnings lists and then shares the data and the results of its tests with the other border
agencies. The policy objective is to target and coordinate better the activity of the border
agencies in relation to persons entering and leaving the UK.

Data Acquisition
UKBA’s powers to acquire passenger, crew and service data are set out in paragraphs 27 and
27B of Schedule 2 to the Immigration Act 1971 (which were amended by the IAN Act 2006).
They apply only in respect of ships and aircraft arriving in or leaving the UK (but see below
in relation to Channel Tunnel trains). Under paragraph 27 UKBA has the power to require a
passenger list and particulars of crew members. Under paragraph 27B UKBA has the power
to require passenger and service information. The specific data that can be requested is
specified in the Immigration and Police (Passenger, Crew and Service Information) Order
2008 (S.I. 2008/5) which came into force on 1 March 2008. Broadly speaking the order
specifies Advance Passenger Information (API) in respect of both crew and passengers,
Passenger Name Record data (PNR) in respect of passengers only and service data.1 Broadly
speaking, API and service data must be provided on request (unless it is provided before a
particular point in time) whereas PNR data need only be provided to the extent to which it’s
known to the carrier. It is an offence to, without reasonable excuse, fail to provide data on
request (section 27(b)(iv) of the Immigration Act 1971).

The police powers to acquire passenger, crew and service data are set out in section 32 of the
IAN Act 2006. They apply only in respect of ships and aircraft arriving in or leaving the UK
(but see below in relation to Channel Tunnel trains). The specific data that can be requested
is also specified in the Immigration and Police (Passenger, Crew and Service Information)
Order 2008 (S.I. 2008/5) which came into force on 1 March 2008. Broadly speaking the order
specifies Advance Passenger Information (API) in respect of both crew and passengers,
Passenger Name Record data (PNR) in respect of both crew and passengers and service
data.2 Broadly speaking, API and service data must be provided on request (unless it is
provided before a particular point in time) whereas PNR data need only be provided to the
extent to which it’s known to the carrier. It is an offence to, without reasonable excuse, fail to
provide data on request (section 33 of the IAN Act 2006).

1
Before these provisions were amended by the IAN Act 2006, UKBA had powers to obtain most API
and a small number of PNR elements in respect of passengers arriving or leaving the UK by air or by
sea (paragraph 27B of Schedule 2 to the 1971 Act and S.I. 2000/912). They also had powers to acquire
a list of passengers and particulars of crew on a ship or aircraft which is arriving in (not leaving) the
UK (paragraph 27 of Schedule 2 to the 1971 Act and S.I. 1972/1667). The latter power only applied to
ships which arrive in the UK from outside the common travel area but covered aircraft which arrive in
the UK from outside the UK and the islands. Limitations applied in respect of citizens of the Republic
of Ireland and flights from the Republic of Ireland to the UK.
2
Before the IAN Act 2006 the police had no general powers to obtain passenger, crew and service data
from ships and aircraft entering the UK except under terrorism legislation.
When section 14 of the Police and Justice Act 2006 is commenced (anticipated October 2009)
section 32 will be amended to also permit the acquisition of passenger, crew and service
data in respect of internal UK flights and voyages. At present it is anticipated that S.I.
2008/5 would be amended to specify the data that would be obtained in respect of flights
and voyages between Northern Ireland and mainland UK only.

Section 33 of the IAN Act 2006 also provides the police with a power to obtain information
relating to freight in respect of ships, aircraft and vehicles arriving or leaving the UK. This is
proving problematic but may be commenced in October 2009.

The HMRC have extensive data acquisition powers under a direction under section 35(1) of
the Customs and Excise Management Act 1979.

Both UKBA and the police can also acquire this data in respect of trains arriving in or leaving
the UK via the Channel Tunnel. This is achieved by the Channel Tunnel (International
Arrangements and Miscellaneous Provisions) (Amendment) Order 2007 (S.I. 2007/3579)
which is made under section 11 of the Channel Tunnel Act 1987. That order enabled S.I.
2008/5 to specify the data that can be acquired in respect of Channel Tunnel trains as well as
ships and aircraft arriving in and leaving the UK.

Data Sharing
Section 36 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) requires the
border agencies to share information which (a) is obtained under one of a number of
specified powers and which relates to passenger, crew or freight on a ship or aircraft or to
flights/voyages or (b) relates to specified matters in respect of travel or freight. The
Immigration, Asylum and Nationality Act 2006 (Duty to Share Information and Disclosure of
Information for Security Purposes) Order 2008 (S.I. 2008/539) specifies those powers and
matters and came into force on 1 March 2008.

The Channel Tunnel (International Arrangements and Miscellaneous Provisions)

(Amendment) Order 2007 enabled S.I. 2008/539 to specify the data that can be acquired in
respect of Channel Tunnel trains as well as ships and aircraft arriving in and leaving the UK.

A code of practice under section 37 of the 2006 Act governs the sharing of this data and can
be accessed at:
http://www.bia.homeoffice.gov.uk/sitecontent/documents/managingourborders/eborder
s/codeofpractice/ . It was laid before Parliament and then brought into force on 1 March
2008 by the Immigration, Asylum and Nationality Act 2006 (Data Sharing code of Practice)
Order 2008.

Gateways and common law powers

Section 38 of the IAN Act 2006 provided a gateway for any of the border agencies to share
information with the security and intelligence agencies which (a) is obtained under one of a
number of specified powers and which relates to passenger, crew or freight on a ship or
aircraft or to flights/voyages or (b) relates to specified matters in respect of travel or freight.
The Immigration, Asylum and Nationality Act 2006 (Duty to Share Information and
Disclosure of Information for Security Purposes) Order 2008 (S.I. 2008/539) specified the
same powers and matters for this purpose as under section 36 of the IAN Act 2006 (although
there were some exceptions which applied in respect of sharing under section 36 which did
not apply under section 38 (article 3(2) of the order)). However, section 38 was repealed by
section 20 of the Counter-Terrorism Act 2008 and section 19 of the 2008 Act provides a wider
gateway to share with the security and intelligence agencies.
Section 39 of the IAN Act 2006 provides a power for a chief officer of police to disclose
information obtained under section 32 or 33 of that Act to overseas law enforcement
agencies.

Section 21 of the Immigration and Asylum Act 1999 provides a general gateway for the
Secretary of State to provide information to certain persons.

HOLAB has taken a view that UKBA retains its common law powers to share data acquired
under section 36 but recognises there are risks with this approach.

January 2009