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E-Borders: Memorandum of Understanding: Between Governments of Jersey, United Kingdom, and Northern Ireland

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A decision made 5 June 2013:

Decision Reference: MD-HA-2013-0033

Decision Summary Title :

Signing of Memorandum of Understanding between the Government of Jersey and the Government of the United Kingdom of Great Britain and Northern Ireland concerning e-Borders

Date of Decision Summary:

15 April 2013

Decision Summary Author:

 

Director, Law Enforcement

Decision Summary:

Public or Exempt?

(State clauses from Code of Practice booklet)

Public

Type of Report:

Oral or Written?

Written

Person Giving

Oral Report:

n/a

Written Report

Title :

Signing of MoU between the Government of Jersey and the Government of the United Kingdom of Great Britain and Northern Ireland concerning e-Borders

Date of Written Report:

22 May 2013

Written Report Author:

Director, Law Enforcement

Written Report :

Public or Exempt?

(State clauses from Code of Practice booklet)

Public

Subject: Signing of Memorandum of Understanding between the Government of Jersey and the Government of the United Kingdom of Great Britain and Northern Ireland concerning e-Borders.

Decision(s): The Minister agreed that the Memorandum of Understanding between the Government of Jersey and the Government of the United Kingdom of Great Britain and Northern Ireland concerning e-Borders, attached as Appendix 1 of the associated report to this Ministerial Decision, may now be signed for and on behalf of the Government of Jersey by the Head of Service of the States of Jersey Customs and Immigration Service.

Reason(s) for Decision: The signing of a Memorandum of Understanding between the Government of Jersey and the Government of the United Kingdom of Great Britain and Northern Ireland concerning e-Borders will allow Jersey to continue to participate fully in the development and implementation of the e-Borders programme.

Resource Implications: None

 

Action required: The Memorandum of Understanding between the Government of Jersey and the Government of the United Kingdom of Great Britain and Northern Ireland concerning e-Borders to be signed by Michael Robinson, Head of Service of the States of Jersey Customs and Immigration Service, for and on behalf of the Government of Jersey.

Signature:

 

 

Position:

Minister for Home Affairs

 

Date Signed:

 

 

Date of Decision (If different from Date Signed):

 

 

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E-Borders: Memorandum of Understanding: Between Governments of Jersey, United Kingdom, and Northern Ireland

CUSTOMS AND IMMIGRATION SERVICE

 

Signing of Memorandum of Understanding between the Government of Jersey and the Government of the United Kingdom of Great Britain and Northern Ireland concerning e-Borders

 

 

Introduction

 

This report relates to the signing of a Memorandum of Understanding between the Government of Jersey and the Government of the United Kingdom of Great Britain and Northern Ireland to allow Jersey to continue to participate fully in the development and implementation of the e-Borders programme.

 

Background

 

On 14 February 2008 the Ministry of Justice wrote to the Island authorities enquiring as to whether Jersey wished to participate in the United Kingdom’s e-Borders programme.

 

The main purpose of e-Borders is to collect and analyse passenger and crew data provided by air and sea carriers, in respect of all journeys to and from the UK in advance of their travel. This data is checked against watch-lists, analysed, risk assessed and shared between UK law enforcement agencies. This improves border security and assists in the fight against organised crime and illegal immigration.

 

On 3 March 2008 the Deputy Bailiff confirmed Jersey’s intention to participate fully in the development and implementation of the e-Borders programme. To achieve this, Jersey’s legislation needs to be compatible with the UK system for the collection and sharing of passenger data.

 

On 17 September 2010 the States Assembly agreed that a request be made to Her Majesty in Council for the making of an Order in Council that would extend to Jersey certain specified provisions of UK legislation. On 10 July 2012 The Immigration (Jersey) Order 2012 was made by Her Majesty in Council.

 

This Order extended to Jersey, with appropriate modifications and adaptations, the following provisions of the UK Immigration, Asylum and Nationality Act, 2006:

 

• Section 31, (Provision of information to immigration officers),

 

• Section 32, (Passenger and crew information: police powers),

 

• Section 34, (Offence),

 

• Section 39, (Disclosure to law enforcement agencies),

 

And the following provision of the UK Immigration and Asylum Act, 1999:

 

• Section 18, (Passenger information).

 

On 03 August 2012 the Order was registered in the Royal Court of Jersey and came into force on 10 August 2012.

 

Whilst this Order and existing Customs legislation allow the collection of e-Borders data by the Jersey Customs and Immigration Service, they do not allow sharing of the data between the Service and the UK authorities.

 

To allow the sharing of such data Article 36 of the UK Immigration, Asylum and Nationality Act, 2006 will also need to be extended to the Island. Unfortunately as currently drafted, this section of the Act does not allow the Secretary of State, a Chief Officer of Police or Her Majesty’s Revenue and Customs to share any data with the Customs and Immigration Service in Jersey. As such it would not be appropriate to extend this section of the Act to Jersey in its present format.

 

It has been agreed by the respective Law Officers and Data Protection Commissioners in both Jersey and the UK that this section of the UK Act needs to be re-drafted so that the requirement to share data is enshrined in legislation effective in both jurisdictions; however this will be a very lengthy process.

 

In the absence of this legislation and due to the timescales involved, the UK and the Jersey authorities decided to effect the provisions of data, so far as lawful, in accordance with the provisions of a Memorandum of Understanding (MoU) and an associated Code of Practice (CoP).

 

On 12 April 2013, with advice from the Law Officers Department and the Data Protection Commissioner, the wording of a draft MoU was agreed, (see Appendix 1 attached). Whilst the CoP is still to be drafted the Law Officers Department have advised that the MoU may now be signed as data exchanges can only commence once both the MoU and CoP are agreed.

 

The Law Officers Department, the Jersey Customs and Immigration Service and the UK Authorities consider that the attached MoU is appropriate and will allow Jersey to continue to participate fully in the development and implementation of the e-Borders programme.

 

Guernsey Authorities are in the process of agreeing a similar MoU and CoP to allow the sharing of data between Guernsey and the UK.

 

Resource implications

 

There are no financial or manpower Implications.

 

Recommendation

 

It is recommended to the Minister that the Memorandum of Understanding between the Government of Jersey and the Government of the United Kingdom of Great Britain and Northern Ireland concerning e-Borders may now be signed.

 

As the signatory for and on behalf of the United Kingdom will be the Director General,

Operational Systems Management at the Home Office, the Minister is further recommended that signatory for and on behalf of the Government of Jersey should be the Head of Service of the States of Jersey Customs and Immigration Service.

 

 

 

David A J Nurse

Director, Law Enforcement

15 April 2013

 

 

 

 

 

Appendix 1.

 

 

 

MEMORANDUM OF UNDERSTANDING

 

BETWEEN

 

THE GOVERNMENT OF JERSEY

 

AND

 

THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

 

CONCERNING e-BORDERS

 

 

 

 

 

 

The Government of Jersey (“Jersey”) and the Government of the United Kingdom of Great Britain and Northern Ireland (“the United Kingdom”), hereinafter collectively referred to as “the Participants” and in the singular as “a Participant”,

 

Recognising the right of all British Citizens to enter and stay in the United Kingdom and Jersey;

 

Responding to the need to strengthen the external Common Travel Area border to prevent illegal immigration and other criminal activity;

 

Valuing the unique constitutional relationship between Jersey and the United Kingdom and the special relationship between their two jurisdictions;

 

Determined to maintain the principles of the Common Travel Area;

 

Acknowledging that the participants are signatories to a separate International Identity Framework.

 

 

Have reached the following understanding:

 

 

PURPOSE OF THE MEMORANDUM OF UNDERSTANDING

 

  1. The purpose of this Memorandum of Understanding is to set out our mutual understanding of how e-Borders will be implemented by the Participants in relation to the following international journeys: to Jersey from anywhere other than the United Kingdom, the Republic of Ireland or other Crown dependencies and from Jersey to anywhere other than the United Kingdom, the Republic of Ireland or other Crown dependencies (‘an international journey).’

 

  1. Each Participant is responsible for ensuring compliance with its own data protection legislation, and the provision of data will be carried out in accordance with the data protection and other relevant laws of the Participants. To this end both Participants will draft and approve a Code of Practice under which the provision of data will be effected. This will cover areas such as what data is shared, between whom, for what purpose, how the data will be kept secure, whether it can be passed to a third party and how long it will be retained. Data exchanges should not commence until the Code is agreed.

 

POLICY INTENTION

 

  1. e-Borders is the electronic collection and checking of data from travel document information, service information and other passenger information relating to persons travelling between the United Kingdom and countries outside the Common Travel Area  against UK police, security and immigration watchlists. It is a key element of the UK’s strategy to deliver robust border controls, helping to reduce the threat of terrorist attacks, disrupt cross border crime and prevent abuses for immigration and customs purposes.

 

  1. The Participants accept the need to include Jersey within the e-Borders system to enable the collection and analysis of data on persons arriving in or departing from Jersey on an international journey, in order to enhance the capabilities of the Participants to deliver a secure external Common Travel Area border by identifying those who present a threat to border security; determining a proportionate operational response, detecting crime and undertaking rules based targeting and trend analysis.

 

EXCHANGE OF INFORMATION

 

  1. The Participants accept that Jersey will facilitate the transmission of the data in respect of passengers arriving in or departing from Jersey on an international journey and ensure that such information is provided directly to the UK National Border Targeting Centre (NBTC) in accordance with timescales to be agreed. The data to be collected will mirror the collection of data on journeys to/from the UK from outside of the Common Travel Area.

 

  1. The NTBC will screen the data against watchlists and where appropriate notify Jersey of any passenger of interest arriving in or departing from Jersey on an international journey by issuing an alert.

 

  1. Jersey will take appropriate action upon receipt of this information and notify the NBTC of the outcome in accordance with an agreed feedback process.

 

  1. In addition to the process outlined above, the NBTC will ensure that where data relating to international journeys is provided directly from the relevant carrier to the UK, manifest data will be shared on an ad hoc basis with Jersey in accordance with timescales to be agreed when requested for its own purposes.

 

  1. Where Jersey becomes aware, following receipt of an alert or manifest data, that it holds additional relevant information relating to a passenger identified as of interest, it will notify the NBTC.

 

  1. No Participant is expected to commence the exchange of information contemplated by this statement until it is satisfied that all relevant legal obligations (domestic and international) and domestic policy requirements are met, and any necessary domestic evaluation processes (such as Privacy or Information Commissioner requirements) have been completed.

 

 LEGISLATIVE REQUIREMENT

 

  1. Both Participants decide that there should be a specific statutory gateway to share passenger data extended into each Participant’s primary legislation when it is appropriate to do so.

 

  1. Until the requirement of paragraph 11 is fulfilled, the Participants have decided to effect the provision of data, on the basis of their current legal powers. The United Kingdom will rely on its current common law powers. Jersey will also rely on its current common law powers. These will be exercised in accordance with the provisions of this Memorandum of Understanding and the data protection and other relevant laws of the Participants

 

  1. Each Participant will ensure that the requirement of paragraph 11 is fulfilled as soon as practicable, by ensuring that the relevant current legislation is amended or that new legislation is put in place.

 

Designated authority

 

  1. The designated authority responsible for the implementation of this Memorandum of Understanding on behalf of Jersey will be the Head of Service, Customs and Immigration Service and on behalf of the United Kingdom will be the Home Office.

 

REVISION, MODIFICATION AND AMENDMENT

 

  1. Either Participant may request in writing, a revision, modification or amendment of all or any part of this Memorandum of Understanding.
  2. Any revision, modification or amendment will be mutually arranged in writing and will be part of this Memorandum of Understanding.
  3. Such revision, modification or amendment will take effect on the date mutually determined by the Participants.
  4. Any revision, modification or amendment shall not prejudice the benefits and commitments arising from or based on this Memorandum of Understanding before or up to the date of such revision, modification or amendment.

SETTLEMENT OF DISPUTES

 

  1. Any differences or disputes between the Participants concerning the interpretation and / or implementation and / or application of any of the provisions of this Memorandum of Understanding will be settled amicably through mutual consultations and / or negotiations between the Participants, without reference to any third party or international tribunal.

 

Legal effect

 

  1. This Memorandum of Understanding serves as a record of the Participants’ intentions and does not create (and is not intended to create) any benefits or commitments under domestic or international law. The Memorandum of Understanding is a statement of shared intention to work together in a spirit of cooperation to secure the borders and to strengthen the Common Travel Area.

ENTRY INTO EFFECT, DURATION AND TERMINATION

 

  1. This Memorandum of Understanding will come into effect on the date of signing and will remain until both Participants agree otherwise.

 

  1. In the event of any commitments under this Memorandum of Understanding not being fulfilled as planned for whatever reason the Participants will as soon as practicable enter into appropriate discussions.

 

  1. If one Participant does not fulfil its commitments under this Memorandum of Understanding, the other Participant is permitted to terminate this Memorandum of Understanding, following 90 days' written notice being given to the Participant in breach.

 

  1. Notwithstanding anything in this paragraph, either Participant may terminate this Memorandum of Understanding by notifying the other Participant of its intention to terminate this Memorandum of Understanding by a notice in writing, at least twelve (12) months prior to termination.
  2. In witness thereof, the undersigned, being duly authorised by their respective jurisdictions have signed the present Memorandum of Understanding.

 

Signed in Jersey on XXX of 2013. 

 

 

 

 

......................................................

 

 

 

 

......................................................

FOR THE GOVERNMENT OF JERSEY.

 

 

 

Michael Robinson

Head of Service

States of Jersey Customs and Immigration Service

Home Affairs Department

 

FOR THE GOVERNMENT of the United Kingdom of Great Britain and Northern Ireland.

 

Rob Whiteman

Director General

Operational Systems Management

Home Office

 

 

 

 

 

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