Ivener & Fullmer LLP

SECURITY MEASURES: AN OVERVIEW


SECURITY MEASURES: AN OVERVIEW

This article provides an overview of recent developments in security measures in several countries implemented in response to terror attacks and related concerns.

Belgium

The 2015 terror threat is having direct and indirect effects on Belgian immigration law. The following summarizes highlights, with a main focus on foreign nationals:

1. A bill, dated July 20, 2015, and effective August 15, 2015, introduced criminal sanctions (imprisonment of 5 to 10 years) for those who either leave or enter Belgium to commit, organize, fund, and/or assist in preparing acts of terrorism in Belgium or abroad. A conviction for such crimes that leads to effective imprisonment of at least 5 years can also, for some Belgian citizens, lead to the revocation of Belgian citizenship by a court decision.

2. To try to control “foreign terrorist fighters” and “returnees” (people who return from conflict areas), the Belgian federal government has proposed a draft bill that would allow the registration and processing of passenger data.

The draft bill provides that passenger carriers and travel companies of all transport sectors (air and sea, high-speed trains, international bus transport) must communicate passenger data to a passenger database. These data can be analyzed for security purposes by the Passenger Information Unit (PIU), which will be part of the federal Ministry of Interior Affairs. The draft bill provides privacy guarantees, such as the organization of the PIU, and a limited list of purposes for which passenger data can be processed and analyzed.

The draft bill must go through the legislative process before it becomes effective.

3. The high volume of asylum seekers is affecting the workload of the federal immigration department, due not only to the increasing number of applications in general but specifically to the increasing number of family reunification applications.

To allow the immigration department to process the family reunification applications, the Belgian federal government has proposed a draft bill to extend the current processing time from a maximum of 12 months (6 months + two possible 3-month extensions for complex files) to a maximum of 15 months (9 months + two possible 3-month extensions for complex files).

This extension will probably not have a huge effect on family reunification applications by family members of work permit holders because these applications are in principle prioritized. However, a delay in processing these applications cannot be excluded.

The draft bill must go through the legislative process before it becomes effective.

Canada

Effective March 15, 2016, certain international travelers will need an entry document, the Electronic Travel Authorization (eTA), to travel by air to Canada. This applies to visa-exempt foreign nationals—non-Canadians who are not required to have a visa to enter Canada. The requirement only applies to those traveling by air, not those traveling by land or sea. It does not apply to citizens of the United States (U.S. permanent residents will need an eTA). Thus, if you require a visa to enter Canada or you are a U.S. citizen, you will not require an eTA.

What is the purpose of the eTA? The implementation of the eTA program is a result of the Canada-United States Perimeter Security and Economic Competitiveness Action Plan. In essence, the eTA is a security measure that allows Canadian authorities to screen foreign travelers before they arrive to ensure that they are not inadmissible to Canada. In the absence of such a pre-screening measure, visa-exempt foreign nationals are not systematically screened for admissibility until they arrive at a Canadian port of entry. The eTA will allow Canadian authorities to lessen the expense and delay to travelers, airlines, and the Canadian government caused by significant numbers of travelers being deemed inadmissible when arriving at Canadian ports of entry. Reasons for inadmissibility include membership in terrorist groups, participation in war crimes or crimes against humanity, membership in organized crime groups, criminality, and public health risk. The United States has already implemented a similar travel authorization program. Travelers must show the eTA before boarding a flight to Canada or they will not be permitted to fly to Canada. 

The requirement to obtain an eTA does not dispense with any other authorizations or requirements applicable to a traveler, such as work permits or study permits. In addition, the traveler remains subject to examination by the Canada Border Services Agency upon arrival in Canada.

Who will need an eTA? Citizens of the following countries will need an eTA to travel to Canada by air as of March 15, 2016: Andorra; Antigua and Barbuda; Australia; Austria; Bahamas; Barbados; Belgium; British citizens*; Brunei; Chile; Croatia; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hong Kong*; Hungary; Iceland; Ireland; Israel*; Italy; Japan; Republic of Korea; Latvia; Liechtenstein; Lithuania; Luxembourg; Malta; Monaco; Netherlands; New Zealand; Norway; Papua New Guinea; Poland; Portugal; Samoa; San Marino; Singapore; Slovakia; Slovenia; Solomon Islands; Spain; Sweden; Switzerland; Taiwan*; and Vatican City (the Holy See)*. It is best to always consult the Canadian government’s website for updates at http://www.cic.gc.ca/english/visit/visas.asp#wb-sec

* Certain citizens of the asterisked countries above require visas to travel to Canada and hence do not need an eTA.

Certain individuals are exempt from the eTA requirement. This group includes those who hold a valid Canadian temporary resident visa, members of the British royal family, and certain foreign nationals seeking only to transit through Canada as passengers on flights stopping in Canada for the purpose of refueling, among others.

How do you get an eTA? Applicants can access the eTA application online at http://www.canada.ca/eTA. Applicants must provide passport details, basic personal information, responses to background questions, and contact information. The online application process also allows an applicant to indicate whether there are any additional details pertinent to the application and any urgent need to travel to Canada, if applicable. 

No documents are required for the eTA application. Canadian authorities may request additional documents later, to be submitted manually. Once an application is submitted, the applicant will receive an automated email confirming receipt and containing an application number and a link by which the applicant can check the status of the application. The cost is CAD$7.00. Applicants who are unable to submit the application electronically because of a physical or mental disability may do so by other means, including a paper form.

The eTA itself is electronic. There is no paper evidence or receipt provided to the applicant upon approval. Air carriers have access to the Canada Border Security Agency’s database to confirm the presence of an eTA before the person boards the aircraft. Before a boarding pass is issued, the air carrier must receive an “ok to board” message from the CBSA database.

How long will it take to process an eTA? Most eTA applications are approved within minutes of applying. However, some requests may need more time to process. If that is the case for an application, Citizenship and Immigration Canada will email the applicant within 72 hours with next steps.

How long is the eTA valid? The eTA is linked to the applicant’s passport. It is valid for five years or until the passport expires, whichever occurs first. The same passport used to obtain the eTA must be used for travel with the eTA.

France

Within hours after the horrific terrorist attacks in France on November 13, 2015, President François Hollande declared the country to be in a “state of emergency,” which allowed the executive to move swiftly to arrest the suspected perpetrators and prevent new terrorist attacks. Measures taken included renewal of the state of emergency, a reexamination of the Schengen border rules, house arrests for mere suspicion of future wrongdoing, and dispossession of French nationality.

The State of Emergency

As set in the Law of April 3, 1955, a state of emergency can be declared in the event of imminent danger to the public following a disaster. Most member states of the European Union have similar laws, which provide exceptional powers to their executives during exceptional events.

Once declared by the Council of Ministers, the state of emergency in France gives the executive vast police powers, including carrying out arrests and searches, surveilling private information, seizing property, restricting mobility, and closing national borders. The executive can carry out these and other acts without judicial warrants, even when such warrants are otherwise mandatory, and without having to comply with the usual safeguards meant to protect the population from undemocratic conduct of its government. Fundamental civil liberties can be restricted or suspended for the duration of the state of emergency.

The initial duration of the state of emergency in 2015 was limited to 12 days. President Hollande had it extended to the end of February 2016 by an extraordinary joint vote of the Senate and the Parliament. President Hollande has stated that he intends to seek its further extension for yet another three-month period, which if approved will last through the end of May.

Although currently there is no strong criticism of the state of emergency and its renewals, the voices of the defenders of civil liberties are becoming increasingly audible. 

Six weeks after the events, warrantless searches are still frequent and are carried out in a sometimes brutal manner (doors are often kicked in without warning, often in the middle of the night). The brutality (but not the frequency) is receiving negative press coverage.

The government will also put forward for vote a French version of the USA Patriot Act, which will allow it to continue surveillance of private information, maintain national border controls, place suspects under house arrest, and dispossess dual nationals of their French nationality if they are convicted of  terrorism or related activity.

Schengen Area and National Borders

France had incidentally restored its national borders just before the November 13 attacks, for the security of the United Nations Climate Change Conference, or COP21, in Paris. The borders remain restored after COP21 under the state of emergency.

The Schengen agreement allows France and its other adherents to restore national borders temporarily to safeguard national interests. The French national borders may remain restored for up to two years within the framework of the Schengen agreement.

However, the restoration of national borders has not resulted in rebuilding of barriers and customs offices on each border crossing, which would involve an allocation of considerable resources. In his public speech following the November 13 attacks, President Hollande stated that 1,000 additional customs officers are to be hired and trained to guard the restored borders. The government’s message seems to be that it is preparing to guard the newly restored borders for some time to come.

Preceding the November 13 attacks in Paris, the Schengen countries were already facing border issues due to the massive and continual flow of refugees penetrating the Schengen exterior borders and then crossing the virtual national borders to try to reach one of several generous hosts, such as Germany and the Scandinavian countries. There was little consensus before November 13 on how to deal with the refugee crisis at the national and EU levels.

The November 13 attacks made national and EU-wide security the determining principle in the issue of how permeable the outer and inner borders must be. The answer now seems to be: we do not want any permeability at all, at the level of the outer Schengen border, if it entails the risk of letting in potential terrorists among the mass of refugees. This answer is loud, consensual, and on the front pages of newspapers throughout the Schengen area. The need to restore internal borders will depend on the efficiency of the outer Schengen borders in putting a stop to the unchecked flow of refugees. Until then the internal borders are being restored on an ad hoc basis.

In the months to come, it is likely that the EU border control agency, Frontex, may receive substantial resources to assist the national authorities where they need help: escorting refugee boats back to territorial waters of embarkation and managing refugees who have already entered the Schengen area. But will Frontex be able to provide a feeling of security and avoid a massive restoration of national borders within the Schengen area?

If the walls on the borders cannot be raised high enough, an alternative may be to push them further out beyond the border. This is precisely the deal the EU wants to make with Turkey. But when thought is put to this alternative, it looks more like the EU will be just buying time, and very little of it.

House Arrests of Suspects

The shock following the Paris attacks was such that no one opposed the declaration of the state of emergency. However, the government is beginning to face mild criticism for placing under house arrest persons who are suspected of having embraced the cause of militant jihad, but with no tangible proof of having committed any illegal acts. Marc Trévidic, a member of the French judiciary and an authority on antiterrorism, considers that only a very small percentage of those on the government’s long suspicion list (fichier S) are potential terrorists, and it is very difficult to distinguish them from the others. According to Trévidic, if harmless persons are treated as would-be terrorists, then they will be encouraged to become so.

House arrests are being logged and monitored by journalists. Some are being challenged in courts, and the first cancellation of a house arrest was ordered last week.

Dispossession of French Nationality

The government has proposed to dispossess dual nationals of their French nationality if they are convicted of terrorism or acts related to terrorism. The government’s proposal would have French nationals dispossessed of their French nationality even if they were born French. The proposal does require the dispossessed national to have another nationality to fall back on, to avoid creating a stateless person, which would make the proposal questionable under international conventions and treaties. For this proposal to become law, France may need to modify its constitution.

Under the proposal, a French national who has conserved or acquired another nationality may be punished first in France and then a second time by being banished to another country with which he or she may not have any ties, and with all the ensuing damage to his or her right to family life in France. If the proposal passes the French constitutional hurdle, it will still have to be acceptable under the European Convention on Human Rights.

So far President Hollande’s proposal has divided his political party (Partie Socialiste) and resulted in the resignation of his Minister of Justice, Christiane Taubira, who some say was the last socialist to leave the socialist government.

Italy

In April 2015, following the terrorist attacks in France and Denmark in January and February 2015, Italy adopted a decree aiming to fight terrorism (Decree no. 7/2015 converted into law on April 15, 2015) and, in particular, the phenomenon of so-called “foreign fighters.” 

The main points in the decree are:

  • Foreign fighters—those who travel abroad to join the Islamic State (ISIS)—as well as anyone found guilty of organizing, funding, or supporting this cause will face 5 to 8 years in prison if convicted.
  • Anyone training to commit acts of terrorism in Italy will face 5 to 10 years in prison (for example, so-called “lone wolves”).
  • Use of the Internet to plan terrorist acts (such as recruiting foreign fighters and supporting foreign fighting in the name of jihad) is considered an aggravating circumstance.
  • Internet providers must shut down jihadist websites, and IT and telephone providers must store all user traffic data until December 31, 2016.
  • Wiretapping of Internet communications of international terrorism suspects is now permitted.
  • Intelligence agents can infiltrate the prison system to investigate terrorist recruitment activities.
  • Funds are assigned for participation in international security operations in Europe.
  • Human traffickers caught in the act of bringing migrants to Italy will be immediately arrested.

Following the attacks in Paris in November 2015 and per the resolutions adopted during the European Council in Brussels on November 20, 2015, Italy committed to strengthening controls of external borders, increasing the fight against money laundering and terrorist financing, information sharing, finalizing a European Union (EU) Passenger Name Record (PNR) agreement before the end of 2015, and financially supporting the implementation of the Council’s conclusions (using the Internal Security Fund).

In light of the Paris attacks, the Italian government also invested additional funds to reinforce the country’s security, but no additional specific laws were adopted. The government actions were focused mainly on security cooperation and intelligence-sharing at an international level, with the aid of technology and databases.

Special security strategies were implemented in major Italian cities such as Rome and Milan with increased surveillance and deployment of special armed forces. Control checks were also reinforced over the main immigration flow via the Mediterranean sea into Italy, and an increasing number of individuals considered to be a risk to national security were deported.

The Italian prison system is also under scrutiny in an effort to minimize the risk of proselytizing and radicalization within prisons. 

A final area of counterterrorist measures in Italy is related to airspace control, including a system to protect from possible drone attacks.

On December 16, 2015, Italy ratified the EU PNR agreement for the registration of passenger data, which regulates the transfer of PNR data from the airlines to national authorities, as well as the processing of this data. Under the new directive, airlines must provide PNR data for flights entering or departing from the EU. 

With respect to the ramifications for companies and employees, expect applications for both work and residence permits to be highly scrutinized internally by authorities resulting in delays in overall processing times.

United States

On January 21, 2016, the United States began implementing changes to the Visa Waiver Program (VWP) under the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.” Under this new law, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the VWP:

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country)
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria

The Department of Homeland Security (DHS) said these individuals will still be able to apply for visas using the regular immigration process at U.S. embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates will process applications on an expedited basis.

Under the new law, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their ESTAs revoked.

The Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. As a general matter, categories of travelers who may be eligible for a waiver include:

  • Individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of a humanitarian nongovernmental organization on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan, or Syria as journalists for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who traveled to Iraq for legitimate business-related purposes.

In addition, DHS said it will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran, and Sudan.

Any travelers who receive notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with valid nonimmigrant visas issued by a U.S. embassy or consulate. Such travelers must appear for interviews and obtain visas in their passports at a U.S. embassy or consulate before traveling to the United States.

The new law does not ban travel to the United States, or admission into the United States, and the great majority of VWP travelers will not be affected by the legislation.

An updated ESTA application with additional questions is expected to be released in late February 2016 to address exceptions for diplomatic and military-related travel provided for in the new law.

DHS’s announcement is at https://www.dhs.gov/news/2016/01/21/united-states-begins-implementation-changes-visa-waiver-program.

Share this Article

About the Author

Ivener & Fullmer LLP, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

WP Like Button Plugin by Free WordPress Templates