INFORMED CONSENT IN BIOMETRIC MIGRATION MANAGEMENT
DOI:
https://doi.org/10.46763/Keywords:
migration management, consent, CJEU, biometric data.Abstract
Biometric data collection and automated recognition based on
biological and behavioural characteristics has been widely introduced
firstly for citizens and later for migrants.
While the positive effects of biometrics use in migration management
are plenty and offer quick and reliable identification of a person,
efficient matching and immediate alert on the sensitive data, we need to
be aware of reliability, data minimization, technical difficulties, ethical
issues, reversibility and consent. In the European Union, milestones
were the introduction of the EU GDPR Regulation, Entry/Exit System
(EES) and reformed EURODAC system for collection of biometric
data.
The paper looks into the legal aspects of informed consent for the use
of biometric data in digital migration management in the European
Union. Focus is on the “strict proportionality assessment" established
by the Court of Justice of the European Union (CJEU) which ruled that
biometric processing is a limitation on privacy that must pass the test.
Further, we will analyse CJEU individual assessment benchmark,
systematic data collection ban, right to erase standard and indefinite
data storage limits established by the Court.
The main research question of the paper is whether we can have
meaningful consent in migration management, taking into the
consideration situations in which migrants are forced to migrate and
cannot really provide informed and free consent having in mind their
situation.
Downloads
References
Alexander, L. (1996) “The Moral Magic of Consent (II),” Legal Theory 2: 165–274.
Jain, S. (2026), The EU Entry/Exit System and the Interoperability Trap: How
Structural Function Creep Hollows Out Proportionality,
https://www.europeanlawblog.eu/pub/iwfwun2b/release/1
Kleinig, J. (2010). The nature of consent. In The ethics of consent: Theory and
practice (Miller & Wertheim, ed.), New York: Oxford University Press.
McLean, S.A.M. (2010) Autonomy, Consent and the Law. Oxon: Routledge.
Miller Franklin G. Wertheimer Alan (2010) The Ethics of Consent: Theory and
Practice Preface to a Theory of Consent Transactions: Beyond Valid
Consent” Schermer, B.W., Custers, B. & van der Hof, S. The crisis of
consent: how stronger legal protection may lead to weaker consent in data
protection. Ethics Inf Technol 16, 171–182 (2014).
https://doi.org/10.1007/s10676-014-9343-8
Nir, E. (2019) Informed Consent, The Stanford Encyclopedia of Philosophy, Edward
N. Zalta (ed.), URL =
<https://plato.stanford.edu/archives/spr2019/entries/informed-consent/>
O'Neill, O. (2003) Some Limits of Informed Consent, Journal of Medical Ethics
Raz, J. (1986) The Morality of Freedom. Oxford, New York: Clarendon Press.
Simmons, A. John. (1998) Consent Routledge Encyclopedia of Philosophy, Taylor
and Francis, https://www.rep.routledge.com/articles/thematic/consent/v-1
Legal instruments
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April
2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation)
The EU Charter on Fundamental Rights
The Entry/Exit System/EES Regulation (EU) 2017/2226
Schengen Borders Code (Regulation (EU) 2016/399)
The EURODAC Regulation (EU) 2024/1358
Case-Law of the CJEU
Case C-291/12 Schwarz v. Stadt Bochum
Case C‑543/09 Deutsche Telekom
Case C-252/21 Meta Platforms v. Bundeskartellamt
Case C-413/23 EDPS v. Single Resolution Board
Case C‑817/19 Ligue des droits humains
Case C-746/18 Prokuratuur
Case C-371/24 Comdribus
Case C-57/23, JH v Policejní prezidium
