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Netherlands: Proposal on Making Biometric Data Mandatory for Residency Permit Applications

(Mar. 16, 2012) The Dutch Minister for Immigration, Integration and Asylum Policy, Gerd Leers, recently submitted a bill on the use of biometrics in the immigration process to the Parliament (Staten-Generaal). The bill would make it mandatory to use biometric technology “to control applications for family migration and residence permits for work or study” in the Netherlands. The technology is already being used to check asylum seekers' identity and centrally store their digitized fingerprints and passport photos, and according to the government, it “can help the Dutch authorities tackle identity fraud, document fraud, and illegal immigration.” (Mandatory Fingerprinting for Residence Permit Applications, Government of the Netherlands website (Mar. 5, 2012); Wetsvoorstel biometrie in de vreemdelingenketen [Bill on Biometrics in the Immigration Process], Government of the Netherlands website (Mar. 5, 2012).)

According to the bill, residence permit applicants will be required to submit their fingerprints and passport photos only once, whereupon the information will be digitized for storage in a central database as well as on a chip in the residence document. This will make it possible for a person's identity to be confirmed thereafter through a fingerprint scan and a photo comparison of various fixed facial features, e.g., the distance between the eyes. The bill will not affect the procedures already in place for asylum seekers. (Id.)

Those who take a civic integration test abroad for purposes of family formation or reunification in the Netherlands must already provide fingerprints and a passport photo as identification, but in future such data will also be centrally stored in a database. This measure is viewed as a means of helping to prevent residence permit fraud. (Id.)

All the government agencies that play a role in issuing and controlling residence permits will use the biometric information. These include the Immigration and Naturalisation Service, the Aliens Police, the Seaport Police, the Royal Military and Border Police, the Central Agency for the Reception of Asylum Seekers, the Custodial Institutions Agency, the Repatriation and Departure Service, and diplomatic missions abroad. (Id.)

In a letter to the House of Representatives (Tweede Kamer) of the Parliament on the subject of using passenger data in border management, Leers stated, on behalf of several other Cabinet ministers, that the number of international air travel passengers in the Netherlands is expected to grow, resulting in increased averaging waiting times. Given that it is in the economic interest of the country to assure a smooth, customer-oriented processing of passengers, but it also necessary to ensure the optimum level of border control, customs control, and national safety, he stated, the government wants appropriate measures to encourage efficient and more information-driven external border management. (Kamerbrief over het Gebruik van Passagiersgegevens in het Grensbeheer [Letter to the House on the Use of Passenger Data in Border Management], Government of the Netherlands website (Mar. 9, 2012) [accessed via machine translation].)

Leer emphasized in the letter that a”automatic processing of passenger data prior to border crossing enables faster, more accurate, and targeted checks to be carried out,” and passengers in the future might be able to take advantage of an automatic, self check-through system. (Id.) An annex to the letter sets forth the meaning of passenger data in international agreements and European regulations. (Id.)

Personal Data Protection in General in the Netherlands and in the European Union

The Personal Data Protection Act, which entered into force on September 1, 2001, governs the use of biometric information in the Netherlands. (Mandatory Fingerprinting for Residence Permit Applications, supra; Wet bescherming persoonsgegevens (Wbp; Dutch Data Protection Act), (last visited Mar. 14, 2012) [a description of the Act]; Data Protection Act, the Netherlands (as last amended Feb. 7, 2002), DATAPROTECTION.EU.)

It may be noted that on January 25, 2012, the European Commission made public a draft legislative package, including a draft General Data Protection Regulation, aimed at creating a unified data protection law for the European Union. The regulation would replace “the patchwork of different data protection laws currently in force in the different member states.” (New Draft European Data Protection Regime, M LAW GROUP (Feb. 2, 2012); see also Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation), COM(2012) 11 final (Jan. 25, 2012); EU's Data Protection Regulation: Divisions Exposed as Member States Show Disharmony, HAWKTALK blog (Mar. 11, 2012, posted at 11:29 a.m.).)

The current centerpiece of EU legislation on personal data protection is Directive 95/46/EC of October 24, 1995. (OFFICIAL JOURNAL OF THE EUROPEAN UNION (Nov. 23, 1995), L 281 at 31-50.)