Monitoring migrants or making migrants ‘misfit’?: Data protection and human rights perspectives on Dutch identity management practices regarding migrants

Record numbers of migrants and refugees fleeing violence and poverty in parts of Africa and the Middle East present the European Union with unprecedented challenges, including in determining their identity as well as status. In recent years problems of identifying immigrants have been addressed in order to fight identity fraud and illegal entry of migrants. As a result, a wide variety of digital systems have been introduced to orchestrate an effective, preventative modus of identification of migrants. Digital systems are in particular geared towards spotting those migrants who (are about to) commit identity fraud or who enter the territory of EU member states illegally. Although the key aim of the digital systems is framed to protect the administrative, geographic and legal borders of the member state and the safety of its population, empirically based studies demonstrate that these systems bring new risks for migrants themselves. This article intends to contribute to the discussion on the use of digital systems for managing the movement of migrants by analysing identification and risk assessment systems from the perspective of the new European data protection regime and the European Convention on Human Rights. For this purpose, two identification systems – the so-called INS console within the Dutch immigration and border sector, and the PROGIS console within the law enforcement sector – are analysed. A third is the Advanced Passenger Information system operated at Schiphol Airport by border control and immigration services. Against the background of the position of many migrants finding themselves at risk in their home country and of the two legislative frameworks mentioned above, this article addresses two issues. First, the analysis focuses on how migrants are perceived by digital monitoring practices: are they themselves at risk, non-risk or do they pose a risk? In the EU, migrants must prove that their case is worthy of asylum status because they are ‘at risk’ from political unrest or other life-threatening circumstances in their home country. Yet, empirical data gathered through semi-structured interviews show that simply abiding by the standards during an enrolment process of the INS console, rather than being ‘at risk’, a migrant can easily be categorised as ‘posing a risk’ (La Fors-Owczynik & Van der Ploeg, 2015). Second, this article aims to investigate what the capacity of the new data protection regime is in protecting migrants from being framed as ‘a risk’ or a ‘misfit’ stemming from the use of digital systems. Given this second aim, the following discussion also intends to explore the extent to which the European Convention on Human Rights can provide an additional legal remedy for migrants being digitally categorised in a manner that is detrimental to them