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166 The LSE Identity Project <strong>Report</strong>: June 2005“…as is in accordance with the law and is necessary in a democraticsociety in the interests of national security, public safety or theeconomic wellbeing of the country, the prevention of disorder orcrime, the protection of health or morals or for the protection of therights and freedoms of others.” 404Requiring UK citizens to provide biometric data and permit processing of that data foruncertain purposes prior to travel may violate the principles of Article 8 in threeways. 405 First, the Government will make provision of this data compulsory beforeleaving the UK, which could fail to respect UK citizens’ right to privacy in respect ofthat data. The storage and use of information concerning a person’s private life in thefiles of the UKPS (and possibly other bodies) may amount to an interference with theright to respect for private life. 406Second, not everyone will be comfortable permitting access to such sensitive data as irisand finger print scans, particularly without adequate reassurances that the data will notbe provided to third parties and used for uncertain purposes. Such measures thereforemay be viewed as “hindrances” to the effective exercise of the Article 8 right as theywill hinder the travel right of UK citizens. The European Court of Human Rights hasheld hindrances to be an interference even if they do not actually prevent the exercise ofthe right. 407 The Court has not offered an exhaustive definition of “private life.”However, it is closely linked to the notion of personal autonomy and development andis more than a right to privacy. Thus, in line with the Court’s broad view of whatamounts to an interference with private life, restrictions on ease of travel may hinderautonomy and development of citizens and so violate Article 8. 408Third, the measures also may infringe Article 8 if they interfere with the family life ofUK citizens. Restrictions on UK citizens who hold only UK passports may interferewith the family life of those citizens with respect to travel with other family memberswho do not need to provide biometric data (because they hold a passport from anotherState).Arguably, the measures the Government seeks to impose would not be “necessary” andso unjustified under Article 8(2). Current identification measures associated with MRPsare viewed by many as adequate. Although the additional measures may assist in bordersecurity checks, the Government must weigh up the intrusion into citizens’ rights whenconsidering what is truly necessary. Likewise, it is hard to argue that the measureswould be in the interests of national security, public safety or indeed prevent crime. If404 Article 8(2).405 See also UK Human Rights Act 1998, section 6(1): “It is unlawful for a public authority to act in a way which isincompatible with a Convention right.”406 Leander v Sweden (1987) 9 EHRR 433.407 See Golder v UK (1975) 1 EHRR 524, para 26.408 See Botta v Italy (1998) 26 EHRR 241 para 32, in which the Court took a broad view of private life and referred toa right of physical and psychological integrity - the right to development of personality of each individual in hisrelations with other human beings. See also Brüggeman and Scheuten v Germany (1981) 3 EHRR 244, in which theCourt held that private life secured to the individual sphere within which a citizen can freely pursue the developmentand fulfilment of his/ her personality. More specifically on the issue of right to hold a passport see Smirnova v Russia(2003) ECHR 397 in which the Court held that depriving a Russian citizen of a passport amounted to continuinginterference with the citizen’s private life. Note, however, that in this case the passport had been confiscatedfollowing the citizen’s arrest and that in Russia a passport was needed as proof of ID for everyday transactions.
The LSE Identity Project <strong>Report</strong>: June 2005 167only UK citizens are required to provide the additional data, it is hard to envisage howthat will deter or prevent threats to the UK from foreign nationals. Furthermore,restricting the rights and freedoms of UK citizens runs contrary to the very wording ofArticle 8, which makes clear that measures must protect these same rights.The measures may also infringe Article 14, which states that the enjoyment of rightsunder the ECHR shall be secured without discrimination on any ground, includingnational origin. The disproportionate nature of the data required to obtain a future UKpassport arguably discriminates against UK citizens purely on the grounds of nationalorigin. The applicability of Article 14 is not limited to cases in which there is anaccompanying violation of another provision of the ECHR. 409 Thus, if theGovernment’s measures are exempted under Article 8(2), it may still be possible thatthe measures infringe Article 14, as there remains a link to the enjoyment of rightsunder Article 8. Moreover, the Court has made clear that “very weighty reasons” will beneeded to justify differences of treatment based solely on nationality. 410409 Belgian Linguistic case (1968) 1 EHRR 252 at 283 para 9: “…a measure which in itself is in conformity with therequirements of the Article enshrining the right or freedom in question may however infringe this Article when readin conjunction with Article 14 for the reason that it is of a discriminatory nature.”410 Gaygusuz v Austria 23 EHRR 364.
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