Discussions have recently intensified at the European Union level on the potential use of AI-driven technology in the area of migration and security. Likewise, the new generation of large-scale EU IT systems will use algorithms to screen third-country nationals against risk profiles. If carefully conceived, implemented and monitored, AI could bring substantial opportunities to improve the efficiency of the EU area of ‘freedom, security and justice’, while safeguarding and eventually strengthening fundamental rights. Yet, there are also a wide range of fundamental rights risks which include questions about access to effective legal remedies in cases of AI supported decision-making. The right to an effective judicial remedy (Article 47 of the EU Charter of Fundamental Rights) equally applies to decisions taken with the support of AI. Decision-making driven by AI can challenge this right of primary importance in various ways (e.g., accessing remedies becomes more difficult against such decisions; rebutting the results of the algorithm is highly complicated; courts lack knowledge/expertise on how to provide effective remedy). After outlining the European legal framework applicable to the intersection of AI and access to justice, this chapter zooms in on three case studies to illuminate the specific challenges the right to an effective remedy faces in the context of AI used for migration and law enforcement: (1) the European Travel Information and Authorisation System screening rules; (2) real-time facial recognition technology used for law enforcement purposes; and (3) algorithmic decision-making under the EU Passenger Name Records Directive, notably in light of the CJEU ruling in Ligue des droits humains (C-817/19).

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Algorithmic Decision-Making in Migration and Security in the EU: Challenges in Ensuring Effective Legal Remedies

  • Tamás Molnár

摘要

Discussions have recently intensified at the European Union level on the potential use of AI-driven technology in the area of migration and security. Likewise, the new generation of large-scale EU IT systems will use algorithms to screen third-country nationals against risk profiles. If carefully conceived, implemented and monitored, AI could bring substantial opportunities to improve the efficiency of the EU area of ‘freedom, security and justice’, while safeguarding and eventually strengthening fundamental rights. Yet, there are also a wide range of fundamental rights risks which include questions about access to effective legal remedies in cases of AI supported decision-making. The right to an effective judicial remedy (Article 47 of the EU Charter of Fundamental Rights) equally applies to decisions taken with the support of AI. Decision-making driven by AI can challenge this right of primary importance in various ways (e.g., accessing remedies becomes more difficult against such decisions; rebutting the results of the algorithm is highly complicated; courts lack knowledge/expertise on how to provide effective remedy). After outlining the European legal framework applicable to the intersection of AI and access to justice, this chapter zooms in on three case studies to illuminate the specific challenges the right to an effective remedy faces in the context of AI used for migration and law enforcement: (1) the European Travel Information and Authorisation System screening rules; (2) real-time facial recognition technology used for law enforcement purposes; and (3) algorithmic decision-making under the EU Passenger Name Records Directive, notably in light of the CJEU ruling in Ligue des droits humains (C-817/19).