legal responsibilities of carriers are found in the individual immigration
laws and regulations of the State that grants them landing rights. International
carriers must therefore be familiar with, and comply with, a wide range
of legislation and regulations from various authorities.
States are expected to follow standards and recommended practices set out in Annex 9 to the Convention on International Civil Aviation, also referred to as the Chicago Convention, in order to achieve some degree of international consistency when developing carrier obligations in their legislation.
The International Maritime Organization (IMO) is responsible for more than 40 international conventions. The most relevant in the context of carrier responsibilities are the Convention on Facilitation of International Maritime Traffic (FAL Convention), the International Convention for the Safety of Life at Sea (SOLAS), the International Convention on Maritime Search and Rescue (SAR), and the United Nations Convention on the Law of the Sea (UNCLOS), which acts as more of a framework convention.
A balance between an enforcement approach and a cooperative approach is the most effective approach for dealing with carriers. The key is striking the right balance point. Some carriers will respond more positively to incentives, while others respond to the threat of sanctions and penalties for non-compliance. When a carrier is uncooperative, it is advisable to explore the issue with senior industry representatives before taking enforcement action.
1. A major impediment to a successful government/carrier programme can be the lack of acceptance by individual carriers of the role that the government has given them. While the industry may generally acknowledge that it has a role to play in controlling irregular migration, the extent of that role, and the manner in which it should be exercised, can become issues of contention between individual carriers and control authorities.
2. This potential for conflict can be minimized if a clear understanding on roles and responsibilities is established by senior representatives at the outset and, preferably, formalized in writing.
What are airline responsibilities?
The most important responsibilities for the airline sector as outlined in the Convention on International Civil Aviation are:
* to provide facilities for the holding and examination of persons
* to hold travel documents in certain circumstances and to present those documents to the control authorities at ports of entry
* to arrange for the medical examination of a passenger at the port of entry when the inspecting officer determines that the passenger may present a threat to public health
* to provide travel information, including a copy of the person’s ticket, itinerary (including the place of embarkation) and dates of travel, document number and type of passport, travel document or identity document carried by the person, the country of issue of the document, and the name of the person to whom it was issued
* upon departure from the last point of embarkation and before arrival at the port of entry, to provide specific information on each passenger or all reservation information on that passenger
* upon request, to provide access to its reservation system
* where the airline has been advised by the control authority that a person is inadmissible, not to carry that person
* to examine passengers and ensure that they have the correct documentation (passport/travel document and visa where required) and to deny boarding to improperly documented passengers
* to copy travel documents at the point of embarkation in certain circumstances
* to present passengers for examination and hold them until examination is completed
* to ensure return conveyance of persons who are refused admission, within a prescribed time frame, and to advise the authorities of the travel arrangements
* when returning a person under removal order, to provide any escorts that may be required
* to pay the costs of returning an inadmissible person that may include accommodation, transport, costs of escorts including travel and accommodation costs, fees to obtain travel documents and visas for the passenger and escorts, meals, wages paid to escorts, expenses incurred for interpreters, and medical and other personnel who may be involved in the removal.
MECHANISMS FOR CARRIER COMPLIANCE
Control authorities can provide support to carriers to assist them in fulfilling their legal obligations. For example, by:
* Designing online carrier guides that outline legal requirements and procedures
* Providing regular training on documentation requirements and detection of fraudulent documents, possibly including self-instruction manuals and CDs
* Creating a hotline, 24 hours a day, 7 days a week, that carriers can call for assistance
* Providing timely trends and alerts to appropriate personnel.
At a minimum, an annual meeting with senior industry representatives should be held to review the performance of the industry, discuss problematic issues, and provide indications of future plans that could impact on the industry. In addition to supportive measures, a number of mechanisms have been found to be effective in encouraging carrier compliance. They are fines, administration fees, security deposits, and memoranda of understanding.
1. Most countries have moved away from the litigation model in favour of a cooperative administrative model where administrative penalties are the consequence of non-compliance.
2. Measures may be invoked by the control authority to ensure compliance if provision is made for this in national migration management legislation. Some of these measures may include:
* suspension of the memorandum of understanding with the carrier
* request for a higher level of security deposit
* partial or total seizure of security deposits
* seizure of a vehicle/aircraft for a temporary period pending compliance by the carrier
* seizure and sale of a vehicle in order to recover monies owed
* cancellation of landing rights.
3. Fines, penalties, or fees should only be set at levels required to achieve compliance. Imposing undue financial hardship may have the effect of reducing cooperation and ultimately raise travel costs for the travelling public.
What you need to know about financial penalties?
* Under this mechanism, carriers may be liable for a penalty for any violation of their obligations under law.
* The term “improperly documented” applies to the following situations:
- lacking a passport or acceptable travel document
- lacking a visa if one is required
- using a counterfeit passport or visa
- using an altered passport or visa
- using valid documents not held by rightful owner
- having no documents
* Once a passenger is determined by a control authority to be improperly documented, two notifications are usually provided. The first notification advises the airline of the person’s inadmissibility and puts the airline on notice that it may be required to make arrangements to return the person at some point in the future. The second notification advises the airline of an improperly documented arrival. The latter action must be done quickly so that queries concerning the passenger can be conveyed to airline staff at the point of embarkation and an investigation conducted while information concerning the boarding of that passenger is still available.
* To avoid a penalty, the airline must demonstrate that it applied due diligence and was not negligent in examining the documents of the individual.
* Control authorities may decide not to assess a financial penalty in the following circumstances:
* The alteration or counterfeit is not reasonably apparent
* The alteration or counterfeit is of such a high quality that specialized equipment is required
* Where documents are valid but the passenger is not the rightful holder, the difference between the photograph and the passenger is not reasonably apparent
* The carrier acted on the advice of an agent of the control authority at the point of embarkation
* In the case of a passenger with no documents, the carrier produces a passenger manifest that does not contain the name of the passenger or the alias used. In this situation, there is no proof that the passenger arrived on that flight or airline. This recognizes the fact that, on the advice of smugglers, passengers will often “forget” or misrepresent the flight used.
* Carriers will normally have a specified period of time to provide a defence as to why a financial penalty should not be imposed.