Authored By: Nitya Ramachandran
Government Law College, Coimbatore
ABSTRACT
In the last ten years, states and international organisations have made considerable progress in digitising their immigration systems, including e-visas, digitised health/ travel certificates, border control biometric entry/exit tracking systems and automated risk analysis tools. According to the proponents, their use will enable much faster immigration processing, lower the incidence of identity theft, and enhance border security. Opponents of the new technologies, however, argue that the expansion of digital immigration systems will create further entrenchment of surveillance practices, diminishing the importance of due process, and increasing the chances of the exclusion of vulnerable groups. This article discusses the potential legal barriers and opportunities associated with the proliferation of digital immigration systems and will suggest legal safeguards that can be put in place to maximise the benefits of these technological innovations, while still preserving the fundamental rights of individuals.
WHAT “DIGITAL IMMIGRATION SYSTEMS” COVER
The term covers a broad ecosystem of tools: e-visa platforms, centralized entry/exit databases, biometric registries (fingerprints, facial images), digital identity and payment systems used in humanitarian contexts, digital health/travel certificates, and automated decision-making (ADM) systems used to triage asylum claims or detention decisions. International organizations such as International Organisation for Migration (IOM) and United Nations High Commissioner for Refugees (UNHCR) have documented the proliferation of these systems and produced guidance for their design and governance.
KEY LEGAL RISKS
DATA PROTECTION AND PRIVACY
Digital immigration systems process highly sensitive personal data such as biometrics, health status and migration history. In jurisdictions covered by the European Union’s General Data Protection Regulation (GDPR), automated processing that produces legal effects or similarly significant impacts is restricted. Even outside the European Union, many states are adopting privacy rules that constrain profiling and require transparency, purpose-limitation, and storage-minimisation. Absent strong limits, immigration systems risk unlawful or disproportionate intrusions on privacy and data subject rights.
DUE PROCESS AND AUTOMATED DECISION-MAKING
Automated tools used to recommend detention, prioritize removal, or flag asylum claims can materially affect liberty and life opportunities. Legal systems require that such decisions be contestable, explainable, and subject to human oversight; otherwise they risk violating procedural fairness and administrative law principles. Empirical work has shown how risk-classification systems in immigration enforcement can entrench detention biases unless subjected to robust oversight and audit.
DISCRIMINAITON AND ALGORITHMIC BIAS
AI/ADM systems trained on historical enforcement data can reproduce and amplify bias (racial, national, and socio-economic). Where immigration outcomes hinge on opaque scoring, affected persons may have little ability to challenge unjust outcomes — a concern both for human-rights law and equality protections. Emerging scholarship and practitioner reports have documented bias risks and called for mitigations such as bias testing, impact assessments, and diverse datasets.
SECURITY AND MISUSE
Centralized biometric and travel databases are attractive targets for cyber-attack, and they can be repurposed for surveillance beyond migration control (e.g., policing, workplace monitoring) unless statutory limits are imposed. The EU’s recent rollout of a new digital border system illustrates both the efficiency gains and the data-protection scrutiny that such programs attract.
EXCLUSION AND ACCESS BARRIERS
Digitalization can be exclusionary. Those with no digital literacy, lack of documentation or reliable connectivity may face systemic exclusion. Refugees and stateless persons have specific unaddressed challenges in the form of proving their identity in a digital world. Digital Identity programs must be developed in a way that does not deny these individuals access to basic Services.
LEGAL AND REGULATORY OPPORTUNITES
RIGHTS-BASED DIGITAL IDENTITY
Digital identity systems can be based on a right-based approach to enhance an individual’s access to services and reduce fraud. The International Organization for Migration (IOM) and other international organizations are working with States to provide toolkit(s) and standards to assist States in establishing a digital identity system that is based on privacy, consent and interoperability, and that maintains accountability through a legal framework. States should define minimum data collection, retention periods, and specific purposes for each digital identity system within their legal framework.
EMBEDDING HUMAN RIGHTS SAFEGUARDS INTO LAW
A national statute or administrative regulation can mandate:
(a) That all high-stakes automated decisions be subject to human-in-the-loop reviews
(b) The requirement that the decision be explained and made available to the user along with an explanation of the algorithm used to compute that decision
(c) An independent audit and analysis of the algorithm’s impact
(d) Statutory limits regarding the secondary uses of personal information or data sharing with third-parties.
The provisions in the EU General Data Protection Regulation on prohibiting solely automated decision-making is a good example of how to balance the efficiency of automated systems with fairness to users.
TRANSPARENCY, OVERSIGHT AND ACCOUNTABILITY MECHANISMS
Law can require publication of system design documents, datasets (or summaries), and performance metrics, subject to legitimate security exceptions. Independent oversight bodies — data protection authorities, ombudspersons, or specialist tribunals — should have powers to inspect code, order remedies, and enforce sanctions. Academic and civil-society litigation has already pushed agencies to explain automated systems; stronger statutory powers will institutionalize that oversight.
INTERNATONAL COOPERATION AND STANDARDS
Cross-border data flows are inherent to migration management. International bodies (IOM, UNHCR, regional bodies) can promulgate interoperable technical standards and model legal clauses to reduce fragmentation and protect rights. The EU’s experience with the Digital COVID Certificate shows both the feasibility of regional technical standards and the need for legal bases in domestic law when systems are repurposed.
PRACTICAL RECOMMENDATIONS
Create statutory limits on the use of biometric information technology and autonomous decision-making in making decisions on immigration. Individuals who are impacted negatively as a result of the use of biometric information technology and autonomous decisions-making should have a right to have such decisions reviewed by a human.
Requiring algorithmic impact assessments, independent audits, and public reports will help ensure that all systems that materially determine the rights of migrants are being used in a manner that is fair and just.
All immigration laws should incorporate the principles of data minimization, limited purposes, and limited retention periods. Once legal purposes are no longer served, secure deletion is required.
Develop accessible and non-digital means of providing assistance to help avoid the exclusion of migrants.
Provide for the development of international model agreements governing the cross border sharing of information with enforceable protections.
CONCLUSION
Digital immigration systems enhance efficiency in processing and border protection but raise significant legal issues related to privacy, discrimination, due process, and inclusiveness. Lawmakers should create regulations that safeguard human rights, ensure accountability, and provide remedies for affected individuals. By doing so, they can harness the advantages of digitalization while protecting migrants’ rights and dignity. Recent judicial reviews and policy frameworks suggest that designing these systems with rights awareness, clear statutory limitations, and robust oversight will determine their potential as tools of justice or exclusion.
