"Joint statement: The EU AI Act must protect people on the move", 6. December 2022

The European Union Artificial Intelligence Act (AI Act) will regulate the development and use of ‘high-risk’ AI, and aims to promote the uptake of ‘trustworthy AI’ whilst protecting the rights of people affected by AI systems.

However, in its original proposal, the EU AI Act does not adequately address and prevent the harms stemming from the use of AI in the migration context. Whilst states and institutions often promote AI in terms of benefits for wider society, for marginalised communities, and people on the move (namely migrants, asylum seekers and refugees), AI technologies fit into wider systems of over-surveillance, criminalisation, structural discrimination and violence.

It is critical that the EU AI Act protects all people from harmful uses of AI systems, regardless of their migration status. We, the undersigned organisations and individuals, call on the European Parliament, the European Commission, the Council of the European Union, and EU Member States to ensure the EU Artificial Intelligence Act protects the rights of all people, including people on the move. We recommend the following amendments to the AI act:

1. Prohibit unacceptable uses of AI systems in the context of migration

Some AI systems pose an ‘unacceptable risk’ to our fundamental rights, which will never be fixed by technical means or procedural safeguards. Whilst the proposed AI Act prohibits some uses of AI, it does not prevent some of the most harmful uses of AI in migration and border control, despite the potential for irreversible harm.

The AI Act must be amended to include the following as ‘prohibited practices’:

• Predictive analytic systems when used to interdict, curtail and prevent migration. [...]
• Automated risk assessments and profiling systems. [...]
• Emotion recognition and biometric categorisation systems. [...]
• Remote Biometric Identification (RBI) at the borders and in and around detention facilities. [...]

2. Expand the list of high-risk systems used in migration

While the proposal already lists in Annex III the uses of ‘high-risk’ AI systems in migration and border control, it fails to capture all AI-based systems that affect people’s rights and that should be subject to oversight and transparency measures.

To ensure all AI systems used in migration are regulated, Annex III must be amended to include the following as ‘high-risk’:

• Biometric identification systems. [...]
• AI systems for border monitoring and surveillance. [...]
• Predictive analytic systems used in migration, asylum and border control. [...]

3. Ensure the AI Act applies to all high-risk systems in migration, including those in use as part of EU IT systems

[...] The EU AI Act should be amended to ensure that Art. 83 applies the same compliance rules for all high-risk systems and protects the fundamental rights of every person, regardless of their migration status.

4. Ensure transparency and oversight measures apply

People affected by high-risk AI systems need to be able to understand, challenge, and seek remedies when those systems violate their rights. In the context of migration, this requirement is both urgent and necessary given the overwhelming imbalance of power between those deploying AI systems and those subject to them.

The EU AI Act must prevent harm from AI systems used in migration and border control, guarantee public transparency, and empower people to seek justice. [...]

Drafted by: Access Now, European Digital Rights (EDRi), Platform for International Cooperation on Undocumented Migrants, and the Refugee Law Lab.

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