AI At The Borders: How The EU AI Act Can Prove To Be Incompatible With Fundamental Rights For Refugees
With the emergence and growing sophistication of artificial intelligence (AI), there is a new set of challenges at the intersection of innovation, fundamental human rights law, and migration policy within the European Union (EU). This Note critically examines the EU’s approach to AI regulation, particularly its application at borders and in migration contexts, following the
signing of the EU AI Act of 2024. The current framework risks undermining fundamental rights guaranteed by the EU Charter of Fundamental Rights. The AI Act, while a step towards AI governance and future jurisprudence, contains loopholes and exemptions for border control. Thus, within the context of refugees and asylum seekers, the AI Act may serve to exacerbate discrimination.
The exemption for border control risks setting a precedent that undermines migrant rights and human dignity through its biometric data collection, data transfers, and predictive analytics that can be used to target individuals based on race, religion, and nationality. At the same time, EU member states claim to be leaders in ethical AI development and deployment. By exploring relevant case law, current practices, and regulatory frameworks, the paper examines the debate within EU jurisprudence on surveillance, data collection, security, and data protection.
This Note (1) analyzes the EU AI Act in relation to the Charter of Fundamental Rights of the EU (CFREU), looking to rights to privacy, asylum, and non-discrimination; (2) examines the interplay between national security and rights of refugees when AI-surveillance and data collection is used; (3) critiques AI in migration management; and (4) proposes reforms to ensure AI use at borders aligns with the CFREU.