Select Committee on European Communities Tenth Report


FINGERPRINTING ILLEGAL IMMIGRANTS: EXTENDING THE EURODAC CONVENTION

PART 2: ISSUES AND EVIDENCE

THE LEGAL BASIS OF THE DRAFT EURODAC CONVENTION AND PROTOCOL

21.  The Minister explained that, with the entry into force of the Amsterdam Treaty, revised texts translating the content of the draft Eurodac Convention and Protocol into a Community instrument would be necessary. This would most probably be a Regulation, a measure which is directly applicable and binding in all the Member States. In the absence of a concrete proposal, the Minister could not comment on the legal base (QQ 1, 6).

22.  Article 63(1)(a) in Title IV of the EC Treaty mirrors the language and purpose of the Dublin Convention and so would seem to be an appropriate legal base for a Community Eurodac instrument[16]. It requires Member States to establish criteria and mechanisms for determining which is responsible for considering an asylum application made by a non-EU (third country) national. The sole purpose of the Eurodac system is to assist in the application of the Dublin Convention. A potential difficulty is that the Dublin Convention remains an intergovernmental instrument outside the jurisdiction of the European Court of Justice. There is, as yet, no proposal to translate it into a Community measure. By contrast, the Court will have jurisdiction to give preliminary rulings on the validity or interpretation of Title IV measures, including Eurodac, referred to it by national courts of last resort (those against whose decisions there is no judicial remedy). The Minister acknowledged that "a European Court of Justice interpretation of Eurodac could have an indirect impact on the operation of the Dublin Convention". Apart from this, she did not foresee any particular problem arising from the operation of an intergovernmental Convention in conjunction with a Community Eurodac system (Q 8).

23.  JUSTICE welcomed the proposal to transform the Eurodac Convention and Protocol into a Community instrument, describing the supervisory jurisdiction of the Court of Justice as "an essential safeguard for the interests and fundamental rights of the individual data subject", a view shared by the Immigration Law Practitioners' Association (ILPA) (pp 27, 24).

THE UK OPT-OUT

24.  The UK has a general opt-out of any Title IV measures as a result of the Protocol on the Position of the UK and Ireland agreed at Amsterdam. But it also has a right of opt-in. The Minister was unwilling to indicate whether the Government would opt into a Community Eurodac system until a new proposal was brought forward. It would then be necessary to balance "the value of participation, including the more effective operation of the Dublin Convention, . . . against our concerns that a Community instrument, and particularly the role of the European Court of Justice, could result in delays to the processing of asylum claims in the United Kingdom". The decision would also be linked to broader considerations concerning the extent of the UK's participation in the new Title IV provisions on asylum and free movement and in parts of the Schengen acquis which have been incorporated into the EU Treaties[17]. In relation to Eurodac, she could see "very clear benefits for this country" and "would be very surprised if we were not able to participate in this. It is compatible with keeping our frontier controls, and that is the crucial bit" (p 5, Q 10).

NEED FOR THE PROTOCOL

25.  The Dublin Convention requires Member States to exchange information necessary for establishing the identity of an asylum applicant and for implementing any obligation under the Convention (Article 15). The Government believes that fingerprinting is the most reliable way of establishing identity. A central database of fingerprints should, it suggests, considerably enhance the effectiveness of all the provisions of the Dublin Convention, including those relating to irregular or illegal presence in a Member State (pp 1, 3).

26.  ILPA's view was that the Protocol went beyond the terms of the Dublin Convention by extending the Eurodac system to persons not seeking asylum. ILPA also feared that the Protocol would blur the distinction between asylum seekers, whose right to protection is established under international law, and other types of immigrant subject to normal entry controls (p 24). The Minister did not share these concerns: "What the Protocol does is to accept and acknowledge what we all know is the situation, that the distinctions between asylum seekers and other types of immigrants and illegal immigrants are actually very blurred". Although the Protocol widened the scope of Eurodac, it would not prevent individuals from claiming or obtaining protection under the 1951 Geneva Convention. It would simply ensure that the right Member State, determined in accordance with the criteria in the Dublin Convention, was responsible for the asylum application (Q 13).

27.  The Dublin Convention refers to "irregular" or "illegal" presence in Article 10(1)(c) and (e). These provisions require a Member State to take back or re-admit individuals whose applications for asylum are pending in or have been rejected by that State and whose presence in another Member State is irregular or illegal. The obligation stems from the fact that an asylum application has been made. In addition, the irregular crossing of a border is one of the criteria for determining the Member State responsible for processing a claim once an application for asylum has been made (Article 6 of the Dublin Convention).

28.  ILPA expressed the concern that the Protocol was indiscriminate in its effects. There was not a sufficiently tight linkage with the Dublin Convention in which the application for asylum is the trigger for establishing the responsibility of a particular Member State. The failure to maintain a clear distinction between the regimes applicable to asylum seekers and other types of immigrant would "inevitably have the undesirable effect of failing to afford protection to those who need it by mistakenly channelling them through normal immigration controls rather than appropriate asylum procedures" (p 24). Statewatch suggested that more cross-references to the Dublin Convention in the text of the Protocol might help to clarify the purpose of fingerprinting. In particular, "the Protocol should explicitly limit the purposes for which fingerprints and other data can or may be taken to the circumstances of Articles 6 and 10(1)(c) and (e) of the Dublin Convention" (pp 29, 31).

29.  Mrs Hadland, from the Asylum and Appeals Policy Directorate of the Home Office, acknowledged the possibility that the Protocol "will involve the fingerprinting of some people who do never claim asylum" although she believed many would. The Protocol was an attempt "to make Dublin workable". There was no way of knowing if an individual had made an asylum application. It was necessary to have some prior information in order to apply the relevant provisions of the Dublin Convention. The Minister described the difficulties in tracking the immigration history of illegal immigrants and in quantifying the scale of the problem. It was not possible to give figures on the number of illegal immigrants who entered one Member State and then claimed asylum in another, or those who were illegally present in one Member State having claimed asylum in another. But "we do know that the numbers are significant" (QQ 16, 26, 28).

30.  In its Opinion on the Protocol, the European Parliament's Committee on Legal Affairs and Citizens' Rights described the main purpose and value of the Eurodac system as making it possible "to demonstrate more conclusively the real sequence of relevant events"[18].

THE PRINCIPLE OF FINGERPRINTING

31.  The Government made clear in its White Paper Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum that it was considering the use of targeted fingerprinting to strengthen its own enforcement effort, independent of any requirements arising from Eurodac. Fingerprinting of asylum seekers has become an established part of the application process since the entry into force of the Asylum and Immigration Appeals Act 1993. Immigration officers may also take fingerprints to establish the identity of all those who are detained while liable to examination or removal under the Immigration Act 1971 (p 6).

32.  The Government has no fundamental difficulty with the extension of powers to fingerprint individuals in the circumstances envisaged in the Protocol. It pointed out that "many of those to be fingerprinted under Article 3(1) may also be covered by one of the fingerprinting proposals which it is proposed to add to the Immigration and Asylum Bill". The Government also thought it likely that, if the UK were to participate in a Community Eurodac system, it would wish to make use of the facility in Article 7 to compare the fingerprints of illegal entrants taken under domestic law with asylum seeker fingerprints stored in the Eurodac database. But the Government emphasised that "any Eurodac requirements are likely to be caught within the rather broader needs of any domestic provisions" (p 6, 20).

33.  The Government anticipated that relatively few immigrants to the UK would have their fingerprints taken under Article 3 of the Protocol as it only applies to clandestine entrants who have made an irregular border crossing from a third (non-EU) country. The UK does not have an external land border with a non-EU State and most of those who make an irregular crossing do so from another Member State. The Minister believed that the Protocol would affect other Member States more than the UK, "although we will be helped greatly by knowing and being able to identify whether someone who has come here has already been turned down elsewhere as an asylum seeker" (p 6, Q 15).

34.  ILPA and Statewatch accepted that a State has the right, subject to any international agreements it has entered into, to control the entry of non-nationals into its territory. The Protocol did not, however, refer to the rights of certain third country nationals to live, work or provide services in the EU in accordance with Community law or under the terms of agreements with third States, such as the "Europe" Association Agreements with countries applying for EU membership (pp 25, 29). A more fundamental objection expressed by JUSTICE was that "no consideration at all appears to have been given to the human rights implications" of the draft Protocol (p 27). This, Statewatch suggested, was "a remarkable omission in the light of the Human Rights Act" (p 30). Both JUSTICE and Statewatch cited case law to illustrate their assertion that the taking and storing of fingerprints constituted an infringement of the right to respect for private life under Article 8(1) of the European Convention on Human Rights (ECHR) (pp 26, 29). The European Parliament's Legal Affairs Committee also expressed "serious reservations concerning the taking of fingerprints", regarding this as "a major encroachment on the right to integrity of the person"[19].

ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

35.  All EU Member States are parties to the ECHR. The right to respect for private life in Article 8(1) extends to everyone - EU and third country nationals alike - within their jurisdiction. It is an individual, but not an absolute, right. States may restrict or interfere with it on one or more of the grounds set out in Article 8(2). These are:

If there is a legitimate aim for the interference, the onus remains on the State to demonstrate that its action is "in accordance with the law" and "necessary in a democratic society". The interference must be proportionate to the aim it is intended to achieve.

POTENTIAL INCONSISTENCIES WITH ARTICLE 8 ECHR

36.  ILPA emphasised that, "in the application of both the 1951 Convention and the European Convention, Member States are under a duty not to return persons requiring protection regardless of the method of entry employed to enter the Member State". The method of entry should not act as an obstacle to obtaining protection if the criteria in either Convention are satisfied (p 24).

37.  The method of entry is the decisive criterion for fingerprinting under Article 3 of the Protocol. Fingerprints would be taken from any person aged 14 or above apprehended in connection with the irregular crossing of a border who has come from a non-EU country and has not been turned back at the border. JUSTICE had difficulty in squaring this "blanket obligation . . . with the need, in every case, to be able to show that the taking and storing of the fingerprint data pursues a legitimate aim under Article 8(2) . . . and is 'necessary in a democratic society' in order to achieve that aim". JUSTICE also questioned whether the period of retention of fingerprint data was justified under Article 8(2) (p 26).

38.  Fingerprints taken from individuals under Article 3 of the Protocol shall be stored in the Eurodac central database for two years "for the sole purpose of comparison with data on applicants for asylum transmitted subsequently to the Central Unit" (Article 4). Data must be erased before the expiry of the two year period if the person concerned has been issued with a residence permit or has left the territory of the Member States (Article 5). These provisions appear to be designed to assist in the application of Article 6 of the Dublin Convention, although there is no explicit linkage in the text of the Protocol. The general principle in Article 6 of Dublin - that the irregular crossing of a border determines the State responsible for a subsequent asylum application - is subject to an exception based on actual residence. A Member State will be responsible for a claim submitted by a person who has been living there for a least six months, even though that person first gained entry into the EU by an irregular crossing of a border in another Member State.

39.  JUSTICE suggested that, since six months residence can extinguish the responsibility of the Member State first entered by means of an irregular crossing, "the period of 2 years for which the data can be retained is therefore clearly excessive (at least for the purposes of Article 6 of the Dublin Convention) and cannot be justified" (p 26).

40.  Statewatch questioned whether the provisions of the Protocol on the taking of fingerprints, their storage and deletion were sufficiently clear to be "in accordance with the law". They also doubted "the existence of a legitimate aim for, the necessity for and the proportionality of taking fingerprints" from those found to be "illegally present" in a Member State under Article 7 of the Protocol. These doubts were all the greater given the potential number of persons who might be caught by Article 7. The term "illegal presence" could encompass those whose initial presence was lawful but then overstayed or whose residence permits had expired before receiving notification of a renewal (p 29).

The justification for fingerprinting - the Government's approach

(I)  IS THERE A LEGITIMATE AIM?

41.  The Government accepts that the taking and retaining of fingerprints requires justification under Article 8(2) of the ECHR. The Minister believed that the Protocol was "fair and not excessive". The restriction of rights under Article 8(1) of the European Convention on Human Rights was justified "in the overall public interest, looking at the whole totality of public safety and the prevention of disorder". The purpose of the fingerprinting was clear and only "a very small number of people" would be affected. The Dublin Convention was not working because of the "frequent absence of documentary evidence". The Minister accepted that the Dublin Convention was essentially an administrative mechanism to allocate responsibility as between the Member States for an asylum application and that it did not, therefore, concern the substantive merits of a claim. She felt, nevertheless, that a connection would be made in the minds of the public between the procedures determining the Member State responsible for an asylum application and abusive claims (p 17, QQ 30, 31).

42.  Mrs Hadland added, "most people who are irregular or illegal, certainly in the UK, will normally be committing a criminal offence in terms of the Immigration Act 1971, which normally would itself provide a justification for taking the prints". The prevention of disorder and public safety were relevant "in the sense that if individuals in Member States feel that the way asylum seekers and illegal entrants and people who indeed blur the distinctions by being one at one time and one at another are just willy nilly deciding which Member State they want to be in . . that can build a real sense of injustice and a feeling that it is wrong" (Q 33).

43.  The Government subsequently submitted in writing a more detailed explanation of the grounds on which it considered the Protocol complied with Article 8 of the ECHR. The primary justification, it suggested, was the prevention of crime. Compulsory fingerprinting of those apprehended making irregular border crossings under Article 3 of the Protocol would "discourage them from making another such crossing in order to claim asylum in another Member State". Fingerprinting would have a deterrent effect and help to prevent crime. Not only was it a crime to cross a border irregularly, it would often also involve the commission of other offences of forgery and deception and "generate serious criminal behaviour on the part of others". Examples given by the Government were those facilitating irregular border crossings for gain or forging documents. There would be a similar deterrent effect if fingerprints taken by a Member State under its domestic law were communicated to the Eurodac Central Unit in accordance with Article 7 of the Protocol (pp 17, 19).

44.  The Government also described the new powers to extend fingerprinting which it intended to add to the Immigration and Asylum Bill. It believed these were justified under Article 8(2) of the ECHR to prevent crime on a domestic level and that, "clearly, where there is an overlap with Article 3 of the Protocol, the fingerprints will also help to prevent crime on a European level" (p 18).

45.  Secondary justifications under Article 8(2) of the ECHR were, the Government suggested, the prevention of disorder and the protection of the rights and freedoms of others. The purpose of fingerprinting under Article 3 of the Protocol was to make Article 6 of the Dublin Convention, which allocates responsibility for asylum applications, work more effectively. If the system broke down, asylum seekers could cross the weakest border irregularly to gain entry into the EU and then travel to the Member State where it would be easiest to acquire refugee status. The Government feared that "if large numbers of asylum seekers followed this route, disorder could ensue". In addition, "it would impinge on the rights of asylum seekers who had genuine reasons for applying for asylum in the particular country that had been chosen for bogus reasons by other asylum seekers" (p 18).

46.  Article 7 of the Protocol was intended to ensure that a Member State took responsibility for an asylum seeker whose application it had under examination or had rejected, in accordance with Article 10(1)(c) and (e) of the Dublin Convention. If these provisions were not properly implemented, "an asylum seeker whose claim for asylum had been rejected could make an asylum claim in every Member State in the hope that one Member State would accept his claim. If substantial numbers of asylum seekers did this, there would be the potential for disorder, and it would also harm the interests of genuine asylum seekers" (p 20).

47.  The Government did identify, in relation to Article 3 of the Protocol, one circumstance in which the taking and retention of fingerprints might not be justified. If a person who had attempted an irregular border crossing was detained and kept in custody until removed to a non-EU country, there would be no opportunity to attempt a second irregular crossing into another Member State to apply for asylum there. The Government would seek to ensure that the taking and retention of fingerprints in such cases would not be permitted in the revised Commission proposals for a Community Eurodac instrument (p 18).


(II)  IS FINGERPRINTING "IN ACCORDANCE WITH THE LAW"?

48.  The Government was satisfied that, if the UK were to participate in Eurodac, implementation of the Protocol would be "in accordance with law". The UK's fingerprinting obligations would be met through the Immigration and Asylum Bill (once it becomes law) and, as necessary, through subordinate legislation under section 2(2) of the European Communities Act (p 17).

(III)  IS FINGERPRINTING NECESSARY AND PROPORTIONATE?

49.  The Government considered fingerprinting to be proportionate to the aim of preventing crime. It believed that "a significant number of those caught making irregular border crossings later do so again in order to claim asylum in another Member State". Although fingerprinting might be frightening for some, it was quick "and probably no more intrusive than alternative methods of establishing identity, for example, photographing or extensive questioning". Two years was a reasonable period for retaining fingerprints taken under Article 3 of the Protocol as "we would normally expect someone who makes an illegal border crossing with a view to claiming asylum in another Member State to do so within a two year period". The description of the circumstances in which Member States might communicate fingerprints to the Central Unit under Article 7 ensured that the power would be used only for its stated aim of identifying illegal entrants likely to fall within Article 10(1)(c) and (e) of the Dublin Convention. There was no retention of the fingerprints, they could only be compared against the prints of asylum seekers (pp 18, 19).

WILL IT WORK? - UNCLEAR DEFINITIONS

50.  The categories of immigrant susceptible to fingerprinting are described in Articles 3 and 7 of the Protocol. ILPA, JUSTICE and Statewatch criticised the imprecision of the definitions. They were, according to JUSTICE, "too vague" and might encourage "an excessive use of fingerprinting" (p 26). ILPA feared that, "given the divergence in immigration systems across the EU, the lack of clear definition of essential terms . . . will undoubtedly lead to confusion and inconsistency". It could also lead to disputes between Member States "if a variation in approach is taken" (p 25). The Government acknowledged the possibility of divergent interpretations. For this reason, the Council had drafted a statement for the Council minutes[20] to clarify the intended scope and application of Articles 3 and 7. The Minister explained that this statement would be replaced by "some kind of published declaration". The problem with this approach, as the Government acknowledged, was that a declaration "has generally no legal effect in the First Pillar and could not be used by the ECJ in interpreting the (Eurodac) Regulation or otherwise be seen as limiting the effect of its text" (p 20, Q 44).

ARTICLE 3

51.  This Article imposes an obligation on a Member State promptly to take the fingerprints of every third country (non-EU) national aged 14 or above who is apprehended in connection with the irregular crossing of the border of that State. It mirrors the language of Article 6 of the Dublin Convention which refers to the irregular crossing of a border as one of the criteria for establishing the Member State responsible for an asylum application. The duty to fingerprint does not apply to third country nationals who have sought to cross the border from another EU Member State or who have been turned back at the border.

52.  The use of the term "irregular crossing" was, in ILPA's view, meaningless (p 25). JUSTICE was concerned that, if it equated to "illegal entry" under UK immigration law, it would encompass a particularly wide category of individuals. Those who entered the UK by "deception", as defined in the Immigration Act 1971, could be declared illegal entrants years after their original entry. This would in no way facilitate the application of Article 6 of Dublin as responsibility for an asylum claim was extinguished by 6 months residence in another Member State (p 26). According to Statewatch, the uncertain scope of Article 3 was one of the reasons for doubting its compatibility with the European Convention on Human Rights (p 29).

53.  The draft Council minutes statement provides that fingerprinting under Article 3 would not be limited to illegal entrants apprehended at the external border of the EU. If a connection could be made between the irregular crossing of a border and the apprehension of an individual at some distance from the border, then the duty to fingerprint would apply. So, for example, a person who had made an irregular border crossing in a high-speed train might only be apprehended at the end of the journey, many miles from the border entry point. The connection with an irregular crossing would be sufficiently clear to trigger Article 3.

54.  According to the Government, the draft Council minutes statement made it clear that the obligation to fingerprint in Article 3 was confined to cases "where there is no doubt that the crossing was made irregularly". This meant that the irregular crossing had to be "recent and proven". It would not apply to those only suspected of having made an irregular crossing. Nor would it apply to those who were turned back immediately at the border. The Minister explained that Article 3 was targeting people attempting a clandestine entry. Mrs Hadland, from the Home Office, added "the intention would be that the fingerprinting happened as soon as was practicable after the person has been identified as a proven illegal border crosser". The minutes statement should make it "absolutely clear" whether and when fingerprints have to be taken (pp 17, 20, QQ 20, 21, 43).

55.  JUSTICE objected to the use of a minutes statement to clarify an opaque text. It undermined legal certainty and transparency without "in any way narrow(ing) the category of individuals who may be caught within the terms of the Protocol". JUSTICE quoted from a report by the Council Legal Service stating that "in the absence of agreement to incorporate their substance into the enacting terms, statements contradicting or adding to the enacting terms of legislation must absolutely not be made" (p 27).

ARTICLE 7

56.  This Article enables each Member State to compare the fingerprints of any third country national aged 14 or over found to be illegally present within its territory with the prints of asylum seekers stored in the Eurodac central database. It does not create an obligation to fingerprint any non-EU national whose presence is illegal. But if such fingerprinting is permitted under domestic law, Article 7 provides a facility for checking the prints against asylum seeker data stored in Eurodac.

57.  The Government explained that the facility in Article 7 was only intended to be used if there was some reason to suspect that a claim for asylum had been made in another Member State. Such a limitation would be consistent with the purpose of Article 10(1) (c) and (e) of the Dublin Convention. Under these provisions, a Member State which is examining an asylum application or has already rejected it must readmit or take back an asylum seeker whose presence in another Member State is irregular or illegal. This limitation of purpose does not appear in the text of Article 7, but is included in the draft Council minutes statement, which records Member States' agreement that fingerprint data may be communicated to the Eurodac central database if:

The relevant test for using the Article 7 facility might, Mrs Hadland suggested, be "a reasonable presumption or a reason to suspect that a person may have applied for asylum in another Member State" (p 2, Q 26).

58.  JUSTICE expressed concern that the minutes statement extended the Protocol beyond the scope of the Dublin Convention. Whereas Dublin was limited to determining claims for refugee status within the meaning of Article 1 of the 1951 Geneva Convention, as amended by the New York Protocol, the statement appeared to encompass individual claims for protection based on Article 3 of the European Convention on Human Rights. Such a claim for protection may be made where there is a substantial risk of treatment amounting to torture or inhuman or degrading treatment. In certain Member States, such as Germany, a claim based on Article 3 of the ECHR would give rise to a residence status distinct from that of asylum seekers. JUSTICE believed that "if Member States consider it necessary to take and exchange fingerprints of individuals who object to being returned to their country of origin on grounds of fear this should be included on the face of a separate Council act (or new Title IV instrument), subject to the requirements of Article 8(2) of the European Convention on Human Rights" (p 27).

59.  A further flaw, ILPA suggested, was use of the term "illegally present". Under UK immigration law, a person who may have been lawfully present for some considerable period could, because of an alleged deception on entry, be declared an illegal entrant. Would there be an obligation to fingerprint that person as having made an irregular border crossing under Article 3? Or would Article 7 apply? (p 25). Mrs Hadland, for the Home Office, explained that Article 7 was intended to catch those cases where the original entry was legal but continuing residence (perhaps beyond the period specified in the entry visa) was illegal. There would also be some cases where a sufficient nexus could not be established between illegal presence and an original unlawful entry or where it was not possible to identify into which Member State an irregular entry had been made (Q 23).

60.  The Government explained in its supplementary written note that a reasonable suspicion that someone was an illegal entrant would not suffice for Article 7. The wording in Article 7, "an alien found illegally present", implied more than reasonable suspicion of an illegal entry. The new powers which the Government proposed to take in the Immigration and Asylum Bill would permit the fingerprinting of those reasonably suspected of being illegal entrants in order to establish their identity. If the UK decided to participate in Eurodac, it would wish to make use of the facility in Article 7 "if prints were being taken for domestic purposes and the criteria set out in Article 7 were met" (pp 19, 20).

PRACTICAL DIFFICULTIES

61.  ILPA questioned the practical value of the Protocol and the lack of incentives for those most affected by illegal immigration to apply its provisions: "If in practice Member States are reluctant to register aliens illegally crossing into their territory or illegally present in their territory in fear of some time in the future becoming responsible for their applications for asylum, the system will be meaningless and a waste of resources". The burden would be most likely to fall on those Member States bordering non-EU countries and they may be ill equipped to implement the procedures (p 25).

62.  The European Parliament's Legal Affairs Committee commented in its Opinion that "the Member State of illegal entry can be identified at best unreliably". An illegal entrant may, for example, have entered one Member State, left for a third country, and then re-entered a second Member State illegally. Fingerprint data recorded by the first Member State should be deleted once the entrant has left its territory (Article 5(2)(b) of the Protocol) but a specific connection may not always be made between the recording of the fingerprint data in Eurodac and exit data stored in a different (national) database. Moreover, "the longer the time between first confirmed illegal entry and the application for asylum, the higher the probability that the party concerned will again have left the territory of the EU and subsequently re-entered it, possibly by crossing the borders of another Member State"[21].

DATA PROTECTION

63.  Article 8 of the Protocol stipulates that, "Unless otherwise stated in this Protocol or unless a different intention appears from the context, all the provisions of the Eurodac Convention shall apply mutatis mutandis to the Protocol". The Convention sets out substantive data protection requirements. These include, in Article 13(2), an individual right to be informed of personal data recorded in the Eurodac central database and of the Member State responsible for transmitting such data to the Central Unit. Statewatch contended that this right of access to data was unqualified. National laws might determine the modalities for exercising the right but could not allow the right itself to be extinguished. The purpose of the right of access was to ensure that inaccurate data could be corrected or that illegally recorded data could be deleted. Access rights also facilitated claims for damages against Member States for illegal use of fingerprint comparisons (under Article 12(1) of the Convention) or against the Community for negligent acts of its staff in breach of their duties under the Convention (Article 12(2)) (p 30).

64.  Under the Protocol, the only fingerprints that may be stored in the Eurodac database are those taken from individuals apprehended in connection with an irregular border crossing under Article 3. The right of access to such data is explicitly limited by Article 6 of the Protocol. The effect of the limitation is to deny illegal immigrants whose fingerprints are stored in the Eurodac database a direct right of access to that data if no such right exists under the law of the Member State responsible for sending the prints to the Central Unit. Indirect access might still be obtained via the national supervisory authority. One of its tasks, under Article 14(3) of the Convention, is to ensure that the recording and transmission of an individual's data to the Central Unit and the retrieval and use of that data by a Member State are lawful.

65.  JUSTICE questioned why illegal immigrants should not have the same right of access to data as that enjoyed by asylum seekers. This differentiation "raises serious questions with regard to Article 13 of the European Convention on Human Rights, which requires provision of an effective remedy to individuals who suspect an infringement of their rights" (p 26). Statewatch described the limitation in Article 6 of the Protocol as "inexplicable and wholly unacceptable". Like JUSTICE, it believed that there was an arguable case "that the proposed extinction of a fingerprinted person's individual data protection rights would constitute a violation of the effective remedies obligations of Article 13 ECHR". Moreover, the sole purpose of the fingerprint comparisons under the Protocol was to determine the Member State responsible for an asylum application: "This in no way involves criminal investigations or prosecutions or the protection of national security, so there is no apparent justification for a Member State to abolish a fingerprinted person's right to access to data". A further flaw was the absence of controls on the use of fingerprint data after these had been sent from the Eurodac database to the requesting national authority. Statewatch considered this to be "a glaring omission" (p 30).

66.  The Government explained that Article 6 of the Protocol did not take away from the data subject any rights available under national law. In the case of fingerprints sent to the Central Unit by UK authorities, the data subject would have full access rights to personal information stored in the central database. Article 6 reflected the fact that domestic data protection legislation in some other Member States did not confer a direct right of access to certain types of data. It was reasonable that national law on access should continue to apply, "as data in the central database remains the data of individual Member States rather than becoming 'Eurodac' data" (p 6).

67.  The Data Protection Registrar emphasised the importance of viewing data protection "in a human rights context". She did not believe that the differentiation between the rights of access of asylum seekers and illegal immigrants to data stored in the Eurodac database created a significant discrepancy, "where a request for access is made in the United Kingdom". Domestic law allowed a direct right of access in both cases. If a request for access was refused in reliance on Article 6 of the Protocol, a means of redress could be sought through the office of the Data Protection Commissioner (once the Data Protection Act 1998 enters into force in autumn) or the data subject could apply directly to the court for an order compelling access. The Registrar believed that these procedures would satisfy the need for a public judicial remedy under the European Convention on Human Rights. As regards other Member States, if requests for access had to be channelled through the national supervisory authority, this would be the case "regardless of whether or not the individual is an illegal immigrant or an asylum seeker" (p 23).

68.  Mrs Hadland, for the Home Office, confirmed that there would be direct rights of access to fingerprint data taken by the UK authorities and stored in the Eurodac database. In at least one other Member State (Belgium) the fingerprints of illegal immigrants were regarded as police rather than immigration data and domestic law only allowed indirect access to police data. The Protocol did not create any disadvantage in relation to existing data protection rights. It gave expression to national policy and practice (Q 52).

69.  Statewatch suggested that the effects of Article 6 of the Protocol could be mitigated by a provision ensuring that only those Member States whose national laws currently deny direct access to personal data may invoke the right to derogate from Article 13(2) of the Eurodac Convention. The derogation should be subject to review at regular intervals (p 31).

70.  The Data Protection Registrar referred to two further principles relevant to the operation of the Protocol. The first was that personal data should not be kept for longer than is necessary for the stated purpose. The second was that personal data held for any purpose should be "adequate, relevant and not excessive in relation to that purpose". She was content that both principles had been satisfactorily addressed in the Protocol (p 24).

71.  The Government noted that the data protection provisions in the Convention and Protocol did not give "a clear indication of the shape of the future proposals" as these would "need to be reworked in the light of the rather different requirements of the First Pillar when the Commission bring forward an instrument under Title IV of the EC Treaty" (p 7). ILPA, JUSTICE and Statewatch anticipated the application of the Community Data Protection Directive[22] as a positive development (pp 24, 27, 30).


16   The European Commission has adopted a draft Eurodac Regulation based on Article 63(1)(a) of the EC Treaty. See footnote 12 above. Back

17   A description of the acquis can be found in the Committee's Report, Incorporating the Schengen acquis into the European Union, (31st Report, 1997-98, HL Paper 139).  Back

18   The Opinion, drafted by Mrs Wilmya Zimmermann, was prepared for the Committee on Civil Liberties and Internal Affairs.  Back

19   The Zimmermann report. Back

20   A Member State or Member States and/or the Commission may make a formal statement at the time of adoption of a measure setting out their position on or interpretation of a proposal and ask that it be entered in the minutes. Such statements are not generally published with the official text.  Back

21   The Zimmermann report. Back

22   Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281, 23.11.95. The Data Protection Act 1998 will give effect to the Directive in the UK. The Act will be brought into force later this year. Back


 
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