Select Committee on European Communities Tenth Report



72.  The Protocol extending the Eurodac system to certain categories of illegal immigrant is concerned not with fingerprinting with a view to the preservation of law and order generally. Its sole purpose is to assist the working of the Dublin Convention. That Convention sets out criteria for allocating to a single Member State responsibility for examining an asylum application. The process for determining responsibility starts "as soon as an application for asylum is first lodged with a Member State"[23]. Establishing the identity of an asylum seeker is an essential preliminary step to allocating responsibility. In practice, Member States have been loath to accept responsibility in individual cases in the absence of sufficient compelling evidence. Eurodac would supplement the existing Dublin mechanism for exchanging information on asylum seekers. It is intended to meet the need for more accurate and reliable information, especially where there are doubts as to the identity of an asylum seeker or the validity of his or her documentation. The Eurodac Convention would require Member States to take and exchange the fingerprints of individuals aged 14 or over who have applied for asylum. The Protocol would go further, extending fingerprinting to certain categories of illegal immigrant, essentially clandestine entrants and those illegally present within a Member State, some of whom may not have applied for asylum.

73.   The Protocol's relationship with the Dublin Convention is thus central to its rationale and justification. There are, in our view, four key issues:

    * the need for the Protocol - how necessary is it for the effective implementation of the Dublin Convention?

    * clarity and legal certainty - are the definitions of the categories of illegal immigrant caught by the Protocol sufficiently clear and certain?

    * human rights - is fingerprinting justified and are there adequate data protection safeguards?

    * the implications of the Amsterdam Treaty - what impact will this have on the relationship between the Dublin Convention and Eurodac?

the need for the protocol

74.  The Action Plan agreed by Foreign Ministers recommending the extension of Eurodac to illegal immigrants envisaged the use of fingerprinting in cases where the identity of an illegal entrant could not be established with certainty on the basis of valid documents. The Protocol imposes an obligation to fingerprint all third country (non-EU) nationals who have irregularly crossed an external EU border and have not been turned back, whether or not they have valid identification papers. In addition, fingerprints may be taken from third country nationals found to be illegally present in a Member State for comparison with data on asylum applicants already stored in the Eurodac system. The justification, according to the Government, is that a substantial number of immigrants falling into either of these categories will have claimed asylum, or intend to do so. The difficulty with this approach, as the Government acknowledges, is that some have not and will not.

75.  There is some force in the case put by ILPA that the Protocol, by anticipating a claim for asylum, goes beyond the strict terms of Dublin. The Dublin Convention does not expressly anticipate the exchange of information independently of an application for asylum. The Committee does not, however, share ILPA's fear that this will necessarily blur the distinction between asylum seekers, who have a right to protection under international law, and other types of immigrant subject to normal entry controls. Nor does it agree with the implicit assumption that the Protocol will dilute observance by Member States of their obligations towards asylum seekers. A speedier and more efficient system for identifying and allocating responsibility for an asylum application serves the interests of individual applicants as well as national administrations.

76.  The Committee notes that the case for fingerprinting of illegal immigrants under the Protocol is based on the probability that a claim for asylum has been or will be made. The scale of the problem remains unclear. The Government was unable to provide any figures or estimates to indicate how many illegal immigrants do, in fact, apply for asylum in the UK or elsewhere in the EU. This raises a real question, for the Committee, as to whether the extension of the Eurodac system to potential rather than actual asylum seekers would have any significant impact in improving the operation of Dublin. Fingerprinting encroaches on the individual right to respect for private life. The Committee considers that, if new fingerprinting powers are to be created, they should be based on a demonstrable practical need and, as we shall develop below, should be consistent with our international obligations and proportionate to the objectives set out in the Dublin Convention.

clarity and legal certainty

77.  The purpose of the Protocol, stated in its Preamble, is to apply Articles 6 and 10(1)(c) and (e) of the Dublin Convention which allocate responsibility for examining an asylum application and for taking charge of an asylum applicant. Articles 3 and 7 of the Protocol are intended to give effect to these provisions. The Council has acknowledged the need for further clarification of their scope and application by drafting a minutes statement[24].

78.  The Committee notes, as a general point, that the need for clarity and certainty in the application of the law is of particular importance in the case of provisions affecting the fundamental rights of individuals. If a matter is capable of being clarified in a minutes statement, then that clarification should be included in the text of the Protocol. Moreover, while a minutes statement may, as the Government has pointed out, have some authority in the context of an intergovernmental instrument where general rules of international law and construction apply, the European Court of Justice has drawn attention to the extremely limited legal value of such statements as a basis for the interpretation of binding Community instruments. If the Eurodac Convention and Protocol are to be re-introduced as a Community Regulation, then a minutes statement will not do.


79.  Article 3 requires the fingerprinting of all third country nationals aged 14 or over apprehended in connection with an irregular border crossing. The purpose and effect of this Article, the Government believes, is to narrow the scope of the corresponding provision in the Dublin Convention (Article 6 uses the term "irregular border crossing"). It is clear when the obligation in Article 3 does not apply. Fingerprints will not be taken from third country nationals who attempt to enter from another Member State or from those arriving from outside the EU who are turned back at the border. But Article 3 creates a positive obligation which should be capable of enforcement with reasonable certainty. The need for a Council minutes statement suggests that Article 3 does not provide that degree of certainty.

80.  The Committee anticipates that there may be problems in using an EC instrument to limit or define the extent of the Dublin Convention, an intergovernmental agreement between Member States concluded outside the EU framework. This is especially so when all Member States may not be bound by the Community measure. The Government takes the view that the Protocol is intended to narrow rather than enlarge the scope of the Dublin Convention. But from the evidence we have received, it is not clear that this would be the case. The Committee does not share the Government's optimism that the Protocol and minutes statement together make it "absolutely clear" whether and when fingerprints are to be taken. Restricting fingerprinting to cases where there is "no doubt" of an irregular border crossing as opposed to mere "suspicion" places a heavy burden on immigration or police officials and may be difficult to implement in practice. There is, moreover, a considerable risk of overlap with Article 7.


81.  Article 7 only applies where powers exist under national law to fingerprint illegally present third country nationals. It provides a facility to check these prints against the existing pool of Eurodac data on asylum seekers. The distinction between the categories of illegal immigrant covered by Articles 3 and 7 is critical. In Article 3 cases, fingerprints must be taken and will be stored for up to two years. In Article 7 cases, the decision whether and when to fingerprint illegal immigrants rests with each Member State. The prints may not be stored in the Eurodac database. Although the consequences of fingerprinting in each case are clear, the classification of illegal immigrants into one or other category may be practically difficult and potentially unjust. The Article 7 facility is likely to be used where a sufficient nexus cannot be established between illegal presence and an earlier irregular border crossing. The potential scope of its application is extremely wide and its efficacy would seem to depend on Member States adopting a consistent practice in identifying which prints to send to Eurodac.

82.  The draft Council minutes statement would seem, in relation to Article 7, to take the Protocol beyond the realm of an instrument to facilitate the implementation of Dublin obligations. It encompasses not only those who have applied for asylum in another Member State but also those who have claimed protection on other, non-asylum, grounds. The Dublin Convention is only concerned with claims for refugee status based on Article 1 of the Geneva Convention on the Status of Refugees 1951, as amended by the New York Protocol 1967. It does not include claims for protection on other grounds, such as fear of torture, inhuman or degrading treatment based on Article 3 of the ECHR. The Committee believes that the Protocol itself should determine the scope of the power in Article 7. We share the concern expressed by JUSTICE that uncertainty may encourage excessive fingerprinting.

human rights

83.  There can be little doubt that compulsory fingerprinting interferes with the right to respect for private life in Article 8(1) of the European Convention on Human Rights (ECHR). The question is whether such interference can be justified on one or more of the grounds set out in Article 8(2). Even if it can, the circumstances in which fingerprints may be taken must be "in accordance with the law" and "necessary in a democratic society". The Committee notes that the mandatory fingerprinting of child asylum seekers and illegal immigrants may raise additional concerns under Article 16 of the UN Convention on the Rights of the Child 1989 to which all EU Member States are parties.


84.  Member States, individually and collectively, directly and indirectly, have accepted a responsibility to respect fundamental rights enshrined in the ECHR. They need to be sure that obligations undertaken at an EU level are compatible with the ECHR.

85.  The Minister initially advanced two grounds to justify fingerprinting in the circumstances envisaged by the Protocol. The first, "public safety", is not mentioned in the detailed note submitted later by the Home Office. The second, "prevention of disorder", is only cited as a secondary justification. The Committee is concerned that there does not appear to have been any prior detailed assessment and appraisal of the compatibility of the Protocol with the ECHR either at a domestic or an EU level. Moreover, the Government's own assessment appears to be based on the legitimacy of fingerprinting for the enforcement of domestic immigration and asylum policy rather than for the specific purpose of the Protocol. The Committee notes the importance attached to human rights both in the domestic context, with the incorporation of the ECHR, and in the EU context, with the explicit recognition of the European Court of Justice as guardian of fundamental rights in the Treaty[25]. In the light of these developments, the Committee urges the Government to ensure that the human rights implications of EU proposals are fully examined at the earliest opportunity.

86.  The primary justification advanced by the Government for fingerprinting under the Protocol is the "prevention of crime". It argues that national authorities enjoy a "margin of appreciation" in determining what measures are necessary under Article 8(2) ECHR. Crossing a border irregularly is a crime in the UK. It points out that those who do so will often commit other offences involving forgery and deception, and their actions will generate serious criminal behaviour by others. Fingerprinting, it is suggested, would also have a deterrent effect, reducing the incentives to move between Member States to claim asylum. It is said that if the mechanism for allocating responsibility for asylum applications or applicants under Articles 6 and 10(1) respectively of the Dublin Convention were to break down, disorder might ensue. This would have a negative impact on the rights of genuine asylum seekers. The "prevention of disorder" and the "protection of the rights of others" thus provide a secondary justification for fingerprinting.

87.  The Committee considers that, in identifying a legitimate aim under Article 8(2) ECHR, regard must be had to the purpose of the interference. As mentioned, the Protocol is intended to facilitate the application of the Dublin Convention. Fingerprinting is believed to be a reliable means of proving identity. Establishing the immigration history of an asylum applicant is an essential preliminary step to allocating responsibility under Dublin. But neither the Dublin Convention nor the Protocol seek to harmonise immigration and asylum policy and the criminal laws of Member States[26]. While a reduction in crime may be an incidental effect of fingerprinting to the extent that it might deter repeated irregular border crossings, countering offences against domestic immigration laws or serious crime such as forgery and facilitating illegal immigration is not the purpose of the Dublin Convention. The fact that fingerprinting might be justifiable for the purposes of enforcing national immigration policy and criminal law does not obviate the need to examine critically whether it is justifiable for a different, in this case EU, objective. The Protocol has a specific, essentially administrative, purpose. The requirement for fingerprinting to make Dublin work better needs to be demonstrated more clearly.

88.  As regards the prevention of disorder and the protection of the rights of others, the Government has not produced any evidence showing that the scale of movement from one Member State to another for the purpose of claiming asylum is such as to justify interfering with a fundamental right protected by Article 8(1) of the ECHR. Nor has it demonstrated that creating a power to fingerprint would deter such movement or prevent disorder. Given the difficulty in quantifying the numbers involved, it is not clear what basis the Government has for claiming that most illegal entrants susceptible to fingerprinting under Article 3 of the Protocol would normally seek asylum in another Member State within two years of their first illegal entry.

89.  These concerns are also relevant to the question of proportionality. The Protocol, it seems, would encompass an unquantified number of immigrants who do not claim asylum or who may have valid documents proving who they are and where they have come from. It seems to the Committee that the scale of the problem of undocumented illegal immigrants who seek asylum should first be established before proposing new powers to deal with it. There may be a case for limiting fingerprinting to individuals who have no documents establishing their identity or where there are reasonable doubts as to the validity of personal documentation.

90.  The Committee accepts that national authorities are allowed a margin of appreciation in determining what measures are necessary under Article 8(2) of the ECHR. The Committee notes, however, that Eurodac would be a collective instrument potentially binding all the Member States of the EU[27]. An assessment of the measures which might be necessary in a purely domestic context may not adequately take into account the wider European dimension and the need and justification for similar measures at the EU level.


91.  Article 16 stipulates that "No child shall be subjected to arbitrary or unlawful interference with his privacy . . ." and that "The child has the right to the protection of the law against such interference or attacks". Section 3 of the Asylum and Immigration Appeals Act empowers authorities in the UK to take the fingerprints of child asylum seekers (under the age of 16) in the presence of a parent, guardian or other adult independent of the immigration, police or prison service. The Eurodac Convention would transform this existing power (insofar as it relates to an applicant for asylum aged 14 or over) into an obligation. The Protocol would extend that obligation to the fingerprinting of a child aged 14 or above apprehended in connection with an irregular border crossing.

92.  Article 16 permits a lawful interference with the child's right of privacy. Satisfying the requirements of Article 8(2) of the ECHR may be sufficient to make the interference lawful. The Committee notes, however, that the purpose of the UN Convention is to recognise the specific protection needs of children. Even if the fingerprinting of an adult asylum seeker or illegal immigrant might be justified under Article 8(2) of the ECHR, the UN Convention might require greater safeguards in the case of a child under the age of 18. The Committee is concerned that due consideration should be given to the special needs of children in determining both the scope of the Protocol and the detailed rules for its application.


93.  The Committee agrees with the Data Protection Registrar that data protection has to be seen in a human rights context. Article 6 of the Protocol allows Member States to deny a direct right of access to fingerprint data sent to Eurodac. In such cases, individual access can only be obtained via a national supervisory authority responsible for checking that the recording and transmission of data and the retrieval and use of such data by a Member State are lawful. The Committee is satisfied that Article 6 does not present an obstacle to individual data protection rights within the UK. There will be a direct and enforceable right of access to fingerprint data sent by the UK authorities to Eurodac. The position may be different in some other Member States where the fingerprints of illegal immigrants may be classified as police data. The Committee notes that harmonised data protection rules will apply if Eurodac is adopted as a Community instrument. These include common rules on access to data applicable in all Member States. It would seem that direct access to fingerprint data might only be denied under the EC Data Protection Directive in cases where the processing of personal data concerns public security and the activities of the State in areas of criminal law[28].

the implications of the amsterdam treaty


94.  The Dublin Convention, concluded outside the EU framework, lacks a judicial mechanism to give definitive and binding rulings on the application or interpretation of its provisions. Questions of a general nature may be examined by a Committee comprising a representative from each Member State[29]. By contrast, the Court of Justice will have jurisdiction to rule on the validity of Eurodac, interpret its provisions, and ensure that it respects fundamental rights guaranteed by the European Convention on Human Rights ("ECHR").

95.  The role of the Court of Justice will be an important factor in determining whether to exercise the UK's right of opt-in. The Committee understands the Government's concern to avoid delays in the processing of asylum claims. Lengthy judicial proceedings to determine the Member State responsible for examining an application will inevitably set back a substantive consideration of the merits. There is, nevertheless, a strong case for uniformity in the application and interpretation of provisions affecting the fundamental rights of individuals. The need for judicial guidance and supervision is likely to be all the greater if Eurodac is implemented by means of a directly applicable and binding Regulation. The Committee considers that there is an important and useful role for the Court in determining the meaning and scope of the provisions in the Protocol and that it should not present an insuperable obstacle to UK participation in Eurodac.

96.  The Committee notes that opting in to Eurodac would enable courts in the UK to seek guidance from the Court of Justice and they would be bound by its rulings. As mentioned above, the provisions of the Protocol reflect similar or identical terms in the Dublin Convention. The Court when construing Eurodac will, in effect, also be interpreting Dublin when the same language is used. The Court's rulings on Eurodac are therefore likely to be highly persuasive when Dublin provisions are invoked in national courts. If the Government opts to stay out of Eurodac, the Court's rulings will have no binding effect in the UK[30]. But the UK will remain bound by its obligations under the Dublin Convention. The Government should not overlook the fact that, in practice, UK courts would tend, in the interests of coherence and consistency, to adopt the Court of Justice's interpretation of identical Eurodac provisions.


97.  The allocation of responsibility for an asylum application has important administrative and political implications. It also has important personal consequences for those affected by the procedures. For Dublin to work, Member States must have confidence in the quality and accuracy of the information they are exchanging. Asylum applicants should not be left in suspense as their claims are referred successively from one Member State to another. Nor should they be able to frustrate or abuse the system. But the Committee has concluded that the Dublin Convention provides a shaky edifice on which to construct a system for taking and exchanging fingerprint data in the circumstances envisaged in the Protocol.

98.  The categories of illegal immigrants whose fingerprints may be relevant to the application of the Dublin Convention are not clearly defined. Clarity is essential not only to develop a consistent practice in the taking of fingerprints and use of the Eurodac database in the different Member States but also to provide the legal certainty required under both international and Community law. The Protocol is indiscriminate in its effects and is not, so far as we can see, based on a demonstrable need to assist in the working of the Dublin Convention. It will encompass some illegal immigrants who have not applied for asylum and who do not intend to do so. Others may have valid papers to establish their identity without the need for fingerprinting. The Protocol seems, in some respects, to go beyond the express terms and purpose of the Dublin Convention. Above all, compulsory fingerprinting is a significant interference with the individual right to respect for private life and requires a lawful justification.

99.  The Committee is concerned that a sufficient appraisal of the compatibility of the Protocol with the ECHR has not been undertaken. The Government will need to consider most carefully its own position in this respect, both as regards its participation in Eurodac and the implementation of the Protocol in domestic law.


100.  The Committee considers that the draft Protocol concerning the extension of the Eurodac system for the comparison of fingerprints of applicants for asylum to certain categories of illegal immigrant raises important questions to which the attention of the House should be drawn, and makes this report to the House for information.

23   Article 3(6) of the Dublin Convention. Back

24   Described in footnote 20 above.  Back

25   Article 46(d) of the Treaty on European Union. Back

26   The purpose of the Dublin Convention, as stated in its Preamble, is "to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States and to ensure that applicants for asylum are not referred successively from one Member State to another without any of these States acknowledging itself to be competent to examine the application for asylum". Back

27   There is one exception. The Protocol on the Position of Denmark agreed at Amsterdam precludes Denmark from participating in any Community measures based on Title IV of the EC Treaty. Denmark may decide to implement in its domestic law Title IV measures building on the Schengen acquis. If it does so, this will create an obligation under international law between Denmark and the other Member States.  Back

28   Article 3(2) of 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. Back

29   Often referred to as the "Article 18" Committee as its composition and procedures are set out in Article 18 of the Dublin Convention. Back

30   Article 2 of the Protocol on the Position of the United Kingdom and Ireland, agreed at Amsterdam, provides that no decision of the Court of Justice interpreting any provision of a measure based on Title IV of the EC Treaty (asylum, immigration and free movement) shall be binding upon or applicable in the UK or Ireland. Back

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