Letter from Joyce Quin MP, Minister of
State at the Home Office to Lord Tordoff, Chairman of the Select
Committee on the European Communities
Thank you for your letter of 21 May. I was particularly
grateful for the clearance which the Committee was able to give
to the Convention before the Justice and Home Affairs Council
on 28-29 May.
As you will already be aware it did not prove
possible to reach political agreement on all the outstanding points
on the draft Eurodac Convention at the Council. However Ministers
did agree that the Convention should be extended to certain illegal
migrants by way of a Protocol; and that the terms of the Protocol
should be agreed by the end of this year. As soon as a draft Protocol
is available I will, of course, make it available to the Committee.
In the meantime you asked for my reactions to
the points made by Justice and ILPA concerning the extension of
the Convention to illegal immigrants.
The first point I would make is that there is,
of course, no intention to extend the draft Eurodac Convention
to include a requirement to fingerprint all illegal immigrants
or everyone seeking admission at a border. The extension of the
Convention which the Council proposes to make by way of a Protocol
is to be linked very closely to the provisions of the Dublin Convention.
Most significantly Article 6 of the Dublin Convention provides
that "when it can be proved that an applicant for asylum
has irregularly crossed the border into a Member State by land,
sea or air, having come from a non-Member State of the European
Communities, the Member State thus entered shall be responsible
for examining the application for asylum." Article 10(1)(c)
and 10(1)(e) of the Dublin Convention could also be of potential
relevance. They deal with circumstances where there is an obligation
to take back a person who is irregularly, or illegally, in one
Member State but who has or has had an asylum application under
consideration in another Member State.
I hope that this makes clear that in extending
Eurodac to some illegal immigrants there is no question of confusing
asylum seekers with migrants as ILPA suggest might be the case.
The extension would be directly linked to the provisions of the
Dublin Convention; and this recognises that some illegal migrants
subsequently claim asylum other than in the country via which
they first entered the EU.
Both ILPA and Justice note that there is no
agreed concept of an illegal immigrant. That is certainly the
case, despite the fact that the term is used as a basis for discussion.
However, as I have explained above the intention in extending
the Eurodac Convention would simply be to provide support for
relevant provisons in the Dublin Convention. In drafting a protocol
one of the key considerations will clearly be the definition of
the relevant categories. Any definition will need to be specific
to the Dublin provisions which it is intended to support. On that
basis I do not believe that the work undertaken in the context
of Eurodac will constrain work being undertaken for more general
Justice were concerned about the need to safeguard
the position of a person who seeks asylum after having originally
been identified as an illegal. As in the Dublin Convention Member
States undertake to examine the application of any alien who applies
at the border or in their territory to any one of them for asylum
I do not think there is any reason to fear that extending Eurodac
to some illegals will prejudice their position as potential asylum
It may also be helpful if I briefly address
the other main points which were made by ILPA and Justice in their
letters. ILPA questioned the means which we propose to ensure
that individuals have the means to enforce the Convention's rights
in United Kingdom law. The simple answer is that where Eurodac
requires that an indivdual be given legal rights which are judicable
before our courts we would intend to give effect to those rights
in legislation in so far as this is necessary. Our analysis of
what may be required is, however, still at an early stage.
The postion in respect of the ECJ jurisidiction
on preliminary rulings remains unclear. As I had previously explained
we had decided that we could accept that there should be an optional
preliminary rulings jurisdiction for the ECJ in Eurodac. The United
Kingdom did not intend to opt-in to such a jurisdiction. However
following recent advice from the Council Legal Service further
consideration is being given to the question of the appropriate
jurisdiction for the ECJ. No final view has yet been reached.
I will, of course, let you know if there is any change to the
United Kingdom negotiating position on this question.
I am copying this letter to the Chairman of
the European Legislation Committee in the House of Commons and
to the Chairman of the Commons Home Affairs Committee.
9 July 1998