Letter from JUSTICE to Lord Tordoff, Chairman
of the Select Committee on the European Communities
Thank you for your letter of 2 April concerning
the draft EURODAC Convention and for the opportunity of making
further comments, particularly to the matters raised in the Minister's
letter of 18 March.
We would like first to focus on those matters
which arise from the Convention as it presently standsthat
is, as an instrument to assist the effective application of the
Dublin Convention in relation to asylum applications. We will
then deal with the proposal to extend its remit (by way of a protocol)
to cover the fingerprints of illegal immigrants. Our comments
are based on the draft of 27 February, no. 6191/1/98 REV 1.
We have previously questioned the justification
for the provision which allows fingerprint data of those who have
been granted refugee status to be retained. We appreciate, as
pointed out by the Minister, that the purpose is to facilitate
a statistical assessment of the number of applications for asylum
in one member state being pursued by those who have already been
granted refugee status in another. Although we are not in a position
to comment on the necessity for such research, we nevertheless
are concerned to ensure that there is sufficient in-built protection
for the individuals concerned.
First, we believe that the Convention's "sunset-like"
provision in Article 6b(2) should incorporate a presumption that
the data relating to such persons must be erased after the five
year period, unless the statistics compiled by the Central Unit
show that there is a "pressing need" (as defined under
Article 8 of the ECHR) to continue to hold the data.
This would not only ensure that the justification
for continuing to hold such data is subject to strict scrutiny
but would also acknowledge the reality of changes that are likely
to take place under the Amsterdam Treaty. For example, under the
terms of this Treaty the EU is bound to adopt first pillar instruments
improving the status of third country nationals resident in member
states, particularly in relation to free movement and residency
rights. This will largely remove the reasons why some refugees
may still wish to seek refugee status in another member state.
Second, we believe that the safeguards in relation
to the blocking measures which are contained in the Council minutes
should appear on the face of the Convention. This describes the
operation of an important safeguarding measure and, in our view,
should therefore not be left to an instrument whose legal standing
is in doubt. As the Council Legal Service has commented in the
past, statements which add to the enacting terms of legislation
should not be made in this way as the Court of Justice is not
bound by them and national authorities and courts cannot lawfully
pay heed to them.
As currently drafted, the Convention provides
that fingerprints should be taken of all asylum applicants aged
14 and over, while the Netherlands propose to lower this limit
to twelve years. While
we question the need for taking the fingerprints of all child
asylum seekers, and we note that in the UK children under 16 are
not normally fingerprinted,
where this is done appropriate safeguards must be in place. Under
the Asylum and Immigration Appeals Act 1993, this means that fingerprints
may not be taken of a person under the age of 16, unless in the
presence of one of the child's parents or guardians or another
adult (not being an immigration officer, prison officer, or constable).
We believe that the Convention should be explicit in requiring
such safeguards to be in place.
We welcome the changes made to Article 11 providing
clear procedural requirements for the correction or erasure of
inaccurate data. However, we note from the Minister's letter that
these have yet to be agreed and that a scrutiny reserve has been
entered by each member state. As this is the one Article setting
out the data subject's rights it is important that the Committee
has up-to-date information before it completes its scrutiny.
From Article 11(2) it is clear that an applicant
has access rights to the information held in accordance with the
domestic law of the member state concerned. Although the second
sentence in this paragraph implies that access requests (which
follow the appropriate procedures) will be complied with, it is
not entirely clear whether this means that there are no substantive
grounds on which this information can be withheld. In terms of
UK domestic data protection law, it is hard to see how the exceptions
to subject accessfor example, those relating to policing
and national securitywould be relevant in the absence of
the Central Unit holding anything other than fingerprint data.
However, we believe that this point should be clarified with the
Government. In any event, it would be prefereable that Article
11(2) is more explicit on this point.
As stated in our previous letter, we welcome
the Government's stance in accepting the ECJ's jurisdiction over
preliminary rulings in relation to this Convention. We are nevertheless
disappointed that it cannot support a provision which binds all
We appreciate that as other member states have
consistently accepted the need for ECJ jurisdiction over third
pillar conventions, this is unlikely to make much difference in
practice. It would however show an acceptance by the UK of the
principled arguments for a consistent approach to this matter.
Moreover, the Government's stance fails to acknowledge the changes
that will necessarily occur in this area when the Amsterdam Treaty
is in force.
As the Minister confirms, the proposal to extend
the scope of EURODAC to all illegal immigrants raises some fundamental
and difficult issues. Although no precise details are given, we
understand that a report is being prepared which looks at the
implications of this proposal in more depth. We also understand
that, in the event of political agreement being reached, the proposal
will be implemented by a separate protocol attached to the Convention.
JUSTICE believes that it is important that the
Committee is given an indication of the Government's stance on
this proposalat least in principlebefore the JHA
meeting in May. This would allow it to make some general observations
if it felt this to be appropriate. However, it would seem clear
that if the matter is pursued further, any draft protocol will
have to be submitted to both the European Parliament and to national
parliaments for detailed scrutiny.
Therefore, at this stage, we wish only to draw
attention to some of the more obvious issues arising from the
proposal. First, in order to comply with the requirements of Article
8 ECHR, on privacy rights, it will be necessary to show that the
fingerprinting of all illegal immigrants is justified in the circumstances.
Second, there is the problem of defining what is meant by an "illegal
immigrant". This is notoriously difficult and likely to have
a different meaning in each member state. Third, it would be important
to safeguard the position of a person who seeks asylum after having
been deemed an illegal immigrant some time previously.
There are also important legal considerations
on whether it is permissable to add a Protocol which alters the
purpose of the enabling Convention. We note that the purpose of
the EURODAC Convention is to assist in the determination of the
state responsible for examining an application for asylum. Therefore,
as a subsidiary instrument, a Protocol to the Convention on fingerprinting
all illegal immigrants may only allow fingerprints to be used
for this purpose; it could not allow for their use in the context
of criminal investigations or for immigrant control in general.
We hope that these comments are of some assistance.
We would welcome the opportunity to comment further in the light
of any major developments, particularly in relation to the proposal
to extend the Convention's remit to illegal immigrants.
1 May 1998
42 Study of Council practice regarding statements
for the minutes in connection with openness, Council doc.
As stated in a letter of 4 March 1998 by the Dutch minister of
Justice to the Netherlands Parliament (TK 1997-98, 23 490, no
Immigration, nationality and refugee law handbook, Joint
Council for the Welfare of Immigrants (1997) p.93. Back