THE ESTABLISHMENT OF "EURODAC"
(a)
(20374)
9988/99
COM 260
(b)
(20680)
13052/99
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Draft Council Regulation (EC) concerning the establishment of "Eurodac" for the comparison of fingerprints of applicants for asylum and certain other aliens.
Revised draft Council Regulation (EC) concerning the establishment of "Eurodac" for the comparison of fingerprints of applicants for asylum and certain other aliens.
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| Legal base: |
Article 63(1)(a) EC; consultation; unanimity
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| Documents originated:
| (a) 26 May 1999
(b) —
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| Forwarded to the Council:
| (a) 9 July 1999
(b) 16 November 1999
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| Deposited in Parliament:
| (a) 5 August 1999
(b) 23 November 1999
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| Department: |
Home Office |
| Basis of consideration:
| EMs of 29 July and 29 November; Minister's letter of 7 October 1999; Minister's letter to Lord Tordoff of 29 November 1999
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| Previous Committee Report:
| None; but see (19796) 12943/98:
HC 34-ix (1998-99), paragraph 8 (10 February 1999); and HC 34-xiv (1998-99), paragraph 2 (24 March 1999)
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| To be discussed in Council:
| No date set |
| Committee's assessment:
| Politically important |
| Committee's decision:
| (a) Cleared
(b) Not cleared; further information requested
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Background
5.1 This draft Regulation is a measure designed
to make the application of the Dublin Convention more effective.
That Convention, which came into force on 1 September 1997, set
out criteria for determining which State was responsible for examining
asylum applications lodged in any one of the Member States. Establishing
the identity of applicants — which is the purpose of the
Eurodac database — is a key step in the Dublin Convention
process.
5.2 The proposal incorporates the substance
of a draft Convention (agreed in principle by EU Ministers in
December 1998) and a draft Protocol (agreed in principle in March
1999). Both texts were frozen pending the entry into force of
the Treaty of Amsterdam, since they then moved from the Third
to the First Pillar. They have now been repackaged as a draft
Community instrument (a Regulation).
5.3 The Council is required to consult the
European Parliament on measures relating to the area covered by
this Regulation. The European Parliament published its report
on the proposals on 18 November 1999. It approved an amended version
of the Regulation, calling for the age for fingerprinting to be
raised from 14 to 18, and considering that data should be deleted
as soon as the individual concerned is given refugee status, a
subsidiary form of protection or another legal status.
5.4 In accordance with the Protocol on the
position of the UK and Ireland annexed to the EU and EC Treaties,
the UK is subject to the measure only if it exercises its right
to opt in. The Secretary of State at the Home Department (The
Rt. Hon. Jack Straw) wrote on 7 October 1999 to inform us that
the Government had notified the President of the Council of its
intention to participate in the adoption of the measure.
5.5 The draft Convention was negotiated
before the change in our terms of reference. However, we considered
the draft Protocol on several occasions — but did not clear
it. The freezing and repackaging of the texts allows us to revisit
the substance of the draft Protocol, and to consider for the first
time the draft Convention.
5.6 Document (a) has now been superseded
by document (b) on which a full and detailed EM has been submitted.
It is this latter document, therefore, with which our Report is
concerned.
The document
5.7 The aim of the document is to establish
a computerised central database to allow comparison of the fingerprints
of asylum seekers (as provided for in the draft Convention) and
of certain categories of illegal immigrants (as provided for in
the draft Protocol) across the European Union.
5.8 The differences between a Third Pillar
Convention and Protocol and a Community Regulation, together with
the opt-in of the UK and Ireland, have led to a number of changes
being made to the "frozen" texts. Briefly, the most
significant are as follows:
- Jurisdiction of the Court of Justice
The Regulation, unlike the
draft Convention, does not need to confer jurisdiction on the
Court of Justice.
Amendments have been made
to the frozen texts to ensure that the draft Regulation is consistent
with the data protection régime established under the EC
Treaty (Directive 95/46/EC). As a result, Article 6 of the frozen
Protocol text (which restricted the right of some of those apprehended
in connection with the irregular crossing of an external EU border
to information about the data held on them) has been omitted from
the draft Regulation as incompatible with the Directive.
The scope of the Regulation
has been limited so that the provisions are not applicable to
any territory to which the Dublin Convention does not apply.
In the most recent text of
the draft Regulation, the comitology procedure is based on Council
Decision 99/468/EC. It is a regulatory procedure under which the
power to adopt implementing provisions is delegated to the Commission,
with the assistance of a regulatory committee.
- Monitoring and evaluation
A new Article has been added
to the draft Regulation on monitoring and evaluation.
The Government's view
5.9 In her EM of 29 November, the Minister
of State at the Home Office (Mrs Barbara Roche) makes the UK's
general approach to this measure evident, saying: "In respect
of Eurodac, the Government believes that there are clear advantages
in participating in the measure which led to its recent decision
to opt in to the draft Regulation."
5.10 The Minister also expands and comments
on a number of the significant issues. In relation to the territorial
scope of the measure, she says:
"Following the United
Kingdom's opt-in decision, the Commission has produced a revised
text of the article dealing with territorial scope (Article 25
of the draft Regulation). The earlier draft in the frozen text
did not take account of the position of the United Kingdom as
no decision on opt-in had been taken at that time. Although the
United Kingdom accepted the territorial scope of the draft Eurodac
Convention, this was as a Third Pillar measure where its application
to Gibraltar was subject to decision case by case. Following the
entry into force of the Treaty of Amsterdam, the position has
now changed. As a First Pillar measure, the normal rules on territorial
application automatically apply to Eurodac (ie Article 299(4)
TEC) and therefore its application to Gibraltar. The purpose of
Eurodac is to make the Dublin Convention operate more effectively
but Gibraltar is not currently a signatory to the Dublin Convention.
Gibraltar has however expressed an interest in participating in
both Eurodac and the Dublin Convention. It is logical to limit
the scope of Eurodac to that of the Dublin Convention provided
this does not rule out future participation in Eurodac by Gibraltar.
The Commission has now circulated a fresh recital
in the latest version of the draft Regulation which reflects the
position following the opt-ins by the United Kingdom and by Ireland.
The United Kingdom is in a strong position to play a full part
in negotiations on the draft Regulation. Unanimity by all Member
States is required before the draft Regulation can be adopted.
"As to Danish participation, the Regulation
does not build on the Schengen acquis and therefore Article
5 of the Danish Protocol does not facilitate Denmark's participation
on an international law basis. If Denmark is otherwise not able
to participate, it would continue to be bound by its obligations
under the Dublin Convention, as it is now, but would not play
any part in Eurodac. Whilst, given their respective purposes,
it would be difficult to envisage participation in Eurodac, but
not in Dublin, the Government cannot see that any difficulty arises
where a Member State participates in Dublin but not in Eurodac.
Either way, the Government's view is that the recitals will require
adjustment in the light of Denmark's eventual position."
5.11 On comitology the Minister
comments:
"The application of
[the proposed] procedure here is still under consideration. The
view of the Commission is that any derogation from this comitology
procedure has to be for specific and substantiated reasons, and
consultation with the European Parliament would have to take place
before there could be agreement to any amendment."
5.12 The Minister also discusses the impact
of the draft measure on United Kingdom law. She explains:
"The Immigration and
Asylum Act 1999 (the 1999 Act) provides for the fingerprinting
of asylum applicants and various other categories of immigrants.
Implementing the draft Regulation (to the extent appropriate)
would require some amendments to the 1999 Act to make fingerprinting
obligatory for those who are 14 and over where it is covered by
Eurodac (in the 1999 Act, there is only a power to fingerprint)
and to amend some provisions regarding the retention of fingerprints.
For example, while both Eurodac and the 1999 Act provide for a
long-stop retention time for the fingerprints of asylum seekers
of 10 years, the 1999 Act provides that fingerprints of asylum
seekers are to be destroyed if they are granted indefinite leave
to remain. Asylum seekers are currently granted indefinite leave
to remain if they are granted refugee status. Eurodac provides
that, on grant of refugee status, the fingerprints of asylum seekers
are to be blocked for five years and then a decision taken on
whether to continue to store the fingerprints of refugees or to
destroy them. Implementation of the draft Regulation would over-ride
the Act in relation to the Eurodac categories."
5.13 In her letter of 29 November to Lord
Tordoff,[29]
the Minister comments on two issues relating to Article 8. (Formerly
part of the draft Protocol, this Article deals with the fingerprinting
of aliens apprehended in connection with the irregular crossing
of an external border.) She deals first with the issue (raised
by us as well as by our sister Committee in the House of Lords)
of incorporating the Minutes Statement, drafted to clarify the
circumstances in which fingerprints must be taken, into the Article
itself. She says:
"In the Government's
response to the [House of Lords] Sub-Committee's report on the
draft Protocol, we stated that the Government understood the Committee's
concern that important facets of the agreement should be reflected
in the text rather than in a Council Minutes Statement. At that
time, the Government was supporting a Commission proposal that
the substance of the Minutes Statement be incorporated into the
text, believing it would further strengthen the text in terms
of precision and legal certainty. Since then, the Government has
continued to argue for this incorporation at Working Group level
but has not received the necessary degree of support from other
Member States."
5.14 The second point concerns proportionality
and the European Convention on Human Rights (ECHR). The Minister
states:
"It was agreed in the
Government's response [to the House of Lords Sub-Committee's report]
that fingerprinting illegal entrants who are detained upon crossing
an external EU border could be considered to be disproportionate.
The Government has continued to press for an appropriate form
of words in Article 8 of the draft Regulation to cover this, and
it has very recently been agreed in principle to include a specific
reference to the requirements of the ECHR at this point in the
text."
Conclusion
5.15 The incorporation of the draft Eurodac
Convention and the draft Protocol into one Community instrument
is welcome. It has certainly resulted in a more coherent document.
Moreover, the measure is now subject to the data protection régime
established under the EC Treaty (Directive 95/46/EC) and, as a
result, Article 6 of the draft Protocol, about which we were previously
concerned, has been dropped.
5.16 However, there are three areas on
which we still seek clarification:
(i) on what grounds
are other Member States opposing the Government's argument for
the incorporation of the Minutes Statement into the text of Article
8? Have there been difficulties over drafting? We seek the Minister's
assurance that the Government is still continuing to press for
this incorporation, in the interests of legal certainty.
(ii) is the Government content for implementation
of the Regulation to override its Immigration and Asylum Act 1999
in relation to the destruction or blocking of the fingerprints
of those asylum seekers granted refugee status? If so, on what
grounds?
(iii) Although the Minister tells us
that the Government cannot see that any difficulty arises where
a Member State participates in Dublin but not in Eurodac, we wonder
about the practical consequences of Denmark's exclusion from the
obligation to fingerprint. Will those intent on abusing the asylum
system seek to enter the EU via Denmark? Could Denmark adopt similar
national legislation in parallel?
There are also four areas on which we seek further
information about progress:
(iv) has the
Council made any formal response to the EP's call for the age
for fingerprinting to be raised from 14 to 18?
(v) we understand that, at the JHA Council,
agreement was reached on an amended comitology procedure, but
that, as a result, the EP is to be reconsulted. What is the significant
point at issue here, and how and when does the Minister expect
it to be resolved?
(vi) has the specific reference to the
requirements of the ECHR been included yet in Article 8? (The
Minister tells us that the inclusion has been agreed in principle.)
(vii) we understand that, at the JHA Council,
Spain placed a reserve on this text with regard to its territorial
scope of application. We ask the Minister to keep us informed
of progress on this matter.
5.17 We are content to clear document
(a) — (20374) — but will leave document (b) —
(20680) — uncleared, pending the Minister's response.
29 Chairman of the House of Lords European Union Committee. Back
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