5 ACCESS TO EUROPEAN DATABASES ON ASYLUM,
IMMIGRATION AND VISAS
(a)
(27064)
15122/05
COM(05) 597
(b)
(27065)
15142/05
COM(05) 600
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Commission Communication on improved effectiveness, enhanced
interoperability and synergies among European databases in the area of
Justice and Home Affairs
Draft Decision on access for consultation of the Visa Information System by
the authorities of Member States responsible for internal security and by
Europol for the purposes of the prevention, detection and investigation of
terrorist offences and other serious criminal offences
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| Legal base | (a) —
(b)Articles 30 (1)(b) and 34(2)(c) EU; consultation; unanimity
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| Document originated | (a) 24 November 2005
(b) 24 November 2005
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| Deposited in Parliament |
(both) 5 December 2005 |
| Department | Home Office
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| Basis of consideration |
(a) EM of 3 January 2006
(b) EM of 19 December 2005
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| Previous Committee Report |
None |
| To be discussed in Council
| No date set |
| Committee's assessment | Politically important
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| Committee's decision | (Both) For debate in European Standing Committee
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Background
5.1 In November 2004, the European Council approved a five-year
programme for EU action on justice and home affairs (the Hague
Programme). Among other things, the Programme calls on the Council
to consider how to maximise the effectiveness and interoperability
of EURODAC, the Schengen Information System and the Visa Information
System.[14]
5.2 EURODAC is a computerised database
of the fingerprints of asylum seekers, illegal residents and people
caught illegally crossing a Member State's borders. It was conceived
mainly to help identify which Member State is responsible for
determining an asylum application in accordance with the Dublin
II Convention. It has been fully operational since 2003. The UK
participates in the system.
5.3 Member States have a duty to take the fingerprints
and transmit them promptly to the EURODAC Central Unit. The Commission
is responsible for the Central Unit, which stores and processes
the fingerprints transmitted by Member States.
5.4 For example, when a third-country national applies
to Member State X for asylum, the Member State takes the applicant's
fingerprints and sends them to the Central Unit. The Unit searches
the database for a match with the applicant's fingerprints and
tells Member State X what, if anything, has been found (for instance,
that the person had made a prior application to another Member
State).
5.5 The Schengen Information System:
the current System (SIS I) dates from 1995. It contains information
about people wanted for arrest or extradition, third-country nationals
to be denied entry, missing persons, and stolen vehicles, firearms
and other property. It comprises a central database and national
databases. The system is capable of serving a maximum of 18 States.
The UK has access to all but the immigration data on SIS I.
5.6 Since 2001, the Commission has been developing
the second generation of the System (SIS II). It will enable up
to 30 States to participate in the System and will include biometric
data in the information it holds. It is due to become operational
in 2007.
5.7 The Visa Information System (VIS)
will hold data (including biometric data) on all the applications
to Member States for short-term visas. It will comprise a central
database run by the Commission, and interfaces run by each Member
State. It will become fully operational in 2007.
5.8 The draft Regulation to establish VIS proposes
that access to the System should be restricted to the asylum,
immigration and visa authorities of participating Member States.
[15]
5.9 The proposed Regulation would not apply to the
UK because it is not party to the relevant Schengen acquis,[16]
but there will be a separate agreement to enable exchanges of
visa data with the UK so as to facilitate the return of illegal
immigrants and the application of the Dublin II Regulation on
the determination of the Member State responsible for dealing
with an asylum application.
5.10 The objectives of VIS include countering fraudulent
visa applications and visas; facilitating checks that the holder
and carrier of a visa are the same person; assisting in the identification
and return of illegal immigrants; and helping to prevent "visa
shopping".
5.11 In March 2005, the Justice and Home Affairs
Council invited the Commission to make a proposal to give Member
States' law enforcement authorities access to VIS for the purposes
of the prevention, detection and investigation of terrorism and
other serious crimes.
5.12 Title VI of the Treaty on European Union makes
provision for cooperation between Member States in the field of
police and judicial cooperation in criminal matters. Article 30(1)(b)
provides that police cooperation includes the collection, storage,
processing, analysis and exchange of information. Article 34(2)(c)
authorises the Council to adopt Decisions for any purpose (other
than the approximation of the laws of Member States) consistent
with the objectives of Title VI.
Document (a)
5.13 The Commission has produced this Communication
in response to the Hague Programme. Its purpose is to suggest
how EURODAC, SIS and VIS might provide more effective support
for the free movement of people within the European Community
and for the prevention, detection and investigation of terrorism
and serious crime.
5.14 The Communication includes sections on shortcomings
in EURODAC, SIS and VIS and possible developments of the Systems.
In summary, the shortcomings are said to include:
- EURODAC, VIS and to the immigration
data on SIS II are not (or will not be) accessible to Member States'
law enforcement authorities; and
- neither VIS nor SIS II can identify people who
remain illegally in the EU because, for example, their visas have
expired.
5.15 The section on possible developments of the
Systems includes discussion of:
- giving law enforcement authorities
access to EURODAC, VIS and SIS II;
- creating a European automated fingerprint identification
system, comprising all the fingerprint data currently held in
national criminal databases;
- making it quicker and easier for bona fide frequent
travellers to cross borders; and
- making a single organisation responsible for
the day-to-day management of the three databases.
5.16 The Communication has a concluding section on
the compatibility of such developments with human rights and data
protection. In particular, the Commission notes that "neither
claiming asylum nor a visa application indicates in any way that
a hitherto innocent person will commit a criminal or terrorist
act".[17] In the
Commission's view, therefore, the principle of proportionality
requires that EURODAC, SIS II and VIS should be accessible to
law enforcement authorities only for the purpose of preventing
and investigating serious crimes or terrorism.
5.17 The Commission says that :
"In identifying possible scenarios, including
those that may be far-reaching in ambition and impact, this Communication
does not prejudge the results of an in-depth debate by passing
judgement on if, when and under which conditions these scenarios
should be implemented. Also, given its political and strategic
approach, it does not address or assess, in detail, the legal,
technical, organisational or societal impact of possible solutions.
Prior to any legislative action, in-depth impact assessments will
need to be carried out, especially with regard to proportionality."[18]
The Government's view on document (a)
5.18 The Minister of State for Immigration, Citizenship
and Nationality at the Home Office (Mr Tony McNulty) tells us
that:
"The Government welcomes this Communication
as a helpful initial assessment of the efficiency of existing
databases and their potential future uses, and will engage positively
in the debate. The Government considers it essential that EU databases
operate effectively and are able to support policies related to
free movement of persons as well as efforts to combat terrorism
and serious crime. The Government also recognises that access
to data should be balanced by strict compliance with the rules
governing the protection of personal data, and the protection
of fundamental rights … ."
The Minister adds that the Government welcomes the
Commission's recognition that in-depth assessments must be made
before there is any legislative action on the Communication.
Document (b)
5.19 The Commission has proposed this draft Decision
in response to the request the Council made in March 2005. It
lays down the conditions under which Europol and Member States'
"authorities responsible for internal security" could
have access to VIS. Internal security authorities are defined
as the authorities responsible for the prevention, detection and
investigation of terrorist offences and other serious criminal
offences.
5.20 Each participating Member State and Europol
would be required to designate a central access point. Only the
central point could consult VIS. Consultation would be permissible
only for the purposes of the prevention, detection and investigation
of terrorist offences or other serious criminal offences and only
in relation to a specific offence, risk or suspect.
5.21 Negotiations are still in progress on the draft
Regulation to establish VIS (see paragraph 5.8 above). Article
6 of document (b) proposes that Member States to which the VIS
Regulation would not apply (such as the UK) should be able to
consult VIS through a Member State to whom the Regulation does
apply.
5.22 The processing of VIS information pursuant to
this Decision would be subject to the provisions of the proposed
Framework Decision on the protection of personal data processed
in the framework of police and judicial cooperation in criminal
matters.[19]
The Government's view on document (b)
5.23 The Minister tells us that the Government welcomes
the draft Decision. He comments that the proposed requirement
for Member States to establish central contact points for consulting
VIS would ensure that the number of people with direct access
to VIS was minimised. In particular, he welcomes the proposed
Article on the protection of personal data. He adds, however,
that:
"The Commission proposal provides that the
UK and Ireland access the VIS indirectly, by making requests to
other Member States. The Government is currently considering whether
it can concur with the Commission's view that the UK authorities
responsible for internal security should not have direct access
to VIS for the purposes of this Decision."
Conclusion
5.24 On the one hand, the EURODAC, SIS and VIS
databases contain personal information about individuals that
might be useful for the prevention, detection and investigation
of terrorism and serious crime. For example, if the police found
a fingerprint on a bomb, VIS might hold a matching print and valuable
information about the person whose print had been found. We can
understand, therefore, why law enforcement authorities might see
benefit in having access to all three databases.
5.25 On the other hand, EURODAC and VIS were
not established to assist the prevention, detection and investigation
of terrorism and serious crime. It is arguable, therefore, that
it would be unacceptable in principle to use the databases for
purposes for which they were not intended by granting law enforcement
authorities access to them.
5.26 It appears to us, therefore, that documents
(a) and (b) involve important and conflicting interests —
those of security and those of personal privacy — and that
views may legitimately differ about where to strike the balance
between them. Accordingly, we have decided that the question whether
law enforcement authorities should have access to EURODAC, VIS
and SIS II, as proposed in these documents, requires debate in
European Standing Committee. We recommend that the debate be held
shortly so that the Government is aware of the views of the House
before the negotiations on the Communication begin.
14 European Council 4-5 November 2005, Presidency Conclusions,
Annex I, paragraph 1.7.2. Back
15
See (26241) 5093/05: HC 38-v (2004-05), para 13 (26 January 2005). Back
16
The main aim of the Schengen Convention of 1990 was to abolish
checks at the borders between the original signatories (France,
Germany and the Benelux countries) while strengthening control
of the external borders of the Schengen area. Subsequently, a
large number of "flanking" measures were adopted on,
for example, police cooperation in cross-border surveillance and
a common format for visas. The collective name for the Convention
and subsequent agreements is "the Schengen acquis".
The UK and Ireland are not part of the Schengen area but participate
in some of the provisions of the acquis, such as those
on police and judicial cooperation and on narcotic drugs. Back
17
Commission Communication, page 10. Back
18
Commission Communication, pages 2 and 3. Back
19
See (26911) 13019/05: HC 34-x (2005-06), para 5 (16 November 2005). Back
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