16 EURODAC
| (33956)
10638/12
COM(12) 254
| Draft Regulation of the European Parliament and of the Council on the establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EU) No [.../...] (establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person) and to request comparisons with EURODAC data by Member States' law enforcement authorities and Europol for law enforcement purposes and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (Recast version)
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| Legal base | Articles 78(2)(e), 87(2)(a) and 88(2)(a) TFEU; QMV; co-decision
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| Department | Home Office
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| Basis of consideration | Minister's letter of 12 December 2012
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| Previous Committee Reports | HC 86-xi (2012-13), chapter 12 (5 September 2012);
HC 86-vii (2012-13), chapter 3 (4 July 2012)
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| Discussion in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Clear
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Background and previous scrutiny
16.1 Our earlier Reports describe the background to, and content
of, the draft Regulation, which is the Commission's fourth attempt
to amend the EURODAC system. The EURODAC database contains the
fingerprints of third country nationals or stateless people aged
at least 14 years old who have applied for asylum, entered illegally,
or been found illegally present within an EU Member State. It
has been operational since 2003 and is generally regarded as an
essential part of the Dublin system for determining which Member
State is responsible for examining a claim for asylum.
16.2 EURODAC is intended to reduce the risk of multiple
claims for asylum being lodged in different Member States or of
asylum seekers being shuttled between Member States, without any
one taking responsibility for the asylum application. Each set
of fingerprint data may be compared with fingerprint data already
stored in EURODAC to see if an asylum seeker has previously lodged
an asylum claim in one or more other Member States or has entered
EU territory unlawfully. The UK participates fully in EURODAC
and the wider Dublin system of which it forms part.
16.3 Many of the changes proposed to the EURODAC
are uncontroversial. They would, for example, extend the scope
of EURODAC to cover claims for subsidiary protection as well as
asylum, introduce a 72-hour time limit for the transmission of
fingerprint data, and include additional safeguards to ensure
the safety and accuracy of data. Far more contentious is the
proposal to include new provisions to enable designated national
law enforcement authorities and Europol to seek access to EURODAC
in order to compare fingerprint data for the purpose of preventing,
detecting or investigating a terrorist or other serious criminal
offence. We thought that this was symptomatic of a broader trend
to allow law enforcement access to EU databases which were not
originally designed for that purpose and questioned whether the
Commission had adduced sufficient evidence to justify such
a significant extension of the purpose of the EURODAC database.
16.4 The draft Regulation is subject to the UK's
Title V opt-in and we recommended a debate on the Government's
opt-in decision which took place in European Committee B on 10
September 2012. The Minister for Immigration (Mr Mark Harper)
wrote to inform us on 18 October that the Government had decided
to opt into the draft Regulation,
"in order to secure continued access to EURODAC
for immigration purposes, as it plays an important role in combating
abuse of the UK's asylum system."
16.5 He indicated that a majority of Member States
supported the inclusion of provisions on law enforcement access
to EURODAC data, and added:
"We do not object in principle to law enforcement
agencies having access to EURODAC, so long as access takes place
only when checks on criminal databases have been unsuccessful.
"[...]
"We are conscious of the concerns about criminalising
asylum seekers, as is the European Parliament and as was the Commission,
which has twice introduced proposals without law enforcement access.
However, we believe that the current compromise is acceptable
as it only allows law enforcement access after a criminal check
has been made. This is likely to make it possible to reach an
agreement with the European Parliament."
16.6 The Minister also informed us that a provision
allowing Europol to access EURODAC data for the purpose of "an
analysis of a general nature and of a strategic type" had
been excised from the latest text. As, however, Europol would
still be able to request access for the purpose of "a specific
analysis", we asked him to clarify what types of analyses
are envisaged and the precise circumstances which would justify
a request for access.[52]
The Minister's letter of 12 December 2012
16.7 The Minister (James Brokenshire) tells us that
negotiations are moving at a fast pace and that he expects an
agreement to be reached on the draft Regulation early in 2013.
16.8 Turning first to the basis on which Europol
may access EURODAC data, the Minister explains:
"[T]he Regulation would allow Europol to compare
fingerprint data with EURODAC where this is necessary in a specific
case. Systematic comparisons would not be allowed, as they would
not be for Member States. In addition, it is envisaged that all
of the following conditions would need to be met before Europol
could have access:
"a. The offence being investigated falls within
Europol's mandate;
"b. Comparison of the fingerprint data with
the data stored in Europol's own information processing systems
does not identify the person in question;
"c. The comparison is needed 'to support and
strengthen action by Member States in preventing, detecting and
investigating terrorist offences or other serious criminal offences
falling under Europol's mandate'; and
"d. There are 'reasonable grounds' to consider
that such comparison with EURODAC data will contribute to the
prevention, detection or investigation of any of the criminal
offences in question."
16.9 The Minister continues:
"The Government believes that access to EURODAC,
subject to these conditions, could provide Europol with a useful
additional tool to support Member States' investigations. One
of Europol's key functions is to analyse criminal intelligence
data provided by different Member States' law enforcement agencies
to identify potential cross matches. Not all of this information
can be transmitted freely to all Member States, as the Member
State providing it will have stipulated how it should be handled
and which partners may have access to it.
"This means that Europol will sometimes have
a broader picture of a particular investigation than individual
Member States. That picture may lead it to conclude that a comparison
with EURODAC is needed to identify a suspect or victim of an offence
when this will not be apparent to Member States. Europol has
advised that this could be particularly useful in dealing with
offences such as human trafficking, as traffickers sometimes instruct
their victims to claim asylum in order to get them into the EU.
Knowing when and how a trafficking ring's victims entered the
EU could provide important information about how the organisation
works, and enable Europol to provide information to Member States
that contributes to its disruption."
16.10 The Minister acknowledges our broader concern
about law enforcement access to EURODAC data, but adds:
"The Government considers that the need to conduct
a check under the Prüm provisions first is a sensible safeguard
and that, where there is no match, a subsequent check of EURODAC
is proportionate where a serious offence is being investigated.
We accept this means that the UK could not conduct such checks
at the current time, as we have not implemented the Prüm
provisions, and we would continue not to be able to do so if we
were to choose to leave the Prüm provisions as part of the
2014 decision. We are, however, satisfied that our law enforcement
agencies could make equivalent checks through alternative policing
channels and therefore being unable to make EURODAC checks would
have no significant operational impact."
16.11 Finally, the Minister describes the factors
which influenced the Government's decision to opt into the draft
Regulation. They are,
"the considerable benefits to the UK asylum
system of being within the measure, the neutral effect to the
UK of not currently being able to make law enforcement checks
and the fact that other Member States were likely to oppose any
attempt to remove these provisions during negotiations. On balance,
our view was, and remains, that the benefits of being within the
new EURODAC measure far outweighed any concerns and disadvantages
relating to law enforcement access."
Conclusion
16.12 We thank the Minister for his letter and
welcome the efforts made to strengthen the provisions on Europol
access to EURODAC data by aligning them more closely with those
applicable to national law enforcement authorities. Nevertheless,
as our earlier Reports have made clear, we do not accept that
there is a compelling case for extending access to EURODAC data
for law enforcement purposes. Indeed, the fact that the Minister
anticipates that there will be no significant operational impact
for UK law enforcement authorities if they are unable to satisfy
the conditions for requesting access to EURODAC data tends to
reinforce our view. We are therefore disappointed that the Government
appears to be unwilling to take a more robust stance on this issue.
As, however, negotiations are expected to conclude shortly and
there is broad support amongst Member States for the inclusion
of provisions on law enforcement access, we agree to release the
draft Regulation from scrutiny.
52 See the letter of 24 October 2012 from the Chairman
of the European Scrutiny Committee to the Minister for Immigration. Back
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