Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee
Proposal for a Regulation on the establishment of ‘Eurodac’ for the comparison of fingerprints (recast)
Articles 78(2)(e), 79(2)(c), 87(2)(a) and 88(2)(a) TFEU, ordinary legislative procedure, QMV
(37754), 8765/16, COM(16) 272
6.1The proposed Regulation on Eurodac is part of a wider package of measures to reform the EU’s asylum system so that it is better equipped to manage sustained pressures at the EU’s external borders and prevent secondary movements within the Schengen free movement area. Eurodac is an EU database containing the fingerprints of third country (non-EU) nationals who have applied for asylum within the EU or who have been apprehended in connection with an irregular border crossing. Member States are able to search the database for evidence to help determine which one is responsible for examining an asylum application under the Dublin rules. Up until now, Eurodac has operated primarily as an asylum database. Member States are unable to store and compare fingerprint data on illegally-staying third country nationals, making it difficult to track any secondary movements within the EU or identify where they first entered the EU. As a consequence, the Commission estimates that “thousands of migrants remain invisible in Europe, including thousands of unaccompanied minors”.
6.2The changes proposed by the Commission would develop Eurodac into a broader migration management tool. The expanded Eurodac database would store the facial images as well as fingerprints of third country nationals falling within any one of three categories: asylum, irregular entry to the EU, or illegal presence within a Member State. The ability to access this information would, the Commission suggests, help to establish when and where an irregular migrant entered the EU and facilitate the identification and re-documentation of individuals so that they can be returned to their countries of origin if they have no right to be in the EU. National law enforcement authorities and Europol would have access to the more extensive range of biometric data held in the expanded Eurodac database in order to prevent, detect or investigate terrorism and other serious crimes.
6.3The proposed Regulation would lower the age threshold for taking fingerprints and facial images from 14 years to six on the grounds that it will be easier to identify asylum-seeking and migrant children, especially those that are unaccompanied or have been separated from their families, and ensure that they are properly safeguarded. At the beginning of 2016, Europol estimated that more than 10,000 unaccompanied migrant children in Europe had gone missing within hours of being registered as new arrivals. The actual number is expected to be considerably higher.
6.4The UK participates fully in Eurodac and in the wider Dublin system of which it forms part. The proposed Regulation is subject to the UK’s Title V (justice and home affairs) opt-in, meaning that the UK will only be bound by the changes proposed by the Commission if the Government decides to opt in, as it has now done. The Government’s opt-in decision was debated in European Committee B on 15 November 2016. The Immigration Minister (Mr Robert Goodwill) formally notified us of the Government’s decision to opt in to the proposal in his letter of 15 December 2016. By then, the Justice and Home Affairs Council had already agreed a “partial general approach” at its meeting on 8–9 December, paving the way for negotiations with the European Parliament. Of the seven legislative proposals which make up the Commission’s asylum reform package, the Government has only opted in to the Eurodac Regulation.
6.5When we first considered the proposed Regulation last June, we asked the Minister to:
6.6We also sought confirmation that the Government had consulted the UK’s Information Commissioner on the proposed changes to Eurodac and requested a summary of his views. We made clear that we would welcome an early indication of the reactions of other Member States and progress reports on any negotiations that took place up until the scheduling of the opt-in debate.
6.7It took the Minister six months to respond. His letter, dated 15 December, provided no information on the content of the partial general approach agreed by the Council, or the position taken by the UK, but indicated that changes had been made to the Commission proposal to “make law enforcement access easier in order to support wider security and law enforcement objectives”. Whilst welcoming these changes, he added that the UK would be “pressing for further amendments to improve the scope and efficiency of law enforcement access”. The Minister also explained the rationale for opting in to the proposed Regulation:
“If we do not opt in at this stage, the lack of access to Eurodac for asylum/migration and law enforcement purposes risks the UK becoming a ‘blind spot’ in terms of data-sharing capabilities, which would harm UK interests. The new Eurodac will strengthen the UK’s ability to control immigration, by tackling illegal migration, promoting the first safe country principle and maximising returns.”
6.8We asked the Minister to:
6.9The Minister tells us that the UK intervened at the December Justice and Home Affairs Council to “support further amendments to the text to make it easier to check Eurodac for law enforcement purposes, but to note that we could not support a partial general approach due to parliamentary reserves”. The published text of the partial general approach refers only to a parliamentary scrutiny reservation entered by Slovenia. We ask the Minister to ensure that any UK parliamentary scrutiny reserve is made clear on the face of the text agreed to ensure accountability and transparency to Parliament.
6.10Although the partial general approach agreed by the Council envisages “a broader and simpler access of law enforcement authorities” to Eurodac data to “help Member States dealing with the increasingly complicated operational situations and cases involving cross-border crimes and terrorism with direct impact on the security situation in the EU”, the Minister does not consider that it goes far enough. He would like to dispense with the requirement for a prior “Prüm check” against national fingerprint and DNA databases and permit law enforcement access to Eurodac data for a wider range of criminal offences.
6.11As the recitals to the Commission proposal make clear, Eurodac was originally established to facilitate the application of the Dublin rules on the allocation of responsibility for asylum applications made within the EU. Law enforcement access, first introduced in 2013, “constitutes a change of the original purpose of Eurodac”. Strict conditions on law enforcement access to Eurodac data are intended to reflect the fact that the data concern individuals “who are not presumed to have committed a terrorist offence or other serious criminal offence”. A further easing of law enforcement access to the Eurodac database, as advocated by the Minister, would mark a significant extension of Eurodac’s original purposes, transforming it from an asylum database into a much broader law enforcement tool. We ask the Minister what analysis and evidence there is to demonstrate that such an extension is justified.
6.12The partial general approach removes a provision in the original Commission proposal specifying that “agencies or units exclusively responsible for intelligence relating to national security” shall not be included in the list of designated national authorities permitted to access Eurodac data for law enforcement purposes. We ask the Minister to explain the reasons for the deletion of this provision and to clarify:
6.13We note that the Government’s decision to opt in to the proposed Eurodac Regulation was informed by a concern that losing access to Eurodac data would place the UK at risk of becoming “a blind spot in terms of data-sharing capabilities” and would “harm UK interests”. The UK’s exit from the EU will magnify that risk. We think it reasonable to infer that an opt-in decision taken so close to the beginning of exit negotiations signals a wider intention to maintain, as far as possible, the UK’s ability to share immigration and law enforcement information with EU partners post-Brexit. The Minister concedes that this will be “a key consideration as part of the process of leaving the EU and establishing a new relationship”.
6.14In that light, we ask the Minister to explain the Government’s position on Articles 37 and 38 of the proposed Regulation (and partial general approach) which prohibit third country access to the Eurodac Central System for the purposes of comparing or transmitting biometric or other personal data of third country nationals and which set out the conditions governing the sharing of such data with third countries or private entities. Has the Government sought (or does it intend to seek) changes to these Articles during negotiations? What assessment has the Minister made of their likely impact on the UK’s ability to participate in EU information sharing mechanisms post-Brexit?
6.15The proposed Regulation remains under scrutiny. As well as responding to our questions, we ask the Minister to provide a summary of the European Parliament’s negotiating position once it has been agreed and the Government’s position on the main changes proposed. We draw this chapter to the attention of the Home Affairs Committee.
Proposal for a Regulation on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of [Regulation (EU) No. 604/2013 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], for identifying an illegally staying third country national or stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (recast): (37754), , COM(16) 272.
6.16Our earlier Reports listed at the end of this chapter provide a detailed overview of the proposed Regulation and the Government’s position.
6.17The Minister first addresses our question about the feasibility of opting into the proposed Eurodac Regulation but not opting into the proposed Dublin IV Regulation, given that the Eurodac proposal is inextricably linked to the Commission’s wider reform of the Dublin system:
“The Commission was very clear when it published the Dublin IV proposals that should we not opt into the revised Regulation, the existing Dublin III Regulation would continue to apply between the UK and other Member States. The Eurodac III proposal includes provisions on territorial scope linking it to the Dublin Regulation, but there is no reason why this cannot include more than one version of the Dublin regime.”
6.18We asked the Minister to comment on the consequences for UK participation in Eurodac if the Commission and Council were to determine that the current (Dublin III) and revised (Dublin IV) rules were not operable, leading to the UK’s ejection from the Dublin system:
“If the Commission and Council determine that the two sets of Dublin rules are not operable alongside each other, we agree with the Committee’s interpretation that Article 4a of Protocol 21 (governing the UK’s opt in) does not appear to provide a procedure for removing the UK from Eurodac if the Government has opted into the revised Eurodac Regulation. The inoperability provisions in the Protocol concern situations where not opting in to a revised measure raises issues, rather than a situation of opting in.”
6.19The Minister notes that there is precedent for the UK only participating in parts of the EU’s asylum rule book—the common European asylum system (CEAS):
“On the general issue of not opting into all of the proposals forming the third phase of the CEAS, such as the proposals on the asylum procedure, reception conditions and qualification for international protection, then our approach is not without precedent in that the UK did not opt in to the corresponding measures that form the current, second phase of the CEAS. We remain bound by the minimum standards Directives adopted in the first phase of the CEAS yet opted into some, but not all, measures of the second phase of the CEAS.”
6.20Turning to the proposed reduction in the age threshold for taking the fingerprints and facial images of very young children, the Minister says:
“The Commission’s reasoning is clear from its memorandum accompanying the proposal: the migration crisis has raised issues about how to safeguard and protect unaccompanied children, with child protection and missing children from a third country in particular a concern of the situation within the EU. We agree with the Commission that the apparent increase in the smuggling of children below the age of 14 years (the lower age limit that currently applies to Eurodac) means there is a stronger need to collect biometrics for the purposes of Eurodac from a lower age to help with the identification of children and to see whether that information can also assist to establish family or other links.”
6.21We requested the Minister’s views on the enforceability of the safeguards to prevent the misuse of Eurodac data transferred to third countries and sought confirmation that the Government had consulted the UK’s Information Commissioner on the proposed changes to Eurodac, as well as a summary of his views. The Minister responds:
“On data protection issues, my officials are in contact with the Office of the Information Commissioner and have received from that Office a copy of the letter from the Eurodac Supervision Coordination Group of the European Data Protection Supervisor (EDPS). On the question of data safeguards, we note the EDPS’s remarks that general rules on data transfers to third countries laid down in the Eurodac proposal (as published) will need to be adjusted in accordance with the rules on data transfers laid down in the General Data Protection Regulation (EU) 2016/679.”
6.22The Minister tells us that the partial general approach agreed by the Justice and Home Affairs (JHA) Council in December “excluded all elements of the proposal relating to the Dublin IV Regulation” (which remains under negotiation). It did, however, include changes to the provisions on law enforcement access. He continues:
“The proposals relating to law enforcement were put forward by the Presidency shortly before the JHA Council in December. At the JHA Council, the UK intervened to support further amendments to the text to make it easier to check Eurodac for law enforcement purposes, but to note that we could not support a partial general approach due to parliamentary reserves. The partial general approach is of course subject to the general principle that ‘nothing is agreed until everything is agreed’.”
6.23The Minister says that the partial general approach corrected a number of omissions or cross-references in the Commission’s original proposal by, for example, including additional references to “facial image” where required and replacing separate references to fingerprint data and facial images with a single reference to “biometric data” where appropriate.
6.24He describes the changes made to the provisions on law enforcement access to Eurodac:
“Eurodac has the potential to be a powerful tool in the fight against serious crime and terrorism, but arguably it is not used often enough for this purpose because of the strict conditions that have to be met before a law enforcement check can be made. The proposed changes to provisions on law enforcement concern the conditions for access by removing or amending existing restrictions in order to facilitate access. For example, one proposal removes the restriction that designated authorities permitted access shall not include agencies or units exclusively responsible for intelligence relating to national security. Another proposal provides that data on beneficiaries of international protection, which is marked as such within the database, is available for search by law enforcement authorities on the same terms as other stored data. There are proposed changes that remove the requirement that a search can only be made if comparisons with other databases (listed in Article 19) did not lead to the establishment of the identity of the data subject, replacing this with the condition that a prior check has been conducted in those databases, but with the reference to the Visa Information System (VIS) deleted from the list. It is also proposed that a search can be made where it is necessary in a specific case or to specific persons.”
6.25Whilst welcoming these changes, the Minister considers that “further amendments to the text would make it easier to check Eurodac for law enforcement purposes”. He continues:
“We think we should look again at the requirement to do a Prüm check before Member States can consult Eurodac, as this could lead to significant delays, particularly if a Member State has reached its daily quota for Prüm fingerprint requests with some other Member States. This can mean a Member State has to wait until the next day, or even later, before it can make a Prüm check and thus consult Eurodac. We also believe that the list of offences for which a Eurodac check can be made should be revisited, as at present a search can only be carried out to support an investigation into a terrorist offence or into an offence that appears on a list that is linked to extradition under the European Arrest Warrant (provided the offence has a maximum penalty of three years or more). The list does not include theft or burglary or sexual assaults other than rape, meaning that law enforcement authorities cannot use Eurodac to try to identify the perpetrators of these offences. The limitations should be removed to facilitate the investigation of these offences.”
6.26Finally, the Minister does not explain what steps the Government intends to take during Article 50 exit negotiations to mitigate or eliminate the risk that UK law enforcement and immigration control authorities may lose access to important EU data-sharing instruments once the UK leaves the EU, observing only that:
“[…] the question of how the UK shares information about asylum applicants and illegal migrants with the EU and international partners will of course be a key consideration as part of the process of leaving the EU and establishing a new relationship.”
Sixth Report HC 71-iv (2016–17),(15 June 2016) and Twenty-fifth Report HC 71-xxiii (2016–17), (11 January 2017).
38 Throughout this chapter, the reference to third country nationals also includes stateless persons.
39 See p.2 of the Commission’s explanatory memorandum accompanying the proposed Regulation.
40 The NGO, , reports that in 2015, almost 90,000 asylum seekers in the European Union were unaccompanied children under 18, about nine times more than the number arriving in the previous three years. This figure does not include unaccompanied children who did not apply for asylum.
41 See of 7 December 2016 setting out the partial general approach agreed by the Council.
42 See recital 22a to the Council’s partial general approach.
43 See recitals 20 and 22 of the proposed Regulation (also reproduced in the Council’s partial general approach).
10 March 2017