Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Committee on Exiting the European Union
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
15.1Eurodac 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 EU’s “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”.
15.2The 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. The 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.
15.3The proposed Regulation would lower the age threshold for taking fingerprints and facial images from 14 to six years 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.
15.4The 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 on 15 November 2016. The Government formally notified our predecessors of its decision to opt in to the proposal on 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.
15.5When our predecessors last considered the proposed Regulation in March, they requested further information on:
15.6In his letter of 13 July, the Immigration Minister (Brandon Lewis) notes that our predecessors raised “a number of complex queries” and apologises for the delay in responding. He confirms that the UK entered a parliamentary scrutiny reserve at the December Justice and Home Affairs Council and explains why he believes extending law enforcement access to Eurodac data would assist in the detection of criminal suspects. He says the Government has yet to decide which UK law enforcement authorities and/or intelligence services should have access to Eurodac data but says that Article 4(2) of the Treaty on European Union stating that national security remains the sole responsibility of each Member State “speaks for itself”.
15.7The Minister does not comment on the provisions of the proposed Regulation dealing with third country access to and sharing of Eurodac data or tell us whether the Government has sought (or intends to seek) any changes during negotiations, noting only that “the Government has set out its negotiating objectives” and that “the question of how the UK shares information with the EU will be a key consideration” in exit negotiations.
15.8The Minister concludes with an update on the progress made in negotiations on the proposed Regulation within the Council and the European Parliament, adding that “successive Presidencies have identified the Eurodac proposal as one in which an early agreement is possible, either in part or as a whole” and that there will be “increased pressure” to lift any scrutiny reservations ahead of an agreement.
15.9We understand that the Council and the European Parliament are likely to seek a first reading deal, meaning that an agreement on a compromise text could be reached in short order. We ask the Minister whether trilogue discussions are already underway and how quickly the Presidency anticipates that a deal may be secured.
15.10As the Minister indicates, the eagerness to secure a rapid agreement will intensify the pressure to lift any outstanding parliamentary scrutiny reservations. Before we are willing to consider clearing the proposed Regulation from scrutiny, we expect the Minister to provide a more informed response to the questions raised by our predecessors on the following matters:
15.11The Minister tells us that “several Member States” consider that intelligence and security services should be permitted to have access to Eurodac in connection with serious crime and terrorism. Is this also the Government’s position? Does he accept that provisions enabling the intelligence and security services to be designated authorities for the purposes envisaged in the proposed Regulation would bring them within the scope of EU law? What risks might this entail for their operational autonomy?
15.12The Minister does not tell us whether the Government has already sought, or intends to seek, changes to Articles 37 and 38 of the proposed Regulation to make it easier, once the UK leaves the EU and has third country status, to access Eurodac data. Since these Articles are part of the current negotiation on the proposed Regulation, we can see no justification for the Minister’s reticence. We ask him whether he is content with the proposed restrictions on third country access and to explain how they would affect the UK once it ceases to be a Member State.
15.13The Minister says that the Government has “set out its negotiating objectives” for the UK’s exit from the EU and that how the UK shares information post-exit “will be a key consideration”. The Government has not, so far as we are aware, explained whether these objectives include continued participation in or access to the Eurodac system and how such participation or access could be achieved, particularly if the restrictions in Articles 37 and 38 are maintained. We ask the Minister to explain how the Eurodac system fits within the Government’s negotiating objectives and what steps the Government intends to take to mitigate or eliminate the risk that UK law enforcement and immigration control authorities may lose access to Eurodac data following the UK’s exit from the EU.
15.14We ask the Minister to provide regular progress reports on negotiations. These should include any changes to the categories of data that may be held in the Eurodac Central System and to the conditions governing law enforcement access to Eurodac data.
15.15The proposed Regulation remains under scrutiny. We draw this chapter to the attention of the Home Affairs Committee and the Committee on Exiting the European Union.
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) 2.
15.16Scrutiny of the proposed Regulation began in June 2016. The Reports listed at the end of this chapter provide a more detailed overview of the proposal, the concerns raised by our predecessors and the Government’s position.
15.17When our predecessors first considered the proposed Regulation, they asked the Government to:
15.18They also sought confirmation that the Government had consulted the UK’s Information Commissioner on the proposed changes to Eurodac and requested an early indication of the reactions of other Member States and progress reports on negotiations.
15.19It took the Government six months to respond. When it did so, in December 2016, the then Immigration Minister (Mr Robert Goodwill) provided no information on the content of the partial general approach agreed by the Council, nor 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.”
15.20In further correspondence with the Committee, the Minister made clear that the Government had withheld support for the partial general approach agreed at the December Justice and Home Affairs Council “due to parliamentary reserves”. Although the text agreed by the Council envisaged “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”, he did not consider that it went far enough. He indicated that 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.
15.21Since the Government’s decision to opt into the proposed Regulation had been taken shortly before Article 50 negotiations to determine the terms of the UK’s exit from the EU began, our predecessors asked the Government what steps it intended to take to mitigate or eliminate the risk that UK law enforcement and immigration control authorities might lose access to important EU data-sharing instruments once the UK leaves the EU.
15.22Our predecessors noted that the published text of the partial general approach agreed by the Justice and Home Affairs Council in December made no mention of a parliamentary scrutiny reservation entered by the UK. They asked the Government to ensure, in future, that any UK parliamentary scrutiny reserve is made clear on the face of the text agreed to ensure accountability and transparency to Parliament. The Minister comments:
“We raised this with the Maltese Presidency and they confirmed, after consulting with the Council Secretariat, that the UK parliamentary scrutiny reserve was duly noted and this will be reflected on the face of the text in the next iteration. I can now confirm that this has happened.”
15.23Our predecessors drew attention to the recitals to the Commission proposal which make clear that 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”. They noted that a further easing of law enforcement access to the Eurodac database, as advocated by the Government, would mark a significant extension of Eurodac’s original purposes, transforming it from an asylum database into a much broader law enforcement tool. They asked what analysis and evidence the Government relied on to demonstrate that such an extension was justified.
15.24The Minister responds:
“Whilst the Government is of the position that there should be no presumption that asylum seekers or persons apprehended in connection with an irregular crossing of the external border have, or will, commit terrorist or other criminal offences, we do know that terrorists can, and have, posed as asylum seekers. The most prominent example of this is that one of the perpetrators of the November 2015 attacks in Paris was identified following a check on Eurodac by law enforcement agencies. We also know that criminals and terrorists frequently use multiple aliases and identities.
“The draft Eurodac III Regulation will allow Eurodac to store details of applicants’ claimed names and dates of birth and facial images, as well as their fingerprints, as at present. A Eurodac check could allow law enforcement to find out the name that an individual gave to immigration and asylum authorities in a Member State, which would be highly relevant information if it differs from the information the person has given to them. As the rules on law enforcement are currently drafted in the Council text, that information would not be available to them if they had not conducted a check of national systems and the Prüm database, as they would then be unable to search Eurodac. This could prevent valuable information about a suspected terrorist or criminal being made available. It is also worth noting that the police in the UK are permitted to check suspects’ fingerprints against UK immigration fingerprint records.”
15.25In earlier correspondence, the Government had explained that the partial general approach removed part of a provision in Article 6(1) of the original Commission proposal which specified that “agencies or units exclusively responsible for intelligence relating to national security” should not be included in the list of designated national authorities permitted to access Eurodac data for law enforcement purposes. Our predecessors asked the Government to explain the reasons for the deletion.
The Minister responds:
“Member States’ views were canvassed on this issue during the Slovak Presidency and several Member States considered that intelligence services should be permitted to have access to Eurodac for the purposes of preventing, detecting and investigating terrorist offences and serious crimes. In particular, to verify persons suspected of terrorist activities or activities connected to terrorism, for supporting specific investigations or providing support to victims.”
15.26Our predecessors also asked the Government to clarify:
15.27The Minister replies:
“Article 4(2) TEU expressly provides that national security remains the sole responsibility of each Member State. It is a Treaty provision which speaks for itself. The Government is yet to take a decision on what authorities should be designated to request comparisons with Eurodac data for law enforcement purposes under the proposed Regulation.”
15.28Our predecessors noted 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”. They suggested that the UK’s exit from the EU would magnify that risk and that the Government’s opt-in decision, taken so close to the beginning of exit negotiations, likely signalled 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. They asked the Government to clarify its position on Articles 37 and 38 of the proposed Regulation (and partial general approach) which prohibit direct or indirect 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. Had the Government sought (or did it intend to seek) changes to these Articles during negotiations? What assessment had the Government made of their likely impact on the UK’s ability to participate in EU information sharing mechanisms post-Brexit?
15.29The Minister responds:
“The Government has set out its negotiating objectives. As the Committee is aware, the question of how the UK shares information with the EU will be a key consideration.”
15.30The rest of the Minister’s letter provides a progress report on negotiations:
“To update on negotiations in Council, the consideration of the text has continued at pace, following receipt of feasibility papers from eu-LISA, the EU Agency responsible for the management of large-scale IT systems in the field of Justice and Home Affairs. It is clear that in the context of negotiations on the package of measures to reform the Common European Asylum System, successive Presidencies have identified the Eurodac proposal as one in which an early agreement is possible, either in part or as a whole. As a result, increased pressure is being placed on us and other Member States to lift all remaining reserves, including any that concern the recent developments set out below.
“The feasibility papers concerned the inclusion of scanned copies of passports and other identity documents in Eurodac, and the possible use of alphanumeric searches for law enforcement access. In discussions as to whether the scanned identity documents should be in colour or black and white, we favoured the use of colour versions, as this would improve accuracy and better support individual identification for returns purposes. Some Member States argued in favour of uploading a wider range of documentation, including documents known to be forgeries: we cautioned against the storage of non-verified and forged documents as we did not believe this would add value. Rather, such documents risked causing confusion. Having too much information, where some of it could be of dubious quality, could hinder identification rather than assist and would also place increased burdens on authorities making the transmissions without clear gain, reducing the cost-benefit ratio; these concerns have been reflected in the latest compromise text.
“In a separate development, new text has been proposed to increase the scope of the Eurodac database to include data for individuals who have applied for resettlement in the European Union under the EU Resettlement Framework and where individuals are admitted for resettlement in accordance with a national resettlement scheme. We can see the relevance of taking and storing data on individuals who are admitted to the territories to which the Eurodac Regulation applies on the basis of a resettlement decision as this would enable identification in the event of secondary movements within Europe. However, we were not immediately convinced on the reasoning for storing data for later comparison of persons who have applied for resettlement under the EU Resettlement Framework, but who are not admitted and so remain in the region, as proposed in the text.
“During the discussions, arguments have been made by some delegations that there may be added value, even if limited, in storing the data of persons not admitted in terms of identifying those who have previously applied for and been refused resettlement should those individuals subsequently enter Europe. We appreciate the arguments that this supports broader migration objectives, as the availability of such data could help with determining the credibility of any future asylum claim in Europe. For this reason, and as we have not opted in to the EU Resettlement Framework, we will continue to make constructive points in the discussions on resettlement data in general but will not seek to block the approach favoured by those bound by the proposed EU Resettlement Framework. The discussions in Council are ongoing.”
15.31Turning to the European Parliament, the Minister tells us:
“The Rapporteur for the Committee on Civil Liberties, Justice and Home Affairs (LIBE) on Eurodac, Monica Macovei MEP, tabled her report on 9 June. Ms Macovei also acted as Rapporteur for the LIBE Committee in the negotiations leading to the adoption of the Eurodac II Regulation (EU) No. 603/2013. This LIBE Committee’s present report reflects compromises from the other groups and related Committees and will allow trilogues to commence. A plenary consideration will take place later, when the text is ready for a formal vote.
“The LIBE Committee welcomes the extension of the scope of Eurodac, as this will allow Member States to compare data on illegally staying third country nationals who do not claim asylum and make secondary movements. The Rapporteur notes that Member States often experience difficulties in identifying such persons who may use deceptive means to avoid identification and consequently frustrate removal.
“The Rapporteur underlines the importance of law enforcement access to Eurodac and proposes a set of amendments aimed at facilitating Europol’s performance of its tasks, such as granting Europol simplified and direct access to Eurodac, counterbalanced by amendments to reinforce data protection requirements. The Rapporteur notes that the Commission’s original proposal is based on biometric searches under defined conditions and so rules out alphanumeric searches by national law enforcement authorities and Europol. Consequently, and in common with the Council’s considerations, the Rapporteur proposes that law enforcement authorities should be allowed to make requests based on alphanumeric data where they possess evidence of personal details or identity documents.
“The Rapporteur welcomes the Commission’s proposal to lower the age at which children’s fingerprints are taken to six years old as it would facilitate tracking of unaccompanied minors in cases where they are separated from their families or abscond from care institutions. With a view to increase the system’s potential to trace and reunite missing family members, the Rapporteur also proposes that additional alphanumeric data of applicants for international protection should be included in Eurodac III, such as information on family links and a particular indication on whether a child is unaccompanied.”
Thirty-fourth Report HC 71–xxxiii (2016–17),(8 March 2017), Sixth Report HC 71–iv (2016–17), (15 June 2016) and Twenty-fifth Report HC 71–xxiii (2016–17), (11 January 2017).
206 Throughout this chapter, the reference to third country nationals also includes stateless persons.
207 See p.2 of the Commission’s explanatory memorandum accompanying the proposed Regulation.
208 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.
209 See of 7 December 2016 setting out the partial general approach agreed by the Council.
210 See the of 15 December 2016 from the then Immigration Minister (Mr Robert Goodwill) to the Chair of the European Scrutiny Committee.
211 See the of 22 February 2017 from the then Immigration Minister (Mr Robert Goodwill) to the Chair of the European Scrutiny Committee.
212 See recital 22a to the Council’s partial general approach.
213 See recitals 20 and 22 of the proposed Regulation (also reproduced in the Council’s partial general approach).
214 Article 6(1) of the Commission proposal provides that designated bodies authorised to request comparisons with Eurodac data “shall not include agencies or units exclusively responsible for intelligence relating to national security”.
1 December 2017