You are here: Parliament home page > Parliamentary business > Publications and Records > Committee Publications > All Select Committee Publications > Commons Select Committees > European Scrutiny > European Scrutiny
Documents considered by the Committee on 6 February 2019 Contents

6Third country participation in the EU’s asylum database: Eurodac

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee

Document details

(a) Proposal for a Council Decision on the signing, on behalf of the European Union, of a Protocol to the Agreement with Iceland and Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway regarding access to Eurodac for law enforcement purposes

(b) Proposal for a Council Decision on the conclusion of a Protocol to the Agreement between the European Community and Iceland and Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway regarding access to Eurodac for law enforcement purposes

(c) Proposal for a Council Decision on the signing, on behalf of the European Union, of a Protocol between the European Union, the Swiss Confederation and the Principality of Liechtenstein to the Agreement concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland regarding access to Eurodac for law enforcement purposes

(d) Proposal for a Council Decision on the conclusion of a Protocol between the European Union, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland regarding access to Eurodac for law enforcement purposes

(e) Proposal for a Council Decision on the signing, on behalf of the European Union, of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and Eurodac for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement

(f) Proposal for a Council Decision on the conclusion of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and Eurodac for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement

Legal base

(a), (c) and (e) Articles 87(2)(a), 88(2)(a) and 218(5) TFEU, QMV

(b), (d) and (f) Articles 87(2)(a), 88(2)(a) and 218(6)(a) TFEU, QMV, EP consent

Department

Home Office

Document Numbers

(a) (40276), 15658/18, COM(18) 827; (b) (40277), 15653/18 + ADD 1, COM(18) 826; (c) (40278), 15638/18, COM(18) 831; (d) (40279), 15626/18 + ADD 1, COM(18) 828; (e) (40290), 15860/18, COM(18) 836; (f) (40291), 15676/18 + ADD 1, COM(18) 835

Summary and Committee’s conclusions

6.1Established in 2000, Eurodac forms an integral part of the “Dublin system”, a set of EU rules for determining which Member State is responsible for examining an application for international protection made within the European Union. Eurodac consists of a central EU database containing the fingerprints of third country nationals who have made an application for asylum within the EU or who have been apprehended in connection with an irregular border crossing. Under the Dublin system, responsibility rests in most cases with the Member State considered to have played the greatest part in a third country national’s irregular entry to the EU—often a small number of frontline Member States. The rules are intended to discourage “asylum shopping” and secondary movements within the EU by designating a single Member State responsible for an asylum application. Each of the four non-EU countries participating in the Schengen free movement area—Iceland, Norway, Switzerland and Liechtenstein—has concluded an international agreement with the EU enabling them to participate in the Dublin system.42 Although an EU Member State, Denmark has a longstanding opt-out of EU asylum policy (dating back to 1999). Denmark has also concluded an international agreement with the EU so that it, too, can participate in the Dublin system, including Eurodac.43

6.2Under the terms of the 2013 Eurodac Regulation, designated national law enforcement authorities and Europol are entitled to access the fingerprint data held in Eurodac where necessary to prevent, detect or investigate terrorism or other serious crimes.44 These provisions on law enforcement access to Eurodac are beyond the scope of the existing agreements concluded with Iceland and Norway, Switzerland and Liechtenstein, and Denmark. As all five countries wish nonetheless to participate in the law enforcement elements of the 2013 Eurodac Regulation, the Council authorised the European Commission to enter into negotiations extending the scope of the existing agreements so that Denmark and the four non-EU Schengen-associated countries would be able to access the fingerprint data held in Eurodac for law enforcement as well as asylum purposes. The negotiations have now concluded and the European Commission has proposed six Council Decisions authorising the EU to sign and conclude a Protocol to the existing agreements with Iceland and Norway, Switzerland and Liechtenstein, and Denmark.

6.3All the proposed Council Decisions include a recital stating that the UK has opted in and will therefore be bound by the Protocols once concluded.

6.4The Minister for Policing and the Fire Service (Rt Hon Nick Hurd MP) apologises for the delay in submitting an Explanatory Memorandum on the proposed Council Decisions, which he attributes to “a shift in responsibilities across policy teams”, despite having requested an extension of time.45 He underlines the UK’s strong support for cross-border data sharing to help prevent terrorism and serious crime, subject to appropriate data protection safeguards, and considers that extending law enforcement access to Eurodac data to Denmark and the four non-EU Schengen associated countries “will enhance both their security and ours”.

6.5The Minister confirms that the UK’s Title V (justice and home affairs) opt-in Protocol applies to the proposed Council Decisions and says that “no decision has yet been taken”, despite the recitals indicating the contrary. He continues:

The Government is committed to taking all opt-in decisions on a case-by-case basis, putting the national interest at the heart of the decision-making process. As indicated above, the Government will need to be fully assured that exchanges of personal data come with sufficient protections to ensure they are consistent with fundamental rights. The Government is generally supportive of the EU exchanging data with trusted third countries to maximise its potential in the fight against serious and organised crime.

6.6The Minister adds that “the exact nature of the UK’s future relationship with tools such as Eurodac is yet to be confirmed” and will be taken forward as part of the UK’s wider exit negotiations.

Our Conclusions

6.7We ask the Minister whether the inclusion in each proposed Council Decision of a recital stating that the UK has opted in is an oversight on the part of the European Commission or reflects a different view on the application of the Title V opt-in Protocol to these proposals. We also ask him to tell us when the three-month deadline for opting in will expire.

6.8Although the 2013 Eurodac Regulation does not provide for the participation of third (non-EU) countries in the Eurodac database and prohibits Member States or Europol from transferring personal data obtained from the Eurodac Central System outside the EU, an exception is made for third countries that apply the 2013 Dublin (III) Regulation. Third country participation in the Dublin Regulation has so far been limited to the four non-EU countries associated with the Schengen rule book on free movement and the removal of internal border controls.46 We ask the Minister:

6.9We note, in this regard, that the Government’s July 2018 White Paper on The Future Relationship Between the United Kingdom and the European Union envisaged a new security partnership with the EU post-exit which would include:

a new legal framework to return illegal migrants and asylum-seekers to a country they have travelled through, or have a connection with, in order to have their protection claim considered, where necessary. People should be prevented from making claims in more than one country, and on multiple occasions. A clear legal structure, facilitated by access to Eurodac (the biometric and fingerprint database used for evidencing secondary asylum claims) or an equivalent system, will help achieve this.47

By contrast, the November 2018 Political Declaration accompanying the proposed EU/UK Withdrawal Agreement is far less specific, referring only to cooperation in tackling illegal migration, whilst recognising the need to protect the most vulnerable.

6.10Given this difference in language and tone, we ask the Minister:

6.11Pending further information, the proposed Council Decisions remain under scrutiny. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

(a) Proposal for a Council Decision on the signing, on behalf of the European Union, of a Protocol between the European Union, the Republic of Iceland and the Kingdom of Norway to the Agreement between the European Community and Iceland and Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway regarding access to Eurodac for law enforcement purposes: (40276), 15658/18, COM(18) 827;

(b) Proposal for a Council Decision on the conclusion of a Protocol between the European Union, the Republic of Iceland and the Kingdom of Norway to the Agreement between the European Community and Iceland and Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway regarding access to Eurodac for law enforcement purposes: (40277), 15653/18 + ADD 1, COM(18) 826;

(c) Proposal for a Council Decision on the signing, on behalf of the European Union, of a Protocol between the European Union, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland regarding access to Eurodac for law enforcement purposes: (40278), 15638/18, COM(18) 831;

(d) Proposal for a Council Decision on the conclusion of a Protocol between the European Union, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland regarding access to Eurodac for law enforcement purposes: (40279), 15626/18 + ADD 1, COM(18) 828;

(e) Proposal for a Council Decision on the signing, on behalf of the European Union, of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement: (40290), 15680/18, COM(18) 836; and

(f) Proposal for a Council Decision on the conclusion of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement: (40291), 15676/18 + ADD 1, COM(18) 835.

Previous Committee Reports

None.

42 See the Agreement with Iceland and Norway, the Agreement with Switzerland and the Protocol extending the Agreement to Liechtenstein.

43 See the Agreement with Denmark.

44 Regulation (EU) No 603/2013 on the establishment of Eurodac.

45 See the Minister’s letter of 29 January 2019 to the Chair of the European Scrutiny Committee.

46 See recital (25) of the current Dublin Regulation (Regulation (EU) 604/2013) which states: “The progressive creation of an area without internal frontiers in which free movement of persons is guaranteed in accordance with the TFEU and the establishment of Union policies regarding the conditions of entry and stay of third-country nationals, including common efforts towards the management of external borders, makes it necessary to strike a balance between responsibility criteria in a spirit of solidarity”.

47 See p.70 of the White Paper.



Published: 12 February 2019