Documents considered by the Committee on 12 September 2018 Contents

21Fingerprinting of asylum applicants and irregular migrants: the Eurodac system

Committee’s assessment

Politically important

Committee’s decision

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

Document details

Proposal for a Regulation on the establishment of ‘Eurodac’ for the comparison of fingerprints (recast)

Legal base

Articles 78(2)(e), 79(2)(c), 87(2)(a) and 88(2)(a) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Number

(37754), 8765/16, COM(16) 272

Summary and Committee’s conclusions

21.1Eurodac 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.257 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 in most cases, the Member State through which an asylum applicant first entered the EU. 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, meaning that many irregular migrants, “including thousands of unaccompanied minors”, remain invisible within the EU.258

21.2The European Commission’s proposed Regulation would develop Eurodac into a broader migration management tool, expanding the database to include the facial images and 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. Access to this information would help Member States 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. The proposal would also lower the age threshold for taking fingerprints and facial images from 14 years to six, making it 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. National law enforcement authorities and Europol would have access to the more extensive range of biometric data held in Eurodac to support their efforts to prevent, detect and investigate terrorism and other serious crimes. The Council agreed a partial general approach on the Eurodac proposal in December 2017, paving the way for informal negotiations to begin with the European Parliament earlier this year.

21.3The proposed Eurodac Regulation is the only one of seven legislative proposals making up the Commission’s 2016 asylum reform package in which the Government has chosen to participate, following an opt-in debate in November 2016. Despite this, all seven proposals remain under scrutiny as they are inter-linked and are likely to stand or fall as a package. In her first letter of 26 July, the Immigration Minister (Caroline Nokes) provides an update on progress in negotiations on the wider asylum reform package. In her second letter of the same date—the focus of this chapter—she describes the progress made during the Bulgarian Presidency (which ended in June) on the proposed Eurodac Regulation and responds, in part, to questions we raised in an earlier Report dating back to November 2017 concerning law enforcement access to Eurodac data, restrictions on third country access to Eurodac data and the wider implications for the UK’s ability to participate in EU information-sharing mechanisms post-exit.

Progress of negotiations on the proposed Eurodac Regulation

21.4Following a number of “political trilogues” with the European Parliament, the Minister reports that “some further progress” has been made, including preliminary agreement on the age at which the biometric data of children can be taken and transmitted to Eurodac (six years) and on the use of “a proportionate degree of coercion, as a last resort, to persuade a child to comply with the requirement to provide his or her biometrics”. She adds that the procedure envisaged would respect the dignity of the child by “requiring the presence of a family member or another trained person acting independently from the official when capturing the biometrics”.

21.5There remain, nonetheless, “a few contentious points”:

The Commission’s original proposal did not contain changes to the provisions concerning the retention of the data taken from asylum applicants, where the current storage period is set at 10 years unless the advance erasure provisions apply, i.e. if an individual obtains citizenship of one of the Member States. During the trilogues the issue of this data retention period and advance erasure has been raised by the European Parliament. This is a contentious area and remains unresolved, with many Member States, including the UK, opposing a general reduction in the 10-year storage period.

21.6Further “technical work” will be needed on new provisions introduced during the negotiating process to capture, transmit and store in Eurodac the data of individuals resettled in the EU.

Law enforcement access to Eurodac data

21.7In earlier correspondence, the Minister’s predecessor (Brandon Lewis) told us that “several Member States” wanted their intelligence and security services to have access to the Eurodac database in connection with serious crime and terrorism. We asked whether this was also the Government’s position and, if so, what risks there might be for the operational autonomy of the UK’s intelligence and security services if they were brought within the scope of EU law in this way. The Minister does not respond.

Third country access to Eurodac data

21.8We asked the Minister whether she was content with the proposed restrictions on third country access to Eurodac data and to explain how they would affect the UK once it ceases to be a Member State. She says that the Government has not sought changes to these provisions (Articles 37 and 38 of the proposal) as “we are of the view that the appropriate forum to raise issues related to the UK’s future data-sharing relationship with the EU is in the negotiations on the UK’s exit from the EU and not in the context of live negotiations on individual proposals”.

Brexit implications

21.9We asked the Minister whether continued participation in or access to the Eurodac system formed part of the Government’s negotiating objectives for the UK’s future relationship with the EU and what steps the Government intended to take to mitigate or eliminate the risk that UK law enforcement and immigration control authorities would lose access to Eurodac data post-exit. She responds:

The Government has been clear that cooperation with the EU on asylum should continue following our exit from the EU, and that we are prepared to conduct open, productive, negotiations with the EU in order to achieve the best outcome for both parties, and those seeking asylum in Europe.

21.10The Minister refers us to the Government’s White Paper on the Future Relationship Between the UK and the EU which calls for “a new, strategic relationship to address the global challenges of asylum and illegal migration” and adds:

A clear legal structure, facilitated by access to Eurodac or an equivalent system will help to achieve this. The precise operational details, and the basis upon which any data is shared between the EU and the UK as part of any future agreement on asylum will be subject to the outcome of negotiations and agreement with our European partners.

Our Conclusions

21.11The Minister does not clarify the Government’s intentions concerning access to Eurodac data by the UK’s intelligence and security services or the risk that designating these services for the purposes envisaged in the proposed Regulation would bring them within the scope of EU law and have wider implications for their operational autonomy. We ask her to do so. We are not as sanguine as her predecessor that Article 4(2) of the Treaty on European Union (which provides that “national security remains the sole responsibility of each Member State”) “speaks for itself”.259

21.12We question the Government’s decision only to raise issues related to the UK’s future data-sharing relationship with the EU in negotiations on the UK’s exit from the EU and not also “ in the context of live negotiations on individual proposals”. We can see no reason why the Government should not do both, pressing for the most extensive third country arrangements possible in negotiations on individual proposals to mitigate the risk of leaving the EU without an exit deal, whilst also seeking to negotiate a comprehensive post-exit agreement covering a range of EU data-sharing tools and police and criminal justice measures.

21.13The Government’s White Paper on the Future Relationship Between the UK and the EU recognises that the Eurodac database is inextricably linked with EU rules for determining which Member State is responsible for examining an application for international protection made within the EU (the “Dublin system”). It calls for:

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.260

We ask the Minister whether she accepts that the Government’s decision not to opt into the Commission’s Dublin reform proposal will make it far more difficult for the UK to negotiate a new framework for returning asylum seekers to other EU Member States and to retain access to Eurodac.

21.14We look forward to receiving regular progress reports on negotiations. Meanwhile, the proposed Regulation remains under scrutiny. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

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), 8765/16, COM(16) 2.

Background

21.15Our earlier Reports listed at the end of this chapter provide a more detailed overview of the proposed Eurodac Regulation and the Government’s position.

Previous Committee Reports

Third Report HC 301–iii (2017–19), chapter 15 (29 November 2017), Thirty-fourth Report HC 71–xxxiii (2016–17), chapter 6 (8 March 2017), Sixth Report HC 71–iv (2016–17), chapter 2 (15 June 2016) and Twenty-fifth Report HC 71–xxiii (2016–17), chapter 8 (11 January 2017).


257 Throughout this chapter, the reference to third country nationals also includes stateless persons.

258 See p.2 of the Commission’s explanatory memorandum accompanying the proposed Regulation.

259 See the letter of 13 July 2017 from the then Immigration Minister (Brandon Lewis) to the Chair of the European Scrutiny Committee.

260 See p.70 of the White Paper.




Published: 18 September 2018