Select Committee on European Communities Tenth Report


8 JUNE 1999

By the Select Committee appointed to consider Community proposals, whether in draft or otherwise, to obtain all necessary information about them, and to make reports on those which, in the opinion of the Committee, raise important questions of policy or principle, and on other questions to which the Committee considers that the special attention of the House should be drawn.


12943/98Draft Protocol concerning the extension of the Eurodac system for the comparison of fingerprints of applicants for asylum to certain categories of illegal immigrant.


1.  The process of fingerprinting is widely recognised as a reliable method of establishing a person's identity. Advances in technology have led to the use of the process in situations which are so obviously beneficial to them that people are willing to submit themselves to it voluntarily. But for some, fingerprinting still carries connotations of criminality or, at the very least, suspicion of wrongdoing. An element of compulsion increases the sense that the process is an intrusive one and, on this ground, objectionable.

2.  The protection of individuals against arbitrary interference with their private lives is a fundamental principle of the European Convention on Human Rights ("the ECHR"). The Convention, which has been incorporated as part of domestic law in the UK, includes a provision extending to everyone "the right to respect for . . . private and family life"[1]. The Government acknowledges that taking a fingerprint from an individual without consent "clearly involves an interference with the individual's right to a private life". It believes it to be "strongly arguable" that retaining the fingerprints also interferes with that right. The issue, therefore, is whether there are grounds on which such interference may be justified (p 17). The Convention requires that the interference is in accordance with the law and necessary in a democratic society. The possible grounds on which the interference may be said to be necessary in a democratic society are that it is "in the interests of national security, public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others"[2].

The fingerprinting of asylum seekers and illegal immigrants


3.  The Asylum and Immigration Appeals Act 1993 ("the 1993 Act") created a power to fingerprint asylum seekers and their dependants[3]. This power extends to child asylum seekers. Fingerprints may only be taken from a child (under the age of 16) in the presence of a parent, guardian or other adult independent of the immigration authorities, police or prison service. Critics of the Act expressed the fear that routine fingerprinting would criminalise those seeking political asylum. The proponents of fingerprinting described it as a straightforward and foolproof way of establishing the identity of asylum seekers who often lack adequate documentation. A reliable method of identification was essential to guard against multiple claims for asylum or for social security benefits. A further justification was that the UK would be adopting a practice followed by most other European partners[4].

4.  The Government, like its predecessor, regards fingerprinting as an effective identification system. In its White Paper, "Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum", it suggested that legislative changes might be required to extend the power to fingerprint asylum seekers under the 1993 Act to certain illegal immigrants[5]. The Government intends to table amendments to the Asylum and Immigration Bill, currently before Parliament, which would extend fingerprinting to additional categories of people. These would include:

    (a) inadequately documented passengers who are unable to provide a reasonable explanation for their failure to produce adequate documentation;

    (b) other people refused entry who are given temporary admission but where the immigration officer believes it is possible that they might abscond;

    (c) all people who are to be deported or otherwise removed following enforcement action;

    (d) illegal entrants and others arrested under Section 24 of the Immigration Act 1971;

    (e) all people reasonably suspected of being illegal entrants.

The fingerprints would be retained for up to 10 years, or until a person is granted leave to remain in the UK. The Government estimates that the new powers it is proposing would result in about 20,000 additional people being fingerprinted each year (p 21).

The co-ordination of policy within the EU


5.   The convergence of Member States' domestic laws on the fingerprinting of asylum seekers has paved the way for a more systematic co-ordination at the EU level. Proposals for an EU-wide mechanism to exchange fingerprint data were put forward by the Italian Presidency in March 1996. The impetus was the imminent entry into force, on 1 September 1997, of the Dublin Convention[6]. This intergovernmental initiative was prompted by the concern that the creation of an internal market in which people could move freely would open up the possibility for asylum seekers to lodge applications for asylum in two or more Member States. The Dublin Convention establishes a framework to ensure that an asylum claim is heard only once within the EU. The basic criterion is that the State responsible for the presence of an asylum seeker within the EU should also examine the claim for asylum, even if this is made in another Member State. Under the Dublin system, a State is responsible for the claim if, for example, it has issued a visa or residence permit. It is also responsible if it is the first point of entry into the EU for an asylum seeker who has made an "irregular" border crossing[7].

6.  The effective operation of the Dublin mechanism depends on the ability to identify asylum seekers and to establish their first point of entry into the EU. Problems arise when asylum seekers arrive in a Member State without documentation showing who they are or where they come from. If they claim asylum there, the onus is on that State to demonstrate that it is not responsible, under Dublin criteria, for examining the application. This would be the case if, for example, the applicant had first entered the EU by irregularly crossing the border of another Member State or had lodged a prior asylum claim in another Member State.

7.  The Government has criticised the operation of the Dublin Convention, claiming that it has made it increasingly difficult for UK immigration authorities to enforce the return of asylum seekers to other EU Member States[8].


8.  The Eurodac Convention[9] was conceived as an instrument to assist in the application of the Dublin provisions, in particular Article 15. This Article lists the categories of information which Member States must, or may (if the asylum applicant consents), communicate to each other to determine responsibility under the Dublin Convention. Eurodac consists of a computerised central database equipped with a fingerprint recognition system. The Convention requires each Member State, in accordance with its national practice and procedures, to take the fingerprints of every non-EU (third country) national aged 14 or over who applies for asylum. The fingerprint data are transmitted electronically to the central database where, subject to one exception requiring earlier deletion, they are stored for 10 years. New fingerprint data are compared with prints already in the database. If a match is found, the Member States concerned will enter into discussions to ascertain which is responsible for examining the asylum claim under the Dublin criteria.

9.  The exception to the 10-year rule for retaining fingerprint data concerns asylum seekers who are granted citizenship in any one of the Member States. Their prints must be erased immediately. As regards asylum seekers who are granted refugee status, their fingerprints must be "blocked" in the central database. This data cannot be used for fingerprint comparisons but will form the basis for a statistical analysis to be undertaken five years after Eurodac is up and running. The purpose of the analysis will be to assess how many asylum seekers who are recognised as refugees in one Member State subsequently seek asylum in another Member State. Depending on the outcome of the analysis, a decision might be taken either to erase the data or to unblock and store them in the database for the purpose of fingerprint comparison.

10.  The Convention sets out requirements concerning responsibility for the use of data, correction, erasure and security of data, the rights of the data subject, liability for damage arising from the operation of the Eurodac system, costs, settlement of disputes and the jurisdiction of the European Court. There is provision also for independent monitoring of the processing and use of data at a national and EU level.


11.  The arrival of a large number of migrants from Iraq and the neighbouring region in the latter part of 1997 prompted the Luxembourg European Council to call for an action plan to respond to the "massive influx"[10]. Point 17 of the Action Plan agreed by Foreign Ministers in January 1998 urged Member States "to examine without delay whether Eurodac should be (…) extended to illegal immigrants". Point 40 recommended that Member States, "insofar as national law provides, and in accordance with the principles of data protection applicable in the European Union, (. . .) fingerprint every third country national illegally entering their territory whose identity cannot be established with certainty on the basis of valid documents, to retain such fingerprints for the purpose of informing the authorities in other Member States, and to consider the exchange of such fingerprints with a view to confirming identities".

12.  Ministers agreed the principle of fingerprinting illegal immigrants at the Justice and Home Affairs Council in March 1997 and commissioned a feasibility study to examine the legal and technical implications of extending the scope of the Eurodac Convention. As it was apparent that some Member States would not approve the Convention without such an extension, it was decided at the May Council to draft a Protocol bringing certain categories of illegal immigrant within the Eurodac system.

13.  The Protocol identifies two categories of "aliens" (any non-EU national) whose fingerprints may be stored in, or sent to, the Eurodac central database for comparison with data on asylum seekers. Fingerprinting will be mandatory for the first category of aliens, defined as "every alien of at least fourteen years of age who is apprehended . . . in connection with the irregular crossing by land, sea or air of the border of that Member State having come from a third country and who is not turned back" (Article 3). This provision mirrors the language in Article 6 of the Dublin Convention and is intended to facilitate its application. The fingerprint data will be stored in the central database for two years. The fingerprints of asylum seekers taken during the same period may then be compared with the data on this category of alien (Article 4). If a match is identified, the Dublin provisions will apply to determine which Member State is responsible for examining the asylum application. The data will be automatically erased after two years, or earlier if the alien concerned has been issued with a residence permit or has left the European Union (Article 5).

    Example: the Italian authorities fingerprint an Albanian migrant whose entry into Italy is irregular. These prints are stored in the central database for two years. If, during this period, the Albanian migrant travels to France and claims asylum there, his fingerprints will be taken again, this time as an asylum seeker. A comparison of the two sets of fingerprint data for an identity match should produce the proof necessary to establish responsibility under Article 6 of the Dublin Convention. This would be Italy, unless the Albanian migrant has been resident for at least six months in France before applying for asylum there.

14.  Fingerprinting of the second category of aliens, defined as any alien aged 14 or over found to be "illegally present" within a Member State, is optional (Article 7). If the national law of a Member State permits the fingerprinting of this category of alien, then there is a facility to enable these prints to be sent to the Eurodac central database. This fingerprint data can be compared with the existing pool of data on asylum seekers (but not the prints of illegal immigrants in the first category of aliens) to ascertain whether an illegal immigrant in one Member State has previously lodged an asylum claim in another Member State. The fingerprints must be destroyed a soon as the results of the comparison have been sent to the requesting State. Fingerprinting persons found to be illegally present within a Member State is intended to facilitate the application of Article 10(1) (c) and (e) of the Dublin Convention. Under these provisions, the Member State which is examining an asylum application or has already rejected it must readmit or take back an asylum seeker whose presence in another Member State is irregular or illegal.

    Example: the UK authorities could, if the necessary powers were created, fingerprint a Romanian national whose presence in the UK is illegal for any reason (such as over-staying rather than unlawful entry). These prints could be sent to Eurodac for comparison with the fingerprints of asylum seekers already stored in the database. If the prints match those taken from a person who has previously applied for asylum in Ireland, the UK could ask the Irish authorities to take responsibility for the Romanian.

Implications of the Amsterdam Treaty

15.  The Dublin Convention is an intergovernmental instrument agreed between the Member States but outside the EU framework. Following the entry into force of the Amsterdam Treaty on 1 May, the Community is responsible for certain aspects of asylum and immigration policy under the new Title IV of the EC Treaty relating to an area of freedom, security and justice. There is a specific provision requiring the Council to adopt, within five years, "criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States" (Article 63(1)(a)). The Commission has indicated that it will be reviewing intergovernmental instruments to see if there is a need for "Amsterdam versions"[11]. There is, as yet, no formal proposal to transform the Dublin Convention into a Community Regulation or Directive.

16.   The original intention to adopt the Eurodac Convention and Protocol as intergovernmental instruments under Title VI of the Treaty on European Union has been overtaken by events. Ministers agreed the content at Council meetings in December and March but decided to "freeze" the texts and translate these into a Community instrument once the Amsterdam Treaty takes effect[12]. The Community's newly found competence for asylum and immigration policy will affect the procedures for adopting and implementing Eurodac. The European Parliament will have a right of consultation and the European Court of Justice will have jurisdiction to give preliminary rulings on references from national courts or tribunals against whose decisions there is no judicial remedy under national law[13]. An additional role for the Court will be to ensure that Community institutions respect fundamental rights guaranteed by the European Convention on Human Rights[14].

17.  This shift of competence from intergovernmental to Community mechanisms has significant implications for the UK's position. Under the terms of a Protocol agreed at Amsterdam, the UK has an opt-out of any Community measures based on the free movement provisions of the new Title IV but may, if it so wishes, exercise a right of opt-in[15]. If the Government intends to participate in Eurodac, it will have to notify the President of the Council within three months of a new proposal for a Community instrument being presented to the Council.

Weighing up the options

18.  The Government believes that the exchange of fingerprints through a central database should considerably enhance the effectiveness of the Dublin Convention. It anticipates that the Eurodac system would substantially reduce the existing costs of fingerprinting incurred by the Home Office's Immigration and Nationality Department. There might be additional savings to public funds if a comparison of fingerprint data establishes the responsibility of a Member State other than the UK for examining asylum applications. The Government has emphasised that these potential gains have to be balanced against its concern that the use of a Community instrument, and consequent supervision by the Court of Justice, could result in delays to the processing of asylum claims in the UK. This might impede the Government's efforts to introduce a speedier system (pp 3, 5).

the enquiry

19.  Sub-Committee E (Law and Institutions), whose members are listed in Appendix 1, invited three non-governmental organisations, the Immigration Law Practitioners' Association (ILPA), JUSTICE and Statewatch to comment on the draft Protocol extending Eurodac to certain categories of illegal immigrant. Their written submissions highlighted significant human rights implications and problems of principle and practice arising from the proposed extension of Eurodac to illegal immigrants. The views of the Data Protection Registrar were also sought on the adequacy of the data protection provisions. The Sub-Committee took oral evidence from Kate Hoey, Parliamentary Under Secretary of State at the Home Office, and Mrs Susan Hadland from the Asylum and Appeals Policy Directorate of the Home Office. Their oral evidence is supplemented by correspondence with the Sub-Committee and a further explanatory Note.

20.  The witnesses who gave oral or written evidence are listed in Appendix 2. The text of the Dublin Convention, the draft Eurodac Convention, the draft Protocol and the relevant provisions of the European Convention on Human Rights are reproduced in Appendix 3. The Committee's earlier correspondence regarding the Eurodac Convention appears in Appendix 4. The evidence is printed with the Report. We are grateful to all those who assisted in this enquiry.

1   Article 8(1) of the Convention. The Human Rights Act incorporating the Convention received Royal Assent on 9 November 1998. The Government intends to bring the main provisions of the Act into force on 2 October 2000 (HL Deb. 18 May 1999, col. WA 23). Back

2   Article 8(2) of the Convention. Back

3   Section 3. Back

4   See Hansard debates, 21.1.1992 vol.202 cols.251-2 and 11.1.1993 vol.216 cols.678-693. Back

5   CM 4018, July 1998, paras 11.14 and 11.15 Back

6   Convention determining the State responsible for examining Applications for Asylum lodged in one of the Member States of the European Communities, signed in Dublin on 15 June 1990. It entered into force in Austria and Sweden on 1 October 1997, and in Finland on 1 January 1998.  Back

7   The Dublin Convention does not define the term "irregular border crossing" (Article 6) but it is clear from the context that it refers to the failure to comply with entry requirements. Back

8   Home Secretary in Oral Answers to Questions (HC Deb. 18 January 1999, col. 548). Back

9   Convention concerning the establishment of "Eurodac" for the comparison of fingerprints of applicants for asylum. A copy of the Committee's correspondence with the Minister on the Eurodac Convention is reproduced in Appendix 4. Back

10   Presidency Conclusions of the Luxembourg European Council, 13-14 December 1997. Back

11   Commission Communication, Towards an Area of Freedom, Security and Justice, COM(1998) 459 final. Back

12   On 15 June, the Home Secretary informed the House of Commons that the European Commission had adopted a draft Regulation under Article 63(1)(a) of the EC Treaty to replace the draft Eurodac Convention and Protocol, but that this had not yet been communicated to the Member States (HC Deb. 15 June 1999, col. WA 90).  Back

13   Article 68 of the amended EC Treaty. The Council, Commission or a Member State may also ask the Court to give an interpretative ruling, but this ruling will not apply to judgments which have become res judicata.  Back

14   Article 46(d) of the amended Treaty on European Union. Back

15   Protocol on the Position of the United Kingdom and Ireland annexed to the EC Treaty and the Treaty on European Union. Back

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