Select Committee on European Communities Tenth Report

Letter from JUSTICE to Lord Tordoff, Chairman of the Select Committee on the European Communities

  Thank you for your letter of 2 April concerning the draft EURODAC Convention and for the opportunity of making further comments, particularly to the matters raised in the Minister's letter of 18 March.

  We would like first to focus on those matters which arise from the Convention as it presently stands—that is, as an instrument to assist the effective application of the Dublin Convention in relation to asylum applications. We will then deal with the proposal to extend its remit (by way of a protocol) to cover the fingerprints of illegal immigrants. Our comments are based on the draft of 27 February, no. 6191/1/98 REV 1.


  We have previously questioned the justification for the provision which allows fingerprint data of those who have been granted refugee status to be retained. We appreciate, as pointed out by the Minister, that the purpose is to facilitate a statistical assessment of the number of applications for asylum in one member state being pursued by those who have already been granted refugee status in another. Although we are not in a position to comment on the necessity for such research, we nevertheless are concerned to ensure that there is sufficient in-built protection for the individuals concerned.

  First, we believe that the Convention's "sunset-like" provision in Article 6b(2) should incorporate a presumption that the data relating to such persons must be erased after the five year period, unless the statistics compiled by the Central Unit show that there is a "pressing need" (as defined under Article 8 of the ECHR) to continue to hold the data.

  This would not only ensure that the justification for continuing to hold such data is subject to strict scrutiny but would also acknowledge the reality of changes that are likely to take place under the Amsterdam Treaty. For example, under the terms of this Treaty the EU is bound to adopt first pillar instruments improving the status of third country nationals resident in member states, particularly in relation to free movement and residency rights. This will largely remove the reasons why some refugees may still wish to seek refugee status in another member state.

  Second, we believe that the safeguards in relation to the blocking measures which are contained in the Council minutes should appear on the face of the Convention. This describes the operation of an important safeguarding measure and, in our view, should therefore not be left to an instrument whose legal standing is in doubt. As the Council Legal Service has commented in the past, statements which add to the enacting terms of legislation should not be made in this way as the Court of Justice is not bound by them and national authorities and courts cannot lawfully pay heed to them[42].


  As currently drafted, the Convention provides that fingerprints should be taken of all asylum applicants aged 14 and over, while the Netherlands propose to lower this limit to twelve years. [43]While we question the need for taking the fingerprints of all child asylum seekers, and we note that in the UK children under 16 are not normally fingerprinted[44], where this is done appropriate safeguards must be in place. Under the Asylum and Immigration Appeals Act 1993, this means that fingerprints may not be taken of a person under the age of 16, unless in the presence of one of the child's parents or guardians or another adult (not being an immigration officer, prison officer, or constable). We believe that the Convention should be explicit in requiring such safeguards to be in place.


  We welcome the changes made to Article 11 providing clear procedural requirements for the correction or erasure of inaccurate data. However, we note from the Minister's letter that these have yet to be agreed and that a scrutiny reserve has been entered by each member state. As this is the one Article setting out the data subject's rights it is important that the Committee has up-to-date information before it completes its scrutiny.

  From Article 11(2) it is clear that an applicant has access rights to the information held in accordance with the domestic law of the member state concerned. Although the second sentence in this paragraph implies that access requests (which follow the appropriate procedures) will be complied with, it is not entirely clear whether this means that there are no substantive grounds on which this information can be withheld. In terms of UK domestic data protection law, it is hard to see how the exceptions to subject access—for example, those relating to policing and national security—would be relevant in the absence of the Central Unit holding anything other than fingerprint data. However, we believe that this point should be clarified with the Government. In any event, it would be prefereable that Article 11(2) is more explicit on this point.


  As stated in our previous letter, we welcome the Government's stance in accepting the ECJ's jurisdiction over preliminary rulings in relation to this Convention. We are nevertheless disappointed that it cannot support a provision which binds all member states.

  We appreciate that as other member states have consistently accepted the need for ECJ jurisdiction over third pillar conventions, this is unlikely to make much difference in practice. It would however show an acceptance by the UK of the principled arguments for a consistent approach to this matter. Moreover, the Government's stance fails to acknowledge the changes that will necessarily occur in this area when the Amsterdam Treaty is in force.


  As the Minister confirms, the proposal to extend the scope of EURODAC to all illegal immigrants raises some fundamental and difficult issues. Although no precise details are given, we understand that a report is being prepared which looks at the implications of this proposal in more depth. We also understand that, in the event of political agreement being reached, the proposal will be implemented by a separate protocol attached to the Convention.

  JUSTICE believes that it is important that the Committee is given an indication of the Government's stance on this proposal—at least in principle—before the JHA meeting in May. This would allow it to make some general observations if it felt this to be appropriate. However, it would seem clear that if the matter is pursued further, any draft protocol will have to be submitted to both the European Parliament and to national parliaments for detailed scrutiny.

  Therefore, at this stage, we wish only to draw attention to some of the more obvious issues arising from the proposal. First, in order to comply with the requirements of Article 8 ECHR, on privacy rights, it will be necessary to show that the fingerprinting of all illegal immigrants is justified in the circumstances. Second, there is the problem of defining what is meant by an "illegal immigrant". This is notoriously difficult and likely to have a different meaning in each member state. Third, it would be important to safeguard the position of a person who seeks asylum after having been deemed an illegal immigrant some time previously.

  There are also important legal considerations on whether it is permissable to add a Protocol which alters the purpose of the enabling Convention. We note that the purpose of the EURODAC Convention is to assist in the determination of the state responsible for examining an application for asylum. Therefore, as a subsidiary instrument, a Protocol to the Convention on fingerprinting all illegal immigrants may only allow fingerprints to be used for this purpose; it could not allow for their use in the context of criminal investigations or for immigrant control in general.

  We hope that these comments are of some assistance. We would welcome the opportunity to comment further in the light of any major developments, particularly in relation to the proposal to extend the Convention's remit to illegal immigrants.

1 May 1998

42   Study of Council practice regarding statements for the minutes in connection with openness, Council doc. 6879/95. Back

43   As stated in a letter of 4 March 1998 by the Dutch minister of Justice to the Netherlands Parliament (TK 1997-98, 23 490, no 90). Back

44   Immigration, nationality and refugee law handbook, Joint Council for the Welfare of Immigrants (1997) p.93. Back

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