Select Committee on European Communities Tenth Report

Memorandum by the Immigration Law Practitioners' Association

  We have been asked to provide to the Sub-Committee the views of this organisation on the proposed extension of the draft EURODAC Convention to illegal immigrants. This is an issue which will be on the agenda of the Justice and Home Affairs Council later this month and is not uncontentious. As is made clear in the letter from the Minister to Lord Tordoff of 8 March 1998, the pressure for such an extension appears to be coming from the German and Austrian Governments. From the framework, it would appear that this proposal is not unrelated to the influx of Iraqi nationals earlier this year which has given rise to very great concern in some Member States. Indeed, the influx of a relatively small number of Iraqi nationals appears to have thrown the whole programme in Justice and Home Affairs under the UK presidency into disarray.


  The first problem which arises in respect of this submission is that we have no text on the extension of the EURODAC Convention to illegal immigrants. This is something of an impediment and means that our comments must be limited to the principles involved. We would therefore begin the consideration with a brief reminder of the context: the 26 Point Action Programme of January 1998 on Iraqis which was designed to respond to what some Member States at least considered a crisis. One substantial concern of this Association in respect of that Programme was the apparent confusion of migrants and asylum seekers. It was our understanding that the majority of persons who arived in the Member States in this "influx" were seeking asylum. We were advised by officials at the Home Office that other persons were identified but the overall impression which we were given was that in fact the majority were asylum seekers. However, the Programme deals with much wider issues of migrants seeking entry to Member States and the two categories are intertwined in the programme.

  This is most unfortunate as it confuses two issues: the duty to provide protection to persons in need either as refugees under the UN Convention relating to the status of refugees 1951 and its 1967 Protocol or under Article 3 of the European Convention on Human Rights (the duty not to return a person to a country where there is a substantial risk that he or she would be subject to torture, inhuman or degrading treatment) with the question of immigration control. Where a person seeks asylum, all the Member States are under a duty arising from the two conventions to provide protection until such time as there is a change of circumstance in the country of persecution such that there is no longer a risk, or there is a decision that rejection of the individual will not result in him or her being returned to a country where he or she would either be persecuted[45] or suffer treatment contrary to Article 3 ECHR.[46]

  Where a third country national seeks admission to a Member State for some other purpose unrelated to protection the discretion rests with the Member State whether or not to admit the person, subject to the Member State's obligations in international law. "As the Court [of Human Rights] has observed in the past, Contracting States have the right, as a matter of well established international law and subject to their Treaty obligations including the [European Convention on Human Rights] to control the entry, residence and expulsion of aliens".[47]

  It is therefore very important to differentiate between the two categories as otherwise, persons in need of protection and in respect of whom there is a duty not to refoule at the border are confused and made subject to rules relating to prospective migrants for whom no such protection is needed. This becomes more and more problematic in the European Union where criteria on admission to the asylum procedure have become increasingly sophisticated, not least with the entry into force of the Dublin Convention which regulates responsibility among the Member States for determining asylum applications made within the territory. What we mean here is that in accordance with the implementation of the Dublin Convention in the Member States, under national procedures, an asylum seeker may not be admitted to the procedure where the State determines that another Member State should take responsibility. Some countries have time limits within which asylum applications must be made after entry.[48] The more complex the arrangements in different Member States on criteria for admission to the asylum determination procedure the greater the risk that persons in need of protection will fail to meet those criteria and fall to be considered under national legislation relating to migrants.

  For these reasons we would first stress the importance of keeping the concepts of asylum seekers and migrants separate. An asylum seeker should only be considered under provisions relating to migrants if he or she so chooses or where his or her application for asylum has been ultimately rejected. These initial observations form the basis for our following comments on the potential extension of the EURODAC Convention to "illegal immigrants".


  The most cursory perusal of the draft EURODAC Convention confirms that the exclusive purpose of that convention relates to asylum seekers. The recitals begin by reference to the "objective of harmonisation of the Member States' asylum policies". They continue with reference to the need to "avoid any situations arising which would result in applicants for asylum being left in doubt for too long as to the likely outcome of their applications .  .  . " It is further clear that the draft convention is intended and designed as a flanking measure for the Dublin Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities 1990. Reference is now made to the European Convention on Human Rights, but this must be understood in the context of the duty on all Member States under Article 3 of that Convention specified above.

  If the reader then turns to Article 1 of the draft convention "the sole purpose of [the Eurodac system] shall be to assist in determining the Member State which is responsible pursuant to the Dublin Convention for examining an application for asylum . . ." (emphasis provided). There is no scope within the draft as it stands and as it has been drafted for an extension to other purposes. All the provisions have been drafted by reference to this exclusive purpose and do not make sense if transformed into a convention which applies to anyone seeking admission at a border. For example, Article 4 states that ". . . the Member States shall promptly take the fingerprints of every applicant for asylum of at least 14 years of age . . ." If such a provision were extended to another category of persons seeking entry or present on the territory of the Member States the administrative burden would be bizarre.

  The confusion of asylum seekers and migrants is contrary to the Member States' duties in international law and is most unhelpful in discerning the correct implemention of the Member States' obligations of protection which only relate to one category and not the other.


  The first observation to be made here is that there is no concept of an illegal immigrant. Indeed, even in the UK's own immigration and asylum laws the concept does not exist .There are legally defined concepts of "illegal entrants" and of "persons in breach of conditions" of entry but not of "illegal immigrants". In the European context, it is deeply unclear what the concept of an "illegal immigrant" might be. The national legislation of the Member States on legality of entry and residence vary greatly. For instance we are advised that in the German instructions on their immigration laws where a person is up to one year late in submitting an application for an extension of his or her residence that period of "illegal" residence is to be disregarded. Such an instruction would sit most uncomfortably within the UK immigration system where overstaying is a continuing offence under Section 24(1A) of the Immigration Act 1971 even after the first day following the end of the permitted leave to enter or remain.

  In UK legislation, an "illegal entrant" includes a person who has gained admission to the country by reason of a material deception of an immigration officer. This means that there may, at any given time be many, many illegal entrants in the UK and they may come and go without ever being detected. Someone apparently lawfully in the UK may have deceived an immigration officer into permitting him or her entry, for instance by claiming to intend to study in the UK when the individual only ever intended to have a short holiday, and therefore be an illegal entrant in law. But the person may well leave the UK without ever being detected. He or she would certainly not be detected on exit as the passport would indicate that the admission had been lawful. It is therefore a rather slippery concept.

  We are not aware of the definitons in other Member States' legislation on "illegal immigrants" or such similar concepts. We would, however, suspect that the variations are as wide as the imaginations of the civil servants applying them. This lack of a consistent definition has bedevilled work done in the Third Pillar on expulsion of third country nationals resident or working without permission on the territory of a Member State. Definitions can, of course, always be devised and no doubt some coherence will be needed before too long for this concept. However, at the moment there is none. We understand that the Commission's statistical office, Eurostat, has been trying to work on this concept in order to be able to provide information on illegally resident third country nationals. As far as we are aware, however, their efforts are bogged down in conceptual difficulties and problems.

  What we would suggest is that a draft convention on fingerprinting asylum seekers is perhaps one of the least appropriate places to begin this difficult task on a common definition of illegal migration. If the Member States have the political will to proceed towards the development of a coherent and structured approach to the question of illegal entry and residence on their territories this should be done in a proper framework where all the complexities attendant on the problem can be teased out, for example, the position of Turkish workers entitled by virtue of Community law to extensions of their work and residence permits after one year's lawful employment[49] but who have failed to make an application. The indication from the Court of Justice is that for them the right of residence and work derives from Community law and is only evidenced by the residence and work permit therefore the failure to obtain a renewal of such may not extinguish the right. This is only one of many problems which exist in relation to a concept of "illegal immigrant".

  We would therefore suggest that it is at best naïve to think that it would be possible somehow to fit a definition onto the back of the draft Eurodac Convention which will make sense of such a complicated issue.


  There are two main problems with the extension of the provisions of the draft Eurodac Convention to "illegal immigrants":

  1.  The problem in principle of the purpose of the convention as a flanking measure to the Dublin Convention relating to asylum. The position of asylum seekers and migrants should not be confused nor the clear dividing line between the two blurred. Such a sloppy approach to the international law obligations of the Member States to provide protection to persons in need is highly unsatisfactory and gives the unfortunate impression that the Member States do not take their duties sufficiently seriously.

  2.  There are very practical and serious problems about the creation of the concept of an "illegal immigrant". These need to be considered seriously and with great care before any measure is proposed at Union level bearing in mind the variations which exist at national level. The Member States are at risk of placing on themselves in the context of an international agreement a duty to take very precise steps (ie finger printing, data protection etc) in respect of an unknown and highly variable subject matter.

7 May 1998

45   Article 33 UN Convention relating to the status of refugees 1951 and Protocol 1967. Back

46   Soering v UK [1989] EHRR 429: Ahmed v Austria [1997] EHRR 278. Back

47   Chahal v UK [1996] EHRR. Back

48   The best known example of this kind of provision is in the Belgian legislation. Back

49   Article 6 Decision 1/80 of the EEC Turkey Association Council; Sevince [1990] ECR I-3461; Bozkurt [1995] ECR I-1475. Back

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