Select Committee on European Communities Tenth Report

Letter from Joyce Quin MP, Minister of State at the Home Office to Lord Tordoff, Chairman of the Select Committee on the European Communities

  Thank you for your letter of 21 May. I was particularly grateful for the clearance which the Committee was able to give to the Convention before the Justice and Home Affairs Council on 28-29 May.

  As you will already be aware it did not prove possible to reach political agreement on all the outstanding points on the draft Eurodac Convention at the Council. However Ministers did agree that the Convention should be extended to certain illegal migrants by way of a Protocol; and that the terms of the Protocol should be agreed by the end of this year. As soon as a draft Protocol is available I will, of course, make it available to the Committee.

  In the meantime you asked for my reactions to the points made by Justice and ILPA concerning the extension of the Convention to illegal immigrants.

  The first point I would make is that there is, of course, no intention to extend the draft Eurodac Convention to include a requirement to fingerprint all illegal immigrants or everyone seeking admission at a border. The extension of the Convention which the Council proposes to make by way of a Protocol is to be linked very closely to the provisions of the Dublin Convention. Most significantly Article 6 of the Dublin Convention provides that "when it can be proved that an applicant for asylum has irregularly crossed the border into a Member State by land, sea or air, having come from a non-Member State of the European Communities, the Member State thus entered shall be responsible for examining the application for asylum." Article 10(1)(c) and 10(1)(e) of the Dublin Convention could also be of potential relevance. They deal with circumstances where there is an obligation to take back a person who is irregularly, or illegally, in one Member State but who has or has had an asylum application under consideration in another Member State.

  I hope that this makes clear that in extending Eurodac to some illegal immigrants there is no question of confusing asylum seekers with migrants as ILPA suggest might be the case. The extension would be directly linked to the provisions of the Dublin Convention; and this recognises that some illegal migrants subsequently claim asylum other than in the country via which they first entered the EU.

  Both ILPA and Justice note that there is no agreed concept of an illegal immigrant. That is certainly the case, despite the fact that the term is used as a basis for discussion. However, as I have explained above the intention in extending the Eurodac Convention would simply be to provide support for relevant provisons in the Dublin Convention. In drafting a protocol one of the key considerations will clearly be the definition of the relevant categories. Any definition will need to be specific to the Dublin provisions which it is intended to support. On that basis I do not believe that the work undertaken in the context of Eurodac will constrain work being undertaken for more general purposes.

  Justice were concerned about the need to safeguard the position of a person who seeks asylum after having originally been identified as an illegal. As in the Dublin Convention Member States undertake to examine the application of any alien who applies at the border or in their territory to any one of them for asylum I do not think there is any reason to fear that extending Eurodac to some illegals will prejudice their position as potential asylum seekers.

  It may also be helpful if I briefly address the other main points which were made by ILPA and Justice in their letters. ILPA questioned the means which we propose to ensure that individuals have the means to enforce the Convention's rights in United Kingdom law. The simple answer is that where Eurodac requires that an indivdual be given legal rights which are judicable before our courts we would intend to give effect to those rights in legislation in so far as this is necessary. Our analysis of what may be required is, however, still at an early stage.

  The postion in respect of the ECJ jurisidiction on preliminary rulings remains unclear. As I had previously explained we had decided that we could accept that there should be an optional preliminary rulings jurisdiction for the ECJ in Eurodac. The United Kingdom did not intend to opt-in to such a jurisdiction. However following recent advice from the Council Legal Service further consideration is being given to the question of the appropriate jurisdiction for the ECJ. No final view has yet been reached. I will, of course, let you know if there is any change to the United Kingdom negotiating position on this question.

  I am copying this letter to the Chairman of the European Legislation Committee in the House of Commons and to the Chairman of the Commons Home Affairs Committee.

9 July 1998

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