Select Committee on European Union Thirteenth Report


Letter from the Rt Hon Jack Straw MP, Home Secretary, to Lord Tordoff, Chairman of the Committee

  The 10th Report of the Committee on the European Communities raised a number of issues and outstanding concerns about the extension of the scope of the draft European Convention to cover the fingerprinting of certain illegal immigrants. I enclose the Government's response to the Report.

  I am also writing to inform the Committee that the Government has notified the President of the Council of the European Union of its intention to participate in the adoption of the Commission's proposal for a Council Regulation to establish "Eurodac" which was presented to the Council in French on 9 July 1999 and in English on 13 July 1999, and which was deposited for scrutiny on 5 August.

7 October 1999

Government Response

  This note responds to points made in the 10th Report of the House of Lords Select Committee on the European Communities. It should be read in conjunction with the note sent to the Committee by Kate Hoey MP on 10 May 1999. Since the Committee issued its Report, the Commission has issued proposals for a Council Regulation which would replace the frozen Eurodac texts. The Commission's document (Council No 9988/99) was deposited for scrutiny on 5 August.


  The Committee considers that the question is raised as to whether the extension of the Eurodac system to potential rather than actual asylum seekers would have any significant impact in improving the operation of the Dublin Convention. It considers fingerprinting encroaches on the individual right to respect for private life and that, if new fingerprinting powers are to be created, they should be based on a demonstrable practical need, consistent with our international obligations and proportionate to the needs set out in the Dublin Convention.

  In the note sent to the Committee by Kate Hoey on 10 May 1999, the Government explained the reasons for its view that the legitimacy and proportionality tests under Article 9(2) of the ECHR were satisfied in respect of the proposed extension of Eurodac to illegal immigrants. The Committee has questioned whether there is sufficient evidence for a practical need for the powers to take and compare fingerprints of certain illegal immigrants. In particular, what evidence is there for the scale of the problem? The experience of officials throughout the Member States suggests that there are now considerable and frequent movements of third country nationals without permanent residence status within the territory of the EU. Such movements are both spontaneous and managed by "agents" and racketeers. The third country nationals concerned move between Member States for a variety of purposes, including finding work, moving to be with relatives or friends, or, if they are illegally present, in order to escape the threat of detection or enforcement action. In all this, applications for asylum play a significant part. In some cases, there are genuine reasons for the claim; in others, the claim is not genuine but is part of a strategy for establishing the applicant's stay in the EU.

  Even if a third country national on entering the EU makes just one journey to a Member State and then does not move again, that journey may often cross the territories of several Member States. To take the United Kingdom as one example, while some asylum applicants have come direct from outside the European Union, substantial numbers of others—all those, for example, who claim on arrival at Dover or Waterloo—have come via one or more other Member States. Some of this latter group will have claimed asylum elsewhere, but experience of interviewing these applicants and investigating their circumstances suggests that many will have made it their objective to claim asylum in the United Kingdom, and will not have sought to declare themselves elsewhere en route as asylum seekers. A number of these will, however, at some point have come into contact with the authorities of other Member States and been recognised as illegal immigrants. It is this group for whom the application of the Eurodac process to illegal entrants apprehended on or soon after crossing the border would help to establish the question of responsibility under the Dublin Convention, and through that to achieve Dublin's wider purposes.

  Although it is not possible to determine how many people would fall into this particular group it is worth noting that between January and August 1999 there were 2,843 asylum applications at Waterloo and 4,445 at Dover. All of these people will have come from another EU Member State. Looking at the question the other way round, there is no doubt that in practice in Member States generally significant numbers of people detected as illegal entrants are not in fact returned to their countries of origin, and that many of these eventually travel on to other Member States. In some cases, they may do so with the express object of claiming asylum; but in others, they may do so in the first instance in order to find work or for another reason, only later claiming asylum when, for example, detected and facing the prospect of removal. The Government agrees that the draft Regulation would be strengthened by excluding from the fingerprinting requirement illegal immigrants who are detained, with a certainty of removal to outside the EU.

  The other group of third country nationals not claiming asylum who would be caught by the proposals are those illegally present in a Member State who may have claimed asylum previously in another Member State. This group is likely to be smaller than the group of people who enter one Member State, illegally, then later claim asylum in another. However, Article 11(1) of the draft Regulation provides guidance on the circumstances in which the checks should be made on people potentially belonging to this group, thus narrowing the application of the power. In addition, any data submitted to Eurodac under this category is to be used only for the immediate comparison with fingerprints of asylum seekers, and may not be recorded on the database. It is precisely a concern to achieve due proportionally that lies behind these restrictions and safeguards.

  We accept that taking a fingerprint from an individual involves an interference with the individual's right to private life under Article 8(1) of the ECHR. We are, however, for the reasons explained above satisfied that there is a practical need for this; and that Eurodac represents a proportionate response, given the importance of the Dublin Convention both for the individual asylum seeker and for society, and given the considerable boost which Eurodac would give to the effectiveness of the Dublin arrangements in these circumstances.


  The Committee says that the Council has acknowledged the need for further clarification of the scope and application of those provisions of the Protocol dealing with the allocation of responsibility for examining an asylum application and for taking charge of an asylum applicant by drafting a minutes statement. [Those provisions are now to be found at Articles 8 and 11 of the draft Regulation formerly Articles 3 and 7 of the Protocol.] The Committee considers that the need for a Council minutes statement suggests that Article 3 of the Protocol does not provide reasonable certainty. The Committee does not share the Government's view that the protocol is intended to narrow rather than enlarge the scope of the Dublin Convention. For those aliens apprehended in connection with the irregular crossing of an external EU border, the Committee says it does not share the Government's optimism that it will be absolutely clear whether and when fingerprints are to be taken. A considerable risk of overlap between new Article 8 (which deals with those who irregularly cross an external EU border) and Article 7 (which deals with those found illegally in a Member State) is also cited.

  The Government understands the Committee's concern that important facets of the agreement should be reflected in the text rather than in a Council minutes statement. In relation to the proposed minutes statement relating to Article 7 of the Protocol, the substance of this has been incorporated into Article 11(1) of the draft Regulation. The Commission has also proposed that the substance of the minutes statement relating to Article 3 of the Protocol be similarly incorporated. The Government supports this proposal, which it believes would further strengthen the text in terms of precision and legal certainty.

  The Government continues to believe that the provisions in Articles 3 and 7 of the Protocol do not in themselves affect the scope of concepts in the Dublin Convention. These provisions reflect the need, in the particular context of Eurodac, for a common understanding of the circumstances in which the sharing of fingerprint data is appropriate. Paragraph 82 of the Committee's Report suggests that to take the fingerprints of illegally present third country nationals would take Eurodac beyond the purpose of facilitating the Dublin Convention, if the people concerned were claiming protection on non-asylum grounds. It is quite correct that the Dublin Convention is concerned only with asylum. But, in the situation described in the draft minutes statement, now incorporated in Article 11(1)(b) of the draft Regulation, it is the fact that there are reasons for believing that the person concerned did previously make an asylum claim in another Member State that brings the Dublin Convention potentially into play. The significance of the reference to a later, non-asylum protection claim is that, in the experience of officials in the Member States, there is an increasing tendency of applicants to deploy claims for protection outside the 1951 Convention with the aim of escaping the effect of rules and agreements—such as the Dublin Convention—that apply only to asylum claims under the 1951 Convention. It is quite clear that once an applicant has claimed asylum in a Member State, the Dublin Convention applies to him if he is found elsewhere in the EU, whether the claims asylum there, claims non-asylum protection, or makes no claim at all.


  The Committee questions whether the interference with the right to respect for private life in Article 8(1) of the ECHR can be justified. The Committee expresses concern that there does not appear to have been any prior detailed assessment and appraisal of the compatibility of the Protocol with the ECHR at a domestic or an EU level. The Government's assessment appears to be based on the legitimacy of fingerprinting for the enforcement of domestic immigration and asylum policy rather than for the specific purpose of the Protocol. The requirement for fingerprinting to make Dublin work better needs to be demonstrated more clearly.

  We believe that to view the Dublin Convention as a purely administrative measure aimed at facilitating the allocation of asylum seekers among Member States is unduly limiting. Clearly the immediate purpose behind Articles 6, 10(1)(c) and 10(1)(e) of the Dublin Convention (the provisions relevant to Articles 8 and 11 of the draft Regulation) is to provide a rational basis for the allocation amongst Member States of third country nationals who have claimed or may claim asylum. But, behind these provisions lie all the justifications set out in Kate Hoey's letter of 10 May 1999 which explained how the fingerprinting measures in the Protocol would protect the rights of asylum seekers as well as helping to prevent crime and disorder. These are not just incidental by-products of the Dublin system, but fundamental reasons for creating such a system in the first place. In the case of the protection of the rights of other asylum seekers, it is clear that those drafting the Dublin Convention had such a justification in mind—the fourth point of the preamble to the Dublin Convention is to take measures to avoid the situation where asylum seekers are left in doubt for too long as regards the likely outcome of their applications.

  From the outset the Member States were concerned to ensure that the protocol was in accordance with international law; the compatibility of the provisions with the ECHR was discussed extensively at meetings of the Eurodac Working Group when the text was being drawn up, and the Council Legal Service was fully consulted. It is partly as a result of that consideration that a number of the safeguards and limitations were included in the draft Protocol, for example on the recording and storage of data.

  The Committee say that the Government has not produced any evidence to show that the scale of the movement from one Member State to another for the purpose of claiming asylum is such as to justify interfering with the right protected by Article 8(1), nor that creating a fingerprint power would deter such movement or prevent disorder. It is not clear what basis the Government has for claiming that most illegal entrants crossing an external EU border and susceptible to fingerprinting would normally seek asylum in another Member State within two years of their first illegal entry.

  It is not possible to demonstrate statistically that a Eurodac fingerprinting power would deter these movements or prevent disorder. In any event, we would not expect the number of these movements to be large—but nevertheless they would be significant. We are aware through the consideration of asylum claims that it is not unusual for asylum seekers to have already sought asylum in another Dublin Convention country—with that claim having been rejected or still under consideration. And it is equally our experience that asylum seekers have commonly arrived from another Member State which they entered illegally. We are investigating whether other Member States have evidence to support our view. We cannot prove that a power to fingerprint would deter movement from one Member State to another. But it is highly likely that it would if all Member States complied with their obligations in this respect under the Regulation. For example, someone who makes an irregular border crossing into Germany from outside the EU must be far less likely to travel to another Member State if he knows he will be detected immediately through his fingerprints and returned to Germany. If he is unlikely to be detected, it is more worth his while.

  On the second point, although figures are unknown, intelligence leads us to believe that significant numbers of asylum seekers here have travelled through a number of European countries. They are likely to have illegally crossed an external EU border in the first instance. Other Member States have the same to say. Tracking the immigration history in these cases can often be very difficult but it seems likely that in many cases an asylum claim would be made within two years. They would not necessarily be made much sooner than that: many apply for asylum only on being detected as illegal entrants.

  The Committee says that the scale of the problem of undocumented illegal immigrants who seek asylum should first be established before proposing new powers to deal with it. There may be a case for limiting fingerprinting to individuals who have no documents establishing their identity or where there are reasonable doubts as to the validity of personal documentation.

  Those who cross external EU borders illegally or who are found illegally present in a Member State have already committed offences under domestic law. Even if they have documentation establishing their identity at the time when they are caught, they might decide to destroy that documentation at a later date if they realise that identification will result in their being returned to another Member State. There is a serious possibility that the purpose of these provisions in the Regulation would be undermined if they were limited to fingerprinting only inadequately documented illegal immigrants.


  The Committee comments on an important and useful role for the ECJ in determining the meaning and scope of the provisions in the Protocol.

  The Government agrees with the Committee's reasoning on this point, while noting that vital work remains to be done to assist the European Court of Justice in reducing delays.

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