Access
to immigration data for asylum purposes
101. One particular issue that arose during discussion
of the SIS II immigration data Regulation is the question
of United Kingdom access to (and input of) alerts for asylum-related
purposes. We discuss this in chapter 7, but there is an underlying
issue as to whether in any Schengen State asylum authorities should
have access to SIS data at all. It appears from the evidence that
so far only Austria gives asylum authorities access to the SIS.
(Q 359)
102. The Commission had proposed that authorities
should have access to data on persons in the context of an asylum
procedure in order (i) to implement arrangements for the exchange
of information under the Dublin Regulation[78]
and (ii) to decide upon the merits of the application in the case
of persons listed for denial of entry for crime-related reasons.[79]
103. Both of these suggestions are problematic
in the absence of full information which would allow an asylum
authority to make an informed and lawful decision. Additional
information is needed to determine, in the first case, whether
the detailed criteria for allocation of responsibility under the
Dublin Regulation are met. In the second case, asylum authorities
must be satisfied that the detailed rules concerning the question
of exclusion from refugee status on the grounds of criminal activity,
or suspicion thereof are complied with. It would not be right
for an asylum application to be rejected without full information
being exchanged between Member States.
104. It would be possible to address this issue
either by providing expressly for the exchange of supplementary
information through the national SIRENE bureaux following an asylum-related
hit in the SIS II legislation, or by providing for a mechanism
for the exchange of such information in the EC's asylum legislation.
But neither the SIS II legislation nor the EC's asylum legislation
addresses the issue sufficiently.[80]
105. If the United Kingdom asylum authorities
were ultimately given access to this information, there would
be a particular difficulty for the United Kingdom in providing
information which might be used in determining asylum applications
in other EU States by persons whose deportation from the United
Kingdom was deemed to be conducive to the public good, or by members
of their families.[81]
The discretion of the Secretary of State in those cases is absolute,
and reasons for the deportation are never given. If such persons
were listed in alerts placed on SIS II by the United Kingdom,
or their data otherwise exchanged, the Government might be forced
to disclose the reasons for their deportation.
106. Access to SIS II data (or data in
the current SIS) by asylum authorities, to determine responsibility
for an asylum application or to decide on the merits of an application,
must be subject to detailed safeguards ensuring a full exchange
of relevant information following a hit. It is not enough simply
to note that there is an alert against a person.
Europol
107. We received evidence on the SIS II
project from Mr Daniel Drewer, Europol's Data Protection
Officer. Although Europol in principle has had access to certain
SIS alerts since October 2006, Mr Drewer told us that in
practice access was still waiting for technical implementation.
(Q 446) The question which arises is the purpose of Europol's
access to this data, since the SIS was established (and SIS II
is being established) for the purpose of providing information
in order for law enforcement or immigration authorities to take
action following a hit on an alert. But Europol has no power to
take any action based on the alerts which it accesses.
108. Mr Drewer told us that if there is
an alert, Europol will contact the Member State concerned and
ask for permission to use the alert and, if necessary, ask for
supplementary information. "The information that Europol
will get from the Member State that has been activated by our
Schengen alert will be considered by Europol as a Member State
contribution to Europol's system, so it is no longer Schengen
information … and from then on we handle it according to
Europol's Convention." (QQ 450, 458). Thus Schengen
information becomes Europol information. This information could,
under the terms of the Europol Convention, be transferred to third
states or third parties with which Europol has agreements in place
for the exchange of personal data. Europol has operational agreements
in place with Canada, Croatia, Eurojust, Iceland, Interpol, Norway,
Switzerland and the United States (Q 462). In limited circumstances
information can be exchanged in the absence of such an agreement.
(QQ 466, 467).
109. The witnesses from the Meijers Committee
expressed concern about the possibility that information stored
in SIS II would find its way to third countries. Such transfers
of SIS data are not allowed in the SIS II legislation.[82]
They were particularly concerned about the possibility of such
information falling into the hands of the security services, because
this meant losing control of how the information was used. (Q 98)
110. Europol has a legal obligation to keep reports
on any retrieval of personal data. (Q 446) We believe that
Europol should indicate in its annual reports how often it has
accessed SIS data, and what use has been made of that data, and
we so recommend.
72 i.e. the embassies and consulates of all Schengen
States. Back
73
Article 27 of the Regulation and Article 40 of the Decision. Back
74
Article 46(5) of the Decision. Back
75
See Articles 101 and 102 of the Schengen Convention.. Back
76
Article 31(8) of the Regulation and Article 46(8) of the Decision. Back
77
See generally, for instance, PG and JH v United Kingdom
(Reports 2001-IX), Peck v United Kingdom (Reports
2003-I) and Perry v United Kingdom (Reports 2003-IX).
As regards databases in particular, see Amann v Switzerland
(Reports 2000-II), Rotaru v Romania (Reports
2000-V) and Segerstedt-Wiberg and others v Sweden,
judgment of 6 June 2006. Back
78
Council Regulation (EC) 343/2003 of 18 February 2003 establishing
the criteria and mechanisms for determining the Member State responsible
for examining an asylum application lodged in one of the Member
States by a third-country national (Dublin II), OJ 2003 L 50/1 Back
79
See COM(2005)236, Article 18, and Explanatory Memorandum. Back
80
The rules on exchange of information on asylum applications between
Member States (Article 21 of Regulation 343/2003) do not clearly
address the issue of the transfer of such information. Back
81
Section 3(5)(b) and (c) of the Immigration Act 1971. Back
82
See Recital 18 and Article 54 of the Decision. Back
