Oireachtas Joint and Select Committees
Wednesday, 2 July 2014
Joint Oireachtas Committee on Justice, Defence and Equality
EU Regulation on Eurodac: Motion
The purpose of the meeting is to consider the proposal approval by Dáil Éireann and Seanad Éireann of a regulation of the European Parliament and the Council on the establishment of Eurodac - recast - and the effective application of the Dublin Regulation. A briefing document has been circulated to members.
I welcome the Minister and her officials and apologise for the delay in starting the meeting. Before we commence, I would like to draw the Minister's attention to the fact that the committee recently received an Africa Day Award in recognition of its work in the area of integration, anti-racism and so on, of which members are very proud. It is the first time an Oireachtas committee has received such an award. I now invite the Minister to brief the committee on the motion, following which we will have a question and answer session.
I congratulate the committee on its award in respect of its work on what is an important issue. Earlier this week, I launched the annual monitoring report of the integration centre. There is a great deal of work to be done in this area.
This morning, we are discussing the opt-in to the recast Eurodac regulation. I will start by giving some background to the regulation and will then deal with its general provisions. There are approximately six chapters to the regulation, each of which I can detail later if members wish. First, I will given an overview of the regulation.
This regulation was adopted in accordance with the usual legislative procedure, the co-decision procedure between the Parliament and the Council, as set out in Article 294. This regulation is an example of what is known as the recasting technique - what we in the Houses of the Oireachtas would call an amendment. It includes what was in the regulation before and the substantive new amendment, which we are discussing today. It was included in the range of measures in relation to asylum discussed by the European Commission and included in its communication of June 2008, entitled The Policy Plan on Asylum - An Integration Approach to Protection across the EU.
It is worth pointing out that this regulation was drawn up and agreed by the Parliament and the Council during Ireland's Presidency of the European Council last year. The Stockholm Programme 2010-2014, previously discussed by this committee, sets out the strategic guidelines in this regard for the period 2010 to 2014. Last week, the Council agreed the new programme for the JHA, which no doubt we will discuss at a future meeting of this committee. Following the Luxembourg meeting, I discussed with the committee the priorities agreed at that meeting. In line with the Stockholm programme objective the Union has established the European Asylum Support Office, has recast the asylum directives on reception conditions, procedures and qualifications, and has recast the regulations comprising the Dublin system, the Dublin regulation and the Eurodac regulation.
The script circulated sets out the history of Eurodac and the approach taken by Ireland to the regulation at different points. I will summarise this by saying that in May 2012, the Commission presented the third amended proposal. I have details on the other two should members wish to discuss them. Basically, the Commission presented the third amended proposal which included the law enforcement access element. The Commission noted that this element was needed as part of a balanced deal on the negotiations for the completion of the package of legislative measures in relation to the Common European Asylum System. I am informed that it was important to member states that this recasting be done if they were to move forward on this area. On that basis, it was adopted in June 2013.
The Office of the Attorney General has advised that the original opt-in to the December 2008 proposal does not cover the Eurodac regulation as adopted. Consequently, it is necessary to begin afresh the national proceedings for the recast Eurodac regulation. The recast regulation applies from July 2015. Up to this date, the original Eurodac regulation of 2000 continues to apply. Opt-in in respect of this new regulation which we are discussing today will commence in July 2015. The UK has already opted-in to the regulation.
Members will be familiar with the Dublin system, the Dublin regulation and the Eurodac regulation. The Dublin system is set out in detail in the script circulated. As members will be aware, in an area without controls at the internal borders, the question of asylum shopping or refugees in orbit arises, namely, who is responsible for managing the processing of the particular person in question. The Dublin system and the Dublin regulation is the mechanism which deals with this. The intergovernmental Dublin Convention was the forerunner to the Dublin regulation. Arrangements for determining responsibility for considering asylum applications initially formed part of the intergovernmental Schengen Convention. These arrangements were replaced with the convention determining the state responsible for examining applicants for asylum lodged in one of the member states. As members will be aware, that convention was called the Dublin Convention. To support the operation of the convention, the regulation was then adopted in December 2000. A Council regulation was also passed in respect of the establishment of Eurodac as a community-wide system for the comparison of the fingerprints of asylum applicants.
Essentially, what we are discussing today is the exchange of fingerprints. The regulation before us seeks to tighten up the various procedures, provides for new timelines and introduces the law enforcement element. The Dublin regulation is considered to be the cornerstone of the common European asylum system. As I said, it is the criterion and mechanisms for determining responsibility for an application for asylum. The regulation improves the Dublin Convention but is based on the same principles. There are not then any new principles in this regulation in relation to the Dublin Convention, except for the introduction of the law enforcement element and the tightening up of efficiency in terms of exchange of information.
The Dublin regulation was recast in June 2013 with enhanced provisions for the benefit of applicants for international protection, which include the personal interview to facilitate the process of determining what member state is responsible, the right to an effective remedy in the form of an appeal or review in fact and in law against a transfer decision before a court of tribunal, and strict regulation of the detention of an applicant, which is possible only when there is a significant risk of absconding. These initiatives were brought in to support applicants. The regulation provides that the member states responsible will be obliged to take charge of an asylum seeker who has lodged an application in a different member state or to take back an asylum seeker whose application is under examination and who is in the territory of another member state without permission. The transfer of an asylum seeker to the member state responsible is to be carried out at the latest within six months of acceptance of the request by another member state, and when the transfer does not take place within the six month time limit, responsibility lies with the member state in which the application for asylum was lodged. The timeline may be extended to a maximum of 18 months if the asylum seeker absconds.
I will now briefly outline the main provisions of the Eurodac regulation and the recasting of it in June 2013. It is a communication-wide information technology system for the comparison of fingerprints of asylum seekers. It is also a central system and a communications infrastructure. It is also a computerised centralised fingerprint database with that central unit and a business continuity plan and system. More details in relation to this are included in the script circulated. The principal additional elements of the Eurodac regulation include improving the efficient use of Eurodac in relation to prompt transmission by the member states of fingerprints to the central system; ensuring full compatibility with the latest EU asylum legislation; better addressing of data protection requirements; and allowing member states law enforcement authorities and Europol to access the Eurodac central database for law enforcement purposes.
Article 1 of the recast regulation states that the purpose of the Eurodac system is to assist in determining which member state is to be responsible pursuant to the Dublin regulation. The Eurodac facilitates the application of this Dublin regulation, which is based on the Dublin Convention, in respect of applicants for international protection, third country nationals apprehended in connection with the irregular crossing of an external border, and third country nationals who are found illegally present in a member state.
Article 1 goes on to state that the recast regulation also lays down the conditions under which member states' designate authorities and Europol may request the comparison of fingerprint data with those stored in the Eurodac central system for law enforcement purposes. I have given further details and the Chairman may not want me to go into all of those for each chapter. I have summarised in what has been circulated the key points in each of the chapters.
The procedure for comparison of fingerprint data with Eurodac requires member states to designate the parties authorised to request comparisons which shall be authorities of the member states responsible for the prevention, detection or investigation of terrorist offences or other serious criminal offences. Member states are also required to designate a single national authority to act as its verifying authority, which shall be the authority of the member state which is responsible for the prevention, detection or investigation of terrorist offences or other serious criminal offences. That verifying authority must act independently and ensure the conditions for requesting comparisons of fingerprints with Eurodac are fulfilled. Similar procedures apply in the case of comparisons requested by Europol. In exceptional cases of urgency, where there is a need to prevent imminent danger, the verifying authority may transmit fingerprint data for comparison and only verify afterwards, when all conditions are fulfilled.
I have listed the other databases which must be established, and they include the national fingerprint database, the automated fingerprint identification system of other member states and the visa information system. If negative results from these other databases are received, comparison with Eurodac data is permissible where the cumulative conditions are met. The comparison must be necessary for the purpose of the prevention, detection or investigation of terrorist or other serious criminal offences. The comparison must be necessary in a specific case and there should be reasonable grounds to consider that the comparison will substantially contribute to the prevention, detection or investigation of any criminal offences in question. These criteria are the various points which must be worked through before access is gained to the Eurodac database. Chapter 7 deals with data processing, data protection and liability.
The Dublin system is a cornerstone of the common European asylum process and is essential in order to avoid the phenomenon of asylum shopping and secondary movements of asylum seekers within the European Union. Deputies and Senators may be interested to note that during the five years from 2009 to 2013, a total of 683 asylum applicants were transferred from Ireland to other states in the Dublin system and a total of 488 asylum applicants were transferred to Ireland. That is a particular proportion of the total number of 7,822 asylum applications in Ireland during that period.
It is in the best interest of Ireland to continue to participate fully in the Dublin system, including the recasting of the Eurodac regulation. Ireland is participating in the recast Dublin regulation of 2013, following previous approval in 2009 by both Houses of the Oireachtas of the opt-in to the Commission proposal for the recasting. Opting into the recast Eurodac regulation would now allow Ireland to continue to participate fully in the Dublin system beyond the repeal date of 20 July 2015.
It is anticipated that Ireland will not have the necessary technical systems in place to avail of access to Eurodac for law enforcement purposes by July. However, the Attorney General has advised that if a member state does not make a request for law enforcement purposes, the regulation imposes no obligation to comply with the relevant conditions. In that context, the Attorney General has further advised, notwithstanding the fact that Ireland may not immediately be able to comply with all the conditions that apply with regard to law enforcement access, that it is open to us to opt into the recast regulations. I recommend to the Houses of the Oireachtas that approval would be sought to opt into this Eurodac Regulation Recast 603/2013 and it would be granted. I hope that information has given a feel for this regulation, its history and the use to which it will be put. I have explained why it is important for Ireland in managing our asylum process.
It is curious that a total of 683 asylum applicants were transferred from Ireland to other member states in the Dublin system and 488 applicants were transferred to Ireland under the system. There were 7,822 asylum applications in Ireland during this time. How many of those were granted?
The Eurodac database is huge, with 2.3 million individuals, and it will grow substantially as we move forward. There are concerns around access by law enforcement agencies to the database, most notably from the European data protection supervisor. It is not complete access but there is concern that asylum seekers will be criminalised through this process. Why would somebody who has committed no crime be required to give fingerprints as part of a system to have cohesion? The point has been accepted by human rights watchdogs and civil liberties groups. There are reservations about how this database would be utilised and they have learned that law enforcement agencies could access it. What is the Minister's response to the concerns of organisations like Statewatch and the European data protection supervisor that the civil rights of these asylum seekers is being impinged by the regulation?
Quite a number of member states make the opposite point. They have indicated that if they agreed to Eurodac, it would be important that they could have access for law enforcement agencies. As I stated, there are quite a few safeguards, and we are talking about terrorism and serious crime. The other databases must be used first and a case must be made, so automatic access is not granted. There are quite a few safeguards. Quite a number of member states wanted this and felt it a critical process to manage international terrorism and deal with security risks. The Deputy is correct in that one must always be conscious of the data protection issues and individual rights. There is a review mechanism built in and at that point it would be important to see how the system had been used by law enforcement. All the conditions can be reviewed, as well as the kinds of cases involved.
The European data protection supervisor argues that a new impact assessment should have been performed. It also states that the necessity and proportionality of access to Eurodac for law enforcement has not been demonstrated. Does the Minister believe it is okay that an impact assessment was not carried out? Has the important matter of proportionality been demonstrated to our Government? It is a classic argument. On one hand we are told that we must deal with terrorists, which causes understandable fear in the public. Asylum seekers would often come from conflict zones or places with organised terrorist networks.
That fear can legitimately be put to the public. However, there is also the argument from human rights and civil rights organisations as a counterbalance, that they have committed no offence of which we are aware and that of necessity they have had to give their fingerprints, which is supposed to be used for communication purposes between various states. Can the Government demonstrate to the committee that the necessity and proportionality are there? Second, why was a new impact assessment not carried out before we take what is a very serious step?
This was discussed in the European Parliament and the arguments the Deputy is making were also considered by it. It felt that, on balance, the proportionality test had been agreed and worked through. It might be helpful to point out that Article 40 provides that by 20 July 2018 and every four years thereafter the Commission shall produce an overall evaluation of Eurodac, examining the results achieved against objectives and the impact on fundamental rights, including whether law enforcement access has led to indirect discrimination against persons covered by the regulation, and assessing the continuing validity of the underlying rationale and any implications for future operation, and shall make any necessary recommendations. The Commission will transmit the evaluation to the European Parliament and the Council. From the Government's point of view, this is a built-in evaluation of how it works in practice. Therefore, we are recommending it.
The Government agreed this during our EU Presidency, and the Council and the European Parliament have discussed it. There are a number of safety measures built into it and there is the review of how it works. On that basis I am happy to recommend it and I am anxious to convince the committee that we should support it. It is very important that we exchange this type of information, appropriately and with appropriate safeguards.
I thank the Minister and her officials for attending the meeting today. I agree that it is very important that we are part of Eurodac. The way global politics, climate change and so forth are going, we will need to be prepared for an influx of people from different parts of the world who have not been here previously. It is important to be ready for that. Will this be helpful in dealing with people who are in direct provision? I understand that some of the people who are in direct provision have been there for a long time because there might be aspects of their past that could not be verified or whatever. Will this be helpful in dealing with some of those cases, particularly the long-term ones?
No, this is a separate measure which focuses very much on the use of Eurodac. The question about direct provision will be dealt with when we deal with the large immigration Bill and whether we decide to take out a part of that and deal with the protection issues alone. In my view that is probably the most effective way to deal with the issues surrounding the timeframe and the delays in the asylum seeking process at present. This regulation does not impact on that.
I have a few questions about this. The national fingerprint database is mentioned here. The committee has done a great deal of work on the DNA database, and there are issues with medical licensing and fingerprinting in that as well. The Prüm decision covers that. There is also the visa information system. The Minister says we will not be ready for this anyway. The Office of the Attorney General has advised that if a member state does not make a request, the regulation poses no obligation on it to comply with the relevant conditions. What is the situation if a member state makes a request?
Second, what is our position with the technical systems the Minister mentions, which will not be in place by 2015? What timeframe do we have? I realise there are budgetary constraints and that we seeking help from the European Union for funding for that. Will the Minister discuss that?
The Garda made an application for European funding and was not successful. However, I understand another application is in train and that is currently being assessed. This is a very big project, so there is no timeframe at present. However, it would be important to have this level of technology available so we would be in a position to be as involved in the Prüm decision as possible. Clearly, as Deputy Corcoran Kennedy said, given international developments, globalisation, the movement of people and the international nature of terrorism and crime, the more we can have exchange on these matters, the better. We have just passed the DNA database legislation so we are seeking further funding. I do not have a timeframe for that but there is an application.
On the first question, I understand other member states can make requests of us but we do not have the level of technology to respond at present.
I apologise for having had to leave the meeting for a vote in the Seanad earlier. To follow up on the Chairman's question, could we have deferred opting-in until we had fully complied with Prüm, in other words until the database legislation was fully operational and the database is established?
It is not a question of complying, it is just that the level of our technology at present is such that we are not able to make full use of the provision. However, the Government position is very much that we should opt in and in the meantime work towards developing the possibility of having, from the law enforcement point of view, the technology developed. The UK has already opted in. There are other issues dealt with and this is just one element of this recast Eurodac regulation. As one can see in the other chapters, there are many other issues dealt with, such as the timelines for exchanging fingerprint information and so forth. There are many other reasons to opt in at this stage, which will help the process.
Deputy Mac Lochlainn already raised issues about balancing the rights of asylum seekers and so forth. I apologise if some other member of the committee raised this but I have a question about the lower age limit of 14 years under Eurodac. There are greater protections for those under 18 years of age in our database Bill. Are additional protections envisaged in Eurodac for minors of 14 to 18 years of age in terms of taking fingerprints and the use of fingerprint data?
I asked that question too when I saw the figure 14. The interesting point is that it has been there from the beginning. Increasingly, the move is towards having exchange of fingerprint information regarding all citizens. It has been in Eurodac from the beginning, so it is not a new provision. It is a long-standing provision and it was there when we first opted in. The Article states that each member state shall promptly take the fingerprints of all fingers of every applicant for international protection of at least 14 years of age as soon as possible and no later than 72 hours after the lodging of his or her application for international protection as defined by the relevant Article 20.2.2 and transmit them, together with the data referred to, as part of the regulation to the central system. That is automatic. It can be protective of people as well, for countries dealing with people who want to go through the process and are refugees. This exchange is already in place under Eurodac.
Yes. It is also in our own Refugee Act. Sometimes we are not as aware of these things until we see it. The provision is already in Irish law, it is in Eurodac and we have had it from the beginning.
Yes, if people seek asylum. One of the basic mechanisms we use to determine, for example, under the Dublin Convention, if they have already been in another country and if the other country is it should, for example. The Chair asked earlier about the numbers returning and I can say that it is mostly UK at 67%. If one wants to determine if the request should be dealt with, or what is the appropriate country to deal with for the request, it is not unreasonable to have fingerprints and be able to check if the person has already been in another country.
Yes. They would have applied in Ireland first then gone back to the UK. Under the Dublin Convention they came back to Ireland to be assessed. Obviously people went the other way as well who had applied in the UK in the first instance and then came here.
Does the Dublin Convention cover people who apply, in the first instance, to a certain country, not the first country they land in that is in the European Union? There is a distinction. I refer to when a person lands in France or the UK but then travels to Ireland and applies for asylum in Ireland. In that case Ireland is seen as the first country.
With regard to fingerprints, there is an existing directive and they are a legitimate requirement. I am aware of a case where an applicant here in Ireland claimed to be from a certain country which is noted for conflict. The person was fingerprinted in Britain initially and it emerged that the person was from a different country in Africa. When an Irish check was done the authorities could demonstrate that it was a false application and an abuse of the asylum process. That is an example of how the existing system works and, therefore, balance exists.
I have two more questions. First, the UNHCR has argued that the use of latent fingerprints could lead to multiple matches in the existing system. Obviously I am not an expert in this area. However, due to the fragmentary aspect of fingerprints there is a concern there might be a false match. Has the Department here examined the matter? The UNHCR has argued that there is a flaw in the current fingerprint system that could lead to a false match.
There is always a possibility as systems are not perfect. In Ireland any fingerprint record that comes back has to be checked by an expert at Garda headquarters, which is the authority for Ireland.
I am advised that Ireland has not implemented Prüm and, therefore, we cannot seek information from Eurodac for criminal investigations. What are the benefits for Ireland opting-in? Other countries have signed up to Prüm. Has a two-tier situation emerged?
We should remember that the provision primarily relates to asylum seeking and allows a law enforcement piece, with very strict conditions, as I have outlined. The situation is two-tier but only in the sense that we are opting-in and we have the potential to be part of the Prüm decision, as the Garda develop the technology. In the meantime, obviously, the Garda will access Interpol or Europol to exchange information relating to crime and fingerprints. It is just that level, in relation to Prüm, that we do not have as yet.
Earlier Senator Bacik asked about conditions in different countries. We know that the UNHCR has advised that we should not send people back to Bulgaria because of the treatment that some people have received in that country. Are there concerns about the matter? Can we make a decision on it? Does the matter arise? Are we aware of the situation?
There is a procedure in place where the European Commission can initiate proceedings if the situation, as outlined, pertains. A decision can be made. At the moment, for different reasons, asylum seekers are not sent back to Greece, for example, and a special arrangement was put in place. That procedure is potentially there.
To be helpful, in the Dublin regulation, where it is impossible to transfer an applicant to the member state primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws, as mentioned, in the asylum procedure and reception conditions for applicants in the member states, resulting in a risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, and not the UNCHR, the determining member state shall continue to examine the criteria in Chapter III of the Dublin regulation in order to establish whether another member state can be designated as being responsible. An article gives some leeway if the kind of the concerns that were outlined arise.
We have been involved before. This is the updated version of Eurodac. As I have already said, the United Kingdom has indicated it is opting-in. Obviously a lot of the issues, as I have said, regarding the Dublin Convention and the asylum seekers who come here, relate to the UK.
I wish to mention that this provision does not come into force until 15 July so the earlier we can give an indication then the better. We do not have any reservations, as a Government, on going forward with the provision. It is important that Ireland notifies its intention to accept the measures at this time in order that the procedure provided for, in Article 331(1) of the treaty on the functioning of the European Union, be commenced.
I am sure the committee has looked at the article before and is aware that it deals with the procedure whereby a member state may notify its intention to participate in enhanced co-operation. That means that the Commission, within four months of the notification, can confirm Ireland's participation, or the participation of the member state concerned. In order to ensure that the preparations in Ireland, and at an EU level, for the coming into operation of the recast Eurodac regulation on 15 July goes smoothly, it is important to settle definitively the question of whether or not we are going to be involved. That is the main reason that I ask the committee to agree the motion today.
We have given the debate a good run and it has been very interesting. I thank the Minister and her officials for being here today and engaging in a very positive way with us on this very important and interesting issue.