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Fingerprinting by force: secret discussions on "systematic identification" of migrants and asylum seekers
10 March 2015
Including "fingerprinting [with] the use of a proportionate degree of coercion" on "vulnerable persons, such as minors or pregnant women"
Asylum seekers and irregular migrants arriving in the EU are supposed to be fingerprinted in their country of arrival, and to have their details placed in the EU's Eurodac database. If the individual later comes into contact with the authorities elsewhere, the country responsible for them - their "country of arrival" - can then be identified. In the face of a growing number of people entering the EU, some countries are either unwilling or unable to meet the legal requirement for fingerprinting.
In response, the European Commission and Member States are now discussing, in secret, a set of "best practices for Member States to follow in order to ensure that their obligations under the Eurodac Regulation are fulfilled". The guidelines ultimately address "fingerprinting [with] the use of a proportionate degree of coercion" including on "vulnerable persons, such as minors or pregnant women". The aim is to "uphold the integrity of the Dublin Regulation" - the legal basis for Europe's asylum system, which many consider to be fundamentally flawed.
Fingerprints first
In October 2014 the Justice and Home Affairs Council called for the "systematic identification" of asylum seekers and irregular migrants, to ensure that they can be dealt with by the authorities of their country of arrival, as required under the EU's 'Dublin' system.
Member States were called to:
1. Ensure that fingerprints are taken on land, immediately upon apprehension in connection with irregular crossing of the borders, in full compliance with the Eurodac Regulation;
2. Take restrictive measures to prevent absconding in case migrants refuse fingerprinting, whilst respecting fundamental rights;
3. Inform migrants in a timely manner of their rights and obligations and consequences of non-compliance with rules on identification. [1]
EURODAC, an EU-wide database of asylum-seekers' and irregular migrants' fingerprints, contains information on three "categories" of person:
Category 1: applicants for international protection;
Category 2: persons apprehended crossing a border irregularly;
Category 3: persons found illegally present in a Member State.
Asylum-seekers often wish to reach an EU country other than the one in which they arrive, and in some cases the responsible authorities are tacitly accepting this. Italy has in recent months reportedly failed to register thousands of migrants despite the existence of guidelines, seen by Statewatch, which state:
"The refusal either of providing personal details or undergoing biometric details [sic] is a crime and results in judicial charges.
"The police authorities will anyway obtain pictures and fingerprints, even with the use of force, if necessary."
There is at least one report to suggest that the Austrian authorities are also reluctant to register migrants in Eurodac. [2]
One short-term response came in October, with the establishment of "trilateral controls" between Germany, Austria and Hungary - joint police patrols that attempt to prevent people leaving Italy. Hungary, Austria and Germany have recently set up a similar operation. [3] The European Commission, meanwhile, began looking at possible long-term responses in July 2014.
"Best practices"
In July 2014 the European Commission requested a survey of Member States to find out "what law and practices exist in Member States in order to take fingerprints for transmission to the Eurodac database, both of asylum applicants and of irregular migrants." [4]
The results were summarised in September 2014, based on responses from 25 EU Member States and Norway, a Schengen Associated Country:
"A majority of Member States (18…) do not permit or require use of coercive measures to take fingerprinting of applicants for international protection (Eurodac category 1)…
"…with regards to categories 2 and 3 of Eurodac data subjects: half of reporting Member States allow responsible authorities to use coercive measures, whilst the other half do not provide for this possibility." [5]
Rules on the use of force and coercion also differ from one state to another. For example, in Austria and Norway the use of force requires "a specific administrative decision", and in Bulgaria it needs "the authorisation of a judicial authority".
In four countries - Austria, Belgium, Estonia and Finland - "forcing the concerned person to be fingerprinted is considered inappropriate", and 18 of the 26 states that responded "do not have any other penalties in place for EURODAC data subjects who do not cooperate in the taking of fingerprints". Only seven states of the 26 apparently impose penalties on those who refuse fingerprinting - detention is possible in five states, and fines in the other two.
Notably, Italy was one of only three EU Member States not to respond to the questionnaire. The others were Greece - which is also known to be lax in its application of the Eurodac Regulation - and Denmark.
The authorities in the Czech Republic, Estonia, Malta and Poland reported that "they have never experienced in practice cases of refusal to be fingerprinted." However, Malta, along with France and the Netherlands, "reported that intentional damaging of fingerprints by applicants is a recurrent problem."
These findings led the Commission to draft a "non-paper" in October 2014, [6] proposing 10 steps to be followed by Member States' authorities trying to obtain fingerprints. This includes the possibility to use detention and/or force to obtain the fingerprints:
"In cases where the data-subjects have applied for asylum and refuse to cooperate in being fingerprinted, he/she may be detained in order to determine or verify his or her identity or nationality…
(…)
"If the initial counselling does not succeed, the data-subject should be informed that coercion may be used in order to take his/her fingerprints… officials trained in the proportionate use of coercion may apply the minimum level of coercion required…"
While the Commission was keen to stress to Statewatch that the paper is "an informal staff-level discussion paper" and "not a document representing any official position", it was intended to serve as a basis for formal decision-making. It contains:
"the Commission's services' suggested best practices for Member States to follow in order to ensure that their obligations under the Eurodac Regulation are fulfilled (and, thus, the integrity of the Dublin Regulation is maintained)… The objective is to reach a consensus on a set of agreed best practices for Member States to use."
Pass the parcel
On 9 October 2014 the Commission presented its paper to the Eurodac Contact Committee, through which national and EU representatives oversee the functioning of the Eurodac system. The issue was handed to the Council because "it was considered that the Eurodac Contact Committee had not been the appropriate forum for such a political discussion." [7]
The paper, in the form of a secret LIMITE document, was passed to the Council of the EU, where the discussion was taken up by the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA). This is made up of national "higher-ranking officials" who draw up "strategic guidelines for EU cooperation in the fields of immigration, frontier [sic] and asylum". [8]
The minutes of that meeting note that: "Given its importance - as suggested by some delegations - it was agreed to invite the Asylum Working Party to pursue the examination of this non-paper." [9] However, according to a Council representative the paper "did not get a follow-up discussion" in any other Council body.
At the end of February Statewatch asked the Commission whether the "best practices" paper had been approved, and in what form. The Commission said:
"The issue of how to address the difficulties being encountered by some Member States in fingerprinting all asylum-seekers and irregular migrants intercepted crossing the external border is the subject of on-going discussions between Member States and with the Commission. Finding a common approach to this challenge is the underlying objective of these discussions."
When Statewatch asked whether there was a timetable for completing the discussions, and in what forum they were taking place, the Commission simply said they "don't have any more information to give on that."
It would thus appear that discussions on a set of guidelines that deal with the use of physical force and detention against asylum-seekers and irregular migrants are now being held in secret, despite - or perhaps because of - their highly political nature.
Given the Commission's role of upholding EU law, it is hardly surprising that it wishes to ensure that "the integrity of the Dublin Regulation is maintained". Others might consider that "the integrity of the Dublin Regulation" is not worth maintaining, if violence and detention are required to take people's fingerprints so that they can be "processed" by the authorities of a country that they would rather leave. Either way, campaigners, civil society organisations and members of national and European parliaments may want to know more about the ongoing discussions on the issue.
See also: Press release (pdf)
Further reading
'Germany, Austria and Italy launch "trilateral controls" to deal with "the increasing numbers of refugees"', Statewatch News Online, November 2014
'Police chiefs want non-EU countries to "prevent irregular migration from happening"', Statewatch News Online, January 2015
Chris Jones, '11 years of Eurodac', Statewatch Analysis, January 2014
Footnotes
[1] Presidency, 'Taking action to better manage migratory flows', 13747/14, 6 October 2014
[2] D. Parvaz, 'Italy's disappearing migrants', Al Jazeera, 23 July 2014; Wolfgang Bauer, 'This Is What It's Like to Flee to Europe With Syrians', Huffington Post, 23 December 2014
[3] 'Germany, Austria and Italy launch "trilateral controls" to deal with "the increasing numbers of refugees"', Statewatch News Online, November 2014; Tri-nation patrols at railway stations, The Budapest Times, 28 February 2015
[4] European Commission/European Migration Network, 'Ad-Hoc Query on EURODAC Fingerprinting', 22 September 2014
[5] European Commission, 'Summary of EMN Ad-Hoc Query No. 588 - Eurodac Fingerprinting', September 2014
[6] European Commission, 'Commission non-paper for SCIFA on Best Practices for upholding the Obligation in the Eurodac Regulation to take fingerprints', 13 October 2014
[7] European Commission, 'CONTACT COMMITTEE 9 October 2014 "Eurodac Regulation" (EU/603/2013)'
[8] Lithuanian Presidency of the Council of the EU, 'Meeting of the Strategic Committee on Immigration, Frontier and Asylum (SCIFA) of the Council of the EU'
[9] SCIFA, 'Summary of discussions', 16938/14, 15 December 2014