“A powerful tool of mass surveillance”: NGOs warn that proposed Eurodac reforms will fundamentally undermine the rights of migrants and refugees

33 NGOs, including EEPA, addressed an open letter to the Members of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) of the European Parliament, expressing concern regarding the amended proposal to revise the Eurodac Regulation. Eurodac is a database that records fingerprints of asylum seekers entering the European Union (EU). The amendment, formulated by the European Commission and published in September 2020, extends the database to include more biometric data, including of minors. The NGOs  warn about the risk of erosion of the fundamental rights of migrants and asylum seekers that could result from this extension. 

The Eurodac (European asylum dactyloscopy database) is the biometric database that collects and digitally processes fingerprints of asylum seekers and irregular migrants and refugees entering a European country. The system is designed to support the implementation of the Dublin Regulation management of asylum applications, by determining the Member State responsible for processing the application. If the amendment of the Eurodac is implemented, the system would be used to collect expanded personal information and details about each individual. 

The open letter to LIBE Committee 

In the open letter, the signatories expose the Eurodac system’s alarming evolution into what the letter deems a “powerful tool for mass surveillance.” The latest proposed revision by the European Commission introduces several changes and expansions that could erode the human rights of migrants and refugees, and their right to privacy and protection as formulated under the General Data Protection Regulation (GDPR) of the EU. 

The proposed measures include retention of personal data of migrants and asylum seekers, namely facial images, name, date of birth, and nationality; it also would increase the storing period of such information, and the age limit for fingerprinting would be lowered from 14 to 6 years old. In addition, law enforcement would gain access to the database. 

The proposal to expand the Eurodac includes new categories of data collection  of identity information. NGOs point out that it has not been proven that this additional information, particularly facial images processing, would significantly improve Eurodac performance in strengthening EU security. Therefore, NGOs warn that the adoption of this measure would result in an unnecessary intrusion of migrants and asylum seekers’ privacy. 

Moreover, the proposal includes “new categories of persons” and longer periods of data retainment of “irregular migrants”. These measures diverge from the original purpose of Eurodac and do not fulfil the principle of limitation, NGOs state, while steering towards mass surveillance of migrants. 

The amended proposal also envisions the lowering of the age limit for taking fingerprints to children from 14 to 6 years old, a measure that is referred  to by the signatory NGOs as “intrusive, disproportionate and privacy-invasive.” It undermines the principles of proportionality and necessity, the letter states, and fails to respect UN guidance according to which migration control cannot supersede the fundamental rights of individuals. 

The NGOs urge the LIBE Committee to reconsider the application of administrative sanctions against people who refuse to have their biometric data recorded, a proposal formulated by the Council and the European Parliament in the 2018 political agreement.  The letter argues that these sanctions would represent  a serious violation of fundamental rights to dignity, integrity, liberty and security and the protection of personal data. Furthermore, the letter points out that there is evidence that coercion is already used to force refugees and migrants to provide their biometric data, despite the fact that no sanctions are currently in place. 

Moreover, the signatories of the letter denounce the removal of conditions limiting the access for law enforcement into the Eurodac database, and the introduction of arbitrary security flagging in the screening process. NGOs warn that these measures, in addition to reinforcing the idea of migrants and refugees as security threats, would undermine individual’s possibility to obtain international protection.

The NGOs also denounce the opaqueness of the political processes around the formulation of the amendment, which inhibited the democratic participation, transparency and accountability principles governing the European Union.

The signatories call for the reconsideration of the amended proposal, as it fails to respect the principles of proportionality and transparency, which are fundamental to guarantee the respect and promotion of human rights.

Background: The Eurodac database system evolution

Established in 2000 (Council Regulation (EC) No 2725/2000) and operational since 2003, the Eurodac database has been first revised in 2013 to be better compatible with the Dublin Regulation III, the European system establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application. One of the principal additions of the 2013 Eurodac Regulation (Regulation (EU) No 603/2013) was the introduction of access for law enforcement authorities, such as national police or Europol, into the database, with the purpose to prevent, detect and investigate crimes, including terrorism.

In 2016, in the context of intensified migratory flows in the Mediterranean region, European Member States resorted to a further reinforcement of the Eurodac database system. To address the requests of member states, the European Commission released a working document, endorsed by the Council of the European Union, envisioning changes to the database scope. The revision included the possibility of storing the personal information of migrants and refugees, namely name, date of birth, nationality, facial image; it also proposed lowering the age limit for fingerprinting from 14 to 6 years old, keeping copies of identity documents in the database and provides guidelines for Member States to follow for fingerprinting. On one part, the document includes counselling and informing asylum applicants of their rights and responsibilities while, on the other part, the proposal would accord Member States the possibility to use limited coercion as last resort in case the applicant would not cooperate. 

In 2018, the European Council and the European Parliament reached a political agreement on the proposal. There was no formal vote on it. 

The 2020 amended revision draws from the political agreement reached in 2018 on the proposal, but it has not yet entered into force as it evolves in parallel with the evolution of the Dublin Regulation, which for now is stalled.