26 June 2015
ECRE has published comments on the European Commission’s Staff Working Document “on Implementation of the Eurodac Regulation as regards the obligation to take fingerprints”, issued on 27 May 2015 as part of the first round of implementing measures announced by the European Agenda on Migration. These comments point to some alarming elements in the Commission’s guidance that challenges several underlying principles of the EU Charter of Fundamental Rights.
ECRE expresses concern over the proposed use of detention against asylum seekers who refuse to be fingerprinted on the grounds of establishing identity or nationality. Collecting and storing fingerprints in the Eurodac database is not directly relevant to the establishment of a person’s identity or nationality, as the only way to determine an identity or nationality, on the basis of such information, would be to share that data with his or her country of origin. Under the Asylum Procedures Directive, this would be in violation of the prohibition on disclosing information to the alleged actors of persecution.
Moreover, ECRE regrets the opaque and broad reference to detention for the purpose of removal, whereby the Commission refers to the Return Directive as the applicable legal framework to irregular migrants who refuse to be fingerprinted in Eurodac. Recalling that the purpose of Eurodac is to facilitate the application of the Dublin III Regulation, ECRE points out that the procedures for identifying and transferring these persons to another EU Member State fall under the Dublin III Regulation. Accordingly, the only permissible ground for detaining them is to secure a Dublin transfer, where there is a “significant risk of absconding” and where less coercive alternatives cannot be applied.
ECRE also voices deep concerns around the Commission’s guidance to Member States to make use of coercion as a last resort to collect fingerprints, despite the fact that 15 out of 28 EU countries prohibit the use of force for that purpose. The necessity of coercion for the purpose of fingerprinting is not straightforwardly established: taking fingerprints is not necessarily a condition for applying the Dublin Regulation, since other circumstantial evidence can also be used to determine which Member State is responsible for a person’s asylum application. Even in the exceptional cases, where it would be deemed necessary, the use of force, against an asylum seeker or migrant, for the purpose of obtaining his or her fingerprints, would never be proportionate to the aim pursued. More specifically, as regards vulnerable applicants, such as children, ECRE stresses that coercive fingerprinting is fundamentally incompatible with the ‘best interests of the child’ principle. In that light, it is particularly regrettable that the Commission has merely proposed a guideline for Member States to refrain from using coercion against certain vulnerable groups and not suggested a prohibition on the use of force for children.