10/2009: Peter Hustinx


Peter Hustinx
European Data Protection Supervisor


“Key conclusions of the second inspection report on EURODAC
and of the EDPS’ assessment of the Stockholm Programme”


Ü Eurasylum: In July this year the Eurodac Supervision Coordination Group, which is composed of the data protection authorities of each of the EU participating States as well as of the European Data Protection Supervisor (EDPS), published their second inspection report on EURODAC (the European fingerprint database on asylum seekers and irregular border-crossers). The purpose of this inspection was to investigate how the database had been used in the participating states over the last two years, looking in particular at the right of information of asylum seekers and the methods for assessing the age of young asylum seekers in view of their registration in the system. Can you guide us through the main findings of your report?

Ü Peter Hustinx: The second inspection report indeed focuses on two issues: the right of information of asylum seekers and the methods for assessing the age of young asylum seekers. These two issues were identified by the Eurodac Supervision Coordination Group as the most urgent and most important ones for the smooth functioning of Eurodac, particularly as regards its efficiency and compliance with data protection requirements.

In terms of the right of information, the results of our evaluation show that the information provided to asylum seekers about their rights and the use of their data tends to be incomplete, in particular as regards the consequences of being fingerprinted, and the right of access to and rectification of their data.

The information provided also differs widely among Member States and great differences have been observed as regards the practices for asylum seekers and illegal immigrants – the latter generally receiving less information, and in some cases, no information at all.

This unsatisfactory situation let the Group to issue the following recommendations which in its view would provide a remedy for the current problems:

– Member States should improve the quality of the information on data protection for data subjects, in line with all the provisions of Article 18 of the Eurodac Regulation. The information provided to the data subject should cover the rights of access and rectification as well as the procedure to exercise these rights. This should include both information about the data controller who should deal primarily with requests for access and rectification and about the national Data Protection Authority (DPA), as the competent body to give assistance to the data subject where necessary.

– Member States should ensure that the information is provided on an equal footing both to asylum seekers and to illegal immigrants.

– Asylum authorities should reconsider the way in which they provide information on data protection so as to ensure that it is sufficiently clear and that it is well understood by data subjects. Particular emphasis should be placed on data protection information in order to make it clearly visible and accessible.

– Information documents should be drafted in a clear, simple and understandable language, taking account of the level of education of the data subjects and, therefore, avoiding legal terminology with which they might not be familiar. One should always assess the extent to which the data subject has fully understood the information, both in writing and orally. Asking for the data subject’s signature as a confirmation of his or her understanding of the information provided to him or her does not constitute a sufficient guarantee that the message was well understood (also considering the vulnerable position of the applicant).

– Member States should promote cooperation and experience sharing among national competent authorities, by encouraging a working group to study this matter and eventually develop harmonised practices.

– Member States should develop a standard form for the right to information, to the drafting of which the coordination group could give its valuable input. This would contribute to a better harmonisation and compliance with the Eurodac Regulation. This solution could also have a positive impact in terms of translations, as many of the languages used are common among different Member States.

– The DPAs should consider publishing on their websites a best practice guide on how the individuals can exercise their rights.

– The DPAs should monitor the situation at national level and provide guidance on how best to comply with their legal obligations.

In terms of the second topic of the report, our evaluation showed that methods for determining the age of asylum seekers (whether in the framework of Eurodac or in the wider context of the asylum procedure) are the subject of discussions in many Member States, mainly as regards their reliability and ethical acceptability.

The lack of harmonisation of systems used in Member States to measure the age of young asylum seekers also leads to a great variety of results. This has obvious implications in terms of fairness of treatment of the individuals concerned.

Therefore the Group considered that:

– Member States should ensure that the methods for assessing the age of asylum seekers as well as the whole procedure surrounding the tests are established in a clear document accessible to the public.

– Member States should ensure that the declarations of the asylum seekers about age are not disregarded in the procedure and that these statements are given an appropriate legal status and value, similar to those based on the results of medical examination. The argument that statements made by asylum seekers may not be correct or may even be untrue should be weighted against the fact that medical examination as such may also lead to incorrect results or mistakes.

– Member States should provide explicitly that a refusal to undergo medical examination cannot adversely affect the asylum seeker.

– Asylum seekers should be entitled to ask for a second opinion regarding the medical results and the conclusions drawn from them without any cost to them.

– Asylum authorities should take account of the margin of error resulting from the use of some medical examinations when taking decisions affecting the legal status of an asylum seeker. In particular, when the result is situated within a range of error, priority should be given to other elements of proof, such as the declarations of the asylum seeker.

– The Commission should undertake an overall assessment of the reliability of the various methods used in the Member States for age assessment, with a view to ensuring greater harmonisation. Medical and ethical aspects should be taken into account in the assessment asked by the coordination group about the reliability of these techniques. This assessment should cover the methods used to assess the age of child asylum seekers both in the context of Eurodac and in the context of the examination of the asylum applications of young asylum seekers.

Medical examination considered invasive under the previous recommendation should not be used to determine the age limit for Eurodac fingerprinting. If at all needed, it should be limited to the determination of whether a child asylum seeker is under 18 or not.

– The Eurodac Regulation, currently under revision, should be modified to impose fingerprinting of asylum seekers only above the age of 18.

Ü Eurasylum: One of the main conclusions of your report is that procedures differ greatly from one Member State to another, particularly as regards the assessment of the age of asylum seekers. The result of this is that recognition rates for asylum seeking children tend to vary according to the Member State where they lodge their first application. Can you elaborate on this conclusion, including on the need stressed by your report to harmonise, across the EU, both the methods used to determine the age of asylum seekers and the procedural rights regarding inclusion in the EURODAC database?

Ü Peter Hustinx: As mentioned in the inspection report, the asylum authorities often face problems with determining the age of a child who carries no reliable identity document and various methods are used to assess their age. In practice, the determination of age is not only a question of data quality and insertion of data in Eurodac. It is also used to determine whether or not a young asylum seeker is a minor, which has a number of implications on the processing of his or her asylum application (i.e. under-age asylum seekers are entitled to a range of protection measures not granted to adults). Authorities in the Member States are concerned that some asylum seekers could try to claim that they are under-age in order to qualify for more protection. Moreover, it should be noted that the “Dublin” system also makes a difference between minors and adult asylum seekers, even if the 14 years threshold is not used in the “Dublin” system.

Against this background, the aim of the exercise launched by the Group was to take stock of existing practices and/or legislation existing at national level, with a view to assessing their compliance with the European legal framework applying to Eurodac, also bearing in mind the human rights standards laid down in the European Convention on Human Rights. The aim was to determine whether further harmonisation was needed or desirable in this framework.

The crucial question was the assessment of the age of young asylum seekers in view of their being fingerprinted in Eurodac, where the age threshold is not 18 years, but 14 years.

. This nuance is crucial: it entails that, theoretically, Eurodac users should make a double age assessment: one (14 years threshold) for fingerprinting in Eurodac and another (18 years threshold) in view of determining the type of protection to be granted to the asylum seeker. It is obvious that the first purpose seems to have minor consequences compared to the second.

From a data protection perspective, it makes more sense to assess the issue of exemptions from the biometric requirements in light of the purposes of Eurodac (“the effective application of the Dublin Convention”). Applying this assessment, the Group saw no link between the objective of facilitating the application of the Dublin rules and the taking of fingerprints of children under 18. Arguably, the lack of necessity and proportionality of taking fingerprints for such persons would mean that taking their fingerprints would constitute an unjustified interference with their right to privacy pursuant to both Article 8 of the European Convention on Human Rights and national legislation implementing Directive 95/46/EC.

In several Member States, the medical and ethical acceptability of the use of medical examination for age assessment of child asylum seekers in order to determine whether or not they are under 18 is subject to discussion. Hence, it is even more questionable to use these techniques with the only objective to verify whether a child asylum seeker qualifies for fingerprinting in Eurodac.

As a conclusion, I share entirely the view expressed in the report that the application of the 14 years threshold raises many issues, both from a legal and practical viewpoints, without bringing substantial benefit to the authorities. The coordination group advocates a solution whereby this issue is addressed structurally, i.e. by the suppression of the 14 years age limit in the Eurodac Regulation. Should it prove impossible, and in any case as an interim solution, the coordination group recommends that invasive medical examination should not be used to verify the age limit for Eurodac fingerprinting. An invasive medical examination, if any, should be limited to the determination of whether a child asylum seeker is under 18 or not.

There is a wide variety of techniques used in this context, each with its own pros and cons. Procedures also differ widely from one Member State to another. The result is that young asylum seekers will be treated differently and be given different chances to be accepted according to the Member State where they lodge their first application. In order to ensure equal chances and a more harmonised and fair treatment of asylum seekers, it is advisable to encourage harmonisation both of the methods used to determine the age of asylum seekers and of procedural rights. However, this cannot take place before there has been a serious and exhaustive evaluation of the accuracy, reliability and (medical and ethical) acceptability of the different methods.

Ü Eurasylum: Your report includes some 15 major recommendations to improve the operation of EURODAC in the participating states. Can you discuss some of those which, in your opinion, require the most urgent attention?

Ü Peter Hustinx: I must admit it is not an easy question, as the Group adopted the recommendations without ranking them. Taking into consideration that all of them address the situation of a vulnerable group of people, I will not prioritise any of the recommendations. They are all urgent and they are all important. Should they be implemented, they would certainly provide for a significant improvement not only in the functioning of the system, but above all in the exercise of the rights by those who are subject to the system.

However, one can say that not all the recommendations mentioned in the report are of the same nature or require the same type of action or follow-up. I am also aware that the implementation of some of them will require more time or political engagement. Some are more of a legislative nature, whereas others call for more harmonised and in-depth analysis of the issues at stake.

Ü Eurasylum: On 13 July 2009 the EDPS adopted an opinion on the European Commission’s Communication on the Stockholm Programme. Can you discuss some of the key elements of your assessment?

Ü Peter Hustinx: Firstly, it is good to emphasise that the Communication takes the perspective of the citizen. It is an important Communication and the protection of fundamental rights has a central place in it. Also, great importance is given to the protection of personal data. The Communication rightly promotes a balance between the needs for appropriate instruments to guarantee the security of the citizen and data protection.

My comments support the Communication and call for the Member States to follow the approach of the Commission in the Stockholm Programme. The Stockholm Programme, to be approved by the European Council in December, will give the directions for policy making and legislation in the coming years. I have good hopes that data protection will be an important perspective in this programme.

It is important that the Commission has announced a comprehensive data protection scheme covering all areas of EU competence will be developed, independently of the entry into force or not of the Lisbon Treaty. In my view, this means:

– That a clear and long-term vision on this comprehensive scheme is needed in the Stockholm programme;

– Also that an evaluation is needed of the measures that have been adopted in this area, their concrete implementation and their effectiveness, taking into account the costs for privacy and the effectiveness for law enforcement;

– That the adoption of a new legislative framework should be a priority, with a view, inter alia, to replacing the Council Framework Decision of November 2008 on data protection in the police and justice sector.

The second point of attention for me is the development towards a “European Union Information Management Strategy” (as it is referred to in the Council) or a “European information model” (as it is termed in the Communication by the Commission). I follow this development with great interest and I am convinced that this strategy (or model) will be further elaborated in the Stockholm programme.

In my view, the architecture for information exchange should be based on ‘privacy by design’ and ‘Best Available Techniques’. I further emphasised that the mere fact that it is technically possible to exchange digital information between interoperable databases, or to merge these databases, does not justify an exception to the purpose limitation principle. Interoperability should be allowed on a case by case basis, but only after a careful evaluation and a deliberate policy choice.

All in all, I follow the further work on the Stockholm Programme with great interest and with great expectations.