The Eurodac Debate: Is It Blurring the Line Between Asylum and Fight Against Terrorism? Elif Mendos Kuşkonmaz Introduction Eurodac is a transnational database, established in 2000 and came into force in 2003, which contains personal and biometric information of all asylum seekers and illegal immigrants found within the European Union.1 The database primarily established to help EU Member States find out whether an asylum applicant has previously claimed asylum in another EU Member State or whether an asylum seeker has previously apprehended when entering EU territory illegally. It aims to facilitate the application of Dublin Regulation and hence to assist Member States in the determination of the country responsible for examining as asylum application. It obliges all Member States to take fingerprints from the asylum applicants who are 14 and over or others apprehended for ille- gally crossing the borders. Having said that, new Eurodac Regulation which was adopted in June 2013 by the European Council and will come into force in 2015 with introducing a number of changes to the system. The most notable change is the provision on granting national law enforcement authorities and Europol access to Eurodac for law enforcement purposes.2 Hence, widespread concerns have been voiced by different stakeholders. This 1 Within this essay the term Eurodac is used as a reference to the database itself. 2 It is pertinent to note here that a number of changes to the system will also come into force in 2015. However, this essay is primarily concerned with the most controversial change introduced to the system which is granting access to national law enforcement and Europol access to Eurodac. 80 Elif Mendos Kuşkonmaz [Annales XLV, N. 62, 79-102, 2013] essay seeks to analyse different comments and concerns made pro or contra. The emphasis will be placed upon whether it is necessary and proportionate to widen the access to Eurodac for law enforcement pur- poses taking the public safety on one hand and fundamental rights of the asylum seekers as the target group on the other. The central discus- sion in respect of potential breaches of fundamental rights of this target group will be based on the right to privacy, right to protection of personal data and prohibition of discrimination. I will argue that there is lack of evidence to support the necessity to allow access to national law enforce- ment authorities and Europol. To support my argument the essay will briefly explain the estab- lishment of Eurodac. Having framed the current system, the essay will continue with illustrating the map leading to enabling access to Euro- dac for law enforcement purposes. Later it will approach to this change from a human rights perspective, arguing whether it is compatible with right to privacy and protection of personal data. Finally, it will deal with intrusions of the rights of a very vulnerable group, asylum seekers and discrimination concerns over them. I. The Establishment of Eurodac A. First Initiatives and its Original Purpose The journey through the EU law relating to asylum is a complex area. With the Schengen Agreement abolishing the internal borders, Member States agreed upon strengthening the control of external bor- ders by police and judicial co-operation. Abolishment of internal borders also created the fear of uncontrolled asylum applications since once en- tered into the territory of the EU, an asylum seeker can apply for asylum in member states with most generous procedures.3 Hence, in order to regulate asylum claims, the EU established the Dublin Convention in 1990, entered into force in 1997.4 This convention then was replaced by 3 P. Boeles et al. European Migration Law (Intersentia 2009) 316. 4 Convention Determining the State Responsible for Examining Applications for Asylum The Eurodac Debate: Is It Blurring the Line Between Asylum and Fight Against Terrorism? 81 Dublin Regulation in which a list of criteria to allocate asylum seekers to one of the Member States was introduced in order to revent asylum seekers from applying asylum in multiple Member States.5 Hence, it determines the first Member State that an asylum seeker reaches as re- sponsible to investigate an asylum application.6 Inevitably, the effective- ness of this rule depend on the possibility to identify asylum seekers and to establish their travel route into the EU.7 However, generally, asylum applicants have no documents or they have fake ones and this creates one of the most important problems in the application of the criteria for determining the Member State responsible for asylum claims.8 Back in 1991, at a very early stage of the Dublin system, it was ac- knowledged that there has to be an objective mechanism for ascertain- ing responsibility for asylum claims and negotiations on establishing an automated fingerprint application system began9. On February 1993, the Working Group on Asylum asked the Legal Service of the Council to give advice on the question whether former Article 15 of the Dublin Convention could be used as the legal basis for the creation of Eurodac. According to this former article Member States shall exchange, upon re- quest, the individual data which are necessary for the examination of an application for asylum, allocate the Member State which is responsible lodged in one of the Member States of the European Communities (Dublin Convention) (1990) OJ C 254. This regulation was also replaced by Regulation No. 604/2013 (i.e. Dublin III) in June 2013. 5 Evelien Brouwer Digital Borders and Real Rights, Effective Remedies for Third-Country Na- tionals in the Schengen Information System (Martinus Nijhoff 2008) 118. Dublin Regula- tion was also replaced by Regulation 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an ap- plication for international protection lodged in one of the Member States by a third- country national or a stateless person (recast) (Dublin III) (2013) OJ L 180/31. 6 Brouwer Digital Borders and Real Rights, Effective Remedies for Third-Country Nationals in the Schengen Information System (n 5) 118. 7 Kay Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer Law International 2000) 401 8 ibid. 9 Jonathan P. Aus, ‘Eurodac: a solution looking for a problem’ (2006) European Integration Online Papers < http://eiop.or.at/eiop/index.php/eiop/article/view/2006_006a/24> accessed 12 April 2014, 7. 82 Elif Mendos Kuşkonmaz [Annales XLV, N. 62, 79-102, 2013] for examine this application, and for the execution of all obligations re- sulting from the Convention. In its advice, the Legal Service confirmed that former Article 15 of the Dublin Convention provided sufficient legal basis for the establishment of Eurodac. It is striking that the Legal Service made an important restriction to the use of it. As Brouwer pointed out, the Legal Service explicitly stated that the database could not be used for other purposes, like “the functioning of other international instruments or for starting criminal investigations against asylum seekers.”10 Overall, it was this limited purpose that the Eurodac could be established in the first place. At its meeting on 23 November 1995, the Council of Justice and Home Affairs (i.e. JHA) having declared that the exchange of asylum seekers’ fingerprints through Eurodac is technically and legally feasible and decided to start the legislative work.11 However, only after 5 years that the Eurodac Regulation was finally adopted. One of the reason behind this relatively late adoption was because of the political debate revolved around the interests of the Member States for establishing a central registration system for fingerprints. Some Member States, such as Germany, the Netherlands and Austria were especially interested in such a system. On the contrary the Southern Member States which were often the first country for arrival for asylum seekers, such as Italy and Greece were less interested.12 During the Eurodac negotiations, it was agreed to extend the per- sonal scope of the system to illegal migrants. After the arrival of a large number of immigrants from Iraq to Europe in mid-1997, response to this refugee crisis was urged by some Northern European countries in particular.13 In December 1997, the Schengen Executive Committee de- 10 Brouwer Digital Borders and Real Rights, Effective Remedies for Third-Country Nationals in the Schengen Information System (n 5) 118. 11 11476/95 ASIM 308 cited in Brouwer Digital Borders and Real Rights, Effective Remedies for Third-Country Nationals in the Schengen Information System (n 5) 119. 12 Aus (n 9). Elspeth Guild, ‘The Bitter Fruits of an EU Common Asylum Policy’ 61-76 in: Thierry Balzacq and Sergio Carrera (eds.), Security Versus Freedom? A Challenge for Europe’s Future (Ashgate 2006). 13 Brouwer Digital Borders and Real Rights, Effective Remedies for Third-Country Nationals in The Eurodac Debate: Is It Blurring the Line Between Asylum and Fight Against Terrorism? 83 cided to create a Task Force and on 21 April 1998, under strong pressure from the German delegation, it adopted a formal decision with regard to “fingerprinting of every foreign national entering the Schengen area illegally whose identity cannot be established with certainty on the basis of valid documents.”14 In line with the ongoing technical preparations for launching the Eurodac database, the Schengen Group also called for the “retention of fingerprints for the purpose of informing the authorities in other