This blog is part of the project: Mobility and Security in Europe.

On 4 May 2016, the European Commission proposed a recast Eurodac Regulation. Eurodac is a fingerprint database for identifying asylum seekers and irregular migrants, originally set up to support the process of determining the Member State responsible for an asylum claim under the Dublin Regulation. Already back in 2013, law enforcement authorities were granted access to Eurodac to fight serious crime. Under the current proposal, the scope of Eurodac will be extended with the aim to control illegal migration, secondary movements and the identification of irregular migrants for return purposes.

One of the proposed changes is to lower the minimum age of data subjects from 14 to 6 years of age. There is a clear case to be made that lowering the fingerprinting age constitutes a disproportionate infringement to Article 7 (right to respect for private life) and Article 8 (right to data protection) of the Charter of Fundamental Rights (CFR). In this blog it is argued that the lowering of the fingerprinting age is unnecessary to achieve Eurodac’s three stated purposes, namely the identification of irregular migrants to assist the Dublin Regulation, to fight crime and control illegal migration, and secondary movement and identification of illegal migrants for return purposes. In addition, the child’s best interest principle as enshrined in Article 24(2) CFR would only reinforce this conclusion, in view of the particular vulnerability of children.

First of all, it is standing case law of both the Court of Justice of the European Union (CJEU), as well as the European Court of Human Rights (ECtHR), that the collection and processing of personal data, especially fingerprints constitutes an interference with the right to private life and data protection. The access of law enforcement to biometric data is considered as further interference of that conclusion. This conclusion would apply a fortiori to the collection of children’s biometric data for Eurodac and constitutes an interference with Article 7 and Article 8 CFR.

Under Article 52(1) CFR, such interference can only be justified if it is provided for by law, does not affect the essence of the fundamental right in question, genuinely meets objectives of general interest and is necessary and proportionate. As the subject matter in this case concerns personal data, the criterion is strictly necessary in line with the CJEU's judgment in Digital Rights Ireland. The principle of proportionality requires a measure to be appropriate and does not go beyond what is necessary to achieve a legitimate purpose.

In respect of the first three criteria, the measure does have a legal basis in the Eurodac Regulation. The essence of the fundamental rights is respected as the proposal contains a number of safeguards in relation to the protection of data, and migration control and law enforcement purposes are considered objectives of general interest. For the proportionality and necessity test, the three purposes of Eurodac will be examined in turn, as the data processing for each separate purpose will need to fulfill these requirements.

The purpose of facilitating the Dublin Regulation

Lowering the fingerprinting age to 6 years must be deemed unnecessary for the purpose of assisting the Dublin system. In MA & Others v UK it was held that the Member State in which unaccompanied children are present is responsible for their asylum claim, notwithstanding a previously lodged application for asylum elsewhere. The practical effect of this ruling would be that the Dublin criteria for allocating responsibility for minor children should not apply, even though the Commission in its proposal for the Dublin IV Regulation seems oblivious of this ruling. However, following the CJEU’s approach, there is no need to process children’s fingerprints as the country in which they find themselves will automatically be responsible and therefore there is no question of a possible transfer under the Dublin Regulation.

The purpose of controlling irregular migration for return purposes

Fingerprinting children under 14 seems unnecessary to achieve the goal of managing illegal migration for return purposes as it is highly questionable whether this measure will actually result in more removals. According to the Return Directive, a child’s best interest is an obstacle to a possible removal and in most Member States children in need of international protection, though not yet eligible for it, are granted an authorisation to stay for compassionate and humanitarian reasons. Generally, return policies are not even implemented for unaccompanied children, since they are considered in need of additional protection. Fingerprinting children has therefore no added value for return purposes.

Admittedly, as the Commission argues, the lowering of the fingerprinting age may help to protect unaccompanied children by identifying children without social care and victims of exploitation. Nonetheless, the proposal lacks such a child protection objective and additional measures to ensure that missing children are actually traced and protected.

The purpose of preventing, detecting and investigating serious crime through law enforcement access

Processing biometric data of children as young as 6 years is not strictly necessary to fight crime as in most Member States the minimum age of criminal responsibility is 14 years, even for the most serious crimes. Moreover, the ECtHR already held in S and Marper that the blanket retention of biometric data of persons, especially children, without a criminal link forms a disproportionate interference with the right to private life and data protection. Processing children’s data will also be more harmful as it leads to the stigmatisation of refugee children.

A less restrictive measure would therefore be in order. In line with Tele2 and Watson, access to law enforcement authorities should only be granted if the data concerns individuals suspected of serious crime. In order to ensure this, a court or an independent body should examine whether access is necessary and if it is in a child’s best interest given the specific circumstances.

The Best Interest of the Child

In light of the above, the conclusion must be that lowering the fingerprinting age constitutes a disproportionate interference with Articles 7 and 8. What is more, only to a very limited extent does the proposal pay attention to the best interest of the child as mandated by Article 24 of the Charter. Taking into consideration this principle reinforces the conclusion that lowering the finger printing age constitutes a violation of the Charter. This best interest of the child principle mandates that children are entitled to ‘such protection and care as is necessary for their well-being’. The CJEU and the ECtHR have on numerous occasions reiterated the particular vulnerability of children, illustrating the ‘double jeopardy’ they face as both asylum seekers and children. Different situations should be treated differently, meaning that children should be given a higher level of protection and specific safeguards, which the proposal fails to provide. This also means that the strict necessity test should be applied in full, which makes it even more unlikely to consider the interference proportionate.

To conclude

Despite the serious concerns, raised by EU bodies such as the European Data Protection Supervisor (EDPS), the Fundamental Rights Agency (FRA), as well as interest groups and expert bodies such as the European Council for Refugees and Exiles (ECRE) and the Meijers Committee, there appears to be political agreement in the Council and for most provisions of the proposal common ground is found with the Parliament. If the Parliament fails to secure amendments that protect the position of children, it could consider bringing an annulment procedure, as it did in Parliament v Council regarding the Family Reunification Directive. That action proved unsuccessful as the Court held that Member States in their application of the Directive need to respect fundamental rights. However, there seems to be little discretion left to the Member States under the proposed regulation. In view of the current migrant ‘crisis’, the EU’s dire commitment to control migratory movements in Europe may seem understandable, yet it is like breaking a butterfly on a wheel.