REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Annual report to the European Parliament and the Council on the activities of the EURODAC Central Unit in 2009 - Main contents

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REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Annual report to the European Parliament and the Council on the activities of the EURODAC Central Unit in 2009 /* COM/2010/0415 final */

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Brussels, 2.8.2010

COM(2010)415 final

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Annual report to the European Parliament and the Council on the activities of the EURODAC Central Unit in 2009

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Annual report to the European Parliament and the Council on the activities of the EURODAC Central Unit in 2009

INTRODUCTION

Scope

Council Regulation EC/2725/2000 of 11 December 2000, concerning the establishment of ‘EURODAC’ for the comparison of fingerprints for the effective application of the Dublin Convention (hereinafter referred to as the “EURODAC Regulation”),[1] stipulates that the Commission shall submit to the European Parliament and the Council an annual report on the activities of the Central Unit .[2] The present seventh annual report includes information on the management and the performance of the system in 2009. It assesses the output and the cost-effectiveness of EURODAC, as well as the quality of its Central Unit’s service.

Legal and policy developments

On 10 September 2009, the Commission adopted the Amended proposal for a Regulation of the European Parliament and of the Council concerning the establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] [establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person].[3]

The purpose of this proposal was to take into account the resolution of the European Parliament and the results of negotiations in the Council concerning the proposal for amending the EURODAC Regulation which was adopted on 3 December 2008.[4] At the same time, it also introduced the possibility for Member States' law enforcement authorities and Europol to access the EURODAC central database for the purposes of prevention, detection and investigation of terrorist offences and other serious criminal offences.[5]

THE EURODAC CENTRAL UNIT[6]

Management of the system

Given the increasing amount of data to manage (some categories of transactions have to be stored for 10 years), the natural obsolescence of the technical platform (delivered in 2001) and the unpredictable trends of the EURODAC transaction volume, an upgrading of the EURODAC system is being carried out.

Quality of service and cost-effectiveness

The Commission has taken the utmost care to deliver a high quality service to the Member States,[7] who are the final end-users of the EURODAC Central Unit.[8] During 2009 the EURODAC Central Unit was available 99.42% of the time.

The expenditure for maintaining and operating the Central Unit in 2009 was 1.221.183,83 euros. The increase in the expenditure compared to previous years (820.791,05 in 2007, 605.720,67 in 2008) is explained by the first instalment for the ongoing upgrade of the EURODAC system combined with increased system maintenance costs.

At the same time, some savings were made by the efficient use of existing resources and infrastructures managed by the Commission, such as the use of the S-TESTA network.

The Commission also provided (via the IDABC Programme[9]) the communication and security services for exchange of data between the Central and National Units. These costs, initially intended to be borne by each Member State in accordance with Article 21 (2) and (3) of the Regulation, were finally covered by the Commission making use of common available infrastructures, thereby generating savings for national budgets.

Data protection and data security

Article 18 paragraph 2 of the EURODAC Regulation establishes a category of transactions which provides for the possibility to conduct so called "special searches" on the request of the person whose data are stored in the central database in order to safeguard his/her rights as the data subject to access his/her own data.

As pointed out in previous annual reports, during the first years of operation of EURODAC, high volumes of "special searches" triggered concerns about possible misuse of this functionality by national administrations.

Following a steep decrease in the relevant figures in 2008 (from 195 in 2007 to 56), a further drop is observed in 2009: only 42 such searches were conducted,[10] which volume no longer, in itself, raise concerns.

However, in order to better monitor this phenomenon, the Commission has included in its proposal for amendment of the EURODAC Regulation a requirement for Member States to send a copy of the data subject's request for access to the competent national supervisory authority.

Figures and Findings

The annex attached to the present annual report contains tables with factual data produced by the Central Unit for the period 01.01.2009 – 31.12.2009. The EURODAC statistics are based on records of fingerprints from all individuals aged 14 years or over who have made applications for asylum in the Member States, who were apprehended when crossing a Member State's external border irregularly, or who were found to be illegally present on the territory of a Member State (where the competent authorities consider it necessary to check whether there has been a prior asylum application).

It should be noted that EURODAC data on asylum applications are not comparable with those produced by Eurostat, which are based on monthly statistical data provided by the Ministries of Justice and of the Interior. There are a number of methodological reasons for the differences. First, the Eurostat data include all asylum applicants, ie. of whatever age. Second, their data is collected with a distinction between persons applying for asylum during the reference month (which may also include repeated applications) and persons applying for asylum for the first time.

Successful transactions

A “successful transaction” is a transaction which has been correctly processed by the Central Unit, without rejection due to a data validation issue, fingerprint errors or insufficient quality.[11]

In 2009, the Central Unit received a total of 353.561 successful transactions, which represents only a slight decrease of 1% compared to 2007 (357.421). Regarding the number of transactions of data of asylum seekers (" category 1 "[12]), the increasing trend of the previous two years continued in 2009: the EURODAC statistics reveal a 8% rise (to 236.936) compared to 2008 (219.557).

The trend regarding the number of persons who were apprehended in connection with an irregular crossing of an external border (" category 2 "[13]) changed dramatically in 2009. After a rise of 62,3% between 2007 and 2008 (to 61.945), the number of transactions fell by 50% in 2009 (to 31.071). Italy, Greece and Spain continues to be the countries which introduce the vast majority of such data. However, Greece is now the one with most transactions – it sent 60% of all "category 2" in 2009 (18.714 compared to 20.012 in 2008). On the other hand, important drops in the numbers for Italy and Spain are observed: 7.300 compared to 32.052 for Italy and 1.994 compared to 7.068 for Spain.

In 2009, 6 Member States (the Czech Republic, Iceland, Latvia, Luxemburg, Norway and Portugal) did not send any "category 2” transactions. The issue of divergence between the number of category 2 data sent to EURODAC and other sources of statistics on the volume of irregular border crossings in the Member States, highlighted by the EURODAC statistics, is most likely due to the vague definition in Article 8(1) of the EURODAC Regulation.[14] This issue will be clarified in the framework of the on-going revision of the EURODAC Regulation.

The increasing trend of previous years regarding the option of sending[15] “ category 3 ”[16] transactions (data of persons apprehended when illegally residing on the territory of a Member State) continued in 2009. Following the increase of 17,6% in 2008 (to 75.919), the number of transactions rose by 12,7% in 2009 (to 85.554). Ireland is the only Member State which did not send any "category 3" transactions.

Even though "category 3" searches are not obligatory under the EURODAC Regulation, the Commission encourages Member States to use this possibility before initiating return procedures under Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. In the cases mentioned in the EURODAC Regulation,[17] such a search could help establish whether the third country national has applied for asylum in another Member State to which he/she should be returned in application of the Dublin Regulation.

“Hits”

Multiple asylum applications (“Category 1 against category 1” hits)

Of a total of 236.936 asylum applications recorded in EURODAC in 2009, 23,3% were 'multiple asylum applications' (i.e. second or more), which means that, in 55.226 cases, the fingerprints of the same person had already been recorded as a "category 1" transaction in the same or another Member State, representing a rise of 5,8% compared to the previous year. This does not however mean that in each and every case the person in question made a new asylum application. In fact, the practice of some Member States to fingerprint upon "take back" under the Dublin Regulation results in a distortion of the statistics on multiple applications: taking and transmitting again the fingerprints of the applicant upon arrival after a transfer under the Dublin Regulation falsely indicates that the applicant applied again for asylum. The Commission intends to solve this problem and, in its proposal for the amendment of the EURODAC Regulation, has introduced the requirement that transfers should not be registered as new asylum applications.

Table 3 of the Annex shows for each Member State the number of applications which corresponded to asylum applications previously registered in either another ("foreign hits") or in the same Member State ("local hits").[18]

It is striking that 38,8% of all multiple applications were "local hits". In Belgium, Cyprus, Czech Republic, and Poland, this figure even exceeds 50%. Indicating cases where a person who has applied for asylum in a Member State makes a new application in the same Member State, local hits in fact reflect the notion of subsequent application under Article 32 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status.

Foreign hits give an indication of the secondary movements of asylum seekers in the EU. Apart from the 'logical' routes between neighbouring Member States, a high number (2.012) of asylum applicants in France and in Belgium (959) previously lodged their application in Poland, and the highest amount of foreign hits in Greece (300) and in Italy (208) were found against data of asylum applicants previously recorded in the United Kingdom. In the latter case, the flows are symmetric since a significant number of the hits on "category 1" transactions introduced by the United Kingdom occur on data submitted by Italy (726).

“Category 1 against category 2” hits

These hits give an indication of routes taken by persons who irregularly entered the territory of the European Union, before applying for asylum. As in the previous year, most hits occur against data sent by Greece and Italy and to a much lesser extent, Hungary and Spain. Taking all Member States into consideration, in 65,2% of the cases, persons apprehended in connection with an irregular border-crossing who later decide to lodge an asylum claim, do so in a Member State different from the one they entered irregularly. This results in 20.363 applications, which corresponds to a rise from last year, when 35,6% constituted such a "foreign hit", ie. 10.571 applications were submitted in a MS different from the one where the person entered irregularly.

The majority of those who entered the EU illegally via Greece and then traveled further (12.192), headed mainly to Norway (2223), United Kingdom (1805) or Germany (1516). Those having entered via Italy and having moved on (6.398) proceeded mainly to Switzerland (1422), the Netherlands (1075), Norway (1041), or Sweden (911). Those who entered via Spain and eventually traveled further (544) most often left for France (254) or Switzerland (118), while those who entered via Hungary traveled on (604) mainly to Austria (150), Switzerland (80) or Germany (65).

“Category 3 against category 1” hits

These hits give indications as to where illegal migrants first applied for asylum before travelling to another Member State. It has to be borne in mind, however, that submitting "category 3" transactions is not mandatory and that not all Member States use the possibility for this check systematically.

The data available suggest that, as in the previous years, persons apprehended when illegally residing in Germany most often had previously claimed asylum in Sweden or in Austria, and that those apprehended when illegally residing in France often had previously claimed asylum in the United Kingdom or in Italy. After lodging an asylum claim in Italy, a significant number of persons stay illegally in Norway, Germany, France and the Netherlands. Similar flows seem to occur from Greece, Spain and Malta towards Norway, Germany and the Netherlands. It is worth noting that on average around 25% of the persons found illegally on the territory had previously applied for asylum in a Member State.

Transaction delay

The EURODAC Regulation currently only provides a vague deadline for the transmission of fingerprints, which can cause significant delays in practice. This is a crucial issue since a delay in transmission may lead to results contrary to the responsibility principles laid down in the Dublin Regulation. The issue of significant delays between taking fingerprints and sending them to the EURODAC Central Unit was pointed out in the previous annual reports and highlighted as a problem of implementation in the Evaluation Report.

Continuing the increasing trend of the previous year, 2009 saw a further overall increase in the delay of transmission, ie. the time elapsed between the taking and sending of fingerprints to the Central Unit of EURODAC. The longest delay is 36,35 days for the transmission of "category 2" data by Greece.[19] Other Member States with very large delays are Romania, Iceland, the United Kingdom, Spain, Slovakia and Denmark. The Commission must reiterate that a delayed transmission can result in the incorrect designation of a Member State by way of two different scenarios outlined in previous annual reports: "wrong hits"[20] and "missed hits"[21].

The deterioration of the performance in the transmission of fingerprints clearly shows its results in the amount of missed and wrong hits.

In 2009, the Central Unit detected 1060 "missed hits", which is a 2,3 multiplication of the figure of 2008 (450). The statistics for 2007 showed only 60 "missed hits". It is striking that 99% of those in 2009 are attributable to the delays in transmission by Greece. 290 hits were "wrong hits" (324 in 2008). 82,8% of these are due to the delays in transmission by Denmark. On the basis of the above results, the Commission again urges the Member States to make all necessary efforts to send their data promptly in accordance with Articles 4 and 8 of the EURODAC Regulation.

Quality of transactions

The average rate in 2009 of rejected transactions for all Member States was 7,87%, which is a slight increase from the previous years (2008: 6,4%; 2007: 6,13%). 9 Member States had rejection rates of over 10%: the Netherlands (19,28%), Malta, Estonia, Luxembourg, Finland, Sweden, United Kingdom, France and Germany. 11 Member States had a rejection rate above the average. It has to be highlighted that the rejection rate does not depend on technology or system weaknesses. The causes of this rejection rate are mainly the low quality of the fingerprint images submitted by Member States, human error or the wrong configuration of the sending Member State’s equipment. On the other hand, it has to be noted that in some cases these figures include several attempts to send the same fingerprints after they were rejected by the system for quality reasons. While acknowledging that some delay can be caused by the temporary impossibility of taking fingerprints (damaged fingertips or other health conditions hindering the prompt taking of fingerprints), the Commission reiterates the problem of generally high rejection rates already underlined by previous annual reports urging those Member States to provide specific training of national EURODAC operators, as well as to correctly configure their equipment in order to reduce this rejection rate.

Conclusions

In 2009, the EURODAC Central Unit continued to provide very satisfactory results in terms of speed, output, security and cost-effectiveness.

The amount of 'category 1 transactions' introduced in EURODAC has also increased. The number of 'category 2 transactions' dropped by 50%, while the number of 'category 3 transactions' increased by 12,7%.

Concerns remain about persisting excessive delays in the transmission of data to the EURODAC Central Unit.

Table 1: EURODAC Central Unit, Database content status the 31/12/2009

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Table 2: Successful transactions to the EURODAC Central Unit, in 2009

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Table 3: Hit repartition – Category 1 against Category 1, in 2009

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Table 4: Hit repartition – Category 1 against Category 2, in 2009

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Table 5: Hit repartition – Category 3 against Category 1, in 2009

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Table 6: Rejected transactions, percentage in 2009

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Table 7: Average time between the date of taking the fingerprints and their sending to the EURODAC Central Unit, in 2009

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Table 8: Category 1 against Category 1 hit in wrong sense, in 2009

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Table 9: Distribution of CAT1/CAT2 hits missed because a delay when sending the CAT2, in 2009

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Table 10: Distribution of hits against blocked cases (art. 12 of the EC Regulation 2725/2000), in 2009

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Table 11: Count of category 9 per Member State, in 2009

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[1] OJ L 316, 15.12.2000, p.1.

[2] Article 24(1) EURODAC Regulation.

[3] COM(2009) 342 final.

[4] Proposal for a Regulation of the European Parliament and of the Council establishing 'EURODAC' for the comparison of fingerprints for the effective application of the Dublin Regulation, COM(2008) 825.

[5] A proposal for a Council Decision on requesting comparisons with EURODAC data by Member States' law enforcement authorities and Europol for law enforcement purposes was adopted at the same time (COM(2009) 344 final, 10.9.2009), which, with the abolition of the pillar structure by the entry into force of the Treaty on the Functioning of the European Union, has lapsed.

[6] A general description of the EURODAC Central Unit, as well as the definitions of the different types of transactions processed by the Central Unit and of the matches which can occur, can be found in the first annual report on the activities of the EURODAC Central Unit. See Commission Staff Working Paper - First annual report to the council and the European Parliament on the activities of the EURODAC Central Unit, SEC (2004)557, p.6.

[7] All EU Member States, as well as Norway, Iceland and Switzerland, apply the Dublin and EURODAC Regulations, therefore the notion "Member States" is used in this Report to cover the 30 States using the EURODAC database.

[8] These services not only include those provided directly by the Central Unit (e.g. matching capacity, storage of data, etc), but cover also communication and security services for the transmission of data between the Central Unit and the National Access Points.

[9] IDABC stands for Interoperable Delivery of European eGovernment Services to public Administrations, Business and Citizens. IDABC is a Community programme managed by the European Commission's Directorate-General for Informatics.

[10] 31% of these were run by the same Member State, France.

[11] Table 2 of the Annex details the successful transactions per Member State, with a breakdown by category, between 1 January 2009 and 31 December 2009.

[12] Fingerprints (full 10 print images) of asylum applicants are stored to be compared against fingerprints of other asylum applicants who have previously lodged their application in another Member State. The same data will also be compared against the “category 2” data (see below). "Category 1" data will be kept for 10 years with the exception of some specific cases foreseen in the Regulation (for instance an individual who obtains the nationality of one of the Member States) in which cases the data of the person concerned will be erased.

[13] Data of aliens apprehended in connection with the irregular crossing of an external border and who were not turned back. These data (full 10 print images) are sent for storage only, in order to be compared against data of asylum applicants submitted subsequently to the Central Unit. These data will be kept for two years with the exception that cases are deleted promptly when the individual receives a residence permit, leaves the territory of the Member State or obtains the nationality of one of them.

[14] "Each Member State shall, in accordance with the safeguards laid down in the European Convention on Human Rights and in the United Nations Convention on the Rights of the Child, promptly take the fingerprints of all fingers of every alien of at least 14 years of age who is apprehended by the competent control authorities in connection with the irregular crossing by land, sea or air of the border of that Member State having come from a third country and who is not turned back ."

[15] And thereby compare the data of third country nationals apprehended when illegally staying on the territory with the previously recorded fingerprints of asylum seekers.

[16] Data relating to aliens found illegally present in a Member State. These data, which are not stored, are searched against the data of asylum applicants stored in the central database. The transmission of this category of data is optional for the Member States.

[17] Article 11 "(…) As a general rule there are grounds for checking whether the alien has previously lodged an application for asylum in another Member State where: (a) the alien declares that he/she has lodged an application for asylum but without indicating the Member State in which he/she made the application; (b) the alien does not request asylum but objects to being returned to his/her country of origin by claiming that he/she would be in danger, or (c) the alien otherwise seeks to prevent his/her removal by refusing to cooperate in establishing his/her identity, in particular by showing no, or false, identity papers."

[18] The statistics concerning local hits shown in the tables may not necessarily correspond to the hit replies transmitted by the Central Unit and recorded by the Member States. The reason for this is that Member States do not always use the option, provided by Art. 4(4), which requests the Central Unit to search against their own data already stored in the Central database. However, even when Member States do not make use of this option, the Central Unit must, for technical reasons, always perform a comparison against all data (national and foreign) stored in the Central Unit. In these concrete cases, even if there is a match against national data, the Central Unit will simply reply “no hit” because the Member State did not ask for the comparison of the data submitted against its own data.

[19] Yearly average of transmission delay of one category of data of the Member State with the worst record.

[20] In the scenario of the so-called " wrong hit ", a third-country national lodges an asylum application in a Member State (A), whose authorities take his/her fingerprints. While those fingerprints are still waiting to be transmitted to the Central Unit (category 1 transaction), the same person could already present him/herself in another Member State (B) and ask again for asylum . If this Member State B sends the fingerprints first, the fingerprints sent by the Member State A would be registered in the Central database later then the fingerprints sent by Member State B and would thus result in a hit from the data sent by Member State B against the data sent by the Member State A. Member State B would thus be determined as being responsible instead of the Member State A where an asylum application had been lodged first.

[21] In the scenario of the so-called " missed hit ", a third-country national is apprehended in connection with an irregular border crossing and his/her fingerprints are taken by the authorities of the Member State (A) he/she entered. While those fingerprints are still waiting to be transmitted to the Central Unit (category 2 transaction), the same person could already present him/herself in another Member State (B) and lodge an asylum application . At that occasion, his/her fingerprints are taken by the authorities of Member State (B). If this Member State (B) sends the fingerprints (category 1 transaction) first, the Central Unit would register a category 1 transaction first, and Member State (B) would handle the application instead of Member State A. Indeed, when a category 2 transaction arrives later on, a hit will be missed because category 2 data are not searchable.

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