EU: Tracking the Pact: Access to criminal records for “screening” of migrants

Under the Pact on Migration and Asylum, the “screening” of migrants who have entered the EU irregularly or who have applied for asylum will become mandatory. The aim is to establish their identity and to investigate whether they should be considered a “security risk”. To facilitate the screening process, access to the EU’s system of “interoperable” databases is being broadened, with the Council recently approving its negotiating position on new rules granting access to a centralised register of individuals convicted of criminal offences in EU member states.


Interoperability for screening

The Commission’s proposal for a criminal records screening Regulation (pdf), one of countless amendments to the “interoperability” framework since it was approved in 2019, was published in March last year with a typically impenetrable, jargon-laden title.

It was part of a series of new rules that aim to introduce new checks for asylum applicants and individuals making irregular border crossings, that are “at least of a similar level as the checks performed in respect of third country nationals that apply beforehand for an authorisation to enter the Union for a short stay, whether they are under a visa obligation or not.”

Thus, the “screening” process requires checks against a multitude of databases: the Entry/Exit System (EES), the European Travel Information and Authorisation System (ETIAS), the Schengen Information System (SIS), the Visa Information System (VIS), Europol’s databases, two Interpol databases, and – the subject of the Council’s recently-approved negotiating position – the European Criminal Records Information System for Third-Country Nationals (ECRIS-TCN).

The ECRIS-TCN contains information on non-EU nationals who have been convicted in one or more EU member states (fingerprints, facial images and certain biographic data), in order to make it easier for national authorities to find information on convictions handed down elsewhere in the EU.

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The Council’s position

The Council’s position (pdf) was approved by the Committee of Permanent Representatives (COREPER) on 29 June, and makes extensive changes to the Commission’s proposal. However, many of these are deletions that appear to have been made because the text in question has already been added to the original ECRIS-TCN Regulation through one of the two other sets of amendments that have been made, in 2019 and 2021.

The proposal used the term “threat to internal security or public policy”, which the Council has replaced with “security risk”. This somewhat vaguer term matches the wording approved by the Council in its position on the Screening Regulation, previously published by Statewatch, where the proposal initially referred to individuals that may “constitute a threat to public policy, internal security or international relations for any of the Member States.”

Currently only visa authorities and those responsible for examining travel authorisation applications are granted access to the ECRIS-TCN for border control and immigration purposes (listed in Article 5(7) of the ECRIS-TCN Regulation and as explained in the Statewatch report Automated Suspicion).

The criminal records screening Regulation grants new authorities access to the ECRIS-TCN, but does not list those authorities explicitly. Instead, it refers to the Screening Regulation itself, which is set to give member states discretion to determine “the screening authorities” as they see fit, although the Council’s preferred version of that text includes the provision that:

“Member States shall also ensure that only the screening authorities responsible for the identification or verification of identity and the security check have access to the databases foreseen in Article 10 and Article 11 of this Regulation.”

The Council’s position on the Screening Regulation, like the original proposal, does not include a requirement that the authorities responsible for the screening process be publicly listed anywhere.

Whoever those authorities may be, they will be granted access to use the European Search Portal (part of the interoperability framework) to conduct searches in the ECRIS-TCN (and other databases), although will only be granted access to ECRIS-TCN records that have a “flag” attached.

Those “flags” will be added to records to show whether an individual has been convicted of a terrorist offence in the last 25 years, or (in the last 15 years) one or more of the criminal offences listed in a separate piece of legislation.

In the case of a “hit” against information stored in the ECRIS-TCN, the new rules will require screening authorities to contact the member state that handed down the conviction and to seek an opinion on the implications of that conviction for an individuals’ potential status as a security risk.

The Commission wanted that opinion to be provided within two days, but the Council has increased this to three; if no opinion is provided within that time, then “this shall mean there are no security grounds to be taken into account.” The Council’s position also makes it explicit that the convicting authorities are obliged to consult the criminal record before providing their opinion.

The European Parliament is yet to reach a position on the proposal. The EP rapporteur, Socialists & Democrats MEP Birgit Sippel, told Statewatch:

“The European Parliament continues to work on all proposals related to the New Pact on Migration and Asylum, including both the Screening and Screening ECRIS-TCN proposals. As rapporteur, I have presented my draft report on both files at the end of 2021. Negotiations continue at political and technical level. Due to the deep links to the other proposals, we aim for a harmonised EP position and there is currently no concrete date foreseen for a debate or vote in the LIBE Committee.”

However, the Parliament has committed itself to completing work on all the migration and asylum laws currently on the table by February 2024.

Interoperability marches on

Many are likely to see the screening process as part of the ongoing “criminalisation” of migration – indeed, the intention with the criminal records screening proposal is to explicitly link aspects of the criminal justice system with the EU’s immigration and asylum systems, in order to increase the possibilities of excluding individuals deemed to pose a security risk – however that may be determined by the authorities.

The application of these checks to irregular border-crossers and asylum applicants is also a logical consequence of the way the EU’s interoperable databases are being deployed against other categories of individuals: as noted above, it is deemed imperative that everyone entering the EU faces “a similar level” of checks. With the interoperability architecture largely seen as a starting point for future developments, and with EU agencies Europol and Frontex pushing for AI-based profiling of all travellers, future proposals to further expand the types of checks and the individuals to whom they should be applied are almost guaranteed.

Documentation

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