European information system for convicted non-EU nationals needs safeguards

Boosting security in Europe by exchanging criminal record information about non-EU nationals is not without drawbacks, as FRA’s latest Opinion shows. While it could offer non-nationals proof of a clean criminal record, FRA points to the need to build in respect for privacy, for child rights and to protect personal data whilst ensuring potential victims have access to justice.

Access FRA Opinion on the exchange of information on third-country nationals under a possible future system complementing the European Criminal Records Information System >>

A dedicated criminal records system for non-EU nationals could be an important component of EU cooperation in criminal matters and could contribute to keeping Europe safe – provided that it has fundamental rights safeguards at its heart,” said FRA Director, Michael O’Flaherty. “We must hardwire fundamental rights into any such system. Only then can we ensure that the principles of necessity, proportionality and legality are duly met. Only with appropriate safeguards in place can the rights of individuals be adequately protected.

The European Commission asked FRA for advice on the fundamental rights impact of enhancing the existing European Criminal Records Information System (ECRIS) in relation to non-EU nationals. The Commission is exploring ways of doing this as a follow-up to the European Agenda on Security.

ECRIS allows information from criminal records to be shared between EU Member States. Although primarily used for criminal proceedings, it can also have other purposes such as screening job candidates where a criminal past might be relevant (e.g. working with children). Under the system, each EU Member State must store criminal record information about its nationals, regardless in which Member State the person was sentenced, and must share it with other Member States, when asked.

Although ECRIS can be used for both EU and non-EU nationals, the European Commission considers that there are limits for non-EU nationals. For example, no one Member State stores the information centrally and it may be unreliable due to problems with different alphabets or the lack of credible documents.

FRA’s Opinion on the exchange of information on third-country nationals under a possible future system complementing ECRIS acknowledges the benefits of such a system. For example, ECRIS can provide non-EU nationals with legal certainty of a clean criminal record. It could help protect children from being victims of abuse. However, the Opinion also points to the potential adverse effects. Some of the issues raised include:

  • Avoiding using the system for immigration law enforcement or for migration-related offences. For example, it shouldn’t be used to withdraw or refuse residence permits, nor process convictions of people who entered the country irregularly due to limited legal entry channels. Such convictions may also pose integration problems to those who have been granted asylum, for example when looking for a job.
  • Assessing the privacy risks of using fingerprinting data. Fingerprints can reliably identify people. However, other documents like passports or residence permits can also identify people without being as intrusive as fingerprints.
  • Reviewing carefully the impact on children who may be victims of trafficking and, as a result, may be forced into criminal activities. Given the vulnerability of children, special attention should be paid to how such offences are processed so that they do not suffer in later life. At the same time, the system should also enable employers to vet potential employees for criminal offences that would disqualify them from working with children.
  • Protecting personal data and ensuring inaccuracies can be easily corrected. The system must also allow individuals to access their data and correct mistakes, especially since there is a greater likelihood of inaccuracies in the criminal records of non-EU nationals. Effective remedies for rights violations must also be available.

FRA’s assessment serves to highlight potential areas of concern when developing a system to facilitate the exchange of criminal records information for non-EU nationals. As no legislative proposal currently exists, the opinions are meant to feed into the European Commission’s fundamental rights impact assessment.