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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> RZ (Eurodac, fingerprint match, admissible) Eritrea [2008] UKAIT 00007 (28 January 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00007.html Cite as: [2008] UKAIT 7, [2008] UKAIT 00007 |
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RZ (Eurodac – fingerprint match –admissible) Eritrea [2008] UKAIT 00007
Date of hearing: 6 November 2007
Date Determination notified: 28 January 2008
RZ |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
1. Evidence of a fingerprint match obtained from the Eurodac system is admissible not only when considering which Member State is responsible for examining an application for asylum but also when examining the application itself.
2. The safeguards within the Eurodac system are such that in the absence of cogent evidence to the contrary,
(a) fingerprint images held in the system and data as to where, when and why those fingerprints were taken should be accepted as accurate and reliable; and
(b) evidence of a fingerprint match identified by the system and confirmed by the Immigration Fingerprint Bureau should be regarded as determinative of that issue.
3. Where there is a dispute about whether there is a fingerprint match, the burden of proof is on the respondent and the standard of proof is the balance of probabilities.
"13. ... It is clear that a full assessment of Eurodac data is a matter of considerable general importance because a number of cases turn upon fingerprint evidence produced by this system of past claims in order to expose deception in current asylum applications."
We have heard evidence about the Eurodac system and submissions on whether fingerprint evidence obtained as a result of that system is admissible and if so the burden and standard of proof to be applied and the weight to be given to such evidence.
Background
"1. The Appellant is a citizen of Eritrea whose date of birth is given as 24 April 1979. He claims to be a refugee and to be at real risk of other serious harm, by reason of his Pentecostal faith and by reason of his being a deserter from the military service aspect of National Service.
2. On 18 September 2006 the Respondent refused his application for leave to enter the UK on refugee and human rights grounds and decided to give directions for removal to Eritrea. The Appellant appealed and by a determination issued on 30 January 2007 to the Appellant, Immigration Judge Khawar dismissed his appeal on asylum, humanitarian protection and human rights grounds, finding no article 3 ECHR rights would be breached on return.
3. The Appellant applied for an order for reconsideration, and Senior Immigration Judge King, made an order on 27 February 2007 on the basis that the immigration judge had arguably erred in law as contended for in grounds:
' The circumstances of this matter are somewhat unusual because the Respondent relied upon a Eurodac computer search carried out in relation to the Appellant's fingerprints such as to find a match in relation to an asylum claimant in Italy. What was significant about the particular match was that the claimant in Italy bore the same name and date of birth as the Appellant. This, of course, was significant and fundamentally undermined the Appellant's account of his experiences in Eritrea at or around the same time.
It is contended in ground one of the grounds for reconsideration that the evidential basis for such a report in its conclusions was not established to the requirement set out in RP (Proof of forgery) [2006] UKAIT 00086. Although it is not entirely clear that this is the appropriate Tribunal decision to quote it is clear that the more serious the nature of the allegation that has been made by the Respondent, the clearer the evidence in support thereof needs to be. The matter merits further reconsideration.
In addition the immigration judge has failed to consider with clarity the risk on return. There were no clear findings as to whether or not the Appellant is now of the Pentecostal faith and if so, whether that will pose a risk to him upon return. No consideration was given to the issue of being regarded as a draft evader upon return (query deserter? My emphasis) in accordance with country guidance decisions.
The other matters raised in the grounds for reconsideration are essentially those going to the merits of the decision.'
4. Mr T Hussain of Counsel instructed by White Ryland Solicitors appeared for the Appellant and Mr W Khan Presenting Officer appeared for the Respondent.
5. Mr Hussain relied upon the grounds. He submitted that of very real concern in relation to the information from Eurodac, was that no evidence had been lodged to show what has actually been produced to show an allegation of the match of identity. There was simply this print of a composite email, which appeared to comprise at least three documents and was a 'cut and paste' job with nothing to show what lay behind it.
6. Further, it is the Appellant's position that it was not open to the Respondent to use the Eurodac system for the purpose of seeking to discredit an asylum applicant within appeal proceedings. It was an unlawful misuse of the system. The Eurodac 275/2000 regulations have direct in effect in the UK, see article 27. They deal with its purpose and use, pursuant to the Dublin Convention, are very clear, and they do not permit the use to which the Respondent has put the information. There is nothing to show any consultation with Italy (see article 13(3) and 4(b). Further, the Appellant had had no opportunity to deal with any actual evidence in relation to this allegation so that all he could do was to refute it in his oral evidence.
7. The photograph in the email is not from Eurodac as Eurodac biometrics do not include photographs. It appears to be the photograph of the Appellant from his IND registration card. There has been no opportunity to challenge any fingerprint evidence. The Appellant has not seen any such evidence. The courts have given clear guidance on the approach to such evidence (see Mr Justice Collins in R v Robert John Buckley No.9802835/Y2, BAILII: [1999] EWCA Crim 1191, of 30 April 1999).
8. Mr Hussain submitted that at the case management review hearing he had requested that the immigration judge direct that at least a statement be produced by Andrew Heseltine, who had sent the email in question. The Appellant's position is that he has not been to Italy. The immigration judge ought not to have admitted this evidence. Or in the alternative, he ought not to have given it either the determinative or very heavy weight that he clearly did (see paragraph 23).
9. Mr Hussain relied upon the grounds and the order in relation to the additional errors of failure to find facts and failure to assess risk on return in accordance with the law.
10. Mr Khan was not able to produce argument or evidence to satisfactorily counter that of Mr Hussain, in particular I was concerned as to the photocopy of the email in terms of its cogency as evidence. It is, I find, an unexplained, compilation document. I find that whilst it may be that under the Dublin Convention and/or the related regulations, information from the Eurodac system is properly available in law, to the Respondent, to use in the way that he has done in these proceedings, I am unable to find that to be so on the basis of the unsatisfactory evidence that has been produced, which is in a form that is very difficult for the Appellant to respond to in a meaningful way. There is a manifest lack of continuity in the evidence that is purported to be presented in this copy email. Mr Khan agreed that a key issue was whether the Respondent was entitled to use the information from the Eurodac system as he had done.
11. Mr Khan further agreed that the immigration judge had fallen into error of law in relation to the other aspects that are highlighted in the grounds and the order.
12. I concur with Mr Hussain, for the reasons that he advances, in finding that the immigration judge erred in law in treating the photocopy email and its purported content (apart from the photograph, see 23 (d) as he did, and in giving it the heavy, if not determinative weight that the clearly did at paragraph 23, in particular, where he states that it appears to drive a 'coach and horses' through the entirety of the Appellant's account. Whilst he may ultimately be right in that, he has erred in law in coming to the decision that he made on the basis of the nature and quality of the evidence that he had before him.
13. I am, in addition, satisfied that the immigration judge has fallen into material error in relation to the remaining matters contained in the grounds, in the ways and for the reasons set out in the grounds, in the order and in Mr Hussain's submissions. I find that the correct way forward is for there to be a further full hearing at which all issues will be at large. It is directed that the matter be transferred to the Manchester Hearing Centre, to be listed for a further full reconsideration hearing before an immigration judge panel of judges other than Immigration Judge Khawar. The parties' time estimate is one day.
14. It is directed that the Respondent file and serve, no later than 21 days before the date fixed for the second stage hearing, a skeleton argument to include legal argument as to the object and purpose of the Dublin Convention and the relevant regulations, to include EC2725/2000 and EC407/2002; together with a statement from Andrew Heseltine to deal with the continuity issues in relation to the email of 3 August 2006, to include detail of its sources, including the photograph, and detail as to how the email was complied. That is to say, he needs to deal with everything that is in the main body of the email.
15. The Appellant is then to file and serve all evidence relied upon together with his skeleton argument, by no later than 7 days before the date of hearing."
Evidence
The Evidence of the Appellant
The Evidence of Ms E M
The evidence of Mr John MacCloud
"24. In all the cases involving fingerprint identification that I have been involved in during the past 42 years, there has always been an unbroken chain of evidence of personal identification. This evidence would start with obtaining any exhibits in the form of finger marks relating to a crime scene or finger impressions from a known person or exhibits on which finger marks were developed. This would be documented and the identity of the person introducing the exhibits should always be known. That person's evidence will be crucial to the case. In this case the identity of the person taking the fingerprints in Italy is not known.
25. Council regulation (EC) No.2725/2000 of 11 December 2000 concerns the establishment of 'Eurodac' for the comparison of fingerprints. Article 5 of the regulation deals with, among other things the recording of data in respect of applicants for asylum and clearly states that only the following data shall be recorded in the central data base:
(a) member state of origin, place and date of the application for asylum;
(b) fingerprint data;
(c) sex;
(d) reference number used by the member state of origin;
(e) date on which the fingerprints were taken;
(f) date on which the data were transferred to the central unit;
(g) date on which the data were entered on the central database; and
(h) details in respect of the recipient(s) of the data transmitted and the dates of transmissions.'
26. There is no provision in the Council regulation for recording the name of the person taking the fingerprints."
The Evidence called by the Respondent
1 refers to data relating to asylum seekers, (article 4)
2 refers to persons within article 8 (unlawful crossing of a frontier); and
3 refers to persons referred to in article 11 (people unlawfully in a particular country).
The regulations provide that each member state shall promptly take the fingerprints of all those falling within these categories. They are to be stored for a maximum of ten years and are then erased. They are erased sooner if the individual is issued with a resident's permit in the member state, has acquired citizenship or is known to have left the EU.
Submissions
The legal framework
Summary of Our Findings on Credibility
Eurodac: the General Background
"1. Each member state shall communicate to any member state that so requests such personal data concerning the asylum seeker as is appropriate, relevant or non excessive for:
(a) the determination of the Member State responsible for examining the application for asylum;
(b) examining the application for asylum;
(c) implementing any obligation arising under this Regulation."
The information which may be communicated under paragraph 1 is identified in paragraph 2 and includes
(c) other information necessary for establishing the identity of the applicant, including fingerprints processed in accordance with regulation EC No.2725/2000.
It is provided by paragraph 7 that:
7. The information exchanged may only be used for the purposes set out in paragraph 1. In each member state such information may, depending on its type and the powers of the recipient authority, only be communicated to the authorities and courts and tribunals entrusted with:
(a) the determination of the member state responsible for examining the application for asylum;
(b) examining the application for asylum;
(c) implementing any obligation arising under this regulation."
The Admissibility of Eurodac Evidence
42. We are satisfied that fingerprint evidence from the Eurodac system is admissible in evidence not only when considering which member state is responsible for examining the application for asylum but also generally as part of the examination of the claim. This must follow from the clear wording of article 21(1) of 2003/343/EC. There is a safeguard built into article 21(1) that communication of data must be appropriate, relevant and non-excessive for these purposes but it has not been argued that fingerprint evidence either generally or in the particular circumstances of this case contravenes these safeguards. The article also provides that the information held on the system may only be used for the purposes specified and can only be communicated to the authorities, courts and tribunals entrusted with the functions set out in paragraph 7
The reliability of Eurodac evidence and the system in practice
Burden/Standard of Proof when assessing Eurodac Evidence
"… Eurodac data is produced by the respondent in cases such as this essentially to assert deception/fraud by an appellant. The burden of proof rests with the person making the assertion and the standard of proof where fraud is asserted and where the consequences for the appellant are correspondingly serious is the higher standard of "proof to a high degree of probability".
Background Evidence relating to Eritrea
Assessment of the Appellant's Evidence
Decision
Signed: Date: 4 January 2008
Senior Immigration Judge Latter