On Wednesday 28 May, the European Data Protection Supervisor (EDPS) published an opinion on the proposal for a regulation establishing a common system for returning third-country nationals residing illegally in the EU (see EUROPE 13597/17), for which it recommends “an in-depth fundamental rights impact assessment, [...] in light of the impact of the Proposal on fundamental rights, including on the rights to privacy and to the protection of personal data of the persons concerned”.
The EDPS recognises “the need for a more effective enforcement of existing EU and national laws in the areas of migration and asylum. At the same time, as stated in the EDPS Strategy 2020-2024, data protection is one of the last lines of defence for vulnerable individuals, such as migrants and asylum seekers approaching the EU external borders”.
The proposed global approach must therefore be “based on full respect to the fundamental rights of persons who seek international protection and other migrants, including their right to data protection and privacy”.
The EDPS also recommends aligning the information about the rights conferred on data subjects by the applicable EU data protection law with the provisions adopted in the ‘Pact on Migration and Asylum’.
Moreover, in the context of access to an effective remedy, it stresses that the limitation of information about the grounds for the return decision should not be applied as a general rule, but only in exceptional cases, where strictly necessary, for example where disclosure would be contrary to the interests of State security.
The EDPS also calls for additional safeguards in the event of transferring data related to the criminal convictions of third-country nationals to third countries.
Such transfers “should be subject to a strict necessity test [and] must not lead to handing down or executing a death penalty or any form of cruel and inhuman treatment”. It is also necessary to clarify the conditions under which children’s data can be transferred to the third country of return, after checking that the transfer is in their best interests.
Link to opinion: https://aeur.eu/f/h33 (Original version in French by Solenn Paulic)