POST 7 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
Lyra Jakuleviciene, Professor at Mykolas Romeris University, Vilnius
The New Pact on Migration and Asylum introduces screening of third country nationals at the external borders (hereafter Screening Regulation, Regulation). The initial objective of this new instrument is to speed up the asylum and return procedures. But will this new procedure at the borders facilitate the processing of asylum and return cases, or will it serve as a control measure and raise more legal issues?
The screening procedure will involve six elements: (a) preliminary health and vulnerability checks; (b) identification or verification of identity based on information in European databases; (c) registration of biometric data (fingerprints and facial image) in the databases; (d) security check through a query of relevant national and Union databases; (e) screening form containing information on the person; (f) referral to the asylum or return procedure.
Civil society organisations have argued (here and here) that the screening procedures will increase cases of pushbacks, detention and constrain access to examination of merits, as it will be implemented together with the ‘non-entry’ fiction making it easier to remove persons as if they are outside the EU law reach. Against this backdrop, this blog post explores to what extent the instrument facilitates the asylum and return procedures or rather generates legal problems and if the latter is the case, whether there is an effective remedy against these concerns. It will do so by focusing on the shift of approach towards asylum seekers; possible implications of screening and use of ‘non-entry’ fiction, including access to the asylum procedure; procedural guarantees; reception conditions; and remedies.
Asylum seekers stripped off their protected group status?
The Screening Regulation includes a fundamental shift in approach and resulting standards of treatment of protection seekers because it eliminates the fine line that international and EU law draws between this protected group and other migrants. This is explicitly reflected in the changed purpose of the Regulation, from its initial objective to speed up the asylum and return procedures and identify individuals, to the current objective – to strengthen border control and identify persons who pose threats to internal security (Art. 1).
Asylum seekers’ irregular entry is due to their compelling reasons for departure and thus protection needs override the entry requirements (Art. 31 of the 1951 UN Convention Relating to the Status of Refugees, Art. 6(5) (c) of the Schengen Borders Code, European Court of Human Rights (hereafter ECtHR) judgments in M.S.S. v Belgium and Greece; Tarakhel v Switzerland [GC]; etc.). However, the entire screening phase is focused on persons not fulfilling the entry requirements, referring in various EU materials to “all irregular migrants” category. For example, despite the fact that the Schengen Borders Code (hereafter SBC) allows derogation from entry requirements due to international obligations, the Screening Regulation explicitly excludes asylum seekers from this privilege for the purpose of screening (Art. 5(3)).
This approach may in itself create legal gaps, constraints on the rights of these persons and prospects for litigation. It may be detrimental to the correct understanding of different standards that are applicable to asylum seekers and other migrants in the EU, in particular when the border guards have to deal with these persons at the borders. European caselaw on pushbacks, analysed later in this blog, highlights the existing problem that border guards do not always differentiate between protection seekers and other migrants, and instead treat them in the same manner. The approach employed by the Regulation might aggravate this concern.
Screening beyond the external borders
The Screening Regulation will apply to four groups of third country nationals: (a) migrants who have entered in an unauthorized manner, (b) asylum seekers who entered without authorization; (c) persons disembarked after a search and rescue operation, and (d) persons illegally staying within the territory having crossed an external border of the EU in an unauthorized manner (Art. 3 and 5). Thus, besides those apprehended at the borders, under the fourth category screening will also apply to persons within the territory of the country, despite initial rejection of this option by the European Parliament. Critics consider such expansion of screening to inland to encourage discriminatory policing and difficulties upon apprehension in proving authorized entry that had occurred long ago (e.g. ECRE position, 2023, p. 29).
Considering that the Regulation envisages screening to be conducted also in alternative locations within the territory of the state (Article 7(1)), and combined with application of ‘non-entry’ fiction (as analysed further), this option may lead to emergence of special zones throughout the territory of the EU that are allegedly outside the regular application of EU law. More specifically, the screening at the territory rather than only at the borders may expand exceptions to safeguards to procedures within the territory, previously applied at the borders only.
Secondly, screening in the territory may expand already challenging practices of verifications on the basis of appearance, sometimes referred to as “racial profiling”, recently condemned by the ECtHR (e.g. Wa Baile v. Switzerland, 2024). In practice, several countries have been using apprehension in the territory and applicants found it difficult to prove their legal presence and in some instances were expelled. The provision in the Regulation is vague and its implementation details are far from clear, thus it may likely create new legal risks with limited safeguards for individuals to prove the legality of their stay.
Screening procedures and pushbacks
Europe has witnessed increased use of pushbacks at the land borders in recent years. However, it is only in 2024 that the Court of Justice of the EU (hereafter CJEU) has pronounced for the first time on the legality of pushbacks in X v. Staatssecretaris van Justitie en Veiligheid. It held that the practice of pushbacks at the external borders of the EU, which effectively removes persons seeking to make an application for international protection from the territory of the EU or removes them from that territory before an application made on entry has been examined, is contrary to EU law (para. 50). The Court considered access to the asylum procedure as one of the cornerstones of the Common European Asylum System and as part of fundamental right enshrined in Article 18 of the EU Charter of Fundamental Rights (hereafter EU Charter) (para. 51). It also ruled on various obstacles as running counter to the objective pursued by the EU legislation of ensuring effective, easy, and rapid access to the asylum procedure. For instance, the Court rejected as illegitimate a requirement to submit asylum applications (declaration of intent) at the embassy in a third country before entry to an EU Member State (Commission v Hungary, 2023, paras. 51-52).
Guarantees for access to asylum procedures at the borders following unauthorized entry may not always be present as can be seen from certain practices of the Member States (hereafter MS, MSs) that have been condemned by the ECtHR (M.K. and Others v. Poland; M.A. and Others v. Lithuania). In these cases, the border guards did not accept asylum applications at the border and turned down the applicants from the territory without any examination of the risks in the countries of origin that the applicants alleged. Recently, in January 2024, the ECtHR held Hungary accountable for pushing back without investigation a minor asylum applicant to Serbia (K.P. v. Hungary). Will the screening increase similar incidents at the borders?
The Screening Regulation cannot be dissociated from the Asylum Procedures Regulation (hereafter APR), which provides for a possibility to refuse entry with regard to the applicant whose application is rejected in the context of the border procedure (recital 70). This means that refusal of entry may happen only in the border procedures that follow the screening. It appears that formally, the screening as such should not lead to a rejection of the applicants at the borders. However, information gathered during the screening will impact further procedures as discussed further.
Further we will analyse whether the ‘non-entry’ notion applied during screening would potentially contribute to denial of entry or inhibit other rights of asylum applicants.
Proliferation of ‘non-entry’ notion
The Screening Regulation overly relies on the notion of legal fiction of persons being physically in the territory albeit not authorized to enter the territory of the MSs during the screening process (Art. 6) (this situation has been called ‘fiction of non-entry’). This concept is mentioned also in the APR (Art. 54(4)).
Civil society and commentators have argued that the “non-entry” creates a legal vacuum and its use raises several human rights concerns (European Parliament). To what extent does this concept correspond to potential legal problems? The application of this notion during screening is formulated in mandatory terms (“shall not be authorized to enter the territory of a Member State”)(Art. 6), and also in border procedures after the screening (Art. 43 (2) of APR, save a few exceptions). The concept was traditionally applied to persons in transit zones of airports, sea ports, usually in a border control, and not an asylum context, but recently it has been expanded to land border zones or even inland. The notion has been used to justify carving an exceptional regime and lowering guarantees provided by the EU law on access to asylum procedures, standards of detention, reception and some others to persons who are considered not yet present on the territory. We claim this justification lacks legal merits and thus raises potential for legal problems.
The European courts confirmed long ago that there is no such thing as “no man’s territory”, thus even if the persons are outside the territory of the state, the authorities acting on behalf of the state must protect their human rights. For instance, safeguards against detention should apply to asylum-seekers in transit zones (CJEU, FMS and others, 2020), or removal of an applicant to a third country without examining the merits of the application, must include review of access to adequate asylum procedures (ECtHR, M. K. v. Poland, 2020). The right to apply for asylum must be recognised even if the person is staying illegally on that territory and irrespective of the prospects of success of such a claim (CJEU, Commission v Hungary, para. 43; X v. Staatssecretaris van Justitie en Veiligheid, para. 51).
Furthermore, EU asylum and migration law do not exempt the MSs from applying EU law in certain zones, such as, at the external border, territorial sea and the transit zones (e.g. Art. 2, APR). There should be no legal vacuum as a result, as this notion would not effectively relieve states from their obligations under the human rights instruments or the EU Charter as concerns the treatment of third country nationals within their jurisdiction. Therefore, the notion of non-entry cannot be used to deny access to the asylum procedure. Could it then inhibit other rights of the applicants for asylum?
There could be several implications of applying such notion: (a) increased use of detention; (b) reduced application of reception and other standards. Firstly, the notion could be used to justify extensive resort to detention as Article 5(1)(f) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ECHR) allows it to ‘prevent their unauthorised entry into the country’, albeit for a short period of time. While the final version of the Regulation does not include automatic detention envisaged previously, it is questionable how without detention the MSs will ensure that applicants remain at the disposal of the authorities (required by Art. 6 and 7(1)), or which less coercive alternative measures could be used at the borders.
Secondly, the notion of ‘non-entry’ may in effect imply establishment of exceptional regimes where standards will be limited and access to rights restricted. The Regulation and other instruments of the Pact allow MSs to derogate from essential standards to delay the registration of asylum applications (Art. 27(7) APD), reduce reception conditions (Art. 8(8) on standard of living) or apply them only after the screening has ended (Art. 26 (2) APD).
Considering that persons will have to be available to the authorities not only during the 7 days of screening but could potentially continue in the border procedures for 12 or more weeks, this could lead to overcrowding at the borders. As we have seen in the hotspots previously, this in itself will downgrade the human rights standards (see, e.g. ECtHR, J.A. and others v. Italy, A.D. v. Greece, 2023). The CJEU pronounced such practices as constituting serious flaws in the reception systems (X v. Staatssecretaris van Justitie en Veiligheid, para. 57). Note, that screening will also apply to vulnerable persons.
Thus, while the concept of non-admission may be practical for operational purposes it will likely raise further legal risks and operational difficulties.
Options of remedies against screening results
NGOs claim that greater numbers of people will be refused access to procedures through a “briefing form” which cannot be challenged, while states will have wider options to decide that cases are inadmissible, preventing hearing on the merits of the case (ECRE, 2024). To what extent is the absence of a right to appeal against the result of screening problematic in practice?
Firstly, will the outcome of the screening be a decision? The Regulation envisages the screening to end with a screening form completed by the authorities, to be transmitted to asylum or return authorities respectively (Art. 17-18). In contrast with the initial text, the possibility to immediately refuse entry has been deleted and a new guarantee included for the applicant to be able to indicate if the information in the form is incorrect (Art. 17(3)). These changes seem to eliminate the prejudicial element in the outcome of the screening and present it as an initial phase of further procedures, where referral depends purely on the factual information. Will it indeed be the case?
The APR provides for a more flexible use of the border procedures, making it mandatory for asylum claims that are: i) clearly abusive (misleading authorities, withholding information), ii) constitute a security or public order threat, or iii) concern nationalities with a low recognition rate for international protection (below 20% with some exceptions) (APR, recital 60, Art. 45(1)), thus the screening process will lead to a choice of procedures (inadmissibility or accelerated procedures). Considering that the border procedure could be initiated based on nationality or security information only (Recital 60 APR), or non-cooperation of the applicant, such screening referral could amount to automatic exclusion of low merit cases or information collected could be used to channel applicants to fast-track procedures with lower procedural guarantees. Thus, even if the screening does not lead to immediate refusal of entry and does not constitute a decision on its own, it will directly impact the subsequent procedure, possibly containing lower procedural standards and substantively affecting the rights of the person, as analysed in another blog post in these series by Vincent Chetail.
At the same time, the result of the border procedures would always be subject to an appeal (Art. 67 of APR), thus the risk of refusal of entry without a remedy is low. However, there are shorter time limits for appeal and no guarantee for automatic suspensive effect of such appeals , although it may be separately requested (Art. 68 of APR). The SBC contains a similar guarantee that entry may only be refused by a substantiated decision stating the precise reasons for the refusal and with the right to appeal against a border guard’s decision to deny entry, although without suspensive effect (Art. 14(2) and (3)).
The lack of suspensive effect of the appeal may raise legal issues under the standards established by the EU Charter (Art. 47(1)), ECHR (Art. 13), and the case-law of the European courts. For the remedy to be effective, besides other requirements, it should have a suspensive effect on the expulsion decision (e.g., ECtHR, A.M. v. the Netherlands, para. 66, M.K. and Others v. Poland, paras. 219-220 and others). The CJEU also found that a remedy cannot be considered effective with no automatic suspensive effect when there are substantial grounds to believe that the person would be subject to ill-treatment if removed (e.g., Abdida, Gnandi, FMS).
So how realistic are appeals at the border? An important aspect to ensure effectiveness of a remedy, as pronounced by European courts, is the availability of information and legal assistance at the border. ECtHR takes into account if the applicant is in detention, where such access is even more limited (ECtHR, S.H. v. Malta, 2022, paras. 80, 82, 85, 89). The access to persons during the screening for organisations and persons providing advice and counselling could be limited where necessary objectively for the security, public order, or administrative management of the facility (Art. 8(6)). Though such access should not be severely restricted or rendered impossible, this issue is left for the discretion of national authorities. Such provision may lack effectiveness when applied in practice, as significant obstacles of access were noted in practice (e.g., ECtHR, D. v. Bulgaria, 2021, paras. 124, 134, ECRE, 2017, p. 5; EUAA, p. 210),
Last, but not least, will the lack or limitation of a judicial remedy following the screening be remedied by the envisaged fundamental rights monitoring mechanisms by independent monitors at the borders, which is significantly enhanced with safeguards in the Regulation (Art. 10)? While monitoring will certainly contribute to observance of human rights at the borders, the authority of such measure is not yet clear. MSs are to adopt relevant provisions to investigate allegations of non-respect for fundamental rights, initiate the referral to start civil or criminal proceedings, and ensure that investigations are effective and without undue delay (Art. 10(1-2)). However, the immediate impact of the monitoring mechanism for remedying restrictions to access to the asylum procedures is limited.
Conclusion
The final text of the Screening Regulation represents a genuine effort to equip it with various guarantees to ensure that applicants for international protection do not fall between the procedural cracks. The Regulation eliminates a number of risks but at the same time opens the window for various restrictions of rights that can cause legal problems. Screening blurs the distinction between protection seekers and other migrants, contributes to fast-track procedures with limited guarantees, increased instances for detention and other restrictive practices due to application of ‘non-entry’ notion. While the Regulation will likely meet its primary objective to increase control of third country nationals and indeed keep persons easily available for return, the potential for litigation might impact the length and complexity of procedures. Although screening will not lead to a decision, its input for further decisions is direct, while the effectiveness of remedies remains questionable.
