By Levin Fischer, LLM in European Law, Edinburgh Law School, University of Edinburgh
Winning entry for the EU Immigration and Asylum Law Prize 2020/2021
The European Commission presented the Proposal for a Regulation introducing a screening of third country nationals at the external borders and amending some related regulations (hereafter: Proposal) as part of the new European Pact on Asylum and Migration on 23 September 2020. The Proposal in Article 3(1) introduces a pre-entry screening that should be applicable to all third-country nationals who are at the external border without fulfilling the entry conditions, after disembarkation, following a search and rescue operation, or for those who apply for international protection at external border crossing points or transit zones. The screening has six elements, as further detailed in Article 6(6) of the Proposal: a health check, an identity check, registration in a database, a security check, filing out a debriefing form and deciding on what happens next. During the screening, persons within the scope of the Proposal are not allowed to enter the territory of a Member State, unless it becomes clear that they meet the criteria for entry.
The aim of the screening, according to the European Commission, is to accelerate the process of determining the status of a person and what type of procedure should apply. As pointed out more precisely in the preamble recital 8, the screening should help to ensure that the third-country nationals concerned are referred to the appropriate procedures at the earliest stage possible and that the procedures are continued without interruption and delay. Thus, the screening system is based on the notion that the common asylum system should prioritise the application of persons in genuine need of protection and expedite those with little chance of obtaining protection. The European Commission’s idea is that quicker procedures will help to avoid humanitarian crises like the one in the completely overcrowded Mória Refugee Camp near Mytilene on the island of Lesbos in the future. But is the Proposal really as effective as suggested by the Commission?
- Practicalities left aside?
The objectives pursued by the Proposal sound reasonable at first sight. On paper, the rapid allocation of the persons concerned to the right types of procedure is not only in the interest of the Member States, but also of the persons concerned. However, the Proposal might present considerable difficulties in its implementation.
a. Screening period too short
According to Article 6(3) of the Proposal, the screening is supposed to last for up to 5 days. In exceptional circumstances, this period may be extended by a maximum of an additional 5 days. This short period is subject of heavy criticism. Erik Marquardt, for example, Member of the European Parliament (Group of the Greens/European Free Alliance), described the practical implementation of this provision as “unrealistic”. In fact, the experiences on the Greek and Cypriot coast in particular have shown that it cannot realistically be expected of the Member States to meet such short deadlines. Both countries, which are likely to bear the bulk of the work, have already been struggling in the past to shorten their asylum procedures. The Proposal even takes this into account in Article 14(7) by providing for a guarantee, indicating that the screening should end also if the checks are not completed within the deadlines. Hence, in view of the short deadline, the Proposal does in fact not guarantee a reliable screening of third-country nationals. Rather, the standard of review will be reduced in practice to an approximate examination only. Thus, the screening according to the Proposal does not do much more than is already obligatory under existing law when asylum applications are registered.
b. No sufficient infrastructure in place
The screening shall be conducted at locations situated at or in proximity to the external borders (Article 6(1) of the Proposal). What is missing in the Proposal, however, are rules on where the people concerned are accommodated for the duration of the screening. Jakulevičienė rightly notes in her comment on the Proposal that the infrastructure currently in place will not be able to properly deliver the intended screening at the border. On the contrary, the accumulation of large numbers of third-country nationals at the EU borders poses the threat of new humanitarian crises. The proposal should therefore be implemented only if proper accommodation for all persons concerned is ensured, and if access to medically, psychologically or legally trained and qualified staff is guaranteed.
- Major problems left out?
As part of the new European Pact on Asylum and Migration, the Proposal pursues a comprehensive solution to migration management. However, it is striking that the Proposal does not sufficiently address essential questions on the fundamental issue of detention raised by the rules of the Proposal. As rightfully pointed out by ECRE, a combined reading of the provisions on the location of the screening (Article 6(1) of the Proposal) and the ban to enter the territory of the member states during the screening (Article 4(1) of the Proposal) implies that the persons undergoing screening will be, as a rule, deprived of their liberty.
However, the Proposal does not draw a clear line in the qualification of the deprivation of liberty as detention or mere restriction on freedom of movement. Yet, a clear distinction between the two terms within the Proposal is crucial: As Cornelisse explains, once a situation is qualified as detention, a number of safeguards such as the habeas corpus, giving the detainee the right to have the lawfulness of the detention speedily reviewed by a court, kick in. Although there are also legal safeguards in EU law for the mere restriction on freedom of movement, these are not nearly as strong as those for detention. The reluctance of the EU legislator in this sensitive area gives rise to well-founded fears that Member States will simply not qualify the containment measure as detention, depriving detainees of fundamental legal safeguards as the example of Hungary in the European Commission v Hungary case illustrates.
This reluctance by the EU legislator is also problematic against the background of the uniformity of EU law: As rightly pointed out by Cornelisse (see above), the result of the shortcomings in terms of qualification is that practices that are qualified as detention by one Member State, may not be seen as such by another, as the Ad-Hoc Query on detention of asylum applicants at the border by the European Migration Network shows. This creates an unintended fragmentation of protection levels for applicants, which EU asylum law should avoid by all means.
All in all, the Proposal is not the major coup the struggling European asylum system so urgently needs. The implementation of the well-intentioned plans is likely to lead to considerable problems in practice. As is often the case: what counts in the end is the result, not the intentions.