Screening at the borders of the EU: Challenging the territoriality principle!
By Conny Rijken
Source: Markus Spiske
The border procedure as proposed in the European Union’s (EU’s) New Pact on Migration and Asylum (New Pact) consists of three elements: pre-entry screening, asylum procedure at the border and return. This blog focuses primarily on the pre-entry screening and briefly touches upon the asylum procedure and return.
For the pre-entry screening a new regulation on screening of third country nationals (TCN) at the external borders is proposed (COM(2020)612). On the one hand, the proposed regulation is a further development of the Schengen Borders Code and on the other hand it can be seen as a codification of the hotspot procedure because of the involvement of the various EU agencies and especially the European Border and Coast Guard Agency and EU Agency for Asylum in the screening process similar to the hotspot approach.
The regulation proposes a pre-entry screening for three groups of third country nationals (TCN, artt. 3-5):
- TCNs who cross the external border outside the border crossing points (including those who apply for international protection),
- TCNs who disembark after a search and rescue operation,
- TCNs who present themselves at border crossing points without authorization to enter and who apply for international protection.
Furthermore, art. 5 refers to persons who are illegally staying in the country and who have not entered through a border crossing point. Accordingly, the proposal does not make a distinction between migrants and asylum seekers. They all are subject to the same screening procedure.
Expulsion versus non-admission
According to art. 4, during the screening the TCN is not authorized to enter the territory. Hence, it considers that the TCN has not entered the territory while in the screening procedure, even though the screening takes place on the territory of a Member State. Art. 6 states that the screening shall take place ‘at locations situated at or in proximity of the external borders’, which means most likely in the territory of the EU Member State.
Although the European Court of Human Rights (ECtHR) in its N.D. and N.T. v. Spain of 13 February 2020 decided that there was no violation of the prohibition of collective expulsion (art. 4, 4th protocol to the European Convention on Human Rights) in the situation of immediate return of migrants who got stuck on the fences between Morocco and Melilla, it also confirmed that the events took place on Spanish territory and that Spain exercised jurisdiction (paras 104-111). It furthermore, did not accept an exception to territorial jurisdiction of the border area in the Melilla enclave (paras 206-208) as it was clear that Spanish authorities were acting there.
Consequently, the ECtHR decided the act of Spain was one of expulsion rather than an act of non-admission, as argued by the Spanish government. Translating this ruling to the pre-entry screening, a tension emerges between art. 4 stating that TCNs have not entered the territory during the screening in a screening center at or in proximity to the external border and the general rule under international law of territorial jurisdiction. Currently, international rules on jurisdiction does not allow for an exception as proposed in the regulation nor does it allow for an exception based on the Schengen Borders Code (para. 109 of the judgement).
The pre-entry screening procedure
During the pre-entry screening TCNs are checked on health issues and vulnerabilities (art. 9), their identity (art. 10) and fingerprints are taken and a security check is performed (artt. 11 and 12). Consideration 21 and art. 8(7) provide for the involvement of national Anti-trafficking Rapporteurs to determine vulnerabilities related to human trafficking. The screening ends with a debriefing (artt. 13 and 14) which can result in a transfer to an asylum procedure, return, or a refusal of entry. If the TCN does not apply for asylum and did not fulfil entry conditions, the TCN will be subjected to return procedures under the return directive.
In line with art. 14 of the Schengen Borders Code (SBC) entry shall be refused if the conditions of Article 6 SBC are not fulfilled. But because they are at the territory and in fact have already entered, it is most logical these persons are referred to the return procedures as well. Neither the regulation nor the explanatory report give a further explanation on the distinction between those subjected to the return procedure and those refused entry. Those who apply for international protection are referred to the asylum-procedure with indications on the de-briefing form of whether the fast-track procedure, the border procedure or the ordinary asylum procedure should be applicable or not.
The proposal does not contain any provisions on appeal against the outcome of the pre-entry screening procedure. For those subjected to the return procedure, their right to review is provided under the return directive and for those referred to the asylum procedure their right to remedy are foreseen in the asylum procedures. The lack of remedy is most urgent for those who are refused entry. However, art. 14 SBC includes the option for appeal for persons who are refused entry in accordance with national law and it is likely these provision on appeal also apply in the case of pre-entry screening. This finds confirmation in the explanatory report (p. 12-13) and is a codification of the current practice in which agencies in the hotspots are considered not to be mandated to take any decisions (de jure), although they are at least involved in the decision making process (de facto). Therefore it is questionable whether this will be sufficient the close the accountability gap identified in the hotspot approach.
The pre-screening must be conducted within five days, a period that can be extended for another five days in exceptional cases where a high number of TCNs need to be screened at the same time (art. 6(3)). If a person is found on the territory without legal residency and is referred to the pre-screening procedure, the period is reduced to a maximum of three days (art. 6). If they have been subjected to the 72 hours border detention because of unauthorized crossing of the external border, the period is maximum two days (art. 6(5)). Given the situation on the Greek Islands, such short time periods are completely unrealistic, which led Jakulevičiene to conclude that the proposal has the potential to create more camps like Camp Moria.
Finally, the proposed regulation provides for a committee to assist the Commission with the implementing acts mentioned in the context of the identification and security checks in artt. 10 and 11 (art. 15). Who will set up this committee, what its mandate will be and what their role is in relation to the checks remains completely unclear.
More importantly and to close on a positive note, the proposed regulation in art. 7 provides for national independent monitoring bodies under the guidance of the European Fundamental Rights Agency. Each Member State shall establish an independent monitoring mechanism to ensure compliance with the Charter of Fundamental Rights, relevant national rules on detention and that violations are dealt with effectively. Hopefully this mechanism can rebalance the proposal at least a bit.
Conny Rijken is professor of Human Trafficking and Globalisation at Tilburg Law School, Tilburg University.