The Shifting Frontier: The Advocate General’s Opinion in Joined Cases C‑50/24 to C‑56/24 (Danané)

 

Vasiliki Apatzidou, Doctoral Researcher at Queen Mary University of London, Associate Tutor at the University of London.

Photo credit: Rock Cohen, via Wikimedia Commons

Introduction

Border procedures – the swift processing of asylum applications before granting legal entry into the territory – is one of the concepts that have dominated policy debates in the EU the last years, especially as the EU Pact on Migration and Asylum mainstreamed these procedures making them obligatory in some cases. As the implementation of the new EU asylum legislation is taking shape, CJEU’s interpretations will be decisive. The Advocate General’s recent opinion in Danané (Joined Cases C-50/24 to C-56/24) has reignited one of the most delicate debates regarding border procedures: where exactly does the “border” end?

Summary of the Opinion

In his Opinion of 26 June 2025, the Advocate General addressed two questions referred by the national court of Belgium under Article 267 TFEU. First, whether the “border procedure” under Article 43 of the recast Asylum Procedures Directive (APD) must necessarily be carried out at the physical external border or in transit zones, or whether Member States may designate inland facilities as “places at the border”. Second, what legal consequences follow once the four-week maximum duration for the border procedure has expired, in particular regarding the continuation of detention and the transition to the ordinary procedure.

In his opinion, he argued that nothing in the Directive requires border procedures to be conducted strictly at a border crossing point or transit zones. Member States may lawfully designate inland facilities as “places at the border”, provided this is transparent and grounded in national law. What matters is compliance with the legal framework—the four-week limit, procedural safeguards, and the automatic transition from the border to the regular procedure once time runs out. In such cases, detention may continue in the same facility (in what is physically the same location) on the basis of a different ground for detention under the recast Reception Conditions Directive, and with an individual assessment including a necessity and proportionality assessment. While authorities may continue processing the case as a priority, they must ensure the full procedural guarantees envisaged in the regular procedure.

A Critical Analysis of the Opinion

At first sight, the location of border procedures is supposed to be straightforward. The EU Asylum Procedures Directive (Article 43) allows Member States to examine an asylum claim “at the border or in transit zones” before granting entry into the territory. The underlying logic is clear: these procedures are exceptional, time-limited, they must be concluded within four weeks, and they should be used at the borders for an exhaustive list of grounds, particularly claims that are considered manifestly unfounded. If a decision is not reached by then, the person should be admitted into the territory to pursue the regular procedure with a fuller set of rights (See C‑924/19 PPU, FMS and others). In this way, border procedures symbolically and legally mark the threshold between “outside” and “inside”.

However, in this specific case, the Advocate General takes a pragmatic view. He argues that it does not matter whether the facility where an asylum seeker is detained during border procedures is physically located at the border. A Member State can lawfully designate an inland detention centre as a border procedure site, provided this is done transparently under national law. For him, what counts is the procedural framework: the four-week time limit, the guarantees for applicants in border procedures, and the automatic transition into the regular procedure once time runs out. Geography, he suggests, should not tie the hands of Member States struggling with capacity constraints.

This approach undoubtedly offers administrative convenience. Airports, ports, transit zones and land borders are not designed to host large detention facilities. Hence, moving applicants inland could allow governments to manage asylum seekers more effectively. Yet, in this way, the opinion stretches the original concept of the border in troubling ways, shifting this deep into the territory, as I have argued in another analysis.

First, this risks turning the border into a moving – shifting barrier. If the very same detention facility is deemed a “border” centre on Day 1 and an “ordinary” reception centre on Day 29, the symbolism of non-entry collapses. The border no longer corresponds to a physical threshold, but to a shifting legal barrier applied at the convenience of the state. This undermines the idea that border procedures are exceptional and geographically confined.

Second, the blurring of lines could weaken safeguards against prolonged detention. On paper, the four-week limit remains intact: once it expires, the applicant moves into the ordinary asylum procedure. But if nothing changes in practice—same cell, same guards, same walls—the distinction between border detention and reception detention risks becoming meaningless. For the applicant, the procedural transition is invisible (as only the legal basis changes), while the deprivation of liberty continues uninterrupted.

Third, the opinion could encourage Member States to internalise the border within their own territory. If inland centres can be designated as border sites, governments may effectively shift the “frontier” inward, applying restrictive screening and asylum regimes far from the actual crossing point. This not only distorts the purpose of border procedures but may also normalise an approach where border procedures will be implemented not only at or close to the actual border, but even in locations in the mainland far away from the border crossing point.

By relocating the border inland, the opinion risks diluting the exceptional nature of such procedures. The Court of Justice will now have to decide whether efficiency outweighs legal certainty. If it sides with the Advocate General, we may enter a new phase where “border” no longer means border, but simply wherever the state declares it to be. That would be a quiet yet profound shift in European asylum law—one that moves the frontier not only inward, but also away from the very idea of the border as a fixed point of entry.

A New Legal Framework on the Horizon

This debate will soon be reshaped by the Asylum Procedures Regulation (APR), adopted as part of the EU’s Migration and Asylum Pact and expected to be implemented from the summer of 2026. Unlike the current Directive, the APR explicitly allows border procedures to be applied not only at border crossing points but also in designated locations within its territory (See Article 54 APR). At the same time, it extends the maximum duration: an asylum application can now be examined in border procedure for up to 12 weeks (Article 51 APR), with possible extensions of another 8 weeks in crisis situations.

In other words, what the Advocate General currently justifies through interpretation will soon be hardwired into EU law. As border procedures are mainstreamed and, in certain cases, made obligatory under the new framework, the “border” will no longer be a fixed geographic line but a flexible administrative construct, movable according to state needs. Whether this development ultimately enhances efficiency or risks undermining the very concept of border procedures as a limited and exceptional mechanism is a question that Europe will now have to confront.

Conclusion

The Danané opinion illustrates how the meaning of the “border” is shifting from a fixed geographical threshold to a flexible legal concept defined by administrative choice. While this approach may accommodate the practical realities of managing asylum flows, it raises questions about whether border procedures can retain their exceptional and time-limited character once detached from geography. This dynamic reflects a wider logic of the Pact: borders shift outward through externalization and inward through legal fictions of non-entry, reshaping the link between territory and rights. The decision of the Court will determine if borders remain thresholds of protection, or become shifting spaces of control and exclusion where legal safeguards gradually erode.