The new Screening Regulation – part 5 of the analysis of new EU asylum laws

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Rock Cohen, via Wikimedia Commons

(Amended on 14 May and 10 and 18 June 2024 - changed sentences marked with an asterisk)

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications (also known as the 'Asylum and Migration Management Regulation', or AMMR), the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. These five laws joined the previously agreed revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU. Taken together, all these laws are a ‘package’ of new or revised EU asylum laws.* All the legislation was formally adopted on 14 May 2024, and published in the EU Official Journal on 22 May 2024.*

I’ve looked at all the new legislation on this blog in a series of blog posts, which are based on a forthcoming article.* This is the fifth post in the series, on the new Regulation on screening of migrants (mostly) at the external borders. The other blog posts in the series concern the new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the revised Dublin rules on responsibility for asylum-seekers/AMMR (Part 6), the Regulation on asylum procedures (part 7), and the crisis Regulation plus general comments (Part 8).*

The 2024 asylum package joins the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The Screening regulation: background

There have been two previous ‘phases’ in development of the Common European Asylum System: a first phase of laws mainly adopted between 2003 and 2005, and a second phase of laws mainly adopted between 2011 and 2013. The 2024 package is in effect a third phase, although for some reason the EU avoids calling it that.*

However, unlike most of the 2024 package of legislation, the Screening Regulation is entirely new – although to some extent it may provide a legal basis for things that were already going on in practice before its adoption. So unlike most of the other laws in the asylum package, there is no current version of the law to compare the new version to – and therefore no prior CJEU case law to consider either.

Having said that, the Screening Regulation amended a number of other EU measures, to ensure their consistency with it, namely the Regulations on: the Visa Information System; the entry-exit system; ETIAS (the travel authorisation system); and interoperability of databases.* Furthermore, a parallel Regulation amended two EU criminal law measures to ensure that they are also consistent with the main Screening Regulation.*

Why two parallel Regulations? Because the Screening Regulation, unlike the rest of the package of EU asylum law measures, is technically a law on external borders, not asylum. As such, it ‘builds upon the Schengen acquis’, and so is applicable in principle to the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) too.* Ireland must opt out (as it does not participate in Schengen) and Denmark is formally excluded (although it may apply the Regulation as a matter of national law). In contrast, the parallel amendment to EU criminal law is only relevant to Member States (but again, there will be an Irish and Danish opt out from it).

In this context, the preamble to the Regulation makes special provision for Cyprus, which has not yet fully applied Schengen; that country must apply the Regulation to those crossing the line separating the areas controlled by the Cypriot government and the Turkish Cypriot administration, even though it is not legally an international border from the perspective of EU law.  As for Denmark and Schengen associates, the preamble states that for them, references to the EU’s reception conditions Directive in the Screening Regulation should be understood as references to the relevant national law.   

As with all the new EU asylum measures, each must be seen in the broader context of all the others – which I discuss over the course of this series of blog posts.* Furthermore, the new Screening Regulation has links with the Schengen Borders Code, the main law governing crossing of external EU borders – although the Regulation did not formally amend the Code.* It will also link with (but again, not amend) the EU’s Returns Directive.

The legislative process leading to the agreed text of the screening Regulation started with the Commission proposal in 2020, as part of the attempt to ‘relaunch’ the process of amending EU asylum law, started back in 2016.* The proposal was subsequently negotiated between EU governments (the Council) and then between the Council and the European Parliament. But this blog post will look only at the final text, leaving aside the politics of the negotiations.

Like most of the other measures in the asylum package, the application date of the Screening Regulation will be about two years after adoption - namely 12 June 2026.* However, the provisions on queries of other EU information systems will only start to apply once those information systems enter into operation.

Scope

The Regulation applies to four categories of people, namely those who: 

without fulfilling the entry conditions [in the Schengen Borders Code], have crossed the external border in an unauthorised manner, have applied for international protection during border checks, or have been disembarked after a search and rescue operation

and of

third-country nationals illegally staying within the territory of the Member States where there is no indication that those third-country nationals have been subject to controls at external borders, before they are referred to the appropriate procedure.

The Regulation distinguishes between the first three categories, who are all connected with the external borders, and the fourth category (illegal staying where is there is no indication of having been controlled at external borders). For simplicity’s sake, this blog post refers to the first three categories as ‘external cases’, and the fourth category as ‘internal cases’. Both the first and third groups must be screened regardless of whether they apply for asylum or not.

Member States ‘may refrain’ from screening the fourth category of people (on the territory, having entered without authorisation), if they send the non-EU citizen back, ‘immediately after apprehension, to another Member State under bilateral agreements or arrangements or under bilateral cooperation frameworks.’ In that event, the other Member State must apply a screening process.

The Screening Process

For external borders cases, screening must be ‘carried out without delay’, and in any event completed within seven days of apprehension, disembarkation, or presentation at the border. For internal cases, the deadline is three days. Screening must end if the person concerned is authorised to enter the territory. Screening may end if the person concerned ‘leaves the territory of the Member States, for their country of origin or country of residence or for another third country’ to which they voluntarily decided to return to and were accepted by. In any case, screening ends once the deadline to complete it is reached.

Screening must take place at an ‘adequate and appropriate’ location decided by Member States; for external cases, that location should be ‘generally situated at or in proximity to the external borders’, although it could be at ‘other locations within the territory’. It must entail (referring in part to checks under other EU laws): checks on health, vulnerability, and identity; registration of biometric data ‘to the extent that it has not yet occurred’; a security check; and filling out a screening form.

For those who have made an asylum application, the registration of that application is governed by the asylum procedures Regulation. The preamble to the Screening Regulation explicitly states that an asylum application can be made during the screening process. Furthermore, the Screening Regulation is ‘without prejudice to’ the Dublin rules; and it ‘could be followed by relocation’ (ie movement to a Member State not responsible for the application) under the Dublin rules ‘or another existing solidarity mechanism’.

Member States are obliged to inform the persons being screened about the screening process itself, as well as asylum law and returns law, the Borders Code, national immigration law, the GDPR, and any prospect of relocation. Otherwise, there is no explicit reference to procedural rights. Conversely, the people being screened have procedural obligations: they must ‘remain available to the screening authorities’ and provide both specified personal data and biometric data as set out in the Eurodac Regulation. Finally, after screening ends, the person concerned should be referred to the appropriate procedure – either the asylum process or the returns process.

Treatment During Screening

As regards immigration law status during the screening process, external cases must not be authorised to enter the territory of the Member States, even though the screening might be carried out on the territory de facto. This is obviously a legal fiction, which is exacerbated by the prospect (under the procedures Regulation) of continuing that legal fiction under the ‘borders procedure’ for up to 12 weeks.

Moreover, Member States must provide in their national law that persons being screened ‘remain available to the authorities carrying out the screening for the duration of the screening, to prevent any risk of absconding and potential threats to internal security resulting from such absconding.’ This wording looks like a euphemism for detention, which the Regulation goes on to refer to more explicitly – providing that where the person being screened has not applied for asylum, the rules on detention in the Returns Directive apply.

For those who have applied for asylum, the reception conditions Directive applies to the extent set out in it. This cross-reference is potentially awkward because that Directive applies to those ‘allowed to remain on the territory’ with that status, whereas the Screening Regulation decrees that the people covered by it are not legally on the territory. Logically the reception conditions Directive must apply despite the non-entry rule of the Screening Regulation, otherwise that Regulation’s references to that Directive applying would be meaningless (the preamble to the Regulation also says that the detention rules in the reception conditions Directive ‘should apply’ to asylum seekers covered by the Regulation). Screening is not as such a ground for detention in the exhaustive list of grounds set out in the reception conditions Directive – so Member States will have to find some other ground for it from that list. The preamble to the Regulation sets out general rules on limits to detention, borrowing some language from the reception conditions directive.

As for other aspects of treatment, the Screening Regulation states that Member States ‘shall ensure that all persons subject to the screening are accorded a standard of living which guarantees their subsistence, protects their physical and mental health and respects their rights under the Charter [of Fundamental Rights].’ For asylum-seekers, this overlaps with the more detailed rules in the reception conditions Directive, but for non-asylum seekers, it in principle goes further than the Returns Directive – although the case law on that Directive has required some minimum treatment of people covered by it. Of course, for many people subject to screening, it will be the provisions on detention conditions under those two Directives which will be relevant in practice. There is a more specific provision on health care, stating that those being screened ‘shall have access to emergency health care and essential treatment of illness.’

The Regulation includes specific provisions on minors. The best interests of the child must always be paramount; the minor must be accompanied by an adult family member, if present, during the screening; and Member States must ensure the involvement of a representative for unaccompanied minors (overlapping with the relevant provisions of the reception conditions Directive).

Finally, as for contact with the outside world, ‘[o]rganisations and persons providing advice and counselling shall have effective access to third-country nationals during the screening’, although Member States may limit that access under national law where the limit is ‘objectively necessary for the security, public order or administrative management of a border crossing point or of a facility where the screening is carried out, provided that such access is not severely restricted or rendered impossible’. Presumably such access can help check that the rules on treatment are being applied, including possible challenges to detention and offering advice as regards subsequent asylum or returns procedures, or potential challenges to screening as discussed above.

Human Rights Monitoring

The Regulation sets out an overarching obligation to comply with human rights obligations, including the principle of non-refoulement (not sending a migrant to an unsafe country), as well as a requirement to have an independent human rights monitoring mechanism, which is specified in some detail. Member States must: ‘investigate allegations of failure of respect for fundamental rights’ as regards screening; ensure civil or criminal liability under national law ‘in cases of failure to respect or to enforce fundamental rights’; and create an independent mechanism to monitor human rights compliance during the screening, ensuring that allegations of human rights breaches are triggered or dealt with effectively, with ‘adequate safeguards’ to ensure its independence. The preamble points out that judicial review is not enough to meet these standards. (Also, these rules will apply to monitoring the borders procedure in the procedures Regulation)

Assessment

To what extent has this Regulation ensured a balance between migration control and human rights? It does aim towards a greater degree of migration control by imposing new legal obligations as regards many asylum seekers; but the key point as regards their rights is that the Regulation provides for a filtering process, not a final decision. In other words, the screening process does not entail in itself a decision on the merits or admissibility of an asylum claim, or a return decision. Whilst it is based on a legal fiction of non-entry, that process is strictly and absolutely limited in time, with no prospect of extending the short screening period even as a derogation under the Exceptions Regulation. (In contrast, the border procedure under the procedures Regulation lasts for longer, and can be extended in exceptional cases). And the legal fiction does not in any event mean that no law applies at all to the persons concerned; obviously at the very least, the screening Regulation itself applies, as do other EU laws which it makes applicable. (So does the ECHR: see Amuur v France) For instance, the Regulation refers to detention on the basis of the returns and reception conditions Directives, and although the lack of authorisation to enter means that the right to remain on the territory as an asylum seeker is not triggered as such, nevertheless the Regulation precludes Member States taking return decisions to remove asylum seekers, as it only provides for a filtering process.

Despite the absence of any express procedural rights in the Regulation, it is arguable that in light of the right to effective remedies and access to court set out in Article 47 of the Charter, it should at least be possible to challenge the application of the screening procedure on the basis that (for example) there is no legal ground for the screening at all, or that the screening has exceeded its permitted duration. In any event, the absence of express procedural rights should be seen in the context of the screening process not determining the merits of an asylum application.

The drafters of the Regulation chose instead to focus on the prospect of non-judicial processes to protect human rights in the context of the screening process. While non-judicial mechanisms of course play an important role in protection of human rights in general, it is useful if parallel judicial processes can be relied upon too. And one area where the Regulation should have explicitly provided for both judicial and non-judicial mechanisms is pushbacks from the territory – illegal not only under human rights law but also under EU law, as recently confirmed by the CJEU.

 

The EU’s New Pact on Migration and Asylum: three key arguments

 

 

Lilian Tsourdi, Assistant Professor, University of Maastricht

 *Photo credit:  Délmagyarország/Schmidt Andrea

 

The New Pact on Migration and Asylum is the EU’s latest policy framework on asylum, migration, and border management policies, and the series of legislative proposals that accompany it. Its stated aim is to establish ‘seamless migration processes and stronger governance’. Negotiations on the Pact legislative instruments have been ongoing since September 2020.

 

The European Parliament (April 2023) and the Council of the European Union (June 2023) recently adopted negotiating positions on two key instruments: the Asylum Procedures Regulation (APR) that reforms rules on asylum determination and related rights, and the Asylum and Migration Management Regulation (AMMR) reforming the EU’s system on allocating responsibility for processing asylum claims and establishing a solidarity mechanism.

 

This commentary develops three key arguments: i) while not inherently negative, the Pact’s seamless migration processes are in fact geared to externalising protection obligations thus undermining fundamental rights; ii) the Pact instruments pay greater attention to the policies’ administrative design and carry potential to enhance implementation; iii) the Pact instruments contain a vision of flexible solidarity that remains linked with pressure and misses the mark of fair sharing. 

 

 

Externalization as the red thread

 

Creating seamless migration processes is not inherently negative. This approach acknowledges the intricate links between different policies at the operational level, especially at border areas. The UNHCR had voiced the need for swift identification at the external borders, differentiation between categories of persons making up mixed flows, and referral to an appropriate procedure, as early as 2007 through its so-called Ten Point Plan.

 

Nonetheless, the Pact’s seamless migration processes are in fact geared to externalising protection obligations thus undermining fundamental rights. First, the Pact instruments establish accelerated screening, asylum, and return procedures at the external borders with curtailed procedural guarantees. Combined with logistic constraints (e.g. facilities, access to counsel) they risk undermining migrants’ (procedural) rights. The instruments also blur the lines between deprivation of liberty and restrictions to the freedom of movement and could lead to the propagation of widespread de facto detention.

 

Next, the latest negotiating position of the Council on asylum procedures expands the use and scope of the safe third country concept. Where third counties have either not ratified the 1951 Refugee Convention or retain a geographical limitation to its scope (the latter is the case for Turkey for example) the APR introduces the notion of having access to effective protection instead as part of the third country safety assessment. The provisions contain minimal guarantees to ascertain what effective protection entails, which establish standards below those foreseen by the 1951 Refugee Convention.  

 

In parallel, migration management has been streamlined in the EU’s external relations affecting areas such as development and trade. One way the EU is establishing these linkages is through making access to funding for non-EU countries conditional to cooperation on migration management objectives. The ‘deal’ with Tunisia spearheaded by the EU, Italy, and the Netherlands is the most recent illustration.

 

A greater attention to the system’s governance

 

One of the main ills of the EU’s asylum policy is its lack of attention to the administrative dimension. The current administrative design allocates the vast majority of operationalisation obligations – including financial ones – to Member States with different levels of economic development and different conceptualisations of welfare.

 

The Pact instruments recognise, more adequately than previously, the policies’ implementation dimensions. The Council positions on the AMMR and the APR highlight the opportunities generated through EU funding and EU agencies to implement policy. Nonetheless, the Pact instruments fail to adequately regulate the implications of agency involvement in implementation, while the current design of the EU budget (Multi-Annual Framework 2021-2027) precludes the existence of truly structural forms of EU funding.

 

Next, the AMMR and APR provide a structured approach to define Member States’ relative capacities and to apportion responsibilities in some areas (e.g. implementing border procedures) on this basis. The triggering of solidarity measures is also linked with quantitative and qualitative indicators that, overall, seem to be well suited to provide a holistic picture and assess relative pressure.

 

Finally, the Council negotiating position on the AMMR foresees new permanent governance mechanisms, such as annual High Level EU Migration and Technical Level EU Migration fora that are meant to play pivotal roles in animating inter-state solidarity through pledges. Such permanent structures, mirroring UN level processes, seem more apt to establish effective and predictable inter-state cooperation compared to ad hoc bargaining and emergency-driven responses.   

  

An inadequate vision on solidarity

 

The AMMR largely keeps intact the basic premises of the current ‘Dublin system’, EU’s responsibility allocation system. In brief, Dublin allocates responsibility to the state primarily ‘responsible’ for the person’s presence in the EU. In practice, this should mean the state of first irregular entry to the EU territory is responsible. However, states have sought to evade their Dublin responsibility (by not registering asylum applications for example) and asylum seekers move clandestinely through the EU and evade Dublin procedures.

 

To counter this, the AMMR Council negotiating position aims for a more predictable operationalisation of inter-state solidarity through annual Member State pledges. Nonetheless, solidarity measures, gathered under the framework of a so-called Solidarity Pool, are still meant to be triggered in situations of pressure.

 

The Solidarity Pool will consist of i) relocations (i.e. organised intra-EU transfers) of asylum seekers or recently recognised beneficiaries of international protection or of migrants under a return obligation; ii) direct financial contributions provided by Member States aimed either at boosting Member State or third country capacities in the areas of asylum, migration, or border management; iii) alternative contributions such as capacity building, staff support, equipment etc. All these contributions are meant to be ‘considered of equal value’.

 

In breaking with the past, solidarity has a mandatory character in the sense that Member States are to annually contribute their fair share that will be calculated through a formula that takes to account their population size (50% weighting) and their total GDP (50% weighting). Nonetheless, to appease Member States that opposed relocation, the Pact instruments foresee that Member States retain full discretion in choosing between the types of solidarity measures they will contribute.

 

Overall, the Pact’s approach is likely to miss the mark on fair sharing. While creating permanent governance structures, the Pact continues to link the activation of solidarity with pressure. Thus, instead of establishing structural fair sharing, solidarity remains a palliative solution. Next, it is unlikely that capacity building activities in third states, or sharing of personnel and equipment, will be considered by the benefitting Member States as having equivalent impact on the ground as people sharing.

 

The Long and Winding Road Ahead

 

June 2023 saw one of the deadliest shipwrecks involving migrants seeking to reach the EU’s shores with more than 500 persons missing and presumed dead off the coast of Pylos in Greece. Unfortunately, such unnecessary loss of life is being normalized with IOM reporting over 27,500 missing migrants in the Mediterranean alone since 2014. Action to reform the EU’s migration policies is imperative.    

 

EU official cycles hailed the Council’s early June negotiating position as a breakthrough. The timing of the forthcoming European Parliament elections, scheduled for June 2024, generates additional impetus for the EU’s co-legislators to reach compromise positions in the next months. Nevertheless, political rifts remain intense with Poland and Hungary blocking a joint political statement of Heads of State on migration during the late June 2023 European Council meeting.

 

What promise do the Pact instruments carry? They pay greater attention to policy implementation, governance structures, and the operationalisation of solidarity. Nevertheless, by prioritizing externalization, and by seeking to appease a limited number of Member States that seem to oppose (inter-state solidarity in) migration, they are likely to undermine migrants’ fundamental rights, while missing the mark on fair-sharing. A reform that will fail to deliver results, risks enhancing polarization in migration matters.

 

Legislative developments in the EU echo the UK’s recently adopted Illegal Migration Act. They testify to Europe’s increasingly defensive policy stance in migration. It is to be hoped that future policy will eventually aim at mutually beneficial partnerships with third countries, migrant, and local populations that move beyond Eurocentric frames to meaningfully address the different components of migration processes and aim at co-development. 

 

 

The New Pact on Migration and Asylum: Turning European Union Territory into a non-Territory

 

 

Jean-Pierre Cassarino* and Luisa Marin**

 

 

Externalization policies in 2020: where is the European Union territory?  

 

In spite of the Commission’s rhetoric stressing the novel elements of the Pact on Migration and Asylum (hereinafter: the Pact – summarized and discussed in general here), there are good reasons to argue that the Pact develops and consolidates, among others, the existing trends on externalization policies of migration control (see Guild et al). Furthermore, it tries to create new avenues for a ‘smarter’ system of management of immigration, by additionally controlling access to the European Union territory for third country nationals (TCNs), and by creating different categories of migrants, which are then subject to different legal regimes which find application in the European Union territory.  

 

The consolidation of existing trends concerns the externalization of migration management practices, resort to technologies in developing migration control systems (further development of Eurodac, completion of the path toward full interoperability between IT systems), and also the strengthening of the role of the European Union executive level, via increased joint management involving European Union agencies: these are all policies that find in the Pact’s consolidation.

 

This brief will focus on externalization (practices), a concept which is finding a new declination in the Pact: indeed, the Pact and several of the measures proposed, read together, are aiming at ‘disentangling’ the territory of the EU, from a set of rights which are related with the presence of the migrant or of the asylum seeker on the territory of a Member State of the EU, and from the relation between territory and access to a jurisdiction, which is necessary to enforce rights which otherwise remain on paper.

 

Interestingly, this process of separation, of splitting between territory-law/rights-jurisdiction takes place not outside, but within the EU, and this is the new declination of externalization which one can find in the measures proposed in the Pact, namely with the proposal for a Screening Regulation and the amended proposal for a Procedure Regulation. It is no accident that other commentators have interpreted it as a consolidation of ‘fortress Europe’. In other words, this externalization process takes place within the EU and aims at making the external borders more effective also for the TCNs who are already in the territory of the EU.

 

The proposal for a pre-entry screening regulation

 

A first instrument which has a pivotal role in the consolidation of the externalization trend is the proposed Regulation for a screening of third country nationals (hereinafter: Proposal Screening Regulation), which will be applicable to migrants crossing the external borders without authorization. The aim of the screening, according to the Commission, is to ‘accelerate the process of determining the status of a person and what type of procedure should apply’. More precisely, the screening ‘should help ensure that the third country nationals concerned are referred to the appropriate procedures at the earliest stage possible’ and also to avoid absconding after entrance in the territory in order to reach a different state than the one of arrival (recital 8, preamble of proposal). The screening should contribute as well to curb secondary movements, which is a policy target highly relevant for many northern and central European Union states.

 

In the new design, the screening procedure becomes the ‘standard’ for all TCNs who crossed the border in irregular manner, and also for persons who are disembarked following a search and rescue (SAR) operation, and for those who apply for international protection at the external border crossing points or in transit zones. With the screening Regulation, all these categories of persons shall not be allowed to enter the territory of the State during the screening (Arts 3 and 4 of the proposal). 

 

Consequently, different categories of migrants, including asylum seekers which are by definition vulnerable persons, are to be kept in locations situated at or in proximity to the external borders, for a time (up to 5 days, which can become 10 at maximum), defined in the Regulation, but which must be respected by national administrations. There is here an implicit equation between all these categories, and the common denominator of this operation is that all these persons have crossed the border in an unauthorized manner.

 

It is yet unclear how the situation of migrants during the screening is to be organized in practical terms, transit zones, hotspot or others, and if this can qualify as detention, in legal terms. The Court of Justice has ruled recently on Hungarian transit zones (see analysis by Luisa Marin), by deciding that Röszke transit zone qualified as ‘detention’, and it can be argued that the parameters clarified in that decision could find application also to the case of migrants during the screening phase. If the situation of TCNs during the screening can be considered detention, which is then the legal basis? The Reception Conditions Directive or the Return Directive? If the national administrations struggle to meet the tight deadlines provided for the screening system, these questions will become more urgent, next to the very practical issue of the actual accommodation for this procedure, which in general does not allow for access to the territory.

 

On the one side, Article 14(7) of the proposal provides a guarantee, indicating that the screening should end also if the checks are not completed within the deadlines; on the other side, the remaining question is: to which procedure is the applicant sent and how is the next phase then determined? The relevant procedure following the screening here seems to be determined in a very approximate way, and this begs the question on the extent to which rights can be protected in this context. Furthermore, the right to have access to a lawyer is not provided for in the screening phase. Given the relevance of this screening phase, also fundamental rights should be monitored, and the mechanism put in place at Article 7, leaves much to the discretion of the Member States, and the involvement of the Fundamental Rights Agency, with guidance and support upon request of the MS can be too little to ensure fundamental rights are not jeopardized by national administrations.

 

This screening phase, which has the purpose to make sure, among other things, that states ‘do their job’ as to collecting information and consequently feeding the EU information systems, might therefore have important effects on the merits of the individual case, since border procedures are to be seen as fast-track, time is limited and procedural guarantees are also sacrificed in this context. In the case the screening ends with a refusal of entry, there is a substantive effect of the screening, which is conducted without legal assistance and without access to a legal remedy. And if this is not a decision in itself, but it ends up in a de-briefing form, this form might give substance to the next stage of the procedure, which, in the case of asylum, should be an individualized and accurate assessment of one’s individual circumstances.   

 

Overall, it should be stressed that the screening itself does not end up in a formal decision, it nevertheless represents an important phase since it defines what comes after, i.e., the type of procedure following the screening. It must be observed therefore, that the respect of some procedural rights is of paramount importance. At the same time, it is important that communication in a language TCNs can understand is effective, since the screening might end in a de-briefing form, where one or more nationalities are indicated. Considering that one of the options is the refusal of entry (Art. 14(1) screening proposal; confirmed by the recital 40 of the Proposal Procedure Regulation, as amended in 2020), and the others are either access to asylum or expulsion, one should require that the screening provides for procedural guarantees.

 

Furthermore, the screening should point to any element which might be relevant to refer the TCNs into the accelerated examination procedure or the border procedure. In other words, the screening must indicate in the de-briefing form the options that protect asylum applicants less than others (Article 14(3) of the proposal). It does not operate in the other way: a TCN who has applied for asylum and comes from a country with a high recognition rate is not excluded from the screening (see blog post by Jakuleviciene).

 

The legislation creates therefore avenues for disentangling, splitting the relation between physical presence of an asylum applicant on a territory and the set of laws and fundamental rights associated to it, namely a protective legal order, access to rights and to a jurisdiction enforcing those rights. It creates a sort of ‘lighter’ legal order, a lower density system, which facilitates the exit of the applicant from the territory of the EU, creating a sort of shift from a Europe of rights to the Europe of borders, confinement and expulsions. 

 

 

The proposal for new border procedures: an attempt to create a lower density territory?

 

Another crucial piece in this process of establishing a stronger border fence and streamline procedures at the border, creating a ‘seamless link between asylum and return’, in the words of the Commission, is constituted by the reform of the border procedures, with an amendment of the 2016 proposal for the Regulation procedure (hereinafter: Amended Proposal Procedure Regulation).  

 

Though border procedures are already present in the current Regulation of 2013, they are now developed into a “border procedure for asylum and return”, and a more developed accelerated procedure, which, next to the normal asylum procedure, comes after the screening phase.

 

The new border procedure becomes obligatory (according to Art. 41(3) of the Amended Proposal Procedure Regulation) for applicants who arrive irregularly at the external border or after disembarkation and another of these grounds apply:

 

-          they represent a risk to national security or public order;

-          the applicant has provided false information or documents or by withholding relevant information or document;

-          the applicant comes from a non-EU country for which the share of positive decisions in the total number of asylum decisions is below 20 percent.  

 

This last criterion is especially problematic, since it transcends the criterion of the safe third country and it undermines the principle that every asylum application requires a complex and individualized assessment of the particular personal circumstances of the applicant, by introducing presumptive elements in a procedure which gives fewer guarantees.

 

During the border procedure, the TCN is not granted access to the EU. The expansion of the new border procedures poses also the problem of the organization of the facilities necessary for the new procedures, which must be a location at or close to the external borders, in other words, where migrants are apprehended or disembarked.

 

Tellingly enough, the Commission’s explanatory memorandum describes as guarantees in the asylum border procedure all the situations in which the border procedure shall not be applied, for example, because the necessary support cannot be provided or for medical reasons, or where the ‘conditions for detention (…) cannot be met and the border procedure cannot be applied without detention’.

 

Also here the question remains on how to qualify their stay during the procedure, because the Commission aims at limiting resort to detention. The situation could be considered de facto a detention, and its compatibility with the criteria laid down by the Court of Justice in the Hungarian transit zones case is questionable. 

 

Another aspect which must be analyzed is the system of guarantees after the decision in a border procedure. If an application is rejected in an asylum border procedure, the “return procedure” applies immediately. Member States must limit to one instance the right to effective remedy against the decision, as posited in Article 53(9). The right to an effective remedy is therefore limited, according to Art. 53 of the Proposed Regulation, and the right to remain, a ‘light’ right to remain one could say, is also narrowly constructed, in the case of border procedures, to the first remedy against the negative decision (Art. 54(3) read together with Art. 54(4) and 54(5)). Furthermore, EU law allows Member States to limit the right to remain in case of subsequent applications and provides that there is no right to remain in the case of subsequent appeals (Art. 54(6) and (7)). More in general, this proposal extends the circumstances where the applicant does not have an automatic right to remain and this represents an aspect which affects significantly and in a factual manner the capacity to challenge a negative decision in a border procedure.

 

Overall, it can be argued that the asylum border procedure is a procedure where guarantees are limited, because the access to the jurisdiction is taking place in fast-track procedures, access to legal remedies is also reduced to the very minimum. Access to the territory of the Member State is therefore deprived of its typical meaning, in the sense that it does not imply access to a system which is protecting rights with procedures which offer guarantees and are therefore also time-consuming. Here, efficiency should govern a process where the access to a jurisdiction is lighter, is ‘less dense’ than otherwise. To conclude, this externalization of migration control policies takes place ‘inside’ the European Union territory, and it aims at prolonging the effects of containment policies because they make access to the EU territory less meaningful, in legal terms: the presence of the person in the territory of the EU does not entail full access to the rights related to the presence on the territory.

 

 

Solidarity in cooperating with third countries? The “return sponsorship” and its territorial puzzle

 

Chapter 6 of the New Pact on Migration and Asylum proposes, among other things, to create a conditionality between cooperation on readmission with third countries and the issuance of visas to their nationals. This conditionality was legally established in the 2019 revision of the Visa Code Regulation. The revision (discussed here) states that, given their “politically sensitive nature and their horizontal implications for the Member States and the Union”, such provisions will be triggered once implementing powers are conferred to the Council (following a proposal from the Commission).

 

What do these measures entail? We know that they can be applied in bulk or separately. Firstly, EU consulates in third countries will not have the usual leeway to waive some documents required to apply for visas (Art. 14(6), visa code). Secondly, visa applicants from uncooperative third countries will pay higher visa fees (Art. 16(1) visa code). Thirdly, visa fees to diplomatic and service passports will not be waived (Art. 16(5)b visa code). Fourthly, time to take a decision on the visa application will be longer than 15 days (Art. 23(1) visa code). Fifthly, the issuance of multi-entry visas (MEVs) from 6 months to 5 years is suspended (Art. 24(2) visa code). In other words, these coercive measures are not aimed at suspending visas. They are designed to make the procedure for obtaining a visa more lengthy, more costly, and limited in terms of access to MEVs.

 

Moreover, it is important to stress that the revision of the Visa Code Regulation mentions that the Union will strike a balance between “migration and security concerns, economic considerations and general external relations”. Consequently, measures (be they restrictive or not) will result from an assessment that goes well beyond migration management issues. The assessment will not be based exclusively on the so-called “return rate” that has been presented as a compass used to reward or blame third countries’ cooperation on readmission. Other indicators or criteria, based on data provided by the Member States, will be equally examined by the Commission. These other indicators pertain to “the overall relations” between the Union and its Member States, on the one hand, and a given third country, on the other. This broad category is not defined in the 2019 revision of the Visa Code, nor do we know what it precisely refers to.

 

What do we know about this linkage? The idea of linking cooperation on readmission with visa policy is not new. It was first introduced at a bilateral level by some member states. For example, fifteen years ago, cooperation on redocumentation, including the swift delivery of laissez-passers by the consular authorities of countries of origin, was at the centre of bilateral talks between France and North African countries. In September 2005, the French Ministry of the Interior proposed to “sanction uncooperative countries [especially Morocco, Tunisia and Algeria] by limiting the number of short-term visas that France delivers to their nationals.” Sanctions turned out to be unsuccessful not only because of the diplomatic tensions they generated – they were met with strong criticisms and reaction on the part of North African countries – but also because the ratio between the number of laissez-passers requested by the French authorities and the number of laissez-passers delivered by North African countries’ authorities remained unchanged.  

 

At the EU level, the idea to link readmission with visa policy has been in the pipeline for many years. Let’s remember that, in October 2002, in its Community Return Policy, the European Commission reflected on the positive incentives that could be used in order to ensure third countries’ constant cooperation on readmission. The Commission observed in its communication that, actually, “there is little that can be offered in return. In particular visa concessions or the lifting of visa requirements can be a realistic option in exceptional cases only; in most cases it is not.” Therefore, the Commission set out to propose additional incentives (e.g. trade expansion, technical/financial assistance, additional development aid).

 

In a similar vein, in September 2015, after years of negotiations and failed attempt to cooperate on readmission with Southern countries, the Commission remarked that the possibility to use Visa Facilitation Agreements as an incentive to cooperate on readmission is limited in the South “as the EU is unlikely to offer visa facilitation to certain third countries which generate many irregular migrants and thus pose a migratory risk. And even when the EU does offer the parallel negotiation of a visa facilitation agreement, this may not be sufficient if the facilitations offered are not sufficiently attractive.”

 

More recently, in March 2018, in its Impact Assessment accompanying the proposal for an amendment of the Common Visa Code, the Commission itself recognised that “better cooperation on readmission with reluctant third countries cannot be obtained through visa policy measures alone.” It also added that “there is no hard evidence on how visa leverage can translate into better cooperation of third countries on readmission.”

 

Against this backdrop, why has so much emphasis been put on the link between cooperation on readmission and visa policy in the revised Visa Code Regulation and later in the New Pact? The Commission itself recognised that this conditionality might not constitute a sufficient incentive to ensure the cooperation on readmission.

 

To reply to this question, we need first to question the oft-cited reference to third countries’ “reluctance”[n1] to cooperate on readmission in order to understand that, cooperation on readmission is inextricably based on unbalanced reciprocities. Moreover, migration, be it regular or irregular, continues to be viewed as a safety valve to relieve pressure on unemployment and poverty in countries of origin. Readmission has asymmetric costs and benefits having economic social and political implications for countries of origin. Apart from being unpopular in Southern countries, readmission is humiliating, stigmatizing, violent and traumatic for migrants,[n2] making their process of reintegration extremely difficult, if not impossible, especially when countries of origin have often no interest in promoting reintegration programmes addressed to their nationals expelled from Europe. 

 

Importantly, the conclusion of a bilateral agreement does not automatically lead to its full implementation in the field of readmission, for the latter is contingent on an array of factors that codify the bilateral interactions between two contracting parties. Today, more than 320 bilateral agreements linked to readmission have been concluded between the 27 EU Member States and third countries at a global level. Using an oxymoron, it is possible to argue that, over the past decades, various EU member states have learned that, if bilateral cooperation on readmission constitutes a central priority in their external relations (this is the official rhetoric), readmission remains peripheral to other strategic issue-areas which are detailed below. Finally, unlike some third countries in the Balkans or Eastern Europe, Southern third countries have no prospect of acceding to the EU bloc, let alone having a visa-free regime, at least in the foreseeable future. This basic difference makes any attempt to compare the responsiveness of the Balkan countries to cooperation on readmission with Southern non-EU countries’ impossible, if not spurious.

 

Today, patterns of interdependence between the North and the South of the Mediterranean are very much consolidated. Over the last decades, Member States, especially Spain, France, Italy and Greece, have learned that bringing pressure to bear on uncooperative third countries needs to be evaluated cautiously lest other issues of high politics be jeopardized. Readmission cannot be isolated from a broader framework of interactions including other strategic, if not more crucial, issue-areas, such as police cooperation on the fight against international terrorism, border control, energy security and other diplomatic and geopolitical concerns. Nor can bilateral cooperation on readmission be viewed as an end in itself, for it has often been grafted onto a broader framework of interactions.

 

This point leads to a final remark regarding “return sponsorship” which is detailed in Art. 55 of the proposal for a regulation on asylum and migration management. In a nutshell, the idea of the European Commission consists in a commitment from a “sponsoring Member State” to assist another Member State (the benefitting Member State) in the readmission of a third-country national. This mechanism foresees that each Member State is expected to indicate the nationalities for which they are willing to provide support in the field of readmission. The sponsoring Member State offers an assistance by mobilizing its network of bilateral cooperation on readmission, or by opening a dialogue with the authorities of a given third country where the third-country national will be deported. If, after eight months, attempts are unsuccessful, the third-country national is transferred to the sponsoring Member State. Note that, in application of Council Directive 2001/40 on mutual recognition of expulsion decisions, the sponsoring Member State may or may not recognize the expulsion decision of the benefitting Member State, just because Member States continue to interpret the Geneva Convention in different ways and also because they have different grounds for subsidiary protection. 

 

Viewed from a non-EU perspective, namely from the point of view of third countries, this mechanism might raise some questions of competence and relevance. Which consular authorities will undertake the identification process of the third country national with a view to eventually delivering a travel document? Are we talking about the third country’s consular authorities located in the territory of the benefitting Member State or in the sponsoring Member State’s? In a similar vein, why would a bilateral agreement linked to readmission – concluded with a given ‘sponsoring’ Member State – be applicable to a ‘benefitting’ Member State (with which no bilateral agreement or arrangement has been signed)? Such territorially bounded contingencies will invariably be problematic, at a certain stage, from the viewpoint of third countries. Additionally, in acting as a sponsoring Member State, one is entitled to wonder why an EU Member State might decide to expose itself to increased tensions with a given third country while putting at risk a broader framework of interactions.

 

As the graph shows, not all the EU Member States are equally engaged in bilateral cooperation on readmission with third countries. Moreover, a geographical distribution of available data demonstrates that more than 70 per cent of the total number of bilateral agreements linked to readmission (be they formal or informal[n3]) concluded with African countries are covered by France, Italy and Spain. Over the last decades, these three Member States have developed their respective networks of cooperation on readmission with a number of countries in Africa and in the Middle East and North Africa (MENA) region.

 

 

Given the existence of these consolidated networks, the extent to which the “return sponsorship” proposed in the Pact will add value to their current undertakings is objectively questionable. Rather, if the “return sponsorship” mechanism is adopted, these three Member States might be deemed to act as sponsoring Member States when it comes to the expulsion of irregular migrants (located in other EU Member States) to Africa and the MENA region. More concretely, the propensity of, for example, Austria to sponsor Italy in expelling from Italy a foreign national coming from the MENA region or from Africa is predictably low. Austria’s current networks of cooperation on readmission with MENA and African countries would never add value to Italy’s consolidated networks of cooperation on readmission with these third countries. Moreover, it is unlikely that Italy will be proactively “sponsoring” other Member States’ expulsion decisions, without jeopardising its bilateral relations with other strategic third countries located in the MENA region or in Africa, to use the same example. These considerations concretely demonstrate that the European Commission’s call for “solidarity and fair sharing of responsibility”, on which its “return sponsorship” mechanism is premised, is contingent on the existence of a federative Union able to act as a unitary supranational body in domestic and foreign affairs. This federation does not exist in political terms.

 

Beyond these practical aspects, it is important to realise that the cobweb of bilateral agreements linked to readmission has expanded as a result of tremendously complex bilateral dynamics that go well beyond the mere management of international migration. These remarks are crucial to understanding that we need to reflect properly on the conditionality pattern that has driven the external action of the EU, especially in a regional context where patterns of interdependence among state actors have gained so much relevance over the last two decades. Moreover, given the clear consensus on the weak correlation between cooperation on readmission and visa policy (the European Commission being no exception to this consensus), linking the two might not be the adequate response to ensure third countries’ cooperation on readmission, especially when the latter are in position to capitalize on their strategic position with regard to some EU Member States.

 

 

Conclusions  

 

This brief reflection has highlighted a trend which is taking shape in the Pact and in some of the measures proposed by the Commission in its 2020 package of reforms. It has been shown that the proposals for a pre-entry screening and the 2020 amended proposal for enhanced border procedures are creating something we could label as a ‘lower density’ European Union territory, because the new procedures and arrangements have the purpose of restricting and limiting access to rights and to jurisdiction. This would happen on the territory of a Member State, but in a place at or close to the external borders, with a view to confining migration and third country nationals to an area where the territory of a state, and therefore, the European territory, is less … ‘territorial’ than it should be: legally speaking, it is a ‘lower density’ territory.  

 

The “seamless link between asylum and return” the Commission aims to create with the new border procedures can be described as sliding doors through which the third country national can enter or leave immediately, depending on how the established fast-track system qualifies her situation. 

 

However, the paradox highlighted with the “return sponsorship” mechanism shows that readmission agreements or arrangements are no panacea, for the vested interests of third countries must also be taken into consideration when it comes to cooperation on readmission. In this respect, it is telling that the Commission never consulted third states on the new return sponsorship mechanism, as if their territories were not concerned by this mechanism, which is far from being the case. For this reason, it is legitimate to imagine that the main rationale for the return sponsorship mechanism may be another one, and it may be merely domestic. In other words, the return sponsorship, which transforms itself into a form of relocation after eight months if the third country national is not expelled from the EU territory, subtly takes non-frontline European Union states out of their comfort-zone and engage them in cooperating on expulsions. If they fail to do so, namely if the third-country national is not expelled after eight months, non-frontline European Union states are as it were ‘forcibly’ engaged in a ‘solidarity practice’ that is conducive to relocation.

 

Given the disappointing past experience of the 2015 relocations, it is impossible to predict whether this mechanism will work or not. However, once one enters sliding doors, the danger is to remain stuck in uncertainty, in a European Union ‘no man’s land’ which is nothing but another by-product of the fortress Europe machinery. 

 

Barnard & Peers: chapter 26

JHA4: chapter I:3, I:5, I:4

Photo: asylum seekers arriving at Lesbos, by Ggia - Own work, via Wikicommons CC BY-SA 4.0

 

* College of Europe, Warsaw, Poland.

** European University Institute, San Domenico di Fiesole, Italy. Luisa Marin acknowledges funding from the European Union’s Horizon 2020 research and innovation programme, Marie Skłodowska-Curie grant agreement No 891762: “Controlling Escapes from Law. Re-designing accountability in the externalisation of migration control policies”.

 

While the introduction and the concluding remarks are common, sections a) and b) have been written by Luisa Marin, and section c) by Jean-Pierre Cassarino. Both Authors are affiliated to ADIM, Accademia ‘Diritto e Migrazioni’, of the University of Tuscia. The usual disclaimer applies.

 

 

[n1] For a critical approach to the use and abuse of the notion of “reluctance” in the West, see A. Acharya, “How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism”, International Organization, 2004, 58(2), pp. 239-275; J.-P. Cassarino, “Beyond the Criminalisation of Migration: A Non-Western Perspective”, International Journal of Migration and Border Studies, 2018 4(4), pp. 397–411; M. Cebeci, Deconstructing "Ideal Power Europe": The EU and the Arab Change, 2019, London: Lexington Books.

 

[n2] Among many others, see U. Von Lersner, Th. Elbert and F. Neuner, “Mental health of refugees following state-sponsored repatriation from Germany”, BMC Psychiatry 2008 8:88. L. Schuster and N. Majidi, “Deportation stigma and re-migration”, Journal of Ethnic and Migration Studies, 2015 41(4): 635–652. J. Alpes, Ch. Blondel, N. Preiss and M. Sayos Monras, “Post-deportation risks for failed asylum-seekers”, Forced Migration Review, 2017 54.

 

[n3] On the informalization of agreements linked to readmission at bilateral and supranational levels, see J.-P. Cassarino, “Informalising Readmission Agreements in the EU Neighbourhood”, The International Spectator, 2007, 42 (2): 179-196, J.-P. Cassarino, “Informalizing EU Readmission Policy” In A. Ripoll Servent and F. Trauner (eds.), The Routledge Handbook of Justice and Home Affairs Research. 2018, London: Routledge, pp. 83-98. On its implications for access to fundamental rights, see M. Giuffré, The Readmission of Asylum Seekers under International Law. 2020, Oxford: Hart, pp. 160-170. See also, S. Carrera, Implementation of EU Readmission Agreements: Identity Determination Dilemmas and the Blurring of Rights. 2016, Heidelberg: Springer International Publishing.