Border Procedure: Efficient Examination or Restricted Access to Protection?
By Jens Vedsted-Hansen, Professor, Aarhus University
As one of the novelties in the New Pact on Migration and Asylum and its accompanying legislative package, the European Commission has proposed to establish a ‘seamless procedure’ at external borders that will be applicable to all non-EU citizens crossing the borders without authorisation. In its entirety, the border procedure will comprise three elements: pre-entry screening, an asylum procedure and a ‘swift return procedure’ where applicable. The overall aim is explained as being to ‘close the gaps between external border controls and asylum and return procedures’ (p. 4, section 2.1).
The pre-entry screening will be established under a separate Proposal for a Screening Regulation that was presented by the Commission on 23 September 2020 as part of the legislative package linked to the EU Pact. In addition, the asylum border procedure aimed at examining asylum applications and the return border procedure for carrying out return of asylum seekers whose application has been rejected in the asylum border procedure are dealt with in the Amended Proposal for an Asylum Procedure Regulation, simultaneously launched in order to change the 2016 Proposal for an Asylum Procedure Regulation.
While this blogpost shall focus on the latter two proposals that must be seen in conjunction, these procedural devices should be considered in the light of the proposed pre-entry screening. This screening will necessarily interact with the asylum and return procedures at external borders, as described by Lyra Jakuleviciene in her contribution to the series. It should be stressed from the outset that ‘closing the gap’ by way of clarifying the need to issue a return decision immediately after a decision rejecting an application for asylum, or even in the same decision, in order to secure quick return of asylum seekers upon rejection, is in and of itself clearly a useful step, as already proposed by the Commission in the 2018 Proposal for a Recast Return Directive.
1. Closing the gap: management of mixed migration flows
One of the overriding objectives of the EU Pact is to create operational instruments for tackling the migration challenges that result from the tendency towards mixed migration flows. Thus, the Commission argues that the challenges have changed since the ‘refugee crisis’ of 2015-16 and that mixed flows of refugees and migrants have meant ‘increased complexity and an intensified need for coordination and solidarity mechanisms’ (here, p. 3, section 2). This has been elaborated on in the Explanatory Memorandum of the Proposal for a Screening Regulation where it is stated that the arrival of third-country nationals with clear international protection needs as observed in 2015-16 has been ‘partly replaced by mixed arrivals of persons’. According to the Commission, it is now important to develop an effective process allowing for better management of mixed migration flow sand, in particular, to create a tool allowing for the identification as early as possible of persons who are unlikely to receive protection in the EU. Such a tool is to be built into the process of controls at external borders with a ‘swift outcome as well as clear and fair rules’. The result should be that third-country nationals access the appropriate procedure on either asylum or return, arguably ‘enhancing the synergies between external border controls, asylum and return procedures’ (p. 1).
The underlying assumption seems to be that the protection needs of third-country nationals can be identified already upon their arrival at the EU external border so that asylum seekers can be ‘swiftly’ allocated to the relevant procedure in order to have their protection needs examined unless they are allocated to the procedure for ‘effective returns’ because they are not in need of protection. Indeed, the representation in the EU Pact of the screening and examination exercise may appear somewhat circular and perhaps even distant from the realities of examining applications for international protection. In order to decipher the apparent circularity, we shall focus on the role and intended functions of the asylum border procedure which is likely to become a kind of intermediary between pre-entry screening and the return procedure. As argued elsewhere, the border procedure(s) might even end up de facto gradually merging with the pre-entry screening procedure. This expectation seems to be supported by parts of the reasoning behind the proposed border procedure, as shall be illustrated in the following.
2. The amended proposal for an Asylum Procedure Regulation
The asylum border procedure under Article 41 of the Amended Proposal for an Asylum Procedure Regulation shall follow the pre-entry screening procedure provided that the asylum seeker has not yet been authorised to enter the Member States’ territory and does not fulfil the entry conditions of the Schengen Borders Code. According to Article 41(2), the proposed border procedure may be applied when taking decisions on (a) the admissibility of an application for international protection and (b) the merits of an application that is being examined in an accelerated procedure in the cases listed in Article 40(1).
According to Article 40 of the 2016 Proposal for an Asylum Procedure Regulation, the accelerated examination procedure will be mandatory. By contrast, allocation to the border procedure of such accelerated examinations is supposed to be optional as the main rule under Article 41(2) of the amended proposal. Importantly, however, Article 41(3), taken together with Article 40(1), stipulates that the border procedure will be mandatory for the accelerated examination of three types of cases:
- Where the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to identity or nationality,
- Where the applicant may, for serious reasons, be considered a danger to the national security or public order of the Member States, and
- Where the applicant holds a nationality or has a country of former habitual residence for which the proportion of decisions granting international protection is 20% or lower.
The latter provision refers to Article 40(1)(i) of the amended proposal which lays down a new acceleration ground in addition to those included in the 2016 Proposal for an Asylum Procedure Regulation. Notably, this additional acceleration ground is subject to significant amplification in the new Proposal for a Crisis Regulation according to which Member States will have the option to apply the crisis border procedure to persons coming from third countries for which the EU-wide average recognition rate is above 20%, but lower than 75% (recital 14 and Article 4 on the asylum crisis management procedure). While the special crisis management proposal shall not be examined here, the new ground for acceleration in the Amended Proposal for an Asylum Procedure Regulation, as well as the provision concerning an EU common list of ‘safe countries of origin’ included in the 2016 proposal as an acceleration ground, shall be further discussed below in section 3.
As another novelty in the amended proposal, the obligation to examine these three types of cases in a border procedure may be dispensed with for nationals or stateless persons habitually resident in third countries for which a Member State has submitted a notification to the Commission that it is confronted with substantial and persisting practical problems in the cooperation on the readmission of irregular migrants, in accordance with Article 25a(3) of the Visa Code. Where the Commission upon examination considers that the third country is cooperating sufficiently, the Member State shall again apply the border procedure under the mandatory rule (Article 41(4) of the amended proposal). This clearly reflects the interlinkage between the asylum border procedure and the management of the EU’s external borders.
3. Accelerated examination of asylum applications
The 2016 Proposal for an Asylum Procedure Regulation implied the introduction of accelerated examination on the basis of the designation of ‘safe countries of origin’ at EU level, as initially proposed by the Commission in a separate legislative initiative during the peak of the asylum crisis in 2015. The proposed EU common list of such countries includes Albania, Bosnia and Herzegovina, Northern Macedonia, Kosovo, Montenegro, Serbia and Turkey (Article 48 and Annex 1) among which countries some may seem rather uncontroversial in terms of the general situation relating to human rights and the rule of law. On the other hand, considering Turkey as a safe country of origin seems highly disputable given the Turkish government’s reactions to the attempted military coup d’état two days after the proposal had been presented in July 2016.
Against this background it is somewhat surprising that the Commission has not updated or qualified the reasoning of the 2016 proposal (recital 62) which even offered a more positive description of the human rights conditions in Turkey than the 2015 proposal (Explanatory Memorandum p. 5). The Amended Proposal for an Asylum Procedure Regulation neither modifies the provision on designation of safe countries of origin at EU level nor explicitly addresses whether and how the unmodified EU common list can be considered compatible with fundamental rights. The very notion of a common list of ‘safe countries of origin’ may therefore be expected to become subject to debate in connection with the negotiations of the legislative package accompanying the EU Pact.
Importantly, the Amended Proposal for an Asylum Procedure Regulation introduces an additional ground for accelerating the examination procedure: the applicant’s nationality or, in the case of stateless persons, former habitual residence in a third country for which the proportion of decisions granting international protection is 20% or lower, according to the latest available yearly average Eurostat data. It is stipulated that exceptions are to be made (1) in situations where a ‘significant change’ has occurred in the third country concerned since the publication of the relevant data and (2) where the applicant belongs to a category of persons for whom the proportion of 20% or lower ‘cannot be considered as representative for their protection needs’ (Article 40(1)(i)).
For one thing, the second exception may seem to constitute a contradiction insofar as it is difficult to reconcile with the rationale of accelerated procedures. The proposed exceptions further call into question the very idea of the new acceleration ground, the need for which does not appear evident in the light of the already existing and proposed grounds for accelerated examination that are based on essentially similar considerations (Article 31(8)(a)-(j) of the 2013 Recast Asylum Procedures Directive and Article 40(1)(a)-(h) of the 2016 Proposal for an Asylum Procedure Regulation).
The Explanatory Memorandum of the Amended Proposal for an Asylum Procedure Regulation presents the proposed new acceleration ground as being based on ‘more objective and easy-to-use criteria’ and suggests that the percentage is justified by the ‘significant increase in the number of applications made by applicants coming from countries with a low recognition rate, lower than 20%’ and ‘hence the need to put in place efficient procedures to deal with those applications, which are likely to be unfounded’ (pp. 13-14). This may have to be seen in the light of the view that the border procedure is important as a migration management tool, held by Member States in favour of stipulating the mandatory application of the border procedure. In the view of those Member States, this procedure is particularly useful where a large share of the asylum seekers are coming from countries with a low recognition rate because the border procedure can increase the chances of successful returns directly from the external border within a short period of time after their arrival due to the stronger links between asylum and return (p. 9).
Accordingly, the purpose of the joint asylum and return border procedure is to quickly assess ‘abusive asylum requests or asylum requests made at the external border by applicants coming from third countries with a low recognition rate’ in order to swiftly return those without a right to stay in the EU (Explanatory Memorandum p. 4). While this objective of lawmaking is understandable as such, the question remains whether it really necessitates the insertion of the new ground for acceleration of the examination procedure. Basing this on the recognition rate as proposed may well rather decelerate the examination of asylum cases if it should be compatible with the effective application of the rules defining third-country nationals in need of protection. The risk of damage to these substantive rules due to the quality of decisions is not likely to be minimised if accelerated examination must take place as a mandatory part of the asylum border procedure.
4. Inadmissibility decisions in the border procedure
As mentioned above, Article 41(2) of the Amended Proposal for an Asylum Procedure Regulation stipulates that the border procedure may be applied when taking decisions on the admissibility of applications for international protection, notably termed ‘inadmissibility’ in contrast to the more neutral heading of Article 36 of the 2016 Proposal for an Asylum Procedure Regulation which lays down the criteria for decisions on admissibility. According to this provision, an asylum application shall be rejected as inadmissible on the following grounds:
- A non-Member State is considered to be a first country of asylum for the applicant
- A non-Member State is considered to be a safe third country for the applicant
- The application is a subsequent application where no new elements or findings relating to the examination have arisen or have been presented by the applicant
- A spouse or partner or accompanied minor lodges an application after he or she had consented to having an application lodged on his or her behalf and no facts justify a separate application.
If an application is rejected as inadmissible in accordance with these criteria, it shall not be examined on its merits, according to Article 36(2). The same applies in cases that are dealt with under the Dublin Regulation (or its successor instrument) and when another Member State has granted international protection to the applicant.
Among these inadmissibility grounds we shall focus on the ‘safe third country’ rule proposed in Article 36(1)(b) since this is often considered the most problematic inadmissibility ground, and possibly the most relevant in practice. This is so partly due to its vague definition, partly because of the serious consequences it is apt to have for the access to protection of those asylum seekers whose application will be rejected as inadmissible, and hence without examination in substance of their protection needs. According to Article 36, such rejection will be mandatory, and decisions to that effect may be taken in the border procedure under Article 41 of the Amended Proposal for an Asylum Procedure Regulation.
The requirements for declaring an application inadmissible without any examination in substance are based on the presumption that the third country in question is generally ‘safe’ for asylum seekers and refugees. The existing admissibility rule in Article 38 of the 2013 Recast Asylum Procedures Directive contains fairly modest criteria for applying the ‘safe third country’ notion, requiring that there is no risk of persecution or serious harm in the country, no risk of indirect refoulement from the country, and that the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention. The inadmissibility criteria in the 2016 Proposal for an Asylum Procedure Regulation are even more vague as the latter requirement will be modified to the effect that the possibility must exist to receive protection in accordance with the ‘substantive standards’ of the Refugee Convention or ‘sufficient protection’ (Article 45(1)).
The proposed modification of the criteria seems likely to expand the scope for defining third countries as ‘safe’ and thus rejecting applications as inadmissible and returning asylum seekers to such countries in order to request protection there. The amended reference to the Refugee Convention may seem to abolish the existing requirement that the third country provides protection in full accordance with the Convention, even if not formally bound by the Convention under international law, insofar as the reference to ‘substantive standards’ may be supposed to have potential legal bearing in terms of softening the link to certain standards of protection under the Convention. Thus, in the light of recent experience it would not be surprising to see returns to ‘safe third countries’ where the legal or factual basis for assuming effective protection would seem questionable. One could imagine future scenarios in which a flexible standard for assessing the ‘sufficiency’ of protection in a third country could be helpful for the purpose of rejecting applications as inadmissible and returning asylum seekers to that country without examining their cases on the rather abstract presumption that they can receive protection there. The proposed rules on designation of safe third countries at EU level, in addition to the designation at national level for a transitional period of five years (Articles 46 and 50), do not seem to mitigate that concern.
The effects of the amended inadmissibility criteria will depend entirely on the possibility to rebut the presumption of safety and the assumed individual connection to the ‘safe third country’ in question. To the extent that admissibility decisions will be made in a border procedure that is closely connected to, if not de facto merging with, the pre-entry screening as discussed above, this may become rather difficult in practice.
5. Appeal and suspensive effect
An important procedural safeguard in order to enable applicants to effectively rebut the presumption of safety in a third country – whether it is considered a ‘safe third country’ or a ‘safe country of origin’ – is the right to appeal and in particular the right to suspensive effect of such appeal. Although the details of the proposed rules on the right to an effective remedy and to suspensive effect fall beyond the scope of this blogpost, it should be highlighted that they may raise concern as regards certain cases that will be decided in the border procedure.
According to Article 54 of the Amended Proposal for an Asylum Procedure Regulation the applicant shall not have the right to remain, as will be the main rule for appellants, where the competent authority has rejected an application as unfounded or manifestly unfounded if any of the circumstances justifying the accelerated examination of the application apply, or in the cases subject to the border procedure (Article 54(3)(a), cf. Articles 40(1) and 41). There will indeed be the possibility for appellants to request the court or tribunal seized to issue a decision on interim measures, allowing for the right to remain pending the outcome of the appeal. Nonetheless, due to the strict time limits and the totality of the circumstances and logistic contraints likely to prevail in the context of the border procedure, the possility of obtaining suspensive effect under these rules may become rather illusory.
6. Border procedures: fictions and realities
As pointed out by Lyra Jakuleviciene in her post, it is particularly striking that the Proposal for a Screening Regulation will eliminate the fine line that exists in international and EU law between persons seeking international protection and other migrants, following the legal rationale that persons seeking protection are subject to special treatment with regard to entry and stay in the host country during the examination of their application. In contrast to that legal distinction, she argues that the proposed pre-entry screening builds on the premise that asylum seekers and migrants are the same category of unauthorised entrants and disregards the fact that asylum seekers’ need for protection overrides the entry requirements.
Indeed, both the 2013 Recast Asylum Procedures Directive (recitals 25, 26, 28, 29 and Articles 6 and 9) and the 2016 Proposal for an Asylum Procedure Regulation (recitals 12, 17, 22, 27 and Article 9) stipulate that asylum seekers shall have access to the examination procedure as well as the right to remain in the territory for the sole purpose of the procedure, regardless of compliance with the ordinary entry requirements under the Schengen Borders Code. While this right will in principle remain under the Amended Proposal for an Asylum Procedure Regulation, some of the procedural devices introduced by this proposal may jeopardise the effective exercise of the right of access and the right to remain during the examination of the request for protection.
This risk might seem particularly real to the extent that the asylum border procedure will in practice merge or overlap with, or have blurred boundaries toward, the pre-entry screening procedure and the return border procedure. If this happens, there may be a serious risk of deviating from crucial procedural safeguards for asylum seekers and further undermining the effectiveness of the substantive EU rules on qualification of refugees and other third-country nationals in need of protection. As experienced at the borders of certain Member States, and illustrated by a recent study published by the European Parliament, the conduct of asylum procedures in the border context, including in transit zones, entails significant risks of subverting the EU asylum acquis. A further consequence has been described as the multiplication of ‘anomalous zones’ for migration management (Giuseppe Campesi) that may ultimately become closed centres or ‘border camps’ amounting at least to de facto detention. It is therefore to be hoped that the revision of the EU rules on asylum procedures will take proper account of existing evidence on the realities of the border procedure.
References and further reading
EU Pact documents
Commission Communication on a New Pact on Migration and Asylum, COM(2020) 609of 23 September 2020.
Commission Proposal for a Regulation introducing a screening of third country nationals at the external borders, COM(2020) 612of 23 September 2020.
Amended Proposal for a Regulation establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2020) 611of 23 September 2020.
Proposal for a Regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum, COM(2020) 613of 23 September 2020.
Lyra Jakulevičienė, Re-decoration of existing practices? Proposed screening procedures at the EU external borders, October 2020.
Ulrike Brandl and Philip Czech, A human right to seek refuge at Europe’s external borders: The ECtHR adjusts its case law in M.K. vs Poland, September 2020.
Daniel Thym, European Realpolitik: Legislative Uncertainties and Operational Pitfalls of the ‘New’ Pact on Migration and Asylum, September 2020.
Francesco Maiani, Hotspots and Relocation Schemes: the right therapy for the Common European Asylum System? , February 2016.
From Tampere 20 to Tampere 2.0
Lyra Jakulevičienė, ‘The Common European Asylum System’, in: Philippe De Bruycker, Marie De Somer and Jean-Louis De Brouwer (eds), From Tampere 20 to Tampere 2.0. Towards a new European consensus on migration (EPC, 2019), p. 87-102.
ASILE Forum on the new EU Pact on Migration and Asylum in light of the UN GCR:
Jens Vedsted-Hansen, Admissibility, border procedures and safe country notions, November 2020.
Giuseppe Campesi, The EU Pact on Migration and Asylum and the dangerous multiplication of ‘anomalous zones’ for migration management, November 2020.
European Parliament Research Service:
European Parliamentary Research Service, Asylum procedures at the border. European Implementation Assessment, November 2020.