Re-decoration of existing practices? Proposed screening procedures at the EU external borders
The New Pact on Migration and Asylum announced by the European Commission on 23 of September 2020 contains a new piece of legislation: a Proposal for a Regulation introducing a screening of third country nationals at the external borders and amending some related regulations (hereafter Proposal for a Screening Regulation). From the first outlook it seems that a novelty – a pre-entry screening – procedure is introduced. A more thorough analysis raises several questions. Firstly, is this novelty really new, and if not, is it worthwhile investing almost 0.5 billion euros in re-decorating old practices that did not work? Second, will the measures proposed be adequate to address the challenges and meet the objectives indicated, or will they raise more legal and practical issues than the existing ones? Last, but not least, how realistically to implement are such provisions once adopted?
1. Novelties of the proposal or re-decoration of existing practices?
The objective of the Proposal for a Screening Regulation is two-fold: a) to identity the persons, establish health and security risks at soonest; and b) to direct the persons to relevant procedures, be it either asylum or return (Art. 1). If compared with the current obligations of EU Member States at the borders, it is evident that identity, registration and security checks, as well as preliminary vulnerability assessments are happening anyway on the basis of Schengen Borders Code and the national legislation. While the Schengen Borders Code does not provide for any specific obligations concerning medical check of third country nationals apprehended during border surveillance, health checks have been recently introduced by the Member States in response to the COVID-19 pandemic. Thus it is no longer new.
What might be new indeed is the projected outcome of such screening procedure and its implications for the entire asylum and return process, and the individuals concerned. The proposal envisages that the outcome of the screening will be direction of the persons to appropriate procedures – either asylum procedures or returns and also it will impact on whether to channel asylum seekers to border or regular asylum procedures. It will be discussed below to what extent this is a novelty and whether it raises legal questions.
Pre-screening procedures are not new as such. They are employed, for instance, in Australia (so-called ‘enhanced screening process’, which ‘screens in’ to the refugee status determination and complementary protection system), although they have been criticized as risking excluding those with legitimate claims for protection due to too short interviews, absence of legal advise, lack of written record of the proceedings and other setbacks (Australian Human Rights Commission). Similar swift identification, registration and fingerprinting experiences were in the hotspots in Greece and Italy established in the aftermath of the 2015-2016 migration ‘crisis’ in Europe, which have failed to produce any tangible results according to Maiani. Will the pre-entry screening in the EU result in a different outcome?
2. Asylum seekers no longer a privileged group of migrants in Europe?
The Proposal for a Screening Regulation would apply to three groups of persons: migrants who have entered in unauthorised manner, asylum seekers who entered without authorisation and persons disembarked after a search and rescue operation (Art. 3 and 5). During the screening process these persons would not be considered as being authorised entry into the Member State territory (Art. 4(1)). What is particularly striking in the proposal is the elimination of a fine line that exists in international and EU law between persons seeking international protection and other migrants. This differentiation follows a legal rationale, as persons who seek protection are subject to special treatment with regard to entry and stay in the host country as confirmed by the existence of a special international instrument – the 1951 UN Convention Relating to the Status of Refugees and recognition of asylum seekers in the ECtHR jurisprudence as particularly vulnerable category of migrants in need of special protection (M.S.S. v Belgium and Greece; Tarakhel v Switzerland [GC]; A.S. v Switzerland ).
In contrast to that legal distinction, the proposal 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, as confirmed by Art. 6(5)(c) of the Schengen Borders Code, non-application of responsibility to illegal entry as per Art. 31 of the 1951 Geneva Convention and ample jurisprudence of the European courts. Other migrants under international and EU law do not have the same rights of entry or special treatment as protection seekers even though they are protected under general human rights instruments. The proposal blurs up this distinction by placing both groups of persons under the same legal regime instead of clearly differentiating them, as their chances to stay in the EU are very different. This approach does not in itself violate the mentioned obligations, as long as persons are directed to asylum procedure. But it could overall promote stereotypes that asylum seekers and irregular migrants are the same and could lead to wrong practices whereby protection seekers are treated by the border guard authorities in the same way as other migrants who arrive in unauthorised way disregarding their protection needs.
This is reinforced by retaining a certain level of ambiguity in the proposal as to the relationship of the screening procedure with derogation from entry requirements for asylum seekers under Art. 6(5)(c) of the Schengen Borders Code (reference to international obligations). The proposal mentions exclusion from screening of persons authorised entry under this derogation by an individual decision (Recital 14), but then includes them into screening under Art. 3(2). This relationship would be more clear if the proposal would specifically exclude from screening those persons who are manifestly in need of international protection as per international obligations of the Member States (e.g. nationalities of 50% or so for recognition for international protection), while conducting screening for all others where such needs are not so clear.
3. Evaluating the proposed measures in terms of legal problems
Further we will explore whether the measures proposed are adequate to address the challenges and meet the objectives indicated, or will it raise more legal and practical issues than the existing ones?
Mere information gathering that substantially affects the status and rights of the person?
The Proposal for a Screening Regulation envisages that the screening ends with a de-briefing form completed by the authorities responsible for screening, to be transmitted to asylum or return authorities respectively (Art. 14(1)). In this form they should indicate any elements that might be relevant for determining the submission of persons to border or accelerated examination procedures (Art. 14(2)). There is a possibility also that the person is not referred to any procedures, but is refused entry (Art. 14(1)). The amended proposal for Asylum Procedures Regulation 2020 confirms these three outcomes of the screening (recital 40): a) channelling of applicant to the appropriate asylum or b) return procedure; c) refusal of entry.
Although it is claimed that screening as such is a mere information gathering, which does not entail any decision affecting the rights of the person concerned (Explanatory Memorandum), the text of the Proposal speaks to the contrary. The screening authorities will thus ‘decide’ to which authorities to refer the applicant and point to the elements of the border or accelerated examination procedure (Art. 14(2)). At the same time the European Commission is proposing an amendment of the Proposal for Asylum Procedures Regulation 2016 for a more flexible use of the border procedures. It would in essence channel to the border procedure the asylum claims that are clearly abusive (misleading authorities, withholding information), constitute a security or public order threat, or concern nationalities with a low recognition rate for international protection (below 20%) (Recital 40b of the Amended Proposal for Asylum Procedures Regulation 2020). Would the asylum authorities need another information to channel applicants to border procedures, or could decide automatically on the basis of the screening information? Considering that border procedure could be initiated based on nationality or security information only, such screening referral could amount to automatic exclusion of low merit cases or lead to border procedures, thus would substantively affect the rights of the person. On the other hand, if the Proposal for a Screening Regulation genuinely aims to speed up the asylum procedures, then it should also either exclude from screening or prioritise referral to regular asylum procedures applicants with nationalities of high recognition rate for international protection (e.g. over 50% or so). This is regretfully overlooked by the Proposal despite some practices of the Member States and UNHCR proposals on manifestly well-founded cases. For instance, since the end of 2015, Germany operates a cluster procedure in “arrival centres”, where procedures are conducted rapidly in different clusters, including for countries of origin with a high protection rate from 50% upwards.
Furthermore, screening should be seen as contributing to the entire asylum process and cannot be assessed separately from the amended proposal for the Asylum Procedures Regulation 2020, as its objective is to ensure a seamless link between border control, asylum process and return procedures. Given that decisions will be taken on the basis of screening as demonstrated above, it could be seen as promoting fast-track border procedures focusing on low recognition rate countries (easy-to-use criteria in the words of the Commission), which have been widely criticized by the international organizations and the courts. Such procedures are viewed as placing the applicant at serious procedural disadvantage as lawyers, NGOs and courts do not have same access to the borders as in regular procedures and might result in the underestimation of the procedural guarantees provided by the international, European and national legal frameworks. The short time limits of such fast-track procedures might undoubtedly affect the procedural guarantees available to migrants and asylum seekers at the borders. For instance, the High Court judge in the 2015 judgment in the UK called fast track rules as incorporating structural unfairness. In February 2019, the Fundamental Rights Agency underlined that such fast-track procedures substantially undermine the fundamental rights of migrants. The EASO report on border procedures confirms the trend that under current legislative framework, which envisages the use of border procedures in cases that appear to have less merit, the cases channelled into the border procedure demonstrate lower recognition rates compared to regular procedures (p. 20). The legal problems hence may result from screening as the applicants on the basis of minimal information would be channelled to the border procedures that are based on the premise that asylum application is unfounded and where the defence possibilities for the applicant are more limited due to absence or lack of lawyers and NGOs at the borders. The Australian experiences with screening procedures and Greece practices in the hotspots demonstrate that.
In addition, as the screening may end with overall refusal of entry under Art. 14 of the Schengen Borders Code, screening would indeed result in affecting the rights of the person substantially. The Proposal for a Screening Regulation retains some degree of silence on the link to ensuring the requirements of Art. 14(2), (3) of the Schengen Borders Code, including a substantive decision by competent authorities and the right to a legal remedy. It is silent, in particular, whether that decision is to be taken in the context of the very short screening procedure or thereafter. If both were integrated, the adoption of the refusal of entry in such a short time limit without legal support to the person could lead to a risk that non-entry decisions might result in refoulement of some third country nationals. While the Proposal refers to such individuals subject to non-entry decision who did not apply for international protection, guarantees for submitting application at the border following unauthorised entry may not always be present as could be seen from some Member States’ common practice that has been recently condemned by the ECtHR (M.K. and Others v. Poland; M.A. and Others v. Lithuania). Also, the Proposal overly relies on the legal fiction of persons being actually in the territory albeit not authorised entry during the screening process (Art. 4(1)), but it has to be made clear that this fiction would not effectively relieve Member States from their obligations under the human rights instruments or the EU Charter of Fundamental Rights as concerns the treatment of third country nationals within their jurisdiction.
Thus even if the outcome of the screening procedure will not result in a formal decision, but only in a debriefing form on the information collected, such information will be essential for the further examination of the asylum applications under the proposed Asylum Procedures Regulation or even result in a non-entry decision. Considering that the outcome of screening substantively affects the rights of the person, it may create legal problems due to its abrupt nature, lack of formal decisions and thus procedural guarantees, and leave some persons without access to protection. In this context, either such ‘referral’ should be formalised and subject to legal remedies, or referrals should be done immediately without screening on the basis of submission of asylum application (at least for manifestly well-founded cases). If screening is absorbed by the asylum procedure for asylum applicants, the competent authorities would then compile the information that is necessary to objectively decide on the type of the procedures and all procedural safeguards would fully be applied. Particularly, if we consider that e.g. verification or establishment of identity or security risk during screening would be done by checking national and European databases only (Art. 10) and not employing anything new. If such option would be seen as not sufficiently addressing abuses of the procedure then we should not pretend that the screening is a pure collection of information and not a decision-making tool.
Exploitation of security information needs to comply with ECtHR approach
Secondly, among the screening elements verification of risk to security is envisaged (Art. 11). However, the proposal is not very clear as to the consequences of establishing such risk. Two possible outcomes could be envisaged. One possible outcome may be that domestic authorities are asked to adopt the decision on refusal of entry under the Schengen Borders Code if no asylum application is made (Art. 6(1)(e)). The second possible outcome is based on the Amended Proposal for Asylum Procedures Regulation 2020: the establishment of security or public order risk could serve as a basis to channel the application to the border procedures. In this respect the Member States’ practice of using this information for the purpose of faster rejecting asylum applications on security grounds may be problematic with regard to Art. 19 of the EU Charter on Fundamental Rights and Art. 3 of the ECHR, as security risks cannot outweigh the protection needs according to the ECtHR when it comes to deportation (Chahal v. the United Kingdom, Saadi v. Italy, X v. Sweden, M.K. and Others v. Poland), thus security risk information could only be used to specially deal with a person but not for the merits of the claim.
Prevention of absconding without detention? Mission (im)possible?
Thirdly, the proposal refers to the need to prevent absconding. The applicants will be expected to stay at the borders as they would not be considered having been authorized to enter, and will have the obligation to remain in the designated facilities during the screening (Art. 4 and 8(1)(b) of the proposal, Article 41(6) of the Amended Proposal for the Asylum Procedures Regulation 2020). Though Thym indicates that the Commission opted against generalised detention and without it being automatic, the proposal leaves detention to the national authorities, which may spark extensive detention of most of the applicants preventing their onwards movements into territory. The measures envisaged do not shed a light as to how they could prevent absconding without extensive resort to detention. Besides that, a question remains if the obligation to remain in facilities would amount to detention or not. This might raise some legal issues as concerns the exceptional nature of detention and individual approach to it in international and the EU law, as further explored in the forthcoming blogpost on detention by Galina Cornelisse.
4. Implementation practicalities of proposed measures
According to the Proposal for a Screening Regulation the collection of the data is supposed to speed up the asylum procedure, but it is not clear how it will, as information collected in the screening would be minimal (unless this will be sufficient to abruptly reject applications in the border procedure). Although the screening procedure is supposed to last for up to 5 days at external borders (in exceptional situations to be extended to 10 days) and up to 3 days within the territory, the experience in Greece has shown that it is not realistic to meet such short deadlines. Processing of cases of third country nationals at the borders also depends on many additional factors that might delay the processes (capacities and competencies of the authorities, availability of additional medical, legal, interpretation and other staff, numbers of arriving persons at the borders, etc.). For instance, recent Greek experience has demonstrated that border procedures raised administrative burdens for the authorities and significantly prolonged the procedures for the applicants for asylum. Even the presence of EASO caseworkers in the fast-track border procedures in Greece has not prevented an average seven-month duration of the procedure between full registration and the issuance of a first instance decision, which was far beyond the two weeks envisaged by the law (p. 4). Another learning from Greece was that most of the applicants were recognised as vulnerable and hence channelled to the regular asylum procedures (out of 39,505 decisions taken in 2017-2019, 25,967 persons were admitted as vulnerable), thus pre-screening in the border procedure did not play much of the sense for making procedures faster for vulnerable individuals.
Secondly, the Proposal for a Screening Regulation envisages the location of the screening at or in proximity to the external borders (Art. 6), which will require adjustment of the infrastructure at the border in a short term and establishment of processing centres along the borders in the long run, including the possibility of using hotspot areas. The experience in Greece has shown that despite the good intentions to process the cases in an efficient manner, there is a high risk that the persons will likely accumulate at the borders, including also those who are referred to asylum procedures and likely not to be moved inside the territory (as concerns border and accelerated asylum procedures). While this could be practicable for Member States to concentrate third country nationals in one place for the purpose of return, it is questionable how these persons will be contained there likely against their will and in what conditions. The worst outcome of this regulation that everybody would all like to avoid would be creating more Moria camps with complex new problems at European borders. The proposal has ample potential for that.
Thirdly, the operation of the screening process at the border would require boosting accommodation conditions and the presence of staff, including of medical, legal, trained and qualified staff to deal with minors. The availability of doctors at the border areas has proved to be problematic in case of Greek hotspots where the authorities had to rely instead on military ones (FRA, 2019). In times of the pandemic, the lack of doctors is very evident particularly in some countries and the feasibility to attract them to the borders might raise practical difficulties and thus delays.
One new element for such border procedures is the requirement of an independent monitoring mechanism for fundamental rights in relation to the screening that the Member States are required to establish as per Proposal for a Screening Regulation (Art. 7). While this is a positive addition to the border procedures, generally criticized for failing to meet procedural requirements, it also poses questions as to its practicability. Such mechanism would require access to independent institutions, regular monitoring of the procedures, thus presence of lawyers, NGOs or other monitors at the borders. Such border monitoring initiatives operate in a few Member States, but they cover only a small percentage of persons at the border.
5. Greater role for the EU agencies not developed?
Finally, the Proposal for a Screening Regulation envisages cooperation among all relevant authorities with the support from EU agencies (Art. 6(7)), this part is new – except for the already tested experience with EASO involvement in asylum procedures in Greece, Italy, Cyprus and Malta – but remains largely unexplored as to its functionality in the Proposal. Indeed, if developed, it could serve as a sort of European task force on asylum and return and support the authorities in ensuring swift processing and guaranteeing fundamental rights of persons at the borders. This could be particularly relevant in case of persons disembarked after search and rescue operations. Regretfully, the Commission did not pick up on the idea of the incoming German Presidency that the future Asylum Agency and Frontex could possibly have a mandate to conduct the pre-screening independently or in support to the ‘frontline’ Member States. On the other hand, some international organisations observe that past experience of EU agencies’ presence in rolling out national border procedures did not guarantee fairness and effectiveness (However, these experiences and learnings could contribute to setting up a more effective European support mechanism at the borders.
In responding whether such a proposal if adopted and when implemented would reduce the numbers of migrants entering the EU, or make return procedures more effective or asylum procedures faster, the answer does not look very promising due to legal uncertainties as concerns the outcomes that could undermine the rights of migrants and protection seekers. The Proposal is evidently setting up some theoretical concepts and wishes, but its practical implementation remains in doubt. Moreover, the hotspots experience is likely not to be sufficiently taken into account in designing the screening procedure, because a number of rules remind of the old practices exercised in a doubtfully successful way. At the same time the proposal has a clear potential for risks of overcrowding at the borders; limited appropriate living conditions and too abrupt decisions on entry to materialise. While these issues might create more legal concerns than benefits for the entire system, the Proposal for a Screening Regulation needs to be seen in a broader context of promoting border and accelerated procedures in the Commission’s asylum and migration package. The pre-entry screening seems to set the basis for operation of these procedures by re-decorating some existing practices, but without addressing the core issues at stake. If we really want to diversify the flows at the border and optimise the process then, as a minimum, screening of manifestly-founded cases into asylum procedures immediately would be one of the solutions that could be practically realised, as well as more active engagement of the EU agencies in procedures at European borders.
Even if nothing is wrong in collecting the information as early as possible on third country nationals entering the EU, the question remains if a separate instrument is needed for that. Such information gathering is happening already now and provisions on improving it could be incorporated in both asylum and return procedures by amending the Schengen Borders Code, the proposal for Asylum Procedures Regulation 2016, the proposal for recast Return Directive and other relevant instruments.
- Daniel Thym, European Realpolitik: Legislative Uncertainties and Operational Pitfalls of the ‘New’ Pact on Migration and Asylum, September 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.
- Francesco Maiani, Hotspots and Relocation Schemes: the right therapy for the Common European Asylum System? , February 2016.
- Commission Communication on a New Pact on Migration and Asylum, COM(2020) 609 of 23 September 2020.
- Commission Proposal for a Regulation introducing a screening of third country nationals at the external borders, COM(2020) 612 of 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) 611 of 23 September 2020.
- M.K. and Others v. Poland, Application Nos. 40503/17, 42902/17 and 43643/17, 23 July 2020.
- M.A. and Others v. Lithuania, Application No. 59793/17, 11 December 2018.