Explanatory Memorandum to COM(2020)612 - Screening of third country nationals at the external borders - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)612 - Screening of third country nationals at the external borders. |
|---|---|
| source | COM(2020)612  |
| date | 23-09-2020 |
1. CONTEXTOFTHEPROPOSAL
• Reasons for and objectives of the proposal
Reasons
In September 2019, the European Commission’s President Ursula von der Leyen announced a New Pact on Migration and Asylum that would set out a comprehensive approach to external borders, asylum and return systems, the Schengen area of free movement and the external dimension.
The New Pact on Migration and Asylum, presented together with this proposal represents a fresh start on migration based on a comprehensive approach to migration management. This proposal puts in place a common framework for asylum and migration management at EU level as a key contribution to the comprehensive approach and seeks to promote mutual trust between the Member States. Based on the overarching principles of solidarity and a fair sharing of responsibility, the New Pact advocates integrated policy-making bringing together policies in the areas of asylum, migration, return, external border protection, fight against migrants’ smuggling and relations with key third countries reflecting a whole of government approach. It recognises that a comprehensive approach also means a stronger, more sustainable and tangible expression of the principle of solidarity and fair sharing of responsibility. These principles should therefore be applied to the whole of migration management, ranging from ensuring access to international protection to tackling irregular migration and unauthorised movements.
The challenges of migration management, related in particular to ensuring a quick identification of those in need of international protection or effective returns (for those who are not in need of protection), should be dealt with in an uniform manner by the entire EU as a whole. The available data demonstrate that the arrival of third-country nationals with clear international protection needs as observed in 2015-2016 has been partly replaced by mixed arrivals of persons. It is therefore important to develop a new effective process allowing for better management of mixed migration flows. In particular, it is important to create a tool allowing for the identification, at the earliest stage possible, of persons who are unlikely to receive protection in the EU1. Such tool should be built in the process of controls at the external borders, with a swift outcome as well as clear and fair rules, and should result in accessing the appropriate procedure (asylum or the procedure respecting the Return Directive2). It should lead to enhancing the synergies between external border controls, asylum and return procedures.
This proposal puts in place a pre-entry screening that should be applicable to all third-country nationals who are present at the external border without fulfilling the entry conditions or after disembarkation, following a search and rescue operation. The proposal introduces uniform rules concerning the procedures to be followed at the pre-entry stage of assessing the
1 The share of migrants arriving from countries with recognition rates lower than 25% has risen from 14% in 2015 to 57% in 2018.
2 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24.12.2008, p. 98.
individual needs of third country nationals and uniform rules on the length of the process of collecting relevant information for identification of the procedures to be followed with regard to such persons.
The proposal also creates an EU framework by putting in place uniform rules for the screening of irregular migrants apprehended within the territory and who eluded border controls on entering the Schengen area. This aims to contribute to protecting the Schengen area and ensure efficient management of irregular migration.
Objectives and main elements of
the screening
The objective of the screening is to contribute to the new comprehensive approach to migration and mixed flows by ensuring that the identity of the persons but also any health and security risks are quickly established and that all third-country nationals who are present at the external border without fulfilling entry conditions or after disembarkation following a search and rescue operation are swiftly referred towards the applicable procedure.
The screening should consist in particular in:
(a) A preliminary health and vulnerability check;
(b) An identity check against information in European databases;
(c) Registration of biometric data (i.e. fingerprint data and facial image data) in the appropriate databases, to the extent it has not occurred yet; and
(d) A security check through a query of relevant national and Union databases, in particular the Schengen Information System (SIS), to verify that the person does not constitute a threat to internal security.
The proposed screening is expected to add value to the current procedures at the external borders in particular by:
– creating uniform rules concerning the identification of third-country nationals who
do not fulfil entry conditions as referred to in the Schengen Borders Code, and submitting them to the health and security checks at the external borders, thus increasing the security within the Schengen area;
– clarifying that entry is not authorised to third-country nationals unless they are
explicitly authorised entry following the assessment of entry conditions or when the Member State decides to apply in individual case special rules referred to in Article 6(5) of the Schengen Borders Code;
– creating a uniform tool of channelling to the appropriate procedure all third-country
nationals who are present at the external border without fulfilling entry conditions or after disembarkation following a search and rescue operation: either a procedure that respects the Return Directive or, in case of an application for international protection, the normal asylum procedure, an accelerated procedure, the asylum border procedure or, finally, relocation to another Member State, (without prejudging the outcome of any such procedures, or replacing them) and
– creating an EU framework also for the screening of third-country nationals who
entered the territory of the Member States without authorisation and who are apprehended within their territories.
The proposal, provides that the fundamental rights of the persons concerned should be protected with the help of an independent monitoring mechanism to be set up by the Member States. This monitoring mechanism should cover in particular the respect of fundamental rights in relation to the screening, as well as the respect of the applicable national rules in the case of detention and compliance with the principle of non-refoulement. It should furthermore ensure that complaints are dealt with expeditiously and in an appropriate way.
Finally, the proposal recognises the role of the EU agencies – Frontex and the European Union Agency for Asylum, which may accompany and support the competent authorities in all their tasks related to the screening. It also gives an important role to the Fundamental Rights Agency in supporting Member States in development of the independent monitoring mechanisms of fundamental rights in relation to the screening.
Scope of the proposal
The proposed screening should apply at the external borders to:
– all third country nationals crossing external borders outside of the border
crossing points for whom Member States are under an obligation under the Eurodac Regulation to take their fingerprints, including those who apply for international protection;
– third country nationals who are disembarked after a search and rescue
– third country nationals presenting themselves at border crossing points without
fulfilling the entry conditions and who apply there for international protection.
At the same time, the screening needs to rely on and link up with the tools put in place by other legislative instruments, in particular those regarding Eurodac3, the use of the Schengen Information System for return4 and Asylum Procedures5.
Third-country nationals crossing the external borders outside of the border crossing points or disembarked following search and rescue operations, including those who apply for international protection
Proposal of the Regulation (EU) XXXX amending Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of Eurodac for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes.
Regulation (EU) 2018/1860 of the European Parliament and of the Council of 28 November 2018 on the use of the Schengen Information System for the return of illegally staying third-country nationals, OJ L 312, 7.12.2018, p. 1.
Amended proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU
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4
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Under the Schengen Borders Code6, external borders may be crossed only at the notified border crossing points7. Border control8 consists of border checks carried out at the border crossing points and of border surveillance, which is carried out between the border crossing points in order to prevent persons from circumventing border checks, to counter cross-border criminality and to take measures against persons who have crossed the border without authorisation. Accordingly, third country nationals who crossed the external borders in an unauthorised manner and have no right to stay on the territory of the Member State concerned, must be submitted to procedures respecting the Return Directive9. In case the third-country national requests international protection, access to the asylum procedure must be ensured and the person should be referred to the asylum authorities. These rules, as appropriate, should also apply to third-country nationals disembarked following search and rescue operations.
To fit in the existing legal framework, in particular the Eurodac Regulation and the Schengen Information System for return10 as well as the Asylum Procedures Directive11, the mandatory screening of third-country nationals apprehended outside of border crossing points should cover those with regard to whom Member States are required to take biometric data in line
with the Eurodac Regulation12.
The Schengen Borders Code does not provide for any specific obligation concerning medical checks on third-country nationals apprehended during border surveillance. Third-country nationals who are present at the external border without fulfilling entry conditions or after disembarkation following a search and rescue operation might have been exposed to health threats (e.g. when coming from war zones, or as a result of being exposed to communicable diseases). It is therefore important to identify at the earliest stage possible all those in need of immediate care, as well as to identify minors and vulnerable persons, in order to refer them to a border or accelerated asylum procedure, in line with the applicable criteria for these procedures. The recent outbreak of COVID-19 also shows the need for health checks in order to identify persons requiring isolation on public health grounds. Therefore, there is a need for uniform rules on preliminary health checks, which would apply to all third-country nationals submitted to the screening.
Third-country nationals not fulfilling the conditions for entry and seeking international protection at border crossing points
In line with Article 3 of the Schengen Borders Code, border control should be carried out without prejudice to the rights of refugees and third-country nationals requesting international protection. However, the Schengen Borders Code does not provide for sufficient instructions for the border guards on how to handle third-country nationals seeking international
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Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March on a Union Code
on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 77,
23.3.2016, p.1.
Article 5 of Regulation 2016/399.
Article 2 of Regulation 2016/399.
common standards and procedures in Member States for returning illegally staying third-country
nationals, OJ L 348, 24.12.2008, p. 98.
See footnote 4.
procedures for granting and withdrawing international protection, OJ L 180, 29.6.2013, p. 60.
Third country nationals not asking for international protection who neither fulfil the entry conditions
nor fall under any of the exceptions of Article 6(5) of the Schengen Borders code should be refused
entry in accordance with Article 14 of Regulation 2016/399 (Schengen Borders Code).
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protection at border crossing points and different practices are observed in this regard across the Member States. As a result, third country nationals who are admitted to the territory despite not fulfilling the conditions for entry, based on the claim of seeking international protection, may abscond.
Furthermore, also for third country nationals in this situation, there are currently no rules on medical checks.There is therefore a need to establish additional rules to link border control at external borders seamlessly with the relevant subsequent procedures under the asylum or return acquis.
It is also necessary to clarify that during the screening, meaning during the checks to determine the appropriate following procedure(s), the third-country nationals concerned should not be authorised to enter the territory of the Member States. This rule should apply to all third-country nationals submitted to the screening at the external borders.
Guarantees resulting from the applicable procedures and applicability of relocation
For all third country nationals submitted to the screening, if they apply for international protection at the moment of apprehension or in the course of border control at the border crossing point or during the screening, they should be considered as applicants for international protection. However, Articles 26 and 27 of the [APR] Regulation XXXX as well as the legal effects concerning the [Reception Conditions Directive] XXXX should apply only after the screening has ended.
In a similar vein, the procedures established by the Return Directive should only start applying to persons covered by this proposal after the screening has ended.
The screening could be followed by relocation under the mechanism for solidarity established by Regulation (EU) XXX/XXX [Regulation on Asylum and Migration Management] if a Member State is contributing to solidarity on a voluntary basis or the applicants for international protection are not subject to the border procedure pursuant to Regulation (EU) No. XXX/XXX (Asylum Procedures Regulation), or under the mechanism addressing situations of crisis established by Regulation (EU) XXX/XXX [Regulation on situations of
crisis].
General exclusion
The screening is not meant to apply to third-country nationals who fulfil the conditions of entry set out in Article 6 of Regulation 2016/399 (the Schengen Borders Code). If during the screening it emerges that the third-country nationals concerned fulfil those conditions, the screening should end immediately and the third-country national should be authorised to entry the territory of the Member State. This does not affect the possibility to apply penalties for the crossing of an external border without authorisation, as referred to in Article 5(3) of the Schengen Borders Code.
Similarly, the screening should not apply to third-country nationals with regard to whom the Member State may or is obliged to apply a derogation as regards the entry conditions. An exhaustive list of such cases is provided in Article 6(5) of the Schengen Borders Code and includes cases of third-country nationals who hold a residence permit or a long-stay visa from another Member State and who shall be authorised to enter the territory for transit purposes, or third-country nationals who are authorised by a Member State in an individual decision to
13 Third country nationals not asking for international protection who neither fulfil the entry conditions
nor fall under any of the exceptions of Article 6(5) of the Schengen Borders code should be refused entry in accordance with Article 14 of Regulation 2016/399 (Schengen Borders Code).
enter its territory on humanitarian grounds (for example for the purpose of medical treatment). However, should the Member State consider that the persons seeking international protection could benefit from an individual decision authorising entry as referred to in Article 6(5)(c), such person should be referred to the screening and the authorisation of entry should be put on hold pending the outcome of the appropriate procedure of granting international protection.
Third-country nationals apprehended in the territory
Third-country nationals apprehended by the police or other competent authorities in the territory of a Member State while not fulfilling the conditions of entry and stay have to be subject to return procedures in accordance with the Return Directive, unless they request international protection. In the latter case, they should have their request examined or be granted an authorisation or right to stay in the Member State concerned.
In order to better protect the Schengen area and ensure proper management of irregular migration, the Member States should be also obliged to submit these persons to the screening. However, this obligation should not apply in the case of overstayers (third-country nationals that have overstayed their visas, for instance by remaining in the Member States for a period longer than the 90 days out of a 180 day-period, or by staying for a period longer than the one allowed by a residence permit or a long-stay visa they hold) because persons in this situation have been subject to border checks upon arrival.
The screening of persons apprehended in a Member State’s territory (while respecting the above limitation), should compensate for the fact that such persons presumably managed to avoid border checks upon entry into the European Union and Schengen area. By including these cases in the scope of the proposed regulation, it is ensured that also this screening will follow uniform rules and standards.
The screening in such cases should be triggered by the absence of an entry stamp in a travel document or the absence of a travel document altogether, hence, by inability to make a credible case that they crossed an external border in a regular manner. With the start of the operation of the Entry/Exit System in 2022 the stamps will be replaced by more reliable records in the electronic system available also to the law enforcement authorities, providing additional certainty as regards the legal entry of third-country nationals into the territory of the Member States.
• Consistency with existing policy provisions in the policy area
The proposal addresses challenges related to the protection of the external borders and the prevention of unauthorised movements within the area without controls at internal borders. The screening complements the rules concerning border control at the external borders as set out in Regulation 2016/399 (the Schengen Borders Code). It notably complements the obligations of the Member States resulting from Articles 3 and 13 of the Code as regards the obligation to prevent unauthorised entry, as well as the obligation to carry out border controls without prejudice to the rights of refugees and third-country nationals requiring international protection. It also reflects the fact that non-fulfillment of the conditions of entry is presumed in the absence of a stamp in a travel document (or, after the start of the operation of the Entry/Exit System in 2022, in the absence of an entry in the electronic system available also to the law enforcement authorities) with regard to third-country nationals apprehended in the territory of a Member State.
The proposal reflects recent developments of the Schengen acquis, in particular the implementation of the Entry/Exit System14, scheduled for 2022. It also takes into consideration the interoperability framework established by Regulations (EU) 2019/81715 and (EU) 2019/81816. The necessary changes in the legal acts establishing the specific databases, such as the Entry/Exit System (EES), the European Travel Information and Authorisation System (ETIAS), the Visa Information System (VIS) are limited to providing access rights for the designated authorities in the context of the screening.
• Consistency with other Union policies
This proposal is one of the legislative building blocks of the New Pact on Migration and Asylum and provides for an additional element in migration management in full consistency with the proposals for a Regulation on Asylum and Migration Management, for a Regulation on the Asylum Procedure, for a Regulation on situations of crisis and the amended proposal for a recast Eurodac Regulation.
Together with the former, this proposal aims to contribute to a comprehensive approach to migration by establishing a seamless link between all stages of the migration process, from arrival to processing of requests for international protection until, where applicable, return. This should go hand in hand with full respect of fundamental rights. To that end, it is proposed to ensure that each Member State establish an independent monitoring mechanism, to ensure that fundamental rights are observed in relation to the screening and that any allegations of the breach of fundamental rights are properly investigated.
The monitoring mechanism for the screening should be part of the governance and monitoring of the migratory situation provided for in the new Regulation on Asylum and Migration Management (AMMR). The Member States should integrate the results of their national monitoring mechanism under this Regulation in their national strategies provided for in the AMMR.
This proposal does not affect existing procedures in the area of asylum and return nor abridge the exercise of individual rights but merely better organises the pre-entry stage to facilitate a better use of those procedures.
By the end of the screening the third-country nationals should be referred to the appropriate authorities, which – using the information collected during the screening in the debriefing form – should take the relevant decisions.
The information collected during the screening should therefore help to achieve the purposes of the respective procedures in a more efficient manner. It should in particular help the relevant asylum authorities to identify those asylum applicants who would fall within the scope of the border procedure, in line with the proposed amendments to the Asylum Procedures Regulation. It should also help to fight smuggling and improve border controls by better understanding migratory flows.
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Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, OJ L 327, 9.12.2017, p. 20.
Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of borders and visa OJ L 135, 22.5.2019, p. 27.
Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration, OJ L 135, 22.5.2019, p. 85.
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The biometric data referred to in the Regulation XXXX [Eurodac Regulation] collected during the screening, together with the data referred to in Articles [12, 13, 14 and 14a] of that regulation, should be transmitted to Eurodac with regard to third country nationals with regard to whom the Member States are obliged to take fingerprints. By requiring this collection and transmission during the screening, this regulation specifies temporally and thus confirms the obligations concerning the fingerprinting and registration of third country nationals. The screening will also facilitate checking other large-scale IT systems, such as the Schengen Information System, for the purposes of return.
2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY
• Legal basis
The proposal is based on Article 77 (2)(b) of the Treaty on the Functioning of the European Union (TFEU) which concerns the development of a policy with a view to carrying out checks on persons and efficient monitoring of the crossing of external borders.
With regard to the amendments to the regulations establishing different databases (VIS, EES, ETIAS) and to the regulation establishing interoperability, the proposal is additionally based on Article 77(2)(d) of the TFEU, which concerns the development of a policy with a view to any measure necessary for the gradual establishment of an integrated management system for external borders.
• Subsidiarity (for non-exclusive competence)
Action in the area of freedom, security and justice falls within an area of competence shared between the EU and the Member States in accordance with Article 4(2) TFEU. Therefore, the subsidiarity principle is applicable by virtue of Article 5(3) Treaty on the European Union: The Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States (either at central level or at regional and local level), but rather at Union level (by reason of the scale or effects of the proposed action).
The objectives of this proposal cannot be sufficiently achieved by the Member States acting alone, and can be better achieved at the level of the Union. This is because they concern checks on persons at the external borders and efficient monitoring of the crossing of such borders. As explained in Recital 6 of the Schengen Borders Code “border control is in the interest not only of the Member State at whose borders it is carried out but of all Member States which have abolished internal border control. Border control should help to combat illegal migration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations”.
The proposed measures complement the existing rules concerning border control at the external border provided for in the Schengen Borders Code and other measures adopted under Article 77(2)(b) TFEU. By improving the overview by the competent authorities of who is crossing the external border and by contributing to a more efficient determination of the procedure to be applied to the third-country nationals concerned, the proposed measures contribute to preserving the area without controls at internal borders. The Union may therefore adopt the proposed measures, in accordance with the principle of subsidiarity.
• Proportionality
The proposal is proportionate to the identified objectives.
The proposal responds to the identified shortcomings in the management of mixed flows of third-country nationals who are present at the external border without fulfilling the entry conditions or after disembarkation, following a search and rescue operation, including third-country nationals seeking international protection.
The proposal introduces an obligation to check the biometric data of the third-country nationals concerned against the Common Identity Repository (CIR) established by the Interoperability Regulation, which contains all identity data of persons known to the large-scale IT systems in the area of migration, security and justice. This obligation is conceived in such a manner that only those data are accessed that are strictly necessary to identify third-country nationals (the data accessed is similar to those in a travel document) and that there will be no duplication or new collection of data in a large-scale IT system.
The security check should use the relevant European information systems and, to the extent possible, be carried out on the basis of biometric data, in order to minimise the risk of false identification.
The proposal aims at building synergies between different procedures and stages of managing migrants and asylum seekers. For instance, during the screening, any possible previous consultations of the relevant databases, in particular of the Schengen Information System, will have to be taken into account. This is particularly relevant with regard to persons requesting international protection at the border crossing point, for whom the databases should already have been consulted during the border checks.
The collection of the necessary and comprehensive information on the third-country nationals concerned is expected to contribute to speeding up the asylum by the end of the screening.
Similarly, the proposed uniform rules with regard to the health checks and identification of third-country nationals with vulnerabilities at the external borders are limited to what is absolutely necessary to achieve the proposal’s objective, i.e. to identify third-country nationals with a need of immediate care or requiring isolation on public health grounds, as well as persons with vulnerabilities or special reception or procedural needs and to ensure adequate support for them. The proposal also requires adjusting the provision of information concerning the screening to the needs of minors and ensuring the presence of trained and qualified staff to deal with minors.
The proposal clarifies that during the screening at the external border, third-country nationals concerned should not be authorised to enter the territory of a Member State. This is expected to help in addressing in particular cases where the intention to apply for international protection is expressed during border checks but is then not pursued or is pursued only later in another Member State. The rule that one is not authorised entry during the screening reflects the obligation of the border guards to ensure that third-country nationals who do not fulfil entry conditions are not authorised entry. The determination in which situations the screening requires detention and the modalities thereof are left to national law.
The proposal also provides for screening to be applied to third-country nationals found within the territory of the Member States where there is no indication that they have crossed an external border to enter the territory of the Member States in an authorised manner. This does not concern ‘overstayers’, such as short-stay visa holders who stay longer than three months, or persons with a residence permit who stay after the latter expires. Those persons have been subject to border checks upon arrival in the Schengen area; the irregular character of their stay
is not related to the way they have entered, but flows from the fact that they have not left in due time.
• Choice of the instrument
The proposal complements and specifies the uniform rules on border control at the external borders contained in the Schengen Borders Regulation, by requiring from Member States that in the three types of situations referred to above, third country nationals undergo a screening consisting in an identity check, a security check and a health check where necessary, to enable the authorities to refer them to the appropriate procedures regarding asylum or return. To contribute in this manner to the security of the Schengen area and to the effectiveness of the asylum and migration policy of the Union, those checks should be performed according to uniform standards. To lay down those standards, directly applicable provisions are needed. It follows that a Regulation is the appropriate instrument to organise this screening.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
Contents
- consultations
- operation; and
- Amended proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU
- Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March on a Union Code
- Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on
- Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common
- Third country nationals not asking for international protection who neither fulfil the entry conditions
- The screening shall be carried out in full respect of fundamental rights as enshrined in the Charter, including
- In order to ensure that the Charter of Fundamental Rights and other EU and international obligations are complied with in relation to the screening, including the fact that access to
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- Article 11 provides specific rules concerning security checks. It requires the competent authorities to consult the EES, ETIAS, VIS, the ECRIS-TCN and Interpol Travel Documents
ANDIMPACTASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The Commission implements an evidence-based policy-making and refers to the separate document (XXX) which details the data and elements supporting the proposed approach for the various challenges identified since 2016 for the finalisation of the reform of the Common European Asylum System (CEAS). The data and information presented in that document are also relevant for the proposal introducing the screening as the part of the seamless process for all third country nationals who do not fulfil entry conditions upon crossing the external borders of the Schengen area.
Stakeholder
consultations
The Commission consulted Member States, the European Parliament and stakeholders on a number of occasions to gather their views on the future Pact on Migration and Asylum. In parallel, the Romanian, Finnish and Croatian Presidencies have held both strategic and technical exchanges on the future of various aspects of migration policy, including asylum, return, relations with third countries on readmission and reintegration. These consultations showed support for a fresh start on European asylum and migration policy to urgently address the flaws in the CEAS, to improve the effectiveness of the return system, to better structure and equip our relations with third countries on readmission and to ensure the sustainable reintegration of returning migrants.
Ahead of the launch of the New Pact on Migration and Asylum, the Commission has engaged in continuous discussions with the European Parliament that, in particular stressed the need to ensure the full respect of fundamental rights. Vice President Schinas and Commissioner Johansson also held consultations with all Member States in the first 100 days in office and bilateral follow-up consultations with all Member States. Member States acknowledged the need for unity, gradual progress in solving the weaknesses of the current system, the need for a new system of fair sharing of responsibility to which all Member States can contribute, strong border protection, importance of the external dimension of migration, and improved returns. Most Member States expressed their interest in having clear and efficient procedures at the external borders, notably to prevent unauthorised movements and facilitating returns.
Some Member States, however, stressed that one must not create any unnecessary administrative burden.
Commissioner Johansson equally held on several occasions targeted consultations with international organisations, civil society organisations (CSOs), relevant local nongovernmental organisations in the Member States, social and economic partners.
The Commission took into consideration many recommendations of national and local authorities , non - gover n m ental and international organisations, such as the United Nations High Commissioner for Refugees (UNHCR)18, the International Organisation for Migration (I OM) , as well as think tanks and academia, on how to envisage a fresh start and address the current migration challenges in accordance with human rights standards. The Commission also took into account the contributions and studies of the European Migration Network , which have been launched at its initiative and which over the last years have produced several specialised studies, as well as ad hoc queries.
Fundamental rights
The proposal respects fundamental rights and observes the principles recognised in particular in the following acts:
• the Charter of Fundamental Rights of the European Union,
• the obligations ste mming from international law, in particular from the Geneva Convention on the Status of Refugees,
• the European Convention for the Protection of Human Rights and Fundamental Freedoms,
• the International Covena nt for Civi l and Political Rights and
• the United Nati ons Conventi on ag ainst Tortu re .
The screening shall be carried out in full respect of fundamental rights as enshrined in the Charter, including
• the right to human dignity (Article 1),
• the prohibition of torture and inhuman or degrading treatment or punishment (Article 4),
• the right to asylum (Article 18),
• the protection in the event of removal, expulsion or extradition (Article 19)
• the principle of no n - disc rim inati on (Article 21) and
• a high level of human health protection (Article 35).
In order to ensure that the Charter of Fundamental Rights and other EU and international obligations are complied with in relation to the screening, including the fact that access to
18
For example, Berlin Action Plan on a new European Asylum Policy, 25 November 2019, signed by 33 organisations and municipalities.
UNHCR Recommendations for the European Commission’s proposed Pact on Migration and Asylum, January 2020.
IOM Recommendations for the new European Union Pact on Migration and Asylum, February 2020. All studies and reports of the European Migration Network are available at: https://ec.europa.eu/home-affairs/what-we-do/networks/european_migration_network_en.
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procedures will always need to be provided, the Member States are required to establish an independent monitoring mechanism. This monitoring mechanism should cover in particular the respect of fundamental rights at all times during the screening, as well as the respect of the applicable national rules in the case of detention. The Fundamental Rights Agency should establish general guidance as to the setting up and the independent functioning of this mechanism. Furthermore, it may support, at the request of a Member State, the competent national authorities in developing the national monitoring mechanism, in particular as regards setting the safeguards for its independence as well as establishing a methodology for the monitoring as well as training measures. The Member States should also ensure that their national law provides for investigations in allegations of breach of fundamental rights during the screening, including by ensuring that complaints are dealt with expeditiously and in an appropriate way.
This proposal fully takes into account the rights of the child and the special needs of vulnerable persons, by providing timely and adequate support in view of their physical and mental health. In the case of minors, support shall be given by personnel trained and qualified to deal with minors, while informing child protection authorities.
The proposal affects the right to protection of personal data (Article 8 of the Charter) in three ways, which are however strictly necessary and proportionate to reaching the objectives pursued, of increasing the security of the Schengen area and ensuring a smooth process of referring third-country nationals present at the external border without fulfilling the entry conditions to the appropriate procedures regarding asylum or return.
First, the consultation of travel documents, the processing of biometric data and the consultation of databases in the context of the identity check and security check constitute forms of processing of personal data, which are inherent in trying to find out who is the person wanting to - or trying to - cross the external border, and whether that person constitutes a security risk of the Member States. Those forms of processing of personal data are already provided for by the Schengen Borders Code. In this regulation, they are specified for the three sets of particular situations where third-country nationals are present at the external border without fulfilling entry conditions and in which the screening is deemed necessary to increase the security of the Schengen area and to ensure a smooth process of referring the persons concerned to the appropriate procedures regarding asylum or return.
Secondly, the debriefing form filled out by the end of the screening contains information that is necessary to enable the Member States’ authorities to refer the persons concerned to the appropriate procedure. The filling out and reading of the debriefing form by the authorities thus constitute forms of processing of personal data which are inherent in referring third-country nationals present at the external border without fulfilling entry conditions to the appropriate procedures regarding asylum or return.
Thirdly, the temporal specification of Member States’ obligations under the Eurodac Regulation to collect and transmit personal data of the third-country nationals concerned does not entail any additional processing of personal data. It rather obliges Member States to perform this processing, to which they are obliged pursuant to the Eurodac regulation, during the screening.
As the screening as such is a mere information-gathering stage which prolongs or complements the checks at the external border crossing point and which does not entail any decision affecting the rights of the person concerned, no judicial review is foreseen regarding
the outcome of the screening. Once the screening ends, the person who has been subject to the screening becomes subject of a return or asylum procedure, where decisions are taken which can be submitted to judicial review, or receives a refusal of entry, which can also be contested before a judicial authority. The screening should last as short a period as possible, and the maximum duration should only be reached in rare, difficult cases or in situations where many persons need to be subject to screening at the same time. Where the maximum duration of 5 days, in exceptional situations 10 days, is reached with regard to a person, the screening should end immediately and a procedure which leads up to a decision which can be judicially reviewed should start immediately with regard to that person.
4. BUDGETARYIMPLICATIONS
The proposed Regulation has implications for the EU budget.
The total financial resources necessary to support the implementation of this proposal is estimated at an amount of EUR 417.626 million, for the period 2021-2027. In particular, the following elements of the screening will potentially require financial support:
– infrastructure for the screening: creation and use/upgrade of the existing premises at
the Border Crossing Points, reception centres etc.;
– access to the relevant databases at new locations;
– hiring of additional staff to carry out the screening;
– training of border guards and other staff to carry out the screening;
– recruitment of medical staff;
– medical equipment and premises for the preliminary health checks, where
appropriate;
– setting up the independent monitoring mechanism of fundamental rights during the
screening.
The expenses related to these new tasks can be covered by the resources available to the Member States under the new Multiannual Financial Framework 2021-2027.
No additional financial or human resources are requested in the context of this legislative proposal.
More detailed information in this regard can be found in the Legislative Financial Statement accompanying this proposal.
5. OTHERELEMENTS
• Detailed explanation of the specific provisions of the proposal
Article 1 explains the subject matter of the Regulation. It specifies that it shall apply at the external borders and within the territories of the Member States, where there is no indication that third-country nationals have been subject to controls at external border.
Article 2 provides for definitions applicable in the context of the screening.
Article 3 sets out the personal scope by identifying third country nationals who should be submitted to the screening obligation at the external borders: third-country nationals who are present at the external border without fulfilling the entry conditions and for whom Member States are required to collect fingerprints under the Eurodac Regulation, persons disembarked
in the territory of the Member States following a search and rescue operation, and third country nationals requesting international protection at a border crossing point.
Not subject to the screening are third-country nationals who are authorised to enter on the basis of the derogations referred to in Article 6(5) of the Schengen Borders Code (holders of residence permits or long term visa for the purposes of transit, visa-required third country nationals in case a visa is issued at the border, and persons admitted by a Member State on the basis of an individual decision on humanitarian grounds, on grounds of national interest or because of international obligations, except persons seeking international protection who should be channelled to the screening).
Article 4 provides that during the screening, third-country nationals submitted to the screening at an external border are not authorised to enter the territory. It also provides that the screening ends as soon as it appears that the third-country national concerned fulfils the entry conditions. This is without prejudice to the possible application of penalties related to crossing the external border without authorisation, in line with the current rules set out in the Schengen Borders Code.
Article 5 specifies that the screening Member States shall apply also with regard to third-country nationals apprehended within the territory, where there are indications that they eluded border checks at the external border on entry.
Article 6 sets rules concerning the location and duration of the screening. The location is at the external borders, except in cases falling under Article 5. The proposed duration of the screening process is five days, unless the person concerned has already been kept at the border for 72 hours as referred to in Article 14(3) of Regulation (EU) No 603/2013 [Eurodac Regulation], in relation to unauthorised crossing of the external border. In such a case, the screening should not exceed 2 days. In case of the screening of persons apprehended within the territory the screening should not exceed three days. The article also enumerates all the elements of the screening and provides for a possibility for the Member States to be supported by the relevant EU agencies in the screening, within their respective mandates. It also acknowledges the need for the Member States to involve child protection authorities and the national Anti-trafficking rapporteurs in cases of vulnerable persons or minors.
Article 7 sets out the obligation for each Member State to establish an independent monitoring mechanism for fundamental rights and defines the role for the Fundamental Rights Agency in this process.
Article 8 indicates the information that needs to be communicated to the third-country nationals concerned during the screening, while also underlining the need to ensure that certain standards in this regard are complied with, so that information is communicated to third-country nationals in an adequate manner, in particular with regard to children.
Article 9 establishes the rules concerning the health check and the identification of third-country nationals with vulnerabilities and special reception or procedural needs at the external borders.
Article 10 provides specific rules concerning the identification of third-country nationals by means of consulting the Common Identity Repository (CIR) established by the Interoperability Regulation. Consultation of the CIR allows consulting identity data present in the EES, VIS, ETIAS, Eurodac and ECRIS-TCN in one go, in a fast and reliable manner, while ensuring a maximum protection of the data and avoiding unnecessary processing of or duplication of data.
Article 11 provides specific rules concerning security checks. It requires the competent authorities to consult the EES, ETIAS, VIS, the ECRIS-TCN and Interpol Travel Documents
Associated with Notices (TDAWN) database in order to verify whether the third country nationals does not present a security threat. All such checks should be carried out, to the extent possible, on the basis of biometric data, in order to minimise the risk of false identification, and the results of the searches should be restricted to reliable data only.
Article 12 complements Article 11 by providing the specific rules of the security checks.
Article 13 provides for a debriefing form that should be filled out by the competent authorities by the end of the screening.
Article 14 provides for the possible outcomes of the screening for the third-country nationals submitted thereto. In particular, it refers to procedures respecting Directive (EU) 2008/115/EC (Return Directive) with regard to third country nationals who have not applied for international protection and with regard to whom the screening has not revealed that they fulfil entry conditions. It also establishes that third-country nationals who made an application for international protection should be referred to the authorities referred to in Article [XY] of that Regulation. The form referred to in Article 13 of this Regulation shall be transmitted simultaneously with the referral of the person concerned to the competent authorities. Article 14 also refers to the possibility of relocation under the mechanism for solidarity established by Article XX of Regulation (EU) No XXXX/XXXX [Regulation on Migration and Asylum management]. The provision also refers to third country nationals submitted to the screening after having been apprehended within the territory. Such third-country nationals shall be subject either to procedures respecting Directive 2008/115/EC or to procedures referred to in Article 25(2) of Regulation (EU) No XXX/XXX (Asylum Procedures Regulation). The provision also provides that the authorities shall during the screening take the biometric data referred to in Articles [10, 13, 14 and 14a] of Regulation EU No XXX/XXX [Eurodac Regulation] of all persons to whom that Regulation applies, and shall transmit the data in accordance with the latter Regulation, where this has not yet been done.
Article 15 introduces the committee procedure for the purpose of adopting the implementing acts mentioned in the context of the identification and security checks in Articles 10 and 11 respectively.
Articles 16 - 19 provide for changes in the respective legal acts Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240, and (EU) 2019/817 establishing the databases to be consulted during the screening and the interoperability between them.
Article 20 provides for the evaluation of the implementation of the measures set out in this Regulation.
Article 21 contains final provisions.