The Commission has provided the European Border and Coast Guard Agency, Frontex, with clarifications on the interpretation of the Regulation on external maritime border operations (656/2014).
It notes that, in all cases, it is imperative that border guards question the persons rescued or intercepted before they are disembarked and examine their individual cases. They cannot deprive migrants of these rights automatically under the pretext that they did not arrive at a regular border point. And “all vulnerable persons have to receive special attention”.
The March 2016 agreement with Turkey does not allow for “collective expulsions”, but for safe routes of return to a third country that must also be considered safe.
Every situation must therefore be judged on “its own merits”, says the Commission.
The Frontex working group had requested these clarifications from the Commission on 15 January and published them on 5 March. Last week, the Executive Director of the Frontex agency, Fabrice Leggeri, had underlined before the European Parliament the difficulty of certain situations and the vagueness that can result from the Regulation 656/2014. He had then recalled the European Court of Human Rights’ judgment of 2020 concerning migrants who arrived in Melilla and were turned back directly by the Spanish authorities. The Court found this practice to be lawful.
Melilla, a very specific case
The Agency therefore wanted to know how relevant this judgment is to its activities; it also asked for explanations on refusals of entry onto EU soil.
In its four-page analysis, the Commission insists first of all on the fact that the ultimate interpretation is left to the EU Court of Justice, but also notes that the ECHR decision “cannot be directly applied to all situations”, in particular because the situation differs depending on whether it is a land border, as was the case for Melilla, or a maritime border. The Commission also says that in this 2020 decision, the principle of non-refoulement was not at stake.
With regard to refusals of entry to the territory that are permitted and are governed by the Return Directive, the Commission notes that any decision to refuse entry “is to be substantiated, stating the precise reasons for the refusal and must be able to be subject to an appeal”. Even in the case of detection at sea, without passing through a regular checkpoint, minimum rights must be respected, such as the principle of non-refoulement.
A refusal of access to EU territory can therefore only take place after the competent authorities have assessed that a third country national does not fulfil the conditions for entry, such as an entry for humanitarian reasons.
Furthermore, any return process must be stopped as soon as the person requests to file an asylum application.
Link to the clarifications (pages 19 to 23): https://bit.ly/3qv9eEL (Original version in French by Solenn Paulic)