The Portuguese Presidency of the EU Council was able to make technical progress on the texts of the Pact on Migration and Asylum, before handing over to the Slovenian Presidency on 1 July.
On 25 June, the former presidency presented a new compromise text on the Regulation on the ‘pre-screening’ of migrants, in which it specifies, among other things, the terms and conditions for the use of detention of persons who are subject to a set of checks on arrival.
Several Member States also transmitted their views on this text to the Presidency and some of them clarified their expectations with regard to the principle of non-entry into the EU.
The Commission, in its Pact, had proposed new requirements for the control of arrivals at the EU’s external borders by imposing a five-day ‘screening’ process to carry out health, security and identification checks and then direct these people to the normal asylum procedure or to the border procedure.
The text had progressed since then, but the Portuguese Presidency could not submit it for agreement due to the package approach, which links this text to all others. These documents, dated 25 June, should therefore be seen as a ‘handover’ document to the Slovenian Presidency.
The compromise of 25 June specifies certain conditions, for example, on the place of screening, when it cannot be carried out at the external border, if there are no adequate facilities.
On detention, it states that Member States “should apply measures in accordance with the provisions of their national law in order to effectively prevent the persons concerned from entering or absconding and to ensure that they remain in the designated place during the screening”. “In individual cases, if necessary, this may include detention as well as other alternative measures that can ensure the same objective”, the text says. “Detention should always be necessary, proportionate and subject to an effective remedy, in accordance with European and international law”.
A health check will not be necessary if the person appears to be in good health and any health check should, in any case, be carried out by qualified medical personnel.
However, a ‘vulnerability test’ of arriving persons will be mandatory, in particular to take into account the elderly, pregnant women or unaccompanied minors. The Commission, for its part, had proposed exempting these vulnerable persons, pregnant women and minors, from these controls. These vulnerability tests should be carried out by appropriate personnel and, if necessary, in the presence of NGOs.
To ensure compliance with EU law and fundamental rights during ‘screening’, each country should provide for a monitoring mechanism and put in place guarantees for its independence, the text also says.
The ‘fiction of non-entry’
Article 4 of the Regulation states that newly arrived persons who have lodged an application for protection should not be considered eligible to enter the EU, but if it appears to the authorities during the screening process that they qualify for asylum or if they decide voluntarily to leave, these checks should be discontinued.
“Member States shall lay down provisions in their national law to ensure that such persons remain at the disposal of the competent authorities at the external border or, if that is not possible, in other designated places”, the text also says.
Some delegations, including the French one, considered it “essential that persons subject to screening should have no possibility of absconding during the procedure”.
The Netherlands asked for clarification on vulnerability tests, which also exist in other directives.
Hungary, a transit country, said it would like a specific time limit under which the ‘fiction of non-entry’ could be used for people who are only “illegally transiting through a Member State”.
Links to documents: https://bit.ly/3w4KNRm; https://bit.ly/3jxWvBj (Original version in French by Solenn Paulic)