On Tuesday 17 May, Member States’ representatives were to again discuss amendments to the Schengen Code reform on the basis of a new partial compromise by the French Presidency of the EU Council.
This compromise further modifies aspects related to the instrumentalisation of migrants, the arrival of travellers in the EU during times of pandemics as well as the modalities of the transfer of migrants from one Member State to another in the context of police controls in internal border areas.
A meeting scheduled for 23 May could be used to present amendments in relation to the EU Court of Justice ruling of 26 April, which gave a stricter reading regarding the periods for re-establishing internal border controls (see EUROPE 12939/9).
The Presidency’s objective remains to reach a first political agreement at the Home Affairs Council on 10 June and on the Eurodac and ‘Migrant Screening’ Regulations.
Regarding Schengen, the compromise adds a reference to cover the situation in Cyprus in relation to instrumentalisation. “Although the line does not constitute an external border, it should be clarified that a situation where a third-country or non state actor encourages or facilitates the movement of third country nationals to cross the line should be considered as instrumentalisation”, the text proposes, referring to arrivals from the Turkish part of the island.
On the means to monitor migrant arrivals in a context of instrumentalisation, the compromise still does not mention physical barriers, but enables the use of “all types of stationary and mobile infrastructure in line with EU law”.
Furthermore, the text reiterates that Member States are also authorised to take measures other than those provided for in the Regulation (e.g. the closure of border crossing points) in the event of attempted “en masse” entry of third-country nationals using “disproportionate violent means”.
With regard to Article 23a on procedures for the transfer of migrants, such transfers may take place on the basis of multilateral cooperation agreements, including joint police patrols. It must be ensured that these joint patrols, which cannot have the effect of internal border controls, do not hinder the flow of traffic.
For non-essential travel to the EU in times of pandemic, details are added on Irish citizens, who are to benefit from the same conditions as Schengen countries, as well as on workers considered essential, such as seasonal workers and highly skilled workers “whose employment is necessary from an economic perspective and the work cannot be postponed or performed abroad”.
Screening
On the ‘Screening’ regulation, a document was submitted to the Member States on 13 May. It adds references to the current Dublin Regulation and not to the new Asylum and Migration Management Regulation which will replace it.
A reference is added to Article 23a of the Schengen Code, whereby persons must be screened in the country to which they are returned.
Screening should generally be carried out at or near the external border or, where this is not possible, notably because adequate facilities are not available at the border or are already occupied, at other designated locations, before the persons concerned are allowed to enter the territory.
Member States should also make provisions in their national law to ensure that the persons concerned are effectively prevented from entering or fleeing the territory and to ensure that they remain in the designated location during the screening.
In individual cases, if necessary, “this may include detention, as well as other alternative measures that can ensure the same objective, subject to the national law regulating that matter. Detention should always be necessary, proportionate and subject to an effective remedy (...) and should not exceed the duration provided for by the national regulatory framework”. Where this is not necessary, alternative measures should apply.
Third-country nationals subject to a screening should remain at the disposal of the competent authority for the duration of the screening. If they fail to do so, “they could be subject to penal sanctions if it is provided for under national law, in line with EU law”.
Links to the documents: https://aeur.eu/f/1oi; https://aeur.eu/f/1oh (Original version in French by Solenn Paulic)