Written by Wouter van Ballegooij and Katharina Eisele,
Fast-tracking procedures at European Union external borders for determining whether individuals are entitled to international protection is a priority in the proposed Pact on Migration and Asylum. Asylum procedures at the border are in fact not new in European Union policy.
What are the rules for asylum and international protection in the EU? EU Member States have committed to offering protection to those who have to leave their home country to seek safety from persecution or serious harm. Through the ‘Common European Asylum System’ (CEAS), the EU has developed legal and policy instruments for the management of asylum in the EU that apply from the moment someone has lodged an asylum application until the moment the application has been recognised or rejected upon appeal.
The CEAS includes common procedures for granting and withdrawing international protection, laid down in the Asylum Procedures Directive (APD). Article 43 of the APD allows for border procedures: When applications for international protection are made at the border or in a transit zone of a Member State prior to a decision on the entry of the applicant, Member States can provide for admissibility and/or substantive examination procedures at these locations. Furthermore, the directive allows the possibility to apply border procedures in transit zones or in proximity of borders in the event of large numbers of arrivals.
Key findings of the EPRS European Implementation Assessment
A European Implementation Assessment, based on two external studies, concludes that uniform and fair asylum procedures at the European Union border have not been achieved to date. Why is this? While the failure is due to patchy implementation of EU law, it is also caused by lack of clarity in the underlying EU legal framework.
In terms of effectiveness, important differences remain between Member States with regard to the concept and scope of the EU border procedure, notably on restrictions of liberty and procedural guarantees. Furthermore, implementation is not properly monitored and enforced.
The systematic and extended use of (de facto) detention in the context of border procedures is not in line with the right to liberty. Procedural guarantees provided for in the APD are not, or only restrictively, applied in practice. Vulnerable applicants, including unaccompanied minors, continue to be subject to border procedures and held in detention facilities, raising questions as regards compliance with the rights of the child.
Short time limits to lodge and decide on appeals and the lack of suspensive effect of appeals in certain countries, raise concerns as to whether effective remedies are provided. The costs of border procedures are significant and probably disproportionate under the current circumstances, given that their objectives are not being achieved. Beyond administrative costs, border procedures entail significant human cost for the individuals affected by their application. In terms of coherence, the framework for border procedures under the APD is complex and unclear, in part due to the various cross-references to other provisions of the APD and the application of other CEAS instruments.
The way forward: recommendations
The European Implementation Assessment makes a number of recommendations to address these shortcomings in future legal and practical arrangements for border procedures:
- Importantly, access to asylum procedures should be ensured at all times and at all external borders of the European Union. EU law should further limit the applicability of the border procedure. The border procedure should only be used following an individual assessment of the circumstances of the case, including an examination of potential special reception and procedural needs.
- The asylum applications of (unaccompanied) children and asylum applicants with special (reception and/or procedural) needs should not be processed in a border procedure. Where EU authorities seek to return an individual to a non-EU country, the safety of such return is to be ensured.
- Adequate funding and training of border guards and appropriate time limits are needed, to ensure that the determining authority is able to gather all necessary information and can take a careful asylum decision. Member States need to collect and transmit statistics on the scope of their border procedure. Independent monitoring, through the creation of an EU asylum monitoring mechanism, should verify the quality of the decision-making process and its outcome, as well as detention conditions and compliance with procedural safeguards.
- Any use of detention, as well as restrictions of free movement, should be mandated by domestic law in compliance with EU legislation on reception conditions for asylum-seekers, and subjected to proportionality assessment in each case, taking alternatives into account. Border detention facilities must be adequate and ensure a dignified standard of living that guarantees subsistence and protects physical and mental health. A decision to detain an applicant or restrict her/his free movement should be subject to a speedy judicial review.
- During a border procedure, applicants for international protection should be entitled to free legal and linguistic assistance by qualified legal advisers and interpreters. Applicants should also be able to communicate with the outside world, in order to gather information about the asylum procedure and, to gather and submit evidence in support of their asylum claim.
- Finally, the time frame allowed should be sufficient to enable applicants to prepare and substantiate their asylum application and to make effective use of all procedural rights granted to them, including those during appeal.