Written by Anita Orav with Nefeli Barlaoura.
The fiction of ‘non-entry’ is a claim that states use in border management to deny the legal arrival of third-country nationals on their territory, regardless of their physical presence, until granted entry by a border or immigration officer. It is usually applied in transit zones at international airports between arrival gates and passport control, signifying that the persons who have arrived have not yet entered the territory of the destination country. Although physically present, they are not considered to have legally entered the state’s official territory until they have undergone the necessary clearance.
In the EU, all Member States make use of the fiction of non-entry in transit zones at ports of entry, but usually in a non-asylum context. In 2018, Germany was one of the first countries to extend this concept to include land crossings. Since the mass arrival of asylum-seekers in 2015-2016, other EU Member States have also increasingly looked into ways of using this claim to inhibit asylum-seekers’ entry to their territory and thereby avoid the obligation under international law to provide asylum-seekers with certain protection and aid. This, however, may lead to a risk of refoulement, as the fiction of non-entry limits asylum-seekers’ mobility and access to rights and procedures, including the asylum procedure.
The Screening Regulation is a legislative measure proposed as part of the EU’s New Pact on Migration and Asylum, which aims to establish a pre-entry screening procedure applicable to third-country nationals before they are authorised to enter the territory. The use of the fiction of non-entry in EU legislation raises several concerns, such as the responsibility of the Member States, the asylum-seekers’ restricted access to rights, the use of detention, and possible violations of human rights.
Read the complete briefing on ‘Legal fiction of non-entry in EU asylum policy: Implications of the new Screening Regulation‘ in the Think Tank pages of the European Parliament.
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