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STUDY

EPRS | European Parliamentary Research Service

Ex-Post Evaluation Unit

PE 654.201 - November 2020

EN

Asylum

procedures at the border

European

Implementation

Assessment

EPRS | European Parliamentary Research Service

Asylum procedures

at the border

European Implementation Assessment

In April 2020, the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) launched an implementation report on

Article 43 of Directive 2013/32/EU on common procedures for granting and

withdrawing international protection (Asylum Procedures Directive), covering asylum procedures at the border or transit zone of a Member

State. Erik Marquardt (Greens/EFA, Germany) was appointed rapporteur. Implementation reports by European Parliament committees are routinely

accompanied by European Implementation Assessments, drawn up by the Ex-Post Evaluation Unit of the European Parliament's Directorate-General

for Parliamentary Research Services (EPRS). Beyond in-house research, this European Implementation Assessment is based on

two external research papers: i) a legal assessment and ii) a comparative country assessment covering seven Member States. It

assesses the implementation of Article

43 of the Asylum Procedures

Directive on the basis of its effectiveness, fundamental rights - including procedural rights - compliance, efficiency, and coherence with the aims of

the Asylum Procedures Directive and the Common European Asylum

System as a whole. It concludes that uniform and fair asylum procedures at the European Union border have not been achieved due to patchy

implementation also caused by lack of clarity in the underlying EU legal framework. A number of recommendations are made to address the shortcomings identified in future legal and pract ical arrangements for border procedures.

AUTHORS OF THE OPENING ANALYSIS (Part 1)

Dr Wouter van Ballegooij and Dr Katharina Eisele, Ex-Post Evaluation Unit

This paper has been drawn up by the Ex-Post Evaluation Unit of the Directorate for Impact Assessment and

European Added Value, within the Directorate-General for Parliamentary Research Services (EPRS) of the

Secretariat of the European Parliament.

To contact the authors, please email: EPRS-ExPostEvaluation@ep.europa.eu AUTHORS OF THE LEGAL ASSESSMENT (Part 2: Legal assessment of the implementation of Article 43 of Directive 2013/32/EU on common procedures for granting and withdrawing international protection)

This study has been written by Dr Galina Cornelisse and Dr Marcelle Reneman of the Free University of

Amsterdam at the request of the Ex-Post Evaluation Unit of the Directorate for Impact Assessment and

European Added Value, within the Directorate-General for Parliamentary Research Services (EPRS) of the

Secretariat of the European Parliament.

AUTHORS OF THE

COMPARATIVE ASSESSMENT (Part 3: Comparative analysis on the application in practice of Article 43 of Directive 2013/32/EU on common procedures for granting and withdrawing international protection)

This study has been written by Petra Baeyens and Jean David Ott of the European Council on Refugees and

Exiles (ECRE) at the request of the Ex-Post Evaluation Unit of the Directorate for Impact Assessment and

European Added Value, within the Directorate-General for Parliamentary Research Services (EPRS) of the

Secretariat of the European Parliament.

ADMINISTRATOR RESPONSIBLE

Wouter van Ballegooij, Ex-Post Evaluation Unit

To contact the publisher, please e-mail EPRS-ExPostEvaluation@ep.europa.eu

LINGUISTIC VERSIONS

Original: EN

Manuscript completed in November 2020.

DISCLAIMER AND

COPYRIGHT

This document is prepared for, and addressed to, the Members and staff of the European Parliament as

background material to assist them in their parliamentary work. The content of the document is the sole

responsibility of its author(s) and any opinions expressed herein should not be taken to represent an official

position of the Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy.

Brussels © European Union, 2020.

PE 654.201

ISBN: 978-92-846-7453-4

DOI: 10.2861/297815

CAT: QA-02-20-920-EN-N

eprs@ep.europa.eu http://www.eprs.ep.parl.union.eu (intranet) http://www.europarl.europa.eu/thinktank (internet) http://epthinktank.eu (blog)

Asylum procedures at the border

I

Executive summary

European Union Member States have committed themselves to offering protection to those who have to leave their home country to seek safety from persecution or serious harm (see Chapter 1).

The international standard

in the matter is the 1951

Geneva Convention on the protection of

refugees. All Member States are party to the European Convention on Human Rights (ECHR) and therefore subject to the jurisdiction of the European Court of Human Rights (ECtHR). The ECHR contains a number of provisions which are applicable to asylum applicants, notably leading to the prohibition on forcing refugees or asylum-seekers to return to a country in which they are liable to be subjected to torture or to inhuman or degrading treatment or punishment (non-refoulement principle). At EU level, the right to asylum is enshrined in the

EU Charter of Fundamental Rights

(Articles 18 and 19). 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 expressed an intention to apply for international protection on EU territory until the moment the application has been recognised, or rejected upon appeal, at which stage the individual becomes eligible for return. The CEAS in cludes common procedures for granting and withdrawing international protection, laid down in the Asylum Procedures Directive (APD). 1

The main aim of the

APD is for every person in need of international protection to have access to a legally safe and efficient procedure and to an individual examination of their claim according to equal standards. 2 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 for the possibility to apply border procedures in transit zones or in proximity to borders in the event of large numbers of arrivals. The APD was to be transposed into national law by 20 July 2015. While Article 50 of the APD provides for regular reporting, the European Commission has yet to publish an implementation report. Several pieces of information are available from the UN High Commissioner for Refugees, 3

Council

of Europe, 4

European Migration Network (EMN),

5

European Asylum Support Office (EASO),

6 European Union Agency for Fundamental Rights (FRA), 7 non-governmental organisations and academic research. Based on these sources, it is clear that only some Member States apply the border procedure in law and/or fact. At the same time , among those that do apply the border procedure, national practices regarding the scope, time limits, use of detention and procedural guarantees accorded to applicants diverge widely. The quality and fundamental rights compliance of decisions taken in those Member States which have seen a high influx of applicants has been

particularly criticised. In the meantime, the Commission tabled a proposal for a reform of the APD in

2016, which envisaged its transformation into a regulation, to bring a higher level of harmonisation

1

Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting

and withdrawing international protection, OJ L 180, 29 June 2013, p. 60-95. 2

APD, recital 8; European Parliament, Policy Department for Citizens' Rights and Constitutional Affairs study on The

Implementation of the Common European Asylum System, May 2016, p. 70. 3

UNHCR website.

4 Council of Europe, European Court of Human Rights, Commissioner for Human Rights. 5

European Migration Network website.

6

Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European

Asylum Support Office, OJ L 132, 29 May 2010, p. 11-28. 7

Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights

OJ L 53/1 of 22 February 2007.

EPRS | European Parliamentary Research Service

II among the Member States. 8 At that time, no European Commission impact assessment of the APD was provided. As interinstitutional agreement could not be reached on this proposal, 9 the

Commission decided to amend it

10 as part of the Pact on Migration and Asylum, 11 put forward in September 2020. Again, no Commission impact assessment was provided. Meanwhile, the European Parliament commenced work on an implementation report, focused specifically on Article 43 of the APD. In April 2020, the European Parliament's Committee on Civil

Liberties, Justice and Home Affairs (LIBE)

appointed Erik Marquardt (Greens/EFA, Germany) as rapporteur. 12 Implementation reports by European Parliament committees are routinely accompanied by European Implementation Assessments, drawn up by the Ex-Post Evaluation Unit of the European Parliament's Directorate-General for Parliamentary Research Services (EPRS). This European Implementation Assessment (EIA) was carried out by means of desk research, relying primarily on international and EU institutional sources as well as contributions from practitioners, academics and non-governmental organisations (NGOs). In addition, this EIA is based on two external research papers: i) a legal assessment and ii) a comparative country assessment covering seven Member States. It assesses the implementation of Article

43 of the Asylum Procedures

Directive on the basis of its effectiveness, fundamental rights - including procedural rights - compliance, efficiency, and coherence with the aims of the APD and the CEAS as a whole. On this basis, the EIA puts forward recommendations regarding future legal and practical arrangements at sea, land and air borders, their scope (on admissibility and/or on the substance) and length of procedures, exemptions, the applicable fundamental rights and procedural safeguards, the

treatment of minors and how to deal with large numbers of arrivals. To finalise this EIA between July

and October 2020, the EIA focuses on the most pertinent issues and is limited to the analysis of seven

Member States. It should be noted that the EIA was performed under several constraints, including the lack of comprehensive data, the lack of a Commission evaluation of the transposition and application of the APD, and the lack of Commission impact assessments of its subsequent proposals on the matter. On the basis of the in-house research and externalised research papers mentioned above, conclusions are drawn regarding the implementation of

Article 43 APD (see Chapter 2). In terms of

effectivene ss, as previously mentioned, the APD aims at achieving uniformity in procedures across the EU. However, important differences remain between Member States with regard to the concept and scope of the border procedure, accompanying restrictions of liberty and procedural guarantees. On the one hand, EU legislation leaves Member States too much discretion in these areas. On the other hand, it is not properly evaluated by the Commission in cooperation with EASO and the FRA on the basis of the practical situation on the ground, nor comprehen sively enforced by the Commission despite clearly identified violations, of the right to liberty, the prohibition of refoulement, t he right to asylum and the right to an effective remedy. Infringement procedures have been launched against certain Member States for non-compliance with various aspects of the APD, 8

European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing a common

procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2016) 0467.

9

2016/0224(COD), Common procedure for international protection in the Union.

10

European Commission, Amended proposal for a Regulation establishing a common procedure for international

protection in the Union and repealing Directive 2013/32/EU,

COM(2020) 611

of 23 September 2020. 11 Communication from the Commission on a New Pact on Migration and Asylu m, COM(2020) 609 final of

23 September 2020.

12

Implementation report on Article 43 of Directive 2013/32/EU on common procedures for granting and withdrawing

international protection, 2020/2047(INI) ; Draft report on the implementation of Article 43 of Directive 2013/32/EU of the

European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing

international protection (

2020/2047(INI)) of 22 October 2020.

Asylum procedures at the border

III but not against other countries with reported violations. Moreover, infringement procedures take time, during which certain Member States have continued to violate the asylum acquis. This touches upon more general problems with the lack of compliance with EU values in a number of Member States and the need to strengthen the EU's toolbox in this regard. The main fundamental rights affected by the border procedure are the prohibition of torture and inhuman or degrading treatment or punishment (Article 4 EU Charter), the right to liberty and

security (Article 6 EU Charter), the right to asylum (Article 18 EU Charter), protection in the event of

removal, expulsion or extradition (Article 19 EU Charter), the rights of the child (Article 24 EU Charter) and the right to an effective remedy (Article

47 EU Charter), as well as the freedom of

movement and prohibition of collective expulsions (Articles 2 and 4 of Protocol No 4 to the ECHR). 13 In addition, specific principles and procedural guarantees for applicants have been laid down in Chapter II of the APD. The systematic and extended use of (de facto) detention in the context of border procedures is not in line with the right to liberty enshrined in Article 6 of the EU Charter.

Procedural guarantees provided for in the APD, in particular the right to information, legal assistance

and interpretation, are not or only restrictively applied in practice. Vulnerable applicants, including

unaccompanied minors, contin ue to be subject to border procedures and held in detention

facilities, raising questions as regards compliance with Article 24(2) of the EU Charter. The short time

limits to lodge and decide on appeals, the lack of suspensive effect of appeals in certain countries,

as well as the difficult access to quality legal aid, raise concerns as to compliance with Article 47 of

the EU Charter. The difficulty in accessing the territory and the asylum procedure, as well as the use

of the fiction of non-entry in the context of border procedures, may in certain circumstances undermine the right to asylum under Article 18 of the EU Charter, the principle of non-refoulement under Article 19 of the EU Charter, and the right to an effective remedy under Article 47 of the EU

Charter.

An assessment of the efficiency of the border procedure is difficult to make in the absence of a full

picture of the exact financial costs of operation of such procedures. Related studies suggest, however, that the costs of border management and control are significant, as a result of which the costs of the implementation of Article 43 APD may also be considerable and probably disproportionate, given that its objectives are not being achieved. Beyond administrative costs, border procedures entail significant human cost for the individuals affected by its application. The studies also suggest that asylum-seekers subject to border procedures are exposed to the harmful effects of deprivation of liberty in inadequate border detention facilities. They furthermore suffer due to their limited access to information and legal representation throughout the border procedure. Efficiency may further be affected in the case of a high influx of applicants.

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. In particular, it is unclear whether an assessment under the D ublin procedure may also take place when an application is lodged under the border procedure. Furthermore, the APD is fraught with ambiguity with regard to the applicable reception regime of applicants under a border procedure. Neither the APD nor the recast

Reception Conditions

Directive 2013/33/EU (RCD) provide guidance to Member States as to where and under which conditions asylum applicants can be accommodated. On the basis of the research conducted, this EIA puts forward a number of recommendations as regards future legal and practical arrangements for asylum procedures at the border and in transit 13

See also FRA, Migration: Key Fundamental Rights Concerns - Quarterly Bulletin 4, 2020; as well as J. Bast et al., Human

rights challenges to European migration policy, REMAP study of 27 October 2020, in which the authors also analyse non-

discrimination.

EPRS | European Parliamentary Research Service

IV zones (see Chapter 3). The recommendations are mainly taken from the two external research

papers, which are reproduced in full in Part 2 and Part 3 of this EIA. As pointed out by both external

research papers, it should be noted that some shortcomings are inherent to the legal framework; more effective implementation alone will not resolve the problems. Importantly, access to asylum procedures should be ensured at all times and at all external borders of the European Union. Push backs at the external and internal borders of the Member States should be prohib ited. The border procedure should be clearly defined in EU law as a procedure in which asylum-seekers have not been granted entry to the territory. It should also be made clear in EU law that, as a general rule, border procedures may not be used at internal borders. EU law should further limit the applicability of border procedure. The border procedure should only be resorted to following an individual assessment of the circumstances of the case, including an examination of potential special reception and procedural

needs. In case of a return to the country of origin or transit, the safety of such return is to be ensured.

The asylum applications of (unaccompanied) children and asylum applicants with special (reception and/or procedural) needs should not be processed in a border procedure. Border procedures may be used to take decisions under the Dublin Regulation, but only if there is a significant risk of absconding, in accordance with Article 28 of the Dublin Regulation. The border procedure may be made more effective through adequate funding, training of border management personnel - who have to adhere to fundamental rights in their daily operational work, 14 and appropriate time limits 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 procedures.quotesdbs_dbs29.pdfusesText_35

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