12 May 2023

Trading Rights for Responsibility

On 24 April 2023 a revised compromise text of the Asylum Procedures Regulation (APR) was published. The Draft Regulation forms part of the EU’s ongoing attempt to overhaul its asylum system, whose purported goal is to strengthen its external borders by increasing responsibility of first-entry states. Central to this has been the attempted mainstreaming of so-called border procedures: asylum processing that occurs in border places such as islands, airports, transit zones, or land border areas while the third-country national is denied entry into the territory. Border procedures are currently regulated in the recast Asylum Procedures Directive and are so far widely implemented by EU states. In the negotiation process on the proposed APR, their regulation remains a controversial issue. Central EU countries seek to make the use of border procedures obligatory to prevent the onwards or  ‘secondary’ movement of asylum-seekers. Southern EU states oppose this, given that their implementation would place a further strain on their resources and overburden their capacities for processing asylum claims. The new compromise text attempts to resolve this controversy, by making concessions to both sides. Thus, it proposes to render border procedures mandatory in some cases, while also permitting first-entry states to derogate from them once their “adequate capacity” is reached. Against this backdrop, this blogpost will first explain the problems with border procedures, review their role in increasing responsibility of first-entry states, and explain why the new compromise Draft is unlikely to resolve the disagreement between first-entry states and other Members States.

The Problem with Border Procedures

The new Pact on Migration and Asylum presented by the EU Commission in 2020 aimed to establish a better governance of migration and asylum management. It proposed, inter alia, a new flexible solidarity system that can address challenges in situations of migratory pressure, and an extended use of mandatory border procedures. While the former is designed to bring a balance between solidarity and shared responsibility, the latter is meant to speed up asylum and return procedures at the border, prevent asylum-seekers from onwards movement, and permit first-entry states to return more asylum seekers at a faster pace.

Central to this is the ‘non-entry’ fiction that border procedures deploy and a resulting reduction in procedural safeguards in the context of asylum processing. Thus, asylum-seekers applying at first-entry points will have their asylum claims examined while being treated as if they had not entered the territory of a EU member state (Article 41 APR). In other words, despite the fact of an asylum applicant’s territorial presence, the border procedure mechanism permits Member States to treat them as if they weren’t. This legal fiction of ‘non-entry’ has served to legitimize and normalize the reduced rights granted to asylum-seekers subject to border procedures.

For one, the requirement that asylum applicants be prevented from territorial entry leads to increased use of detention or de facto detention. The compromise text does not oppose the use of detention for the purpose of asylum processing at the border, and in fact explicitly allows it once an asylum applicant is in a return border procedure (Article 41h). Moreover, the same provision states that those who have been detained during the asylum border procedure (implying that detention is actually allowed in the context of asylum border procedures) and who no longer have a right to remain, may continue to be detained for the purpose of preventing entry into the territory. Thus, detention may be imposed in the context of border procedures to prevent entry into the territory and contain asylum-seekers at the borders. It is also important to highlight here that in the 2018 provisional agreement on the revised Reception Conditions Directive (RCD), it is explicitly mentioned that an applicant for international protection may be detained in the context of a border procedure (Article 8 (3) (d) RCD).

Moreover, in border procedures, procedural guarantees inherent to the right to asylum such as the right to information and to legal and linguistic assistance are limited. This is mainly because of the location in which border procedures are taking place, which is usually in detention or de facto detention where access of lawyers and other actors is frequently restricted. Also, the time-limits for decision-making as well as for lodging an appeal (which is a maximum of 12 weeks) may seriously impact the quality of asylum decisions as the applicants will not have enough time to substantiate their asylum claims. In addition to this, the appeal lodged in the border procedure will not have an automatic suspensive effect (Article 54 APR) which may undermine the protection from refoulement.

Border Procedures as a Responsibility Mechanism

According to the Commission, the increased availability of border procedures will result in strengthened responsibility of the first-entry Member States. By rendering asylum processing less cumbersome and removal faster and more efficient, the hope is that they will be more willing to contain asylum-seekers at the borders to prevent them from moving onwards in Europe. In exchange, more solidarity will be offered to first-entry states, which will nonetheless be flexible in kind. Thus, while Member States should assist each other when faced with large inflows, they should have flexibility in choosing how to.

Negotiations on the APR have been on-going since 2016. The most difficult and divisive question throughout has been whether the application of border procedures should be optional or mandatory. The 2016 proposal had opted for their optional use. The 2020 amended proposal for an APR brought some changes, as it expands the personal (to whom) and material (in which cases) scope of border procedures. In particular, it seeks to apply border procedures to third-country nationals following an application either made at an external crossing point, after a search and rescue operation, or following apprehension in connection with an unauthorized crossing of the external borders (Article 41 APR). Border procedures will apply after the screening process ends (pursuant to a proposal for a Screening Regulation), another novel procedure introduced through the EU Pact. Driven by the Commission’s goal to enhance controls at the external borders, it is aimed at the early identification and registration of third-country nationals at the borders that do not fulfill the entry conditions. Further, the APR stipulated that border procedures may apply for specific reasons (Article 41a APR) which were also envisaged in the recast APD (Article 43) such as: when the applicant comes from a safe country of origin, when there are grounds to consider that a third country is a safe third country for the applicant or when the application is ‘abusive’ to delay or frustrate the enforcement of the applicant’s removal (i.e. present false information, destroy identity documents).

Reading the text of the APR in conjunction with the compromise text on the Asylum and Migration Management Regulation (AMMR), it is evident that some EU member states consider mandatory border procedures an essential element of the Pact to balance solidarity and responsibility. The new compromise text reflects this. Thus, it goes further than the 2020 draft by mandating this time the use of the asylum border procedures when the applicant misleads the authorities, when he or she is considered a danger to the national security or public order, and when the applicant is of a nationality for which the EU recognition rate is 20%, or lower (Article 41b). While there have been many discussions in the Council on the maximum nationality recognition rate threshold, the compromise text insists on the 20% threshold for the compulsory implementation of border procedures. The justification by the Commission is that the threshold will serve as a basis for identifying applications that have low prospects of being granted international protection and can be rapidly processed within the time-limits of the border procedure.

Overall, the recently published compromise text insists on the extensive and obligatory use of border procedures as the most appropriate way to ensure responsibility and prevent ‘secondary’ movements. Yet,  first-entry European member states have opposed the use of mandatory border procedures, emphasizing that the principle of compulsory border procedures must be revised. They explicitly mention that: ‘Whether or not to apply border procedures, should remain a prerogative of frontline Member States, that are best placed to decide if a procedure is feasible given their specific circumstances’. The obligatory use of border procedures may lead to large numbers of arrivals staying in the border areas of the states (such as islands) and this may pave the way to undesirable effects at the EU’s external borders.

The Introduction of the ‘Adequate Capacity’ Standard

To resolve the enduring disagreement on the use of border procedures, the Czech Presidency proposed, and the Swedish Presidency actually supported, a mandatory but adaptable border procedure to accommodate the interests of Southern EU states; an approach that is also reflected in the new compromise text. Thus, Articles 41ba to 41be of the new draft grants member states discretion to derogate from applying border procedures when their “adequate capacity” is about to be reached or is reached.

The text refers to two different ‘adequate capacity’ levels: the Union’s, and those of Member States’. The Article that refers to the Union’s capacity level (Article 41ba) does not yet specify how this will be determined. The next provision, Article 41bb, stipulates that the ‘adequate capacity’ of a Member State will be based on the EU’s overall adequate capacity divided by each Member State’s share of irregular arrivals and disembarkations after search and rescue. The procedure of estimating a state’s ‘adequate capacity’ level is complicated, and it is based solely on numerical factors, and not on the specific characteristics of arrivals or the capacity in the first-entry countries such as the available personnel and existing infrastructure. Thus, it is expected that border states will try to reduce the number of arrivals to have a smaller number of ‘adequate capacity’ so as to be able to derogate more easily from the provisions on the obligatory use of border procedures.

It is worth mentioning here that the previous compromise text on the APR (February 2023) referred to the possibility to derogate only in cases when ‘adequate capacity’ is reached, while frontline states insisted on introducing the adaptable border procedure also in cases ‘adequate capacity’ is about to be reached. As a result, the current Draft includes two different provisions: one that concerns applicable measures in case the adequate capacity is reached (Article 41bd), and another that concerns the cases that the adequate capacity is about to be reached (Article 41bc). This discretionary judgment (about to be reached) expands the discretion of states to decide on the applicability of border procedures. When ‘adequate capacity’ is about to be reached, ie when the number of asylum applicants in border procedures is equal to 75% of the number set out in respect of a specific Member State, then the average nationality recognition rate of the asylum applicants that should be examined in a border procedure falls to 5% (instead of 20% that is applicable in normal situations). In the second case, when  ‘adequate capacity’ is reached (Article 41bd), then the Commission will be notified and it will have to examine if the state is identified as being under a migratory pressure according to the Asylum and Migration Management Regulation (AMMR). In such case, states will be able to derogate from the provisions that mandate the use of border procedures, and e.g. choose to refer asylum-seekers in regular asylum procedures or transfer them within the territory.

Agreement at Any Cost?

The introduction of the concept of ‘adequate capacity’ is designed to render the prescribed use of border procedures cognizant to the needs and migratory pressures on first-entry states. Yet, the envisioned adaptability of border procedures might not be the magic-bullet solution that it is believed to be to resolve the disagreement between Member States. The compromise text mainstreams border procedures by extending their scope of application and making them obligatory in some cases. To balance this, it gives the possibility to states to derogate from obligatory border procedures once the ‘adequate capacity’ is reached. However, it is not explained how the possibility to derogate from EU law in certain cases that are based solely on numerical factors will benefit first-entry states. Also, the provisions that regulate the ‘adequate capacity’ level suffer from vagueness and complexity such that their implementation will be difficult in practice.

To the contrary, if the APR is adopted as such the legal uncertainty and complexity it creates might exacerbate existing deficiencies in the EU’s system of responsibility sharing. Thus, any mandatory requirement for EU border states to widely deploy border procedures continues to impose the main administrative and fiscal burdens of the EU’s asylum processing system on first-entry states. In light of this, the possibility to derogate from these provisions and the potential activation of the flexible solidarity mechanism when they are determined to be under migratory pressure according to a vague procedure might not be enough to ensure their buy in.