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Screening of third country nationals at the external borders

In “Promoting our European Way of Life”

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The Commission's proposal aims to establish a pre-entry screening procedure applicable to third-country nationals who are apprehended crossing the EU external borders irregularly, are disembarked following a search and rescue operation, or apply for international protection at external border crossing points or in transit zones and do not fulfil the entry conditions. The screening shall also apply to third-country nationals found within their territory where there is no indication that they have crossed an external border to enter the territory of the Member States in an authorised manner.

The procedure consists of:

  1. Preliminary health and vulnerability checks
  2. Identification based on information in European databases
  3. Registration of biometric data in the appropriate databases (i.e. fingerprint data and facial image data)
  4. Security check through a query of relevant national and Union databases (via the European search portal)
  5. The filling out of a de-briefing form
  6. Referral to the appropriate procedure.

The screening, which would last up to five days. After the screening, the concerned persons would be directed to the appropriate procedure (asylum or return). Member States should establish an independent monitoring mechanism to ensure the protection of migrants’ fundamental rights.

In the European Parliament, the proposal has been assigned to the Committee on Civil Liberties, Justice and Home Affairs (LIBE). The rapporteur Birgit Sippel (S&D, Germany) issued a draft report on 16 November 2021. The rapporteur proposed changes to ensure that applicants for international protection have the right to enter the territory, in line with the derogations in the Schengen Borders Code, and to remain in the Member State pending the examination of their applications. She opposed the application of the new procedure to third-country nationals found within the territory arguing that this is not covered by Article 77(2)(b) of TFEU. The rapporteur proposed to make health and vulnerability checks mandatory elements of the screening and to strengthen and widen the scope of the monitoring mechanism. She opposed obliging the Member States to conduct the screening at or in proximity to the external borders and rejected granting competent authorities carrying out the screening new access rights to several EU information systems. The LIBE report was adopted in March 2023.

In June 2022, the Council adopted a negotiating mandate based on a compromise seeking to clarify aspects of the proposal and to provide more flexibility for the Member States regarding, for example, the location of screening and the obligation to carry out health checks. In its mandate, the Council maintained that the screening should also apply to persons apprehended on EU territory who have escaped external border controls.

The Parliament and the Council reached a provisional agreement on the proposal in December 2023. The agreed text maintains that the persons subject to screening are not authorised to enter the territory of a Member State. It also maintains that the screening shall apply to third-country nationals staying illegally on their territory unless they are sent back, immediately after apprehension, to another Member State under bilateral agreements or arrangements or under a specific cooperation framework. As for the location of the screening, the text provides that the procedure will be carried out at any adequate and appropriate location designated by each Member State, generally situated at or in proximity to the external borders or, alternatively, in other locations within the territory. The duration of the screening at the external borders was extended from five to seven days. As demanded by the Parliament, third-country nationals subject to the screening who have made an application for international protection should benefit from the common standards defined by the Reception Conditions Directive. Other changes driven by the Parliament include: an explicit reiteration of Member States’ obligations to comply with Union and relevant law, including the principle of non-refoulement and fundamental rights; making the preliminary vulnerability check a mandatory element of the screening; specifying the contents of the screening form and the obligation to make this information available to the subjects of the screening; ensuring effective access to advice and counselling for third-country nationals during the procedure; ensuring that the best interests of the child is a primary consideration throughout the screening; and strengthening the independent monitoring mechanism (power to trigger investigations on substantiated allegations of non-respect of fundamental rights; power to issue annual recommendations; ability to carry out spot checks and announced checks; the need to be equipped with appropriate financial means).

The negotiators from the Parliament and the Council reached a provisional agreement in December 2023. The Parliament adopted the text on 10 April 2024. The Council adopted the act on 15 May. The new regulation was published in the Official Journal on 11 June. It entered into force 20 days after the publication. The new regulation shall apply as of 12 June 2026.

To implement the screening, the Regulation (EU) 2024/1352, adopted in May 2024, amended the regulation on the European criminal records information system – third-country nationals (ECRIS-TCN), and the framework for interoperability between EU information systems in the fields of police and judicial cooperation, asylum and migration.

References:

Author: Costica Dumbrava, Members' Research Service, legislative-train@europarl.europa.eu

Visit the European Parliament homepage on Migration.

As of 20/11/2024.