The European Parliament voted with a broad and cross-party majority in favour of my report on border procedures at the EU's external borders voted in favour. The demand is that fundamental and human rights be respected in asylum procedures and that compliance be monitored.
The European Parliament is thus showing its stance in the face of increasing restrictions on fundamental and human rights at the EU's external borders. It is a great success that a broad cross-party majority has found a compromise and is showing the will to find common solutions even on difficult issues. The broad cross-party majority calls for fundamental and human rights to be respected in asylum procedures and for compliance to be monitored. MEPs condemn illegal pushbacksand are concerned about the great lack of information, legal aid and support for protection seekers in border procedures and denied access of civil society organisations.
I welcome the fact that the vast majority of Members support our call for independent monitoring of the human rights situation at external borders. In all the Member States surveyed, people have been detained in border procedures, although detention on grounds of origin or on the basis of the asylum application is inadmissible. We call for fundamental and human rights to be put back at the heart of the asylum system.
Problems with border procedures
Boundary procedure means that EU member states examine the asylum applications of people seeking protection directly at their own borders and detain them there for the time being. In concrete terms, this practice leads to a situation like on the Greek islands, where people are sometimes stuck for years because their applications are simply not examined. Because of such conditions, the border procedures are also extremely controversial.
In current binding EU law, Member States can apply border procedures in a limited number of cases. The European Commission has now proposed mandatory border procedures in its recently published proposal for a new Pact on Asylum and Migration. The Commission wants to establish asylum applications at the EU's external borders as a new standard.
Although the EU Commission wants to expand border procedures, it has never evaluated how border procedures are currently implemented. The study commissioned by the European Parliament, which provides the factual basis for this report, shows that border procedures do not currently contribute to the proper screening of asylum applications.
Findings of the report
When an asylum application is lodged at the border or in a transit zone, current EU law allows Member States to examine the application in these places under certain conditions. However, the study found that the term „border procedure“ is insufficiently and imprecisely defined in EU asylum law. This leads to different practices in the Member States examined, but similar problems arise everywhere vis-à-vis applicants in the examination of protection claims in border procedures. Border procedures are of particular concern with regard to their impact on fundamental rights and procedural guarantees.
Under EU law, people must be given the opportunity to apply for asylum at the border. However, at many of the EU's external borders, there are cases where persons seeking protection are refused entry or returned without their application being examined and asylum claims registered.
In their application, border procedures are often based on the legal fiction of non-entry. This has serious consequences for asylum seekers, as they are often denied entry for the duration of the border procedure. (de facto) be taken into detention. Such detention in some cases occurs without Member States categorising the stay in the border procedure as detention, so that asylum seekers detained in a border procedure do not even have access to basic procedural guarantees, while conditions at the borders are often inadequate.
Applicants should have the right under international and EU law to enter the territory of the Member State and not be detained for the sole reason that they wish to make an asylum application. If detention occurs, it must always be as short as possible and based on an individual judicial assessment as to its necessity, with the right to appeal.
In the case of large numbers of arrivals, such as on the Greek islands, these border procedures amount to inhumane conditions to which applicants are subjected over a long period of time.
No adequate protection of vulnerable persons
It is also worrying that Member States do not have adequate mechanisms in place to identify unaccompanied minors, children and persons with special needs in order to exempt them from the border procedure. Research shows that all countries surveyed lack adequate and effective mechanisms to identify those in need of protection. This can also be traumatising, particularly for children, and raises serious questions about compliance with the best interests of the child. Furthermore, the reports describe significant problems with procedural safeguards in all Member States examined, which are contrary to EU law.
Applicants must be informed about their right to apply for international protection and about the different steps of the procedure, and they must be granted effective access to organisations and persons that support them. This is lacking in practice, although many Member States provide for the right to free legal assistance and access for civil society in national law. Short time limits and (de facto) detention often prevent effective access to legal aid. Asylum seekers are unable to contact a lawyer due to a lack of communication tools, insufficient time given to lawyers to prepare, or a complete lack of qualified lawyers. Non-governmental organisations often cannot fill the gap because they have limited or no access to facilities at the borders. Often there are no interpreters available.
Dilemma of border procedures
Border procedures are characterised by the dilemma of insufficient time for a fair procedure and the need to minimise time by detaining applicants. They therefore do not contribute to the objectives of the Asylum Procedures Directive, which aims to grant people international protection in a fair and expeditious procedure.
Therefore, Member States should not be obliged to apply border procedures as a standard procedure for examining asylum applications, as on the one hand they cannot ensure a fair procedure and on the other hand they often violate the fundamental rights of applicants by detaining them for long periods of time. Exceptions where the border procedure can be used to examine asylum applications should be in a limited number of simple cases, e.g. where applicants have already been granted international protection in another (Member) State.