The New Pact on Migration and Asylum (part two): First Reception

For a variety of reasons, ranging from a lack of infrastructure to confusingly different procedures between Member States, the system of migrant reception has long been a weak point in the organization of the Union’s response to migration influxes, resulting in an inefficient system for dealing with migratory pressure in its early stages. Such a fundamental flaw, which caused additional disturbance during the stages of granting asylum, relocating, or returning, necessitated immediate correction.

Following the chain of reception, the Commission’s initial suggestion was to implement additional mandatory and universal pre-entry screening criteria, including identification, health, and security checks, as well as fingerprints and registration in the Eurodac database. This idea goes hand in hand with the Eurodac database change.

The Regulation introducing screening of third-country citizens at external borders, which amends Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240, and (EU) 2019/817, is the legislative proposal governing the topic. The need for an update stems from the need to ensure that the Schengen Borders Code, and, more broadly, Article 77 of the TFEU, are duly respected in situations where third-country nationals manage to avoid border checks at external borders, or where third-country nationals are disembarked following search and rescue operations, or where third-country nationals request international protection at a border crossing point despite not meeting entry conditions (Article 2 and Article 3).

This legal option, as outlined in Article 1, should then be used both at the Union’s exterior borders and within the Union if the third-country national has not been screened upon arrival (Article 5). Following this logic, all third-country nationals should have their fingerprints gathered in accordance with the Eurodac Regulation. Persons authorized to enter under the derogations referred to in Article 6(5) of the Schengen Borders Code are exempt from this requirement. Asylum seekers will not be permitted to enter the territory of the Member State until the screening procedures have been completed and all required conditions have been met (Article 5). Screening procedures will therefore take five days, unless the individual has been held at the border for three days, in which case screening procedures should take two days, or if the person has been captured within the territory, in which case screening procedures will also take two days (Article 6).

These procedures shall be carried out by competent personnel chosen by Member States with the support of the EU Agency for Asylum if necessary, and should involve these compulsory steps: preliminary health and vulnerability check (Article 9), identification  (Article 10), registration of biometric data in the Eurodac databases (Article 14(6)), security check (Article 11), the filling out of a de-briefing form (Article 13) and the referral to the appropriate procedure: asylum request, relocation or return (Article 14).

Third-country nationals should have the right to know the substance of the screening procedures and their implications throughout (Article 8), as well as have their fundamental rights respected at all times (Article 7).

The Regulation then appears to lay out the required legislative mechanisms to ensure that the processes aimed at verifying the migrant’s status and then directing them to the relevant procedure (asylum request, return, or relocation) are rapidly expedited.

However, the procedures envisioned in the proposal appear to be impractical, not only because the screening durations are regarded to be too short, but also because the buildings to carry out the operation at the borders are either insufficient in capacity or non-existent. These issues compound the difficulty of where to house migrants awaiting screening, as the proposed regulation does not address (let alone solve) the issue of detention. Such carelessness, which is rather typical in all European legislation addressing migration, is especially problematic when it comes to questions of human rights protection.

After reforming the screening procedures, the Commission suggested an update to the Eurodac Database in order to improve the organization of all data acquired at the border.

Since its inception in 2000, the database’s principal purpose has been to aid in the identification of migrants using biometric features in order to better identify which State would grant asylum. The Regulations specifying the modalities and scope of the Eurodac’s application have been continually reformed over time, beginning with the original version in 2013 and progressing to an updated version in 2015 and 2016, with final revisions implemented in 2020.

The most important reform was carried out in 2016, as it clearly lay the basis for Eurodac’s involvement in implementing the Dublin system. Following the major rationale for the transition to Asylum Management Regulation (AMR), which was enhanced efficiency in migration regulation, the Eurodac system was also modified.

The starting point for enhancing Eurodac’s operating capacity was already accomplished through discussions concluded in 2016 and consistent primarily in counting the number of asylum seekers rather than the number of asylum applications (Article 4, para. 6). This will ensure that there are no misunderstandings about the actual number of people seeking protection on Union territory right now. Furthermore, to ensure that true statistics tracing the entire asylum-granting process are available, Eurodac data, along with data from ETIAS, VIS, and the Entry-Exit system, will be made available to the eu-LISA for research purposes (Article 9).

To ensure consistency with the AMR, new annexes are added to the 2020 proposal. The first requirement is to introduce a new category in the database to indicate which persons were allowed entry into Union territory following Search and Rescue Operations, a category that is now distinguished from asylum seekers and irregular migrants. This distinction was created in accordance with the International Convention on Maritime Search and Rescue. Despite the fact that the rules for responsibilities are the same as those for irregular migrants, because they enter the territory of a Member State through undefined border crossings, the separate category will help to provide a clearer picture of migration flows at the European level (Article 14(a)). The time constraints for updating data in the system are then made compliant with the Screening Regulation (Article 10).

Revised kinds of data should be added to the database in compliance with the AMR’s new responsibility requirements. These include whether an asylum application was rejected or whether voluntary return and reintegration assistance (AVRR) was granted, whether the individual poses a security risk, cases in which the applicant was issued a visa and the Member State that issued or extended it, and finally when responsibility was transferred to another Member State or responsibility ended (Article 11). The most contentious revision to the proposal, however, concerns the data to be collected, as it is now required to capture a migrant’s facial image, in addition to fingerprints and other personal data. Furthermore, data collection will be mandatory for all people over the age of six, a reduction from the previous restriction of fourteen years (Article 13).

The main preoccupations raised as a result of such reforms are then mostly related to issues concerning the safeguarding of fundamental rights. Not only does the database contain a massive quantity of data, but there are numerous concerns about the level of permission with such data is gathered, as well as the accessibility of that data, especially because there are photographs and fingerprints of youngsters as young as six. The European Data Protection Supervision and Member States continue to have oversight over data use, although it is feared that its control function has not been strengthened sufficiently in light of new developments.

Following the aim of a consistent reform of the Screening Regulation, gaining comprehensive knowledge of all individuals entering the Union’s territory, it was required to ensure that all migrants will benefit from humane conditions through Member States. In this sense, the Reception Conditions Directive was intended to establish uniform standards across the Union. Its main goal was to ensure that applicants had access to shelter, food, clothes, healthcare, education, and job, with a special focus on the vulnerable. Such a concept also assures that detention is avoided and that there are feasible alternatives that ensure human rights are respected. The modification of such Directive then keeps such ideas intact while also making an extra effort to guarantee that there are harmonized requirements at the European level. An additional reception goal is therefore described as strengthening migrant self-sufficiency and the integrating process.

The primary differences in the newly recast version of the original Directive can therefore be stated as follows. The directive’s scope is reiterated once more as granting material reception conditions to all applicants for asylum who stay in the Member States in which they have submitted their claim. Benefits should also be granted to family members, who are defined in Article 2(3) as any person who has relations with the asylum seekers, including those created outside the State of origin. Special procedures are envisioned for persons with special needs and minors (Article 21 and Article 23). However, if the migrant moves illegally to another Member State, he is ineligible for the benefits. Nevertheless, there is still a need to provide dignified living conditions for all migrants on Union territory in accordance with basic human rights principles (Articles 17(a)). Such requirements should also apply where a Member State decides to diverge from the Directive’s provisions due to extraordinary circumstances as defined in Article 17(9).

Reception standards can eventually be applied only if the asylum seeker remains on the territory of the Member State that initially admitted them, even if they have the option of migrating within it (Article 7(1)).

In any case, applicants should be notified of the prerequisites that will allow them to benefit from the reception conditions as per Article 5 of the Directive.

To ensure that reception conditions are assigned fairly, new rules are being proposed to define the concept of absconding or risk of absconding: this is defined as any action to avoid the applicable asylum procedures and the factual circumstance of not remaining available to the relevant authorities to complete the procedures to obtain protection (Article 2(10)). In this case, upon return to the original Member State, a designated residence in the form of an accommodation centre, a private house, flat, hotel, or other premises appropriate for housing applicants should be selected (Article 7).  If the applicant violates the condition of residing in the given location, he or she may be detained (Article 8(3), para. C).

Such detention, however, should be the result of an individual evaluation, be consistent with the principles of fair treatment, and be used only when no other options are available.

Housing, food, clothing, and other needed non-food goods (such as sanitary products) are thus classified as reception conditions (Article 2 (7)). These benefits cannot be lowered or eliminated, unless in extraordinary circumstances such as repeated violations of accommodation regulations, failure to register upon admission, or absconding, and must be offered in material or monetary form (Article 19).

Furthermore, the new Directive includes particular provisions to supplement receiving circumstances with labour-force integration. According to the new limits for granting asylum set out in the Asylum Procedures Regulation, the migrant’s integration into the labor market should commence no later than six months after filing an application for international protection (Article 15).

Given the importance of labour in integration, the introduction to the job market can be anticipated by three months if the application has a good probability of being granted. The opposite obviously applies in case the applicant is likely to be rejected or the application is being examined through an accelerated procedure.

Once access to the labour market is allowed, it must be ensured that it is effective, that migrants have the same rights as nationals of the Member State in concern, and that extra care is taken to ensure that working conditions are humane and retribution is fair. Applicants should be allowed the rights to freedom of association and affiliation, education and vocational training, professional qualification recognition, and social security as part of this proposal (including unemployment and family benefits).

Because the legislative instrument of choice is a Directive, which leaves room for Member States to implement its contents, the Commission envisaged a further tool to assure real Union-wide consistency in reception. In fact, the newly formed European Union Agency for Asylum should be given a key role, as outlined in this proposal. The agency, along with all relevant stakeholders, is vested with a guidance role in order to serve a dual function: at a policy level, it should support the development of reception measures, while at an operational level, its contributions can be used by reception authorities to implement facility planning and staff training.

These two proposals, the Regulation introducing screening of third-country citizens at external borders and the Reception Conditions Directive, allow for the establishment of a sufficiently uniform foundation for the conduct of asylum processes, which have also been subject to reform, as discussed in the following article.