Changes from plenary report to adopted text

RemovedEXPLANATORY STATEMENT

RemovedThe Rapporteur will present hereafter the main reasons for the amendments presented in the report on the proposal for a Regulation of the European Parliament and of the Council introducing a screening of third country nationals at the external borders and amending Regulation 2020/0278 (COD) adopted by the Commission in September 2020.

RemovedIntroduction

RemovedSince the appointment of the Rapporteur on 9 November 2020, several exchanges of views took place, including meetings with the shadow Rapporteurs, as well as meetings with external stakeholders. In addition, a LIBE hearing was organised on 27 May 2021.

RemovedThe Rapporteur shares the overall objective of the Commission to seek to establish quickly the identity of third country nationals, any needs for immediate health care or isolation on public health grounds, vulnerabilities, special reception or procedural needs and potential security risks and refer the persons to the appropriate procedure. The Rapporteur therefore proposes amendments to the Commission’s proposal for a Regulation, in order to create an efficient, speedy procedure, which fully respects fundamental rights and ensures legal certainty and strengthens the fundamental rights monitoring mechanism.

RemovedThe Rapporteur regrets that the Commission did not produce an impact assessment for the proposals, in particular given the potential serious effects on fundamental rights of third-country nationals and the complexity of the migration and asylum system proposed in the New Pact on Migration and Asylum. The Rapporteur would like to express her gratitude to the European Parliamentary Research Service Ex-Ante Impact Assessment Unit and the respective contractors for the work on the horizontal substitute impact assessment on the New Pact on Migration and Asylum. The Rapporteur would also like to express her gratitude to the authors of the study by the European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs.

RemovedMain elements of the draft report

Removed1. The authorisation to enter the territory of a Member State

RemovedThe Commission proposed that during the screening the persons subject to the screening should not be authorised to enter the territory of a Member State despite being physically present on the territory of a Member State, regardless of a potential application for international protection (legal fiction of non-entry). The Commission furthermore suggested that certain elements of the current asylum acquis should only take effect after the screening has concluded.

RemovedThe Rapporteur recalls that in accordance with the existing Asylum Procedure Directive and the proposal for the Asylum Procedure Regulation, applicants for international protection have the right to remain in the Member State pending the examination of the application.

RemovedSeveral stakeholders pointed out that the legal fiction of non-entry would be difficult to apply, in practice, without the comprehensive use of detention or other forms of de-facto detention or deprivation of liberty. Furthermore, the substitute impact assessment concluded, the proposed indiscriminate non-entry policies make compliance with the guarantees of the Reception Conditions Directive and the Return Directive “impossible”.

RemovedRegarding the use of detention, the report introduces amendments to ensure the Reception Conditions Directive also applies mutatis mutandis to non-applicants during the screening.

Removed2. Screening within the territory

RemovedThe Commission proposal included the obligation on Member States to apply the screening also to third-country nationals found within the territory where there is no indication that they have crossed an external border in an authorised manner.

RemovedThe rapporteur considers this requirement disproportionate for both the subject of the screening and the affected Member State. In addition, the substitute impact assessment concluded that Article 77(2)(b) TFEU as the legal basis proposed for the screening does not allow for the proposed measures. Therefore, the Rapporteur deletes Article 5 and all corresponding references.

Removed3. Requirements concerning the screening

RemovedFor the screening, the Commission proposed several requirements and elements for the screening, such as an obligation to conduct the screening at or in proximity to the border; to conclude the screening within five days, extendable once by five days in exceptional circumstances; health checks only in specific cases at the discretion of the competent authorities; vulnerability checks only where relevant; identity and security checks; and the provision of information.

RemovedThe Rapporteur considers that Member States should not be obliged to conduct the screening at or in proximity to the external borders, but should be free to choose any appropriate location within the territory of a Member State.

RemovedIn addition, to identify potential health issues, vulnerabilities or special reception or procedural needs as early as possible and to further contribute to the correct referral to a subsequent procedure, the Rapporteur introduces amendments to include health and vulnerability checks as mandatory elements of the screening. Additionally, the Rapporteur introduces a new article to ensure special guarantees for unaccompanied minors during the screening, in particular the availability of a representative. Lastly, to ensure the effective provision of information, the Rapporteur introduces amendments to strengthen the likelihood of the person concerned understanding the provided information.

Removed4. The monitoring of fundamental rights

RemovedThe Commission proposed to introduce an independent monitoring mechanism to ensure compliance with EU and international law during the screening and that Member States adopt relevant provision to investigate allegations of non-respect for fundamental rights.

RemovedThe Rapporteur explicitly welcomes this proposal by the Commission as a highly relevant and beneficial addition. In order to strengthen the mechanism and to ensure its independence, the Rapporteur widens the scope of the mechanism beyond the screening procedure and introduces an obligation to involve non-governmental institutions and organisations in the mechanism. In accordance with the recommendation made by the European Data Protection Supervisor (EDPS) and due to the collection of a significant amount of data during the screening, the Rapporteur also considers that the mechanism should establish close links with the EDPS and national data protection authorities.

RemovedMoreover, the Rapporteur maintains the obligation on Member States to investigate allegations of non-respect and adds, the mechanism should be able to trigger such investigations and Member States shall provide for penalties for the failure to respect fundamental rights.

Removed5. Outcome of the screening

RemovedIn its proposal the Commission introduced a de-briefing (screening) form on completion of the screening, which includes the relevant collected data. This form should be referred to the relevant authorities responsible for the potential outcomes of the screening.

RemovedThe Rapporteur considers it essential that the subject of the screening receives a copy of the screening form before the transmission to the relevant authorities. Furthermore, the Rapporteur stresses the possibility for the Member States to apply during the screening the derogations on entry conditions for third-country nationals as specified in Article 6(5)(c) of the Schengen Borders Code.

Removed6. Access expansion to IT-databases

RemovedAs part of the identity and security checks, the Commission included in its proposal the possibility to query and access rights for the competent authorities for the screening to the common identity repository (CIR), the Visa Information System (VIS), the Entry/Exit System (EES), and the European Travel Information and Authorisation System (ETIAS).

RemovedThe Rapporteur agrees that to exercise the identification or verification and security checks the relevant databases should be queried, while at the same time considering issues highlighted by the horizontal impact assessment that this expansion may go “beyond the limits foreseen in relation to law enforcement access to EU migration databases”.

RemovedIn short, the Rapporteur is not convinced that the provisions granting blanket access rights to the competent authorities and consultation of all proposed databases are necessary to allow for the screening to be carried out effectively. Thus, a number of those provisions have been amended while retaining access to the Common Identity Repository, which is essential to seek to identify or verify the identity of a third-country national in one go.