Changes from report parliamentary committee draft to plenary report

EXPLANATORY STATEMENT

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ChangedThe Rapporteur will present hereafter the main reasons for the amendments presented in the draft 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.

Introduction

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

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The 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.

The 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.

Main elements of the draft report

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

The 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.

Change 80

ChangedThe 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. Thus, the Rapporteur introduces a reference to this end. In addition, to allow applicants for international protection to make effective use of the right to remain, the Rapporteur introduces a right for those persons to enter the territory, in line with the derogations in the Schengen Borders Code allowed for asylum seekers.

Change 81

ChangedIn addition, severalSeveral 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”.

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ChangedTo ensure compliance with the current asylum acquis, in particular regardingRegarding the use of detention, the Rapporteurreport introduces amendments to ensure the Reception Conditions Directive applies in the screening from thealso momentapplies anmutatis applicationmutandis forto internationalnon-applicants protectionduring isthe made.screening.

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2. Screening within the territory

The 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.

The 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.

3. Requirements concerning the screening

For 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.

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ChangedThe 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. Several stakeholders highlighted practical difficulties in concluding all parts of the screening within five or even ten days. Therefore, the rapporteur deletes the possibility to extend the screening, which should also contribute to the swift referral to the appropriate subsequent procedure, in which to outstanding checks can be completed.

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In 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.

4. The monitoring of fundamental rights

The 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.

The 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.

Moreover, 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.

5. Outcome of the screening

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ChangedIn 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 three potential outcomes of the screening, namely an asylum procedure, a return procedure or a refusal of entry but not provided to the subject of the screening.

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ChangedThe Rapporteur considers it essential that the subject of the screening receives a copy of the de-briefing form for the exercise of the rights referred to in the General Data Protection Regulation. Therefore, the Rapporteur introduces amendments to ensure a copy of thescreening form is provided at the same time asbefore the transmission to the relevant authorities. Furthermore, the Rapporteur includesstresses the possibility for the Member States to apply during the screening the same derogations on entry conditions for third-country nationals as specified in Article 6(5)6(5)(c) of the Schengen Borders Code.

6. Access expansion to IT-databases

As 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).

The 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”.

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ChangedIn 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, the Rapporteur has deleted a number of thethose 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, while maintaining the possibility to query the system through the same authorities that currently have access rights. This is also in line with commitments made by the Commission during the legislative process of the respective files to refrain from proposing ever further access rights.go.