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EU: Common European Asylum System: deadlock in the Council as "frontline" Member States oppose mandatory "border procedures"

30 April 2019

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Common European Asylum System: deadlock in the Council as "frontline" Member States oppose mandatory "border procedures"
30.04.19
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Council discussions on controversial proposals for dealing with asylum applications at the external borders of the EU hit a wall recently, with "a large majority" of Member States who favour tougher measures facing opposition from those on the "frontline". Member States' diplomatic representatives were called upon to try to reach a resolution, but the Council is remaining tight-lipped on the outcome of those discussions.

Border procedures for asylum claims

The Asylum Procedures Regulation was proposed by the Commission almost three years ago and, like the Asylum Procedures Directive it is supposed to replace, contains provisions allowing for a "border procedure".

That procedure is set out in Article 41 of the proposed text and would allow authorities to take a decision concerning the admissibility or merits of an application for international protection "at the border or in transit zones of the Member State".

In October 2018 the Austrian Presidency of the Council reportedthat "Article 41 proved challenging with respect to various aspects," above all over the issue of "whether the application of the border procedure should be optional or mandatory." Recent documents show that the problem has not yet been resolved.

A "large majority" in favour

According to a note produced by the Romanian Presidency at the end of March (7708/19, pdf), a "large majority of Member States" want the border procedure to be mandatory for individuals "who do not fulfil the condition for entry in the territory of the EU" and "are subject to inadmissibility examination or fall under the accelerated examination procedure."

"The aim would be to efficiently handle applications which are less likely to be accepted and prevent absconding and secondary movements," says the note. "Secondary movements" is the EU jargon for an individual entering one EU state and travelling to another without authorisation.

A report by the European Asylum Support Office (EASO) (pdf) that was presented to the JHA Counsellors (Asylum), a Council working group, shows that asylum-seekers who go through a "border" procedure are far less likely to receive international protection - in 2018, almost 90% of decisions taken through a border procedure were negative, compared to 65% through the normal procedure.

Opposition from the "frontline"

A number of Member States, described in the Romanian Presidency's note as being on the "frontline", are opposed to mandatory border procedures because of potential costs, significant changes to national procedures, the impossibility of applying such rules at the entire length of their external borders, and an apparent aversion to applying them to people disembarked following maritime search and rescue operations.

Bulgaria, Cyprus, Greece, Spain, Croatia, Hungary, Italy, Lithuania and Malta entered a reservation on previous Presidency proposals on Article 41 (meaning that they have not agreed to them), while Hungary included a comment: "the entire asylum procedure should take place at the border, only those granted protection should be allowed in the EU" (6456/19 and 7033/19, pdfs).

On the issue of search and rescue, the Presidency's recent note says that a majority of Member States "insist" on mandatory border procedures for persons rescued at sea, because "persons saved in SAR operations in international waters constitute a large proportion of asylum applicants and excluding them would significantly diminish the efficiency of the mandatory border procedure."

However:

"…this question raises strong objections from the Member States which due to their geographical location, carry out the vast majority of SAR operations. Although it is legally possible for Member States to treat applications from such persons in a border procedure (as this is allowed under the currently applicable Asylum Procedure Directive), the issue remains very sensitive and delegations point to the humanitarian aspect of SAR operations."

New proposals

The topic became so problematic that another set of compromise proposals put together by the Romanian Presidency were sent to Member States' political representatives in the Committee of Permanent Representatives (COREPER) for their opinion.

As the Presidency's note says, "no further progress can be achieved at technical level without clear political guidance."

The compromise aimed to break the deadlock with three proposals on the border procedure:

• it should only be used "for applications subject to inadmissibility examination and for three out of nine grounds for which the accelerated procedure can be applied," and there would be a 36-month implementation period, to give national authorities time to adapt;
• regarding geographical scope, "the Presidency proposes that the compulsory application of the border procedure should be applicable… only for applications made at the external border crossing points or transit zones [and] Member States would be able to exclude the compulsory application of the border procedure in the external border crossing points with a small number of applications made in the preceding six months"; and
• regarding search and rescue operations, "the Presidency proposes in its compromise text to exclude such persons from the compulsory application of the procedure, while maintaining a possibility for national authorities to do so on a voluntary basis. This would cater the concerns of the frontline Member States, while the voluntary application of the procedure would still contribute to a better management of migration, combating secondary movements in a responsible manner and correctly channelling migrants to the relevant procedures, with due respect for vulnerable and humanitarian cases."

Whether these proposals were accepted by COREPER at its meeting on 27 March is unknown - the "summary record" of the meeting (pdf) merely states: "The Committee took note of the state of play and provided guidance for further work."

The Council's press office did not answer questions on the substance of the talks, but said:

"The discussion which took place was a normal step in the procedure, it was to provide political guidance by ambassadors of the member states for the ongoing work on the file. What will happen next is that the asylum procedure regulation will be on the agenda of delegates of the member states at one of their next working party meetings in May. So work is continuing."

The representations of Italy, Greece and the Romanian Presidency did not respond to requests for comment.

Documentation

NOTE from: Presidency to: Permanent Representatives Committee: Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU - State of play and guidance for further work (7708/19, LIMITE, 22 March 2019, pdf)

Presidency's proposed compromise text of the Proposal for a Regulation as sent to COREPER (7708/19 ADD 1, LIMITE, 22 March 2019, pdf)

Presidency's previous proposals for Article 41, distributed in mid-March (7033/19, LIMITE, 13 February 2019, pdf)

Presidency's previous proposals for Article 41, distributed at the end of February (6456/19, LIMITE, 22 February 2019, pdf)

European Asylum Support Office, Policies and practices regarding border procedures in EU+ countries (pdf)

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