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EU: Tracking the Pact: Council restricts rights in latest Screening Regulation text

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06 December 2021

The Council is aiming to water down rights protections in the proposed Screening Regulation, which will see most individuals who enter the EU in an irregular fashion detained at the borders with a view to their swift expulsion.

NOTE from: Presidency to: 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 Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817 - Presidency compromise proposal (Council doc. 10222/1/21 REV 1, LIMITE, 3 December 2021, pdf):

"Changes to the original text (as contained in document ST 11224/20) have been placed in bold or marked with strikethrough. Changes to the previous version as contained in documents 8814/21 (Recitals) and 8548/21 (Articles) are shaded in grey and have been placed in bold italics or marked with strikethrough italics."

Previous version: 10222/21 (pdf)

Obligations on third-country nationals

The Presidency's latest compromise proposal includes a new article on the obligations of "third country nationals":

“Article 6a - NEW

Obligations of third country nationals submitted to screening

1. 1. The third country nationals subject to screening shall remain, for its duration, at the disposal of the screening authorities, in the locations designated referred to in Article 6 (1) and (2) for that purpose.
   2. They shall cooperate with the screening authorities in all elements of the screening as set in Article 6 (6), in particular, by providing:
   3. a) Name, date of birth, gender and nationality as well as documents and information that can prove this data;
   4. b) fingerprints and facial image as referred to in Regulation (EU) XXX/XXX (EURODAC Regulation).”

Fundamental rights monitoring

It also downgrades the provisions included in the proposal for the independent monitoring of fundamental rights:

“Article 7

Monitoring of fundamental rights

1. 1. Member States shall adopt relevant provisions to investigate allegations of non-respect for fundamental rights in relation to the screening.
   2. Each Member State shall establish provide for an independent monitoring mechanism

• • to ensure compliance with EU and international law, including the Charter of Fundamental Rights including in relation with the access to the asylum procedure and the principle of nonrefoulement, during the screening;
  • where applicable, to ensure compliance with national rules on detention of the person concerned, in particular concerning the grounds and the duration of the detention;restrictive measures taken to ensure that the third country national remains at the disposal of the designated authorities.
  • to ensure that allegations of non-respect for fundamental rights in relation to the screening, including in relation to access to the asylum procedure and non-compliance with the principle of non-refoulement, are dealt with effectively and without undue delay.

Member States shall put in place adequate safeguards to guarantee the independence of the mechanism.

The Fundamental Rights Agency shall issue general guidance for Member States on the setting up of such mechanism and its independent functioning. Furthermore, Member States may request the Fundamental Rights Agency to support them in developing their national monitoring mechanism, including the safeguards for independence of such mechanisms, as well as the monitoring methodology and appropriate training schemes.

Member States may invite relevant national, international and non-governmental organisations and bodies to participate in the monitoring.”

Provision of information

The requirement to provide information in a language the individual understands is eliminated, while the unsavoury and incorrect term "illegal migrants" has been added:

"Article 8

Provision of information

1. 3. The information provided during the screening shall be given in a language which the third-country national understands or is reasonably supposed to understand or, in any case, in at least five of those languages which are most frequently used or understood by illegal migrants entering the Member State concerned. The information shall be given in writing and, or where necessary for the applicant's proper understanding, shall also be supplied may be supplemented orally, using interpretation services where possible in exceptional circumstances. Where needed, it shall be provided in an appropriate manner in the case of vulnerable persons. taking into account the age and the gender of the person."

Article 8 now also requires the provision of information on the new obligations, as well as "the consequences of non-compliance therewith, including the penalties under national law where provided for by Member States." There is no further reference to any such penalties in the text.

Health checks

The requirements for health and vulnerability checks are also heavily watered-down, as well as a previous requirement to provide necessary - as well as emergency - healthcare:

"Article 9

Health checks and vulnerabilities

1. 1. Third-country nationals submitted to the screening referred to in Article 3 shall have access to necessary emergency health care and essential treatment of illness. They shall be subject to a preliminary health and vulnerability check medical examination with a view to identifying any needs for immediate health care or isolation on public health grounds as well as any indications of vulnerability, unless, based on the circumstances concerning the general state of the each individual third-country nationals concerned and the grounds for directing them her/him to the screening, the qualified medical staff screening relevant competent authorities are satisfied consider that no preliminary medical health and vulnerability check screening is necessary. In that case, they shall inform those persons accordingly.
   2. Where relevant, it shall be checked whether persons referred to in paragraph 1 are in a vulnerable situation, and collect information on possible have special reception or procedural needs victims of torture or have special reception or procedural needs within the meaning of Article 20 of the [recast] Reception Conditions Directive. Third-country nationals submitted to the screening referred to in Article 3 shall be subject to a vulnerability check with a view to identifying any indication of vulnerability. The vulnerability check shall be conducted by a screening authority trained for that purpose which may be assisted by non governmental organizations and where relevant by medical staff as referred to in Article 6(7).
   3. Where there are indications of vulnerabilities or special reception or procedural needs, the third-country national concerned shall receive timely and adequate support in view of their physical and mental health. In the case of minors, support shall be given by personnel trained and qualified to deal with minors, and in cooperation with child protection authorities. Where a need for immediate health care was identified, such care shall be swiftly provided. Where a need for isolation on public health grounds was identified, the necessary public health measures shall be taken.
   4. Where it is deemed necessary based on the circumstances, third-country nationals submitted to the screening referred to in Article 5 shall be subject to a preliminary medical examination, notably to identify any medical condition requiring immediate care, special assistance or isolation."