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Common European Asylum System (CEAS): Asylum procedures at the border a sticking point for Member States
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As the Member States continue to disagree over proposed changes to Common European Asylum System, "the biggest outstanding issue for most Member States" in the Asylum Procedures Regulation is that of the "border procedure" set out in Article 41, according to a recent note sent by the Austrian Presidency to Member States' representatives.

See: NOTE from: Presidency to: Strategic Committee on Immigration, Frontiers and Asylum (SCIFA): Border procedures (13376/18, LIMITE, 19 October 2018, pdf)

Under the Commission's proposal (pdf), Article 41 provides for authorities to:

"take a decision on an application [for international protection] at the border or in transit zones of the Member State on: (a) the admissibility of an application... (b) the merits of an application..."

According to the recent Presidency document:

"Article 41 proved challenging with respect to various aspects, such as the deadline for keeping persons at the border, and the possibility to use such a procedure also in proximity to the external border or in transit zones or, in case of disproportionate numbers of arrivals, in other locations. However, the most difficult and divisive question is whether the application of the border procedure should be optional or mandatory.

During the JHA Council on 12 October 2018, some Member States stated that they are opposed to a mandatory asylum border procedure, while other Member States expressed support for a mandatory border procedure in Art. 41 APR."

Discsussions on 16 October on a Presidency compromise text "once again showed that there is no agreement on whether in some cases the border procedure should be mandatory or not."

Further problems come from the fact that "the question of the border procedure is not an isolated issue of Article 41 of the Asylum Procedure Regulation but also directly or indirectly linked with other legislative files" - for example the Reception Conditions Directive, the Schengen Borders Code and the Return Directive.

The document states (emphasis in original):

"The discussions have shown that there is overall support for the concept of border procedure in the Return Directive despite the opposition of some Member States regarding the mandatory use of the border procedure in the Asylum Procedure Regulation. Therefore, there seems to be some discrepancy between the support for the border procedure in the Return Directive and refusing a mandatory border procedure in the APR, which, from a legal perspective, go "hand in hand".

Therefore delegations are invited to express their views to the following questions:

1. With regard to Article 41 of Asylum Procedure Regulation, could you support an obligation for Member States to provide a border procedure in national law, while keeping the discretion as to the cases for which and the places where to use such a procedure in relation to inadmissibility checks or cases subject to the accelerated procedure?

2. Is there sufficient consistency in the proposed legal framework for the functioning of the asylum and return border procedures, together with the rules on refusals of entry, considering the interaction between the legislative files mentioned above? If not, which adjustments would be needed?

3. How should the necessary framework for the practical implementation of an efficient border procedure be designed? In particular, how could EASO and FRONTEX facilitate the process in practice?"

See: NOTE from: Presidency to: Strategic Committee on Immigration, Frontiers and Asylum (SCIFA): Border procedures (13376/18, LIMITE, 19 October 2018, pdf)

See also

Reform of the Common European Asylum System (CEAS) is in a mess - disagreement amongst Member States blocking adoption (Statewatch News Online, 11 October 2018)

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