EU: Tracking the Pact: Council position on Screening Regulation to gut border monitoring proposal

The proposed Screening Regulation, part of the EU's Pact on Migration and Asylum announced in September 2020, will see most individuals who enter the EU in an irregular fashion detained at the borders with a view to their swift expulsion. On 15 June, the French Presidency of the Council circulated its proposed compromise text, which is likely to form the basis for negotiations with the European Parliament. We are making it available here, along with the preceding version of the text. It maintains plans to gut a proposed fundamental rights border monitoring mechanism of most of its substance.

Statewatch previously reported on how the Council planned to water down the rights protections in the original proposal, including by gutting the Commission's much-vaunted plan for independent fundamental rights monitoring mechanisms at member states' external borders.

Those changes remain in the latest version of the text (pdf):

"Article 7

Monitoring of fundamental rights

    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 non-refoulement, 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."

The previous version (circulated at the beginning of June) (pdf) includes some further measures intended to clamp down on migrants.

In December a new article (6a) detailing the "obligations of third country nationals submitted to screening" was added to the text, and at the beginning of June a new provision was added to that article allowing member states to "introduce penalties, in accordance with their national law, in case of non-compliance with the obligations referred to in this Article."

The Presidency explains further changes in the introduction to its most recent compromise proposal:

"Following the last meeting of JHA Counsellors on 3 June 2022, further amendments have been introduced to clarify certain points, including

- an addition to recital 8 specifying that, taking into account that screening should contribute to ensuring referral to the appropriate procedures, the obligations under the screening Regulation should be without prejudice to the provisions of the applicable rules under Union law concerning international protection or return procedures. Furthermore, an addition to recital 11 clarifies that the screening Regulation should be without prejudice to Member States' obligations under international law regarding search and rescue operations.

- In order to alleviate the administrative burden, recital 24 and Article 14 have been amended to allow for the inclusion of the information collected during the screening in the relocation form.

- Article 9 and the corresponding recital 26 offer Member States the possibility, in exceptional circumstances related to the number of third country nationals arriving at the borders, to allow the obligation of health check to be waived by the screening authorities, under the supervision of qualified medical personnel, while obliging Member States to inform the Commission when they make use of this possibility.

Finally, some other minor technical adjustments have also been introduced."


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