Blog post by Vasiliki Apatzidou, PhD Student, Queen Mary University of London
On Thursday 8 June 2023, the EU Council reached an agreement on the compromise text of the amended Proposal for an Asylum Procedures Regulation (APR) that was proposed back in 2020 as part of the new EU Pact on Migration and Asylum. After almost seven years of negotiations (starting in 2016) and disagreements, an agreement was finally found, and the Council will now start trialogues with the European Parliament. A crucial component of the proposed reform is the increased focus at the borders, although this was also one of the most difficult and divisive elements throughout the negotiations. On the one hand, Southern external border countries were opposing the mandatory use of border procedures to avoid situations that would put a further strain on their border areas, while central and Northern EU states were insisting on the wider use of border procedures to contain asylum-seekers at the borders and prevent them from moving onwards in the EU.
In the compromise text, one can easily notice an extensive, and sometimes obligatory use of border procedures (Articles 41-41h compromise text of the APR). By expanding the use of border procedures, which is the asylum processing that occurs in border places such as islands, airports, transit zones, or land border areas while the third-country national is denied entry into the territory, the EU aims to contain asylum-seekers at the borders and examine their asylum claims in sub-standard asylum procedures. The problems with the border procedures as well as the new elements in the proposed reform, such as the recent introduced concept of the ‘adequate capacity’, have been recently analysed here. Against this backdrop, this blogpost aims to theorise border procedures and explain how these procedures normalize a border-shifting practice which takes place mainly within the state’s territory.
The Theory of Shifting Borders
According to the shifting borders theory, the contemporary border does not correspond to the black fixed line we see in the maps, but it has turned into an individualized shifting barrier which serves as a device that ‘selects and filters people’. Ayelet Shachar unpacks the concept of the ‘shifting border’, as the use of legal tools or techniques through which states aim to regulate mobility and manage migration by actually ‘detaching the border and its migration control functions from a fixed territorial marker’ to decide who gets in and who stays out. As she further notes, states aim to regulate migration ‘by redrawing the once fixed and static territorial border, transforming it into something malleable and movable, which can be placed and replaced in whatever location that best suits the goal of restricting access’.
There is already an abundance of legal scholarship that deals with the stretching of the border outwards (de-bordering), which is known as ‘extraterritorial immigration control’ and ‘externalisation of asylum’ and which represents a fundamental challenge to third-country nationals’ actual access to territory and subsequently to asylum procedures. In these cases, states, by stretching the borders outwards, far away from their actual territorial border, manage to control migration at a distance and prevent people from arriving and accessing the EU territory. Many examples of externalisation or otherwise ‘means of deterrence’ have been analyzed so far in the legal scholarship, such as the carriers’ sanctions, the interception of migrant vessels in the high seas and other pre-entry surveillance, visa and migration policies as well as the actual relocation of asylum procedures outside the EU’s external borders.
Although the externalization remains a priority for the EU, the policies and legislation adopted during the so-called refugee ‘crisis’ indicated another crucial component of the EU policy: the confinement of asylum management at the EU’s borders. This development can be captured by the scantly studied inward border shifting, as in these cases, the border is shifted within the state’s territory (re-bordering). Through shifting the borders inwards, deep into the state’s interior, states manage to prevent asylum-seekers not from accessing the territory, as they have managed to enter the EU territory, but from accessing the full set of laws and legal guarantees. I argue that border procedures constitute an indicative example of internalization that is used to link borders to the individual migrant and selectively restrict access to rights to the ‘abusive’ or ‘unwanted’ migrant as it will be explained below.
Border Procedures as an Internalization Process
Border procedures, which is the main subject of this blogpost, are taking place within the state’s territory. Thus, in this case, the situation seems at least at first more straightforward. The reason is that when a person is present in the territory of another country, even in a border area, there is no doubt that the person is under the jurisdiction of the state. In this case, access to territory should also mean access to the law, as ‘being subject to a legal system depends on the objective factor of physical presence in a certain place’.
However, border procedures constitute the most dramatic manifestation of ‘inward border-shifting’ in the EU for the following reasons. In the case of shifting borders inwards, while it is apparent that a border area constitutes actual territory of the state, and the state exercises full jurisdiction over this territory, it is allowed for states to treat these places as ‘anomalous zones’ or ‘constitution lite zones’ where some of the asylum-seekers’ rights can be suspended by treating third-country nationals on these areas as ‘not-entered’ in the territory. States manage to treat entered individuals as ‘not-entered’ by deploying the ‘non-entry’ fiction which detaches law from reality. Indeed, in the proposed legislation, it is explicitly mentioned that the asylum applications in border procedures will be examined while the asylum-seeker will be denied entry in the EU territory (Article 41). Of course, this is a legal fiction as the asylum-seeker is already in the territory where his or her asylum claim is being examined.
To give an illustrative example, when a person arrives in a Greek border island and applies for asylum there, there is no doubt that the person is in the Greek territory, and consequently in EU territory. However, border procedures are applicable to all third-country nationals applying for asylum in the border islands. If the proposed APR is adopted as such, and given the fact that the ‘non-entry’ fiction will be obligatory in border procedures, then whole islands will be treated as ‘borders’ and asylum-seekers hosted in the reception facilities in the islands will be treated as ‘not-entered’ in the territory. Thus, not all entrants in the same country will be treated equally, and the place from where someone applies for asylum will have important repercussions on their access to rights. In this way, the ‘non-entry’ fiction applicable in border procedures will be used by the EU Member States as an important migration management tool which justifies the taking away of well-established procedural guarantees and safeguards that would have been available in in-country regular asylum procedures. Indeed, border procedures are sub-standard procedures with limited guarantees, increased detention and very tight time limits.
Consequently, while at first, physical presence of an asylum applicant on the territory would imply a set of laws and guarantees associated to it, namely a protective legal order, by employing border procedures and the ‘non-entry’ fiction, physical presence becomes insufficient. Our focus is no longer on the question of whether people seek protection from persecution, but from where they apply for asylum.
How far can the Shifting Border Practice reach?
What merits some attention in the proposed reform is that this shifting border practice does not only take place in areas that are at least close to the borders, such as reception facilities in border islands, but it allows states to treat third-country nationals as ‘not-entered’ even when they are in the mainland, far away from the actual border.
In particular, in the proposal for a Screening Regulation in Article 5, it is mentioned that ‘screening which normally should apply at the borders, can also take place within the territory when there is no indication that the third-country nationals have crossed an external border to enter the territory of the Member State in an authorized manner’. This means that the ‘non-entry’ fiction, which is also applicable in the case of the screening, may take place even within the territory. In the negotiation process, the Parliament has opposed this and insists to delete this provision that allows the shifting border practice to take place so deep into the state’s interior.
A similar provision can be found in the last compromise text on the APR that was agreed in the Council. In Article 41f with the title ‘Locations for carrying out the asylum border procedure’ it is mentioned that:
During the examination of applications subject to a border procedure, Member States shall require, pursuant to Article 7 of Directive XXX/XXX/EU [Recast Reception Conditions Directive] and without prejudice to Article 8 thereof, the applicants […]to reside at or in proximity to the external border or transit zones as a general rule, or in other designated locations within its territory, fully taking into account the specific geographical circumstances of the Member States.
This actually means that border procedures which by definition should take place at the border of the states such as transit zones or airports, will apply not only in places close to the borders, such as reception centres in the islands, but also within the territory. Thus, while border procedures were initially designed to apply solely at the borders of the states, they may now apply deep into the state’s interior extending the ‘non-entry’ fiction in country, and denying the full sets of rights and procedural safeguards to asylum-seekers that are apprehended in locations far away from the border areas.
What’s next?
The question that remains unanswered is where this shifting border practice ends. How far can the EU and states move their territorial borders? Given the extended personal scope of border procedures, combined with the discretion of the states to apply them wherever they want, even within their territory, it is expected that the majority of the asylum claims, especially at external border countries such as Greece and Italy, will be examined in a procedure where the ‘non-entry’ fiction will be applicable. As it was explained in the blogpost, despite the fact of an asylum applicant’s territorial presence, the border procedure mechanism permits Member States to treat them as if they weren’t. This legal fiction of ‘non-entry’ has served to legitimize and normalize the reduced rights granted to asylum-seekers subject to border procedures. This is a dangerous rather than a ‘progressive’ development as the European Commissioner for Home Affairs has stated concerning the agreement, that is hoped to be taken into account and discussed further during the trialogues.
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