Legal provisions of COM(2020)612 - Screening of third country nationals at the external borders - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)612 - Screening of third country nationals at the external borders. |
|---|---|
| document | COM(2020)612  |
| date | September 23, 2020 |
Article 1
Subject matter and scope
This Regulation establishes the screening at the external borders of the Member States of all third-country nationals who have crossed the external border in an unauthorised manner, of
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Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31).
Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European Community, of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1).
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, relating to the abolition of checks at internal borders and movement of persons (OJ L 160, 18.6.2011, p. 19).
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those who have applied for international protection during border checks without fulfilling entry conditions, as well as those disembarked after a search and rescue operation, before they are referred to the appropriate procedure.
The purpose of the screening shall be the strengthening of the control of persons who are about to enter the Schengen area and their referral to the appropriate procedures.
The object of the screening shall be the identification of all third-country nationals subject to it and the verification against relevant databases that the persons subject to it do not pose a threat to internal security. The screening shall also entail health checks, where appropriate, to identify persons vulnerable and in the need of health care as well the ones posing a threat to public health. Those checks shall contribute to referring such persons to the appropriate procedure.
The screening shall also be carried out within the territory of the Member States where there is no indication that third-country nationals have been subject to controls at external borders.
Article 2
Definitions
For the purposes of this Regulation, the following definitions apply:
1. ‘unauthorised crossing of the external border’ means crossing of an external border of a Member State by land, sea or air, at places other than border crossing points or at times other than the fixed opening hours, as referred to in Article 5(3) of Regulation (EU) 2016/399;
2. ‘threat to public health’ means a threat to public health within the meaning of Article 2, point 21, of Regulation (EU) 2016/399;
3. ‘verification’ means the process of comparing sets of data to establish the validity of a claimed identity (one-to-one check);
4. ‘identification’ means the process of determining a person’s identity including through a database search against multiple sets of data (one-to-many check);
5. ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU and who is not a person enjoying the right to free movement under Union law within the meaning of Article, 2 Point 5, of Regulation (EU) 2016/399.
Article 3
Screening at the external border
1. This Regulation shall apply to all third-country nationals who:
(a) are apprehended in connection with an unauthorised crossing of the external border of a Member State by land, sea or air, except third country nationals for whom the Member State is not required to take the biometric data pursuant to Article 14(1) and (3) of Regulation (EU) 603/2013 for reasons other than their age, or
(b) are disembarked in the territory of a Member State following a search and rescue operation.
The screening shall apply to those persons regardless of whether they have applied for international protection.
2. The screening shall also apply to all third-country nationals who apply for international protection at external border crossing points or in transit zones and who do not fulfil the entry conditions set out in Article 6 of Regulation (EU) 2016/399.
3. The screening is without prejudice to the application of Article 6(5) of Regulation (EU) 2016/399, except the situation where the beneficiary of an individual decision issued by the Member State based on Article 6(5)(c) of that Regulation is seeking international protection.
Article 4
Authorisation to enter the territory of a Member State
1. During the screening, the persons referred to in Article 3, paragraphs 1 and 2 shall not be authorised to enter the territory of a Member State.
2. Where it becomes apparent during the screening that the third-country national concerned fulfils the entry conditions set out in Article 6 of Regulation (EU) 2016/399, the screening shall be discontinued and the third-country national concerned shall be authorised to enter the territory, without prejudice to the application of penalties as referred to in Article 5(3) of that Regulation.
Article 5
Screening within the territory
Member States shall apply the screening to third-country nationals found within their territory where there is no indication that they have crossed an external border to enter the territory of the Member States in an authorised manner.
Article 6
Requirements concerning the screening
1. In the cases referred to in Article 3, the screening shall be conducted at locations situated at or in proximity to the external borders.
2. In the cases referred to in Article 5, the screening shall be conducted at any appropriate location within the territory of a Member State.
3. In the cases referred to in Article 3, the screening shall be carried out without delay and shall in any case be completed within 5 days from the apprehension in the external border area, the disembarkation in the territory of the Member State concerned or the presentation at the border crossing point. In exceptional circumstances, where a disproportionate number of third-country nationals needs to
be subject to the screening at the same time, making it impossible in practice to conclude the screening within that time-limit, the period of 5 days may be extended by a maximum of an additional 5 days.
With regard to persons referred to in Article 3(1)(a) to whom Article 14 (1) and (3) of Regulation (EU) 603/2013 apply, where they remain physically at the external border for more than 72 hours, the period for the screening shall be reduced to two days.
4. Member States shall notify the Commission without delay about the exceptional circumstances referred to in paragraph 3. They shall also inform the Commission as soon as the reasons for extending the screening period have ceased to exist.
5. The screening referred to in Article 5 shall be carried out without delay and in any case shall be completed within 3 days from apprehension.
6. The screening shall comprise the following mandatory elements:
(a) preliminary health and vulnerability check as referred to in Article 9;
(b) identification as referred to in Article 10;
(c) registration of biometric data in the appropriate databases as referred to in Article 14(6), to the extent it has not occurred yet;
(d) security check as referred to in Article 11;
(e) the filling out of a de-briefing form as referred to in Article 13;
(f) referral to the appropriate procedure as referred to in Article 14.
7. Member States shall designate competent authorities to carry out the screening. They shall deploy appropriate staff and sufficient resources to carry out the screening in an efficient way.
Member States shall designate qualified medical staff to carry out the health check provided for in Article 9. National child protection authorities and national anti-trafficking rapporteurs shall also be involved, where appropriate.
The competent authorities may be assisted or supported in the performance of the screening by experts or liaison officers and teams deployed by the European Border and Coast Guard Agency and the [European Union Agency for Asylum] within the limits of their mandates.
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 an independent monitoring mechanism
– to ensure compliance with EU and international law, including the Charter of
Fundamental Rights, 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;
– 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.
Article 8
Provision of information
1. Third-country nationals subject to the screening shall be succinctly informed about the purpose and the modalities of the screening:
(a) the steps and modalities of the screening as well as possible outcomes of the screening;
(b) the rights and obligations of third country nationals during the screening, including the obligation on them to remain in the designated facilities during the screening.
2. During the screening, they shall also, as appropriate, receive information on:
(a) the applicable rules on the conditions of entry for third-country nationals in accordance with Regulation (No) 2016/399 [Schengen Border Code], as well as on other conditions of entry, stay and residence of the Member State concerned, to the extent this information has not been given already;
(b) where they have applied, or there are indications that they wish to apply, for international protection, information on the obligation to apply for international protection in the Member State of first entry or legal stay set out in Article [9(1) and (2)] of Regulation (EU) No XXX/XXX [ex-Dublin Regulation], the consequences of non-compliance set out in Article [10(1)] of that Regulation, and the information set out in Article 11 of that Regulation as well as on the procedures that follow the making of an application for international protection;
(c) the obligation for illegally staying third-country nationals to return in accordance with Directive XXXXX [Return Directive];
(d) the possibilities to enrol in a programme providing logistical, financial and other material or in-kind assistance for the purpose of supporting voluntary departure;
(e) the conditions of participation in relocation in accordance with Article XX of Regulation (EU) No XXX/XXX [ex-Dublin Regulation];
(f) the information referred to in Article 13 of the Regulation (EU) 2016/67935
[GDPR].
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. The information shall be given in writing and, in exceptional circumstances, where necessary, orally using interpretation services. It shall be provided in an appropriate manner taking into account the age and the gender of the person.
4. Member States may authorise relevant and competent national, international and non-governmental organisations and bodies to provide third country nationals with information under this article during the screening according to the provisions established by national law.
Article 9
Health checks and vulnerabilities
1. Third-country nationals submitted to the screening referred to in Article 3 shall be subject to a preliminary medical examination with a view to identifying any needs for immediate care or isolation on public health grounds, unless, based on the circumstances concerning the general state of the individual third-country nationals concerned and the grounds for directing them to the screening, the relevant competent authorities are satisfied that no preliminary medical 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, victims of torture or have special reception or procedural needs within the meaning of Article 20 of the [recast] Reception Conditions Directive.
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.
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.
Article 10
Identification
1. To the extent it has not yet occurred during the application of Article 8 of Regulation
(EU) 2016/399, the identity of third-country nationals submitted to the screening
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Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016
pursuant to Article 3 or Article 5 shall be verified or established, by using in particular the following, in combination with national and European databases:
(a) identity, travel or other documents;
(b) data or information provided by or obtained from the third-country national concerned; and
(c) biometric data;
2. For the purpose of the identification referred to in paragraph 1, the competent authorities shall query any relevant national databases as well as the common identity repository (CIR) referred to in Article 17 of Regulation (EU) 2019/817. The biometric data of a third-country national taken live during the screening, as well as the identity data and, where available, travel document data shall be used to that end.
3. Where the biometric data of the third-country national cannot be used or where the query with those data referred to in paragraph 2 fails, the query as referred to in paragraph 2 shall be carried out with the identity data of the third-country national, in combination with any identity, travel or other document data or with the identity data provided by that third-country national.
4. The checks, where possible, shall also include the verification of at least one of the biometric identifiers integrated into any identity, travel or other document.
Article 11
Security check
1. Third country nationals submitted to the screening pursuant to Article 3 or Article 5 shall undergo a security check to verify that they do not constitute a threat to internal security. The security check may cover both the third-country nationals and the objects in their possession. The law of the Member State concerned shall apply to any searches carried out.
2. For the purpose of conducting the security check referred to in paragraph 1, and to the extent that they have not yet done so in accordance with Article 8(3), point (a)(vi), of Regulation (EU) 2016/399, the competent authorities shall query relevant national and Union databases, in particular the Schengen Information System (SIS).
3. To the extent it has not been already done during the checks referred to in Article 8 of Regulation (EU) 2016/399, the competent authority shall query the Entry/Exit System (EES), the European Travel Information and Authorisation System (ETIAS), including the ETIAS watch list referred to in Article 29 of Regulation (EU) 2018/1240, the Visa Information System (VIS), the ECRIS-TCN system as far as convictions related to terrorist offences and other forms of serious criminal offences are concerned, the Europol data processed for the purpose referred to in Article 18(2), point (a), of Regulation (EU) 2016/794, and the Interpol Travel Documents Associated with Notices database (Interpol TDAWN) with the data referred to in Article 10(1) and using at least the data referred to under point (c) thereof.
4. As regards the consultation of EES, ETIAS and VIS pursuant to paragraph 3, the retrieved data shall be limited to indicating refusals of a travel authorisation, refusals of entry, or decisions to refuse, annul or revoke a visa or residence permit, which are based on security grounds.
5. The Commission shall adopt implementing acts setting out the detailed procedure
and specifications for retrieving data. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15(2).
Article 12
Modalities for security checks
1. The queries provided for in Article 10(2) and in Article 11(2) may be launched using, for queries related to EU information systems and the CIR, the European Search Portal in accordance with Chapter II of Regulation (EU) 2019/817 and with Chapter II of Regulation (EU) 2019/81836.
2. Where a match is obtained following a query as provided for in Article 11(3) against data in one of the information systems, the competent authority shall have access to consult the file corresponding to that match in the respective information system in order to determine the risk to internal security as referred to in Article 11(1).
3. Where a query as provided for in Article 11(3) reports a match against Europol data, the competent authority of the Member State shall inform Europol in order to take, if needed, any appropriate follow-up action in accordance with the relevant legislation.
4. Where a query as provided for in Article 11(3) reports a match against the Interpol Travel Documents Associated with Notices database (Interpol TDAWN), the competent authority of the Member State shall inform the Interpol National Central Bureau of the Member State that launched the query in order to take, if needed, any appropriate follow-up action in accordance with the relevant legislation.
5. The Commission shall adopt implementing acts to specify the procedure for cooperation between the authorities responsible for carrying out the screening, Interpol National Central Bureaux, Europol national unit, and ECRIS-TCN central authorities, respectively, to determine the risk to internal security. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15(2).
Article 13
De-briefing form
On completion of the screening, the competent authorities shall, with regard to the persons referred to in Article 3 and in Article 5, complete the form in Annex I containing:
(a) name, date and place of birth and sex;
(b) initial indication of nationalities, countries of residence prior to arrival and languages spoken;
(c) reason for unauthorised arrival, entry, and, where appropriate illegal stay or residence, including information on whether the person made an application for international protection;
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Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration, OJ L 135, 22.5.2019, p. 85.
(d)
information obtained on routes travelled, including the point of departure, the places of previous residence, the third countries of transit and those where protection may have been sought or granted as well as the intended destination within the Union;
(e) information on assistance provided by a person or a criminal organisation in relation to unauthorised crossing of the border, and any related information in cases of suspected smuggling.
Article 14
Outcome of the screening
1. The third country nationals referred to in Article 3(1) point (a) and (b) of this Regulation who
– have not applied for international protection and
– with regard to whom the screening has not revealed that they fulfil entry
conditions set out in Article 6 of Regulation (EU) 2016/399,
shall be referred to the competent authorities to apply procedures respecting Directive (EU) 2008/115/EC (Return Directive).
In cases not related to search and rescue operations, entry may be refused in accordance with Article 14 of Regulation 2016/399.
The form referred to in Article 13 shall be transmitted to the relevant authorities to whom the third country national is being referred.
2. Third-country nationals who made an application for international protection shall be referred to the authorities referred to in Article XY of Regulation (EU) No XXX/XXX [Asylum Procedure Regulation], together with the form referred to in Article 13 of this Regulation. On that occasion, the authorities conducting the screening shall point in the de-briefing form to any elements which seem at first sight to be relevant to refer the third-country nationals concerned into the accelerated examination procedure or the border procedure.
3. Where the third country national is to be relocated under the mechanism for solidarity established by Article XX of Regulation (EU) No XXXX/XXXX [Dublin Regulation], the third-country national concerned shall be referred to the relevant authorities of the Member States concerned together with the form referred to in Article 13.
4. The third-country nationals referred to in Article 5, who
– have not applied for international protection and
– with regard to whom the screening has not revealed that they fulfil the
conditions for entry and stay
shall be subject to return procedures
respecting Directive 2008/115/EC.
5. Where third-country nationals submitted to the screening in accordance with
Article 5 make an application for international protection as referred to in Article 25 of Regulation (EU) No XXX/XXX (Asylum Procedures Regulation), paragraph 2 of this Article shall apply accordingly.
6. In respect of third-country nationals to whom Regulation EU No XXX/XXX [Eurodac Regulation] applies, the competent authorities shall take the biometric data referred to in Articles [10, 13, 14 and 14a] of that Regulation (EU) and shall transmit it in accordance with that Regulation.
7. Where the third country nationals referred to in Article(s) 3(1) and Article 5 are referred to an appropriate procedure regarding asylum or return, the screening ends. Where not all the checks have been completed within the deadlines referred to in Article 6(3) and (5), the screening shall nevertheless end with regard to that person, who shall be referred to a relevant procedure.
Article 15
Committee procedure
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 16
Amendments to Regulation (EC) No 767/2008
Regulation (EC) No 767/2008 is amended as follows:
(1) In Article 6, paragraph 2 is replaced by the following:
“2. Access to the VIS for the purposes of consulting the data shall be reserved exclusively for the duly authorised staff of the ETIAS Central Unit, of the national authorities of each Member State, including to duly authorised staff of the ETIAS National Units, designated pursuant to Article 8 of Regulation (EU) 2018/1240 of the European Parliament and of the Council, which are competent for the purposes laid down in Articles 15 to 22, for the duly authorised staff of the national authorities of each Member States and of the Union agencies, which are competent for the purposes laid down in Articles 20 and 21 of Regulation 2019/817, and for the competent authorities provided under Article 6(6) of Regulation (EU) 2020/XXX of the European Parliament and of the Council37. Such access shall be limited according to the extent that the data are required for the performance of their tasks for those purposes, and proportionate to the objectives pursued.”;
Article 17
Amendments to Regulation (EU) 2017/2226 Regulation (EU) 2017/2226 is amended as follows:
Regulation (EU) No XXX of the European Parliament and of the Council of [...] 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].
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(1) In Article 6(1), the following point (1) is added:
(1) support the objectives of the screening established by Regulation (EU) 2020/XXX of the European Parliament and of the Council38, in particular for the checks provided under Article 10 thereof.”
(2) Article 9 is amended as follows:
(a) paragraph 1 is replaced by the following:
“2a. The competent authorities referred to in Article 5(6) of
Regulation (EU) 2020/XXX shall have access to the EES to consult data.”;
(b) paragraph 4 is replaced by the following:
“Access to the EES data stored in the CIR shall be reserved exclusively for the duly authorised staff of the national authorities of each Member State and for the duly authorised staff of the Union agencies that are competent for the purposes laid down in Article 20, Article 20a and Article 21 of Regulation (EU) 2019/817. Such access shall be limited according to the extent that the data are required for the performance of their tasks for those purposes, and proportionate to the objectives pursued.”
Article 18
Amendments to Regulation (EU) 2018/1240
Regulation (EU) 2018/1240 is amended as follows:
(1) In Article 4, point (a) is replaced by the following:
“(a) contribute to a high level of security by providing for a thorough assessment of applicants as regards the risk they may pose to internal security, prior to their arrival at external border crossing points, and of persons subject to the screening referred to in Regulation (EU) 2020/XXX of the European Parliament and of the Council39 [Screening Regulation], in order to determine whether there are factual indications or reasonable grounds based on factual indications to conclude that the presence of the person on the territory of the Member States poses a security risk;”
(1) In Article 13, paragraph 5 is replaced by the following:
“5. Each Member State shall designate the competent national authorities referred to in paragraphs 1, 2 and 4 of this Article, and the competent authority referred to in Article 5(6) of Regulation (EU) 2020/XXX, and shall communicate a list of those authorities to eu-LISA without delay, in accordance with Article 87(2) of this Regulation. That list shall specify for which purpose the duly authorised staff of each
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Regulation (EU) No XXX of the European Parliament and of the Council of [...] 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].
Regulation (EU) No XXX of the European Parliament and of the Council of [...] 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].
authority shall have access to the data in the ETIAS Information System in accordance with paragraphs 1, 2 and 4 of this Article.”
Article 19
Amendments to Regulation (EU) 2019/817 Regulation (EU) 2019/817 is amended as follows:
(1) In Article 17, paragraph 1 is replaced by the following:
“A common identity repository (CIR), creating an individual file for each person that is registered in the EES, VIS, ETIAS, Eurodac or ECRIS-TCN containing the data referred to in Article 18, is established for the purpose of facilitating and assisting in the correct identification of persons registered in the EES, VIS, ETIAS, Eurodac and ECRIS-TCN in accordance with Article 20 and 20a, of supporting the functioning of the MID in accordance with Article 21 and of facilitating and streamlining access by designated authorities and Europol to the EES, VIS, ETIAS and Eurodac, where necessary for the prevention, detection or investigation of terrorist offences or other serious criminal offences in accordance with Article 22.”
(2) The following Article 20a is inserted:
“Article 20a
Access to the common identity repository for identification according to Regulation (EU) 2020/XXX
1. Queries of the CIR shall be carried out by the designated competent authority as defined in Article 6(7) of Regulation (EU) 2020/XXX, solely for the purpose of identifying a person according to Article 10 of that Regulation, provided that the procedure was initiated in the presence of that person.
2. Where the query indicates that data on that person are stored in the CIR, the competent authority shall have access to consult the data referred to in Article 18(1) as well as to the data referred to in Article 18(1) of Regulation (EU) 2019/818 of the European Parliament and the Council.”
Article 20
Evaluation
[Three years after entry into force, the Commission shall report on the implementation of the measures set out in this Regulation.]
No sooner than [five] years after the date of application of this Regulation, and every five years thereafter, the Commission shall carry out an evaluation of this Regulation. The Commission shall present a Report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. Member States shall provide the Commission all information necessary for the preparation of that report, at the latest six months before the [five] years’ time limit expires.
Article 21
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.