Legal provisions of COM(2021)752 - Provisional emergency measures for the benefit of Latvia, Lithuania and Poland

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dossier COM(2021)752 - Provisional emergency measures for the benefit of Latvia, Lithuania and Poland.
document COM(2021)752 EN
date December  1, 2021

Contents

CHAPTER I - INTRODUCTORY PROVISION

Article 1 - Subject matter

This Decision establishes provisional measures for the benefit of Latvia, Lithuania and Poland, in view of supporting them in managing the emergency situation caused by the actions of Belarus, leading to a sudden inflow of third country nationals in the current context of instrumentalisation of migrants at the external borders.

CHAPTER II - EMERGENCY MIGRATION AND ASYLUM MANAGEMENT PROCEDURE AT THE EXTERNAL BORDERS OF LATVIA, LITHUANIA AND POLAND

Article 2 - Asylum procedure

1. By way of derogation from Article 6(1) of the Asylum Procedures Directive, the registration, in relation to third country nationals or stateless persons apprehended or found in the vicinity of the border with Belarus after an unlawful entry or after having presented themselves at border crossing points, may take place no later than four weeks after the application is made.

Latvia, Lithuania and Poland shall prioritise the registration of applications of minors and their family members.

2. By way of derogation from Articles 25(6) point (b), Article 31(8) and 43(1) point (b) of the Asylum Procedures Directive, Latvia, Lithuania and Poland may decide at their border or transit zones on the admissibility or, in a procedure pursuant to Article 31(8) of that Directive, on the substance of all applications registered in accordance with paragraph 1. The basic principles and guarantees of Chapter II of the Asylum Procedures Directive shall apply.

3. Latvia, Lithuania and Poland shall prioritise the examination of applications that are likely to be well-founded or lodged by minors and their family members.

4. For applicants whose state of health requires a support that cannot be ensured adequately at the border or in transit zones, including when this becomes apparent during the procedure, the border procedure shall cease to apply and the applicant shall be granted entry to the territory in order for the application to be examined, without necessarily restarting the procedure.

5. By way of derogation from Article 43(2) of the Asylum Procedures Directive, the time limit before granting access to the territory may be extended to 16 weeks, during which a decision on the application, including the appeal, shall be taken.

6. By way of derogation from Article 46(5) and (6) of the Asylum Procedures Directive, Latvia, Lithuania and Poland may decide to apply the rules set out in paragraph 6 of that Article in respect of all decisions taken on applications examined in a border procedure as referred to in paragraph 2 of this Article.

Article 3 - Material reception conditions

By way of derogation from Directive 2013/33/EU, Latvia, Lithuania and Poland may temporarily set modalities for material reception conditions different from those provided for in Article 17 and 18 of Directive 2013/33/EU in relation to applicants apprehended or found in the vicinity of the border with Belarus after an unlawful entry or after having presented themselves at the border crossing points, and subject to the measures in Article 2(1) of this Decision, provided these Member States cover the applicants’ basic needs, in particular food, water, clothing, adequate medical care, and temporary shelter adapted to the seasonal weather conditions, and in full respect of human dignity.

Article 4 - Return procedure

1. Latvia, Lithuania and Poland, for third-country nationals and stateless persons whose application for international protection is rejected and to which Article 2 has been applied, may decide not to apply Directive 2008/115/EC.

2. With regard to third-country nationals and stateless persons referred to in paragraph 1, Latvia, Lithuania and Poland shall: 

(a)respect the principle of non-refoulement and take due account of the best interests of the child, family life and state of health of the third country national concerned as set out in Article 5 of Directive 2008/115/EC (the Return Directive).

(b)ensure that their treatment and level of protection are no less favourable than as set out in Article 8(4) and (5) (Limitations on use of coercive measures), Article 9(2)(a) – (postponement of removal), Article 14(1)(b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 16 and 17 (detention conditions) of Directive 2008/115/EC (the Return Directive).

Article 5 - Specific guarantees

1. Where applying this Decision, Latvia, Lithuania and Poland shall duly inform third-country nationals or stateless persons in a language which the third-country national understands or is reasonably supposed to understand about the measures applied, the dedicated points accessible for registering and lodging an application for international protection, in particular the nearest point where they can lodge an application for international protection, the possibility to appeal the decision, and the duration of the measures.

2. Latvia, Lithuania and Poland shall not apply Articles 2, 3, 4 and 5 longer than what is strictly necessary to address the emergency situation caused by Belarus, and in any case no longer than the period set out in Article 10.

CHAPTER III - OPERATIONAL SUPPORT

Article 6 - Operational support by the European Border and Coast Guard Agency

1. Upon a request for support by Latvia, Lithuania or Poland, the European Border and Coast Guard Agency shall provide or increase its operational support to Latvia, Lithuania and Poland in the area of border management and return by deploying the European Border and Coast Guard standing corps, including where appropriate by deploying staff from the 1 500 staff from the Reserve for Rapid Reaction, technical equipment and providing any other relevant support.

2. The executive director of the European Border and Coast Guard Agency (Frontex) may launch a rapid border intervention in accordance with Article 39(5) of Regulation (EU) 2019/1896 or a return intervention in accordance with Article 53 of that Regulation.

3. In accordance with their respective request, the Agency shall support Latvia, Lithuania and Poland through the following activities:

(a)deploying the standing corps in the framework of border management teams and relevant technical equipment (patrol cars, transport cars, helicopters, thermos-vision vehicles, cameras etc.) to support border control in particular as regards the following activities:

–border surveillance;

–border checks;

–cross-border crime detection;

–reporting;

–interpretation;

–the identification of minors and other vulnerable migrants and assist with ensuring proper referral.

(b)deploying the standing corps in the framework of border management teams and relevant technical equipment to support returns of third-country nationals who either did not apply for international protection or whose right to remain on the territory has ceased, in particular by assisting in:

–pre-return activities, including return counselling and supporting the cooperation with third countries by organising identification missions and providing videoconference service for identification interviews;

–voluntary returns;

–return operations by commercial and charter flights, including escorting returnees to the third country of origin and, if appropriate, post return activities in third countries.

(c)deploying the standing corps in the framework of the migration management support teams to support the identification of migrants, including nationality screening and travel documents checks, in particular by:

–providing support in debriefing activities and applying Common Risk Indicators to identify persons possibly linked with terrorism and gather more information about routes, facilitators and modus operandi;

–providing support with EURODAC equipment and staff supporting registration and fingerprinting of migrants;

–giving priority treatment to all the requests of the three Member States concerned to the EUROSUR fusion services, in particular for:

·air traffic monitoring to monitor flights arriving in Belarus from various places of departure;

·providing regular monitoring with tailor made imagery intelligence services, including satellite imagery, covering the adjacent pre-frontier areas of Belarus to assess the situation, as well as further distant pre-frontier areas relevant to better understand potential threats to the safety of deployed personnel and technical equipment;

·providing tailored multipurpose aerial surveillance service, when available and necessary, covering the Belarusian territory along the border either with a regional approach covering Latvia, Lithuania and Poland or supporting specific Member State(s) with capability to perform surveillance during the night.

(d)providing monitoring of social media platforms to notice groups of would-be migrants in time and react to any kind of possible mass movements towards EU borders;

(e)providing tailored risk analysis products;

(f)other specific support, as appropriate.

Article 7 - Operational support by the European Asylum Support Office

Upon a request for support by Latvia, Lithuania or Poland, the European Asylum Support Office (EASO) shall prioritise making available the necessary operational support, in particular through the following activities:

(a)deploying asylum support teams;

(b)registering the applications for international protection;

(c)facilitating an initial analysis of asylum applications; 

(d)conducting personal interviews of applicants on their applications and the circumstances of their arrival;

(e)supporting an appropriate identification and assessment of vulnerable applicants;

(f)supporting the management, design and putting in place of adequate standards of reception facilities;

(g)providing applicants or potential applicants of international protection with information and specific assistance that they may need;

(h)providing expertise, in particular in relation to interpretation and translation services, precise and up-to-date information on countries of origin and knowledge of the handling and management of asylum cases;

(i)providing training for personnel of competent or other authorities;

(j)other specific support, as appropriate.

Article 8 - Operational support by Europol

Upon a request for support by Latvia, Lithuania and Poland, Europol shall prioritise making available the necessary operational support through the following activities:

(a)deploying experts to cross-check data against data held in databases at Europol, facilitate rapid and secure information exchange between Member States and support operational analysis;

(b)providing tailored analysis products, such as threat assessments, strategic and operational analyses and situation reports;

(c)supporting the Member States in combating migrant smuggling and related crimes facilitated, promoted or committed using the internet and the activities referred in Article 4(1)(m) of Regulation (EU) 2016/794.

(d)other specific support, as appropriate, where required.

CHAPTER IV - FINAL PROVISIONS

Article 9 - Cooperation and assessment

1. The Commission, relevant European Union agencies and Latvia, Lithuania and Poland shall closely cooperate and regularly inform each other on the implementation of this Decision. Latvia, Lithuania and Poland shall continue reporting all relevant data including statistics that are relevant for the implementation of this Decision, via the EU Migration Preparedness and Crisis Management Network.

2. Latvia, Lithuania and Poland shall ensure close cooperation with UNHCR and relevant partner organisations to determine the modalities for support to applicants in the current emergency situation in line with the rules set out in this Decision and in the Asylum Procedures Directive and the Reception Conditions Directive.

3. The Commission in cooperation with Latvia, Lithuania and Poland shall keep the situation under constant monitoring and review and propose, where appropriate, the repeal or prolongation of this Decision by means of a proposal for a Council Decision under Article 78(3) TFEU. To this end, Latvia, Lithuania and Poland shall provide the Commission specific information needed for it to carry out this review and to make the proposal for repeal or prolongation as well as any other information the Commission may request.

Article 10 - Entry into force and application

1. This Decision shall enter into force on the […] day following that of its publication in the Official Journal of the European Union.

2. Without prejudice to Article 9, it shall apply until six months after its entry into force.

3. This Decision shall apply to all third-country nationals arriving on the territory of Latvia, Lithuania and Poland from the date of entry into force of this Decision, as well as to those already present in the territory of Latvia, Lithuania and Poland prior to entry into force of this Decision as a result of the actions of the Belarusian regime and whose applications for international protection have not been registered or for whom the return procedure has not started.

4. This Decision shall continue to apply with respect to those applicants whose applications for international protection have been registered in accordance with the provisions of this Decision, until a final decision is taken on their applications or until the third country nationals concerned are returned in accordance with Article 4.