Detention – The Silent Consequence of the EU’s Pact on Migration and Asylum -An Examination of the Impact of the Proposed Pact on Migration and Asylum on the Use of Pre-Entry Detention of Asylum Seekers

Abstract: On the 23 September 2020 the European Commission launched the Pact on Migration and Asylum, introducing five legislative proposals, which inter alia aim at ensuring that only people with clear protection needs enter the European Union (EU). To reach this objective, the European Commission introduced a so-called pre-entry phase, consisting of firstly, the proposed screening procedure, a five-day procedure to quickly identify applicants that are in need of protection and those that can be returned, and secondly, a mandatory asylum border procedure for certain categories of applicants, including asylum seekers from countries with a recognition rate of 20% or lower. During these procedures, applicants shall not be legally authorized to enter the EU. Hence, implementing these procedures require measures to keep the applicants at the border to ensure their non-entry. These practices may amount to detention. The aim of this thesis is to examine to what extent the Pact’s proposed screening and asylum border procedure risk leading to an increased use of pre-entry detention contrary to the right to liberty in European human rights law and EU-law. To fulfill this aim, the thesis will provide an examination of the regulatory framework regarding the use of pre-entry detention in the EU and the main components of the proposed screening and asylum border procedure. Thereafter, an analysis of the procedures’ contribution to an increased use of pre-entry detention will be undertaken by evaluating current practices at the external borders of the EU, including the hotspot approach. Finally, the proposed procedures’ compliance with the right to liberty and EU-law will be examined. This thesis finds that rather than addressing the current challenges experienced by Member States at the external borders of the EU, the proposed screening and asylum border procedures risk replicating them. In particular, the thesis finds gaps regarding the implementation of non- entry during these procedures, that risk increasing the use of pre-entry detention of asylum seekers. Consequently, both the proposed screening and asylum border procedure may lead to wide restrictions of the right to liberty, which cannot be considered to be in accordance with the notion that any restriction of this fundamental right should be narrowly constructed. Thus, the silent consequence of the Pact is, if adopted in its current form, the wide use of pre-entry detention of asylum seekers, contrary to the right to liberty.