Part I – Defining Fairness

2. Introducing (some) terms of the debate

Fairness has been the subject of extensive debate in political philosophy,Footnote ²³ legal theory and many substantive areas of policy.Footnote ²⁴ It has different value in different cultures,Footnote ²⁵ and there probably is no persuasive way of ‘tidying up the many considerations that we ordinarily adduce when discussing’ it.Footnote ²⁶ Like other principles often referred to in the context of both EU and international law, such as trust or solidarity, it represents an overarching idea, applicable in different domainsFootnote ²⁷ and across them.Footnote ²⁸ It informs the structure of a society and the interaction between societal actors along different axes,Footnote ²⁹ and is fundamentally aspirational in nature.Footnote ³⁰ To start with dictionary definitions of ‘fair’, the adjective is described as ‘marked by impartiality and honesty’,Footnote ³¹ or ‘the quality of treating people equally’.Footnote ³² In this understanding of fair treatment, fairness is seen as requiring non-arbitrariness and that like situations be dealt with alike. This approach resonates with many philosophical accountsFootnote ³³ as well as with EU law across the board. Such a definition of fairness evokes the values of the rule of law, justice, non-discrimination and equality, and is reflected in the numerous provisions of primary and secondary law that give effect to them. Only to mention the most obvious examples, we can refer to the principle of non-discrimination and the legislative instruments implementing it,Footnote ³⁴ or the protection against arbitrary detention enshrined in the right to liberty.Footnote ³⁵

Another – non-mutually exclusive – perspective on fairness focuses on how claims are accommodated,Footnote ³⁶ with authors equating it to ‘appropriate concession in the context of a mutually beneficial cooperative arrangement’.Footnote ³⁷ To frame issues of fairness in a way that, at least in part, maps onto the summa divisio between its substantive and procedural versions, we can identify two main scenarios: fair division of something (where the fairness is embodied by the outcome and/or the act of dividing itself), and fair response -which could be negative or positive, depending on the conduct of the interlocutor.Footnote ³⁸ The EU’s budget is an area where the complementarity between those two aspects is most visible in the Union, as the allocation of resources to member states can now be affected by their compliance with the rule of law.Footnote ³⁹ Other examples of the systemic importance of a response and the required features thereof can be found in provisions on penalties for violations of EU law (including competition rules),Footnote ⁴⁰ and the principle of proportionality of criminal penalties.Footnote ⁴¹ Questions of redistributive justice and allocation, therefore, lie at the core of the debate on the meaning and scope of fairness. As known, however, the choice of the ‘right’ criterion for division constitutes one of the most contentious aspects of discussion. Distributing burdens and benefits on ‘good reasons’ – for example, effectiveness or efficiency – might not be fair in and of itself. Likewise, there are situations – like lotteries – that are not concerned with fairness and yet, we would not necessarily label their outcomes as unfair.Footnote ⁴² In certain contexts, the link between fairness and justice brings consideration of solidarity into the conversation. This is apparent from Union law, as shown inter alia by the rules on budget, as well as the requirement that the EU policies on migration and asylum be governed by the principle of solidarity and fair sharing of responsibility between the Member States.Footnote ⁴³

Rawls is one of the scholars that has made the connection between fairness and justice most explicit, as he famously devised an account of justice as fairness.Footnote ⁴⁴ Rawls’s focus is on justice of social institutions and their practices, and specifically the distribution of primary goods understood as not only wealth, but also rights and liberties.Footnote ⁴⁵ Several aspects of his account evoke the terms of the debate introduced so far. In his view, questions of fairness are likely to emerge when conflicting claims ‘are made upon the design of a practice’.Footnote ⁴⁶ Rawls’s approach builds on ‘the elimination of arbitrary distinction’ and the establishment ‘of a proper balance between competing claims’.Footnote ⁴⁷ His idea of fairness ‘involves the mutual acceptance, […] of the principles on which a practice is founded, and […] the exclusion from consideration of claims violating the principles of justice’.Footnote ⁴⁸ He argues that ‘acting unfairly is but taking advantage of loop-holes or ambiguities […] insisting that rules be enforced to one’s advantage when they should be suspended [and] acting contrary to the intention of a practice’.Footnote ⁴⁹ Therefore, fairness is also ensured through the appropriate response against unfair behaviour – identified primarily by the perversion of the objectives of a ‘practice’ and the disregard for the principles underpinning it. The mutual acceptance of principles governing a practice, and the importance of balancing competing claims appropriately when designing it, presupposes the existence of some sort of group of reference within which such claims emerge. Who are the subjects of the interaction – or else, what is the group of reference? Although Rawls uses the ambiguous and widely defined term ‘persons’, in other works he consistently talks about ‘citizens’. Furthermore, his understanding of justice as fairness governs the interaction – via cooperation or competition – of free ‘persons’ that have no authority over one another.Footnote ⁵⁰

Rawls’s framework of fairness has been applied in areas as different as contract law,Footnote ⁵¹ international criminal law,Footnote ⁵² environmental law,Footnote ⁵³ international negotiationsFootnote ⁵⁴ and international lawFootnote ⁵⁵ – just to name a few. In devising a Rawlsian theory of international law, Franck argued that the fairness of ‘any […] legal system, will be judged, first by the degree to which the rules satisfy the participants expectations of justifiable distribution of costs and benefits, and secondly by the extent to which the rules are made and applied in accordance with what the participants perceive as right process’.Footnote ⁵⁶ Franck posits that a debate about fairness presupposes two elements: moderate scarcity and community. Without the former, there would be no need to engage in a discussion of mechanisms of distribution of ‘fair share’ of goods and the allocation of rights and duties. Without the latter, there cannot be such a discussion: any meaningful discourse about fairness presupposes the identification of an ‘irreducible core of shared assumptions about fairness’.Footnote ⁵⁷ In Rawls’s wake, Franck’s approach presupposes the existence of a community – if a global one – in which the applicable rules are assessed against a benchmark of fairness. Franck’s framework is enlightening particularly because it connects the debate on fairness to law as a societal tool to achieve a negotiated balance between order and change. Or, to put it differently, between a view of legitimacy as process fairness (the agreed rules will be respected and enforced), and distributive justice as moral fairness.Footnote ⁵⁸ These two dimensions seem to come together in the EU, where every area of law and policy must be consistent with its value-laden legal foundations enumerated in Article 2 TEU.

The previous discussion is particularly relevant to understanding questions of fairness in ‘social institutions and their practices’ – ie, a polity like the EU, its laws and policies and particularly asylum and migration. More specifically, this paper addresses questions of how to fairly allocate rights, how to fairly restrict them and according to what procedures. In order to do that, we must first distinguish between different levels of analysis. Investigating the fairness of a polity,Footnote ⁵⁹ for example, deals with different questions from those concerning the legal system as a whole or the justice system more narrowly.Footnote ⁶⁰ When the focus is on an area of law in particular, fairness can be assessed in different scenarios, although is inevitably linked to said systemic aspects. The fairness of the law-making process is distinct from the fairness of the content of a given measure, but the two cannot be compartmentalised entirely. The specific measure might, in turn, establish procedures to achieve a certain result,Footnote ⁶¹ and/or set out substantive conditions for those purposes,Footnote ⁶² or yielding it directly.Footnote ⁶³ These situations map onto some of the themes discussed above, such as fair play/fair outcomes, or procedural/substantive fairness. Fairness can also play a decisive role in judicial reasoning. This is not only to do, as often mentioned in the literature, with courts embedding policy considerations in their judgments. It also concerns the interpretation and application of the law consistently with its spirit.Footnote ⁶⁴ The assessment of fairness of a polity, of law-making, of a specific measure or of judicial reasoning must not be conflated. That is not to say that those levels of analysis should be treated as watertight compartments, however. The fairness of law-making is likely to impact the fairness of the area to which that law will apply. Likewise, the overall fairness in a certain law or policy field can tell us something about the fairness of a polity where those laws and policies are being developed. The judicial interpretation and application of the relevant rules and principles can also play a major role in an evaluation of fairness of a legal phenomenon and/or the system more broadly.

Against that background, a workable definition of fairness comprises at the very least the following elements. Firstly, it entails the non-arbitrary accommodation of claims emerging during the designing of a practice by equal persons in a community as well as in the context of its implementation by the competent authorities. Secondly, the designing and implementation of the practice must comply with its intentions and the mutually accepted principles underlying it. Thirdly, fairness presupposes a response to unfair behaviour, defined as violations of those principles and intentions. It is important to clarify that, consistently with Rawls’s theory, the approach to fairness defined in this research focuses on the ‘equal basic liberties’, which include the freedoms specified by the liberty, the integrity of the person and the rights and liberties covered by the rule of law.Footnote ⁶⁵ The priority of liberty -required under ‘reasonably favourable conditions’ – implies ‘that a basic liberty can be limited or denied solely for the sake of one or more other basic liberties, and never […] for reasons of public good’.Footnote ⁶⁶ This is, of course, without prejudice to the extension of the proposed approach beyond the scope of this paper. It is argued that these three (minimum) requirements of fairness have the advantage of being applicable to the different levels of analysis of fairness outlined above.

How would that definition apply to the EU as a polity first, and to the specific subject of this paper more specifically? Firstly, the competing claims (different views) are those of the ‘equal persons’ (decision-makers) involved in the designing of its practices (including the law and policy of EU border controls). Under the Treaties, the principle of equality applies to both the member states and their citizens.Footnote ⁶⁷ The different bodies of EU law-making -and, through them, EU citizens –Footnote ⁶⁸ are also in a position of equal footing, with the member states having accepted the primacy of EU law and Treaty-based counterpoints to that.Footnote ⁶⁹ Consistently with its founding values, the accommodation of competing claims in the EU must be non-arbitrary, non-discriminatory (unless otherwise justified), and solidarity-orientated. Secondly, in the Union, the EU values constitute the mutually accepted principles on which its practices (laws and policies) must build. Thirdly, as hinted above, effective mechanisms to react to unfair behaviour – of which the EU legal order features different types – must be provided and deployed. Those three requirements must be respected, within their mandates, by the ‘persons’ – institutions, bodies and agencies – in charge of making, interpreting and implementing the law. The Court of Justice’s judgement on the legality of the Rule of Law Conditionality Regulation is a perfect showcase for fairness in EU law as conceptualised in this paper, as it brings together the accommodation of claims, the role for compliance and the importance of a response: ‘the Union budget is [an instrument] for giving practical effect […] to the principle of solidarity, mentioned in Article 2 TEU, which is itself one of the fundamental principles of EU law […T]he implementation of that principle, through the Union budget, is based on mutual trust between the Member States [.M]utual trust is itself based […] on the commitment of each Member State to comply with […] the values contained in Article 2 TEU’.Footnote ⁷⁰ As the values permeate EU law, a breach of a value (such as solidarity) through violation of norms meant to give effect to it (eg, those budget-related) can affect mutual trust to the extent that, in certain cases, it can lead to the suspension of other measures expressing the same value which the member states in question had violated in the first place.

The challenge, when assessing fairness in the context of border controls, is that in many cases it affects especially persons who are not – unlike citizens – considered part of the community strictly speaking, and who are often excluded from most questions about allocation of benefits (but not duties). This consideration is inextricably linked to, and compounded by, every polity’s sovereign right to decide who can access its territory and on what conditions. That is not to say that an assessment of fairness in this area is impossible, but only that the specific features of the legal framework under consideration must be borne in mind.Footnote ⁷¹ Against that background, this paper proposes an integrated approach to the use of fairness: that is, evaluating the consistency of the details of a ‘practice’ (the system of border procedures) with its intentions (the objectives), and the compatibility of both with the mutually accepted principles underlying it (the EU values). To be sure, gauging the fairness of the substantive and procedural conditions for exercising control, or the conditions imposed on the control subject, will not always be a straightforward task. This is even more so as the system of border procedures established by the pact builds on a wide spectrum of sources, pursues different objectives, targets a diverse range of third-country nationals, and involves different levels of governance and actors. Two main allies can come to our rescue. Firstly, there is the ‘structured network of principles’ that makes the EU legal order work.Footnote ⁷² For example, proportionality is particularly helpful, as the same framework simultaneously pursues different – and possibly conflicting – objectives. Secondly, as further specified below, the principles that constrain the sovereign right mentioned above will be key, and especially what we can call ‘universal principles’ – ie, those applicable regardless of the fact that the person invoking and potentially benefiting from them belongs to the ‘community’.

In this section, we have seen how many of the themes characterising the philosophical debate on fairness resonate with systemic features of the EU legal order. We have attempted a workable definition of legal fairness, identified the relevant levels of analysis, and related that to the specific context of the EU and border controls. Before moving to the specific discussion of the border procedures, we must zoom in on the different types of fairness existing in EU law. The following – brief – taxonomy focuses on examples where fairness is explicitly referred to in the relevant provision of primary or secondary law. By understanding the nature of these different kinds of fairness featured in the EU legal order, we can learn lessons for the purposes of the discussion carried out in this paper.

3. Fairness in EU law

The previous section has engaged with the philosophical debate on fairness, and linked the main themes of the discussion to the EU as a polity. We have provided a workable definition of fairness, and applied it to Union law and policy making. We have also highlighted the need to adjust that framework to the features of the specific area under consideration – in this case, border procedures applied to TCNs. Furthermore, we have emphasised the importance of thinking about fairness ‘in context’: in the case of the EU, that means being aware of its relationship with other fundamental aspects of the EU as a legal order, such as its values, fundamental principles and objectives. Now, we zoom in on the different manifestations of fairness in EU law. These are not restricted to EU citizens and can protect persons as well as systems or structures such as markets. Broadly, we can identify three main applications of fairness in EU law. Firstly, the systemic dimension of fairness manifests itself in competition law,Footnote ⁷³ with the latter linking closely to the prevention of abuse and the achievement of a fairer society.Footnote ⁷⁴ At the same time, it is also important that the enforcement of rules of competition is fair, regard being had to procedural safeguards and the right to a good administration. Secondly, fairness plays a part horizontally in relations between private parties -and particularly so in situations marked by an imbalance of contractual power. For example, personal data must be processed fairly.Footnote ⁷⁵ In the context of employment relationships, the right to fair and just working conditions – rooted in human dignity –Footnote ⁷⁶ is protected especially in the form of conditions that respect workers’ health, safety and dignity, as well as the establishment of maximum working hours, rest periods and paid leave.Footnote ⁷⁷ Thirdly, the vertical dimension concerns the interaction between public authorities and the individual. Everyone has the right to fair compensation being paid in good time for their loss in case of dispossession of their property on grounds of public interest.Footnote ⁷⁸ The right to property, which constitutes the logical prius of the right to fair compensation, requires that the dispossession achieve a fair – ie, proportionate- balance between the individual rights and the interest of the community.Footnote ⁷⁹ Of different sorts, but still within the vertical scenario, there are exquisitely procedural rights. As regards the right to a good administration at the EU level, every person has the right to have their affairs handled impartially, fairly and within a reasonable time.Footnote ⁸⁰ The duty to act fairly consists of – inter alia – the obligation to give careful consideration to the factual and legal elements of the claimant’s case.Footnote ⁸¹ Furthermore, everyone has the right to a fair trial held by an independent and impartial tribunal established by law.Footnote ⁸² That right is the cornerstone of any system based on the rule of law, and includes aspects such as the principle of equality of arms and adversarial proceedings.Footnote ⁸³

Before going any further with closer consideration of some of those examples, we must resist the temptation to take any of the understandings of fairness mentioned above and transplant it sic et simpliciter to the border procedures laid down in EU asylum and migration law. The extreme opposite position should not be espoused either. Looking at how fairness unfolds in other fields of EU law might provide useful insight. This is true especially in light of the existence of certain universal rights that constraint polities’ sovereign rights related to border controls.

These reflections find great resonance in the horizontal application of fairness. That scenario is structurally different from border controls, because the types of relationship between the parties involved in either situation are not comparable. There are interesting elements, however, that can be drawn from the meaning of fairness in contractual relationships. For example, the Unfair Terms Directive imposes certain obligations of good faith and transparency in contracts concluded between a seller or supplier and a consumer, with the view to addressing the significant imbalance between such parties in a contractual relationship.Footnote ⁸⁴ The Unfair Commercial Practices Directive defines commercial practices as unfair if they are contrary to the requirements of professional diligence and materially distort economic behaviour of the average consumer:Footnote ⁸⁵ in particular, through misleadingFootnote ⁸⁶ and aggressive practiceFootnote ⁸⁷ affecting the consumer’s freedom of choice. This would be the case of factually incorrect information, which was however presented in a way that led the consumer to take a decision they would not have otherwise.Footnote ⁸⁸

As regards data processing by controllers and processors in particular, two concepts are worth mentioning: procedural fairness and fair balancing between different – conflicting – interests. The former consists of transparency, timeliness and burden of care, whereas the latter comprises proportionality and necessity. According to Malgieri, the difference between ‘mere’ transparency or lawfulness and ‘fair’ transparency or lawfulness is the adoption of additional safeguards that can effectively rebalance the unfair imbalance between the data controller and the subject in specific circumstances.Footnote ⁸⁹ Fairness also entails consideration of ‘the substantial circumstances at stake’, such as expectations of the individuals, effects on the data subjects, actual interests of the parties.Footnote ⁹⁰ Valcke et al also highlight the relationship between the implementation of fairness by controllers and processors and the trust of data subjects.Footnote ⁹¹ From these examples, fairness plays the role of ‘enhancer’ of other principles to inject greater balance in an asymmetric relationship. Fair processing also entails that a data subject should not be misled in concluding a contract which authorises the processing of certain personal data which the control subject might have refused to agree to – in other words, the data controller must demonstrate that the data subject had ‘information relating to all the circumstances surrounding that processing, in an intelligible and easily accessible form, using clear and plain language, allowing that person easily to understand the consequences of that consent, so that it is given with full knowledge of the facts’.Footnote ⁹² This, a contrario, echoes Rawls’s view of unfairness as exploiting loopholes or ambiguities to defeat the purposes of a practice. At the intersection between copyright law and data protection, the Court has also stated that EU law must be transposed and interpreted by member states in a way that ensure a fair balance between different fundamental rights protected by the EU legal order.Footnote ⁹³

How could the foregoing analysis relate to EU migration and asylum law, and the system of border procedures more specifically? Firstly, fairness requires compliance with the agreed principles underpinning a ‘practice’, as well as the intentions thereof. As we can presume that the objectives stated in the Treaties align with the EU values, we must consider whether: the objectives pursued by the relevant measures governing border procedures are consistent with those set in primary law; and, whether the details of the legal framework and its implementation are capable of achieving those objectives in compliance with the EU’s values. As regards the parameters of that assessment, fairness can work to balance an asymmetrical relationship such as that between public authorities and the individual. While border controls are expression of a core sovereign right, it is also true that states and the EU collectively have accepted universally applicable constraints on that right (such as non-refoulement). Secondly, and relatedly, an assessment of fairness entails consideration of how competing claims are balanced. This is especially the case when it comes to border procedures, as they address different groups of people and pursue different objectives. The structured network of principles moving EU law, and particularly the principle of proportionality, can be particularly helpful to assess the accommodation of competing claims. Thirdly, fairness presupposes a response to violations of the principles and intentions of the practice. In the context of EU law and border procedures, this amounts in particular to a system of effective legal protection. Part II applies the framework developed in this Part to the system of border procedures as follows. As mentioned above, an assessment of legal fairness can concern different ‘moments’ such as the law-making, the judicial interpretation, the implementation. Given the recent nature of the pact, the main focus is on the relevant legislative instruments. The assessment of fairness requires an analysis of the designing of the practice, the accommodation of claims and the response to unfairness. In relation to border procedures, those three aspects are best evaluated by looking at the system of sources, conditions for implementing the procedures, and mechanisms of scrutiny. We have argued that, beyond a certain level of abstraction, what is fair depends -at least to an extent – on the specific question under consideration. The assessment of fairness relies on the parameters –the ‘constraints’ mentioned above- deemed most relevant to each of those scenarios, with the view to drawing conclusions on the overall fairness of this law. On that basis, the discussion on sources pays particular attention to legal certainty and accessibility to the legal information, understood both as accessibility to the source itself and to the substantive content thereof. As regards the conditions for the performance of the border procedures, the research considers the implications of the pact for the right to seek asylum, non-refoulement and the right to liberty. Finally, when it comes to mechanisms of scrutiny, the article investigates the effects of the new legislative measures in terms of accountability and effective judicial protection.

Part II – Border Procedures in the Asylum and Migration Pact

The recently agreed migration and asylum pact has significantly changed the legal landscape of migration and asylum law. The following measures operate together to establish a complex system of border procedures: the Screening Regulation;Footnote ⁹⁴ the Asylum Procedure Regulation (APR);Footnote ⁹⁵ the Return Border Procedure (RBP) Regulation;Footnote ⁹⁶ and the Crisis Regulation.Footnote ⁹⁷ Consistently with the account of fairness proposed in this article, the analysis revolves around three main aspects of that system: the sources, the conditions for applying the procedures, and the pathways to scrutiny. In order to understand whether those procedures are fair to TCNs, we ultimately aim to answer the question as to whether the framework is consistent with its intensions and underlying principles. In order to do that, we must first consider the alignment between the objectives of those measures and the corresponding ‘intentions’ established in the Treaties.

Broadly, the objectives scattered throughout the different policy areas governed by the TFEU and TEU are detailed expressions of the fundamental macro-objectives stated in Article 3 TEU -and, specifically, of the Union’s overarching goals of promoting peace, its values and the well-being of its people.Footnote ⁹⁸ The Treaties organise objectives in concentric circles, with Title V TFEU elaborating on the aims related to the creation of the area of freedom security and justice (AFSJ).Footnote ⁹⁹ The constitution of the AFSJ must respect fundamental rights and the different legal systems and traditions of the Member States.Footnote ¹⁰⁰ The common policy on asylum, immigration and external border controls in particular must be based on solidarity between Member States and be fair to TCNs.Footnote ¹⁰¹ In that regard, the Union shall gradually introduce an integrated management system for external borders.Footnote ¹⁰² It must develop a common asylum policy, to offer appropriate status to TCNs requiring international protection and ensure compliance with the principle of non-refoulement.Footnote ¹⁰³ It must frame a common immigration policy, aimed to the efficient management of migration flows and the combating of illegal immigration and human trafficking.Footnote ¹⁰⁴

As secondary EU law increasingly governs the management of mixed migration flows, the same piece of legislation can pursue a heterogeneous set of objectives – just like those referred to above. This is certainly the case for the instruments considered in this paper, and the system of border procedures they set out. Firstly, the Screening Regulation establishes a screening mechanism, with the view to facilitating the proper identification of TCNs and their efficient referral to the appropriate procedures.Footnote ¹⁰⁵ In doing that, the Regulation should contribute to identifying vulnerable persons, countering secondary irregular movement within the Union, and achieving the objectives of border controls more broadly (including reducing illegal migration and combating crime).Footnote ¹⁰⁶ When performing border controls and the screening procedures, Member States must act in compliance with relevant Union and international law, and particularly: the rights of applicants for international protection (especially non-refoulement), the best interest of the child enshrined in Article 24(2) CFR, human dignity and non-discrimination.Footnote ¹⁰⁷ Secondly, a humane, fair and efficient asylum policy is a complementary component of the EU’s AFSJ.Footnote ¹⁰⁸ The APR aims to ensure timeliness and effectiveness of the asylum procedures, equity and equality in treatment, clarity and legal certainty for applicants. A more consistent system applied across the Union has also the objective of reducing secondary movement.Footnote ¹⁰⁹ Interestingly, the APR clearly identifies a series of conditions for asylum procedures to be fair: effective access to the procedure; an effective opportunity to present all elements available to the applicant; an effective right to a personal interview (subject to limited exceptions) and time to prepare and consult a legal advisor, access to free legal assistance,Footnote ¹¹⁰ and a rigorous examination of the application, taken impartially and objectively based on relevant, precise and up-to-date information.Footnote ¹¹¹ Effective access to the examination procedure should also be available to persons at border crossing points and in detention facilities.Footnote ¹¹² As regards asylum border procedures more specifically, these aim to quickly assess ‘whether applications are unfounded or inadmissible and to swiftly return those with no right to stay, in a manner that fully respects the principle of non-refoulement, while ensuring that those with well-founded claims are channelled into the regular procedure and provided quick access to international protection’.Footnote ¹¹³ As apparent from the preamble of the APR, the fairness of the procedures rests, for the most part, on the effectiveness of its constitutive components. This aspect is highly relevant for the detailed analysis of the framework developed below and fits in with the approach to fairness proposed in this article. In fact, effectiveness is essential to ensure that the intentions and underlying principles of a practice are respected. When the same instrument (or set of instruments) pursues different objectives, and in the absence of any information on implementation due to their recent nature, the details of the framework are key to understanding how those different objectives have been accommodated. The RBP Regulation takes a similar tone to that of the Screening and AP Regulations. It establishes procedures applicable to TCNs whose application for international protection has been rejected in accordance with asylum border procedures, while also reiterating that member states are bound by international law instruments and provisions on fundamental rights (particularly as regards the best interest of the child).Footnote ¹¹⁴ The same holds true for the Crisis Regulation, which sets out procedures for the adoption of emergency measures in exceptional situations (including derogations from provisions of asylum law). As such, the Regulation upholds the respect for the fundamental rights of TCNs and the principles recognised by the Charter.Footnote ¹¹⁵ The extent to which that statement of intent is reflected in the provisions of the Regulation is discussed in the next sections. Overall, it is clear that the objectives pursued by these instruments do not depart from those stated in the Treaties. Consistently with the integrated approach to migration proposed by the Commission, each measure straddles the scope of the different provisions of the TFEU mentioned above and simultaneously cover issues of asylum, irregular migration and external border controls. Given the diversity of goals pursued by the Regulations, a careful assessment of how different claims are accommodated is key to the overall assessment of fairness carried out in this paper.

4. Sources of border procedures. The role for the EU and the discretion of Member States

The focus of this section is on sources ‘internal’ to the measures considered.Footnote ¹¹⁶ In the new system of border procedures created by the pact, the Screening Regulation comes first logically and chronologically. The Regulation governs the screening of TCNs who have crossed the external borders illegally, have applied for international protection during border checks, or have been disembarked after a SAR operation.Footnote ¹¹⁷ The screening takes place before entry and aims to facilitate the referral of the TCN to the appropriate procedure. More specifically, the competent authorities must carry out a preliminary health check, and they must check for indications that the person is stateless, vulnerable, victim of torture or inhuman treatment, or has special needs within the meaning of the Return Directive, Article 25 Reception Conditions DirectiveFootnote ¹¹⁸ and Article 20 APR.Footnote ¹¹⁹ Under the Return Directive, the category ‘vulnerable persons’ covers minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.Footnote ¹²⁰ While the Reception Conditions Directive merely refers back to the APR, the latter only mentions applicants who might have been victims of torture, rape or another serious form of psychological, physical, sexual or gender-based violence.Footnote ¹²¹ The definitions provided for in those instruments do not exactly overlap, which can create issues of legal certainty and gaps of protection. One of the objectives of the Regulation is to identify vulnerable persons, so that their special needs are fully taken into account in the determination of the applicable procedure.Footnote ¹²² To ensure the widest possible scope of protection and pursue that objective more effectively, the different scopes of the concept of ‘vulnerable persons’ should be interpreted ‘cumulatively’.

While this example refers to a specific (however important) aspect of interaction between sources within the Screening Regulation, more structural questions emerge from the sources relevant to the application of the Crisis Regulation. The latter sets out rules for the adoption of exceptional measures in situations of crisis or force majeur, consisting essentially of derogations from certain provisions of EU asylum law, and/or solidarity measures for the management of the situation. The first step in the framework governed by the Regulation is the reasoned request for such measures, sent by the Member State(s) concerned to the Commission.Footnote ¹²³ In the request, the Member States must include a number of sources – ie, information – which vary depending on whether they claim to be experiencing a situation of crisis, instrumentalisation or force majeur. The way we interpret the nature and role for these sources is key to the assessment of fairness: a successful request from a Member State will lead to derogations from provisions of asylum law (as detailed below), which will in turn impact the position of the TCNs concerned. As such, a fairness-orientated construction of these provisions would warrant a restrictive interpretation of the grounds on which such derogations could be invoked. This is particularly the case when it comes to situations of crisis. In its request, the Member State must describe how, as a result of the situation, its asylum and reception system has become non-functional, as well as the measures taken to address the situation and a justification proving that that system, although well-prepared and notwithstanding the measures already taken, is unable to address the situation.Footnote ¹²⁴ Therefore, a finding that such a situation exists presupposes in particular the well-preparedness of the invoking state, and the dysfunction caused to both its asylum and reception system. To determine the level of fairness of the law in action, we will have to assess how the Commission will interpret those requirements, and how it will ‘weigh’ the information provided by the Member State. We must also acknowledge that the assessment cannot be mono-dimensional and consider exclusively the implications for fairness to TCNs. An excessively restrictive interpretation of the described legal requirements would undermine the effectiveness of the Regulation, which would also be legally unsound. It is argued, however, that fairness would require the rigorously upholding of the conditions stated in the Regulation, and particularly the need for the state to have been well-prepared, and the cumulative nature of the impact on the asylum and the reception system.

In that regard, the sources relied on by the Commission to decide on the state’s request include information and data contained in its annual asylum and migration report related to the Member State(s) concerned.Footnote ¹²⁵ If the Commission deems the situation under consideration as constituting a case of crisis or force majeur, it will adopt an implementing decision for those purposes.Footnote ¹²⁶ Alongside the adoption of the implementing decision, the Commission must propose that the Council itself adopt an implementing decision. The Council implementing decision must state the grounds on which it is based and the timeframe for its application, and must identify the specific provisions from which the Member State is allowed to derogate. We must highlight the lack of any details concerning the methodology of the assessment, which leaves the Commission the widest discretion in the use of the data.Footnote ¹²⁷ While the provisions of a margin of manoeuvre in this regard is understandable, the absence of constraints stands out. Such implementing decisions can significantly impact the right to asylum, which is a principle binding the Union as well as the Member States and which constrains their sovereign right to decide on entry of TCNs. The mentioned provisions raise issues of clarity. Excessively vague concepts and procedures are unsuitable grounds for restricting individual rights. They can result in situations of arbitrariness, which would in turn be difficult to reconcile with fairness itself. That being said, both the Commission proposal and the Council implementing decision must respect the principles of necessity and proportionality. Once again, the assessment of the implementation will be key. While some of the questions around legal certainty can be potentially addressed by means of a fairness-orientated interpretation as proposed above, the broad discretion left to the Commission in its assessment might be harder to scrutinise.

5. Conditions and modalities of border procedures

6. Pathways to scrutiny

The new framework of border procedures lays down a series of pathways to scrutiny. They can be ‘institutional’, in the sense that they are engaged at the initiative of an EU institution or a Member State, or ‘individual’, when they are activated by a natural person or an organisation. To start with the former, a series of monitoring obligations are established in the context of the Crisis Regulation. While both the Commission and the Council monitor the persistence of a situation of crisis or force majeur, the Commission must specifically focus on compliance with fundamental rights and humanitarian standards. It can also ask the EU Asylum Agency to initiate monitoring.Footnote ¹⁶⁷ The Commission must also report to the EP and the Council every three months on the application of the decision and the effectiveness of the measures, and the continuing respect for the principles of proportionality and necessity.Footnote ¹⁶⁸

The Screening Regulation features the most important provisions in relation to institutional scrutiny. Each Member State will have to establish an independent monitoring mechanism, focusing on activities of national authorities. The mechanism must oversee the compliance of the screening authorities with the right of access to asylum procedures, non-refoulement, the best interest of the child and the relevant rules on detention, as well as ensure that allegations of fundamental rights breaches are dealt with effectively. To that end, Member States must establish a system for investigating allegations of violations. The mechanism will consist of on-the-spot checks and random and unannounced checks, and its members must have access to the relevant locations and documents insofar as necessary.

In the absence of implementation (especially at national level), three main remarks are worth making at this stage on the fairness of the monitoring framework. The first consideration is to do with legal certainty. As stated in the Screening Regulation, the future monitoring mechanism will have to live together with other, existing monitoring mechanisms – such as those established within the EU Asylum Agency or the EBCG Regulations.Footnote ¹⁶⁹ Coordination among them on the ground will be key to avoiding conflicts and inconsistencies in approaches. Such coordination should also aim to ensure that TCNs are clear as to what pathway of scrutiny is the most suitable for their specific situation or grievance.

Secondly, the APR states that Member States must provide for monitoring of fundamental rights during border procedures which meets the standards of the monitoring mechanisms under the Screening Regulation. However, a comparable obligation is not established vis-à-vis return border procedures. This is particularly disappointing, as the pact leaves an unjustified hole in the system of responses to legal unfairness. Thirdly, one of the obligations related to the establishment of the monitoring consists of ensuring its independence. In this regard, the FRA will issue general guidance on the establishment of the mechanism, and can assist for those purposes at the request of the Member States.Footnote ¹⁷⁰ Since the independence of the monitoring will be a pre-condition for its fairness, the Member States’ set-up thereof will have to be closely monitored (pun intended).

The provisions on non-institutional pathways to scrutiny are no less problematic. Under the Screening Regulation, persons providing assistance and counselling must be given access to the screening. Member States can limit – but not severely restrict – such access when objectively necessary for the security, public order or administrative management of the facility where the screening is performed.Footnote ¹⁷¹ The same provision applies to access to applicants in detentionFootnote ¹⁷² or at border transit zones,Footnote ¹⁷³ as well as to cases where the Member States are derogating from certain provisions of EU asylum law on the basis of the Crisis Regulation.Footnote ¹⁷⁴ While public security or public order seem legitimate – if broad – grounds on which access can be limited, the same may not hold true for the management of the facility. If anything, it explicitly allows limitations for a very broadly-worded reason based on matters of administrative convenience. To be sure, those restrictions do not apply to the access to applicants of the UN High Commissioner for Refugees, including at the borders and in transit zones.Footnote ¹⁷⁵ The limitations on scrutiny in practice might still be significant, as the High Commissioner alone might not be able to ensure the same ‘coverage’ as that resulting from granting access to other bodies (and alongside the High Commissioner itself).

When it comes to pathways to scrutiny afforded to the person concerned, the pact features a series of provisions on ‘traditional’ remedies – that is, against decisions strictly related to international protectionFootnote ¹⁷⁶ or intra-EU transfer.Footnote ¹⁷⁷ However, there is no possibility to appeal the outcome of the screening, the use of asylum border procedures, or the decision not to be granted entry. Strictly speaking, this aspect of the framework is not in direct conflict with the right to an effective remedy, to the extent that there is no established right to a specific type of asylum procedure – as long as it is fair – or to be granted entry.Footnote ¹⁷⁸ To borrow from the ECtHR’s approach to Article 6 ECHR, one might also argue that the assessment should focus on the overall fairness of the procedure: such fairness would be ensured if a wrong occurred at a certain stage was subsequently ‘corrected’. Given the highly interdependent nature of the different steps of border procedures, questions can be raised about the suitability of such an interpretation by analogy. On a more specific note, the information indicated in the initial screening form must be recorded ‘in a way that is amenable to administrative or judicial review’ during asylum or return procedures. However, this obligation does not concern information such as the reason for irregular arrival or entry, any comments and other relevant information, information on routes travelled or suspected smuggling or trafficking in human beings.Footnote ¹⁷⁹ There seems to be no justifiable grounds for leaving that information out of potential challenges, or requests for revision. Quite the contrary, it might provide important material to define the individual situation of the person undergoing the screening.

The system of response to unfairness arising from the implementation of border procedures is rather ‘patchy’. At the very least, we can safely say that the introduction of such procedures established is not matched by a power of scrutiny attributed to the person concerned. Apart from certain aspects of the framework which will be fleshed out by the national implementation, the different measures itself leaves gaps in protection that seem not to be sufficiently justified and thus border on arbitrariness, or might appear disproportionate. Whether or not these elements would survive a test of legality before the Court of Justice is difficult to say. The integrated analysis of the Regulations, however, leaves the impression that the legal framework has limited the response to unfairness to the greatest possible extent of the legally defensible.