HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

THE LEGAL FICTION OF NON-ENTRY IN THE CONTEXT OF THE NEW PACT ON MIGRATION AND ASYLUM Helena Šmolková

Abstract The article critiques the EU’s 2024 New Pact on Migration and Asylum for enshrining the legal fiction of non‑entry , which treats migrants intercepted at external borders as legally outside the Union even while on EU soil. After outlining the doctrine’s roots and its use in earlier national “transit zones,” the study compares the new Screening and Asylum Procedure Regulations with ECtHR case law ( Amuur , Hirsi Jamaa ) and core safeguards in the EU Charter and Refugee Convention. It argues that mandatory confinement in “designated areas”, minimal judicial review, and tight procedural deadlines risk unlawful detention and refoulement. By formalising practices previously condemned for pushbacks, the Pact may erode rather than bolster migrant rights. Introduction Migration and asylum policy are among the most pressing issues of our time. Due to the increasing number of arrivals of persons potentially in need of international protection and persistent differences in asylum procedures between Member States 1 , the European Union felt a need to set a common framework in the field of migration policy. 2 In May 2024 the Council of the European Union officially adopted a long awaited and thoroughly negotiated New Pact on Migration and Asylum 3 including a so-called Screening regulation 4 . One of the key principles of the pre-entry screening, as presented in this regulation, is a legal fiction of non-entry. 1 REGULATION (EU) 2024/1348 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU [online]. Para. 3 [cit. 2024-08-14]. Available at: https://eur-lex.europa. eu/legal-content/EN/TXT/PDF/?uri=OJ:L_202401348. 2 REGULATION (EU) 2024/1351 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 May 2024 on asylum and migration management, amending Regulations (EU) 2021/1147 and (EU) 2021/1060 and repealing Regulation (EU) No 604/2013 [online]. Art. 6 [cit. 2024-08-14]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L_202401351&qid=1723105358939. 3 COUNCIL OF THE EU. The Council adopts the EU’s pact on migration and asylum [online]. 14 May 2024 12:20[cit. 2024-08-15]. Available at: https://www.consilium.europa.eu/en/press/press releases/2024/05/14/the-council-adopts-the-eu-s-pact-on-migration-and-asylum/. 4 REGULATION (EU) 2024/1356 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 May 2024 introducing the screening of third-country nationals at the external

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