HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

within the state’s territory where people remain outside of the state despite their physical appearance inside mentioned are tools to control the migration. As ECtHR stated in Amuur v. France, it is a sovereign right to control aliens’ entry into and residence in their territory. 26 But as the court adds in passing, it must be exercised in accordance with the 1951 Convention Relating to the Status of Refugees. 27 The potential risks of the use of the legal fiction of non-entry are discussed in the following paragraphs after a brief introduction of the Screening regulation that establishes the fiction. 2. The Legal Fiction of Non-Entry in the New Pact on Migration and Asylum The New Pact on Migration and Asylum is a set of rules, regulations, and directives as well as soft-law guidance, aiming to establish a common approach in the field of migration and asylum and unify asylum procedures across the EU. As mentioned above, one of the regulations that is encompassed in the New Pact on Migration and Asylum is the Screening regulation. To strengthen external borders, the Screening regulation sets out new rules for the identification of applicants for international protection. 28 In terms of time limits (either seven, four, or three days), identification, health and security checks, taking fingerprints, and registration in Eurodac should be carried out. 29 The procedure can be executed at the external borders or within the territory of a Member State depending on whether the person subjected to the procedure is staying illegally within the territory of the EU or has made an application for international protection at the external border. Each of these has different subjects and conditions. Subject to the screening procedure at the external border are persons who do not fulfil the conditions for entry set out in the Schengen Borders Code 30 and have been detained while crossing the external border illegally or disembarked after an operation at sea, and persons who made an application for international protection at external 26 Amuur v. France, 25 June 1996, Application no. 19776/92 [online]. Para. 41 [cit. 2024-08-15]. Available at: https://hudoc.echr.coe.int/fre#{%22fulltext%22:[%22Amuur%22],%22itemid%22: [%22001-57988%22]}. 27 Ibidem 28 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 borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817 [online]. Para. 59 [cit. 2024-08-15]. Available at: https://eur-lex.europa.eu/legal-content/ EN/TXT/?uri=CELEX%3A32024R1356. 29 Ibidem, Art. 8(3). 30 REGULATION (EU) 2016/399 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) [online]. Art. 6 [cit. 2024-08-15]. Available at: https://eur-lex.europa.eu/ legal-content/EN/TXT/?uri=celex%3A32016R0399.

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