HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

border crossing points or transit zones. 31 This procedure also applies to persons who do not fulfil the conditions for entry but are authorised by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligation according to the Schengen Borders Code. 32 The legal fiction of non-entry is established in Art. 6 of this regulation. According to this article, persons not fulfilling the conditions to entry who are apprehended in connection with unauthorised crossing of external borders or disembarked in the territory after search and rescue operation, “ shall not be authorised to enter the territory of a Member State ”. 33 They also must remain in the designated area “ generally situated at or in proximity of the external borders or, alternatively, in other locations within its territory ”. 34 This legislation establishes a certain part of the land of Member States which is legally not within its territory only for third-country nationals enumerated in the paragraph above, where these persons are obliged to remain until the end of the procedure. The legal regime applicable to the persons at external borders differs greatly from the persons staying illegally within the territory of a Member State. The latter are still subject to the procedure (in case they have not already been subjected to the screening) 35 , nevertheless, the legal fiction of non-entry does not apply to them according to Art. 6(1) per eliminationem . Despite staying in the Member State illegally, legally they are within its territory. They are obliged to remain available to the authorities carrying out the screening procedure but not in any specifically designated area. 36 There are no constraints in terms of their personal liberty, whereas the persons at external borders are incumbent to remain in the designated area. Another regulation operating with the legal fiction of non-entry is the Asylum procedure regulation. 37 The fiction is established in the Art. 43(2), explicitly stating that “ applicants subject to the border procedure shall not be authorised to enter the territory of a Member State ”. The border procedure should not exceed 12 weeks, although that period can be prolonged to a maximum of 16 weeks. 38 During the procedure, the 31 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]. Art. 5(1), (2) [cit. 2024-08-15]. Available at: https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=CELEX%3A32024R1356. 32 Ibidem, Art. 5(3). 33 Ibidem, Art. 6. 34 Ibidem, Art. 8(1). 37 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]. [cit. 2024-08-15]. Available at: https://eur-lex.europa.eu/eli/ reg/2024/1348/oj?locale=en. 38 Ibidem, Art. 51. 35 Ibidem, Art. 7. 36 Ibidem Art. 6.

68