HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

comply with their obligations under the Convention. The previously mentioned case Amuur v. France also contained unlawful refoulement of applicants to Syria. Lastly, an issue with the status of refugees emerges when applying the legal fiction of non-entry , particularly with the obligations established in the Convention Relating to the Status of Refugees. Some doctrines hold that these obligations arise only when a person crosses an international border, i.e. that the legal status of a refugee is linked to crossing the border. 48 From this perspective, the use of the legal fiction of non entry would create an insurmountable obstacle for migrants to exercise their rights guaranteed by the Convention. Conclusion This article aimed to discuss the character of the legal fiction of non-entry on the European level and consider the potential risks that it brings. Drawing upon the foregoing the introduction of the fiction rather reduces the protection of rights of the migrants and third-country nationals and generally worsens their position during the process of obtaining international protection. However, the most problematic parts do not stem directly from the legislation, but rather from the fact that such legislation has historically been ineffective. The introduction of the fiction creates a different and strict legal regime for third-country nationals at the external borders in comparison to the persons illegally staying within the territory of a Member State. This is especially evident in terms of the restriction of personal liberty and regarding the fact that to the second group, the fiction does not apply. As regard the protection of human rights, the Screening regulation does not provide any other instrument than the monitoring mechanism. There are no provisions ensuring the right to a fair trial, such as a right to appeal, and no provisions addressing the question of jurisdiction in the event of a breach of the time limits laid down in the Regulation. Given the extremely short time limits, which are intended to speed up the whole procedure, it is more than likely that these time limits will be exceeded. According to the ECtHR case law and a certain approach to the interpretation of Convention, it is possible that some Member States will not even recognise their obligations under the Convention if the legal fiction of non-entry is applied, as they will apply the concept of a refugee as a person who has crossed the borders. The crossing is then not realistically possible unless the person has a decision on some form of residence permit or any kind of international protection. 48 For example, SHACKNOVE, Andrew E. “WHO IS A REFUGEE?” In: Ethics [online]. Vol. 95, No. 2, pp. 274–84 [cit. 2024-08-15]. Available at: http://www.jstor.org/stable/2380340. or SODESTORM, Kelly. AN ANALYSIS OF THE FICTION OF NON-ENTRY AS APPEARS IN THE SCREENING REGULATION [online]. Melbourne, September 2022, pp. 2-3 [cit. 2024-08-15]. Available at: https:// ecre.org/wp-content/uploads/2022/09/ECRE-Commentary-Fiction-of-Non-Entry-September-2022.pdf.

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