Executive summary
Meeting protective demands outside state territory
is no new phenomenon. This study is concerned with a particular
practice of extending protection, which may be termed "Protected
Entry Procedures". It describes arrangements allowing a non-national
… to approach the potential host state outside
its territory with a claim for asylum or other form of international
protection, and
… to be granted an entry permit in case of a positive response
to that claim, be it preliminary or final.
Protected Entry Procedures aim at complementing
the present system of extraterritorial migration control in the
EU with mechanisms allowing for the differentiation between persons
in need of protection and other categories of migrants before they
reach the border of potential host states. What distinguishes Protected
Entry Procedures from traditional resettlement is precisely the
fact that the individual is directly engaging the potential host
state in a procedure aiming at the securing of physical transfer
and legal protection. In this mechanism, the individual autonomy
of the protection seeker is accorded a central role. A primary
goal of Protected Entry Procedures would be to offer legal alternatives
for migration to bona fide protection seekers. It aims at identifying
deserving beneficiaries at the earliest stage possible, which may
assist in cutting fiscal, social and other costs both for the potential
host country and for the protection seeker. On the other hand,
the potential for cost reduction is bought at the price of certain
risks for protection seekers and destination states alike, and
the real challenge is to find a system that balances the former
against the latter.
When formulating Protected Entry Procedures,
actors will relate to the following choices:
… Formal versus informal approaches: Should the
Protected Entry Procedure be law-based and predictable, or policy-based
and flexible? Could a mix of both elements be conceived?
… Definition of beneficiaries: Is the Protected Entry Procedure
mainly used for protection seekers with close links to the destination
state, e.g. family ties? Does it merely cater for narrowly defined
vulnerable groups? Or, is it inclusively formulated, e.g. by largely
replicating those definitions of beneficiaries applicable in territorial
processing?
… Choice of countries: Is the Protected Entry Procedure used
in third countries only, or is it used in countries of origin as
well? Are applications from third countries turned down by referring
to the protective capacity of that country (i.e. by using a safe
third country-argument)?
… Risk distribution during decision-making: Is the applicant
obliged to wait for the whole length of determination procedures
in the country where the diplomatic representation is located,
or is an entry visa granted after a preliminary assessment (testing
the likelihood that the applicant fulfils definitional criteria)?
… Aversion of persecutory threats: Does the diplomatic representation
remain passive vis-ý-vis persecutory threats during the waiting
period, or is there a possibility of extending rudimentary forms
of protection in situ (e.g. by organising a transfer out of the
territory of the state in question)?
This study shows that Protected Entry Procedures
are unilaterally made use of by six Member States, with a notable
divergence among their practices (Austria, Denmark, France, the
Netherlands, Spain and the UK). Clearly, these states perceive
the Protected Entry Procedure as a complement to, and not a replacement
of territorial processing. Our analysis also revealed that international
law features a mandatory requirement to consider urgent protection
claims filed with diplomatic representations and to facilitate
legal entry, e.g. by issuing an entry visa, in specific cases.
Furthermore, expansion, qualification and harmonisation of Protected
Entry Procedures are in no way contrary to the present acquis.
Quite the opposite: the goal to fight illegal immigration would
be accommodated, while the intentions as well as the letter of
the Tampere Conclusion would be implemented.
To be a credible alternative to illegal migration
and the territorial seeking of protection, Protected Entry Procedures
must be utilised widely and function in a predictable and uniform
manner. The study concludes that the harmonisation of a unilateral
Protected Entry Procedure through a Community instrument setting
minimum standards should be considered. In a second, and legislatively
much more challenging stage, the development of a truly multilateral
system could be discussed, by which Member States would integrate
the Protected Entry Procedure into their joint visa policies, and
refine it with an allocation mechanism regulating the distribution
of protective responsibilities. Maintaining a degree of informality
and flexibility is appropriate with regard to Protected Entry Procedures
in countries of origin. With regard to third countries, practices
should be law-based, predictable, reflecting the refugee definition
and categories of subsidiary protection to their full extent, and
highly integrated with the territorial processing of protection
claims. For claims filed in countries of origin and urgent claims
filed in third countries, the representation should be entitled
to grant visas based on accelerated prima facie assessments. Finally,
a demanding reconceptualisation of the "safe third country";
notion is necessary, if a Protected Entry Procedure in third countries
is intended to offer a realistic alternative to unauthorised entry.