Between physical and legal borders: the fiction of non-entry and its impact on fundamental rights of migrants at the borders between EU law and the ECHR

Abstract

This article examines the legal fiction of non-entry and its impact on the human rights of migrants at the borders within the framework of the ECtHR and EU law. The analysis focuses on three main areas of law: detention, asylum and expulsion. The contribution will first give a definition of the fiction of non-entry and explain how it is implemented in a number of national legal frameworks concerning third-country nationals at the borders. In particular, the case of France (before and after the Amuur ECtHR judgment) and the case of Germany will be examined. The article will then analyse the fiction of non-entry in the ECtHR jurisprudence, in particular with regards to Article 5 ECHR. The third section explores how such a legal fiction is implemented in EU law, throughout the analysis of the relevant provisions of the Schengen Border Code and of the EU Directives related to asylum and expulsion of third-country nationals. Finally, the New Pact on Migration and Asylum will be investigated, namely how it institutionalises the fiction of non-entry at the EU external borders within the framework of the new proposals for a pre-entry screening and for an asylum procedures regulation.