folder VI.2.3 Access to Territory and Access to Procedures

Main Debates

Assistance to those displaced outside the EU v. duty to provide protection within European state territory

Non-entrée policies v. duty to provide protection

Main Point

Tension between objectives of migration control, particularly control of irregular migration, and protection obligations

Editor’s Note

Examine how attempts to reconcile migration control and protection have been made when EC legislation was proposed and applied in practice and when the legislation was adopted.


folder VI.2.3.1 The EU’s External and Internal Borders

Main Debates

Are states entitled to prevent arrival at their borders of persons seeking protection?

Do the 1951 Geneva Convention and Article 3 of the ECHR create a right of access to territory?


Main Points

The claim to state sovereignty as regards the control of borders

Absence of a right to cross a border as such under international law

Borders in asylum regions


Editor’s note

See also the Gebremedhin v. France case in Section V.1.2 and the Prague Airport case in Section V.2.3.2.

folder VI.2.3.2 Interception and Rescue at Sea

Main Debates

Who has responsibility for asylum-seekers intercepted or rescued at sea?

How does the position change if they are intercepted or rescued by Member States’ registered vessels in (a) Member States’ territorial waters? (b) international waters? (c) the waters of third states?

What are the legal responsibilities of State vessels taking part in joint maritime border control operations, such as those led by Frontex?


Main Points

Interaction between international law of the sea and rules of refugee and human rights law

Ensuring respect for the principle of non-refoulement in the operational context of border management.

The (il)legality of the Italian ’push-back’ policy

folder VI.2.3.3 Visas

Main Debates

Are visas a mechanism to move border control beyond the physical border?

Do asylum seekers have a right to a visa even if they are in their country of origin?

Immigration control v. human rights protection


Main Points

Content of EU visa rules, particularly visa list and visa format

Connections between visa rules and asylum issues



Editor’s Note


Note the imposition of visas on every country producing large numbers of refugees/asylum-seekers and the inevitable impact on the likelihood that they will enter illegally and/or use facilitators for smuggling them in. Readers should recall Article 31 of the 1951 Geneva Convention.

folder VI.2.3.4 Carrier Sanctions

Main Debates

Are carrier sanctions permitted under the letter of the 1951 Geneva Convention?

Should non-state parties be responsible for pre-screening asylum seekers?

Main Point

Carrier sanctions as a deflection mechanism

folder VI.2.3.5 Extraterritorial Immigration Control and Extraterritorial Processing

Extraterritorial immigration control refers inter alia to the system of immigration liaison officers used for some time by EU Member States which post officials from their border services in other countries, to reinforce checks and controls on entry to their territory from the point of departure. In addition, recent years have seen several debates about the notion of ’extraterritorial processing’, which would involve the possibility of obliging asylum seekers to request asylum of the EU from countries outside the Union, with the implication that this would be accompanied by restrictions on entry and/or rights to seek asylum within the EU.

Main Debates

What are the potential arguments for and against the legality of processing requests for asylum in the EU while claimants remain outside EU territory?

What practical problems could result from such a policy?

What are the potential implications of making financial assistance to non-EU States conditional upon more restrictive border control?


Main Points

External relations policy as tool to persuade non-EU States to carry out EU policies

Potential future prospects for external processing of asylum applications



Editor’s Note:


See also Section V. on Safe Third Country.

folder VI.2.3.6 Biometrics and Databases

Main Debates

Interoperability v. the purpose limitation principle

Is law enforcement access to asylum seekers’ fingerprint data consistent with the right to privacy and protection rationale of the Dublin and Eurodac systems?