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

Article 1

Subject matter

This Regulation establishes:

(a) the screening at the external borders of the Member States of third-country nationals who, without fulfilling the entry conditions set out in Article 6 of Regulation (EU) 2016/399, have crossed the external border in an unauthorised manner, have applied for international protection during border checks, or have been disembarked after a search and rescue operation, before they are referred to the appropriate procedure; and

(b) the screening of third-country nationals illegally staying within the territory of the Member States where there is no indication that those third-country nationals have been subject to controls at external borders, before they are referred to the appropriate procedure.

The objective of the screening shall be to strengthen the control of third-country nationals crossing the external borders, to identify all third-country nationals subject to the screening and to check against the relevant databases whether the persons subject to the screening might pose a threat to internal security. The screening shall also entail preliminary health and vulnerability checks to identify persons in need of health care and persons that might pose a threat to public health, and to identify vulnerable persons. Such checks shall facilitate the referral of such persons to the appropriate procedure.

This Regulation also provides for an independent monitoring mechanism in each Member State to monitor compliance with Union and international law, including the Charter of Fundamental Rights of the European Union (the ‘Charter’), during the screening.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘threat to public health’ means ‘threat to public health’ as defined in Article 2, point (21), of Regulation (EU) 2016/399;

(2) ‘verification’ means ‘verification’ as defined in Article 4, point (5), of Regulation (EU) 2019/817;

(3) ‘identification’ means ‘identification’ as defined in Article 4, point (6), of Regulation (EU) 2019/817;

(4) ‘third-country national’ means ‘third-country national’ as defined in Article 2, point (6), of Regulation (EU) 2016/399;

(5) ‘stateless person’ means a person who is not considered as a national by any State under the operation of its law;

(6) ‘Europol data’ means ‘Europol data’ as defined in Article 4, point (16), of Regulation (EU) 2019/817;

(7) ‘representative’ means a natural person or an organisation, including a public authority, appointed by the competent authorities or bodies to represent, assist and act, as applicable, on behalf of an unaccompanied minor;

(8) ‘biometric data’ means ‘biometric data’ as defined in Article 4, point (11), of Regulation (EU) 2019/817;

(9) ‘minor’ means a third-country national or stateless person below the age of 18 years;

(10) ‘screening authorities’ means all competent authorities designated by national law to carry out one or more of the tasks under this Regulation, except for the health checks referred to in Article 12(1);

(11) ‘unaccompanied minor’ means a minor who arrives on the territory of the Member State unaccompanied by an adult responsible for him or her, whether by the law or practice of the Member State concerned, and for as long as such minor is not effectively taken into the care of such an adult, including a minor who is left unaccompanied after entering the territory of a Member State;

(12) ‘detention’ means the confinement of a person by a Member State within a particular place, where such person is deprived of freedom of movement;

(13) ‘Interpol databases’ means ‘Interpol databases’ as defined in Article 4, point (17), of Regulation (EU) 2019/817;

(14) ‘search and rescue operation’ means an operation of search and rescue as referred to in the International Convention on Maritime Search and Rescue adopted in Hamburg, Germany, on 27 April 1979.

Article 3

Fundamental rights

When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter, with relevant international law, including the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967, with the obligations related to access to international protection, in particular the principle of non-refoulement, and with fundamental rights.

Article 4

Relation with other legal instruments

For third-country nationals subject to the screening who have made an application for international protection:

(a) the registration of the application for international protection made in accordance with Regulation (EU) 2024/1348 shall be determined by Article 27 of that Regulation; and

(b) the application of the common standards for the reception of applicants for international protection of Directive (EU) 2024/1346 shall be determined by Article 3 of that Directive.

Article 5

Screening at the external border

The screening provided for under this Regulation shall apply to all third-country nationals, regardless of whether they have made an application for international protection, who do not fulfil the entry conditions set out in Article 6 of Regulation (EU) 2016/399 and who:

(a) are apprehended in connection with an unauthorised crossing of the external border of a Member State by land, sea or air, except third-country nationals for whom the Member State concerned is not required to take the biometric data pursuant to Article 22(1) and (4) of Regulation (EU) 2024/1358 for reasons other than their age; or

(b) are disembarked in the territory of a Member State following a search and rescue operation.

Where it becomes apparent during the screening that the third-country national concerned fulfils the entry conditions set out in Article 6 of Regulation (EU) 2016/399, the screening of that third-country national shall end.

The screening may be discontinued where the third-country nationals concerned leave the territory of the Member States, for their country of origin or country of residence or for another third country to which the third-country nationals concerned voluntarily decide to return and where the return of those third-country nationals is accepted.

Article 6

Authorisation to enter the territory of a Member State

During the screening, the persons referred to in Article 5(1) and (2) shall not be authorised to enter the territory of a Member State. Member States shall lay down in their national law provisions to ensure that persons referred to in Article 5(1) and (2) remain available to the authorities responsible for carrying out the screening in the locations as referred to in Article 8, for the duration of the screening, to prevent any risk of absconding, potential threats to internal security resulting from such absconding or potential threats to public health resulting from such absconding.

Article 7

Screening within the territory

Article 8

Requirements concerning the screening

The screening shall comprise the following elements:

(a) a preliminary health check in accordance with Article 12;

(b) a preliminary vulnerability check in accordance with Article 12;

(c) identification or verification of identity in accordance with Article 14;

(d) the registration of biometric data in accordance with Articles 15, 22, 23 and 24 of Regulation (EU) 2024/1358, to the extent that it has not yet occurred;

(e) a security check in accordance with Articles 15 and 16;

(f) the filling out of a screening form in accordance with Article 17;

(g) referral to the appropriate procedure in accordance with Article 18.

Member States shall ensure that qualified medical personnel carry out the preliminary health check provided for in Article 12 and that specialised personnel of the screening authorities trained for that purpose carry out the preliminary vulnerability check provided for in that Article. National child protection authorities and national authorities in charge of detecting and identifying victims of trafficking in human beings or equivalent mechanisms shall also be involved in those checks, where appropriate.

Member States shall also ensure that only duly authorised staff of the screening authorities responsible for the identification or verification of identity and the security check have access to the data, systems and databases referred to in Articles 14 and 15.

Member States shall deploy appropriate staff and sufficient resources to carry out the screening in an efficient way.

The screening authorities may be assisted or supported in the performance of the screening by experts or liaison officers and teams deployed by the European Border and Coast Guard Agency and the European Union Agency for Asylum within the limits of their mandates, provided that such experts or liaison officers and teams have the relevant training as referred to in the first and second subparagraphs.

Article 9

Obligations of third-country nationals subjected to the screening

Third-country nationals shall:

(a) indicate their name, date of birth, gender and nationality, and provide documents and information, where available, that prove those data;

(b) provide biometric data as referred to in Regulation (EU) 2024/1358.

Article 10

Monitoring of fundamental rights

Member States shall ensure, where appropriate, referral for the initiation of civil or criminal justice proceedings in cases of failure to respect or to enforce fundamental rights, in accordance with national law.

Each Member State shall provide for an independent monitoring mechanism in accordance with the requirements set out in this Article, which shall:

(a) monitor compliance with Union and international law, including the Charter, in particular as regards access to the asylum procedure, the principle of non-refoulement, the best interest of the child and the relevant rules on detention, including relevant provisions on detention in national law, during the screening; and

(b) ensure that substantiated allegations of failure to respect fundamental rights in all relevant activities in relation to the screening are dealt with effectively and without undue delay, trigger, where necessary, investigations into such allegations and monitor the progress of such investigations.

The independent monitoring mechanism shall cover all activities undertaken by the Member States in implementing this Regulation.

The independent monitoring mechanism shall have the power to issue annual recommendations to Member States.

Member States shall put in place adequate safeguards to guarantee the independence of the independent monitoring mechanism. National Ombudspersons and national human rights institutions, including national preventive mechanisms established under the OPCAT, shall participate in the operation of the independent monitoring mechanism and may be appointed to carry out all or part of the tasks of the independent monitoring mechanism. The independent monitoring mechanism may also involve relevant international and non-governmental organisations and public bodies independent from the authorities carrying out the screening. Insofar as one or more of those institutions, organisations or bodies are not directly involved in the independent monitoring mechanism, the independent monitoring mechanism shall establish and maintain close links with them. The independent monitoring mechanism shall establish and maintain close links with the national data protection authorities and the European Data Protection Supervisor.

The independent monitoring mechanism shall carry out its tasks on the basis of on-the-spot checks and random and unannounced checks.

Member States shall provide the independent monitoring mechanism with access to all relevant locations, including reception and detention facilities, individuals and documents, insofar as such access is necessary to allow the independent monitoring mechanism to fulfil the obligations set out in this Article. Access to relevant locations or classified information shall be granted only to persons acting on behalf of the independent monitoring mechanism and having received the appropriate security clearance issued by a competent authority in accordance with national law.

The Fundamental Rights Agency shall issue general guidance for Member States on the establishment of a monitoring mechanism and its independent functioning. Member States may request the Fundamental Rights Agency to support them in developing their independent monitoring mechanism, including the safeguards for independence of such mechanisms, as well as the monitoring methodology and appropriate training schemes.

The Commission shall take into account the findings of the independent monitoring mechanisms in its assessment of the effective application and implementation of the Charter according to Article 15(1) and Annex III of Regulation (EU) 2021/1060 of the European Parliament and of the Council (¹).

Article 11

Provision of information

Member States shall ensure that third-country nationals subject to the screening are informed about:

(a) the purpose, duration and elements of the screening, as well as the manner in which it is carried out and its possible outcomes;

(b) the right to apply for international protection and the applicable rules on making an application for international protection, where applicable in the circumstances specified in Article 30 of Regulation (EU) 2024/1348, and, for those third-country nationals having made an application for international protection, the obligations and the consequences of non-compliance laid down in Articles 17 and 18 of Regulation (EU) 2024/1351;

(c) the rights and obligations of third -country nationals during the screening, including their obligations under Article 9 and the possibility to contact and be contacted by the organisations and persons referred to in Article 8(6);

(d) the rights conferred on data subjects by the applicable Union data protection law, in particular Regulation (EU) 2016/679.

Member States shall also ensure, where appropriate, that third-country nationals subject to the screening are informed about:

(a) the applicable rules on the conditions of entry for third-country nationals in accordance with Regulation (EU) 2016/399, as well as on other conditions of entry, stay and residence of the Member State concerned, to the extent that that information has not been given already;

(b) the obligation to return in accordance with Directive 2008/115/EC and the possibilities to enrol in a programme providing logistical, financial and other material or in-kind assistance for the purpose of supporting voluntary departure;

(c) the conditions of relocation in accordance with Article 67 of Regulation (EU) 2024/1351 or another existing solidarity mechanism.

Article 12

Preliminary health checks and vulnerabilities

Article 13

Guarantees for minors

The representative shall have the necessary skills and expertise, including regarding the treatment and specific needs of minors. The representative shall act in order to safeguard the best interests and general well-being of the minor and so that the unaccompanied minor can benefit from the rights and comply with the obligations under this Regulation.

Article 14

Identification or verification of identity

To the extent it has not yet occurred during the application of Article 8 of Regulation (EU) 2016/399, the identity of third-country nationals subjected to the screening pursuant to Article 5 or 7 of this Regulation shall be verified or established, by using, where applicable, the following:

(a) identity, travel or other documents;

(b) data or information provided by or obtained from the third-country national concerned; and

(c) biometric data.

Where it is technically impossible to use the ESP to query one or more EU information systems or the CIR, the first subparagraph of this paragraph shall not apply and the screening authorities shall access the EU information systems or the CIR directly.

This paragraph is without prejudice to access by screening authorities to SIS, for which the use of the ESP shall remain optional.

Article 15

Security check

In the event of a hit in SIS, the screening authority carrying out the search shall have access to the data contained in the alert.

Article 16

Arrangements for identification and security checks

Article 17

Screening form

The screening authorities shall, with regard to the persons referred to in Articles 5 and 7, complete a form containing the following:

(a) name, date and place of birth and gender;

(b) indication of nationalities or statelessness, countries of residence prior to arrival and languages spoken;

(c) the reason for which the screening was performed;

(d) information on the preliminary health check carried out in accordance with Article 12(1), including where, based on the circumstances concerning the general state of each individual third-country national, no further health check was necessary;

(e) relevant information on the preliminary vulnerability check carried out in accordance with Article 12(3), in particular any vulnerability or special reception or procedural needs identified;

(f) information as to whether the third-country national concerned has made an application for international protection;

(g) information provided by the third-country national concerned as to whether he or she has family members located on the territory of any Member State;

(h) whether the consultation of relevant databases in accordance with Article 15 resulted in a hit;

(i) whether the third-country national concerned has complied with his or her obligation to cooperate in accordance with Article 9.

Where available, the form referred to in paragraph 1 shall include:

(a) the reason for irregular arrival or entry;

(b) information on routes travelled, including the point of departure, places of previous residence, third countries of transit, third countries where international protection may have been sought or granted, and intended destination within the Union;

(c) travel or identity documents carried by the third-country nationals;

(d) any comments and other relevant information, including any related information in cases of suspected smuggling or trafficking in human beings.

It shall be specified whether the information referred to in paragraph 1, points (a) and (b), is confirmed by the screening authorities or declared by the person concerned.