French push for legal limbos on EU borders

Even so, the French moved ahead this week with proposals to classify asylum-seekers arriving at EU borders as technically not yet legally inside the EU — a limbo that would last up to five days despite their physical presence inside an EU member state.

"For the sole duration of the screening process, the persons concerned would be considered as not having fulfilled entry conditions," says a French EU presidency document, dated 8 February, and circulated to member state delegations.

The document goes on to suggest that asylum-seekers be placed in house arrest or other forms of monitored detention.

Currently, asylum seekers reaching EU borders are supposed to be looked after under EU rules, with detention itself being a measure of last resort. Those rules are designed to offer migrants and refugees humane treatment while their applications are assessed.

The European Commission has previously proposed similar arrangements to the French plan — but the commission's approach called for independent human rights monitors to be stationed at borders to ensure respect for human rights and proper procedures.

Yet in its paper, the French EU presidency makes no mention of a human rights monitor.

Migration experts have described the idea of a legal limbo as suspending and undermining the rights of asylum seekers.

The Brussels-based European Council on Refugees and Exiles (Ecre), an advocacy group, wants the idea to be struck from the EU's asylum reform proposals altogether.

Removing the legal limbo would be "the most straightforward way to ensure that the legal situation, and rights and obligations arising, matches the actual physical situation of the person concerned, namely being on the territory of the EU," the group said.

Moria case study

Ecre warned that the proposed screening regulation would likely result in systematic detention at the border, possibly leading to similar camps such as Moria, a badly overcrowded and sprawling asylum and refugee ghetto on the Greek island of Lesbos that burned down in 2020.

Even if the French EU presidency manages to get member states to agree to the rule changes before the end of its six-month tenure, it is unlikely to pass the co-legislators at the European Parliament.

The lead MEP on the screening regulation, German socialist Birgit Sippel, has already indicated she is not happy with the concept of placing asylum seekers in a state of legal limbo.

In an exchange with fellow European lawmakers last November, she warned against a "legal fiction of non-entry" that would lead to de facto detention.