The Fiction of Non-entry in European Migration Law: Its Implications on the Rights of Asylum Seekers and Irregular Migrants at European Borders

Abstract

The fiction of non-entry is a legal fiction usually employed by States at their borders. Such a fiction is based on the distinction between the physical presence of a person on the national territory and her legal entitlement to cross the border and reside herewith. More precisely, the fiction of non-entry revolves around the concept of admission and on the premise that unadmitted migrants (i.e. migrants not fulfilling the entry conditions and, therefore, refused entry, or migrants awaiting admission) at the borders, despite being physically present on the territory, are not to be considered so for legal purposes. By this mean, States are able to deny the application of the ordinary legal regime, institutionalizing a detrimental legal framework for unadmitted migrants at the borders as opposed to the one applicable to regular or even irregular migrants within the national territory. The purpose of this article is to explore the role of such a fiction in European migration law, namely in the context of EU law and the ECtHR jurisprudence, with a focus on the issues of admission on national territory, detention and expulsion. Moreover, this contribution aims at showing how this legal construct is to become increasingly central to European migration law. Indeed, the fiction of non-entry is currently at the core of the new “integrated border procedure” proposed within the 2020 new pact on migration and asylum. Therefore, the contribution will analyse the consequences of such an institutionalization on the rights of migrants at the EU external borders.