Border screening: flight risk and the 72-hour review under the Screening Regulation

Article 8(3) of the Screening Regulation links completion of screening to apprehension in the external border area, disembarkation in the territory or appearance at a border crossing point. In these cases, screening must generally be completed within seven days.

For persons under Article 5(1)(a) to whom Article 23(1) and (4) of Regulation (EU) 2024/1358 applies, Article 8(3) describes a specific situation. If those persons remain at the external border for more than 72 hours, screening is then carried out and the deadline is shortened to four days.

Section 39(3a) FPG answers a different question. It permits arrest and detention for up to 72 hours where a person is subject to screening, must fulfil the duty under Article 9(1) of the Screening Regulation and presents a risk of absconding. The authority must therefore set out completion of screening and the need for detention in separate steps.

The 72 hours do not begin automatically with every first border check and they do not replace the deadline calculation under Article 8. A reliable review records the exact start of detention, the place and whether the person belongs to the statutory group described in the provision.

Section 39(3c) FPG requires specific facts supporting the assumption that the person will leave the screening place and thereby evade the screening procedure. Flight risk is therefore a concrete prediction about screening. The mere fact that a person is being checked or is subject to screening is not enough as a reason.

The provision also refers, in particular, to statutory circumstances, a breach of an obligation arising from a less coercive measure and breaches of cooperation duties under Article 9 of the Screening Regulation or Article 9 of the Asylum Procedures Regulation. The authority must derive the relevant facts from the individual course of events and the available documents.

For the review, separate an actual breach of duty from an assumption and from a later immigration risk assessment. The documents should show which act or circumstance is said to make departure from the screening place likely. A standard phrase about flight risk does not answer that question.

Detention is also permitted only for as long as it remains proportionate. If the facts change or screening can be secured through a less intrusive measure, continuation must be reassessed.

The initial detention under section 39(3a) FPG is carried out by public security officers. If Article 5 screening at the external border cannot be completed during that period, the competent Landespolizeidirektion may order an extension under section 39(3b) FPG.

For the group described in section 39(3b)(1) FPG that remains at the external border for more than 72 hours, an extension of up to 24 hours is provided. In other cases, the extension may last up to 96 hours. Both variants require that securing screening remains necessary and that continued detention is proportionate.

The order of the Landespolizeidirektion is an exercise of administrative command and coercive authority and must be recorded. The review should therefore show which extension case is relied on, why securing screening remains necessary and how proportionality was assessed.

A statutory maximum is not an automatic extension. Once the securing ground disappears or the purpose can no longer be achieved, detention must end by release or by a less coercive measure under section 39(8) FPG.

Section 39(7a) FPG requires the Landespolizeidirektion to order a less coercive measure if it can secure completion of screening. The authority must therefore be able to explain why a less intrusive measure would not sufficiently secure the purpose of screening in the individual case.

This review is separate from whether detention may later be ordered to enforce a measure ending a person's stay. Detention under section 39(3a) or (3b) FPG initially secures screening and has its own purpose, authorities and maximum periods.

Section 39(4) FPG also provides that arrest and detention in the cases listed there may be omitted if it is ensured that the person leaves the country immediately through an external border. This is a statutory alternative to detention and must be examined against the facts of the case.

If a less coercive measure is ordered, compliance with its obligations remains important. A breach may be taken into account when assessing flight risk under section 39(3c) FPG.

Article 8(5) of the Screening Regulation describes the elements of the review. They include a preliminary health check, a preliminary vulnerability assessment, identification or identity verification, biometric data where required, a security check, a screening form and referral to the appropriate procedure.

Under Article 8(6), organisations and persons providing advice must have effective access to third-country nationals. Article 8(8) also requires a standard of living that safeguards subsistence, physical and mental health and Charter rights.

For an individual detention review, the arrest record, the start and place of detention, the reasons for flight risk and any extension order are particularly important. Documents concerning cooperation, official requests and a less coercive measure should also be kept in order.

Screening determines referral to the appropriate procedure. It does not decide the substance of an international protection application and does not create an entry ban. Those consequences belong to separate proceedings.