Author
The person who has arrived to Czechia via the airport border crossing is not considered to have entered the territory during the arrival point entry checks. On the contrary, they are considered to be present at an airport border transit zone.
According to section 9 of the Immigration Act, the police denies the entry to the territory of the Czech Republic if a person:
- does not have a valid travel documents or visa,
- presents forged or altered documents,
- does not present visa if they are obliged to have visa/residence permit
- fails to prove the purpose or conditions of stay or sufficient financial means,
- is listed as an undesirable individual or is recorded in the security databases of the Schengen states,
- poses a security risk to the Czech Republic or to other EU Member States,
- does not meet the health requirements laid down for the protection of public health.
The border checks take place at the airport transit zone. While these checks are conducted, the fiction of non-entry is used and may result in the rejection of the entry into the territory, based on section 9 of the Immigration Act implementing the Schengen Borders Code.[1] In such cases, no procedure is formally held, no case-file is kept, and a person is informed about the refusal of entry through a standard Schengen form, which merely indicates the applicable ground for refusal of entry by ticking the relevant box, with no other reasoning being provided. It is, however, possible to appeal this “decision” within 15 days.[2] The appellate authority provides a somewhat more detailed statement of reasons when deciding on this appeal.
The fiction of non-entry continues at the transit zone even once a person has successfully applied for asylum. Then, a special procedure regarding the entry into the territory takes place, and within 5 days of applying for asylum a special decision has to be issued based on section 73 Asylum Act, regarding whether the person is allowed entrance into the territory, or has to remain detained at the airport asylum reception centre. If a person applies for asylum at the transit zone, a formal decision is issued based on section 73(3) of the Asylum Act. An appeal can be filed to the regional court (currently Municipal Court in Prague), which, if successful, will entail the person being released into territory. For further information, see Border procedure.
It should be noted that if third country nationals apply to make an asylum application during the preliminary checks, there is no legal aid and interpreter. There is no mechanism to control whether a person wishes to apply for asylum at this stage, so a push back might be a real consequence.
[1] Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (codification), available here.
[2] Section 180e(1)(c) of the Immigration Act,