CAHIERS DE L’EDEM / LOUVAIN MIGRATION CASE LAW COMMENTARY 50 Août 2022 5. BETWEEN PHYSICAL AND LEGAL BORDERS: THE FICTION OF NON-ENTRY AND ITS IMPACT ON FUNDAMENTAL RIGHTS OF MIGRANTS AT THE BORDERS BETWEEN EU LAW AND THE ECHR. Francesca Rondine, PhD candidate in Human Rights Law (Sapienza University, Rome, Italy) A. Introduction The fiction of non-entry is a legal fiction allowing a disarticulation between the physical presence and the legal entitlement of a person to enter and stay on the national territory. 21 Generally, it is employed when a person crosses a border being devoid of an authorisation to do so. This has specific consequences on the legal framework applicable to unauthorised migrants at the borders, as it allows for the application of a completely different legal regime to migrants at the borders from those, legally or even irregularly staying, within the national territory. States justify the application of such a different legal regime arguing that unauthorized migrants at the borders did not “enter” the national territory for legal purposes since they are devoid of a formal authorization to do so. This legal technique is one of the main strategies that States employ to manage migration flows and human mobility, and is generally employed at a country’s national borders (See J. C. HATHAWAY). In the European context, both the Court of Justice of the European Union and the European Court of Human Rights have dealt with the issue of migrants’ rights at the States’ borders. Both have addressed the consequent legal regime applicable, especially from the perspective of detention regimes, non-admission and expulsion at the borders and access to asylum. In this light, the aim of this paper, structured as follows, is to analyse the issue of migrants’ exclusion at the borders from the perspective of the so-called fiction of non-entry. Firstly, the topic of the fiction of non-entry is presented. Secondly, the paper examines the issue from the perspective of the ECtHR jurisprudence on migrants at the borders, with special attention to the topic of detention and protection from expulsion. Thirdly, the paper focuses on EU law. In addition, it compares the relevant EU law provisions with the would-be amendments proposed within the EU New Pact on Migration and Asylum. B. Discussion: From extraterritoriality to the fiction of non-entry in migration law As critically assessed by a considerable body of literature, in liberal democracies a border is not only a physical border but also a legal border (ex plurimis, G. AGAMBEN, T. BASARAN, J. APAP, S. CARRERA). As such, it serves the function of defining the legal framework applicable to persons holding a certain status in a specific territory, governed by a specific authority. It distinguishes, first and foremost, between citizens and non-citizens (See T. BASARAN, J. C. HATAWAY, T. GAMMELTOF HANSEN). 21 According to the Merriam-Webster dictionary, a legal fiction is “something assumed in law to be fact irrespective of the truth or accuracy of that assumption”; The Collins dictionary defines it as “an acceptance of something as true, for the sake of convenience”.