Migration Pact: EU lawmakers flirt with racial profiling in final negotiations

In final negotiations around the EU Migration Pact, EU lawmakers are considering a provision that would increase the risk of racial profiling in Europe.

The provision is Article 5 of the Screening Regulation, an instrument that regulates security and identity checks (screening procedures) of third country nationals at the EU’s external borders.

Article 5 would extend the application of these checks not only to people apprehended at the borders, but to everyone who cannot prove to have entered the territory of the member states with a valid travel document. This means that police or other officials would be able to stop people on the street and bring them to designated locations. There, people would likely be detained while they undergo security and identity checks, to establish if they can apply for asylum.

Widespread discriminatory profiling

The very action of stopping anyone who is suspected of being undocumented carries with it enormous risks of racial profiling, as law and immigration enforcement are already found to rely on racial, ethnic, national, or religious characteristics in their operations.

Research published in October 2023 by the EU Fundamental Rights Agency shows that it is already often the case that people of colour and of African descent are subject to discriminatory and arbitrary checks, regardless of citizenship or residence status. In fact, over half of people of African descent surveyed felt that their most recent police stop was a result of racial profiling.

Article 5 raises concerns around other potential human rights violations too.

Arbitrary apprehension

Expanding the scope of the screening outside border areas could justify the arbitrary apprehension of anyone perceived by the police as having entered the country in an irregular manner, in any place and at any time.

This provision is very broad and does not clarify how nor whether an individual assessment will be conducted to determine if the person in question has crossed external borders in an authorised manner, especially in cases where the crossing took place a long time before or where people entered through another member state.

Arbitrary deprivation of liberty (de facto detention)

Undocumented people, including families and children, could be apprehended in any place and at any time and potentially detained for up to five days in designated facilities within the territory of the member states. The mandatory nature of the screening at external borders combined with the lack of safeguards in terms of judicial review, access to a lawyer and reception conditions will likely entail arbitrary deprivation of liberty (de facto detention). This is particularly problematic as de facto detention does not meet the same basic safeguards underlying formally recognised immigration detention. De facto detention is already used in some member states and the proposed regulation could trigger a wide increase across the EU.

Non-refoulement and other human rights grounds

Under the proposed regulation, people who do not apply for international protection should be subject to return or refusal of entry once the screening procedures are over. But screening procedures do not assess reasons why people may not be subject to deportation, such as the principle of non-refoulement, health, protection of family and private life, or the best interests of the child. These are all valid reasons that could apply to many undocumented people who have been living in the EU, sometimes for years.

Proportionality

Whether Article 5 would be proportional to serve the objectives of the Screening Regulation is also questionable. This is evident in the opinion issued by the European Parliament legal service, which found that this measure would not serve the objective of better managing the external border, as the geographical and temporal links between the people intercepted and the checks would be too weak. At PICUM, together with leading European civil society networks and national organisations, we call on EU lawmakers to remove Article 5 from the draft Screening Regulation, and uphold human rights and equality throughout the Pact.

Read our joint statement here.