Blog - 04.02.26

Security and public order grounds in migration procedures: Impact on social exclusion and access to regular status

Key takeways

Security and public order grounds are widely used in EU migration law but remain vaguely defined and inconsistently applied.
Despite legal and judicial guidance, these grounds create legal uncertainty and carry severe consequences for migrants, especially undocumented people.
The EU Pact on Asylum and Migration puts security at the centre of migration management, expanding state discretion and weakening safeguards.
The proposed Deportation (“Return”) Regulation broadens the idea of “security risk,” enabling longer entry bans, indefinite detention and forced removals.
Real-life cases (Italy, Hungary, Bulgaria) show how security narratives enable arbitrary detention, withdrawal of residence permits and rights violations.
Blurring criminal law and migration law (“crimmigration”) leads to disproportionate punishment based on migration status, not conduct.

Introduction

Criminal law and other sanction-based approaches have increasingly been used to regulate and punish migrants. In recent years, these approaches have expanded beyond the national level and have become progressively embedded within the EU’s migration governance framework. The recent adoption of the EU Pact on Migration and Asylum has concretely consolidated this trend in EU legislation, particularly through measures justified on grounds of protecting “security” and “public order.” The proposed EU Deportation (“Return”) Regulation, if adopted, could mark a further step in this direction. Such developments risk having serious consequences, not only by reinforcing narratives that associate migration with criminality and security threats, but also by deepening discrimination on the basis of migration status and further restricting migrants’ opportunities to participate in society and to obtain regular status.

What are security and public order grounds?

Across the EU legislative instruments on asylum and migration, references to nationalsecurity and public order appear across several instruments (see questions 3 and 4 below), but they are framed using different terms and are often not explicitly defined. Different terms can be found in different instruments: “public order”, “public security”, “national security” and “public policy” in EU and national law.

The European Court of Justice (CJEU) has clarified that “public order” requires not only a disturbance of social order, which is always the consequence of an infringement of the law, but a genuine, present and sufficiently serious threat affecting a fundamental interest of society (see Case C-601/15 PPU, para. 65). “Public security” encompasses both internal and external security, including threats to state institutions, essential public services, population survival, foreign relations, peaceful coexistence of nations, or military interests (para. 66). These grounds must be interpreted strictly and assessed on a case-by-case basis, and cannot be based solely on past criminal convictions.

Despite this guidance, security and public order grounds often remain legally uncertain and may have serious consequences for people who try to regularise their status, or who live undocumented. As a result, these concepts are central to asylum and deportation decisions and raise complex issues regarding legal certainty regarding their interpretation, the assessment of evidence, and how to balance them with the protection of fundamental rights.

What are the main novelties introduced by the EU Pact on Asylum and Migration?

Across Europe, governments increasingly rely on security and public order justifications to restrict the rights of migrants, turning what were once exceptional measures into central elements of legislation and political discourse. This trend is further reinforced by the adoption of the EU Pact on Asylum and Migration in May 2024. The Pact’s legislative instruments place security and public order as the centre of migration management, creating a complex system of rules and exceptions that ultimately creates more flexibility for national authorities, while eroding rights and guarantees for people in migration and asylum procedures.

Screening Regulation

Security-driven procedures are embedded in several of the legislative instruments that constitute the Pact. First of all, the Screening Regulation – which establishes a new pre-entry screening procedure for people arriving irregularly to the EU territory – introduces the possibility to verify not only the identity and vulnerabilities of people arriving to the European Union, but also whether they represent a threat for ‘internal security’. In practice, the security screening entails searching different international, EU and national law enforcement databases. This not only feeds into the narrative presenting irregular migrants as ‘criminals’ but could lead to different forms of abuse and incorrect profiling. For example, data on individuals who represent security threats can be fed to Europol or other datasets directly from third countries. The European Data Protection Supervisor, in one of its reviews of Europol data transferred by third countries, found multiple cases where children (under 15 years old) were flagged as suspects within the broader framework of an organised crime group while apparently having only been involved in relatively minor infractions, such as pickpocketing (at least two cases) or shoplifting. While this example was not in the context of the Screening Regulation, it nonetheless shows what kind of distortions are possible.

Asylum Procedure Regulation

The Asylum Procedures Regulation (APR) allows Member States to suspend the right to remain in the territory during procedures if an applicant is deemed a danger to public order or national security. National security and public order are also grounds that require member states to apply accelerated procedures to evaluate asylum applications and assess them in a border procedure. This is based on the assumption that this category of people will most likely not receive international protection, and could be more easily deported by channelling them into a fast-track return border procedure. Moreover, border procedures are based on the notion of containment and it is highly likely that restrictions of freedom of movement imposed to applicants may amount to de facto deprivation of liberty.

What is even more concerning is that security and public order grounds can be used to apply accelerated border procedures to unaccompanied children – who should be excluded. Inclusion of ‘dangerous’ unaccompanied children is highly problematic. First of all: they remain children, with specific protection needs and a right to support.. Second, there is a high risk for these children to be detained, in violation of child rights’ international standards.

The APR provides for the possibility to deny access to information on an applicant’s file on grounds of national security. This is a particularly concerning element as it seriously undermines the right to an effective remedy for the person involved.

Under the APR, member states may use security and public order grounds to limit access of organisations that provide advice and counselling to people present at border crossings, detention grounds and detention facilities. While this cannot make access “severely restricted or rendered impossible”, this is particularly concerning, as it risks reinforcing administrative barriers that civil society providing support to people in detention or at the borders will have to overcome to effectively access people in need.

Eurodac Regulation

The revised Eurodac Regulation transformed Eurodac from a system with the purpose of supporting asylum procedures, into a much broader tool operating at the intersection of international protection, return policy, and mobility control. In parallel, Eurodac has been integrated into the EU’s interoperable migration database architecture, placing it at the crossroads of border management and security policies. These interoperable systems, including Eurodac, constitute a cornerstone of the security checks envisaged under the Screening Regulation, alongside Interpol and Europol databases. The revised framework significantly expands Eurodac’s scope to include comprehensive identification data – such as facial images, identity documents, and travel documents -with the explicit objective of facilitating returns.

Eurodac is also the only instrument within the Pact that provides a definition of certain situations in which a person may be flagged as a security risk. These include violent behaviour that would constitute a crime under national law, unlawful possession of weapons, and clear involvement in terrorism or other offences listed under the European Arrest Warrant framework. However, this definition is only part of the non-binding text and not of the regulation’s articles, leaving member states the ability to understand it more broadly and to base their assessment on perceived risk rather than concrete evidence.

Other Pact files

The examples above outline some of the major novelties introduced in the Pact in the areas of PICUM’s expertise, which is ensuring and protecting human rights for undocumented migrants. Therefore, provisions solely affecting the right to asylum are outside of the scope of this analysis, but national security and public order considerations are also embedded in the Regulation on Asylum and Migration management, including as a ground for detention. The Crisis Regulation is also a relevant example, as it introduces for the first time the concept of ‘instrumentalisation of migration’ in EU law, which is presented as potential threat to the internal security of the member states and can be used as a ground to request specific derogations from their asylum and reception responsibilities.

What exceptions could be introduced by new reforms of the EU’s deportation policies?

In Mach 2025, the European Commission presented a new proposal for a Deportation (“Return”) Regulation to replace the current Return Directive. The legislative review process for the regulation, which would replace the 2008 Return Directive, is currently ongoing. Yet, if adopted, they would have broad consequences in terms of further blurring the lines between migration governance and criminal law, further punishing and sanctioning people in reason of their migration status, and fostering dangerous stereotypes equating migrants with criminals.

Definition of ‘security risk’

The proposed Deportation Regulation introduces a specific provision establishing the conditions under which a person falling under its scope can be considered a “security risk”. Article 16 defines a security risk as a threat to public policy, public security, or national security (however it does not address the lack of a common definition of any of these concepts – see Question 1). In particular when it comes to public policy grounds, practices across some member states show that in many situations states automatically determine if someone is a security risk without a case-by-case assessment.

The proposed Return Regulation indicates that states can decide that an individual poses a security risk if there are “serious grounds for believing” based on “clear indications” that the individual intends to commit an offence falling within the scope of the European arrest warrant (provided that the offence is punishable under national law by a custodial sentence of at least three years). Such offences include terrorism, participation in a criminal organisation, and the facilitation of unauthorised entry and residence. However, the evidentiary threshold for determining whether a person has been involved in, or intends to engage in, criminal activity under this definition appears notably weak, raising concerns about legal certainty and the risk that this provision is activated on the basis of broad or speculative assessments. This is a concrete possibility, as shown in question 4.

Moreover, hundreds of migrants who are accused or convicted every year as alleged smugglers or boat drivers could also be impacted under this definition. They are often accused on the basis of flawed evidence, in trials tainted by procedural irregularities and already face harsh measures under criminal law, including prolonged pre-trial detention. Many of these trials are also characterised by a lack of fair trial guarantees.

Security as a new detention ground

Another problematic aspect of this proposal is broad expansion of the grounds for detention (Art. 29). This includes the broad definition of security risks presented above. This goes way beyond the 2008 Return Directive, which allows the use of detention only when there is a risk of absconding or if the person is obstructing their deportation. In both cases, the person could only be detained for the purpose of “preparing” or “carry out” deportation. Moreover, in addition to extending the general duration of detention from a maximum of 18 to 24 months, the proposal appears to allow for indefinite detention of individuals deemed to pose “security risks”, by judicial decision (Art. 16(3)).

Other derogations on security grounds

Being considered a security risk under article 16 of the proposal also would lead to further punitive consequences. This includes mandatory use of forced removal, the possibility of being subjected to an entry ban for up to 20 years, and detention in prisons – even if separate from other prisoners (Art. 16, para 3).

Furthermore, the Regulation permits the sharing of personal and biometric data with non-EU countries that lack adequate data protection frameworks, with no effective oversight or redress mechanisms for the individuals concerned. This also includes the sharing of sensitive data, such as criminal records, of people facing deportation.

Weakened access to remedies

In addition to the unclear nature and application of what could constitute a security risk under the return framework, people falling under the scope of this provision would be deprived of fundamental safeguards when it comes to the right to an effective remedy.

First of all, under article 7(3) of the proposed regulation, competent authorities may decide not to provide or may decide to limit the right to information, where national law provides for the right to information to be restricted or where it is necessary to safeguard public order, public security or national security. In such cases, the person who is the object of the return decision can be informed of only the “essence” of the grounds on which the decision has been taken. The information provided should still allow for access to an effective remedy. However, research on national level practices already shows major gaps in accessing classified data for people considered a security risk, which prevents the full exercise of the right to defence in practice.

Moreover, people considered security risks under article 16 would be deprived of the suspensive effect of appeals against the enforcement of their deportation decision, unless there is a risk of refoulement. This would mean that people could be deported before a decision on their appeal is taken. PICUM maintains that being able to remain in the country is an essential part of the right to remedy against a return decision. If applicants were to be sent back to third countries, this would clearly hinder their right to be heard, to legal assistance and information. This is even more important in cases where people might have to challenge not only their deportation, but also the classification as a security risk on the basis of incorrect assessments, even more so when the information on their case is classified.

What impact on social inclusion and access to permits?

Measures grounded in national security and public order can significantly undermine the social inclusion of undocumented migrants in several ways:

Reinforcing the stigma equating migrants to ‘criminals’ and depicting migration as a security issue, which fuels public hostility and discrimination.
Authorities gain broader discretion to make decisions affecting migrants’ rights and status, often with limited accountability and without the obligation to disclose their reasoning and motivation, and without all the fair trial guarantees of criminal procedures.
Expanding use of immigration detention, preventing individuals from living in the community, working, or being with their families.
Erosion of procedural safeguards, which in turn increases the risk of deportations without adequate right to redress, and lead to weakened access to international protection and other residence permits.

There are several real-life cases that show what impact security and public order grounds reinforce national authorities’ discretion, often with serious impact on people’s lives (see next question).

Real-life cases of individuals stripped of residence and/or detained arbitrarily for security reasons

Italy

This case illustrates how security narratives can be instrumentalised to repress dissent. Mohamed Shahin, the imam of a mosque in Turin, has lived in Italy since 2004, has a family, no criminal record, and is widely recognised for his work in interfaith dialogue and community support. Despite this, he was arrested, stripped of his long-term residence permit, and threatened with expulsion to Egypt on grounds of national security and public order. The accusations against him were based on his participation in public demonstrations in solidarity with Gaza and on alleged statements expressing support for the Palestinian resistance. However, judicial investigations did not consider his statements to constitute a criminal offence, and he had no criminal record. Nevertheless, the Ministry of the Interior confirmed the expulsion order. After being transferred to a return detention centre, Shahin was eventually released, but only after applying for international protection. His case is currently pending in front of the Italian asylum authorities.

Cases involving the repression of dissent have become increasingly common across Europe, particularly in relation to solidarity with Palestine. Similar cases, such as that of US-based activist Mahmoud Khalil, can also be found across the Atlantic.

Hungary

Similar cases happened in Hungary. Two people from Turkey and Nigeria had been living regularly in Hungary for many years and had strong family ties there. One was married to a Hungarian citizen and had a Hungarian child. The other lived with his Hungarian partner and their two Hungarian children.

In 2020 and 2021, Hungary’s Constitutional Protection Office said, without giving reasons and keeping the information secret, that their presence threatened national security. Based on these confidential opinions, the immigration authorities took away one person’s permanent residence permit and ordered him to leave the country. The other person’s application for a settlement permit was also rejected. Neither the individuals concerned nor the immigration authority itself had access to the underlying information justifying the security assessment.

The Court of Justice of the EU later ruled this is not compatible with EU law, because authorities must examine each case individually, consider the dependency relation between parents and their children, whether the decision is proportional, and allow the person to know the reasons and defend themselves.

Bulgaria

Saudi human rights defender Abdulrahman AlBakr al-Khalidi has been held in immigration detention in Bulgaria since 2021 after seeking asylum. Bulgarian authorities rejected his asylum claim and issued a deportation order in 2024, labelling him a “national security threat” despite serious risks of torture and unfair trial if returned to Saudi Arabia. Despite appeals from Bulgarian courts, UN bodies international human rights organisations, and Members of the European Parliament, his prolonged detention had detrimental consequences on his physical and mental health. The detention of Abdulrahman AlBakr al-Khalidi is clearly unlawful under the current Return Directive. However, if the Return Regulation is adopted as proposed, national authorities across Europe would have more discretion to prolong detention of people considered security risks indefinitely (see Question 3).

Why should criminal law be separate from migration (administrative) law?

Criminal law and migration (administrative) law serve fundamentally different purposes and should therefore remain distinct. Migration law, which is part of administrative law, regulates the relationship between the state and non-nationals and is not intended to be punitive. Criminal law, by contrast, is inherently punitive and applies only to specific criminal acts, with sanctions based on an individual’s conduct rather than their residence status.

In migration governance, this distinction has increasingly been blurred through a process also known as ‘crimmigration’, whereby administrative migration infractions are criminalised and criminal law tools are used to manage migration. This results, first, in migrants being punished for their administrative status (such as irregular entry or stay), and second, in migration status disproportionately shaping the consequences of minor, non-migration-related offences. As a result, third-country nationals are more likely to be prosecuted, detained, or sanctioned more harshly than nationals for similar conduct.

For more details about the distinction between criminal and administrative law in the migration context, see PICUM’s study ‘Between administrative and criminal law: An overview of criminalisation of migration across the EU’.

Do you have any question?

Please contact Silvia Carta (silvia.carta@picum.org).

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