Nineteen human rights organisations across Europe, alongside aid workers and survivors of human rights abuses, say that a crunch summit in Brussels on December 7th risks “opening the door to abuses across Europe” including racial profiling and pushbacks, in a “potentially irreversible attack” on the international system of refugee protection and the rule of law.

The organisations, which include Amnesty International, Border Violence Monitoring Network, EuroMed Rights, Jesuit Refugee Service Europe, Platform for International Cooperation on Undocumented Migrants,  and Save the Children, have sounded the alarm on wide-ranging issues in the EU Migration and Asylum Pact. This comes following the Justice and Home Affairs Council on 4-5 December and ahead of a “Jumbo Trilogue” on the key legislative files of the Pact on 7 December.

Campaigners’ principal concerns relate to: 

• The further entrenchment of “pushbacks” at borders, which have been linked to hundreds of people’s deaths, injuries, and rights violations at the hands of EU Member State border forces. 
• The increase in the use of detention across Europe, including of children and families, in a model which has led to people remaining incarcerated, in legal limbo and in dire physical conditions. 
• The risk of racial profiling of people who live in and come to Europe, whatever their citizenship or residence status, as surveillance-backed screening procedures are rolled out across the bloc. 
• The deepening of “externalisation” policies where European migration control is outsourced to third countries without scope for accountability, which has in turn been linked to deaths at sea, widespread torture and inhuman conditions.
• The focus on deportations while lowering procedural safeguards, despite the risk of serious harm if people are returned to a third country.  This combined with the use of a dangerous “safe third country” enables Member States to evade their responsibility to provide reception and protection. 
• The mandatory use of asylum border procedures, which forces people into de facto detention with limited access to legal assistance, representing a severe blow to the right to asylum in international law. These standards could be lowered even further in an unacceptably broad and vague range of so-called ‘crisis’ situations.
• The failure of the Pact to address the substantive issues it claims to, such as the distribution of asylum claims across member states. 

The Spanish Presidency of the Council of the EU aims to close all political deals on the Pact on 7th December. Rights defenders are warning that “complex decisions with huge consequences are being rushed through.” 

The organisations involved in this release, besides PICUM, are: AMERA International, Amnesty International, Associazione Ricreativa e Culturale Italiana, Border Violence Monitoring Network, Cairo Institute for Human Rights Studies, Centre for Peace Studies Croatia, CNCD-11.11.11, Comisión Española de Ayuda al Refugiado, European Network Against Racism, EuroMed Rights, Greek Refugee Council, Irídia, Jesuit Refugee Service Europe, KISA Cyprus, La Cimade, Ligue Algérienne pour la Défense des Droits Humains, Ligue des Droits Humains, and Save the Children.

Quote pack 

Michele LeVoy, director at PICUM, said: 

“The Migration Pact in its current form opens the door to human rights abuses, providing implicit and explicit EU backing for the arbitrary deprivation of liberty and severe human rights violations that have become commonplace at or near EU borders.” 

“This Pact reflects Europe’s obsession with deportations, based on the assumption that if you don’t qualify for international protection, then you have no right to stay in the EU. What this approach blatantly overlooks is that people move for many different reasons and may have a right to access residence permits other than those linked to asylum.”

Parvin A, a woman who was severely beaten, detained and pushed back from Greece six times and later filed a complaint at the UN Human Rights Committee, said: 

“It is unbelievable that they want to use ‘safe third countries’ even more. Turkey is not a safe third country in my experience – I am a person who had status from UNHCR, that was then taken away by the Turkish authorities.” 

“If they really pursue this New Pact, it will be against any kind of human or refugee rights. They are playing with the lives of people who are vulnerable and in danger.” 

Willy Bergogné, Europe Director at Save the Children, said: 

“Our asylum system must work to keep children safe with a Migration Pact that safeguards, not threatens, children’s rights. This means no child detention or deportation, swift family reunions, and migration decisions made in children’s best interests.” 

“One in every four people arriving in Europe is a child – and those people arriving should be protected and supported, not face chaos and abuse.”

Hope Barker, Senior Policy Analyst at BVMN, said: 

“The Migration Pact in its current form opens the way for a new archipelago of detention camps where people – including children – are arbitrarily locked up, held in legal limbo, mistreated, and denied access to their basic rights.”

“And through a system of racial profiling and surveillance across the bloc, it widens the net of who could find themselves detained.” 

“We need to look no further than the Greek islands where this process is already underway. EU legislators must break with a failed model which benefits only those who profit from spending our resources on harmful and costly prisons and surveillance systems – and put people first instead.”

Sara Prestianni, Advocacy Director at EuroMed Rights, said: 

“The Migration Pact was supposed to reach a common European position on how people who need protection are cared for across the bloc.”

“It has done nothing of the sort. Instead, states can simply dodge their responsibilities by paying for weapons, walls, and detention camps in border states or non-EU countries with grim human rights records. It doesn’t achieve what it sets out to, raises dangerous risks, and should be urgently reformed or scrapped.” 

“European legislators must instead find a vision for genuine solidarity, for safe migration routes for people who need them, and for a system with the care and investment to ensure that both people on the move and host communities experience the benefits of migration.” 

Alberto Ares SJ, Regional Director, Jesuit Refugee Service Europe: 

“We fear that the Migration Pact in its current form will compromise human rights and EU values under pressure to reach an agreement before the end of this legislature. The EU should abandon this plan that would not only fall short in providing any real operational solutions for the shortcomings of the existing system but would also be harmful for migrants and refugees.”

“The Jesuit Refugee Service has a long tradition of visiting and accompanying people in Migration Detention in Europe going back decades. We see first hand how limited the access to legal assistance and justice in this context is at the moment. The current proposal will only make it worse”.

“We call on legislators to make a U-Turn and abandon this pact. There is still time to put energy and efforts into strengthening reception and asylum systems on the territory and mechanisms for meaningful responsibility sharing among Member States.”

Fanélie Carrey-Conte, Secretary General at La Cimade, said: 

“The proposed measures represent a straight continuation of strategies that has already been tried and tested. They are based on a repressive, security-based approach that aims to curb migration and encourage deportations, solutions that have proved ineffective and, above all, cost human lives. Instead of calming fears and providing solutions, they legitimise xenophobic ideologies and lead to humanitarian disasters. It’s time for a genuine paradigm shift, for a Europe based on respect for human rights and international solidarity, to ensure that people are protected and not excluded”.

Eve Geddie, Director of Amnesty International’s EU Office, said:

“For years the EU has been trying to agree on a new system to respond to people moving or fleeing to Europe. The agreement now on the table would in many ways worsen existing legislation, and risks increasing suffering at European borders. It could increase de facto detention across the EU, reduce safeguards for asylum seekers, and normalise exceptions to the right to asylum at European borders.”

“European policymakers have a responsibility to ensure a future-proof, evidence based, human rights compliant final agreement in these last days of political negotiations.”

Tendayi Achiume, former UN Special Representative on Contemporary Forms of Racism

“Across Europe, police and border forces already disproportionately stop and search racialised communities. Enabling border forces to surveil, stop and detain anyone anywhere in the bloc who they believe looks like a migrant opens the way to systemic racial profiling across Europe.”

“European legislators must act to safeguard human rights and civil liberties in the new Migration Pact.”

In March 2023, the Greek Parliament reformed the national Migration Code. The changes will significantly impact migrant’s lives – some changes will improve their lives, others won’t. This blog covers changes that impact people’s access to a secure residence status, and highlights the introduction of a permit for former unaccompanied children. While the government is yet to define the modalities of its implementation, civil society highlights important gaps in the protection of some of the most marginalised people, including children. Except for a few provisions, the law will enter into force on 1 January 2024.

For an overview of regularisation mechanisms in Greece under the previous code, see Turning 18 and undocumented: supporting children in their transition into adulthood (annex 2: Greece).

Ten-year residence permit for young people

The new Code improves the eligibility conditions for the ten-year residence permit (“M2 permit”) for two groups of young people. Firstly, third-country nationals born in Greece or who successfully completed six grades of school in Greece and are younger than 23 at the time of application, are eligible for the ten-year permit. This regularisation mechanism already existed, but only gave access to a five-year permit.

Secondly, the new Code improves conditions for former unaccompanied children. Up until this reform, Greece had no way for former unaccompanied children to regularise their status. Now, article 161§1(c) extends the eligibility for the M2 permit to adults who arrived in Greece as unaccompanied children and successfully completed at least three years of secondary education in a Greek secondary school before they turned 23.

Although this provision entered into force upon the publication of the law earlier this year, it cannot be implemented until the relating Ministerial Decision is published. No information on this permit or how to apply for it is currently available on the Ministry of Migration and Asylum website.

The introduction of this new regularisation mechanism for undocumented former unaccompanied children is a positive development in itself. In addition, the length of the permit provides stability. However, the requirement to successfully attend three years of school in Greece before turning 23 can be challenging for many former unaccompanied children. Many unaccompanied and formerly unaccompanied children cannot enroll in school because places are limited (especially when enrolling in the middle of the year). Even when they do manage to enroll, they may struggle to follow classes in Greek, as many are not supported in learning the new language.

To apply for an M2 permit, the applicant must also have health care coverage and must not have been absent from Greece for more than two consecutive years. After its expiration, the M2 permit is automatically converted into a long-term residence permit (“M1 permit”).

Three-year permit for exceptional reasons

The reform complicates access to the A6 permit, a three-year permit for exceptional reasons. As before, this permit remains accessible to undocumented people who continually lived in Greece for seven years or more (art 134§5). However, the time awaiting an asylum decision no longer counts towards these seven years, effectively extending the time of precarity.

Five-year exclusion for false documents

The new Code sanctions people who provided false information or documents during an application procedure with a five-year ban from applying for a new permit or renewing their current permit. This ban can be issued by any competent authority and without a court order.

No security for unaccompanied children or agricultural workers

Overall, this reform may improve access to a secure residence permit for undocumented children and young people. The introduction of the ten-year residence permit for former unaccompanied children who attended school in Greece is particularly promising. Whether the permit will be accessible to undocumented young people in practice will however largely depend on the policies regulating the implementation of the law, especially the documents required to obtain the permit.

At the same time, the new Migration Code fails to introduce residence permits for two important groups, despite the continued advocacy work of Greek civil society, including PICUM members. First, unaccompanied children who do not apply or did not receive asylum continue to be undocumented. Greek law now leaves this group of children in a highly precarious situation, where they need to go to school and wait until they turn 18 to be able to apply for a permit. Secondly, the reform did not introduce any solutions for undocumented agricultural workers, who often endure serious exploitation and abuse.

Cover image: jimmy teoh – Pexels

The undersigned civil society organisations would like to express their concerns with regard to several aspects of the Commission’s proposal amending the Schengen Borders Code.

Overall, the proposal embraces a very harmful narrative which assumes that people crossing borders irregularly are a threat to the EU and proposes to address it by increasing policing and curtailing safeguards. At the same time, the proposal fails to recognise the lack of regular pathways for asylum seekers, who are often forced to turn to irregular border crossings in order to seek international protection within the EU, and further complicates access to asylum. The measures put forward by the Commission would have a detrimental impact on the right to freedom of movement within the EU, the principle of non-discrimination, access to asylum and the harmonisation of procedures under EU law. Furthermore, the proposal would increase the use of monitoring and surveillance technologies, without any adequate safeguards.

Freedom of movement within the EU and violation of the principle of non-discrimination

Several provisions of the proposed amended Schengen Borders Code would encroach the right to freedom of movement within the EU (art. 3(2) TEU, art. 21 and 77 TFEU) by expanding the possibility to reintroduce internal border controls and facilitating the application of so-called “alternative measures” which in practice amount to discriminatory border controls. The discretionary nature of these border checks is very likely to disproportionately target racialised communities, and practically legitimise ethnic and racial profiling and expose people to institutional and police abuse.

While the amended Schengen Borders Code reiterates that internal border controls are prohibited in the Schengen area, it also introduces the possibility to carry out police checks in the internal border areas with the explicit aim to prevent irregular migration, when these are based on “general information and experience of the competent authorities” (rec. 18 and 21 and art. 23). In addition, the proposal clarifies the meaning of “serious threat” which justifies the temporary reintroduction of border controls (which was already possible under art. 25 of the 2016 SBC). Problematically, the proposed definition of “serious threat” also includes “a situation characterised by large scale unauthorised movements of third country nationals between member states, putting at risk the overall functioning of the area without internal border control” (art. 25).-1-

Such provisions, together with the new procedure set by article 23a and analysed below, will in practice legalise systematic border controls which target people based on their racial, ethnic, national, or religious characteristics. This practice is in clear violation of European and international anti-discrimination law and a breach to migrants’ fundamental rights.

Research from the EU Fundamental Rights Agency in 2021 shows that people from an ‘ethnic minority, Muslim, or not heterosexual’ are disproportionately affected by police stops, both when they are walking and when in a vehicle. In addition, another study from 2014 showed that 79% of surveyed border guards at airports rated ethnicity as a helpful indicator to identify people attempting to enter the country in an irregular manner before speaking to them.

The new provisions introduced in the amended Schengen Borders Code are likely to further increase the discriminatory and illegal practice of ethnic and racial profiling and put migrant communities at risk of institutional violence, which undermines the right to non-discrimination and stands at odds with the European Commission’s commitments under the recent Anti-Racism Action Plan.

 

Lack of individual assessment and increased detention

The proposed revisions to the Schengen Borders Code set a new procedure to “transfer people apprehended at the internal borders”. According to the proposed new rules, if a third country national without a residence permit or right to remain crosses the internal borders in an irregular way (e.g., from Germany to Belgium, or from Italy to France) and if they are apprehended “in the vicinity of the border area,” they could be directly transferred back to the competent authorities in the EU country where it is assumed they just came from, without undergoing an individual assessment (art. 23a and Annex XII). This provision is very broad and can potentially include people apprehended at train or bus stations, or even in cities close to the internal borders, if they are apprehended as part of cross-border police cooperation (e.g. joint police patrols) and if there is an indication that they have just crossed the border (for instance through documents they may carry on themselves, their own statements, or information taken from migration or other databases).

The person will be then transferred within 24 hours.-2- During these 24 hours, Annex XII sets that the authorities might “take appropriate measures” to prevent the person from entering on the territory – which constitutes, in practice, a blanket detention provision, without any safeguards nor judicial overview. While the transfer decision could be subject to appeal, this would not have a suspensive effect. The Return Directive would also be amended, by introducing an obligation for the receiving member state to issue a return decision without the exceptions currently listed in article 6 (e.g., the possibility to issue a residence permit for humanitarian or compassionate reasons). As a consequence, transferred people would be automatically caught up in arbitrary and lengthy detention and return procedures.-3-

Courts in Italy, Slovenia and Austria have recently ruled against readmissions taking place under informal or formal agreements, recognising them as systematic human rights violations with the potential to trigger so-called chain pushbacks. The courts found the plaintiffs were routinely returned from Italy or Austria through Slovenia to Croatia, from where they had been illegally pushed back to Bosnia and Herzegovina.

In practice, this provision would legalise the extremely violent practice of “internal pushbacks” which have been broadly criticised by civil society organisations across the EU and condemned by higher courts. The new procedure, including the possibility to detain people for up to 24 hours, would also apply to children, even though this has been deemed illegal by courts and despite international consensus that child detention constitutes a human rights violation.

Access to asylum

The new Code introduces measures which member states can apply in cases of “instrumentalisation of migrants”, which is defined as “a situation where a third country instigates irregular migratory flows into the Union by actively encouraging or facilitating the movement of third country nationals to the external borders” (art. 2). In such cases, member states can limit the number of border crossing points and their opening hours, and intensify border surveillance including through drones, motion sensors and border patrols (art. 5(4) and 13(5)). The definition of instrumentalisation of migrants should also be read in conjunction with the Commission’s proposal for a Regulation addressing situations of instrumentalisation in the field of migration and asylum, which provides member states with numerous derogations to the asylum acquis.

These measures unjustifiably penalise asylum seekers by limiting access to the territory and de facto undermining art. 31 of the Refugee Convention which prohibits States from imposing penalties on refugees on account of their entry or presence in their territory without authorization, and are therefore in violation of international law. 

 

Harmonisation of procedures under EU law and asylum acquis

The proposal lifts the standstill clause introduced by the 2008 Return Directive (art. 6(3)) which prohibits member states from negotiating new bilateral readmission agreements. When negotiating the 2008 Return Directive, both the Commission and the European Parliament had clarified that bilateral readmission agreements should remain an exception, as they undermine the objective of harmonising procedures under EU law.

By incentivising states to adopt new bilateral agreements, and proposing a new internal transfer procedure, the Commission’s proposal promotes the proliferation of exceptional procedures, which are outside the framework set by the Return Directive and the asylum acquis, and circumvents the procedural safeguards included in the Dublin Regulation.

The proposed provisions undermine the substantive and procedural guarantees for third country nationals, such as the right to request asylum, the respect of the principle of non-refoulement, and the right to an effective remedy.

As mentioned above, several national-level courts have ruled on the unlawfulness of readmissions carried out under formal and informal agreements, which often led to instances of chain-refoulement. There is a serious risk that readmission agreements, if they remain a part of the current legislative proposal, could be further abused to perpetrate chain refoulement and collective expulsions, which are in violation of Article 4 of Protocol No. 4 to the European Convention on Human Rights and Article 19 of the Charter of Fundamental Rights of the European Union.

Use of monitoring and surveillance technologies

Lastly, the proposal also facilitates a more extensive use of monitoring and surveillance technologies, by clarifying that these are part of member states’ responsibility to patrol borders (art. 2). In addition, article 23, analysed above, clarifies that internal checks, including to prevent irregular migration, can be carried out “where appropriate, on the basis of monitoring and surveillance technologies generally used in the territory”.

By removing obstacles for a more extensive use of monitoring and surveillance technologies, these provisions would create a loophole to introduce technologies which would otherwise be discouraged by pre-existing EU legislation such as the General Data Protection Regulation.-4-

Artificial Intelligence (AI) and other automated decision-making systems, including profiling, are increasingly used in border control and management for generalised and indiscriminate surveillance. Insofar as such systems are used to ‘detect human presence’ for the purpose of ‘combating irregular migration’, there is serious concern that such systems can facilitate illegal interdiction, violence at border crossings, and further limit access to asylum and other forms of protection.

Furthermore, these technologies disproportionately target racialised people, thus further exacerbating the risks of increased racial and ethnic profiling. Indeed, monitoring and surveillance technologies which make use of artificial intelligence by nature violate the right to non-discrimination insofar as they are trained on past data and decision-making, and therefore codify assumptions on the basis of nationality and other personal characteristics, which is prohibited by international racial discrimination law.-5-

Recommendations

In light of the concerns discussed above, the undersigned civil society organisations:

• Express their concerns on the harmful impact of narratives which consider people crossing borders irregularly as a threat, and recommend the European Parliament and the Council to delete such references from recital 29, article 23 and article 25(1)(c);
• Call on the EU institutions to uphold the right to freedom of movement and the principle of non-discrimination, including by prohibiting the use of technologies which make use of artificial intelligence and other automated decision-making systems. In this regard, we recommend the European Parliament and the Council to amend article 23, paragraph (a) by deleting the reference to “combat irregular residence or stay, linked to irregular migration” in point (ii) and deleting point (iv) on monitoring and surveillance technologies;
• Urge the EU institutions to uphold the right to apply for asylum, and recommend deleting the definition of ‘instrumentalisation of migration’ in article 2, paragraph 27 and all the ensuing provisions which would apply in this circumstance;
• Condemn the proliferation of exceptional procedures which undermine the right to an individual assessment, and recommend deleting article 23a, annex XII, and the proposed amendment to art. 6(3) of the Return Directive;
• Express their concerns at the glaring inconsistency between some of the proposed provisions and the European Commission’s commitments under the EU Action Plan against Racism, i.e. with respect to ending racial profiling, and call on the EU institutions to uphold their commitment to address and to combat structural and institutional discrimination and include explicit references to the Action Plan against Racism in the text of the Schengen Borders Code.

Signatories:

European/ international networks and organisations

• Access Now
• Action Aid International
• Border Violence Monitoring Network
• Caritas Europa
• Centre for Youths Integrated Development (CYID)
• Danish Refugee Council
• European Network Against Racism (ENAR)
• Equinox Initiative for Racial Justice
• EuroMed Rights
• Fair Trials
• FEANTSA – European Federation of National Organisations Working with the Homeless
• MiGreat – Belgium
• La Strada International
• Oxfam International
• Platform for International Cooperation on Undocumented Migrants (PICUM)
• Sea-Watch e.V.
• Quaker Council for European Affairs

National level networks and organisations

• 11.11 – Belgium
• Artha project – Belgium
• Association for the Social Support of Youth (ARSIS) – Greece
• Associazione per gli Studi Giuridici sull’Immigrazione (ASGI) – Italy
• ASTI – Association de soutien aux travailleurs immigrés – Luxembourg
• Caritas International – Belgium
• Centre for Peace Studies – Croatia
• Digitale Gesellschaft – Switzerland
• FAIRWORK Belgium – Belgium
• Fundacion Cepaim – Spain
• Human Rights Defenders e.V. – Germany 
• Institute for International Political Studies (ISPI) – Italy
• KISA – Action for Equality, Support, Antiracism – Cyprus
• Mujeres Supervivientes – Spain
• NGO Legis – North Macedonia
• Platform minors in exile – Belgium
• Progress Lawyers Network – Belgium
• Red Acoge – Spain
• Refugees Welcome – Denmark
• Red Solidaria de Acogida – Spain
• Servicio Jesuita a Migrantes (SJM) – Spain
• Stap Verder –The Netherlands
• Stichting LOS (Landelijk Ongedocumenteerden Steunpunt) – The Netherlands

-1- In this regard, it is relevant to highlight that, while temporary reintroduction of internal border controls should only be a measure of “last resort”, this has been done in more than 300 cases since 2006.

-2- Third country nationals “transferred” from one EU member state to another would be handed to the police in the receiving member state. The only requirement to carry out this procedure is to fill out a simple form which states the person’s identity, the way the person’s identity was established, the grounds for refusal and the date of the transfer. If the third country national refuses to sign, it will be enough for the authorities to indicate this in the comments section.

-3- These risks are exacerbated by the lack of harmonisation of protection standards for stateless persons.

-4- See, for instance, Article 22, which states that “data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her”, or Article 9, which imposes specific rules regarding the collection and use of sensitive data.

-5- UN Convention for the Elimination of all Forms of Racial Discrimination, 1965; EU Charter of Fundamental Rights, Article 21; UN Convention on the Rights of Persons with Disabilities, Article 5.

In recent years, EU migration policies have consistently focused on increasing the rate of returns. Yet such an approach rests on the mistaken belief that for undocumented people, the only option is to return – either by force or “voluntarily”.

In reality, people continue to reside irregularly for a wide range of reasons, and may indeed have other grounds for residence than an asylum application. According to official estimates, every year 300,000 people cannot return from the EU for different reasons, including human rights and factual considerations.

This report analyses the main human rights reasons for which people who do not qualify for asylum cannot be deported, as well as the external circumstances that can make deportation or return impossible. It concludes by advocating for the need to abandon the exclusive focus on return procedures in favour of a more holistic, comprehensive approach which takes into consideration a broader range of solutions. To do so, it analyses different policies adopted by EU member states to provide rights and protection for people with barriers to return, through the comparison of ten national level case studies from eight different countries (Cyprus, France, Germany, Greece, Italy, the Netherlands, Spain, Poland).

 

Human rights and other barriers to return

Under international and EU law, there are several human rights reasons for which people who do not qualify for international protection cannot be deported, such as the principle of non-refoulement, protection of family and private life, the best interests of the child, the prohibition of arbitrary detention and protection on the grounds of statelessness. In most countries, these considerations fall outside of the scope of the asylum procedure.

In addition, there can be practical reasons, outside of individual control, for which return and deportation might be practically impossible. For instance, people might not be able to obtain a valid passport, or they might be unable to travel due to medical reasons.

 

Residence permits for people with barriers to return

Policies which focus on deportation and return as the only possible outcome for people in an irregular administrative situation are bound to create situations of socio-economic exclusion, discrimination and human rights violations, whether in the country of origin, when people are forcibly returned, or in the country of residence, when people are excluded from accessing pathways to regularise their situation and are forced into living in irregularity, often for years.

For this reason, it is key to work towards a paradigm shift in the EU migration policies, from considering return, or deportation, as the primary – or often only – option for people in an irregular administrative situation, to considering different options for case resolution, including pathways to obtain a permanent or temporary residence status.

Permits and statuses available to people with barriers to return vary greatly from country to country, and can range from full-fledged residence permits (e.g., Italy, Spain, Poland) to temporary suspensions of deportation orders (e.g. Greece, Germany). However, the dividing line between the two sub-groups is often very thin, and the categories are far from being homogeneous or well-defined. Permits and statuses can be better described as being placed along a continuum which ranges from residence permits granting full access to labour and social rights, stability and protection from deportation; to mere suspensions of deportation with no rights nor security attached.

This report identifies four key elements which need to be fulfilled in order to ensure that people with barriers to return are granted rights and protection:

• Initiation of the procedure: permits and statuses accessible to people with barriers to return should be evaluated automatically by the authorities (ex officio) on an individual basis, before the issuance of a return decision or a refusal of entry. This is the case, at least for certain permits, in Italy, Spain, Poland, the Netherlands and Germany. In addition, individuals should be able to apply independently as well, as the authorities might not be aware of their specific barriers to return. In the countries examined in this report, individuals can apply independently to certain permits or statuses in Italy, Spain, Cyprus, the Netherlands and France.
• Right to work and access to social services: access to the labour market and to social services should be automatic for any of these permit holders or statuses. Currently, the right to work is granted automatically only in five out of the ten case studies (Italy, Spain, Poland, France, the Netherlands), and full access to social services in four (Italy, Spain, France, the Netherlands).
• Pathways to more secure status: as barriers to return are often continuous, it does not make sense to limit access to secure, long-term permits. Secure permits allow people to acquire more certainty over their future, plan their lives and gain full access to social and labour rights. All countries except two (Greece and Cyprus) analysed in this report grant the possibility to apply to more secure, long-term permits.
• Protection from deportation for the whole duration of the permit / status. This is the case for all of the case studies considered, with the exception of the “no-fault” permit in the Netherlands and the “Duldung” in Germany.

 

Preventing limbo situations

Despite different national-level policies which provide rights and protection for people with barriers to return, in practice many people still fall through the cracks. This can happen, for instance, because the criteria to apply are too stringent or completely arbitrary; and because of administrative or legal barriers to access these permits. In addition, several states still fail to grant any kind of permit to people who cannot be deported or return, and many others even fail to provide an official acknowledgement that the person cannot be deported, which is in breach of the EU Return Directive.

When this happens, undocumented people with barriers to return find themselves in a limbo, often for years, unable to access healthcare, housing, education, and justice, and are often pushed into undeclared work and exploitation.

To prevent this, it is essential for the European Union and member states to set an obligation to comprehensively assess fundamental rights considerations (including the right to health, private and family ties, best interests of the child, non-refoulement and the protection of stateless people) and whether third country nationals have the possibility to access an autonomous residence permit or other authorisation granting a right to stay before a return decision is issued.

In December 2021, the European Commission proposed new rules on internal borders, codified as a reform of the Schengen Borders Code, that aim to further increase surveillance and controls over non-EU citizens crossing internal and external borders. These proposals would increase the use of technology and would practically legitimise ethnic and racial profiling. More broadly, the proposals reinforce the narrative that irregular migration is a threat to the EU and that it needs to be fought with more policing.

The Schengen Borders Code regulates border controls at the internal and external borders of the Schengen area. The amended Code proposed by the Commission expands EU member states’ powers to carry out checks at the internal borders to prevent undocumented migrants from crossing them, and escalates the use of monitoring and surveillance technologies at the internal and external borders-1-.

The proposed revisions to the Schengen Borders Code set a new procedure to “transfer people apprehended at the internal borders” . According to the proposed new rules, if a third country national crosses the internal borders in an irregular way (e.g. from Germany to Belgium, or from Italy to France), if the police manages to apprehend them “in the vicinity of the border area,” they could be directly transferred back to the competent authorities in the EU country where it is assumed they just came from without undergoing any individual assessment (Article 23a and Annex XII). This provision is very broad and can potentially include people apprehended at train or bus stations, or even in cities close to the internal borders, if there is an indication that they have just crossed the border (for instance through documents they may carry on themselves, their own statements, or information taken from migration or other databases).

Practically speaking, people “transferred” from one EU member state to another would be handed to the police in the receiving member state. The only requirement to carry out this procedure is to for the authorities of the “transferring” state to fill out a simple form which states  the person’s identity, the way the person’s identity was established, the grounds for refusal and the date of the transfer. If the undocumented person refuses to sign, it will be enough for the authorities to indicate this in the comments section.  The undocumented migrant will be then deported back within 24 hours (during which they can be detained without any safeguards). They would have the right to appeal the decision, but without suspensive effect, which means that they would only be able to appeal from another country, with all the difficulties this entails. The receiving Member State must then issue a return decision to deport them to their country of origin or a third country.

In practice, these procedures would legalise an extremely problematic practice of “internal pushbacks” which has been broadly criticised by civil society organisations across the EU and even sanctioned by higher courts. The new procedures would also apply to children, even though this has been deemed illegal by courts.

Even though the new Schengen Borders Code reiterates that internal border controls are prohibited in the Schengen area, it nonetheless clarifies that police and other powers can lawfully carry out checks in the internal border areas to prevent irregular migration (Recitals 18 and 21 and Article 23).  Such provisions will in practice legalise systematic border controls which target people only based on their racial, ethnic, national, or religious characteristics, all of which is in clear violation of European and international anti-discrimination law. In fact, it is clear that the new procedure allowing for internal transfers of people crossing borders irregularly will depend, for its implementation, on the borders police’s practice of deciding who will be subject to document checks based on racial, ethnic, national, or religious characteristics instead of individual behaviour or objective evidence.

2021 research from the EU Fundamental Rights Agency shows that people from an ethnic minority are disproportionately affected by police stops, both when they are walking and when in a vehicle. In addition, another study from 2014 showed that 79% of surveyed border guards at airports rated ethnicity as a helpful indicator to identify people attempting to enter the country in an irregular manner before speaking to them. The new provisions introduced in the amended Schengen Borders Code are likely to further increase the discriminatory and illegal practice of ethnic and racial profiling, which stands at odds with the European Commission’s commitments under the recent Anti-Racism Action Plan.

While the new Schengen Borders Code indicates that internal border controls are prohibited in the Schengen area, it also foresees a provision (Article 25) for a member state to temporarily introduce border controls at all or specific parts of its internal border if it faces “serious threats”. Problematically, the code introduces a definition of “serious threat” which includes, alongside terrorism or organised crime, “a situation characterised by large scale unauthorised movements of third country nationals between member states, putting at risk the overall functioning of the area without internal border control” (Article 25). Even though the Schengen Borders Code (both in the 2016 and the amended versions) foresees that the temporary reintroduction of internal border controls should only be a measure of “last resort”, this has been done in more than 300 cases since 2006.

Furthermore, the new Code introduces measures which member states can apply in case of “instrumentalisation of migrants”, which is defined as “a situation where a third country instigates irregular migratory flows into the Union by actively encouraging or facilitating the movement of third country nationals to the external borders” (Article 2). In such cases, member states can limit the number of entries and the opening hours of crossing points, and intensify border surveillance including through drones, motion sensors and border patrols (Articles 5(4) and 13(5)).

The proposal also expands the use of monitoring and surveillance technologies to prevent irregular migration including when states have not formally reintroduced internal border controls (Article 2 and 23), despite broad criticism over the lack of transparency and the risks of technologies replicating biases against specific communities.

In short, the new Code would turn the Schengen area into a tech-controlled space in which ethnic and racial profiling is likely to be further exacerbated to identify potentially undocumented people and facilitate their immediate deportation to another member state, in complete absence of any safeguards.

-1- Besides the amendments analysed in this blog, the amended proposal introduces further provisions on health-related challenges, amends the procedure for the unilateral reintroduction of internal border controls and introduces the possibility or the Council to reintroduce temporary border controls, on initiative of the Commission.