The new draft Schengen Borders Code risks leading to more racial and ethnic profiling

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.