EU nears racial profiling approval at Schengen borders, risking discrimination

The proposed reform of the Schengen Borders Code will legalise and expand targeted checks on racialized communities, giving carte blanche to member states to potentially use violence when larger groups of people try crossing their borders, writes Michele LeVoy.

Michele LeVoy is the director of the Platform for International Cooperation on Undocumented Migrants (PICUM).

Police checks and racial profiling

The reform is being sold as a way to save Schengen from the current flurry in temporary internal border controls linked to fears over migration.

In practice, it proposes to generalise police checks near internal EU borders, calling them “alternative measures.”

Such police checks are not considered internal border checks, so the text gives the impression that freedom of movement within Schengen is being preserved.

But in practice, these checks are ways to control internal borders, with the explicit aim to ‘reduce’ potential irregular crossings.

Research from the EU Fundamental Rights Agency has already shown that police tend to stop people for checks based on racial, ethnic, or religious characteristics.

It is clear then that these checks will most likely depend on the police’s decision about who “looks like” a person without valid papers.

Permitting checks at the internal borders targeted at people who are suspected of being undocumented, will in practice amount to discriminatory border controls. Flying in the face of European and international anti-discrimination laws.

As recently as last year, a Dutch appeals court prohibited police in the Netherlands from using racial profiling as a basis for selecting people for identity checks at borders.

Migration control

Once the lynchpin of freedom of movement in Europe, the Schengen Borders Code is now becoming another tool in the hands of EU leaders wanting to crack down on migrants.

During negotiations, the Council introduced in the text a disturbing new provision allowing member states to take any necessary measure to preserve “security, law and order”, if a large number of migrants attempt entering the country irregularly “en masse and using force”.

This provision does not require states to follow any proportionality rule, nor does it specify what these measures should be.

In short, it gives states carte blanche to enact violent border control measures – similar to what we have already seen in Spain and Poland which has resulted in migrant deaths.

The deal on the Schengen reform will allow the reintroduction of internal checks, when there are “largescale unauthorised movements of third country nationals” between member states.

The text foresees use of border monitoring and surveillance technologies, such as drones and motion sensors, to prevent crossings.

In addition, member states could increase policing and even temporarily close border crossing points in situations of so-called “instrumentalisation of migration”.

This concept, also present in the much-criticised Migration Pact, refers to a situation where a member state claims that a non-EU country is pushing migrants towards an external EU border for political reasons.

Codification into EU law introduces broad derogations to fundamental rights, including the right to asylum and freedom of movement.

Internal pushbacks

Within the framework of bilateral cross-border cooperation, the revised Schengen Borders Code introduces an alarming new procedure for the “transfer” of people apprehended at internal borders. Effectively facilitating chain pushbacks without due process or individual assessment.

According to the proposed new rules, if third country nationals without a residence permit are apprehended “in border areas”, they could be directly sent to the EU country where the authorities assume they just came from, without any individual assessment.

A person can be detained while waiting for a transfer, which should happen within 24 hours.

Those who appeal against this procedure will not receive any legal assistance and can still be transferred while they await a decision on their appeal.

This provision is very broad and can potentially include people apprehended at train or bus stations, and even in cities close to the internal borders.

Such transfers would violate well-established jurisprudence by courts in Italy, Slovenia and Austria, which have all ruled against chain pushbacks between member states.

Automatic detention and internal transfers will also apply to children, something that has been deemed illegal by courts.

Though the European Parliament wanted to shield minors from these measures. The final text will instead allow them to be moved, by a mere invite from member states to “consider the best interests of the child” in accordance with their national laws.

After the Parliament and the Council brokered a political agreement on 6 February, a vote in the Parliament’s LIBE Committee, scheduled in March, could be one of the last occasions to stop a reform which will lead to racial profiling and human rights violations.