The New Proposal for the Schengen Borders Code: Towards more resilience or more securitisation?
On June 10th, EU Ministers of Home Affairs met in Brussels to discuss the reform of the Schengen Borders Code proposed by the European Commission last December and reached a common position that would allow the negotiations with the European Parliament to start (Council of the European Union, 2022). Since its launch, however, the proposal has been met with harsh criticism by experts and representatives of civil society organisations, who warn against the increasing risk of racial profiling and discrimination at the internal as well as external borders of the European Union.
But what is the Schengen Borders Code? Why did it need to be amended? And why might an amendment to it be detrimental to undocumented migrants’ human rights?
Adopted in 2006, the Schengen Borders Code is the “common corpus of legislation […] on the rules governing the movement of persons across the [internal and external] borders” of the Schengen area (Carrera et al., 2011). Its primary aim is to provide a set of transparent and harmonised procedures, to be valid for all the Schengen states. However, over the past decade, the stability of the Schengen system has been put under pressure by several crises. The so-called migration crisis of 2015, the increase in terrorist attacks across European states in 2015 and 2016, and the more recent Covid-19 pandemic (Guild, 2021) led an increasing number of member states to securitise their borders by reintroducing border controls, de facto undermining the raison d'être of the Schengen area: the free circulation of people. Therefore, the new proposal represents the European Commission's attempt to “make the internal area without border controls more resilient”, promoting alternative measures to ensure that the reintroduction of internal controls remains a "measure of last resort" and not the norm (European Commission, 2021a).
However, in a joint civil society statement published by PICUM in April 2022, 32 organisations argued that “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”. The civil society statement suggests that the proposal not only complicates further access to asylum procedures but also has a detrimental impact on the right to freedom of movement within the EU. In particular, the newly proposed Article 23a sparked several concerns as it would set a new procedure to “transfer people apprehended at the internal borders” (European Commission, 2021b). Indeed, according to the new rules, if a third country national crosses internal borders irregularly and is apprehended by joint police patrols in the proximity of the border area, they could be returned directly to the authorities of the member state they came from. Although the Article states that there must be “clear indications that the third country national has arrived directly from another Member State” (ibid.), it is still very broad and could even be applied to people apprehended at train and bus stations as well as in nearby cities (PICUM, 2022). If implemented as it currently stands, this provision risks legitimising “internal pushbacks” and, therefore, undermining undocumented migrants’ human rights.
Over the upcoming months, discussions will continue within and between the Council of the European Union and the European Parliament and the current proposal will likely be modified to meet the requirements advanced by both Institutions. Will article 23a be amended to avoid the risk of legitimising "internal pushbacks"? Either decision can expect more criticism and concern regarding its effects on migrants and EU nationals alike.
Written by Annalisa Scaletta, Amsterdam Chapter of European Horizons
Source: Photo By Members' Research Service
Carrera, S.; Guild, E.; Merlino, M.; Parkin, J. (2011) “A Race against Solidarity: The Schengen Regime and the Franco-Italian Affair”. Centre for European Policy Studies (CEPS).
Council of the European Union (2022) Meetings: Justice and Home Affairs Council, 9-10 June 2022”. [Accessed: 10/06/2022]. Available at: 09-10.
European Commission (2021a) “Schengen: New rules to make the area without internal border controls more resilient”. Press release. [Accessed: 09/05/2022]. Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6821.
European Commission (2021b) “Proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders”. COM (2021) 891 final, 2021/0428 (COD): Strasbourg. [Accessed: 20/05/2022]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021PC0891&from=EN.
Guild, E. (2021) “Schengen Borders and Multiple National States of Emergency: From Refugees to Terrorism to COVID-19”. European Journal Of Migration and Law, 23: 385-404.
Platform for International Cooperation on Undocumented Migrants (PICUM) (2022) “Joint Civil Society Statement on the Schengen Borders Code” [Accessed: 09/05/2022]. Available at:https://picum.org/joint-civil-society-statement-schengen-borders-code/