22 April 2024

Schengen’s Paper Pushbacks

On Wednesday, the 24th of April, the European Parliament will vote on a reform of the Schengen Borders Code (SBC), which appears to institutionalize existing patterns of denying access to rights for people on the move by introducing “transfer-procedures” (Art. 23a in the Parliament and Council’s provisional agreement from February 2024).

Expulsions without procedural safeguards have become common practice at internal borders throughout the EU. The Readmission Agreement relied on at the EU’s internal border between Croatia and Slovenia, for instance, has been criticized for facilitating “paper pushbacks,” enabling collective expulsions without access to an asylum procedure, no legal protection, no identification of vulnerabilities, and only providing documentation individuals are forced to sign in a foreign language. At the German-Austrian border, a remarkably low number of asylum applications, despite recognition rates of over 99 percent with regard to the main countries of origin, has indicated that many are denied the opportunity to submit an asylum application. In France, the lack of return procedures at the French-Italian border was successfully challenged by civil society organizations.

The proposed regulation raises concerns over its unclear resolution of potential conflict with EU secondary and primary law, particularly its incompatibility with children’s rights standards, and its application in practice.

The Proposed Transfer Procedure

The transfer procedure under the proposed Schengen reform allows Member States to expel migrants apprehended in internal “border areas” to the Member State from which they supposedly arrived within 24 hours by issuing only a brief form instead of a formal decision. The proposed regulation states the affected individuals shall be provided a remedy that must be “effective” but without a suspensive effect. Its application requires two conditions: (1) An apprehension “within the framework of bilateral cooperation,” and (2) “clear indications” of the individual’s arrival from the other Member State without a right to stay. Transfer procedures shall be excluded if the apprehended individual applies for international protection. The proposed Art. 23a(2) explicitly allows derogation from the guarantee of a return decision in Art. 6(1) Return Directive (RD).

Conflicting Law

Despite the exemption of asylum-seekers and the derogation clause, the proposed regulation’s text risks friction with other EU secondary law, primary law, and particularly with international standards for the protection of children’s rights.

Secondary law

The exclusion of asylum seekers from the scope of the procedure is necessary to comply with the procedural standards of the EU-Asylum System under the Asylum Procedure Regulation and the Asylum and Migration Management Regulation. But even where indications of a request for protection do not appear, conflicts with other secondary law remain. The Return Directive principally still requires a return decision procedure (Art. 6 (1) RD) including, inter alia, remedies with suspensive effect (Art. 13, RD). In September 2023, the CJEU, in the case of ADDE et al. v. France, confirmed the applicability of the Return Directive to expulsions at internal borders. The SBC-proposal appears to respond to this with its explicit derogation clause, which was not part of the initial draft, thus added later, supposedly for clarification purposes. However, it remains questionable whether this derogation can be legally effective due to the strict priority of EU primary and secondary law over regulations that are part of enhanced cooperation (Art. 326 (1) TFEU). Although the Schengen acquis in form of the Schengen Protocol has been incorporated into primary law through Art. 51 TEU, the further development of the Schengen acquis is still designed as (authorized) enhanced cooperation with respect to the relevant provisions of the treaties in Art. 1 and 5 Schengen Protocol. The CJEU has consequently applied the general rules concerning enhanced cooperation (Art. 326 ff. TFEU) to the development of the Schengen acquis where the Schengen Protocol does not set specific regulations (§ 47 ff.).

States have based existing transfer practices on a derogative clause in Art. 6(3) RD. Under this provision, a return decision may be dispensed with under bilateral readmission agreements that existed before the Directive. However, this clause cannot serve as a general justification for transfers under Art. 23a SBC, as it requires agreements concluded before the entry into force on January 1st, 2009.

Primary law

With regard to primary EU-law — irrespective of mutual trust and agreements — Art. 18 and 19(2) CFR, as well as Art. 3 ECHR in conjunction with Art. 4 Protocol 4 ECHR and Art. 13 ECHR, and Art. 33 Geneva Convention all require an individual examination of whether a real risk of violations exists before each expulsion. Even if these guarantees are theoretically foreseen by excluding asylum-seekers from the scope of the proposed transfer procedures, this does not apply to the right to effective legal protection, Art. 47 CFR and Art. 13, 3 ECHR. As existing practice shows, the illegality of the expulsion may also be grounded in the denial of asylum claims (see below). In the Gnandi case, the CJEU outlined that in the light of Art. 18, 19(2), 47 CFR, the Return Directive requires a remedy with suspensive effect (§ 67). It is in contradiction to this fundamental rights approach of the court that Art. 23a(2a) SBC in fact denies such. Notably, the CJEU in the ADDE case highlighted that derogations cannot be justified by the fact “that [the] obligation [of return decisions] on the Member State concerned is likely to render ineffective to a large extent any decision to refuse entry to a third-country national arriving at one of its internal borders” (§ 40).

The rights of the child

Art. 23a(1.3) SBC requires that a transferring Member State informs the receiving Member State if individuals that the Member State “presumes to be a minor” are part of the transfer and further refers broadly to child rights guarantees by national law. The application of transfer procedures to minors, however, conflicts with obligations of the UN Convention on the Rights of the Child (CRC). Although the EU is not a member of the Convention, it is of central relevance as all EU Member States have ratified the CRC, and the TEU reflects on it in Art. 3(3.4) and Art. 3(5), impacting interpretation of the protection of children’s rights as to Art. 24(1.1.) CFR and the best interests of the child, Art. 24(2) CFR. This conflict arises regarding at least three particular guarantees:

1. The prohibition of torture in Art. 37 CRC reflects non-refoulement obligations as expressed in other human rights treaties, e.g. Art. 3 ECHR. However, the protection extends further when it comes to minors. The UN Committee on the Rights of the Child (CRC-Com) has outlined that the risk of harm must be assessed in an age and gender-sensitive manner taking into consideration further aspects such as, inter alia, “access to education” and “child’s physical and psychological recovery and social reintegration” (§ 10.7). In D.D. v. Spain, the CRC-Com also considered that the manner of the expulsion of an “unaccompanied child deprived of his family environment and in a context of international migration, after having been detained and handcuffed and without having been heard, without receiving the assistance of a lawyer or interpreter and without regard to his needs constitute[d] treatment prohibited under Art. 37” (§ 14.8). Yet existing patterns indicate that transfer procedures would be executed in precisely such a manner.

2. In addition, Art. 20(1) CRC requires that state parties provide special protection and assistance to unaccompanied minors. This entitles a positive obligation to identify unaccompanied children in the context of border crossings and to determine their vulnerabilities and potential international protection needs at the earliest possible stage — irrespective of the legal status and grounds for migration (D.D. v. Spain, § 14.3). The assessment requires the child’s prompt registration via an interview conducted in a language the child understands by qualified professionals in a scientific, safe, child and gender-sensitive and fair manner with the benefit of the doubt to the child. In the context of immediate expulsions, it is “imperative and necessary” that the State “conducts an initial evaluation process, prior to any transfer or return” to comply with the Art. 20 obligations (D.D. v. Spain, § 14.3). In contrast, the proposed Art. 23a(1.3) SBC only requires age “presumptions” that are unavoidably hasty, inaccurate, and even untranslated.

3. The abovementioned guarantees require proactive protection by the Member States by qualified professionals in a language the minor understands. Hence, the theoretical possibility of seeking international protection and avoiding transfer procedures is not alone sufficient to meet CRC obligations, especially in light of the state obligation to consider the best interest of the child, Art. 3 CRC. The CRC-Com has highlighted the necessity of individualized procedures, including safeguards to determine their best interest as an “integral part of any administrative or judicial decision concerning the entry, residence or return of a child” (General Comment No. 22, §33). This includes the provision of information throughout the procedure, assistance by a translator or interpreter, and representation by an attorney (General Comment No. 23, §17). It has explicitly stressed that “allowing the child access to the territory is a prerequisite to this initial assessment process” (General Comment No. 6, §20, also D.D. v. Spain, § 14.4.). However, the proposed reform not only foresees the inclusion of minors in such transfer procedures but also fails to include specific safeguards ensuring their rights.

The Procedure in Practice

Existing transfer procedures based on bilateral readmission agreements, such as that between Slovenia and Croatia, serve as models of what transfers under the proposed regulation might look like in practice. Numerous reports (e.g. listed here, here and here) bear witness to the continuous disregard of human rights obligations within such transfers through at least 2021. The design of the new regulation unfortunately misses out to prevent such well-documented abuse. Comparable to the existing readmission practices, it foresees the issuance of a document that must be signed by the affected individual. The one-page form can be found in the Appendix to the proposal. Besides the personal data of the individual, the executing officers shall fill in the broad region of their apprehension (e.g. closest border), the Member State they suppose the individual has arrived from, and their grounds for finding that the person has no right to stay (which will be usually the lack of a residence permit). It further contains a note on the right to appeal.

The form does not require the specification of the particular place of apprehension, but only a vague indication of the closest border. While the initial proposals limited the application of the procedure to “internal borders”, it was ultimately extended more broadly to “border areas.” In the regulation, no definition of “border areas” can be found. Art. 3 No. 2 of the 2006 Local Border Traffic Regulation defines it as an area of 30 kilometres from the border, which would include whole cities even if they are not placed directly at the border. Besides this broad ambit, the design of the form does not provide for an evaluation that authorities have in fact complied with the scope of the regulation.

Further, the proposed form includes no fields documenting whether an intent to apply for asylum was expressed, whether relevant notifications took place, or whether the opportunity to express such was otherwise provided. Current patterns show that during similar readmissions, often no effective access to such a procedure exists. In Slovenia, for example, the Administrative Court attributed a drastic drop in the percentage of asylum claims after apprehensions, from 99% to 3% within one month in 2018, to internal instructions that officers disregard asylum claims (U 1686/2020-126, see also the Slovenian Human Rights Ombudsman’s report from 2021, p. 12). A lack of information and interpretation further compromises the effectiveness of legal guarantees. The German border police are suspected not to ask whether apprehended individuals wish to claim international protection (here and here) but only to hold criminal investigations in contravention of the principle of administrative investigation (§ 24 (1) VwVfG) and the obligation to encourage requests (§ 25 (1) VwVfG). With such practices in mind, the many ways that the exclusion of asylum-seekers from the ambit of the proposed regulation may become toothless are foreseeable.

With respect to the reference to children’s rights guaranteed by national law, existing state patterns also give little hope to their implementation in practice. Many unaccompanied minors expelled under readmission agreements have reported false identification, disregarding their documents, under duress or even violence, and in one documented case admittedly following internal instructions. The proposed form does not restrain such a possibility, since it includes no fields documenting the method of age assessment or the notification to the other Member State.

The existing practices have further proven that the hasty and non-procedural manner of transfers allows authorities to ignore documentation requirements. The Slovenian Ombudsman (p. 51) found, for example, that the authorities had dispensed with individualized record keeping due to “the objective circumstances of the procedure”, rendering it impossible to examine the legality of migrant’s treatment. Accompanied by the lack of suspensive effect, this threatens to render the reassertion of an “effective remedy” meaningless.

A Harmful Recast

In the wake of the CEAS-reform, the proposed SBC-reform has received reduced attention, yet it nevertheless encompasses extensive new regulations. Concerns of increased racial profiling arise as checks shall not be considered equivalent to prohibited border checks “if they aim [..] to combat illegal migration” (Art. 23 a) ii.). The implications on surveillance and data security have already been discussed here. A recent call by civil society organisations to reject the recast criticizes additionally the adoption of the logic and language of “instrumentalization,” as well as the introduction of a clause allowing broad and undefined measures in Art. 5(3) SBC. The institutionalisation of transfer procedures, however, provides standards to a heterogeneous existing practice. Nevertheless, these new standards fail to ensure the rule of law. Instead, the proposed regulation is likely to perpetuate “paper pushbacks” – even including minors. In the end, a reform that denies procedural rights of racialized migrants renders substantive guarantees futile and reproduces a regime of impunity.

The author would like to thank Delphine Rodrik for her very helpful comments and advice.