Schengen Border Code reform threatens individual rights and freedom of movement, says new report by human rights NGOs

"Reshaping Europe’s Space: Does the Schengen Border Code’s Reform undermine people (on the move)’s fundamental rights?" analyses how these policy changes could undermine fundamental rights and calls for monitoring, safeguards, and accountability to prevent these measures from becoming the norm.

The Schengen Border Code (SBC) reform, adopted in June 2024, introduces provisions that could legitimize practices previously considered illegal by national and European courts, including pushbacks, ethnic profiling, and the unregulated use of surveillance technologies.

The analysis highlights the several key issues

• Institutionalization of pushbacks: The new transfer procedure at internal borders lacks safeguards for minors and vulnerable groups and appears to legalize pushback practices – where border officials force migrants, including people seeking protection, back to the country where they attempted to cross from. This practice has been repeatedly ruled illegal by national and European courts.
• Expanded police and border controls, increasing the risk of racial profiling: The expansion of police control in internal border areas, combined with the absence of clear limits on the intensity and frequency of checks, paves the way for ethnic profiling. The lack of  effective national legal and operational tools to counter such practices suggests the proliferation of police checks based on physical appearance.
• Surveillance technologies without safeguards: The increasing use of surveillance technologies at borders, including artificial intelligence systems, is occurring without adequate safeguards. This raises concerns about discrimination, particularly the risk of racial profiling. 
• Further restrictions on freedom of movement: The introduction of the vague concept of “instrumentalizing” migration –  linked to recent legal instruments of the European Migration and Asylum Pact –  provides states with a pretext to close border crossings based on broad justifications.
• Reintroduction and extension of internal border controls: Border controls should only be reintroduced or extended in exceptional cases. However, the new SBC rules risk making this practice the norm rather than the exception.

Over the years, the Protect Rights At Borders (PRAB) network has shined a light on the ignored crisis of pushbacks at Europe’s borders. This new analysis shows that informal practices at the EU’s internal borders — such as informal pushbacks, the unlawful reintroduction of border controls — are now partially codified and legitimized by the SBC reform. The analysis also  reveals a worrying trend: The new SBC turns some of the practices deemed by national and European courts as violations of fundamental rights of migrants into standard procedures.

When implementing the new SBC provisions, it is crucial to ensure that they comply with European and international human rights law and the EU's moral and legal obligations in relation to asylum and migration, to prevent further erosion of the EU Schengen area, and to ​​to uphold the fundamental right to access to asylum in the EU.


PRAB partners call for the following:

• Enhanced monitoring:  Implement robust monitoring mechanisms to oversee the application of new measures, with a particular focus on the use of technology in border surveillance, security, and police checks at internal borders.
   
• Documenting abuses: Establish clear procedures for identifying, documenting, and reporting rights violations and discriminatory practices arising from the implementation of new SBC.
   
• Promoting Best Practices: Develop and disseminate positive practices, including targeted training programs, to mitigate the risk of ethnic profiling  
• Strengthening accountability: Effectively ensure accountability for rights violations and effective access to legal pathways and access to legal aid.