The coercive control of human mobility in Europe: A criminological reading of the EU Pact on Migration and Asylum.

By Giuseppe Campesi, Professor of Law and Society at the University of Bari (Italy), his research interests cut across law, sociology and political sciences, focusing on critical legal studies, criminology and criminal justice, border control and migration policies. 

This post inaugurates a thematic series dedicated to analyzing the criminological implications of the new EU Pact on Migration and Asylum by providing an overview of how the newly approved legislative instruments redefine the catalogue of coercive migration control tools that will be available to EU Member States. The other posts included in the thematic series will delve into some of the most relevant aspects of the EU Pact from a criminological perspective, focusing on the impact that the new measures will have on practices at the national level, particularly in countries located along the EU’s borders. The concluding post, will summarize the analysis conducted by the authors participating in this thematic series, reflecting on the relevance of the Pact’s adoption for border criminology and crimmigration scholars.

This thematic series originates from a workshop held in May 2024 at the University of Bari (Italy) and organised in the framework of the Jean Monnet Module Migration, Borders, and Human Rights: The Challenges of Human Rights Protection in Border Areas, funded by the European Education and Culture Executive Agency (Project No. 101047699). The editors of this thematic series are Giuseppe Campesi (University of Bari) and José Angel Brandariz, (Universidad da Coruna)

EU legislators recently approved a significant set of legislative proposals commonly referred to as the EU Pact on Migration and Asylum. These proposals represent a fundamental overhaul of the EU’s migration and asylum legislation, enriching and redefining the existing tools for coercive control over human mobility within EU law.

In the field of migration law and policy, the use of coercive measures often assumes hybrid forms, blurring the lines that supposedly separate civil and administrative measures from criminal punishment. In this blog post, I provide a brief overview of how the newly approved legislative instruments redefine the range of coercive migration control tools available to EU Member States (MS). I will illustrate the securitizing and criminalizing rationales that justify the use of these measures in EU migration and asylum law.

Manipulating EUropean Borders

Border control has traditionally been a primary mechanism for states to regulate the movement of people. Over the years, the EU has implemented increasingly sophisticated strategies, employing spatial and legal tactics to manage mobility across its territories. The EU Pact builds on these efforts by introducing a new pre-entry screening procedure and a mandatory asylum border procedure, further restricting physical access to EU territory for many migrants. These procedures focus on rapidly determining the status of individuals at the border, with most asylum seekers forcibly kept in locations near border areas where these procedures are to be implemented. The combined effect is a substantial reduction in the number of individuals who can successfully enter the EU for asylum purposes.

A particularly controversial aspect of these measures is the concept of “non-entry fiction”. This legal fiction deems the locations where screening and border procedures will take place as extraterritorial, meaning that individuals in these areas are not considered to have legally entered the EU. While this approach provides MSs with greater flexibility in applying migration controls, it raises significant legal and ethical concerns, particularly regarding access to asylum and adherence to international law.

Alongside the extra-territorialization of external borders, the EU Pact encourages the proliferation of borders within the EU space. This is done through a series of targeted amendments to the Schengen Borders Code (SBC) aimed at refining the management mechanisms of internal borders. One key amendment introduces a distinction between non-systematic “border checks” and more extensive “controls”, a distinction that legitimizes practices such as ethnic and racial profiling. Furthermore, if an individual is apprehended during cross-border police operations near an internal border, they may be swiftly readmitted to the MS of arrival, bypassing asylum provisions. This raises a key legal-geographical question: how far from the border can this procedure apply? The risk is that the internal border space is overstretched, legitimizing controls well beyond the border areas.

Emergency regimes

Emergency provisions on situation defined as of “crisis” or “intrumentalisation” of migration further bolster MSs’ ability to deviate from EU rules in governing their borders, allowing a broader application of border procedures. In cases of “instrumentalisation” MS may also reduce open crossing points and increase surveillance, making it more challenging for asylum seekers to access protection. This will not only increase the risk of refoulement, but will also facilitate collective expulsions, along with heightened border violence against migrants.

Internally, amendments to the Schengen Borders Code authorize MSs to reinstate internal border controls when they face a “serious threat.” Problematically, the code now introduces a definition of “serious threat” which includes, alongside terrorism or organized crime, “a situation characterized by large-scale unauthorized movements of third-country nationals between MSs, putting at risk the overall functioning of the area without internal border controls” (Article 25(1)(c), amended SBC). 

The EU Pact has effectively codified the portrayal of unauthorized movements of third-country nationals, including asylum seekers, as a security threat, allowing MSs to apply broad derogations from asylum rules and the Schengen acquis.

Regulating mobility through detention

Overall, the implementation of the EU Pact will signify a substantial increase in the use of deprivation of liberty to manage human mobility. 

Detention will become the standard in handling border procedures and executing forced transfers between MSs under asylum responsibility determination procedures. This expansion is coupled with a significant broadening of the grounds for detention and an extension of maximum detention terms, which in certain instances can extend up to a total of 22 months.

Another worrisome aspect is the increasing diversification of the forms of detention and their gradual hybridization with other mobility restrictions, achieved through spatial confinement in remote and inaccessible areas. The blurring of lines between detention and reception will become especially apparent in the administration of pre-entry and border procedures. Locations officially labeled as accommodation or reception centers will effectively serve as detention facilities, thereby sidestepping the safeguards outlined in EU and international law concerning the implementation of detention measures.

Lastly, there is an escalating trend of employing detention as a security measure to handle individuals deemed socially unreliable or dangerous. This is notably apparent in the pivotal role attributed to the concept of “risk of absconding” as a ground for detention. Alarmingly, this concept is defined in three distinct ways across the Reception Condition Directive, recast Return Directive, and the Regulation on Asylum and Migration Management (RAMM), potentially becoming a catch-all provision.

Shadow Criminalization

The EU Pact also intensifies the criminalization of migration, albeit through indirect means. Provisions in the Asylum Procedures Regulation and RAMM impose strict obligations on asylum seekers, discouraging secondary movements and requiring individuals to remain in the MS responsible for their application. Non-compliance often results in punitive measures, such as summary asylum procedures, outright rejection, or withdrawal of reception rights.

In the field of return policies, explicit criminalizing measures are obstructed by CJEU case law. However, the Commission has over time proposed various deterrent measures to discourage uncooperative behavior from individuals subject to return procedures. Many of these measures are now included in the proposed recast Return Directive, whose Article 7 introduces an obligation to cooperate for third-country nationals undergoing repatriation, mirroring similar obligations in asylum law. Non-cooperation results in sanctions, escalating the coercive nature of the return procedure, likely leading to detention, and forced return.

While these measures avoid explicitly criminalizing non-compliance, they effectively punish individuals for failing to adhere to procedural requirements. The lack of clear criteria for determining cooperation is particularly problematic. For instance, it remains unclear whether a self-declared identity suffices, leaving migrants vulnerable to arbitrary enforcement and making it difficult to challenge assumptions about their behavior in fair remedial procedures.

Tightening the EU surveillant assemblage

The obligations on migrants and asylum seekers significantly enhance authorities’ ability to gather data from individuals moving across the EU, compelling third-country nationals to subject themselves to the scrutiny of the EU surveillant assemblage under threat of being deemed at risk of absconding and subjected to less safeguarded, coercive procedures. 

The pre-entry screening procedure plays a central role in this process, channeling all unauthorized mobility arriving at the EU’s external borders through specific access points. The objective is not only to contain undesired mobility but also to make it knowable by transforming it into data.

Although the screening procedure relies on existing data collection mandates, amendments to Eurodac significantly expand its scope. Overall, the new provisions will dramatically extend access to databases for law enforcement, blurring the lines between asylum, migration, internal security, and criminal justice. 

This trend, ingrained in the interoperability framework, exacerbates concerns about eroding the purpose limitation principle. It also strains the criteria set by the CJEU and ECtHR regarding mass surveillance and large-scale data collection. 

Closing remarks

The overall effect of the newly approved measures is an increasing securitization of migration and criminalization of migrants and asylum seekers. 

In particular, the new emergency regimes explicitly securitize migration, especially where “mass” and “instrumentalized” migration are described as threats to MSs’ territorial integrity, public order, and security. More broadly, uncontrolled migration is consistently portrayed as a destabilizing factor for the integrity of the Common European Asylum System, the Schengen Area, and the EU at large. Effective regulation of mobility is thus presented as a precondition for the very existence of the EU as a political entity, reinforcing the impression that the Union’s fate depends on limiting and controlling unwanted mobility.

Conversely, numerous coercive measures are justified with arguments that explicitly criminalize migrants and asylum seekers. For instance, this occurs whenever detention measures are justified by alleging that a specific individual poses a danger to public order, or when negative consequences are attached to the “non-cooperative” behavior of asylum seekers and migrants. 

More generally, however, an underlying criminalizing logic informs the entire EU Pact, portraying migrants and asylum seekers as not credible and unreliable. This is particularly evident in the emphasis on concepts such as “risk of absconding”, which closely resembles similar notions in the criminal justice system. Additionally, the stigmatizing effect of non-entry provisions and the widespread application of security screening further contribute to this criminalization, justifying the adoption of increasingly coercive measures against migrants and asylum seekers.