Revising intra-Schengen border control under the New Pact on Migration and Asylum

Guest post by Maartje van der Woude. Maartje is a Professor of Law & Society at Leiden Law School, specializing in border control and national security in Europe. Her research explores the intersection of law, politics, and societal impact within the Schengen Area. This post is part of a thematic series on the EU Pact on Migration and Asylum, edited by Giuseppe Campesi and José Angel Brandariz. Read the introduction here.

The internal borders of the Schengen Area seem to be turning into contested areas where populist rhetoric fueling fear and concern over intra-Schengen mobility is leading Schengen Member States to ‘crack down’ on the principle of free movement. Experts are observing a domino-effect of countries temporarily reinstating permanent border checks, which gives rise to the question how these decisions relate to the recently adopted New Pact on Migration and Asylum?

As part of the New Pact on Migration and Asylum, the European Commission presented a “Strategy for the Schengen Area”. With the 2015/2016 long summer of migration and the pandemic leading various countries to temporarily reinstate permanent border checks to more closely monitor mobility into their national territory, the Commission was of the opinion that something needed to change. As the Commission noted, the temporary reinstatement of border checks was “at times jeopardizing the proper functioning of the internal market, disrupting supply chains within the EU as well as the movement of people, especially those living and working in border regions.” Following this new strategy for Schengen the Commission proposed to change the Schengen Borders Code (SBC), the central regulatory framework governing what countries can do to protect their internal and external borders. This blog will focus only on the implications of these changes for the internal borders, meaning the borders between two Schengen States where the idea(l) of free movement should prevail. 

Curbing the discretion of Member States…

The revised Article 25 of the SBC permits Schengen Member States to temporarily reintroduce internal border checks when facing a "serious threat" to public policy or internal security. This may occur in cases involving terrorism or organized crime, major public health crises, large-scale unauthorized migration, or high-profile international events. The amendment also establishes a mechanism for coordinated border control reinstatement when a serious threat affects multiple Member States, potentially jeopardizing the Schengen Area’s open-border system. Here, the Council, following a Commission proposal, can authorize reintroductions across affected states without a specified time limit. New safeguards now guide Member States in implementing these controls. They require assessments of impacts on cross-border areas and demand that alternatives be considered, especially for extensions beyond six months. A mandatory risk assessment is also required for controls extending beyond six months. For extensions over 18 months, the Commission will issue an opinion and conduct consultations with other Member States. Prolongations can last up to two years, with further extensions subject to additional Commission review. 

In line with the Commission's strong wish to limit the number of temporary reinstatements of border checks at intra-Schengen borders, the proposal seems to place stricter reporting obligations on both Member States and the Commission. These obligations include having to carry out risk assessments at different stages of the procedure and, as part of that, being clear and transparent about the impact on the free movement of persons. In that sense, the proposal seems to somewhat curb Member States’ discretion to – rather independently and without providing clarity – decide to reinstate border checks at their intra-Schengen borders. 

…or maybe not?

A deeper analysis of Article 25 SBC suggests it may actually facilitate, rather than restrict, the reintroduction of internal border checks. By adding two broad, new justifications—“large-scale public health emergencies” and “large-scale unauthorized movements of third-country nationals”—the amendment arguably opens the door to greater discretion for Member States. The Meijers Committee (2022) critiques the term ‘large-scale unauthorized movements’ as overly vague. It cautions that the lack of specificity allows Member States to impose border controls on so-called ‘secondary movements’ of migrants, even when these pose no credible threat to public policy or order Recent developments underscore these concerns. In September 2024, Germany announced temporary border checks with neighboring countries, including France, Belgium, and the Netherlands, to address irregular migration and cross-border crime. Similarly, France reinstated border controls with six Schengen countries from November 1, 2024, citing concerns over illegal immigration and terrorism. The Netherlands followed suit, implementing land border controls starting December 9, 2024, to combat irregular migration and human trafficking. These actions highlight the ambiguity in Article 25's provisions, particularly regarding "large-scale unauthorized movements," allowing Member States considerable discretion in reintroducing border checks. The Meijers Committee has criticized this vagueness, warning it could lead to the misuse of border controls without substantial threats to public policy or security. The European Commission's limited role in overseeing these reinstatements—issuing opinions only upon notification of prolongations—further complicates the situation.

Policing the intra-Schengen borders and the possibility of ‘chain pushbacks’

Apart from changing the procedure for temporary reinstatement of border controls, article 23 of the Schengen Borders Code has been amended as well. This article allows for member states to carry out police checks in their intra-Schengen borderlands. Under the new Pact, the scope of Article 23 has been expanded, allowing Member States to exercise not only police powers but also "public powers" in their intra-Schengen borderlands. NGOs and civil society groups warn that broader discretion, combined with increased surveillance technology, could make border monitoring less visible but equally intrusive. This shift threatens the principle of free movement. Additionally, broader discretion may heighten the risk of profiling by law enforcement based on racial, ethnic, or religious characteristics. Furthermore, article 23a introduces a new procedure for quickly transferring third-country nationals apprehended near borders if there is evidence they recently arrived from another Member State. This procedure applies universally, including to vulnerable groups, although asylum seekers are formally exempt. However, implementation remains uncertain, and this measure could conflict with legal rulings against ‘chain pushbacks’ in Italy, Slovenia, and Austria. Appeals are permitted but do not delay transfers.

Towards a two-tiered system of mobility 

The intra-Schengen borderlands, once relatively unexamined, are now becoming focal points of mobility control, as recent amendments to the Schengen Borders Code (SBC) reveal. Framed under the New Pact on Migration and Asylum, these amendments reflect a shift towards securitizing migration within Europe, treating it increasingly as a security threat. The amendments permit Member States discretion to impose internal border controls under broad terms, such as ‘serious threat to public policy’ or ‘internal security.’ This flexibility risks normalizing stringent and discriminatory measures, including racial profiling and ‘chain pushbacks.’ These practices undermine both free movement and human rights protections. This evolving landscape creates a two-tiered system of mobility within the Schengen Area: while EU citizens and long-term residents maintain relatively unrestricted travel, migrants and asylum seekers face increased scrutiny and restriction, often with limited recourse to appeal. This imbalance could reshape Schengen into a selective space of freedom, accessible to some while denying fundamental rights to others, particularly those seeking asylum. To honor its foundational values, the EU must critically examine these disparities and ensure that the principles of free movement and human dignity extend to all, not just those born within its borders or those with EU citizenship or long-term residence status. Maintaining solidarity and inclusivity in mobility rights will be essential to preserving Schengen's integrity as a truly open and humane space.