Security through discrimination? : addressing the risk of discriminatory ethnic profiling in Europe's fight against irregular migration

Abstract

The over-policing of minority groups in the scope of migration control is often downplayed as inevitable side effect of necessary law enforcement, rather than addressing it as a problem of racial discrimination. As such justifications result in an unwillingness to address these problems, this paper analyses the legality, legitimacy and risk of ´discriminatory ethnic profiling´ in the scope of proactive law enforcement powers aiming at detecting irregular migrants within Europe. Such practices can amount to unjustifiable direct racial discrimination, and the analysis of the use of stop-and-search powers in three countries shows, that discriminatory ethnic profiling is widely used, but not even effective. As the over-policing of minorities indicates an impact of underlying legislation, a general proportionality test of migration law enforcement powers risking such profiling finds that they are disproportional and little doubt is left that the discriminatory effect is inherent to the norm, and not just a question of misuse. Despite the need to revise such policies, already basic safeguards are lacking. Moreover, the analysis of Joint European Police Operations shows, that States and the EU regardless the risk increasingly coordinate and formalise such methods, including electronic profiling technics, in an in-transparent way which lacks democratic scrutiny.