The analysis of current practices in different European countries reveals significant similarities and connections that raise crucial questions about how the new Schengen Borders Code and the implementation of the Pact could reintroduce and potentially legalise systematic pushback practices. We present Ursa Regvar’s analysis of the Slovenian experience concerning the new Schengen Borders Code and pushback practices.
Ursa Regvar represents the Legal Centre for the Protection of Human Rights and the Environment (PIC), a Slovenian organization that provides free legal assistance and representation to asylum seekers and refugees. The centre is dedicated to strategic litigation in the field of human rights and environmental protection, operating with limited resources but with steadfast commitment. Her presentation focuses on the evolution of practices at internal borders, with particular attention to the situation at the border with Croatia, offering an analysis of the historical development and future prospects.
Re-writing Borders – Unmapping the map
Ursa Regvar’s presentation was part of the Re-writing Borders – Unmapping the map event organized by the Medea Project, held from 3 to 6 July 2025 in Trieste. With the objective of reflecting on European migration policies, their implications for the rights of foreign nationals and for the resilience of democracy, the event brought together practitioners, lawyers and activists supporting foreign nationals.
Part of the sessions addressed the internal borders of the European Union, which have become a space of free movement exclusive to European citizens or citizens with somatic features associated with “whiteness”. This has been documented since 2015 through reporting on and challenging the policies of Member States that have progressively restricted the mobility of foreign nationals by resorting in a wholly disproportionate manner to “exceptional” instruments, such as the reintroduction of border controls, or illegitimate practices, such as informal readmissions and pushbacks at borders more generally, through advocacy instruments, legal analysis and litigation actions.
The Slovenian Experience and the Lessons Learned
Slovenia underwent a period of systematic pushbacks from 2018 to 2021 that mirrored the practices described in previous cases: people arrived in the country to seek asylum, were systematically ignored by the authorities, and readmission agreements were used as the legal basis to push them back in a chain that took them first from Slovenia to Croatia, then from Croatia to Bosnia and Serbia. The mechanism was well-established and progressively spread from the Slovenian-Croatian border to the Italian border and then to the Austrian one.
The strategic litigation conducted together with Caterina Bove, Gianfranco Schiavone and ASGI in Italy represented a significant moment that contributed to halting these practices, but it is essential to understand a crucial lesson from the Slovenian experience: the legal litigation, however well-constructed, had no practical effect in Slovenia. The only reason why the pushbacks stopped was a purely political decision by Croatia, which ceased accepting people on the basis of readmission agreements from Slovenia. This decision forced Slovenia de facto to accept people crossing its borders and to effectively process their asylum applications.
The lesson is bitter but pragmatic: the political will that existed then to push back people has not disappeared and, since 2021, a growing and coordinated pressure from the Italian and Slovenian governments has been observed to reintroduce these practices in their respective systems, demonstrating that the temporary cessation of pushbacks did not represent a structural change but only a tactical pause.
Preparing for a New Cycle: Normative Instruments for the Legalisation of Illegitimate Practices
Currently, these practices find themselves in what can be described as “the calm before the storm”, a phase of relative quiescence that conceals intensive preparations for their reintroduction on an apparently legal basis. The new Schengen Borders Code and the implementation of the Migration and Asylum Pact represent the instruments through which this legalisation operation is being attempted, although the idea of rendering legal what intrinsically constitutes a violation of fundamental rights remains largely problematic.
The emerging normative architecture shows a systematic tendency to make removal procedures—regardless of the terminology used (return, removal, transfer, readmission)—as swift as possible. The stated objective is to avoid responsibility for certain persons present on national territory or to remove them through legal devices such as the fiction of “non-entry”. For Slovenia, concepts such as this legal fiction and border procedures represent normative novelties that could lead the country to retrace the path already described for other European states.
Article 23 of the new Schengen Borders Code introduces particularly insidious mechanisms through the possibility of internal border controls. These controls allow the police to operate within national territory with the dual stated purpose of protecting public security and preventing irregular migration. The mechanism is elegant in its simplicity: once a person has been identified as irregular on the territory, they can be immediately processed in the so-called transfer procedure to the State from which they presumably arrived.
The conditions established by the Code for these transfers create an apparently controlled but substantially permissive framework: it is sufficient that the person has been apprehended through joint cooperation between two Member States—primarily through joint border patrols—and that these agree on the possibility of readmission or transfer on the basis of existing bilateral agreements. Slovenia finds itself in a particularly favourable position within this system, already having an extensive network of agreements: police cooperation with Italy and Croatia, readmission agreements previously used for pushbacks with Italy, Croatia and Austria, and joint border control mechanisms operational on the Italian-Slovenian and Slovenian-Croatian borders.
Practical preparation for this new regime is already at an advanced stage. Since January-February 2025, Slovenia, Italy and Croatia have concluded cooperation agreements for joint border controls specifically designed for the external border with Croatia, at the border with Serbia and Bosnia. This timing is not coincidental: the agreement was conceived in preparation for the implementation of the new Schengen Code. In parallel, Slovenia promoted a cooperation agreement between Bosnia and Croatia to strengthen that border segment as well, apparently completed in the previous month.
The Legal Knot of Readmission Agreements
The Legal Knot of Readmission Agreements
The most delicate and technically complex issue concerns the legal validity of the instruments that should make this system operational. The normative and operational systems to implement or attempt to legalise these practices are substantially already in place, but the crucial question of the compatibility of existing readmission agreements with the new European legislative architecture remains open. These agreements represent a problematic legacy from the past: they are extremely dated, having been introduced into national legislations before accession to the European Union, in a completely different normative context.
The Returns Directive currently in force establishes that readmission agreements can only be used if concluded between the EU and non-member States, or between Member States but under very specific and rigorous conditions. The legal analysis conducted by the Slovenian Ombudsman two years ago reached unequivocal conclusions: these agreements are substantially obsolete from a legal standpoint. Having been concluded before EU accession, with entry into the Union and adhesion to the Schengen regime, they lost legal validity because they are not compliant with supervening European law.
This situation creates a political-constitutional dilemma of considerable complexity. To legally use readmission agreements, it would be necessary to negotiate and conclude new agreements with neighbouring countries, an operation that requires political will but above all entails significant constitutional risks. According to the Slovenian constitutional system, new agreements of this type could be subject to review by the Constitutional Court and potentially declared unconstitutional, rendering the entire political and diplomatic effort futile.
The political temptation is therefore to circumvent this obstacle, substantially violating the law and using existing agreements, in an attempt to avoid the risk of seeing new agreements declared unusable by constitutional justice. The Italian precedent offers an instructive lesson in this regard: in that case, the decisive factor was that the readmission agreement between Italy and Slovenia had never been formally ratified by Parliament, an element that proved crucial for the Roman Courts in deciding the unusability of these instruments.
The regional context presents further complications linked to the political will of the countries involved. The concrete possibility of reintroducing a system of systematic readmissions in the Balkans depends decisively on Croatia’s position, which finds itself in the strategic position of being responsible for the external Schengen border with Bosnia and Serbia. Croatia already receives a significant flow of arrivals from that direction and maintains agreements that allow it to accept readmissions from Slovenia, while Slovenia in turn accepts readmissions from Italy, creating a chain of responsibility that could overload the Croatian system.
From a strategic perspective, Croatia would find itself having to manage a potentially enormous number of people on its territory, a scenario that does not appear sustainable or politically convenient. This consideration explains why Zagreb has thus far shown reluctance to cooperate fully with Slovenian national authorities in this scheme. The issue of minors adds a further layer of complexity: although existing readmission agreements offer at least some basic protections for children, the new Schengen Code explicitly provides for the possibility of overriding these protections in certain cases, presumably when deemed in the best interests of the child, an extremely subjective criterion of application. In existing bilateral agreements with Italy and Croatia, this overriding of protections for minors is not formally permitted, but past practice demonstrates how these obstacles are circumvented through questionable methods: declarations of non-existent family ties or deliberate misrecognition of minors’ age.
Coordinated Implementation and Operational Secrecy
The preparatory work to operationalise the new provisions of the Schengen Code has been completed with a timing that demonstrates a coordinated strategy at European level. The question now is no longer whether, but how and when this system will be implemented. The most significant fact is that this preparatory work was carried out before the formal approval of the Schengen Code, demonstrating that the new normative regime follows and formalises practices that had already been developed and tested in the field.
This temporal precedence reveals the real nature of the operation: the Schengen Code does not introduce innovations but provides legal cover for already consolidated practices.
The correct reading of the new normative framework further requires not considering the Schengen Code in isolation, but in combination with the Migration and Asylum Pact, which significantly amplifies opportunities for States to deny entry and proceed with accelerated removals through emergency procedures or crisis regulations.
Slovenia has built its own strategy for implementing the Pact based on the premise that existing readmission agreements will continue to be usable between countries in the region. This premise permeates all national legislation, implementation plans and strategies for migration regulation, representing the conceptual core on which the entire future national system will be founded. The approach is systemic and goes beyond individual procedures: it involves redesigning the entire national approach to migration based on this mechanism of rapid readmissions.
One of the most concerning features of this process is the opacity surrounding it. Obtaining access to new memoranda of cooperation between police forces of different countries is practically impossible because these documents are systematically classified as national security secrets. Collecting reliable statistics is even more problematic because competent authorities deliberately refuse to compile and make public data that would enable democratic oversight of implemented practices.
This system of secrecy represents a strategic choice to avoid public and parliamentary scrutiny, thereby constituting a violation of the democratic principle of accountability. The only way to understand what is really happening at the borders will be through direct testimonies of people on the move, who will begin to report irregularities and violations when the system is fully operational.
Crisis Mechanisms and Constitutional Erosion
The emerging normative architecture introduces particularly dangerous concepts through references to “crisis” and “instrumentalisation” as integral components of new migration regulations. These mechanisms theoretically permit the temporary closure of borders, systematic refusal of entry and denial of access to asylum procedures in situations defined as mass migration. The elasticity and subjectivity of these criteria open enormous spaces for arbitrary and politically motivated applications.
Slovenia has attempted on two consecutive occasions to introduce into its national legislation the concept of “complex migration crisis” through amendments to the Foreigners Act. This mechanism would grant the government extraordinary powers to close national borders entirely, prevent any entry, deny access to asylum procedures, and proceed with systematic pushbacks using readmission agreements towards transit countries, which in most cases would concern Croatia.
The Slovenian Constitutional Court has, however, offered firm resistance to these attempts. The first constitutional decision clearly established that such provisions represent an illegitimate limitation of access to the right to asylum and therefore constitute a violation of the fundamental principle of non-refoulement. In Slovenian constitutional jurisprudence, the prohibition of pushbacks is organically integrated into the prohibition of torture and inhuman treatment enshrined in Article 18 of the Constitutional Charter, conferring upon it the status of an absolute and non-derogable right.
The second constitutional decision, issued only two months ago, confirmed and reinforced this position with an even more articulated analysis. The Court recognised that it is technically possible to normatively define a “complex migration crisis” in the terms proposed by the government, but clarified that the Slovenian constitution regulates limitations of human rights according to a rigid and exhaustive scheme: such limitations are admissible exclusively in ordinary times, under full judicial control, or in extraordinary times characterised by war or extreme danger to the existence of democracy.
The constitutional ruling categorically excluded that mass migration, however numerically significant, could ever constitute an extraordinary situation for the State, as it does not constitute either war or an existential threat to the country or its democratic institutions. Examining the possibility of legitimising these limitations as ordinary-time measures, the Court concluded that even this avenue is precluded because constitutional Article 18, which establishes the absolute prohibition of torture, admits no derogations or limitations under any circumstances.
Future Prospects and Institutional Resistance
Despite the clarity of the constitutional rulings, there are concrete reasons to believe that the Slovenian government will not consider the matter closed: with the implementation of the Pact scheduled for mid-2026, it is likely that the executive will argue the necessity to comply with obligations under European law and will seek to reintroduce into the national system instruments that the Constitutional Court has already declared incompatible with fundamental principles of the legal order.
This dynamic of conflict between executive power and constitutional jurisdiction mirrors a broader crisis of the rule of law in Europe: the controversy transcends mere migration policy and involves the foundations of constitutional democracy and the resilience of mechanisms for controlling political power. The processes of democratic balance and accountability are progressively weakened by the normalisation of practices that, while potentially appearing formally legal at European level, conflict with more protective national constitutional standards.
An increasing tension emerges between different normative levels, where European law is used as leverage to dismantle more robust national constitutional protections. This process represents a sophisticated form of erosion of the rule of law that operates through law itself, using the complexity of the European multilevel system to circumvent national democratic controls.
In this scenario, transnational cooperation between civil society organisations, lawyers and activists assumes crucial strategic importance. The similarity of practices implemented in different countries and the circularity of migratory movements in the region make operational coordination essential to rapidly identify illegal practices and identify cases usable for strategic litigation. Cooperation through networks such as Protect Rights at Borders (PRAB) represents one of the most effective instruments available to document violations, find applicants willing to support legal actions, and build coordinated legal resistance at regional level.
The central challenge consists in the need to act with extreme rapidity before national courts to prevent the consolidation of illegal practices before they become systemic and therefore more difficult to challenge. The effectiveness of this strategy will depend both on the capacity to build solid legal cases and on the availability of national judicial systems to maintain their independence from political pressures. The crucial question of how much court decisions will actually be respected by governments remains open, but experience demonstrates that even in hostile political contexts, legal pressure can at least slow down and complicate the implementation of illegal policies.
Strategic litigation, despite its financial limitations, therefore maintains a central role in resisting these developments. Even when resources for costly legal actions are not available, cooperation through simple communication channels such as email allows networks of monitoring and intervention to remain active that can make a difference in documenting violations and building cases that have prospects of success before national and European courts.
