Professor Steve Peers,
University of Essex*
*linked to research on the upcoming 5th edition
of EU Justice and Home Affairs Law
Photo credit: John Fielding, via Wikimedia
Commons
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One of the most Blindingly
Obvious Things in the history of Blindingly Obvious Things is that one
consequence of the UK leaving the EU is that travel to and stay in the EU by
British citizens is now different – the obvious corollary of travel to and stay
in the UK by EU citizens being different, as the Leave campaign specifically
demanded.
In light of current disputes
about delays crossing the border, what exactly does that mean in practice? The
following blog post addresses the issues in Q and A format.
What were the previous rules?
UK citizens going to the rest of
the EU, and EU citizens coming from the rest of the EU, were covered by EU free movement law – see Articles 4
and 5 of the EU
citizens’ free movement Directive. This allowed travel across the border in
both directions on the basis of showing an identity card or passport (although
non-EU family members, while benefiting from free movement law generally, had
to get a visa in some circumstances).
This overlapped with the Schengen rules on external borders –
dating back originally to the Schengen
Convention of 1990 agreed between several Member States, applied from 1995,
integrated into EU law in 1999 when the Treaty of Amsterdam came into force,
and currently set out in the Schengen
Borders Code, 2016 version. (Amendments to the Code have since been adopted
or proposed).
The Schengen rules do not, as
some may think, limit themselves to abolishing internal border controls between
Schengen States. Because the abolition of such controls means that whoever
enters (say) Italy from outside Schengen could travel to Austria without being
checked at the border between those countries, there are common rules on
external border controls, too. (There are also common rules on short-stay
visas, criminal law and police cooperation, and a joint database, the Schengen
Information System)
For EU citizens crossing the
external borders (UK/France, for instance), the Borders Code requires a
simplified check on their identity and the validity of the document (see
Article 8(2)), including a check on security databases (see the 2017
amendment to the code, which requires further checks: the application of
this delayed some travellers a few summers back).
The UK’s departure from the EU
not only took it out of the scope of EU free movement law. Brexit also necessarily means that the UK is
now treated as a non-EU country under the Schengen rules – because that is the
status that the UK wanted to have. More on what that means in concrete terms in
a moment.
Which countries apply these rules?
Free movement law applies not
only to EU Member States, but also to Norway,
Iceland, and Liechtenstein, which have signed up to those rules as part of
the European Economic Area
treaty, and to Switzerland, which
signed up to similar
(not currently identical) rules as part of a package of treaties with the
EU.
The scope of the Schengen rules
is more complicated. First of all, the immigration law part of the Schengen
rules does not apply to Ireland (apart from rules on carrier sanctions and
penalisation of smuggling), although Ireland
has signed up to the criminal law parts of Schengen. Ireland has opted out
of the immigration law part of the Schengen rules due to the Common Travel Area
with the UK, as provided for in a Protocol
attached to the EU Treaties. The Protocol still applies despite Brexit, and
there is no sign that the Irish government is interested in fully joining
Schengen, probably because that would mean border checks on the land border
with Northern Ireland (unless Northern Ireland also joined Schengen, but it is hard to imagine any British
government agreeing to that).
Among the other EU Member States,
Schengen rules do not yet fully apply to Romania, Bulgaria, Croatia and Cyprus
– although the external borders parts do apply already (see the accession
treaty with Croatia, for example). Extending Schengen fully needs unanimous
agreement of the existing Schengen States, which has been slow in coming
(although a decision
on extension to Croatia could be adopted soon). And Denmark applies
Schengen rules, but in a legally different way from other EU Member States.
As for non-EU countries, Norway,
Iceland, Liechtenstein and Switzerland have agreed treaties associating
themselves to the Schengen rules. As with free movement law, this
association is reciprocal – ie Norway or Switzerland must also let EU citizens
visit and stay on the basis of free movement law, and drop border controls with
Schengen States, not only the other way around.
Finally, the UK and the EU are
negotiating a form of association of Gibraltar
to Schengen. It remains to be seen whether those talks will be successful, and
if so what will be agreed.
Is stamping British passports a fetish of Anglophobic, Brexit-hating,
surrender-loving, French freaks?
No.
Stamping the passports of
non-nationals is a normal
part of immigration control worldwide. For France, and other Schengen
countries, it’s an obligation in the Schengen Borders Code, Article 11:
1. The travel
documents of third-country nationals shall be systematically stamped on entry
and exit. In particular an entry or exit stamp shall be affixed to:
|
(a) |
the
documents, bearing a valid visa, enabling third-country nationals to cross
the border; |
|
(b) |
the
documents enabling third-country nationals to whom a visa is issued at the
border by a Member State to cross the border; |
|
(c) |
the
documents enabling third-country nationals not subject to a visa requirement
to cross the border. |
(There are exceptions, but they
are fairly limited). The UK having chosen to become a non-EU country without
free movement, British citizens are necessarily covered by the stamping
obligations after the end of the Brexit transition period. The code makes clear (see Article 8(3)) what the point of the stamp is – to enable checks as to whether the passport
holder has not overstayed the permitted period of stay.
Some Brexit supporters had argued
for a continuing close relationship with the EU post-Brexit, in which case
stamping of documents would not have applied (see Article 2(6) of the Code,
which defines ‘third-country nationals’ in the Code as not applying to citizens of countries with a free movement
agreement with the EU). But those Brexit supporters who wanted to end free
movement, and who argued explicitly against treating EU citizens coming to the
UK better than non-EU citizens coming to the UK, won that argument. So it is
hypocritical for them to complain about the obvious reciprocal consequence:
that the EU is now treating UK citizens coming to the EU the same as
other non-EU citizens coming there.
What are the other main features of the Schengen borders rules?
Leaving aside the bits on
abolishing internal border checks, which are subject to many possible
exceptions (Articles 22-35), the main points, besides stamping of documents,
are:
-
the code is ‘without prejudice’ to free movement
law, as well as the ‘rights of refugees and persons requesting international
protection, in particular as regards non-refoulement’
-
Member States must comply with fundamental
rights when they implement it
-
external borders must be crossed at official
places and times, with penalties if this is breached (again ‘without prejudice’
to ‘international protection obligations’; note that Article 31 of the Refugee
Convention provides for refugees crossing borders without authorisation,
subject to certain conditions)
-
entry conditions: 90 out of 180 days stay in the
Schengen area as a whole; justifying the purpose of the intended stay and
having sufficient subsistence; a visa if EU law requires it; not being the
subject of an alert in the Schengen Information System; not being a threat to
public policy etc
-
details of the border checks for EU and non-EU
citizens (which are more stringent)
-
separate lanes for EU and non-EU citizens
-
border surveillance to try to stop unauthorised
entry
-
refusal of entry if conditions are not met;
there is a right to appeal a refusal
-
general rules on cooperation between Member
States
There are limited exceptions to
some of these rules. There’s also a rule on sufficient resources for border
checks (Article 15), which could be relevant to France/Dover:
Member States
shall deploy appropriate staff and resources in sufficient numbers to carry out
border control at the external borders, in accordance with Articles 7 to 14, in
such a way as to ensure an efficient, high and uniform level of control at
their external borders.
Does Brexit mean that UK citizens can’t go to the EU courts?
No. Access to the EU courts is
not limited to EU citizens. There are many cases brought by non-EU citizens
about the application of EU immigration and asylum law that go to the CJEU. Indeed,
I’ve been slogging through them for the latest edition of my book. You can find
a compilation of the case law on the 2016 version of the Borders code here.
As with other EU law, the main
way that an argument about EU immigration and asylum law gets to the EU courts
is by disputing the application of that law in the national courts (ie, challenging
a German border guard’s refusal of entry in a German court). Any national court
or tribunal may then send questions about the interpretation or validity of
that EU law to the CJEU.
It’s also possible to sue the EU
institutions or agencies (but not the
Member States) directly in the EU General Court. Unlike (say) competition law
or trade mark law, this has limited relevance to immigration or asylum law,
because it’s mainly national authorities that implement this field of EU law on
the ground. There are cases
pending against Frontex, the EU borders agency – but these are about its
alleged role in pushback of migrants at sea, not ordinary border checks.
Does the EU have immigration databases?
Hell, yes. The EU is the poster
child of the border security/industrial complex. In particular it currently has
the Schengen
Information System (updated in 2018, but the update is not applied yet).
The SIS contains not only security alerts (such as being subject to a European
Arrest Warrant) which apply to and are checked for everyone, but also
immigration alerts, which apply only to non-EU citizens, now including Brits
(but not only Brits!). These are issued following entry bans for breaches of
immigration law or criminal law.
The 2018 changes will link this
system to the issue of entry bans under the Returns
Directive, which regulates the expulsion, detention etc of non-EU citizens
who are not authorised to stay, now including Brits (but not only Brits!!).
In the next year or two the EU is
likely to roll out its entry-exit
system (which will keep a record of non-EU citizens coming in and out of
the EU) and its travel
authorisation system, ETIAS (like the US ESTA, a requirement for non-visa non-EU
nationals to get an advance authorisation to travel – similar to the idea of a
visa but not technically a visa; it will be simpler and cheaper to get and
apply for longer). Both will apply to Brits,
but are not being rolled out – despite absurd suggestions to the contrary –
solely for Brits(!!!), or because of Brexit. The entry-exit system will in
principle replace stamping of documents at the borders by e-gates, but whether
that speeds things up or slows things down remains to be seen.
There’s also the Visa
Information System (revised in 2021, but the revised system is also not yet
applicable). It was originally for applicants for Schengen visas (ie short-term
visas), so doesn’t apply to Brits, but the revised version will apply to Brits
(but not only to Brits!!!!), as it will cover long-term visa and residence
permit holders.
The Eurodac
system keeps a record of asylum seekers and irregular border crossers. It
is – you guessed it! – being revised
and extended, so will also (among other things) apply to those on the
territory without authorisation, which could include post-Brexit Brits (but not
only Brits!!!!!).
These databases apply to Schengen
States only, except Eurodac applies to all Member States and Schengen
associates. Ireland participates in SIS criminal law alerts (but not
immigration alerts), and the Member States not fully in Schengen have some
access to these databases too.
Tl;dr: as with the Hulk, Brits
won’t like the EU immigration control system when it’s angry.
Could the UK reach a special deal with EU on border control?
The EU’s border control law has
special rules for European micro-states, and local border traffic with
neighbouring Eastern European states, so it’s not impossible. You can see an example of simplified border checks, in
spite of underlying immigration control, at the Canada/US
border, for instance. But the EU has never before agreed exemptions from
its core border control laws with a large non-EU country.
And would the UK – at least under
its outgoing and upcoming Prime Minister – be interested anyway? Neither side
suggested any such thing during the Brexit talks, and the UK has moved away
from the sort of simplification the EU side would ask for, as it is no longer
accepting ID cards for EU citizens at the border (there’s an exception for
those covered by the withdrawal agreement). It’s very hard to believe that the
EU would agree such a thing unilaterally, if at all – and it’s not only Leavers
who fantasise that nevertheless it would or should. And then they wake up.
What about Brits living in the EU?
Those Brits in the EU before the
end of the Brexit transition period may – like EU citizens in the UK at that
point – be covered by the withdrawal agreement, which I annotated
here.
Otherwise Brits in the EU are in
the same position as other non-EU citizens living in the EU. If they have a
long-term visa or residence permit, they can travel to other Member States for
90/180 days (see Article 21 of the Schengen Convention). They will not be
subject to the entry-exit law or the travel authorisation law. They can be subject to immigration alerts in
the Schengen Information System, subject to complex rules about consultation
between Member States (amended in 2018). When crossing external borders, they
are not subject to all the conditions of entry. If they are the family member
of an EU citizen who has moved between Member States, they are covered by EU
free movement law: the immigration law equivalent of marrying a billionaire.
But complicated things could happen if that family relationship breaks down
before they obtain their own permanent residence permit.
What about the rest of EU immigration and asylum law?
That’s enough for today. But I
summarised the rest of EU immigration and asylum law when the EU Commission
tabled its proposed Immigration and Asylum Pact in September 2020 – so see that
blog post, with further links. The main development since then is that the
EU has adopted a new version of its Blue
Card law on admission of highly-skilled non-EU workers.
At least tell me if Brits can apply for asylum in the EU?
Brits are no longer subject to
the quasi-ban
on EU citizens applying for asylum in other Member States – because they
are no longer EU citizens. But if you
believe that, as things stand, Brits are likely to be considered to meet the
definition of ‘refugee’ in the Refugee Convention
(and EU asylum
law) – having a well-founded fear of persecution on grounds of race,
religion, nationality, political opinion, or particular social group – then imagine
me shaking my head in Godwin’s Law.