Restoring the Borderless Schengen Area: Mission Impossible? Summary of a new report

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: BlueMars, via Wikimedia Commons

My European Policy Analysis report on the amendments to the Schengen Borders Code, published today by the Swedish Institute of European Policy Studies (SIEPS), assesses the likely impact of the recently agreed amendments to the Schengen Borders Code. This blog post is a summary of the main points of the report.

The context of the report is the concerns about the reintroduction of border checks at the internal borders of Schengen countries in recent years for long periods by a number of Member States. The EU has embarked upon a strategy to ‘save Schengen’, in part by amending the Schengen Borders Code to change the rules on internal border checks (among other changes), but also by agreeing major changes to EU asylum law alongside a number of other measures, for instance in the area of further police cooperation. The amendments to the Borders Code, along with most of the other proposals (including the asylum law changes), have now been agreed (on the asylum law changes, see the series of analyses on this blog beginning here). The report assesses the details of the Border Code amendments in the broader context, analysing whether they are likely to ‘save Schengen’ and whether they raise human rights concerns in the process.

Introduction 

The Schengen system, initially in the form of the Schengen Convention agreed in 1990 but largely replaced by EU measures since, is intended to abolish internal border checks between (most) EU Member States, as well as four associated non-EU countries. This abolition is linked to harmonised checks on external borders with non-EU countries, a common short-erm visa policy for non-EU visitors, and a Schengen Information System listing non-EU persons to be denied entry and objects and persons to be stopped or tracked.

The Schengen Convention rules on internal and external borders are now set out in an EU Regulation known as the Schengen BordersCode, the most recent version of which dates back to 2016. Although the Code does not abolish internal border checks absolutely, their reimposition is meant to be strictly limited. Nevertheless, there have been many resorts to internal border checks in recent years, in particular due to concerns about migration control and security.  

The response has been a plan to ‘save Schengen’, in particular by means of amending the Borders Code along with other changes to EU law. To what extent will the recently agreed amendments achieve that end – and do they raise human rights concerns in attempting to do so?

Internal Border Controls

The report details the current practice of Member States, which as noted already has entailed recent frequent resort to border checks for long periods. It then describes the current legal framework, including the case law.

In particular, the case law has taken a mostly deferential approach to Member States imposing checks on the territory near borders, as an exercise of ‘police powers’, if this does not have an ‘effect equivalent to border checks’.  According to the CJEU, it is sufficient if there are some safeguards in place to ensure that such checks are targeted, even if their purpose is to combat irregular migration.

The current Borders Code allows internal border checks as such for up to 30 days, or for a longer period if the duration of the relevant event is foreseeable, in the ‘event of a serious threat to public policy or to internal security’; but the ‘scope and duration’ of the reintroduced checks ‘shall not exceed what is strictly necessary to respond to the reintroduced checks’. The reintroduction of controls may be continued for further renewable periods of up to 30 days, ‘taking into account any new elements’. But the maximum time to reintroduce border controls is six months, or two years in ‘exceptional circumstances’, where there is an EU-wide threat (this was triggered in response to the refugee crisis, but the two year period has expired).

According to the CJEU’s judgment in NW, interpreting these provisions strictly as a derogation from the general rule of abolition of border controls, the six-month time limit on the reintroduction of internal border controls that applies where there are no extraordinary circumstances could only be triggered again where there was a serious new threat.  There are more specific rules, depending on whether the reintroduction of border checks is foreseeable, urgent, or constitutes ‘exceptional circumstances’

New Amendments

The recently agreed amendments to the Borders Code, likely to be formally adopted later this spring and apply soon after, aim to address Member States’ concerns. They address a number of issues besides internal border controls, although some of those other issues are related to the broader challenges facing the Schengen system, for example changes to the Borders Code as regards border surveillance, and rules on responses to future public health crises such as the covid pandemic.

This report looks in more detail at the changes on four key issues: the instrumentalization of migrants; the definition of border checks; fast-track returns to other Member States, and the reintroduction of border controls.

Cases of instrumentalisation

The ‘[i]nstrumentalisation’ of migrants is defined (by cross-reference to a recently agreed asylum law, discussed here) as ‘where a third country or a hostile non-state actor encourages or facilitates the movement of third country nationals or stateless persons to the external borders or to a Member State, with the aim of destabilising the Union or a Member State, and where such actions are liable to put at risk essential functions of a Member State, including the maintenance of law and order or the safeguard of its national security’.

The preamble clarifies the definition further, stating that ‘[s]ituations in which non-state actors are involved in organised crime, in particular smuggling, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’. Furthermore, ‘[h]umanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’.

The amendments provide that ‘in particular’ Member States can temporarily close border crossing points or limit their opening hours in instrumentalisation cases. However, any limitations must be ‘proportionate’, and must take ‘full account of the rights of’ those with free movement rights, non-EU citizens with a legal right to reside, and non-EU citizens ‘seeking international protection’. The revised code will also have a new rule, subject to the same guarantees, that ‘Member States may, where a large number of migrants attempt to cross the external border in an unauthorised manner, en masse and using force, take the necessary measures to preserve security, law and order’.

Defining internal border checks

The agreed amendments, taking account of the case law, take a deferential approach to the exercise of police powers on the territory, including in border zones and for the purpose of immigration control, along with checks on public health grounds.

Fast-track returns

A new clause will provide for the fast-track transfer to another Member State of non-EU citizens ‘apprehended in border areas’, where the non-EU citizen was ‘apprehended during checks involving the competent authorities of both Member States within the framework of bilateral cooperation’, which may include ‘joint police patrols’; and ‘there are clear indications that [they have] arrived directly from another Member State’, as further explained, if it is ‘established that the third‑country national has no right to stay on the territory of the Member State in which he or she has arrived’.

However, this process cannot be applied to people with international protection, or to applicants for asylum; according to the preamble, the Dublin rules (which are themselves about to be revised) ‘should apply’ to asylum seekers.

Where the new fast-track transfer rules will apply, as a derogation from the usual obligation in the EU Returns Directive (the law which sets out general rules on irregular migration) to issue a return decision, the Member State which stopped the person may transfer them immediately to the Member State from which they arrived ‘in accordance with’ a process set out in a new Annex to the Code. This Annex will require the authorities to give reasons for the transfer by means of a standard form handed to the person concerned. There will be a right to appeal the transfer, but it will not have suspensive effect, and in the meantime the person concerned will be transferred within 24 hours.

The reintroduction of internal border checks and controls

There will be a series of amendments to the existing rules on reimposing internal border checks in the Borders Code. In particular, the rules on reintroducing border controls in cases requiring ‘immediate action’ will be amended, referring instead to ‘unforeseeable’ events, and allowing border controls to be reintroduced for a one-month period with extensions up to three months, instead of the current ten days with extensions up to two months.

In ‘foreseeable’ cases, national decisions to reintroduce internal border checks could, under the agreed text, be renewed and apply for a maximum period of two years, rather than six months at present – although in a ‘major exceptional situation’, a Member State could in future also apply two further extensions of six months each.

In the event of a public health crisis, internal border checks can be indefinitely renewed for six-month periods. The current ‘exceptional’ procedure for border checks for up to two years due to an EU-wide crisis will remain without amendment.

Assessment and conclusions

The report notes that in part the changes will entrench the status quo, because they either take account of the case law issued beforehand or while the proposal was under negotiation (on checks on the territory and on public health).

But some of the agreed amendments are genuinely new, most notably fast-track returns of irregular migrants (although not asylum-seekers) between Member States, longer renewals of national internal border control, potentially indefinite border controls on public health grounds (if authorised by the Council), and the instrumentalisation of migration. In effect these amendments circumvent CJEU case law as regards the application of the Returns Directive when border controls are reintroduced (for instance, the recent ADDE judgment), which as it stands prevents the instant return of non-EU citizens to other Member States.

As for the new provisions on instrumentalization, could they circumvent the case law requiring the application of asylum law in such cases? At first sight, the prospect of closing border posts might evade the obligation to consider asylum applications, by making them impossible to  lodge. However, applications might still be lodged by those entering illegally, and in any event the prospect of closing border posts will be explicitly subject to a requirement to take full account of the rights of asylum-seekers. Member States’ power to take ‘necessary measures’ to respond to entry by force will also be subject to this requirement. Also, the entire Borders Code is ‘without prejudice’ to the rights of refugees and asylum-seekers. It requires Member States to act in ‘full compliance’ with the EU Charter, the Refugee Convention, and ‘obligations related to access to international protection […] in particular […] non-refoulement’ in both cases. Therefore there is no plausible argument that the new provisions will legalise illegal ‘push-backs’ by Member States (see both ECHR case law and CJEU case law on this). 

The changes to the rules, for instance allowing for longer periods of legally authorised reintroduction of border controls, raise the question of how limited these controls will be in practice. There are no specific benchmarks available for the abolition of reintroduced border controls, and even if there were it is likely that such abolition – like the extension of the Schengen zone itself – would be determined by political rather than legal factors; it might be more difficult politically to abolish internal border checks the longer they have been applied. While there are legal constraints on the maximum time limit of the reintroduction of those controls, as recently emphasised by the CJEU, it might be wondered – in light, for instance, of frequent allegations of illegal push-backs at the external borders, and the current apparent practice of exceeding the current time limits anyway – whether Member States are sufficiently concerned to observe the rule of law in this field.

Nevertheless, the report concludes that it might be useful to attempt to introduce such benchmarks, at least politically, if the intent is to give an impetus to the aim of ending internal border checks across the Schengen area. It also makes the case for the Commission to produce guidance to ensure that the application of the rules on external border controls are consistent with human rights and asylum law obligations, taking account of case law of the CJEU and the European Court of Human Rights.