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
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?
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:
the documents, bearing a valid visa, enabling third-country nationals to cross the border;
the documents enabling third-country nationals to whom a visa is issued at the border by a Member State to cross the border;
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.