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
It’s self-evident that the UK leaving the EU has changed travel and residency rules for British citizens within the EU. This change mirrors the altered regulations for EU citizens traveling to and residing in the UK, a specific demand from the Leave campaign.
Given recent border crossing issues, what does this mean practically? This blog post tackles these questions in a Q&A format.
What were the rules before Brexit?
Before Brexit, UK citizens traveling to the EU and EU citizens traveling within the EU fell under EU free movement law, outlined in Articles 4 and 5 of the EU citizens’ free movement Directive. This allowed border crossings with just an ID card or passport. While non-EU family members generally benefited from free movement, they sometimes needed visas.
These rules intersected with the Schengen rules on external borders, originating from the 1990 Schengen Convention, implemented in 1995, integrated into EU law in 1999, and currently defined by the Schengen Borders Code, 2016 version (though amendments have been made since).
Contrary to some beliefs, Schengen rules don’t just eliminate internal border checks between Schengen states. They also establish common external border control rules, as the absence of internal checks means someone entering Italy, for example, could travel to Austria unchecked. These rules also encompass short-stay visas, criminal law, police cooperation, and the Schengen Information System database.
For EU citizens crossing external borders, like the UK/France border, the Borders Code mandates a streamlined identity and document validity check (Article 8(2)), including a security database check (see the 2017 amendment that led to travel delays a few years ago).
The UK’s EU exit meant it was no longer subject to EU free movement law and placed it under Schengen rules as a non-EU country, the UK’s desired status. More on the implications of this later.
Which countries follow these rules?
Beyond EU member states, free movement law applies to Norway, Iceland, and Liechtenstein, signatories to the European Economic Area treaty, and Switzerland, which agreed to similar rules through treaties with the EU.
Schengen rules are more intricate. Ireland is exempt from the immigration component, except for rules on carrier sanctions and smuggling, though it participates in the criminal law aspects. Ireland opted out due to its Common Travel Area with the UK, as stipulated in a Protocol to the EU Treaties. Despite Brexit, this Protocol remains, and Ireland seems unlikely to fully join Schengen, as this might necessitate border checks with Northern Ireland unless Northern Ireland also joined, an unlikely scenario.
Within the EU, Romania, Bulgaria, Croatia, and Cyprus don’t yet fully implement Schengen rules, though external border aspects apply (see Croatia’s accession treaty). Full Schengen implementation requires unanimous agreement from existing Schengen states, which has been slow (though a decision on Croatia’s inclusion may be imminent). Denmark applies Schengen rules uniquely.
Regarding non-EU nations, Norway, Iceland, Liechtenstein, and Switzerland have signed treaties associating themselves with Schengen rules. This association is reciprocal, requiring them to allow EU citizen visits and residency under free movement law and to drop border controls with Schengen states.
Lastly, the UK and EU are discussing Gibraltar’s potential association with Schengen. The outcome and specifics of these talks remain uncertain.
Is stamping British passports an act of Anglophobia fueled by Brexit resentment?
No.
Stamping non-national passports is standard immigration practice globally. For France and other Schengen countries, it’s mandatory according to 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)
documents, with a valid visa, allowing third-country nationals to cross the border;
(b)
documents allowing third-country nationals issued a visa at the border by a Member State to cross the border;
(c)
documents allowing third-country nationals not requiring a visa to cross the border.
(Exceptions are limited). Since the UK chose to become a non-EU country without free movement, British citizens fall under these stamping regulations after the Brexit transition period. The code clarifies that the stamp’s purpose is to track whether someone has overstayed their permitted duration (Article 8(3)).
Some Brexit proponents envisioned a close post-Brexit EU relationship, which would have exempted them from stamping (see Article 2(6) of the Code, which defines ‘third-country nationals’ as excluding citizens of countries with EU free movement agreements). However, the proponents who successfully advocated for ending free movement and against favoring EU citizens over non-EU citizens in the UK won. It’s contradictory for them to object to the obvious consequence: the EU treating UK citizens like other non-EU citizens.
What are other key Schengen border rule features?
Besides stamping, key points (excluding the abolition of internal checks with their many exceptions, Articles 22-35) include:
- the code doesn’t impede free movement or the rights of refugees and international protection seekers, especially regarding non-refoulement
- member states must uphold fundamental rights during implementation
- external borders must be crossed at designated places and times, with penalties for breaches (without impacting international protection obligations; note Article 31 of the Refugee Convention regarding refugees crossing borders unauthorized, with conditions)
- entry requirements: 90 out of 180 days stay in the Schengen area, justification for the stay and sufficient means, a visa if required by EU law, no Schengen Information System alerts, and not posing a threat to public policy, etc.
- varying border check procedures for EU and non-EU citizens (stricter for the latter)
- designated lanes for EU and non-EU citizens
- border surveillance to prevent unauthorized entry
- refusal of entry if conditions aren’t met, with a right to appeal
- general cooperation rules for member states
Exceptions to these rules are limited. There’s also a rule about sufficient resources for border checks (Article 15), relevant to the France/Dover situation:
Member States must allocate appropriate personnel and resources to manage border control at external borders, as per Articles 7 to 14, ensuring effective, consistent, and high-quality control.
Does Brexit bar UK citizens from EU courts?
No. EU court access isn’t exclusive to EU citizens. Non-EU citizens have brought many cases concerning EU immigration and asylum law to the CJEU. A compilation of case law on the 2016 Borders Code is available here.
As with other EU laws, arguments about EU immigration and asylum law typically reach EU courts by contesting their application in national courts (e.g., challenging a German border guard’s entry refusal in a German court). National courts can then refer questions about interpreting or validating EU law to the CJEU.
Directly suing EU institutions or agencies (but not member states) in the EU General Court is possible. However, unlike areas like competition or trademark law, this is less relevant to immigration or asylum law, as national authorities primarily implement these on the ground. While there are pending cases against Frontex, the EU border agency, these pertain to alleged migrant pushbacks at sea, not routine border control.
Does the EU utilize immigration databases?
Absolutely. The EU is a prime example of a border security-focused entity. Notably, it employs the Schengen Information System (updated in 2018, but not yet implemented). Beyond security alerts like European Arrest Warrants, applicable to everyone, SIS includes immigration alerts specifically for non-EU citizens, including UK citizens, issued for immigration or criminal law violations.
The 2018 update will link this system to entry bans under the Returns Directive, which governs the expulsion, detention, etc., of unauthorized non-EU citizens, now including UK citizens.
Soon, the EU will likely launch its entry-exit system (tracking non-EU citizen entries and exits) and its travel authorization system (ETIAS). ETIAS, similar to the US ESTA, requires pre-travel authorization for non-visa, non-EU nationals, akin to but not technically a visa; it will be easier and cheaper to obtain and will have a longer validity. Both apply to UK citizens but are not solely due to Brexit or targeted specifically at UK citizens. While the entry-exit system aims to replace passport stamping with e-gates, its impact on processing times is unknown.
There’s also the Visa Information System (revised in 2021, not yet applied). Originally for Schengen visa applicants, it will soon cover long-term visas and residence permits, impacting UK citizens.
The Eurodac system tracks asylum seekers and irregular border crossers. It is also being revised and expanded, potentially encompassing unauthorized individuals, including UK citizens.
These databases primarily apply to Schengen states, except Eurodac, which covers all member states and Schengen associates. Ireland participates in SIS criminal law alerts but not immigration alerts, and non-Schengen members have some database access.
In short: the EU’s immigration control system is extensive.
Could the UK secure a specialized border control agreement with the EU?
The EU’s border control law has provisions for European micro-states and localized Eastern European border traffic, so it’s not impossible. The Canada/US border exemplifies simplified checks despite underlying immigration control. However, the EU has never granted such exemptions from its primary border control laws to a large non-EU country.
Would the UK, especially under its current and future leadership, even be interested? Neither party suggested this during Brexit negotiations, and the UK has shifted away from the EU’s preferred simplification by no longer accepting EU citizen ID cards at the border (excluding those under the withdrawal agreement). It’s unlikely the EU would unilaterally agree, and it’s wishful thinking to believe otherwise.
What about UK citizens residing in the EU?
UK citizens residing in the EU before the Brexit transition’s end might be protected by the withdrawal agreement, like EU citizens in the UK then, which is analyzed here.
Otherwise, UK citizens in the EU are treated like other non-EU citizens. Long-term visa or residence permit holders can travel to other member states for 90 out of 180 days (Article 21 of the Schengen Convention) and are exempt from entry-exit and travel authorization laws. They can be subject to Schengen Information System immigration alerts under complex inter-state consultation rules (amended in 2018). They face fewer entry conditions when crossing external borders. Family members of EU citizens who relocate between member states are covered by EU free movement law. However, relationship breakdowns before obtaining a permanent residence permit can create complications.
What about the remaining EU immigration and asylum regulations?
That’s all for today. A summary of remaining EU immigration and asylum laws is available in this blog post from September 2020, when the EU Commission presented its Immigration and Asylum Pact proposal. Notably, the EU has since adopted a revised Blue Card law regarding highly skilled non-EU worker admissions.
Can UK citizens at least seek asylum in the EU?
UK citizens are no longer subject to the near-ban on EU citizens seeking asylum in other member states because they are no longer EU citizens. However, the likelihood of UK citizens currently meeting the ‘refugee’ definition outlined by the Refugee Convention (and EU asylum law) - having a well-founded fear of persecution based on race, religion, nationality, political opinion, or social group - is debatable.