Professor Steve Peers, Royal Holloway University of London
Photo credit: BlueMars, via Wikimedia Commons
A new report I wrote for the Swedish Institute of European Policy Studies (SIEPS) analyzes the potential effects of the recently approved changes to the Schengen Borders Code. This blog post summarizes the key findings of the report.
The report addresses concerns regarding the increasing trend of Schengen countries reinstating border checks within the zone for extended periods. The EU aims to “save Schengen” through a multi-pronged approach, including modifications to the Schengen Borders Code, especially the rules on internal border checks. This involves significant changes to EU asylum law, alongside increased police cooperation. With most of these proposals, including the amendments to the Borders Code, now agreed upon, the report examines their details within the broader context. It assesses their potential to “save Schengen” and whether they might present human rights concerns.
Introduction
Established in 1990, the Schengen system, initially the Schengen Convention and later largely replaced by EU measures, aims to eliminate internal border checks between most EU members and four associated non-EU countries. This system relies on harmonized checks at external borders with non-EU countries, a shared short-term visa policy for non-EU visitors, and the Schengen Information System, which flags individuals and objects for denial of entry or further scrutiny.
The rules concerning internal and external borders under the Schengen Convention are now enshrined in an EU Regulation known as the Schengen Borders Code, last updated in 2016. While not completely abolishing internal border checks, the Code permits their reinstatement only under specific circumstances. However, recent years have seen a surge in internal border checks, primarily due to concerns about migration and security.
In response, a plan to “save Schengen” has emerged, focusing on amending the Borders Code and other EU laws. The question remains: how effective will the recently agreed amendments be in achieving this goal, and will they raise any human rights concerns in the process?
Internal Border Controls
The report examines the current practices of Member States, highlighting the frequent and prolonged use of border checks. It then outlines the current legal framework, including relevant case law.
The case law demonstrates a largely deferential stance towards Member States conducting checks near borders as part of their “police powers,” provided these checks don’t amount to “border checks in effect.” The Court of Justice of the European Union (CJEU) deems it sufficient for safeguards to be in place, ensuring checks are targeted, even if aimed at managing irregular migration.
The existing Borders Code permits internal border checks for up to 30 days, extendable if the underlying event’s duration is predictable, in cases of “a serious threat to public policy or internal security.” However, the scope and length of these checks must be “strictly necessary” to address the threat. Reinstatement can be prolonged for renewable 30-day periods, factoring in new developments, with a maximum duration of six months. In “exceptional circumstances” involving an EU-wide threat, this extends to two years, as seen during the refugee crisis, although this period has now lapsed.
The CJEU’s judgment in NW interprets these provisions strictly as exceptions to the principle of abolishing border controls. This ruling implies that the six-month limit for reinstating internal border checks, applicable in non-extraordinary circumstances, can only be triggered again in the face of a significant new threat. More specific rules exist depending on whether the reinstatement is foreseeable, urgent, or constitutes “exceptional circumstances.”
New Amendments
Anticipated to be formally adopted this spring and implemented shortly after, the recently agreed amendments to the Borders Code aim to address concerns raised by Member States. They cover various aspects beyond internal border controls, including issues related to broader challenges facing the Schengen system, such as changes to border surveillance within the Code and responses to future public health emergencies like the COVID-19 pandemic.
This report focuses on the alterations concerning four key areas: the instrumentalization of migrants, the definition of border checks, fast-track returns to other Member States, and the reinstatement of border controls.
Cases of instrumentalisation
The “[i]nstrumentalisation” of migrants, as defined by cross-reference to recently agreed upon asylum law (discussed here), occurs when “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 destabilizing 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.”
Further clarification is provided in the preamble, 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.” Additionally, “[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 allow Member States to temporarily close border crossings or limit their operating hours in cases of instrumentalization. However, any limitations must be proportionate and fully consider the rights of individuals with free movement rights, legally residing non-EU citizens, and non-EU citizens “seeking international protection.” The revised code will also include a new rule, subject to the same guarantees, allowing Member States facing “a large number of migrants [attempting] to cross the external border in an unauthorised manner, en masse and using force,” to “take the necessary measures to preserve security, law and order.”
Defining internal border checks
Acknowledging the existing case law, the agreed amendments adopt a deferential approach towards Member States exercising police powers within their territory, including border areas and for immigration control and public health purposes.
Fast-track returns
A new clause will allow for the expedited transfer of non-EU citizens apprehended in border regions to another Member State. This applies when the individual is apprehended during checks involving both Member States’ authorities as part of bilateral cooperation, potentially including joint police patrols, and there’s clear evidence suggesting they arrived directly from that other Member State, specifically if they have no legal right to stay in the country where they were apprehended.
However, this process cannot be applied to individuals seeking or granted international protection. The preamble states that the Dublin rules (currently under review for revision (see here)) “should apply” to asylum seekers.
When these new fast-track transfer rules are applicable, as an exception to the typical obligation under the EU Returns Directive (governing irregular migration) to issue a return decision, the apprehending Member State can immediately transfer the individual to their country of arrival, following a procedure outlined in a new Annex to the Code. This Annex mandates authorities to provide justification for the transfer through a standardized form given to the individual, who then has the right to appeal, although without delaying the transfer, which must occur within 24 hours.
The reintroduction of internal border checks and controls
The amendments introduce several changes to existing rules on reinstating internal border checks within the Borders Code. Notably, the rules regarding the reintroduction of border controls in situations requiring “immediate action” will now refer to “unforeseeable” events. This change allows border controls to be reinstated for one month, extendable up to three months, replacing the current rule of ten days extendable up to two months.
In “foreseeable” situations, the agreed text allows for national decisions to reinstate internal border checks to be renewed for up to two years, compared to the current six months. Additionally, in a “major exceptional situation,” a Member State could apply two further six-month extensions.
During a public health crisis, internal border checks can be indefinitely renewed for six-month periods. The existing “exceptional” procedure for border checks lasting up to two years due to an EU-wide crisis will remain unchanged.
Assessment and conclusions
The report recognizes that some changes solidify the existing situation by either acknowledging case law issued before or during the negotiation process regarding checks within a territory and public health concerns.
However, some amendments are genuinely new. These include fast-tracking returns of irregular migrants (excluding asylum seekers) between Member States, allowing for longer periods of legally authorized internal border control reinstatement, potentially indefinite border control during public health crises (if authorized by the Council), and addressing the instrumentalization of migration. Essentially, these amendments circumvent CJEU case law regarding the application of the Returns Directive during the reinstatement of border controls (for instance, the recent ADDE judgment), which currently prohibits the immediate return of non-EU citizens to other Member States.
Regarding the new provisions on instrumentalization, it is unclear whether they circumvent the case law requiring the application of asylum law in such cases. The possibility of closing border crossings might initially seem to bypass the obligation to consider asylum applications by making them impossible to lodge. However, applications might still be submitted by individuals who enter illegally. Moreover, closing border crossings is explicitly subject to fully considering the rights of asylum seekers. This requirement also applies to Member States’ ability to take “necessary measures” in response to forceful entries. The entire Borders Code operates “without prejudice” to the rights of refugees and asylum seekers, requiring 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 scenarios. Therefore, it is unlikely that these new provisions legalize illegal “push-backs” by Member States, considering both ECHR case law and CJEU case law on this issue.
The modifications allowing for extended periods of legally authorized border control reinstatement raise concerns about the practical limitations of these controls. There are no specific benchmarks for lifting reinstated border controls. Even if there were, their removal, much like the expansion of the Schengen zone itself, would likely be driven by political rather than legal considerations. Ending internal border checks could become politically challenging the longer they are in place. Despite legal constraints on the maximum duration of reinstated border controls, as recently emphasized by the CJEU, it remains uncertain, considering allegations of illegal push-backs at external borders and the apparent tendency to exceed existing time limits, whether Member States are adequately committed to upholding the rule of law in this domain.
Despite these concerns, the report suggests that introducing benchmarks, at least in a political context, could be beneficial in encouraging the elimination of internal border checks across the Schengen area. It also recommends that the Commission provide guidance to ensure the application of external border control rules aligns with human rights and asylum law obligations, considering the case law of both the CJEU and the European Court of Human Rights.