How to keep Schengen intact and protect EU’s internal and external borders

How to keep Schengen intact and protect EU’s internal and external borders
Credit: Unsplash/Imre Tömösvári

The European Commission proposed this week updated rules on the movement of persons across EU’s internal and external borders and the governance of the Schengen area.

The Schengen area is home to more than 420 million people across 26 countries. The removal of internal border controls between Schengen States is an integral part of the European way of life: almost 1.7 million people reside in one Schengen State and work in another, with 3.5 million people crossing between Schengen States every day.

According to the Commission, the proposed changes will bring greater EU coordination and better equip member states to deal with emerging challenges when managing both the EU's common external border and internal borders within the Schengen area.

Importantly, the update seeks to ensure that reintroducing internal border controls – that were imposed by member states following the migration crisis in 2015 - remains a measure of last resort. The new rules also introduce common tools to manage the external borders more efficiently in case of a public health crisis, building on the lessons learnt from the COVID-19 pandemic.

The instrumentalisation of migrants is also addressed in the update to the Schengen rules for measures member states can take in the fields of asylum and return in such a situation.

In a previous initiative on 1 December, the Commission proposed activating a clause in the EU treaty on provisional emergency measures for the benefit of Latvia, Lithuania and Poland. That proposal has not yet been adopted by the Council and it is not clear if it will be on the agenda of the European Council summit this week.

The situation at the Belarus border with the three EU member states has deescalated according to the Commission but there are still thousands of irregular migrants there. The Commission has declined to disclose Poland's reaction to the proposal.

Following the Foreign Affairs Council meeting on Monday, Belgian Foreign Minister Sophie Wilmès said that, “between 10,000 and 15,000 migrants are believed to be still in the border area, in appalling humanitarian conditions”. Asked about the figures, a Commission source told The Brussels times that it could not confirm the number of people stranded in Belarus.

“The refugee crisis of 2015, the spate of terrorists attacks on European soil and the global COVID-19 pandemic have all put the Schengen area under strain,” said Margaritis Schinas, Vice-President for Promoting our European Way of Life, at a press briefing (14 December).

“We have a responsibility to shore up Schengen's governance and make sure Member States are equipped to ensure a rapid, coordinated and European response to situations of crisis, including where migrants are instrumentalised. With today's proposals, we will fortify this ‘crown jewel' so emblematic of our European way of life.”

The new rules follow consultations with the member states and are built on lessons learned from the migration and coronavirus crises. Schinas was critical against member states that had taken unilateral decisions on travel restrictions during the on-going health-crisis, jeopardising a uniform EU approach. In fact, member states were forced to act in the absence of an EU policy in the beginning of the crisis.

The COVID-19 pandemic placed a major strain on the Schengen area, with as many as 17 member states unilaterally reintroducing internal border controls, at times jeopardising the proper functioning of the internal market, disrupting the movement of people within the EU and negatively impacting those living and working in border regions and the supply chains.

The updated rules will basically allow the council to quickly adopt binding rules setting out temporary travel restrictions at the external borders in case of a threat to public health. Exemptions will be provided, including for essential travellers as well as Union citizens and residents. This will ensure that the travel restrictions are applied uniformly.

As regards internal borders, the new rules will include a new Schengen safeguard mechanism to provide a common response at the internal borders in situations of threats affecting a majority of Member States, such as health threats or other threats to internal security and public policy.

With this mechanism, internal border checks in a majority of Member States could be authorised by a Council decision in case of a shared threat. Such a decision should also identify measures mitigating the negative impacts of the controls.

Currently, some six member states have had internal border checks in place since the 2015 migration crisis. In the proposal, a member state considering prolonging controls should first assess whether alternative measures such as targeted police checks and enhanced police cooperation could be more appropriate. A risk assessment should be provided for prolongations exceeding 6 months.

Where internal controls have been in place for 18 months, the Commission will have to issue an opinion on their proportionality and necessity. In all cases, temporary border controls should not exceed a total period of 2 years unless for very specific circumstances. This will help ensure that internal border controls remain a measure of last resort and only last as long as strictly necessary.

A crucial element in the proposal is the introduction of a new procedure to address unauthorised movements within the Schengen area through joint police operations as well as allowing member states to revise existing or conclude new bilateral readmission agreements between themselves. This would avoid the need for internal border controls, according to the Commissioner for Home Affairs, Ylva Johansson, although such controls can still be imposed as a last resort.

The new procedure would only be activated when police has confirmed irregular movement across the border but the Commissioner admitted at the press briefing that profiling when checking identity documents would be an important issue and must be avoided.

Last but not the least, the Commission defines for the first time instrumentalisation of migrants as when a third country instigates irregular migratory flows into the EU by actively encouraging or facilitating the movement of people from outside the EU to the external borders. The clear intention of the third country is to destabilise the Union or a Member State.

The Commissions proposes to address this geopolitical issue in a more permanent way through a facility in EU law and not as in the previous proposal by activating a clause on temporary emergency measures. This includes the possibility of limiting the number of border crossing points and intensifying border surveillance. In principle the measures are similar to those already proposed on extending deadlines for asylum applications and appeals.

Altogether, the new rules are enough to keep the Schengen system intact, according to the Commission, at least until a major overhaul will be done by adopting the new Pact on Migration and Asylum.

M. Apelblat

The Brussels Times

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