By Elspeth Guild

Ms Elspeth Guild, Jean Monnet Professor ad personam and visiting professor of the College of Europe, reflects in this column about the current challenges of migration and Schengen, in a context where this topic has become specially relevant. The College of Europe Development Office is following the latest developments taking place in the EU and will include a session on migration and Schengen within the 23^rd edition of the Intensive Seminar on the EU. Furthermore, and coinciding with its 20^th anniversary, the College of Europe Development Office has launched several new Executive Education courses.

The Schengen area of free movement without border controls on persons is something of a sacred cow for the EU. Most of those Member States which do not participate are very eager to get in (Bulgaria, Croatia, Cyprus and Romania) and only two, Ireland and the UK remain resolutely and voluntarily outside the system.

But 2015/16 has been a challenging period for the Schengen free movement area and it does not look like this is about to change. On 13 September 2015 Germany used, for the first time, the emergency provision allowing temporary reintroduction of border controls inside the Schengen area. In a notification to the Council, the German Minister advised that Germany would be introducing temporary border controls at internal Schengen borders. However, he reassured the Council that these border controls within the Schengen area would be limited to land borders and concentrated on the German-Austrian land border. He also undertook that the border controls would only be as extensive and intense as needed to ensure security.[1] The reason which the Minister gave the Council for the necessity of these new temporary controls was “the uncontrolled and unmanageable influx of third country nationals into German territory”.

The German action was followed almost immediately by Austria which announced introduction of temporary border controls with Hungary, Italy, Slovakia and Slovenia[2] which lifted the temporary controls within a month. Thereafter, the Nordic states starting imposing temporary border controls among themselves (Sweden, Norway and Denmark). France already had notified the Council of temporary intra-Schengen border controls for the COP21 climate change conference and, after the attacks of 13 November 2015, extended these controls on the exceptional basis used by the others but the reasons related to terrorism not migration. Malta likewise had temporary controls in place for a Heads of State conference and extended them when the other Member States did so on the basis of a terrorism threat. Germany has been careful to designate a limited area of border crossing points where the exceptional measure would be used. Austria and the Nordic countries have been more extensive regarding the border crossing points where they would be carrying out intra-Schengen border controls and the French and Maltese notified that they would be applying the temporary measures everywhere.

The Commission evaluated the German, Austrian and Slovenian temporary controls in an opinion of 23 October 2015 (COM(2015)7100 final) and while expressing some surprise and concern about some of the justifications given by those states, concluded that the introduction of temporary controls was consistent with the Schengen Borders Code provision. The Commission has not published any further evaluation of the use of the temporary provisions by other Schengen states, which is a pity.

Under the initial provision of the Schengen Borders Code used by the Member States for the temporary introduction of intra-Schengen border controls, Member States which do so must notify the Member States and the Commission after ten days and then every 20 days thereafter of the reason and exceptional circumstances which justify the measures. Rapidly these Member States moved to another provision of the Schengen Borders Code which only requires notification with reasons for the continued use of the temporary border controls every 30 days or for the foreseeable duration of the threat if it exceeds that period. In any event, over the period September 2015 until February 2016, the Council registry has received quite a few notifications from the Member States, not always apparently on time and increasingly repetitive regarding the justifications given without substantial new information.

Perhaps among the most revealing of the reasons for the temporary reintroduction of border controls is contained in the first Austrian notification[3] where it states that not only are there far too many third-country nationals seeking international protection coming into and transiting through Austria overstretching their public services, but “Austria is not responsible for the vast majority of the persons concerned” and “asylum seekers must also accept that they cannot choose which EU Member State will grant them protection”.

This is a coded reference to the Dublin III Regulation which is supposed to allocate responsibility for asylum seekers to Member States, mainly in practice, if not in law, on the basis of the first Member State in which they arrive. The Austrian position is that it should not be responsible for all these asylum seekers based on the fact that they are coming into the EU via Greece (primarily) and so Greece should be responsible for dealing with hosting them and determining their asylum applications. Not surprisingly, Greece considers that if there are over 800,000 asylum seekers transiting their state (and about 10,000 stay and apply for asylum there), it is absurd for the other Member States to punish Greece because it cannot deal with them all.[4] The Commission duly sent out in November 2015 a team to evaluate Greece’s application of the Schengen Borders Code at the external borders. In its report placed before the Council on 2 February 2016, the Commission stated that it had identified “serious deficiencies” in Greece’s management of its external land and sea borders with Turkey. The Greek authorities did not accept the finding.

On 10 February 2016, the Commission issued a communication on the state of play of implementation of the priority actions under the European Agenda on Migration (COM(2016)85 final). Helpfully, the Commission explained that, under the Schengen Borders Code, temporary border controls can only be extended for a maximum of eight months, unless the Council recommends that border controls be prolonged beyond that point because “serious deficiencies”, relating to the external border control identified through a Schengen evaluation report, persist and have not been remedied. Further, the overall functioning of the Schengen area must be put at risk as a result and there must be a threat to public policy or internal security. Accordingly, if Germany and some of the other Member States want to continue temporary border controls after 13 May 2016 on the basis of the migration crisis, this will only be possible if there is a Council decision on “serious deficiencies” which fulfils the Schengen Borders Code requirements.

[1] Council Document 11986/15.

[2] Hungary apparently also introduced temporary border controls and lifted them but the relevant documents have not been published on the Council registry.

[3] Council Document 12110/15

[4] Annex to Council Document 5877/1/16 REV 1.

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