Migration, Border Controls and the Future of the Schengen Area

The Schengen Area has always been praised as one of the most important achievements attained by the process of European integration for representing the embodiment of one of the four fundamental freedoms of the EU, namely, the freedom of movement of people.

The origins of the concept of the Schengen Area as a group of sovereign states where citizens are granted visa-free access to the territory of all the members can be traced back to some regional experiences in the context of post-war Europe such as the Nordic Passport Union, which by 1958 allowed the citizens of its member states to freely travel and live everywhere across the members’ territories without needing any visa or residence permit whatsoever.

The Schengen Area would follow some decades later. In June 1985 five countries, already members of the then European Economic Community, vowed by an Agreement to gradually lift controls at their internal borders with the aim of furthering the realization of the European Single Market. The Agreement was formalized in 1990 as a Convention legally separated from all the other Treaties signed or negotiated until that moment in the context of the European Communities. The turning point came when in 1997 the Convention was finally annexed as a protocol to the Treaty of Amsterdam, thus placing the Schengen Area under the umbrella of EU law. Today the Schengen Area counts twenty-nine member states, among which twenty-five member states of the EU (Ireland retains an opt-out clause while Cyprus is still working towards its accession) and the four members of the EFTA.

Since the first days of negotiation, national governments, though sure of the undoubtable advantages that the abolishment of internal border controls with their neighbors would have brought about, had been aware of the potential risks and dangers that could come with an unbridled flow of people in and out of their borders. Therefore, it is no wonder how, together with the lifting of controls at mutual borders, the implementation of the Schengen Area had always entailed enhanced cooperation mechanisms across the different law enforcement agencies and judicial authorities of the signatory states. On top of that, uniform rules concerning the admission of so-called ‘third-country nationals’ were to be applied at all external land, maritime and air borders of the Schengen Area.

However, as it often happens in international law, mutual trust among the parties involved had to be buttressed by a safeguard mechanism consisting of the possibility for national governments to temporarily reintroduce border controls at their internal borders whenever “public policy or national security concerns” required so.

The aforementioned mechanism was further developed and codified by EU legislation through the realization of the Schengen Borders Code in March 2006. The Code, amended numerous time until very recently in May 2024, constitutes the rulebook which regulates all the aspects related to the management of internal and external borders of the Schengen Area, including the conditions on the temporary reintroduction of internal border controls which, almost copy pasting the original vocabulary used back in 1990 for the Convention on the Implementation of the Schengen Area, can only be restored in case of a “serious threat to public policy or internal security”. In fact, a member state’s government is entitled to reinstate border controls at its internal borders whenever it reckons that a foreseeable threat or an unforeseeable event requires such a drastic measure. The government under scrutiny is also mandated to notify all the governments of the other countries involved together with the European Commission, Parliament and Council of the EU.

As the wording used by the articles of the Schengen Borders Code suggests, the reintroduction of border controls is framed to be a last resort solution to extraordinary situations which could not be adequately dealt with through other alternative means. It is for this reason that the national government opting to undertake this line of action must always attach to the notification previously cited a risk assessment study about the likely impact that border controls might have on cross-border traffic flows and, in case, predispose the appropriate mitigating measures. The European Commission, in turn, is tasked with issuing opinions to assess the necessity and proportionality of any reintroduction of border controls and it fosters talks across all involved member states to find alternative solutions. The European Commission cannot overrule the reintroduction of border controls by the member states unless by formally opening an infringement procedure for violation of the Treaties.

As far as September 2024 there are eight member states whose governments have decided to put back in place temporary controls at their internal borders. The notifications sent by these governments cited a wide array of security concerns raised by intensified terrorist threats, strains on asylum reception systems, arms smuggling, human trafficking, and even the risk of espionage and acts of sabotage by Russian agents.

More recently, the Norwegian Justice Minister Emilie Mehl declared how she intended to extend the temporary introduction on all land, sea and air border controls, scheduled to expire on the 22nd of October, until the 11th of November, in light of the high terrorist threat level caused by the escalating tensions in the Middle East.

The same line of thought seems to have inspired the German Interior Minister Nancy Faeser, who stated that German federal government, which in turn has gradually reintroduced border controls at all Germany’s land borders, scheduled to expire in mid-March 2025, remains determined to “further reduce irregular migration, stop people smugglers, put a stop to criminals and recognize and stop Islamists at an early stage”.

If one were to consult the history of the EU with a particular focus on the management of the embedded Schengen Area, he would not fail to point out that, aside from peculiar calamities such as the COVID-19 pandemic, migration has been quite often a particularly disruptive element to its well-functioning. It was when the unprecedented flux of people shook the EU in 2015 by scoring the stunning record number of 1 350 0000 asylum applications that the shortfalls of the Common European Asylum Systems showed the potential negative spillover effects they could have on the health of the Schengen Area.

The most important component of the aforementioned Common European Asylum Systems at the time of the event recalled consisted of the Dublin Regulation, which set the rules for the handling of asylum applications in the EU, concerning in particular the criteria to determine which member state should be held responsible for processing each individual application. Among these criteria, the one detailed in article 13 which stated how the “Where it is established…that an applicant has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for international protection…” was bound to be critical for the unfolding of the crisis on the Schengen Area.

Time series of the number of asylum applications per year in EU-28 plus Norway and Switzerland. Source.

The European Commission, in the Communication it sent to the European Parliament and to the Council of EU in March 2016 to brief them about the fragile status of the Schengen Area at that time, described the ruinous effects that the so-called “wave-through” approach, adopted by certain member states located along what became known as the Western Balkan Route, consisting of the simple act of letting migrants through one state’s territory so that they can move easily towards other neighbors, was having on the stability of the Schengen Area.

This phenomenon described by the European Commission can be explained as follows: as soon as the countries of first entry were overwhelmed by the unprecedented amount of people arrived at their borders and as soon as their governments came to realize the unbearable financial, social, but most of all political costs that following strictly the rules detailed earlier on the responsibility to process the applications for protection would have implied, they decided to channel such flow of people away by exploiting the freedom of movement granted by the Schengen Area.

As a consequence, the governments of the member states which were the final destinations of such unauthorized secondary movements, such as Germany, Austria, Slovenia, Sweden, Norway and Denmark, felt themselves compelled and legitimized to reintroduce controls at their internal borders to fend off what was indicated commonly in their notifications to be a “big and unprecedented influx of persons seeking international protection”.

Therefore, it became clear to the Commission and to the member states that, by citing the words of the Commission itself written in the communication: “The absence of internal border controls should go hand in hand with the framing of a common policy on asylum, immigration and external border control, based on solidarity between Member States”.

This awareness turned into a political will to revise and replace the existing asylum instruments with a new framework which would avoid the unfair burden distribution of the past. The reform process took off in September 2020 as soon as the European Commission put forward its proposal about a new Pact on Migration and Asylum. The new Pact, among many novelties concerning the screening procedure of third-country nationals at their first entry into the EU and the new and more efficient procedure for the adjudication of asylum procedures, set up a new compulsory solidarity mechanism whereby member states, contrary to the past, would have been mandated to choose among three different ways to support the efforts carried out by the countries of first entry in the event of mass arrivals as those occurred in 2015.

These three options to comply with the solidarity mechanisms included: the relocation of a portion of asylum seekers, the responsibility to take care of the return to their country of origin of those whose application have been rejected and finally provide other forms of operational support. The whole solidarity mechanism shall be activated and overseen by the European Commission, the only European institution entitled to declare when a national asylum system should be considered under pressure or at risk.

The new Pact, after years of negotiations, could finally be approved both by the European Parliament and by the Council of the EU respectively in April and May of 2024, thus entering in force in June. Nevertheless, the Pact is scheduled to become fully applicable and operational by mid-2026 while until that moment member states are expected to deliver their National Implementation Plans by December 2024 to set out the milestones each national government will undertake to be ready to apply the new legislation.

Even though the current migratory situation might not be as critical as it were in the past, the old and new scenarios of instability in the EU’s ‘neighborhood’, such as the ongoing conflicts in Syria, Sudan, Lebanon and Ukraine to name a few, should keep member states’ governments aware of the lessons learned about in the past about the risks that an uncoordinated and unbalanced response to massive waves of refugees could imply. The need to proceed as efficiently as possible to the implementation of the Pact is exemplified by the plead of the Greek government to the European Commission, which foresees how the expansion of the hostilities in Lebanon could force a growing number of people to escape the country, thus potentially reenacting the scenarios seen many years ago.

Whether or not the Schengen Area will be able to avoid further backsliding in the future is going to depend crucially on the effectiveness and completeness of such implementation, so that to a common external border will be really attached common internal responsibilities.