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EU border law: the Schengen system

Watch Prof. Christa Tobler describe the basics of the EU Schengen system on borders.
Migrants into the EU need to cross the Union’s external borders. Accordingly, border law is also relevant for them. The border law of the European Union has its origins in 1985. Some Member States initiated it then outside Community law through the Schengen Convention and its implementing Convention. Subsequently, the Schengen law was incorporated into Union law. Today, the Union Schengen law still does not apply to all Member States. Whilst some do not want to be part of it, namely the UK and Ireland, others have not yet been accepted, Bulgaria, Croatia, Cyprus, and Romania. Conversely, the Schengen law applies to the four EFTA States, thereby also including Switzerland. The participating countries together form the Schengen Area.
The background to the Union’s modern border law is Art. 77(1) TFEU.
It provides as follows: ‘The Union shall develop a policy with a view to 1. (a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders, (b) carrying out checks on persons and efficient monitoring of the crossing of external borders; (c) the gradual introduction of an integrated management system for external borders […]’ As far as the Schengen rules are concerned, the Union’s main legislative measure is the so-called Schengen Borders Code. Further, there is a plethora of additional legislation on all sorts of aspects of the Schengen System. You can find some additional information in the text accompanying this video. The starting point of the Schengen Borders Code is the abolition of internal borders within the European Union.
Art. 22 SBC provides simply: ‘Internal borders may be crossed at any point without a border check on persons, irrespective of the nationality, being carried out.’ This means that, within the Schengen Area, there are open borders for all, irrespective of whether they are EU nationals or third country nationals and also irrespective of their title of residence, for example, as a refugee or as a migrant worker. You may ask, how definite is the abolition of the internal border controls once it has happened? In this context, note that the SBC contains provisions on the temporary reintroduction of border controls in the event of a serious threat to public policy or internal security in the state concerned.
There are also procedural rules in this context, which differ depending on whether the problematic events are foreseeable or whether urgent action is required. In practice, a Member State’s decision on how to act and which procedure to follow may be influenced by political considerations. Indeed, in 2016 a number of Member States have taken unilateral action to reinstall controls at their internal borders, and there has been a debate on whether or not this was in line with the SBC rules. It would appear that some Member States simply felt overwhelmed and decided to act unilaterally without bothering on whether or not the conditions for such action were met. This has led to a difficult situation in adjoining countries, in particular.
As for the migrants, knowing how difficult it may be to cross the external borders in a regular manner, many of them take recourse to risky routes in order to reach the territory of the European Union, often with the assistance of people smugglers. In addition, the migrants may have specific wishes as to where they would like to request asylum, for example, because they have family members there or because they have heard that the chances of being accepted are higher in this particular country than elsewhere. This means that such migrants are not willing to stay in the country of first entry, but try to continue their journey within the EU even in the face of difficulties from the authorities.
In 2015, the EU’s Fundamental Rights Agency, FRA, has made suggestions for ways how to prevent the human tragedies that are resulting from this situation.

The so-called Schengen law deals with the European Union’s internal and external borders.

Migrants into the European Union (EU) need to cross the Union’s external borders. Over time, the EU has developed common border rules, including notably the so-called Schengen law. For the participating Member States, the Schengen law provides for the abolition of the Union’s internal borders, combined with measures to protect the external borders. Switzerland is associated to the EU system in this field.

After you have watched this video you may wish to reflect on either of the following two issues:

  • Read the provisions of the Schengen Borders Code (SBC) on the temporary reintroduction of border controls that were just mentioned in the video. You find them in the ‘see also’ section (Art. 25 SBC et seq.). Thereafter, you may wish to reflect on what is your personal opinion on the legality of the individual measures taken by certain Member States.
  • Reflect on how easy or difficult it is for asylum seekers to enter your country of origin. Do you know about the legal situation in your country? If not, how could you find out?

You may also read the texts in the ‘downloads’ section and get further information through the related links under ‘see also’.

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