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Internal Borders Controls in the Schengen Area

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Internal Borders Controls in the Schengen Area DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS Internal border controls in the Schengen area: is Schengen crisis-proof? STUDY Abstract This study, commissioned by the European Parliament’s Policy Department for Citizen’s Rights and Constitutional Affairs at the request of the LIBE Committee, analyses the Schengen area in the wake of the European ‘refugee crisis’ and other recent developments. With several Member States reintroducing temporary internal border controls over recent months, the study assesses compliance with the Schengen governance framework in this context. Despite suggestions that the end of Schengen is nigh or arguments that there is a need to get ‘back to Schengen’, the research demonstrates that Schengen is alive and well and that border controls have, at least formally, complied with the legal framework. Nonetheless, better monitoring and democratic accountability are necessary. PE 571 356 EN ABOUT THE PUBLICATION This research paper was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs and was commissioned, overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. Policy departments provide independent expertise, both in-house and externally, to support European Parliament committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizen's Rights and Constitutional Affairs or to subscribe to its newsletter, please write to: [email protected] Research Administrator Responsible Darren NEVILLE Policy Department C: Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] AUTHORS Prof. Elspeth Guild, Senior Associate Research Fellow, CEPS; Jean Monnet Professor ad personam of European immigration law, Radboud University Nijmegen and Queen Mary, University of London. Dr. Sergio Carrera, Senior Research Fellow and Head of the Justice and Home Affairs Section, CEPS; Associate Professor at Maastricht University and Honorary Professor at Queen Mary University London. Ms. Lina Vosyliūtė, Researcher at CEPS. Prof. Kees Groenendijk, Emeritus Professor of Sociology of Law at Radboud University Nijmegen; Founder and research fellow at its Centre for Migration Law. Dr. Evelien Brouwer, Senior Researcher in migration law at the Vrije Universiteit Amsterdam. Prof. Didier Bigo, Director of Centre d'études sur les conflits, liberté et sécurité (CCLS); Professor of International Relations at King’s College London. Dr. Julien Jeandesboz, lecturer at the Department of Political Science, Université Libre de Bruxelles (ULB); Associate Researcher at CCLS. Dr. Médéric Martin-Mazé, Research Associate and Teaching Fellow at the Department of War Studies, King’s College; Fellow and Associate Researcher at CCLS. This study has been put together with the assistance of the European Citizen Action Service (ECAS) represented by Ms. Assya Kavrakova, Director of ECAS, Mr. Kenan Hadžimusić, Senior Manager of Programmes and Fundraising, Ms. Joanna Marczuk, European Voluntary Service volunteer, and Ms. Elisa Lironi, Digital Democracy and Campaigning Coordinator. LINGUISTIC VERSIONS Original: EN Manuscript completed in June 2016 © European Union, 2016 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Policy Department C: Citizens’ rights and Constitutional Affairs ___________________________________________________________________________________________ CONTENT LIST OF ABBREVIATIONS 5 LIST OF FIGURES 7 LIST OF TABLES 7 EXECUTIVE SUMMARY 8 1. INTRODUCTION 12 1.1. Background: Refugee crisis in 2015/16 12 1.2. Reaction to the refugee crisis: Reintroduction of internal borders 15 1.3. Political context 17 1.4. Methodology 17 1.5. Structure of the study 18 2. SCHENGEN AND ‘CRISES’: A BRIEF BACKGROUND 20 2.1. Brief overview of the Schengen Area 20 2.2. The reintroduction of internal border checks 23 2.3. The 2011 Franco-Italian affair: Was there a breach of the Schengen Borders Code? 23 2.4. The substance of the 2013 Schengen governance reform 25 2.5. ‘The Schengen Freeze’ and the European Parliament’s Role 26 3. MAPPING CHANGES IN THE SCHENGEN GOVERNANCE FRAMEWORK 27 3.1. Innovations in the revised the Schengen Borders Code 27 3.2. Changes in the Schengen Evaluation and Monitoring Mechanism 31 3.3. Role of the Commission, the Parliament and national parliaments 34 4. STATE OF PLAY: WHAT DOES THE SCHENGEN BORDERS CODE MEAN IN PRACTICE? 38 4.1. A legal assessment of the justifications provided by Member States on the reintroduction of intra Schengen border controls 2015-16 39 4.2. Third country national movements or refugee movements? 42 4.3. How well do borders work as a response to terrorism? 45 4.4. The scope of the controls 45 4.5. The Visegrad States 46 4.6. The right to asylum, in light of the reintroduction of intra-Schengen border controls 48 4.7. Exceptional circumstances and the overall functioning of the Schengen area 51 4.8. Informal borders and fences 54 4.9. No complaint – No Impact on free movement of persons? 58 5. IS THE SCHENGEN EVALUATION AND MONITORING MECHANISM FIT FOR PURPOSE? 59 3 Internal borders in the Schengen area: is Schengen crisis-proof? ___________________________________________________________________________________________ 5.1. Results of the Schengen Evaluation and Monitoring Mechanism 59 5.2. Role of EU agencies in the evaluation of external borders management and capacities 64 6. CONCLUSIONS AND RECOMMENDATIONS 72 REFERENCES 76 ANNEX 1. SUMMARIES OF CJEU CASE LAW ON THE SCHENGEN BORDERS CODE 85 ANNEX 2. EU LARGE-SCALE INFORMATION SYSTEMS: WHO HAS ACCESS TO WHAT? 89 ANNEX 3. ANALYSIS OF MEMBER STATE NOTIFICATIONS ON THE REINTRODUCTION OF BORDER CONTROLS AT THE INTERNAL BORDERS OF THE SCHENGEN AREA, SEPTEMBER 2015-MAY 2016 94 ANNEX 4. REPORT ON STAKEHOLDER DISCUSSION 113 ANNEX 5. DEVELOPMENTS ON THE APPLICATION OF THE ARTICLE 29 118 4 Policy Department C: Citizens’ rights and Constitutional Affairs ___________________________________________________________________________________________ LIST OF ABBREVIATIONS CEAS Common European Asylum System CISA Convention Implementing the Schengen Agreement CJEU Court of Justice of the European Union DG HOME Directorate-General for Migration and Home Affairs DG JUST Directorate-General for Justice and Consumers EASO European Asylum Support Office EBCG European Border and Coast Guard ECAS The European Citizen Action Service ECtHR European Court of Human Rights EDPS European Data Protection Supervisor EP European Parliament EUCFR The EU Charter of Fundamental Rights EURODAC The EU asylum fingerprint database Eurojust The European Union’s Judicial Cooperation Unit Europol European Police Office FRA European Union Agency for Fundamental Rights FRONTEX European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union JHA Justice and Home Affairs MEP Member of the European Parliament MoI Ministry of Interior Affairs MS Member State SBC Schengen Borders Code - Regulation (EU) 2016/399 SEM Schengen Evaluation Mechanism – Regulation (EU) 1053/2013 SIS II Schengen Information System (second technical version) TFEU Treaty on Functioning of the European Union 5 Internal borders in the Schengen area: is Schengen crisis-proof? ___________________________________________________________________________________________ UNHCR United Nations High Commissioner for Refugees VIS Visa Information System 6 Policy Department C: Citizens’ rights and Constitutional Affairs ___________________________________________________________________________________________ LIST OF FIGURES Figure 1: Asylum Applications EU-28 1998-2015 ......................................................... 12 Figure 2: Total Relocation of Asylum Seekers Oct 2015 – mid-May 2016 ........................ 13 Figure 3: First-Time Asylum Applications EU-28 (January 2014 – December 2015) .......... 14 Figure 4: Schengen Internal Borders: Developments September 2015 – March 2016 ....... 15 Figure 5: Schengen Internal Borders: Developments April 2011 – June 2015 .................. 24 Figure 6: Schengen evaluation mechanism evaluation in relation to Article 29 ................. 32 LIST OF TABLES Table 1: Categories of the Countries in the Schengen Area ........................................... 21 Table 2: Relevant Schengen Borders Code articles for re-instating internal border controls ........................................................................................................... 22 7 Internal borders in the Schengen area: is Schengen crisis-proof? ___________________________________________________________________________________________ EXECUTIVE SUMMARY The events of 2015-2016, which have been referred to as ‘the European refugee crisis’1, have shown the limits of European migration, border and asylum policies and have placed their foundations under strain. Some EU Member States (MS) reacted
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