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Britain and EU migrants

The Schengen area

Introduction

The Schengen Area, made up of 22 EU Member States and four other European countries, enables the citizens of those countries to travel freely without passports across the borders of the countries concerned.  It is the largest such passport-free zone in the world.  The legal basis for the Area was incorporated in the EU Treaties through the Treaty of Amsterdam in 1999. 

The United Kingdom and the Republic of Ireland, who have a common travel area of their own created before Schengen came into being, have an opt-out from the Schengen Area agreement but all other EU Member States have joined or will do so as soon as they can convince the present members that they can meet the responsibilities of the system.  Because of its island status the UK has always operated border controls at the point of entry and not internal controls such as checks of identity cards that are common in the Schengen Area.

This paper explains the history of the Schengen Area, what it does and looks at the special position of the UK and the Republic of Ireland.

Background

Prior to the First World War passport-free travel was the norm in Europe but after 1918 travel restrictions became common.  The Schengen Agreement of 1985 was an attempt by the countries that joined to create once again a passport-free travel area in Europe.  Passport controls would be abolished at the borders between the members of the Schengen Area but they would jointly ensure that on the external borders (and on international flights into any Schengen Area airport from outside the area) tough controls would be maintained on third country citizens wishing to enter the Schengen Area. 

The 1985 Agreement was signed in the Luxembourg village of Schengen, where the borders of Germany, France and Luxembourg meet.  This initial agreement, signed by Belgium, France, Germany, Luxembourg and the Netherlands, provided for the replacement of passport controls with visual checks of vehicles, which would be able to cross borders without stopping by travelling at reduced speed through border posts.  Five years later, the Schengen Convention of 1990 extended the concept of passport-free travel to air and rail passengers and introduced common visa rules and police and judicial co-operation; Italy joined at that time.  Other countries joined the Schengen Area later, including the Nordic countries in 1996.

The 1999 Treaty of Amsterdam incorporated the Schengen agreements (the Schengen acquis) into the law of the European Union.  All Member States accepted the Schengen concept and agreed they would join save for opt-outs given to the United Kingdom and the Republic of Ireland (see below).  Other exclusions were agreed for certain specific territories such as the Faroe Islands.  

Four non-Member States of the EU are participants in Schengen – Iceland, Liechtenstein, Norway and Switzerland – and are bound by the rules agreed under EU law that apply to the Schengen Area but cannot participate in the Council of Ministers meetings that approve the legislation.    

Schengen in Practice

The abolition of passport controls between Schengen states means in practice that many physical border posts have been removed.  There are no passport controls for air, rail and road passengers when crossing frontiers within the Schengen Area.   

Common visa rules mean that a Schengen visa admits the national of a third country to all the Schengen countries that participate in the common visa application system (25 countries at present; Bulgaria, Cyprus and Romania will join later if they can satisfy the requirements of the system; see below).  This visa is valid for three months; longer periods of entry are subject to national rules. 

There is a single list of countries for which a visa is required and another list of those countries whose citizens are exempt from any visa requirement for short stays (Australia, Canada, Israel, Japan, New Zealand, South Korea and the United States are some of the countries currently on the exempt list).  Countries exempt from the visa requirement are expected to extend reciprocal arrangements to EU/Schengen citizens.  When a country breaks that reciprocity (as Canada did in respect of Czech citizens in 2009 because of the number of asylum claims), the Commission publishes a report setting out what has happened.  Citizens of some countries have to apply for a transit visa if they are travelling through the Schengen Area, even if they are not staying there. 

The visa requirements are set out in the Community Code on Visas and detailed advice is provided to borders and immigration staff in handbooks.  Frontex, the EU’s specialist agency handling border issues, provides support to Member States in meeting the requirements of the Schengen system, particularly in maintaining the external border.  Those entering the Schengen Area with the common visa since October 2010 have had to produce proof of valid travel insurance.

The Schengen Area co-operation extends to police and judicial co-operation, in order to enable cross-border crime to be tackled effectively.  In certain circumstances, police officers have a right of hot pursuit across national frontiers from one Schengen state into another.  They have to inform the second country that they have entered its territory and the originating country remains liable for the actions of its officers. 

Although border controls have been abolished, other ways of monitoring movement remain.  For example, it is a requirement that guests staying in the Schengen Area produce proof of identity and give their home address when checking into a hotel.

Maintaining Secure External Borders

The key principle of the Schengen Area is that while border controls are largely abolished within it, the external border of the Area is carefully policed.  In addition to the common visa, an electronic database called the Schengen Information System (SIS) is maintained to assist border control.  This database contains details of those who have committed serious crimes as well as those who may have been denied entry to the Schengen Area.  Vehicles reported stolen and other missing items can also be included.  A second generation of the SIS database is in the process of being created. 

Members of the Schengen Area have to meet certain tests to show that they can introduce and maintain effective external border controls.  New Member States of the EU in 2004 were helped with the costs of meeting these requirements and a similar process is in train with Romania and Bulgaria. 

The designated border controls are laid down in a code.  They include exit as well as entry controls at the external border.  On entry, an identity check for third country nationals is required.  On exit, the SIS database allows border control staff to see whether a warrant for the arrest of the person has been issued during their stay and to check that all visitors have complied with any entry rules, such as not staying for more than the permitted period of their visa.  

Internal (i.e. within the Schengen Area) border controls can be reintroduced by Schengen member countries in certain circumstances.  They were reintroduced in Germany for the period of the 2006 World Cup for example and have been brought in during other major events in Schengen countries. 

The events of the Arab spring triggered a wave of refugees to Europe fleeing the violence in their home countries.  The arrival of these refugees, particularly in Italy, caused a significant political controversy and led to disagreements amongst some Schengen member countries about how such a situation should be handled.

Faced with the arrival of large numbers of refugees on the island of Lampedusa, the Italian Government decided to issue entry visas allowing six months residence to around 25,000 refugees (most were from Tunisia).  These visas allowed access to the Schengen area but both France and Germany objected strongly to them being issued.  In April 2011 the French authorities blocked trains carrying migrants from Italy crossing into France for 24 hours because they feared the migrants would stay in France.

The June 2011 European Council agreed that a mechanism should be, “introduced in order to respond to exceptional circumstances putting the overall functioning of Schengen cooperation at risk, without jeopardising the principle of free movement of persons”.  The Commission proposed an amendment to the internal border rules for the area allowing for further temporary restrictions in response to exceptional circumstances.  Schengen member countries can already introduce temporary border closures of up to five days but the Commission proposed allowing such closures to last up to 30 days at a time with their permission and for them to be renewable for a maximum of six months.  No agreement is in prospect on this proposal as a number of Schengen countries have expressed reservations about the Commission being involved in the decision to allow temporary suspension of border controls.

Future Developments

Transitional funds were granted to Romania and Bulgaria to enable them to meet the standards required for external border controls and for their implementation of the Schengen acquis.  It was originally intended that Bulgaria and Romania would fully join the Schengen Area in March 2011.  Romania has the second longest external border of any EU Member State, after Finland’s border with Russia.  Romania’s borders with Ukraine and with Moldova are regarded as being particularly difficult to police. 

The Commission proposed in 2011 that Romania and Bulgaria join Schengen from 25 March 2012 in respect of maritime and air borders and for land frontiers no later than 31 July 2012; this was accepted by the European Parliament.  But two Schengen states blocked this in the Council of Ministers in June 2011.  Finland has withdrawn most of its objections but the Netherlands remains opposed.  The Dutch Government’s argument is that insufficient action has been taken by Bulgaria and Romania to tackle corruption and organised crime.

Cyprus has not joined the Schengen Area because the division of the island creates particular problems.  Cypriots from the Turkish side of the island would need a Schengen visa to cross on to the Greek side of the island and that would be impractical and contrary to the easing of Green Line restrictions in recent years. 

Many of the countries on the list of those whose citizens are required to have a visa to enter the Schengen Area would like to join the exempt list.  This particularly affects countries bordering the EU, notably Russia and the states of the Western Balkans.  Special arrangements have already been made to allow Russians to get to and from the EU-surrounded enclave of Kaliningrad.  Another exception allows Croatians in border areas to get in to neighbouring EU countries in order to be able to work locally. 

Visa requirements were abolished in December 2009 for Serbia, Macedonia and Montenegro.  Negotiations are under way with Albania, Croatia and Bosnia & Herzegovina – agreement has been reached in principle for them to join - but arrangements for Kosovo are still under discussion and are more complex because not all EU Member States recognise Kosovo’s independence.  Turkey would like to join Schengen but no progress has been made in achieving this as a result of opposition from existing Schengen members. 

The requirement to hold a visa to access the EU is a cause of considerable concern (and criticism) in a number of countries on the EU’s eastern border.  Resistance to extending visa-free travel stems from the fact that lower levels of income in many of the EU’s neighbours could lead to a rise in illegal immigration if visa requirements were relaxed.  Nonetheless, the visa question is a significant issue in relations between the EU and its eastern neighbours and is a lever for getting the neighbouring countries to tighten up their own policing of immigration.

The British & Irish Opt-outs

Neither the United Kingdom nor the Republic of Ireland chose to join the Schengen Agreement and were given opt-outs from it when the Schengen acquis was incorporated into EU Law.  The Irish Government has expressed an aspiration to join the Schengen Area at some point in the future; the UK Government has no plans to do so.  A referendum would be required under Section 6 of the European Union Act 2011 if a UK Government wished to Britain to join the Schengen Area.

The British Government’s major objections to joining the Schengen Area centre on the potential loss of control of immigration policy.  The UK has always operated border controls at the point of entry and not internal ones.  In addition, the UK has argued that it does not wish to be part of a common visa system that might not reflect the UK’s needs and the rules of which can be decided by QMV.  The difficulties in maintaining the external borders of the Schengen Area are such that the UK lacks faith in the ability of its fellow Member States to prevent an increase in illegal migration to the UK if it joined Schengen. In most years the UK receives the highest or second highest number of applications for asylum in the EU and it does not wish to see any increase in such applications. 

The UK’s decision to stay out of the Schengen Area partly reflects the fact that it only has one land border with another country – the Republic of Ireland – and passport-free travel has largely operated between the two countries since Ireland achieved independence in the 1920s.  That arrangement, known as the Common Travel Area, enables citizens of the British Isles (UK, Republic of Ireland, Channel Islands and the Isle of Man) to move freely between the different parts of the British Isles without the need for a passport or identity card.  In practice, the existence of the Common Travel Area makes it difficult for Ireland to join the Schengen Area as long as the UK does not do so..

Generally speaking, the UK’s policy since 1999 has been to opt in to measures concerning illegal migration but to stay out of those that deal with legal migration (eg. the Schengen common visa).  Under the Treaty of Lisbon, the UK (and Ireland and Denmark) does not automatically participate in any part of justice and home affairs but can opt in to legislative proposals.  The only caveat is that if it does so, the UK will be bound by any further measures that build upon this initial measure. 

The UK has opted in to the Schengen Information System and the improved version (SIS II).  British police and border control staff can access the SIS through the Police National Computer.  The UK also supports the Commission’s proposal to establish a special agency of the EU to manage all the IT systems connected with justice and home affairs work at EU level.  The UK also supports the Frontex border agency and has made strengthening it one of the eleven priority points for the new Government’s EU policy set out in the Strategic Defence & Security Review.

November 2010; revised February 2012

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