The Schengen Area

Introduction

The Schengen Area, currently composed of 22 EU Member States and four other non-EU European countries, enables the citizens of those countries to travel freely across the borders of other members of the Area without passport or other checks.¹  It is the largest such passport-free zone in the world.  The Area was incorporated in the EU Treaties through the Treaty of Amsterdam in 1997.

The United Kingdom and the Republic of Ireland, who share a common travel area of their own created before Schengen came into being, have an opt-out from the Schengen Area agreement.  Because of its island status the UK has always operated border controls at the point of entry and not internal controls such as the checks of identity cards that are common in the Schengen Area.

This paper explains the history of the Schengen Area, what it does, and the problems the countries within it have found, particularly in the context of large movements of migrants since 2011, which led to a major crisis in the summer of 2015.  It also looks at the special position of the UK and the Republic of Ireland in relation to Schengen.

Background

Prior to the First World War, passport-free travel was the norm in Europe but travel restrictions became more common after 1918.  The 1985 Schengen Agreement was an attempt to create once again a European passport-free travel area.  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) strict controls and common visa arrangements would be maintained on third country citizens wishing to enter.  This agreement was made by a number of EU countries but it was at the outset an inter-governmental agreement between them and not part of EU law.

The 1985 Agreement was signed in the Luxembourg village of Schengen, where the borders of three countries 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 (which already had their own passport union) in 1996.  This latter development brought into the Schengen Area countries which are not members of the EU (Iceland and Norway).

Schengen Today

The Schengen Area was formalised in March 1995 as a zone in which there are normally no border controls and the countries involved co-operate in policing the external borders of the zone by sharing information about border violations and other forms of crime.

The 1997 Treaty of Amsterdam incorporated the Schengen agreements (the Schengen acquis) into the law of the European Union.  All Member States accepted the Schengen concept; opt-outs were 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.²

Four non-Member States of the EU are now 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 its legislation.

There are currently four EU Member States that wish to but have not yet joined the Schengen Area.  Bulgaria and Romania have applied to join the Area but their applications have been blocked on the grounds that they do not meet the standards of policing and justice required.³  Croatia applied to join in July 2015; as with all applicant countries it will have to pass an evaluation to ensure that it can implement the Schengen legislation effectively, complicated in this case by its long border with Bosnia & Herzegovina.⁴  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 to the Greek side of the island and that would be impractical and contrary to the easing of Green Line restrictions in recent years.

Schengen in Practice

The abolition of passport controls between Schengen states means 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.  There are also no customs controls on those crossing points between EU Member States and only limited customs checks when entering or leaving the non-EU Schengen countries (e.g. on the borders between France and Switzerland or Germany and Switzerland at Basel).  This means that border crossing within the Schengen Area is far quicker than in the past, facilitating easier movement of both goods and people.  In many parts of Europe there are travel-to-work areas that predate current borders, with populations having found themselves separated from employment and/or educational opportunities, as well as from family members, by an international border.  This is similar to the situation that exists between the two parts of Ireland.

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.  This visa is valid for three months; longer periods of entry are subject to national rules.  A central database of visa applications is maintained for use by authorised personnel in the Schengen countries.

There is a single list of countries for which a visa is required and another common 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 and it seeks to resolve the dispute.⁵  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.⁶

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.  Since October 2010, those entering the Schengen Area with the common visa have had to produce proof of valid medical insurance.⁷

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.⁸

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. The UK has access to this database (and since April 2015 to its extended version, SIS II) and uses it at border control posts and for police purposes, for example to record the issue of European Arrest Warrants.⁹

Members of the Schengen Area are required to meet certain tests to show to the Commission that they can introduce and maintain effective external border controls.  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 visitors have complied with entry rules, such as not overstaying their visa.

Problems that have arisen with the Schengen rules

Since the events of the Arab spring triggered a wave of refugees to Europe fleeing the violence in their home countries, the Schengen countries have faced an unprecedented challenge to the principle of open borders.  This first became apparent in 2011 when the arrival of these refugees (and their movement between member countries) 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”.¹⁰  This decision was followed by the adoption of legislation in 2013 to lay down the circumstances in which internal border controls can be temporarily restored.  Such controls can only be established under the provisions in the Schengen Border Code, they must not last longer than six months and such arrangements are subject to inspection and reporting requirements.¹¹

The scale of the movement of migrants across the Mediterranean and the Aegean in the summer of 2015 raised larger questions.  Over 440,000 migrants had crossed the Mediterranean into Europe in 2015 by the middle of September.¹²  The EU countries where migrants were arriving in very large numbers from the Middle East, Africa and Asia were unable to cope and many of the migrants did not wish to seek asylum in the first EU country in which they arrived – as they should do under EU law (the Dublin rules).  In response to the tens of thousands of people moving across central and Eastern Europe, several Schengen countries introduced border controls.¹³  These controls led to the temporary suspension of some crossborder train services and the searching of vehicles for illegal migrants.  The Commission did not challenge the right of the Schengen countries concerned to make these arrangements but made clear that they could only be temporary.¹⁴

The Commission and the European Council agreed on a range of measures in response to this crisis; most of those were concerned with trying to limit the extent of the migration flows and providing additional support to EU Member States in southern Europe which are the arrival point for most of those fleeing Syria, Iraq and Libya.  The removal of the temporary border controls in the Schengen area will only be possible once migration flows have eased and confidence returns to those Schengen countries who have felt overwhelmed by asylum-seekers during the summer of 2015.

Although some commentators suggested that the migrant crisis undermined Schengen so profoundly as to challenge the basis for its existence, in reality the picture is more complex.  Most border areas were unaffected by the migrant crisis and crossings remained open as usual.  The scale of the movements at some crossings and in the areas around them did create unprecedented challenges but, like the sudden surges of people trying to get through the Channel Tunnel to the UK in 2001/02 and 2015, they have in the past proved to be a temporary phenomenon.  They did however reinforce the importance of effective external border controls and of the enforcement of the EU’s Dublin rules, which provide for asylum-seekers to seek refuge in the first country where they arrive after fleeing persecution.¹⁵  In the medium-term, if large numbers of migrants continue to enter the EU and travel across the Schengen Area in breach of the Dublin rules, the borderless zone concept could be threatened because of public concern.  But the unpopularity of a return to the pre-Schengen era of long delays on local border crossings and the disruption it brought should not be underestimated when calculating the political impact of the 2015 migrant crisis on the future of Schengen.

An entirely separate incident, in which an armed man was over-powered on a crossborder express train operated by Thalys, led to concerns about the ability of terrorists to move freely within the Schengen Area.  Ministers from several Member States met to discuss the incident and agreed that the planned terrorism co-ordination centre in Europol (agreed in April 2015) needed to be set up rapidly but suggestions that all passengers joining crossborder trains should be subject to airport-style security screening were not pursued.¹⁶

The impact on neighbouring countries

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 Schengen Area, notably Russia, Turkey, Ukraine and states in the Western Balkans.  Special arrangements have already been made to allow Russians to get to and from the EU-surrounded exclave of Kaliningrad.¹⁷

Visa requirements were abolished in December 2009 for Serbia, Macedonia and Montenegro and for Albania and Bosnia & Herzegovina in December 2010.  Arrangements for Kosovo are still under discussion and are complicated by the fact that not all EU Member States recognise Kosovo’s independence.

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 within the Schengen countries stems partly from the rise in asylum applications from citizens of the Western Balkans countries since visa-free travel was introduced for them.  Since 2009 asylum applications from Western Balkans countries have risen sharply, with 2014 another record year; this has led to objections that these applicants are mostly economic migrants and have no real claim to be fleeing persecution.¹⁸  Germany has received the largest share of such applicants and in 2015 added several Western Balkans countries to its own national list of safe countries from which it will not normally accept asylum applications; its aim is to extend their list to the Schengen Area as a whole.¹⁹

The British & Irish Opt-outs

The United Kingdom and the Republic of Ireland chose not to join the Schengen Agreement and were given opt-outs from it when the Schengen acquis was incorporated into EU law.²⁰  The Irish Government has expressed an aspiration to join 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 join the Schengen Area.²¹

The British Government’s major objection to joining the Schengen Area is the potential loss of control of immigration policy.  The UK has always operated border controls at the point of entry and not internal ones and an attempt to introduce identity cards failed.  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 qualified majority voting.  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.

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.  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 unlikely that Ireland will join the Schengen Area as long as the UK does not do so.

As mentioned, the UK participates in the Schengen Information System.  The UK also supports the Frontex border agency and regularly contributes to its operations financially and with other resources.

Although the UK is unlikely to join the Schengen Area in the foreseeable future, it is worth noting that there are disadvantages to being outside of Schengen.  In addition to delays for arriving air passengers at UK airports, there is evidence that the need to apply for a separate visa in order to enter the UK and the cost is putting off substantial numbers of potential tourists from visiting the UK.  For example, 82 per cent of Chinese tourists visiting Europe buy only the Schengen visa and therefore cannot come to the UK.²²  In June 2015 the Government announced a pilot scheme to allow Chinese citizens to buy a British and a Schengen visa for one visit at three centres in China through a partnership with the Belgian Government.²³

Prospects for the future

The EU has responded to the large numbers of migrants seeking to enter the Schengen Area in the summer of 2015 with a number of proposed policy changes.  The European Council agreed in October that the EU should provide more financial support to Turkey so as to encourage asylum-seekers living there to stay.  In return for this financial support, the EU sought assurances from Turkey that it would make life easier for the migrants who are living in Turkey, such as allowing them to work.  EU leaders also agreed to speed up the accession negotiations with Turkey and to consider removing the requirement for Turks to have a visa to enter the Schengen Area.

These proposals, several of which are contentious within the EU (such as speeding up Turkish accession), will need to be negotiated with Turkey and then the decisions will have to be agreed by the EU.  This will not be easy, partly because of Turkish concerns but also because of differences of view among Member States.

Other proposed policy changes, put forward by various Member States but not collectively endorsed by EU leaders, such as scrapping the Dublin rules requiring asylum-seekers to be registered and have their asylum claim processed in the first EU country they land in, are likely to be even more difficult to agree.  In addition, the newly adopted mandatory quota system for allocating asylum-seekers among Member States is proving difficult to operate in practice because it takes no account of the wishes of migrants.

Finally, it is important to note that whether the UK was a member of the EU or not it would still be affected by the large numbers of asylum seekers fleeing conflict in the Middle East and North Africa.  Although not a member of the Schengen Area the UK attends the Ministerial meetings where policy is decided and it has some influence.  Outside the EU, the UK would not be present or consulted and would thus have no influence over the Schengen Area.