E.g., 08/02/2014
E.g., 08/02/2014

Faltering Movement: Explaining Europe's Schengen Struggle

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Faltering Movement: Explaining Europe's Schengen Struggle

Six months ago, a chain reaction of external events and internal politics led to the brief, but significant, suspension of Schengen cooperation between France and Italy. Images of guards searching trains at the small station of Ventimiglia reminded European citizens of an EU achievement they rarely notice, yet value deeply: the ability to move across Europe without undergoing passport checks and vehicle searches.

The four-hour, high-speed train service from Paris to Cologne — unfettered by border guards — symbolizes the distance Europe has travelled in its 60-year history. Politicians are proud of the unique multilateral cooperation that Schengen represents, yet it seemed for a short while as if they might be willing to let the system collapse over 22,000 residence permits offered by the Italian government to unauthorized Tunisian migrants fleeing unrest during the Arab Spring.

Looking Out for Number One: Pressure on Schengen

Many considered the revolutions in North Africa exceptional enough to offer sufficient explanation for the current situation in itself. Chronologically, the events had a domino effect. The arrival of the migrants to Italian shores (mainly to the small island of Lampedusa) sparked a call from the Italian government for pan-European support to help manage the inflow, specifically through financial and technical support and the relocation of refugees to other EU Member States.

North-West European states were largely unsympathetic for a variety of reasons: Some, including Germany and Sweden, which deal with more asylum applications than Italy annually, felt the numbers were not high enough to catalyze an EU response. Others felt that Italy was not justified in asking for support because the country had so closely collaborated with former Libyan ruler Muammar Gaddafi to prevent migrant inflows from the Southern Mediterranean. Still more reacted on principle: While financial and technical support largely via Frontex may be reasonable, the relocation of refugees, and particularly asylum seekers, within Europe remains a contentious issue.

After several pleas and a number of hyperbolic statements from (primarily) Lega Nord representatives of the Italian government, Italian Prime Minister Silvio Berlusconi took matters into his own hands and offered the Tunisian migrants residence permits — papers allowing them to move freely throughout Europe. Alarmed by this unilateral action, and recognizing that many Tunisians have familial and social ties in France, the French government moved to close its Southern borders with Italy and reinstated checks on trains.

While some, including the European Commission, focused on the legal legitimacy of each Member State's actions — including the legality of the actual residence permits – the political fallout was unavoidable. Seeking reconciliation, both heads of state met and drafted a joint letter to European Commission President José Manuel Barroso. Most of the requests contained therein were mild, and many had already been proposed and discussed within the EU institutions. However, one clause requested that Schengen rules be adjusted to allow states to close borders in "exceptional circumstances." The European Commission agreed in principle, though emphasized that they themselves would be the only ones capable of overseeing such adjustments.

Member States have since confirmed their unanimous support for Schengen, not least at the June 2011 European Summit where EU heads of state reiterated their commitment to Schengen as "one of the most tangible and successful achievements of European integration." However, they also outlined the development of a "mechanism" to respond to exceptional pressures — a series of measures of support that could ultimately lead to the reintroduction of internal border controls. A proposal for such a mechanism has since been published by the European Commission and is currently under discussion.

Crisis averted? During the French-Italian spat, the Danish government re-established customs checks along its German and Swedish borders, ostensibly to address transborder crime. The stand has been short-lived. Amidst doubts as to the legality of the move and strong criticism from neighboring states, particularly Germany, the new Danish government (a center-left government has been formed since the elections in October 2011) has announced it will remove border controls once more. This second unilateral move highlights that whilst, overall, Schengen principles are holding in place, they are still under pressure.

A number of underlying factors suggest that the events of the past several months are a symptom rather than cause of tension surrounding Schengen cooperation, and the European Commission should expect further challenges in the future.

A Brief History of Schengen
It is interesting to note that, while the European Commission is now the central bastion of Schengen cooperation, the first meetings to discuss developing freedom of movement were done outside of the bounds of the EU framework. Five countries came together in 1985 to negotiate and sign the founding agreement in the small town of Schengen, Luxembourg, close to the tri-border with France and Germany.

It took a further ten years for this cooperation to become operational, and an additional two years before it was brought within the fold of the European Union through the Amsterdam Treaty. In the meantime, additional countries joined the initiative, including the European Economic Area (EEA) states of Switzerland, Norway, and Lichtenstein. Thus, the fact that Member States are battling with the European Commission on the terms of the treaty is in itself a departure from the original government-led spirit of Schengen.

 

What is Schengen cooperation?

Schengen cooperation has resulted in the removal of internal border controls between 25 EU/EEA Member States. At the current moment, all EU Member States participate with the exception of the UK and Ireland (who have opted out), and Romania, Bulgaria, and Cyprus (who have yet to join). In addition, EEA states Norway, Lichtenstein, and Switzerland also participate. The removal of internal borders has also sparked a raft of policies to strengthen the common external borders of the Schengen area, known as "compensating measures."

Schengen cooperation should not be confused with the right of free movement, through which EU citizens have the right to live and work in other Member States (with the exception of those still restricted by ‘transitional measures' allowing limits on free movement for citizens of new accession countries, currently Romania and Bulgaria).

However, the ability to live and reside in other EU countries is greatly facilitated by Schengen cooperation (allowing citizens to live in one country commute to work in another), while tourists from outside of the European Union can take advantage of a single visa that allows travel to all countries within the Schengen space.

Schengen cooperation has never been a smooth ride, as concerns over fellow countries' abilities to manage external borders and ports of entry have led to halts and postponements. Take Germany's concern about the quality of Austrian border controls in 1995, for example, or the 8-month delay of expansion to Central European states in 2007 due to delays in implementing new common information systems. Most recently, the accession of Romania and Bulgaria to the Schengen area has been postponed — perhaps indefinitely — over worries about high levels of corruption and transnational crime. Separately, the planned upgrade of the common Schengen Information System to include additional biometric data is both over budget and overdue.

And reintroduction of internal border controls is not without precedent. Member States may close internal borders for up to 30 days when there is a serious threat to public policy or national security, and this tack has been used when large sporting or political events were feared to spark unrest. Indeed, on more than one occasion, border controls have been reintroduced over concerns related to immigration and asylum. Thus, the key element of the French-Italian request is not to introduce a new concept into the Schengen agreement per se, but expand – and possibly blur – the terms through which controls may be reintroduced.

Continuing Challenges for Schengen Cooperation
A confluence of trends — some long-standing, others newly emergent — can be identified with respect to the continued pressure on the Schengen system.

External Border Pressures and Uneven Burdens
The Schengen space is ultimately dependent upon the existence of a strong external border and a shared responsibility for that border among all Member States. Borders are only as strong as their weakest link, as amply demonstrated by the situation on the Greek-Turkish border in 2010 when record numbers of unauthorized migrants from the Middle East and North Africa crossed into the Schengen space.

A great deal of trust between countries is required and has slowly been built up, reliant upon the idea that countries with external borders will hold up to the challenge of securing them and those without will offer support when required. This trust has come under pressure during moments of enlargement and crisis, but has ultimately been maintained.

While the need for high levels of trust for external border cooperation had been foreseen from the beginning, the disproportionate pressure placed on some countries regarding border management – real in the case of countries such as Malta and Cyprus, less dramatic (but still felt) in the case of Italy – was less anticipated.

The political perception that these countries have been "burdened" by external border management, and that Northern countries have avoided taking their fair share of responsibility, is enduring and has yet to be sustainably resolved. Northern states, such as France, Germany, the Netherlands, and the UK, note that they deal with more spontaneous asylum applications than their Southern partners and believe offering financial and technical support is sufficient. Southern states, however, would like to establish deeper cooperation that would include a system for the relocation of refugees and possibly asylum seekers across the European Union.

This lack of unity is eroding essential trust between Member States and highlights how equity is necessary for the Schengen system to keep working effectively. In the absence of an equitable and sustainable compromise, this trust will continue to erode until one external-border country is unable to live up to its obligations to police borders further. The Italian action can, in some ways, be read as a warning shot to EU partners.

But what solutions exist? The proposal from the European Commission concerning Schengen rules includes the possibility to reintroduce internal border controls should one Member State exhibit a "persistent deficiency to manage a section of the EU's external border," though only after all other avenues of action have been exhausted. Clearly aimed at Greece amid concerns as to the lack of infrastructure that exists to manage that country's external borders, this proposal essentially provides for the temporary expulsion of a Member State from the Schengen space in an effort to reduce the concerns of larger Northern states regarding the border management capacity of their Southern partners.

In the long term, however, any mechanism for reintroducing border controls will have to be accompanied by a substantive set of burden-sharing measures capable of satisfying both Southern and Northern states. But beyond financial and technical support and a stronger role for the European Union's border management agency, Frontex, states have struggled to collectively articulate what this might mean. Broad solutions such as the fully harmonized completion of the Common European Asylum System, for example, have become ever more elusive in the absence of high levels of trust, yet shorter-term, patchwork responses fail to restore that trust.

National Politics on the EU Stage
Arguably, much of the debate over the past six months has not been a challenge to EU cooperation, but rather a reflection of increasingly tense national political debates on immigration across Europe. Italy and France were in no small part reacting to national political pressure (Lega Nord in Italy, the National Front in France) to be tough on immigration from third countries, while Denmark was responding to calls from the People's Party to be tougher at the border.

In the particular area of immigration, asylum, and the movement of people, the level of solidarity necessary for EU cooperation requires a certain amount of national interest to be set aside. Populist pressure, marginal but in many cases critical, means that EU Member States are finding it harder and harder to collaborate on these issues. In reality, immigration policy in Europe never strays too far from the constraints of domestic politics. However, drawing the line between legitimate national policy concerns and playing electoral politics with EU policy is also becoming harder, polarizing the EU debate.

But tinkering with Schengen may not be a vote-winning policy for national politicians. During the October national elections in Denmark, the popularity of the People's Party declined significantly, and the new socialist government has announced that the policy of re-establishing internal border controls will be abandoned. Similarly, when the Italian government decided to renew the six-month visa for Tunisians still residing in Italy in October, neither the Italian or French politicians made any noise about it. This may, in small part, suggest that any political advantage to looking tough with respect to Schengen is short-lived and, if carried too far, may ultimately be self-defeating.

Clash Between Free Movement and Immigration Rules
Over the past couple of years, there have been several indications that, in the absence of completely harmonized third country immigration policies (i.e., policies towards non-European immigrants), conflicts between internal systems of free movement and national policy are gradually eroding trust between EU Member States.

The French-Italian dispute highlighted one essential fact: Immigration policy decisions adopted by a single Member State may have unwanted spill-over effects for other (particularly neighboring) Member States.

This is not the first occasion where such unilateral policy decisions have affected EU cooperation on immigration. The 2006 Spanish decision to regularize around 600,000 unauthorized migrants upset the French government, as they believed many of those offered legal status would then travel to France. Real or imagined, this concern sparked a debate on regularization at the EU level. The result was a "mutual information mechanism" whereby governments were asked to inform fellow states of impending amnesties, and later a political statement in the European Pact on Immigration and Asylum of 2008.

While the Spanish-French dispute did not escalate into Schengen brinkmanship, the resulting debate highlighted how trust between Member States is predicated on an unspoken set of parameters — the common belief that the group of states all hold roughly the same philosophies and priorities — within which governments will make national choices. The aforementioned EU immigration pact, which was promulgated under the French EU Presidency in 2008, was an effort to articulate these priorities. Thus, action outside of these boundaries will spark political debate and potentially counteraction within the European Union.

Unfortunately, a resolution to this tension — either by harmonizing immigration and asylum laws completely or dismantling Schengen entirely — is unlikely. Instead, the European Commission will have to continue to make compromise decisions and find ways to circumvent and manage these conflicts. However, any new mechanism will need to make clearer that national immigration policy decisions in a single Member State should not be capable of triggering the reintroduction of borders, regardless of how unconventional their actions might seem to their neighbors.

What Next for Schengen?
The current political high tide has subsided, yet the watermarks are still visible. Few believe that the proposed adjustment of Schengen rules will resolve the tensions in the long term. Rather, any modifications made will likely paper over the cracks of the current crisis.

Continued Schengen cooperation is predicated on three separate factors: trust, equity, and low political salience, all of which are at a premium in the current EU political climate. It is important to remember that, at the European Summit in June, ministers publicly and unanimously reaffirmed their support for the Schengen space. While they may have concerns, no politician wishes to be at the helm of such a significant backslide from free to fettered movement. Irresponsible public statements and a demonstrated lack of leadership are not just damaging to the Schengen system itself, but also to relationships between Member States and future collaboration in related policy fields.

However, continued cooperation will be more and more difficult to maintain in the absence of common consensus on Europe's future immigration dynamic, particularly as Member States are likely to continue to refer to domestic politics when negotiating at the EU level. In this context, a common immigration policy will be pursued on a prophylactic basis, preventing what are perceived to be the worst excesses of nonconforming Member States, from border management to policies addressing regularization, and perhaps even citizenship and family reunification laws.

It may be that the European Union is entering a new era of more fragile and less certain cooperation in the area of immigration, and that "saving" Schengen might come at the expense of some of the more ambitious plans held by those seeking a more comprehensive common immigration policy.

Sources

European Commission. 2011. Schengen Governance — strengthening the area without internal border control. Brussels: European Commission. Available Online.

European Commission. 2011. Communication on Migration. Brussels: European Commission. Available Online.

European Council. 2011. Council Conclusions. Brussels: European Council, 24 June.

European Council. 2008. European Pact on Immigration and Asylum. Brussels: European Council. Available Online.

Tanaka, Hiroyuki. 2007. Europe's Disappearing Internal Borders. Washington, DC: Migration Policy Institute. Available Online.