A new definition of the ‘instrumentalisation’ of migration for destabilisation purposes, with associated measures such as the reduction of legal crossing points for irregular migrants and asylum seekers and the reduction of the opening hours of these crossing points, but also a harmonisation of the rules at the external borders in times of pandemic and new tools to deal with secondary movements, such as additional measures to send migrants back to a neighbouring Member State.
This is what the European Commission could announce on Tuesday 14 December in its amendment to the Schengen Borders Code, according to a draft text seen by EUROPE.
The long-awaited revision of the Schengen Code, which will amend a series of articles, has a triple objective: - respond to the very recent crisis with Belarus and anticipate any new hybrid threat at the EU’s external borders, draw lessons from the pandemic and give the Commission more means to assess the need for internal border controls; - sort out the inconsistent application of recommendations for non-essential travel to the EU; - encourage alternatives to such controls while addressing the problem of secondary movements of irregular migrants with a new article introducing non-admission measures at internal borders.
As suggested in recent days by various sources, the draft text confirms that Member States would in these circumstances have an enhanced capacity to return such persons to the neighbouring Member State.
Another proposal should be presented in parallel with these amendments to the Schengen Code, namely: a proposal on exceptional asylum and return procedures to deal with situations of instrumentalisation and to manage “in a humane, orderly and dignified manner, with full respect for fundamental rights, the arrival of persons instrumentalised by a third country”. According to some sources, this proposal could take the form of an amendment to the regulation on crises and situations of force majeure, which is part of the Pact on Migration and Asylum.
While this project is not final and may still evolve between now and Tuesday, here is what it proposed until now.
On the instrumentalisation of migration, a new definition would be inserted in a new article. The instrumentalisation of migrants would then refer to “the situation in which a third country causes irregular migration flows into the Union by actively encouraging or facilitating the movement of third-country nationals to or from its territory to the external borders of the Member States, and where these actions indicate a risk of abuse”.
The definition is also expected to specify that “such actions are indicative of an intention to destabilise or exert political pressure on the Union or on a Member State where the nature of the actions is such as to jeopardise essential state functions”. The measures associated with this definition, in addition to the reduction of legal crossing points, would involve a risk assessment through the use of Frontex and recommendations to the countries concerned in these specific cases of instrumentalisation.
Enhanced surveillance measures at these exposed areas of the external borders will also be encouraged with increased use of drones, movement sensor tools and mobile units in areas where irregular crossings are known to be high.
On the internal border controls and the lessons drawn from the pandemic, the Commission already wants that Member States can apply the same measures at their external borders in times of a pandemic. This is despite the fact that they have implemented the 2020 recommendation on non-essential travel to the EU very poorly and very differently. The Commission will reportedly have the opportunity here to propose a regulation and uniform parameters.
Member States will remain sovereign in re-establishing internal border controls to deal, for example, with the risk of terrorism, a pandemic or large movements of people between Member States. For such unforeseen risks, the immediate controls, planned for one month, could be extended to up to two years. However, the Commission recognises that these measures may still need to be sustained if the threats persist. The Commission plans to make an assessment of proportionality after 18 months. After two years, Member States would be obliged to provide a notification justifying the need to extend their measures.
The Commission is expected to establish new criteria for Member States to better assess the need for these internal border control measures (whether they are appropriate and what impact they have on people’s lives and the economy).
If a State wants to notify an extension of controls, it will also have to take into account a new criterion: the impact over time on “transboundary regions”, for which specific mitigation measures are expected to be implemented.
The Commission would also establish a new decision-making mechanism if several Member States are faced with the same threat and therefore have to introduce controls or if they are inconvenienced by controls carried out by their neighbours. A decision to reintroduce controls might be taken here on the basis of a Commission proposal.
The provisional text also gives pride of place to alternative measures to controls, which the Commission wants to encourage through new police cooperation tools.
In this context, the proposal introduces a new article on the possibility of refusing entry and returning irregular migrants to a neighbouring Member State in a simplified manner. The aim of these joint police patrols, proposed on 8 December, is to implement this simplified return procedure.
This would also involve a targeted amendment of the Returns Directive allowing Member States to put in place more effective bilateral readmission agreements and arrangements. (Original version in French by Solenn Paulic)