The main changes that the European Commission proposed on Tuesday 14 December to the Schengen Borders Code were: a collective decision when a threat affects several Member States, such as in the case of hybrid crises; more extensive justification for re-establishing controls at its internal borders; a response to the phenomenon of secondary movements with the possibility of sending migrants back to other Member States.
In Strasbourg, Vice-President Margarítis Schinás and the Commissioner for Home Affairs Ylva Johansson gave assurances that this reform must preserve the free movement zone, which has been seriously tested since the migration and terrorist crises of 2015–2016, and more recently with the pandemic.
The Commission also had to ensure that its proposals respect fundamental rights, including the right to asylum, since NGOs and left-wing parts of the European Parliament criticised the temporary measures that were recently proposed for Poland, Lithuania and Latvia.
It also had to strike a balance between the sovereign right of Member States to reintroduce internal controls and the need to consider the impact of these measures, particularly with regard to cross-border regions, which it proposed should be included in the risk assessment criteria.
While there was some confusion over the last few hours about including provisions on secondary movements in the revision, it was finally decided that the Pact on Migration and Asylum should remain the principal framework for dealing with these phenomena. However, as suggested in a provisional working text (see EUROPE 12851/1), joint police patrols operating in border areas, as proposed on 8 December in the Police Cooperation Code, will be able to intercept irregular migrants who are about to arrive in the territory of a Member State and can return them to the neighbouring country or the Member State from which they are believed to have arrived.
It will also be possible for Member States to reintroduce internal border controls in the event of ‘large unauthorised movements of people’ under a new Article 25.
Regarding the instrumentalisation of migrants, the text proposes, as expected, a precise definition that takes into account the intention of a third country to harm and destabilise a Member State.
Member States will be able to immediately decide to reduce border crossing points and to strengthen surveillance at their borders. Furthermore, on the basis of a finding by the European Council that this threat indeed constitutes instrumentalisation, they will be able to authorise the Member States in question to derogate from the texts on asylum or returns.
With regard to this last point, the European Commission has proposed a special regulation on asylum and migration in situations where instrumentalisation is taking place. The text provides for longer registration periods for asylum applications of 4 weeks, derogations from the Return Directive and options not to grant the same material conditions to these people. The Commission is of the opinion that these cases of instrumentalisation could not be included in other situations of crisis or force majeure, since they do not necessarily involve large flows of people.
On the topic of external borders and the response to the pandemic, the Vice-President noted how poorly Member States have implemented the recommendations on non-essential travel to the EU. An EU Council Regulation on a proposal from the Commission could then be adopted to ensure that Member States behave in a uniform manner.
Looking at the internal aspect and the preserved right of Member States to carry out checks at their internal borders, a report will have to be made every six months, with an assessment of the risks and mitigation measures for neighbouring countries or frontier workers. Member States will be able to carry out these checks for up to 24 months on the basis of the risk of terrorism, a major health threat, or large unauthorised movements of people. However, the European Commission recognises that these situations could last beyond two years. It will then issue an opinion after 18 months, which the country will have to take into account.
A mechanism for a joint response to a threat affecting several countries is also foreseen. In this case, it would be an EU Council decision that would regulate the introduction of internal border checks in several countries for renewable periods of six months.
Alternatives to domestic checks and controls. In all cases, the European Commission encourages Member States to opt for alternatives, such as police cooperation or the use of Passenger Name Records (PNR).
Link to the Schengen Borders Code Regulation: https://bit.ly/3dNQ2OL
Link to the Regulation on asylum and migration in situations of instrumentalisation: https://bit.ly/3dPTpEJ (Original version in French by Solenn Paulic)