Work is progressing well in the EU Council on the reform of the Schengen Borders Code presented in December (see EUROPE 12853/1) and, although some delegations have strong reservations on several aspects, the French Presidency of the EU Council is still aiming to validate a first approach in June.
As the reform introduced new elements related to the instrumentalisation of migration, as was the case with Belarus at the end of 2021, or provisions allowing secondary movements within Member States to be tracked down and readmitted on the other side of a border, it is logically on these points that the first frictions were concentrated.
Among the grievances: a not entirely satisfactory definition of instrumentalisation as well as a new Article 23-a on readmission procedures of persons in an irregular situation in the neighbouring Member State, which remains controversial and, according to one source, “does not have a consensus at all”.
However, this reading is considered a little too pessimistic by others, who believe that these differences can be overcome and that the general assessment of the Member States of the reform is rather positive and constructive.
On the issue of instrumentalisation, the French Presidency has tried to reconcile the points of view and even those of the countries that want the European budget to finance anti-migrant walls at the external borders.
The latest compromise from February supports them by stating that “stationary or mobile physical infrastructure” can be used as a means to strengthen the surveillance of external borders. However, there is no link to European funding, which is still ruled out by the Commission and a majority of Member States.
On the definition of instrumentalisation, Member States criticise both a too broad, too rigid or too complex approach. Greece and Cyprus defend a sufficiently flexible definition that covers actions such as those of Turkey in spring 2020, where the Presidency replaced the fact that a state or non-state actor introduces migratory flows by the fact of introducing illegal immigration.
The inclusion of non-state actors in the definition has been commented on by the Commission, which has warned that this could include asylum seekers.
But it is especially on Article 23-a, dealing in particular with the issue of secondary movements of migrants, that, according to two sources, work is proving the most difficult. This article provides for a procedure for the transfer of irregular migrants apprehended at internal borders in the framework of cross-border police cooperation to the Member State from which they came directly.
For some countries, the mandatory requirement of a joint police patrol to do so is problematic, as it could make the procedure more cumbersome and make it difficult to use this new article, which is supposed to improve already existing cooperation on secondary movements.
According to one source, southern countries such as Italy are said to also be annoyed by a measure that will again force them to take back irregular migrants. A request that is even less easy to accept “as these countries of the South are not currently receiving solidarity guarantees” in the framework of the work on the ‘Pact on Migration and Asylum’, which is progressing at a slow pace, this source added. However, according to another source, Italy is still satisfied with the compromise presented and the necessary condition of a joint police patrol to justify these readmissions to the neighbouring country.
For Hungary, which does not want this measure to result in more Schengen evaluations of the Member States, this mandatory requirement for joint patrols would also be an indispensable prerequisite. Belgium is questioning the application of this new article 23-a to minors. The Commission could come back with an informal document explaining the procedure better.
Other differences remain on entry at the EU’s external borders, for example in times of pandemic, with the list of people excluded from restrictions under debate. Countries such as Hungary and Denmark also claim that the Commission has no competence to impose a common decision here.
A new meeting of the ‘Borders’ Group will be held in early April.
Link to the compromise dated 10 March: https://aeur.eu/f/xc (Original version in French by Solenn Paulic)