Late on Tuesday 6 February, negotiators from the Belgian Presidency of the Council of the EU and the European Parliament, led by French MEP Sylvie Guillaume (S&D), reached a political agreement on the reform of the Schengen Borders Code.
Presented at the end of 2021 (see EUROPE 13255/4), this targeted revision of the Schengen Borders Code was intended to introduce the dimension of the instrumentalisation of migration, respond to the problems of secondary movements of migrants between Member States, ensure better coordination of internal and external border controls in the event of pandemic-type events and, in general, provide a framework for the reintroduction of internal border controls in order to comply with various rulings by the Court of Justice of the EU.
Sylvie Guillaume explained to EUROPE on Wednesday 7 February that, despite the “extremely strong political pressure” surrounding this issue, her team and the other rapporteurs were able to obtain a number of guarantees, starting with “clear deadlines” on the duration of internal border controls, whereas the Council of the EU was defending an approach of never-ending controls.
“The more Member States prolong their measures, the more they will have to justify them”, she noted – the Commission will have to issue an opinion on proportionality after one year.
Parliament did not get its way on everything, she admitted, particularly on the instrumentalisation of migration “which had no place” in this reform, according to her. However, Parliament was able to improve the wording, maintain the arrangements for opening border points and exclude measures relating to the instrumentalisation of asylum seekers or legally resident persons.
Parliament also succeeded in “neutralising” the effect of Article 23 by creating a new procedure for the internal transfer of illegal immigrants from one Member State to another. “There will have to be bilateral cooperation, and a Member State will no longer be able to do as it pleases”.
This procedure, which will exclude asylum seekers and anyone with a legal residence permit, will not be able to be applied in a “chain” or at internal border segments where controls already exist.
Procedures for re-establishing internal border controls. The procedural framework for the reintroduction of internal border controls has been strengthened, with clearer criteria for assessing necessity and proportionality and a reinforced role for the Commission.
Parliament succeeded in including an evaluation from the outset, and Parliament’s role was increased requiring notification from the Member States on the introduction of internal border controls.
Despite this, the agreement provides for an overall increase in the duration of checks at internal borders in the event of a serious threat, both unforeseeable and foreseeable, to public order or internal security.
In the event of such a threat, the duration will be increased from a maximum period of 6 months to a maximum period of up to 2 years. But a clear deadline has been set, with a maximum extension of one year (twice 6 months). A specific EU-wide mechanism for large-scale health emergencies could also be activated by the Commission when a serious threat to public order or internal security jeopardises the Schengen area.
In this situation (a pandemic, for example), internal border controls could be introduced for a period of 6 months, renewable for identical six-month periods as long as the threat persists.
The agreement also sets out restrictions on non-essential travel to the EU. The Council of the EU will adopt an implementing regulation providing for these temporary restrictions, identifying the exempted essential travellers.
New provisions on migration. The two parties have adopted the definition of instrumentalisation set out in the ‘Asylum and Migration Pact’ regulation relating to ‘Crises’.
In the event of instrumentalisation, Member States will be authorised to temporarily close specific crossing points at external borders or limit their opening hours.
With regard to the new rapid transfer procedure for persons apprehended in border areas (Article 23 a), Member States will be authorised - in the framework of bilateral cooperation with, for example, joint police patrols - to immediately return persons who do not have the right to stay in the Member State to the Member State through which the person entered or attempted to enter.
Asylum seekers or people applying for asylum, once they have arrived, will not be affected, but Parliament has had to give way on the inclusion of minors in this internal return procedure, which the Greens/EFA Group considers problematic precisely in terms of respect for the right of asylum or the non-pushback principle.
However, according to some sources, this article would have no practical effect on the ground and could only affect a very small number of people, as it is only intended for people who are completely illegal, without any valid documents. Parliament also succeeded in deleting references to the Returns Directive, which will not be amended accordingly.
On the other hand, it was unable to oppose the introduction of a new ground for re-establishing internal border controls based on an exceptional situation characterised by unauthorised, unexpected and large-scale movements of third-country nationals between Member States.
The EU Council also made a symbolic addition with a new provision on unauthorised mass border crossings by migrants. It provides that where large numbers of third-country nationals attempt to enter en masse in an unauthorised manner by force, Member States may take the necessary measures to safeguard security, law and order.
The agreement will have to be validated by Parliament’s Civil Liberties Committee and the Member States. (Original version in French by Solenn Paulic)