The future of Schengen

May 4, 2016 - nr.28
Summary

Conclusions and recommendations

a. The right of asylum
There is nothing new about trying to prevent sizeable mixed migration flows from entering Western Europe. Visa checks prior to the departure of planes and ships were introduced with the same aim in mind. However, perfecting such barriers to migration becomes inhumane if victims of persecution have no alternatives to pursue. Dutch and European policy must therefore include support for other forms of reception for refugees. If necessary, it must remain possible to travel to the EU without being in possession of a visa. Those who arrive in the European Union as asylum seekers may not under any circumstances be returned to countries in which they will be persecuted or face other grave dangers. This requirement is one of the foundations of our rule of law and is enshrined not only in the Geneva Convention on Refugees but also in the ECHR, the EU Conventions, and the Charter of Fundamental Rights of the European Union. The AIV is of the opinion that better arrangements for processing asylum applications would constitute an important measure alongside developing a system of ‘green cards’ for (temporary) residence permits for the purpose of employment.

b. Combating abuse
Combating abuses of the asylum procedure improves the prospects of those who are in need of asylum. The management of the external borders of the Schengen area should play an important role here. The EU’s policy seeks to suppress the illegal crossing of borders and the activities of people smugglers in combination with setting up registration centres for asylum seekers from outside the EU. Under the terms of article 12, paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR) and article 2 of the Fourth Protocol to the ECHR, no state may prevent someone from leaving its territory.

Applying for asylum at the external border of the EU or the Schengen area, as the case may be, is not illegal migration. However, if a person has already applied for asylum, or could have done so, in a safe third country from which he or she wishes to enter, and in which he or she will not be subjected to degrading treatment, this person may be denied entry at the border.

To put this into practice, it is necessary to obtain the cooperation of countries of origin to enable the safe return of people who are not entitled to claim asylum. However, some states effectively flout their legal obligation to take back their own nationals. In such cases, concerted political – and if necessary economic – pressure on the part of the EU member states is needed. Consultations with these countries about such matters will go more smoothly where they can be framed within a structural relationship.1

c. Selective tightening of controls at the internal borders
The ‘closure’ of the internal borders between the Schengen countries is not a workable option; not only because it would require a change to the EU Treaties, but also because it would cause disproportionately severe economic and social damage, besides incurring huge costs for fences, checkpoints and border police, to the extent that this would even be practicable. Selective controls along the internal borders, based on intelligence concerning heightened risks, may be useful, helping to combat forms of abuse. Another change too is to be recommended: it would not inconvenience bona fide passengers too greatly to require all persons boarding a plane or a ferry across the Ionian Sea, for instance, to show a valid travel document. This would also prevent at a stroke the use – undesirable from a counterterrorism perspective – of plane tickets by persons other than those to whom they were issued.

d. Closer cooperation within Schengen
The current European Asylum System (EAS) is inadequate and will remain so for the foreseeable future, because the differences between the 28 member states, in all sorts of respects, are too great. Because of this, a small number of states, and in particular Germany, feel obliged to provide protection to refugees from what are currently the worst crisis areas.

The only route to a remotely adequate capacity for processing asylum applications and for the reception of refugees is through the participation of enough countries. The AIV therefore advises establishing closer cooperation within the meaning of the EU Treaty (on the basis of article 20 TEU) between those member states that are able and willing to implement Schengen within the framework of an effective common asylum and migration policy: strict where necessary, but at the same time humane, including in relation to family members who have remained behind. The AIV would refer here to its advisory report on differentiated integration.2 This closer cooperation will need to embrace a fully operational common asylum system, including similar forms of reception and integration, the acceptance of distribution formulas, exchanges of intelligence on abuses in order to combat them, coordination with the UNHCR in relation to resettlement, and agreements about return and readmission with safe countries outside the EU. In other words, a truly common policy must be based – unlike the current noncommittal Reception Directive – on mutual solidarity among the member states concerned and should also, for instance, prescribe reception centres of comparable quality.

This closer cooperation should be set up with as many as possible of the member states that participate in Schengen. In terms of objectives, it should be in keeping with the common ‘area of freedom, security and justice’ (article 67 et seq., TFEU). To prevent the undesirable effects of ‘free-riding’, the non-participating states should be required to at least share the costs. This must be enforced, if necessary, by revising the allocation of resources from the structural funds.

The AIV would prefer not to describe this closer cooperation as a ‘mini-Schengen’. After all, it would not end the Schengen system as such. It would, however, abandon the notion of an all-or-nothing approach to internal border controls, and steps would be taken, with those countries that are able and willing to take part, to achieve a fairer and more even distribution of benefits and tasks. Other member states can continue to take part in the ‘basics’ of the Schengen system (open internal borders in normal circumstances, shared responsibility for the external borders, and a common policy on visas), providing they cooperate in the common management of the external borders and in selective controls at the internal borders (such as verifying travel documents at airports and crucial sea ports).

e. Effective management of the external borders and a standardised approach to asylum seekers
The effective management of the external borders, in accordance with the existing criteria, is urgently needed. The AIV advises setting up a system for the common management of the external borders with all Schengen states and adopting sound standards to this end, including effective legal remedies for those who believe that their asylum applications have been wrongly denied or declared inadmissible. This includes registration, the processing of asylum applications and reception or transfer to another receiving state.3

This must be a two-phase procedure: first establishing, in a secure facility at the border, who can and therefore must immediately return to the country of origin or transit, and who is eligible to have their asylum application processed by a member state to be determined in accordance with a set formula. This formula can rely on a quota proportional to capacity, based on objective factors such as GDP, surface area and population size. It must also take account of the number of refugees who have already been received. It is inherent to this issue, however, that when the numbers exceed a certain figure, a new formula will need to be adopted.

However fervently one may wish that all 28 member states would take part in this second phase, some are incapable of doing so, in some cases because they are already experiencing the full pressure of the increased numbers in the first phase, and in others – including the Visegrad group of states – because political and social factors have given rise to an impasse. One may deplore and condemn this, but such reactions will not lead to a situation in which refugees may be expected to obtain real protection. The states that do enter into closer cooperation will therefore have to take on this task. Those that do not do so must be compelled – as already noted – to share in the costs.

Conclusion
The fact that the AIV recommends striving to achieve these far-reaching changes does not mean that it expects this approach to resolve the situation entirely. The effects will remain limited in the absence of any willingness to intervene effectively in the situations that are driving many people to seek asylum in the EU. As long as people living in a situation of hopelessness in the Mediterranean region see no alternative other than to seek a new future in certain EU member states, the need to respond to this humanitarian emergency will clash with internal tensions in those member states. The political consequences for the political climate in the EU are already extremely grave. The AIV wishes to emphasise that Turkey cannot resolve the refugee problem on Europe’s behalf, even if it is given far greater financial support than has been mooted thus far. Nor can Germany be left to take on the lion’s share of the response to this humanitarian emergency, since – despite its robust economy and its own need for a form of immigration – it cannot bear this burden alone.

This situation, in which millions of people are seeking to escape life-threatening emergencies in regions afflicted by today’s (or indeed tomorrow’s) humanitarian crises, has built up over a long period. It is rooted in many years characterised by a lack of good governance, repression involving human rights violations and the neglect of prospects for socioeconomic development, as well as the appalling brutality of movements such as Da’esh. Those leading the governments or movements concerned bear full responsibility for this. It must however also be acknowledged that, for far too long now, other countries have remained aloof or have intervened only with a view to safeguarding their own interests. No effort has been made to provide security in certain parts of Syria, by military means if necessary, during the civil war that has raged since 2011. At the moment it appears unlikely that the European countries, together with the US and in consultation with Turkey on the one hand and Russia on the other, could at this late stage succeed in creating ‘safe areas’ in Syria, given the sharp divisions that exist between these powers. New developments cannot be ruled out, however. In addition, whatever happens, the UNHCR must play a key role and must continue to advise on the possible onward migration of people for whom a meaningful future in their country of origin is no longer possible. The EU member states must contribute, each according to its ability to do so, and must help Syria’s neighbours – particularly Jordan, Lebanon and Turkey – with the enormous burden and responsibility they are shouldering for the reception of millions of Syrians.

The AIV further recommends setting up a study in the short term, within an international framework, to devise forms of prevention and management in humanitarian crisis situations, not only those resulting from wars but also those caused by the economic, demographic and climatological conditions that may arise in the coming decades. After all, the European Union is no better prepared for such eventualities than are other countries where people may seek refuge.

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1 Advisory Committee on Migration Affairs, ‘The strategic country approach to migration: Between ambition and reality’, 25 November 2015.
2 AIV advisory report, no. 98, ‘Differentiated integration: Different routes to EU cooperation’, The Hague, October 2015.
3 See the ACZV advisory report ‘Sharing responsibility: A proposal for a European asylum system based on solidarity’ (2016), see: <http://acvz.org/wp-content/uploads/2016/03/Sharing-responsibility.pdf>.
Advice request

                                                                                                                                 President

House of Representatives
OF THE STATES GENERAL

Professor Jaap de Hoop Scheffer
Chairman of the Advisory Council
on International Affairs
P.O. Box 20061
2500 EB The Hague

Date     28 January 2016
Re        Request for advice on the future of Schengen

Dear Professor de Hoop Scheffer,

On 26 January 2016, under article 30 of the Rules of Procedure of the House of Representatives of the States General, the House of Representatives resolved to ask the Advisory Council on International Affairs (AIV) for advice on the future of Schengen, specifically:

  1. How the European Commission’s recent proposals for a European border and coast guard relate to the future of Schengen and the alternatives for EU border control.
     
  2. How Schengen relates to the principle of the free movement of persons and goods within the European Union, and an overview of the fallback options for safeguarding this principle if Schengen’s continued existence is threatened.
     
  3. The consequences of a ‘mini-Schengen’, i.e. what the detailed elaboration of this concept would mean in practice.

In light of a limited timeframe, the advice could take the form of a short advisory letter.
 

Yours sincerely,

Khadija Arib
President of the House of Representatives
of the States General

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