The UK and the Schengen system


The Schengen system is often blamed for the EU’s current refugee crisis as well as the recent Paris attacks. But what is the Schengen system and how does it affect the UK? This blog post answers those two questions in turn, then assesses the link between the system and the recent crises.

What is Schengen?

The Schengen system originated as a treaty between a group of five member states in 1985. A longer, more detailed treaty was then agreed in 1990. That treaty entered into force in 1993, and was put into effect in 1995. The Schengen rules have been part of EU law since 1999, when the Treaty of Amsterdam, one of the major amendments to the EU Treaties, entered into force.

Over the years, steadily more countries have joined Schengen. It now applies to all 28 EU member states, with the exception of six countries: the UK and Ireland (which do not have to join it); Cyprus (which cannot join as long as the island is divided); Romania and Bulgaria (because the Schengen states don’t want to admit them yet); and Croatia (which is not yet ready to join). There are also four associated countries which apply Schengen, even though they are not part of the EU: Norway, Iceland, Switzerland and Liechtenstein.

The main point of the Schengen rules is to abolish border checks between the participating countries, in order to speed up the movement of people and goods. In conjunction with this, there are standard strict rules on external border controls, and standard rules on obtaining a short-term visas, known as a ‘Schengen visa’. Once someone (from India, for instance) holds a Schengen visa, he or she can travel freely through the Schengen area for three months. Those who don’t need visas (Americans for instance) can equally travel through the Schengen area for that period. So can a non-EU citizen who lives legally in the Schengen area (say a Turkish citizen living in Berlin), and who holds a residence permit or long-stay visa.

It was always expected that abolishing border checks might have the undesired effect of helping the ‘free movement of criminals’. Therefore the Schengen system also includes rules on policing and criminal law. For instance, there are laws on enhancing extradition law and the transfer of evidence, as well as police cooperation at the borders (like cross-border ‘hot pursuit’ of fugitives, or surveillance of suspects). The Schengen treaties also created a database known as the Schengen Information System, which lists, for instance, non-EU citizens who should be refused entry into any Schengen state (due to a previous breach of immigration law, or a criminal offence) and people who should be placed under surveillance as security risks.

The Schengen rules have been developed further by the EU over the years. For example, the EU has a comprehensive border code and visa code, and has created an EU border agency (known as Frontex) which coordinates national border guard forces. An upgraded version of the Schengen Information System, capable of including fingerprints and photos, has been in operation since 2013.

Effect on the UK

As noted above, the UK does not have to join the Schengen system. This special status is secured by a legally binding Protocol to the EU Treaties, which was negotiated as part of the Treaty of Amsterdam. If the UK decides to remain in the EU in the forthcoming referendum, this would not mean that the UK would be required to join Schengen, since the Protocol would still be in force. That Protocol cannot be amended or repealed without the consent of the UK, and British law requires another referendum before that could happen. (This is equally true for British non-membership of the EU’s economic and monetary union).

The UK has, however, opted into to the less controversial parts of the Schengen system, namely most of the criminal law and policing rules. A lot of those rules have been replaced by laws applying to the whole of the EU, for instance the European Arrest Warrant (replacing the Schengen extradition rules), which are instead the subject of a different set of opt-out rules for the UK. (That opt-out would also not be altered or rescinded if the UK decided to remain in the EU).

Because of the UK’s opt-out from the main part of Schengen, it can still check people coming from the rest of the EU to see if they are entitled to enter the UK or not. Due to EU rules on free movement of people, the UK must admit EU citizens and their family members, unless there is some indication (perhaps in the Schengen Information System) that they are wanted persons or that they are using stolen passports. However, the entry of anyone else into the UK is controlled by UK law. In other words, the UK still controls its borders as regards most non-EU citizens.

While the existence of the Schengen system may make it easier for would-be entrants to make it to Calais and attempt an unauthorised entry to the UK, the vast majority of unauthorised migrants to the EU do not attempt this. Leaving the EU would not affect the existence of the Schengen system, or give the UK any extra powers to control the entry of most non-EU citizens compared to the powers it has already.

Does Schengen cause crises?

Schengen is obviously not a root cause of the conflict in countries like Syria. While Schengen may make it easier in practice for those who reach EU borders to head for their intended destination, most refugees or unauthorised migrants (even after the large upsurge in 2015) do not head for the EU at all, but remain in neighbouring developing countries. Those who want to come to the EU already have to cross borders and pay smugglers to cross the Mediterranean in order to get there, so it is doubtful that the existence (or not) of further borders is a crucial factor in their decision to come.

As for terrorist attacks, the majority of those carrying out the recent Paris attacks are EU citizens who travelled back and forth from conflict zones to their own country. Most were known to the authorities, who did not take enough steps to keep them under surveillance or to share information between countries. A number of EU measures are already in place (such as the database of terrorist suspects in the Schengen Information System, which the UK has access to) to deal with the situation more effectively, and others are being planned (such as a database on travellers to conflict zones).

By Steve Peers, Professor of EU Law and Human Rights Law, University of Essex.

The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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