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Human Rights

Border Control by Another Name

WARSAW, Apr 1 2013 (IPS) - Crossing the Belgian-German border in the heart of Europe should be a smooth experience, with no border controls, since the Schengen free movement area came into existence. Yet identity checks at this border and others inside Schengen are not uncommon, despite the contorted logic applied to prove their legality.

The Schengen area, included in the structure of the EU in 1997, is touted as one of the proudest achievements of European integration. Including most EU countries apart from the UK, Ireland, Romania and Bulgaria, plus non-EU states Norway, Iceland, Liechtenstein and Switzerland, it guarantees people the right to move freely within the Schengen space. It literally means no border checks between these countries.

The checks that happen today at these borders are not border controls, at least from a legal perspective.

They are, rather, national controls of identity documents that take place in areas very close to Schengen borders, sometimes as close as 500 metres.

As an example, as soon as a train enters Germany from Belgium, the German police could be checking documents of some of the travellers, often entire wagons. It is usually a neat affair to which hardened European travelers have gotten used: show your passport or some recognisable national ID and go through.

Occasionally, things get messier: the police might not recognise an Eastern European national ID, so name and birth date have to be verified with police headquarters; more dramatically, travellers without proper IDs are taken off the train, in which case the police also go through the motions of separating the person from other travellers until he or she is removed from the vehicle.

According to the European Commission (the EU executive), two core features distinguish these national checks from border controls: (1) their spirit: “police measures may not be considered equivalent to border checks when they do not have border control as an objective, are based on general police information and experience regarding possible threats to public security and are aimed, in particular, at combating cross-border crime”; (2) their execution: they cannot be systematic, but rather should be spot checks, and they should be subjected to limitations regarding their frequency and intensity.

The German Ministry of Interior, responding to IPS on what distinguishes their national ID checks in border areas from border control, replied that “these police questionings are not associated with the act of crossing the border but determined by the context, knowledge and experience of the controlling officer” and “particularly serve to prevent and stop illegal entry and thus the combating of trafficking.”

According to political blogger Jon Worth, who writes about Schengen breaches, there is one more important distinction that should exist between these two types of checks: the nature of the identification documents that have to be presented.

While in some countries, a driver’s licence would be enough to satisfy the conditions of a national ID check, the police of those countries can insist on seeing passports close to the border. Or Swiss police claiming to do customs controls (the country is not a part of the EU Customs Union) asks to see passports but not luggage or sums of money in possession of travellers.

“The heads of police know very well what national ID checks in border areas should look like to be compatible with Schengen,” Worth told IPS, “but this distinction often gets lost with the officers on the ground.”

Asked by IPS about how the Commission monitors national ID checks, the office of Home Affairs European Commissioner Cecilia Malmstrom explained that the EC is currently investigating, either on its own initiative or following complaints from citizens, any potential national checks that are equivalent to border controls, and can take punitive measures if needed.

Moreover, a Commission proposal to update the Schengen legislation would give the EU executive the means to make more systematic controls of national behaviour; the proposal, still to be approved by the other two deciding bodies in the EU, the Parliament and the Council, has so far met with resistance from some member states.

Meanwhile, Jon Worth is preparing to launch a website mapping experiences of travellers that appear to be Schengen breaches.

“The European Commission is aware of the problem and is concerned about such breaches, but for the moment it lacks the data to back illegality claims as well as the capacity to conduct thorough checks,” Worth says. “Our website is meant to provide the Commission with examples of where national ID checks could be used systematically as border controls so that they can be properly investigated by the European executive. We want to make sure EU law is applied correctly.”

Christian Kaunert, an expert in EU Justice and Home Affairs at UK’s Dundee University, explains that such national ID checks may be legal, but they nevertheless go against the spirit of Schengen.

“These types of checks are not new, they have always existed in one form of another since the introduction of Schengen, and have been only one of the manifestations of the dichotomy between the desire for further integration and the wish to maintain sovereignty that is at the core of the EU,” Kaunert told IPS.

“What is happening now, though, is that some of these interventions against Schengen have become very high profile and go very strongly against the spirit of Schengen,” Kaunert says. “This is made possible by the current political climate in Europe in which, because of the economic crisis, populist anti-migration discourses which have been on the rise over the past decade in many European countries are playing very well.”

According to Kaunert, the national controls are just one of the manifestations of the current predominance in the EU of security concerns over more freedom and more integration.

Another relevant example is the continuous postponement of the entry of Romania and Bulgaria, the newest EU members, into the Schengen area, despite the two countries having met all the technical conditions for joining.

Kaunert argues that the refusal of these countries’ entry to Schengen must be seen in the context of a fear that migrants incoming via Turkey, currently blocked by Greece, could find new routes via Bulgaria and Romania.

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