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.

Maria Lourdes, a Cuban, has two passports, one from the island and another from Spain, but until now traveling was only a dream.

“With the new regulations it will be easier, because as a Spanish citizen I don’t need a visa to leave, but to get to the United States I will still have to go through another country,” she told IPS.

In order to take advantage of a historic new migration policy that came into effect in Cuba on Monday, Jan. 14, this 50-year-old woman expects that her passage will be financed by one of her relatives in the U.S. or Spain, the land of her grandfather, thanks to whom she got this European citizenship.

“My cousin told me that in both countries I could work caring for the elderly. I want to leave to make some money and return,” Lourdes, who says she is “very poor”, added.

However, the severe economic crisis affecting Spain discourages Cubans intending to emigrate, even those more qualified than Lourdes.

The immigration reform, anxiously awaited by Cuba’s 11.2 million people, includes the elimination of permits to leave the country, and renders obsolete the letter of invitation from abroad that was required to obtain the permits.

Both documents had become cumbersome to acquire, and prices soared to about 300 dollars for any trip for personal reasons.

Starting Monday, Jan. 14, it will be enough to have a simple passport, which is issued by the offices that provide identity cards, and of course a visa for the country of travel.

While there are some nations that Cuban nationals can visit without a visa, those of greatest interest, the United States and Spain to name just two, do require it, making entry difficult.

Another Cuban named Teresa, an economist who resigned in 2012 from the company where she held a management position, recently obtained Spanish citizenship for herself and her son.  Now, she is unsure she took the right step to improve their economic situation.

“I notice that my family is not so interested in having me, they advise me to wait a bit, at least to see how things go over there,” she admitted to IPS, referring to Spain’s unemployment crisis.

IPS collected numerous stories about the new immigration policy, many of which bore striking similarities one another.

But for some, the revised law in this Caribbean island comes too late, because they opted some time ago for permanent residence abroad.

The new measures “represent an inevitable correction and an improvement in the country’s relations with its emigrants, though the road to normalisation of ties with the exiled migrants will still be long,” Cuban journalist Boris Caro, who has been residing in Canada for more than a year, told IPS.

A list circulated by the newspaper ‘Juventud Rebelde’ (Rebel Youth), includes points as far away as Vanuatu, Palau and Tuvalu for stays of no more than 30 days without need of a visa.

The only Latin American country that does not require that document is Ecuador, for trips that do not exceed 90 days, while some neighbouring Caribbean islands also do not require it for stays of 28 to 90 days.

Argentina, for example, requires all foreigners, except those from neighbouring countries, to provide a record of the hotel booking that coincides with the days of travel, a travel ticket, itinerary and proof of economic means to afford the stay.  But if a person plans to stay with a citizen who extended an invitation, he or she will need to provide a notarised letter.

In a statement issued last Friday in Havana to accredited foreign media, U.S. State Department Spokesperson Victoria Nuland warned that her country’s immigration policy would not change, and stressed, “Cuban citizens still require a valid U.S. visa or entry authorisation to enter the United States.”

“We continue to encourage people not to risk their lives by undertaking dangerous sea journeys, and we note that most countries still require that Cuban citizens have entry visas,” Nuland added.

The United States is currently the largest recipient of Cuban migrants.

Decree-Law 302, which amends the 1976 Migration Act of Cuba, establishes special regulations for, among others, university graduates and managers who work in activities vital for the country’s social, economic, scientific and technical development. The new rules are designed to preserve the skilled workforce.

Thus, travel authorisation for private matters requires an examination of each particular case, such as those of high-performance athletes, coaches and trainers “vital to the Cuban sports movement”, and mid-level technical expertise needed to maintain health services and scientific and technical activity.

However, additional provisions were rescinded by a ministerial decision in 2004, which created exit obstacles for health sector personnel, an official source confirmed to IPS. That means personnel from that sector will be treated the same as the rest of their countrymen, and enjoy the right to travel freely for personal reasons.

According to the National Bureau of Statistics and Information, Cuban health personnel in 2011 numbered some 265,000 people, of which 78,000 were doctors. Cuba currently has more than 38,000 healthcare employees in 66 countries, mainly in Latin America, Africa and Asia.

In what Havana has denounced as a manoeuvre to promote the leak of professionals from the country, the U.S. implemented a special entry permit (the Cuban Medical Professional Parole) in 2006 to house Cuban doctors who carry out missions in developing countries and are seeking residence in this powerful northern country.

*Marcela Valente contributed to this report from Buenos Aires.