Restoring the Borderless Schengen Area: Mission Impossible?

Since 1990, when the Schengen convention was adopted, many of the EU’s internal borders have effectively been abolished. However in recent years Schengen states have reintroduced frequent and extensive checks and controls.

These reintroductions, justified by the influx of migrants since 2015, the COVID-19 pandemic and concerns about terrorism, have not always followed the required procedures. Hence the EU Commission’s initiative to ‘Save Schengen’, notably by amending the Schengen Borders Code in an attempt to restore the borderless nature of the zone while addressing member state concerns.

In this European Policy Analysis Professor Steve Peers (Royal Holloway) makes a legal assessment of this attempt. First, he describes the existing legal framework: under what circumstances are checks and controls allowed, and for how long? And secondly, he analyses the recently agreed amendments to the Borders Code and places them in the context of wider changes to EU justice and home affairs law, such as the migration and asylum pact.

Peers finds that these changes are not likely to lead to the sustainable restoration of a borderless Schengen zone: Member States will be able to reintroduce internal border controls for longer periods of time. And while the changes do not justify illegal pushbacks to unsafe countries, there is a lack of clarity in the relationship between the revised Borders Code and the revised EU asylum laws.

The author therefore ends with some recommendations on how to protect the principle of avoiding internal border controls – an issue of legal, political and economic relevance to the EU as a whole. One conclusion is that political and economic arguments will be essential, as the legal pressure to do so is now reduced.