12. The institutions of Justice and Home Affairs:

This chapter analyses the institutions of EU member state cooperation on issues such as asylum, refugee protection, migration, border controls, police cooperation, and judicial cooperation. Once seen as the prerogative of member states and as defining features of states’ identities as sovereign, complex incremental institutional change established new ways of working on internal security issues and reconfigured the strategic setting from which these issues are viewed. The recent history of these developments provides insight into the EU’s institutional and organizational development, while also demonstrating how, why, and with what effects these issues have become politicized in EU member states. The politicization of migration and asylum, in particular, complements this chapter’s focus on institutional developments by identifying the source of key pressures and strains to which these institutions have been exposed. The most recent COVID-19 pandemic restricting the free movement of people across Europe, the 2020 fire that broke out at the Moria refugee camp at Lesbos, and the European Commission’s ‘New Pact on Migration and Asylum’ of September 2020 raised serious questions about the content and viability of key components of the EU’s approach to security and human rights. From being a policy arena that was not even mentioned in the Treaty of Rome or Single European Act (SEA), internal security within an ‘area of freedom, security, and justice’ (AFSJ) is now a key EU priority. This chapter pinpoints key developments, specifies institutional roles, and explores the relationships over time between changing conceptualizations of security and institutional developments.

Internal Border Control in the Schengen Area and Health Threats: Any Lessons from the COVID-19 Pandemic?

The COVID-19 pandemic has exacerbated the Member States’ overreliance on the rules of the Schengen Borders Code allowing for temporary reintroduction of border control and has questioned the institutional narrative of an EU-wide borderless area as a key achievement of the integration process. This article focuses on the legal implications of the border measures enacted by the Member States following the COVID-19 outbreak and discusses their compatibility with relevant EU law, also in the light of available epidemiological studies on the link between border controls and spread of the virus. The analysis contends that the pandemic has offered an unprecedented opportunity to pave the way to shared solutions to the enduring crisis of the internal dimension of the Schengen area, such as a detailed reform of the Schengen Borders Code and a reconsideration of the current governance of the Schengen area itself.

Ceci n’est pas un contrôle: PNR Data Processing and the Reshaping of Borderless Travel in the Schengen Area

Can national authorities perform systematic checks on persons engaged in cross-border travel in the Schengen area without these checks being considered as border checks or as having an equivalent effect to border checks? The present article investigates a specific set of measures that involve the harnessing of “new technology” to enact systematic controls on persons traveling across the internal borders of Schengen states, through the processing of Passenger Name Record (PNR) data and in the framework of the EU PNR Directive. It argues that PNR data processing should at the same time be understood as part of the alternatives to border checks available for Member States to regulate cross-border mobility in the Schengen area and as a standout among these measures. PNR data processing challenges the existing legal framework of Article 23(a) of the Schengen Borders Code (SBC) as well as the assessment framework developed by the CJEU in its relevant case-law, not because it contravenes Schengen rules, but because it stretches and overflows them. Ultimately, PNR data processing puts into question the very understanding of what checks performed in relation to the act or intention of crossing a border actually stand for or whether controls related to border crossings can be characterised as border controls.

Schengen Borders and Multiple National States of Emergency: From Refugees to Terrorism to COVID-19

The re-introduction of intra-Schengen state border controls has been a constant feature of the area since the abolition of those controls in 1995. The seriousness of the controls introduced and the justifications which have been put forward for them have varied substantially. At the moment there are three overlapping regimes of temporarily reintroduced border controls in the area: those reintroduced to counter terrorism, those reintroduced to counter so-called secondary movements (the movement of people seeking international protection within the Schengen area) and those introduced to counter the spread of COVID-19. The article examines the three frameworks of temporary controls, the justifications provided by states using them for their operation, and the response of the EU institutions.

The ”foreign” virus?

In response to the COVID pandemic, the Norwegian government implemented the strictest border controls in modern Norwegian history, barring entry to most foreign nationals. The Prime Minister, Erna Solberg, justified these policies with reference to the rise of new COVID variants and the need to limit visitors to Norway as much as possible. As this approach has severe adverse effects on many people, there is a need to critically examine the justification given for closing the border. In this paper, we argue that while many border restrictions are legitimate, (1) the arguments given for the recent banning of entry for groups of people are not convincing, and (2) that the ban unduly limits personal freedoms and places an unjust burden on transnational citizens and Norwegians with close relations abroad. Keywords: COVID-19, Border Closure, Border Restrictions, Justice, Sovereignty, Nationalism, Immigration, Freedom, Ignorance

The paradigm of the migration crisis and its influence on national legislation on irregular migration

The aim of this article is to provide a detailed study of the ways in which the paradigm of crisis has influenced the law and practice of European countries in the field of irregular migration. Bearing in mind that the perception of “crisis” is ambiguous and does not have legal definition, the first part of this paper will provide a clarification of its scope and some contexts in which it is used. Secondly, labelling some situations as “crises” requires some urgent and unusual actions. Hence, it is important to indicate what types of legal measures and normative solutions, therefore, prevail nowadays in the practice of states. The countries that are particularly interesting in this context include Germany, Sweden, and Denmark, whose migration policies have, over the course of the past few years, decisively shifted from a relatively open approach towards more restrictive solutions. Although the crisis in the migration context is defined bipolarly, a characteristic feature of the paradigm shift is focusing on the elimination or at least limitation of the presence of foreigners on the territory of the statethrough border controls, obstruction of access to international protection and family reunification, as well as increasing the effectiveness of forced returns. The result of these consideration has led to the conclusion that on the one hand the authorities’ rhetoric of crisis not automatically mean the use of special and emergency measures foreseen by law. On the other hand, the narrative referring to defeat and catastrophe justified the introduction of controversial solutions in a hurry, often with disregard for the detailed analyses and regulatory impactassessment, which are common in such cases. At the same time, the determinant of the shape of the migration law is the “temporariness” inherent in the crisis paradigm. One of its most important elements is the departure from long-term residence permits, guaranteeing a certain stability in connection with international protection, in favour of short-term permits.

Az Európai Unió és a tagállamok válasza a COVID–19 pandémiára – a szabad mozgás jogának közegészségügyi korlátozásai

Összefoglalás. A szabad mozgás és tartózkodás joga az uniós polgárság alapintézményének egyik leglényegesebb eleme. A 2020-ban kirobbant koronavírus világjárvány következtében az Európai Unió tagállamai az Európai Unió történetében először kénytelenek voltak radikális, korábban nem alkalmazott eszközökkel korlátozni a szabad mozgás és tartózkodás jogát annak érdekében, hogy megakadályozzák a vírus terjedését. A tanulmány keretében a COVID–19 világjárvány miatt bevezetett korlátozások alapulvételével annak vizsgálatára kerül sor, hogy a szabad mozgás joga közegészségügyi okból történő korlátozása milyen sajátosságokkal bír más, az Európai Unió alapszerződéseiben ugyancsak nevesített kivételekhez (közrend, közbiztonság) képest. A tanulmány ugyancsak vizsgálja azt a kérdést, hogy az Európai Unió által kibocsátott digitális zöldútlevél (vakcinaigazolvány) a Sinopharm és Szputynik-V vakcinával beoltott uniós polgárok számára is biztosítandó-e az uniós jog rendelkezései alapján. Summary. The right of free movement of EU citizens is the cornerstone of Union citizenship. To control the spread of coronavirus (COVID-19) and to protect the health and well-being of all Europeans, Member States gave a surprisingly quick response, taking unilateral restrictive measures affecting the operation of the internal market in an unprecedented way. On the one hand they have implemented serious travel restrictions at internal borders of the EU. On the other hand, several States have coupled travel bans/restrictions with a temporary reintroduction of border controls at their borders with other Members of the Schengen Area. During the first wave of the pandemic, altogether 17 Schengen States sent notifications regarding the reintroduction of border controls, which is particularly disheartening given that the lifting of EU internal border controls in the Schengen Area is one of the integration’s greatest achievements. There is no doubt that the Member States’ restrictions on free movement detailed in the paper are well-founded from the point of view of both public international law and European law. As to how they should be put into practice: that is another issue. Still, it is the preferential role of free movement as a part of integration that requires a deeper examination of controversial measures to ascertain whether these are in compliance with EU legal principles. Among the elements to be reviewed are proportionality and the prohibition on discrimination. It is beyond doubt that COVID-19 can definitely be regarded as a ‘disease with epidemic potential’ that can justify restrictions on free movement. However, the question arises whether Article 29 TFEU provides for the introduction of public health restrictions with general effect. In other words, does it allow for restrictions not based on individual assessment, as opposed to individual threats to public policy and public security? In answering the above question the paper puts a special emphasis on the delimitation of Member States’ public health and public policy/security justifications. At the time of writing (June 2021) several Member States have already started to issue EU Covid-19 passports. The article also seeks answer to the question whether the Digital Green Certificate could (or, at least, should) be provided for Union citizens vaccinated with Sinopharm or Sputnik-V (vaccines approved by Hungary as a Member State, under European Union law).

Changes in perceptions of border security influence desired levels of immigration

Security concerns about immigration are on the rise. Many countries respond by fortifying their borders. Yet little is known about the influence of border security measures on perceived threat from immigration. Borders might facilitate group identities and spread fear of outsiders. In contrast, they might enhance citizens' sense of security and control over immigration. We test these claims using survey experiments run on a nationally representative sample of over 1,000 Americans. The findings show that allocating more government resources to border security increases desired levels of immigration. This effect is likely driven by a sense of control over immigration, induced by border security measures even when the number or characteristics of immigrants remain unchanged. Our findings suggest that border controls, which are widely considered as symbols of closure and isolation, can promote openness to immigration.

Strategizing COVID-19 lockdowns using mobility patterns

During the COVID-19 pandemic, governments have attempted to control infections within their territories by implementing border controls and lockdowns. While large-scale quarantine has been the most successful short-term policy, the enormous costs exerted by lockdowns over long periods are unsustainable. As such, developing more flexible policies that limit transmission without requiring large-scale quarantine is an urgent priority. Here, the dynamics of dismantled community mobility structures within US society during the COVID-19 outbreak are analysed by applying the Louvain method with modularity optimization to weekly datasets of mobile device locations. Our networks are built based on individuals' movements from February to May 2020. In a multi-scale community detection process using the locations of confirmed cases, natural break points from mobility patterns as well as high risk areas for contagion are identified at three scales. Deviations from administrative boundaries were observed in detected communities, indicating that policies informed by assumptions of disease containment within administrative boundaries do not account for high risk patterns of movement across and through these boundaries. We have designed a multi-level quarantine process that takes these deviations into account based on the heterogeneity in mobility patterns. For communities with high numbers of confirmed cases, contact tracing and associated quarantine policies informed by underlying dismantled community mobility structures is of increasing importance.