Fundamental Rights as the Cornerstone of Schengen

Although the Schengen Border Code (SBC) explicitly obliges Member States to apply the Schengen rules in full compliance with the fundamental rights, Member States’ adherence to this obligation can be questioned in light of recurrent and reliable reports about fundamental rights violations at the EU’s external borders. This contribution will examine why, apart from the deficiencies in the SCHE-VAL mechanism, the current response towards fundamental rights violations at the border is ineffective. First, it will analyse the legal framework, including the implementing rules, to see if additional guidance is needed. Second, the enforcement mechanisms will be examined: how are violations being addressed at the national level, and how does the EU Commission perceive and fulfills its role regarding enforcement of compliance? As the Commission has often referred to the monitoring mechanism as proposed in the draft Screening Regulation, the contribution will examine to what extent this New Pact file will help to resolve the current impunity. Finally, the article will analyse the role of Frontex regarding human rights violations by Member States. What is their responsibility, how do they perform it, and who is enforcing compliance by Frontex?

Schengen and the Administration of Exclusion: Legal Remedies Caught in between Entry Bans, Risk Assessment and Artificial Intelligence

To create an area in which persons can move freely, the Schengen states committed to control their external borders to prevent irregular immigration and the entry of third-country nationals (TCN s) who are considered to be ‘a public order and security risk’. The exclusion of ‘unwanted aliens’ can be based on the mutual enforcement of national decisions, such as entry bans reported in the Schengen Information System, or objections against the issuing of a Schengen visa, based on the consultation procedure in the Visa Code. This contribution focuses on the right of TCN s to have access to effective remedies, both with regard to existing and newer mechanisms of exclusion. It argues that when dealing with the use of large-scale databases and risk assessment as basis for excluding admission, existing rules and case-law by the CJEU should be taken into account to ensure access to effective judicial protection for TCN s.

Artificial Intelligence (AI) at Schengen Borders: Automated Processing, Algorithmic Profiling and Facial Recognition in the Era of Techno-Solutionism

Since the past three decades, an elaborate legal framework on the operation of EU-Schengen information systems has been developed, whereby in the near future a series of personal data concerning almost all third-country nationals (TCN s) with an administrative or criminal law link with the EU/Schengen area will be monitored through at least one information system. This article provides a legal analysis on the embedment of Artificial Intelligence (AI) tools at the EU level in information systems for TCN s and critically examines the fundamental rights concerns that ensue from the use AI to manage and control migration. It discusses automated risk assessment and algorithmic profiling used to examine applications for travel authorisations and Schengen visas, the shift towards the processing of facial images of TCN s and the creation of future-proof information systems that anticipate the use of facial recognition technology. The contribution understands information systems as enabling the datafication of mobility and as security tools in an era whereby a foreigner is risky by default. It is argued that a violation of the right to respect for private life is merely the gateway for a series of other fundamental rights which are impacted, such as non-discrimination and right to effective remedies.

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.

Return Sponsorships in the EU’s New Pact on Migration and Asylum: High Stakes, Low Gains

The concept of ‘return sponsorships’ is central to the European Commission’s New Pact on Migration and Asylum, and its ambition to deliver a “fresh start on migration”. Enabling a system of mandatory yet flexible solidarity, the concept is designed to overcome the opposing viewpoints that have long marked political discussions over responsibility-sharing within Europe. This article critically considers whether return sponsorships can work in practice. It identifies three challenges. First, the proposal’s envisioned solidarity measures lack predictability and tangibility. Second, return sponsorships will create new vulnerabilities for those issued return orders. Third, the mechanism is informed by the improbable assumption that more conditionalities vis-à-vis third countries will substantially increase the EU’s return rate. Overall, the Commission is taking a considerable risk. The return sponsorship concept will likely prolong the polarised discussions among Member States and provide only modest support to countries at the EU’s external border.

Border Walls, Pushbacks, and the Prohibition of Collective Expulsions: The Case of N.D. and N.T. v. Spain

This essay explores the impact of N.D. and N.T. v. Spain on the ECHR system. The case deals with the immediate return of aliens at Melilla’s border fence. Based on conceptual analysis, the author submits to critical scrutiny the arguments developed by the ECtHR. The Court’s reasoning is framed within the riveting interdisciplinary debate on external border control. The Grand Chamber’s final decision reduces the scope of the protection offered by Article 4 Protocol 4, for it introduces a highly indeterminate exception to the prohibition of summary returns at the border. The author suggests that this solution might favor non-entrée strategies and promote the current trend of externalizing the asylum procedures. Introducing broad exceptions to the prohibition of collective expulsion, especially if coupled with strong presumptions in favor of States, increases the effectiveness of border walls qua accountability waivers.