Border management policy has witnessed considerable developments over the past decade, with the creation of instruments and agencies such as the Schengen Information System, the Visa Information System and the border agency Frontex. After a short period of consolidation, the challenges linked to the influx of refugees and migrants, as well as heightened security concerns, have triggered a new period of activity, with a shift towards more direct operational support and the Europeanisation of border management policy.
Articles 67 and 77 TFEU.
A single area without internal border checks — the Schengen Area — requires a common policy on external border management. The Union therefore sets out to establish common standards with regard to controls at its external borders and to gradually put in place an integrated system for the management of those borders.
The first step towards a common external border management policy was taken on 14 June 1985 when five of the then ten Member States of the European Economic Community signed the Schengen Agreement, supplemented five years later by the Convention implementing the Schengen Agreement. The Schengen Area, the borderless zone created by the Schengen acquis (as the agreements and rules are collectively known), currently comprises 26 European countries (for more details on the Schengen Area, see 2.1.3).
The rules that make up today’s Schengen external borders acquis, which builds on the original acquis incorporated into the EU legal order by the Treaty of Amsterdam, are to be found across a broad range of measures, which can be roughly divided into five categories.
Firstly, the central pillar of external border management is the Schengen Borders Code, which lays down rules on external border crossings and conditions governing the temporary reintroduction of internal border checks. Secondly, as not all Member States have external borders to control and not all are equally affected by border traffic flows, the EU uses its funds to attempt to offset some of the costs for Member States at the external borders. For the 2007–2013 period, this financial burden-sharing mechanism came in the form of the External Borders Fund. For the 2014–2020 period this has been replaced by the Internal Security Fund: Borders and Visa. The third category of measures relates to the establishment of centralised databases for the purposes of migration and border management: the Schengen Information System (SIS), the Visa Information System (VIS), and Eurodac, the European fingerprint database for identifying asylum-seekers and ensuring the proper implementation of the Dublin Regulation (for more details on Eurodac and the Dublin Regulation, see 5.12.2). Fourthly, there is a set of measures (known as the Facilitators Package) designed to prevent and penalise unauthorised entry, transit and residence. Lastly, there are measures geared towards operational cooperation in border management, centred on the European Agency for the Coordination of Operational Cooperation at the External Borders of the Member States (Frontex).
Now in its second generation, the Schengen Information System provides the information management infrastructure to support border control and the related security tasks of police and judicial cooperation. Participating states feed ‘alerts’ on wanted or missing persons, lost or stolen property and entry bans into the database, which is directly accessible to all police officers and law enforcement officials and authorities who need the information in the database to carry out their work. Where additional information on alerts in the Schengen Information System is required, this information is exchanged via the national network of Serene (Supplementary Information Request at the National Entry) offices established in all Schengen states. These offices coordinate responses to alerts in the SIS and ensure that appropriate action is taken, for example if a wanted person is arrested, a person who has been refused entry to the Schengen Area tries to re-enter, or a stolen car or ID document is seized. The introduction of the second-generation Schengen Information System (SIS II), with new functionalities and features such as biometric data and the interlinking of alerts, was significantly delayed owing to the system’s complexity. Initially due to come on stream in 2007, it eventually became operational on 9 April 2013. It is managed — together with the VIS and Eurodac databases — by the new agency for the operational management of large-scale IT systems in the area of freedom, security and justice, e-LISA.
The aim of the VIS is to improve the implementation of the common visa policy, consular cooperation and consultations between the central visa authorities. The VIS is connected to all visa-issuing consulates of the Schengen states and to all their external border crossing points. At these border points, the VIS allows border guards to check whether the person in possession of a biometric visa is actually the person who applied for it. This is done by cross-checking fingerprints both against the biometric record attached to the visa and across the whole VIS database. Once it has reached full capacity, the VIS is expected to become the largest biometric database in the world. High levels of security are built into the system to ensure that it remains robust and available at all times and that data are only accessed by authorised persons and for authorised purposes. Law enforcement authorities and Europol have access to the system for the purposes of detecting and investigating terrorist offences and other serious crimes. The VIS began operations in all Schengen states’ visa-issuing consulates in North Africa in October 2011 and has now been rolled out across the world.
Like the European internal security architecture, which has been gradually developed through a combination of everyday cooperation, treaty changes and political guidelines from the Tampere Council conclusions onwards, border security has also evolved progressively, from nationally focused systems to greater EU operational cooperation at the external borders. Although day-to-day responsibility for external border control and surveillance continues to lie largely with the Member States, national border security systems are being increasingly complemented by a set of Europe-wide tools to manage potential risks at the external borders.
One of the key milestones in this process was the creation of Frontex. The agency became operational on 3 October 2005 on the basis of Council Regulation (EC) 2007/2004. After successive resource increases, it is currently staffed by around 240 officials and 80 seconded national experts. It is headquartered in Warsaw.
Frontex promotes an integrated approach to border management. It conducts risk analysis, draws up training curricula for border guards, and carries out research. It also plays a more active role in operational cooperation by coordinating joint border management operations and organising return operations. Under its revamped mandate, laid down in Regulation No 1168/2011 of the European Parliament and of the Council of 25 October 2011, Frontex has seen its operational capabilities reinforced, as well as a greater focus on ensuring fundamental rights compliance in its operations. It has also scaled up its surveillance capabilities, through the creation of the Frontex Situational Centre and, latterly, through the establishment of Eurosur, an information exchange system designed to enable near real-time sharing of border data between Frontex and Schengen member states.
Since the creation of Frontex, several practical steps have been taken towards more integrated external border management: some significant upgrades to technical infrastructure; a raft of joint border management operations; and the development of rapid response capability (initially through rapid border intervention teams, RABITs, and, since 2011, also through European Border Guard Teams). The pace of change has quickened with the large-scale loss of life in the Mediterranean over recent years coupled with the huge influx of refugees and migrants. Joint Operation Triton — launched in late 2014 and substantially scaled up in 2015 — is tasked with patrolling the sea border, primarily between Libya and Italy, and brings together staff and equipment from a number of Member States to provide frontline operational support to Italy. In a similar vein, Frontex has played a leading role in another dimension of the response to the challenges facing frontline Member States: the creation of ‘hotspots’, or Migration Management Support Teams. These teams bring together the European Asylum Support Office (see 5.12.2), Europol (see 5.12.7) and Frontex — in partnership with national authorities — to identify, screen and register migrants on entry into the EU, and to organise return operations for those who have no right to stay. Frontex is the lead agency in the EU Regional Task Forces, headquartered in Catania for the ‘hotspots’ in Italy, and in Piraeus for those in Greece. Both the maritime operations and the direct support to Member States at the ‘hotspots’ represent a tangible European response to what is both a humanitarian crisis and a border management challenge.
In many respects, the ongoing influx of refugees and migrants is leading to the Europeanisation of border management. The Lisbon Treaty makes provision for a common border management policy. The Stockholm programme thus called for examination of the feasibility of a European System of Border Guards, a call that was merely repeated five years later in the June 2014 European Council conclusions. Again, the refugee and migrant crisis and persistent criticism from Member States that the EU is failing to control its external borders have prompted the Commission to act. In December 2015 it came forward with proposals to strengthen Frontex’s mandate, in particular by enabling the agency to purchase equipment directly, by significantly increasing its human and financial resources, and by strengthening its role in return operations. Perhaps the most eye-catching aspect of the Commission’s proposals was what it called the creation of a European Border and Coast Guard with the proposed ‘right to intervene’ where a Member State is unable to cope with migratory pressure and is thus jeopardising the Schengen Area. The proposals have yet to be examined by Parliament and the Council, and come in conjunction with proposals to introduce mandatory checks on EU citizens entering or exiting the Schengen Area at land, sea or air borders through a targeted amendment of the Schengen Borders Code designed to enhance security against the backdrop of a heightened terrorist threat. Under the proposed change, citizens would be checked against the SIS database and the Interpol Stolen and Lost Travel Documents Database.
Aside from the obvious focus on dealing with the huge influx of refugees and migrants, the other key development in border policy centres on the ‘Smart Borders’ package, designed to modernise border management by automating border checks and enhancing exit and entry information. The scheme first featured in the Commission’s 2008 set of communications on the ‘EU Border Package’, and subsequently in the 2009 Stockholm programme. On 25 October 2011 the Commission presented a communication on Smart Borders, following this up with a legislative proposal on 28 February 2013. The package, which is designed to speed up, facilitate and reinforce border check procedures for foreigners travelling to the EU, comprises two components:
With doubts surrounding the Commission’s initial costing of the Smart Borders package, question marks over the technical feasibility of the system and misgivings over the projected benefits, the Commission decided to commission a further technical study, which was completed in October 2014. A series of practical and operational tests were carried out in 2015, under the auspices of eu-LISA. The Commission has announced its intention to table a revised legislative proposal in early 2016 following the testing phase.
The European Parliament has had mixed reactions to the development of external border management policy. It has broadly supported the upgraded organisational role of Frontex, often calling for the agency’s role to be further enhanced as the EU grapples with the migration crisis in the Mediterranean. Indeed, in its 2 April 2014 resolution on the mid-term review of the Stockholm programme, Parliament argued that the ‘Schengen external borders should in the future be guarded with the support of European border guards’. In its 10 September 2015 resolution on migration and refugees in Europe, it welcomed ‘the operational support which the Commission will provide to frontline Member States … via ‘Hotspots’’, though also insisting that, to be effective, the approach would require a genuine relocation scheme (see 5.12.2). While Parliament welcomes a more joined-up approach to external border management, it has nonetheless expressed concern over the lack of parliamentary oversight of Frontex and of a robust fundamental rights compliance system.
While Parliament’s view of Frontex’s development has been largely positive, its stance on smart borders has been far warier. It has voiced misgivings over the vast technological build-up and the mass processing of personal data proposed for the external borders, exacerbated by the possibility of law enforcement access to the data and the potential link to the Visa Information System (see above). Moreover, the anticipated costs of the Smart Borders technology, coupled with doubts surrounding its benefits, have left Parliament with a number of concerns. Indeed, in its 12 September 2013 resolution on the second report on the implementation of the Internal Security Strategy, Parliament asserted that ‘new IT systems in the area of migration and border management, such as the Smart Borders initiatives, should be carefully analysed, especially in the light of the principles of necessity and proportionality’. More recently, it followed this up with an oral question to the Commission and the Council in September 2015, asking for their stance on law enforcement access to the system and their views on the relevance of the April 2014 European Court of Justice ruling on the Data Retention Directive (see 5.12.8). Tellingly, Parliament also questioned whether the entry/exit system and registered traveller programme were ‘appropriate and adequate responses to the current and future situation at the EU’s external border’.
See Council Directive 2002/90/EC and Council Framework Decision 2002/946/JHA.