The rise and (temporary) fall of Europe’s Schengen deal

An extraordinary meeting of European Union ministers next week will try to find ways to manage the thousands of people attempting to move through Europe.


As borders come under unprecedented strain, some countries are reinstituting controls which had disappeared under the so-called Schengen agreement.

That agreement enables citizens of 26 European countries to move freely within the member states.

But that freedom of movement is now being curtailed.

Germany is one of a number of European countries that have intensified border checks as thousands of people flood into the European Union from North Africa and the Middle East.

The decision to reinstitute controls on movement through Germany’s border with Austria is seen by some as possibly the beginning of the end of “border-free” travel in Europe.

But the European Commission member in charge of migration, Dimitris Avramopoulos, says it is a provisional measure.

“The temporary reintroduction of border controls does not mean that it is something that it is out of what the Schengen agreement has stipulated very, very clearly. It is a Schengen tool. It was used by Germany, and understand it is not a permanent measure.”

Other areas where passports are now being checked include Austria’s border with Hungary.

SBS correspondent Kerry Skyring is in the Austrian capital Vienna.

He says the border controls are primarily an attempt to slow the numbers of people moving across Europe.

But he suggests they are also being used as a warning to the countries unwilling to take refugees.

“Part of what the countries like Germany and Austria are trying to do is just slow down the flow so they can catch up with accommodation and processing. The other point is to send a message to other European Union countries that, ‘What are the consequences of not all European countries pulling their weight,* in terms of taking refugees?’ And what seems to be the signal from German chancellor Angela Merkel is, ‘A loss of this freedom of movement across borders that Europe has enjoyed.'”

The Schengen agreement, named after the small village in Luxembourg where it was first signed, came into full effect in 1995.

It eliminated passport and immigration controls at the joint borders of the so-called Schengen states, allowing free travel for the citizens of those countries.

At its core is a commitment to free movement, which it holds as a basic human right.

The dean of Murdoch University’s law school, Professor Jurgen Brohmer, says Schengen was a revolutionary agreement.

And he believes there is little to suggest it is failing.

“I think that’s a bit ludicrous. Because, if you look at the whole Schengen legal framework, it does, of course, contain exceptions. It does, of course, contain, legally — and, in that sense, foresee — the possibility of situations where, for limited periods of time to secure public security, member states can react and, on a temporary basis, reinstitute border controls. This is just a reaction to the breakdown of the external borders and to try to get some semblance of control, if only to register people. It is not even designed to reject people to come in. It is just to record them and know that they are there.”

There are also concerns what is known as the Dublin Regulation is being ignored amid the current crisis.

The Dublin Regulation requires people to seek asylum in the first European country they enter.

But Kerry Skyring suggests that is no longer practical.

“The countries on the outer borders of the EU, particularly the southern borders, Greece and Italy are the ones who suddenly had this massive influx. Now they can’t cope, so, once they’ve registered for asylum in Greece, they should all remain there. The European Commission and most European countries are recognising that is not possible. So, they’ve basically ignored the rules — certainly, Germany has, Austria has — as far as people moving on out of Greece and into central and western Europe. And Germany said it was making an exception for Syrian refugees, basically removing the Dublin Agreement, so that people from Syria could move through and not be sent back to, say, Greece or Italy if that was where they first landed.”

The EU is struggling to reach agreement on plans to relocate the thousands of refugees arriving in Italy, Greece and Hungary.

The Czech Republic, Slovakia and Hungary have been among the nations opposed to a relocation plan.

Hungary has taken the hardest line, sealing its border with Serbia with a fence and introducing new laws making what it calls illegal entry punishable by up to three years in prison.

Erno Simon, a spokesman for the United Nations refugee agency, the UNHCR, says people must be allowed to seek asylum.

“If somebody’s an asylum seeker and crosses the green border, crosses the border not at the official border-crossing points, or crosses the border without proper travel documents, proper passport, visa, this is not a criminal offence, this is not against the law. If somebody’s an asylum seeker, (he or she) should not be punished, should not be sanctioned, because of this.”

European Commission vice president Frans Timmermans says sealing borders is not the solution.

“To say, ‘Let’s shut all the borders and keep everybody out’ is unrealistic, populistic and simply impossible. To say, ‘Let’s open all the borders and let everybody in’ is equally unrealistic, because it would seriously harm the European social model. So we need to find a way to combine our collective responsibility before our conscience and before the law.”

In Australia, former prime minister Tony Abbott had said Australia does not face a migrant crisis like Europe’s because the Australian government “stopped the boats”.

But Jurgen Brohmer, the international-law specialist, says that solution could never work in Europe.

“The sheer numbers are just such that they are overwhelmed, they are just overwhelmed, and, hence, that external border regime does not work, as the ‘stopping of the boats’ policy of the Australian government probably wouldn’t work if there was a major civil war in Indonesia and hundreds of thousands, millions literally, would make their way across the little bit of water between Indonesia and northern Australia there. I’d like to see the ‘stop the boats’ policy then. If you have a boat coming every now and then, that’s not so difficult, but if you have hundreds of thousands of people moving at the same time, who have lost everything and (have) little else to lose, things get a bit more difficult.”

Professor Brohmer says, in the end, policy solutions can only have limited impact.

He says it remains to be seen how the flow across the Mediterranean can be stopped.

“If the water rises too high, then the dam won’t protect you. And I think that is, in essence, what we will be looking at and where the answer will be found as to whether these legal regimes will be able to actually funnel that through orderly procedures, Dublin and Schengen, and whether that will be sufficient for the member states to deal with this crisis.”