EU's Schengen area is likely to unravel

Analysis

In its current form, the Schengen area seeks to combine free internal movement with national control over its external borders.

Schengen flaws

The current Schengen system appears to be unsustainable, owing to a number of fundamental flaws. It leaves all states vulnerable to the security lapses of any state that fails adequately to secure the external border; and places an unfair burden on states on the external frontier, such as Greece and Italy, which are expected to secure the external border on behalf of other Schengen states.

Common European Asylum System

The Common European Asylum System, comprising a body of EU law establishing rules and common standards for EU states' processing of asylum claims, also has fundamental flaws, especially when combined with Schengen.

The system creates perverse incentives for both asylum seekers and governments:

National treatment

Differences in national treatment of asylum seekers give asylum seekers incentives to travel within the EU to countries where they can expect to be granted asylum and given better treatment. Governments that have offered more generous treatment of asylum seekers come under pressure for a 'race to the bottom', lowering standards of support so as to reduce their attractiveness to asylum seekers.

Dublin Regulation

The Dublin Regulation holds that the first EU state entered by an asylum seeker can be held responsible for processing his or her asylum claim. Under the system of 'Dublin transfers', asylum seekers found in one EU state after having been registered in another can be returned to the state of first registration.

The regulation places an unsustainable burden on frontline states, such as Greece, Hungary and Italy, and gives their governments an incentive to encourage refugees to continue to their preferred destination countries, such as Germany, without being registered in their state of first entry.

In August 2015, the Dublin system broke down when Germany unilaterally suspended the regulation for Syrian asylum seekers arriving in Germany. However, Germany has subsequently felt obliged to reintroduce temporary border controls on its southern border with Austria.

Border controls

Six Schengen states have currently officially introduced temporary controls on Schengen internal borders: Austria, Germany, Malta, Norway and Sweden were joined by France, following the November 13 Paris terrorist attacks (see FRANCE: Paris security response to raise complications - November 20, 2015).

The temporary reintroduction of internal border controls is permitted under Schengen rules, but -- including renewals -- normally only for a maximum of six months. Given that Austria and Germany have had controls in place since September 2015, the EU policy debate now centres on possible mechanisms for prolonging controls beyond March 2016.

Under existing Schengen rules, controls lasting longer than six months -- with a maximum of two years -- would be possible only by invoking Article 26 of the relevant EU regulation. This relies on the identification of "persistent serious deficiencies" in external border control that constitute a "serious threat to public policy or internal security" in the Schengen area.

Greece's acceptance of further EU assistance in managing asylum seekers appears to have deflected the Article 26 prospect for now, but the option is reportedly still to be on the table at the next EU summit, on December 17-18.

EU policy responses

The EU's planned response to the refugee and migrant influx has several elements (see EU: Permanent asylum reforms will be hard in crisis - September 11, 2015). However, national leaders have failed to deliver on these policies. For example, new trust funds for Syria and Africa remain underfunded. Asylum processing 'hotspots' in Greece and Italy are barely functional, as EU governments have not provided the number of seconded officials requested by the European Asylum Support Office.

Under the scheme to relocate 160,000 refugees from Greece and Italy to other EU states, governments have pledged only just over 3,000 places so far; Hungary and Slovakia are challenging the scheme in court; and Poland under its new government may also refuse to participate. According to figures from the European Commission on December 3, only 159 refugees have been relocated so far.

Paris attacks impact

The Paris terrorist attacks increased the premium on the security checks conducted on those arriving at the external Schengen border, because it appears that at least one of the attackers gained access to the Schengen zone by arriving and registering as a refugee in Greece.

The Paris attacks also added a counterterrorism concern to concerns over the abolition of internal borders under Schengen, since the known attackers were French or Belgian nationals making use of unrestricted movement between the two countries to plan and carry them out.

On November 20, in response to the attacks, EU justice and home affairs ministers agreed to tighten external Schengen border controls. EU citizens entering or leaving Schengen will now be screened against pan-European databases for links to terrorism or crime, a process hitherto applied only to non-EU nationals. All those entering the Schengen area illegally will be subject to registration, finger-printing and security checking against international databases.

Governments also called for agreement on long-stalled Passenger Name Record (PNR) legislation. This was reached on December 4, after the European Parliament agreed to a compromise. The legislation will oblige airlines to provide governments with passenger data for flights entering or leaving the EU, and allow governments to collect data on some intra-EU flights.