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Schengen and migration rights should not be compromised in crises  

​ European Committee of the Regions rejects unilateral closures of Schengen borders during crises and urges the EU and states to consult regions.

Restrictions at the EU's internal borders should be re-introduced in crises only as a last resort and with EU consensus, in ways that minimise disruption for border regions, and are limited in time, the European Committee of the Regions has said in response to European Commission proposals to change the Schengen Border Code. The revisions – which would cover the 'Schengen Area' that enables free movement within 22 EU and non-EU countries – follow the experience of uncoordinated closures of national borders during the COVID pandemic.

The proposals also directly address the challenge posed by countries neighbouring the EU that have eased their border restrictions to encourage large-scale unauthorised movements of third-country nationals onto the EU and to put pressure on the EU's external borders. The problem – termed the 'instrumentalisation' of migration in the proposals – was brought to the centre of public attention in 2021 by Belarus, when it started to organise flights and internal travel to facilitate the transit of migrants towards the EU.

The rapporteur for the CoR's opinion on the revised Schengen Area governance, Antje Grotheer (DE/PES), vice-president of Bremen City Parliament, said: "The unmanaged closure of national borders during the COVID pandemic was deeply disruptive for border regions and the freedom of movement. We need to limit the impact of internal border checks on border regions. When faced with the instrumentalisation of migrants for political purposes, we need a clear and restrictive definition of the term at European level, leaving no room for misinterpretations, and we should direct our efforts against the governments responsible rather than penalise the people who become victims of such actions."

The Commission's proposals to amend the Schengen Borders Code clarify and tighten the criteria when EU member states can impose checks at internal borders. The CoR opinion, adopted by an overwhelming majority, welcomed this overall effort. In particular, the CoR backed requirements to consider the likely disruptive impact on the social and business life of border regions, and to include mandatory consultation with local and regional authorities.

Debate within the CoR focused heavily on ensuring that border management is efficient, effective and does not harm regions or curtail the right to asylum for migrants, many of whom – the opinion noted – are minors. The CoR argues in its opinion that the proposed definition of 'instrumentalisation' of migration is overly broad and lacks clarity, that the impact assessment accompanying the Schengen proposal is incomplete and that the proposals create too many opportunities for derogations, to the potential detriment of asylum-seekers. The CoR's newly adopted position suggests putting in place tangible quantitative and qualitative criteria for qualifying a situation as 'instrumentalisation' and only use it if the member state affected is in a position to justify why the nature of such actions puts at risk essential state functions.

A decision on when the term is appropriate should be taken at the EU level, rather than by individual member states, and should not be used in ways that lower protections set in international asylum law, the CoR declared. The CoR said the term should not be applied in ways that restrict humanitarian-aid operations by non-state organisations. To help prevention efforts, the CoR also called for EU delegations to provide regular situational reports.

Background

In 2020, the European Commission presented a Pact on Migration and Asylum in which, among its numerous proposals, it said that it intended to update the Schengen Area rules in order to boost the 26-country bloc's resilience to serious threats and to adapt the Schengen rules to evolving challenges. It proposed a new Schengen strategy and a revision of the Schengen Evaluation and Monitoring Mechanism in June 2021. The regulation voted on by the CoR on 12 October 2022 – the Schengen Border Code on the rules governing the movement of persons across borders – was presented by the European Commission in December 2021.

In April 2022, the Court of Justice of the European Union ruled that the reintroduction of internal border controls must be limited to six months even in the face of a serious threat, unless a new threat emerges.

Contact:

Andrew Gardner , press officer, +32 473 843 981.

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