The refugee crisis in the EU is shaking the foundations of the Schengen Agreement. In response to the influx of migrants coming to the continent many Schengen countries are taking measures to deal with this new reality, some more drastic than others. This weekend Germany went as far as to invoke article 23 of the Schengen Border Code (SBC) under which Schengen countries are allowed to temporarily reinstate border controls for security reasons. Although the German decision is technically not a breach of the Schengen Agreement, the decision to reinstate border controls directly touches one of the most important corner stones of European unity. It is for this exact reason that the European Parliament and the European Commission have always been clear on the fact that this action should only be taken as a last resort.
Germany is not the only country taking action. With the permeability of the external borders as a given fact, more countries are looking into ways to monitor internal cross border mobility. Besides Slovakia and Austria the Netherlands has also called into force some new measures. Yet despite what is being suggested in some media, the Netherlands is neither following the German example nor introducing border controls “all of a sudden”. But what are the Dutch doing then?
The Dutch Mobile Security Monitor
The Netherlands is increasing the intensity of the so-called Mobile Security Monitor (in Dutch: Mobiel Toezicht Veiligheid): spot-checks that can be carried out in border areas under article 21 of the Schengen Border Code. Article 21 SBC makes clear that lifting border controls – as is central to the Schengen Agreement - does not mean giving up all forms of control. Indeed, national police forces are still permitted to carry out controls in border areas, subject to the conditions as described in the SBC and as long as these controls do not have an effect equivalent to border checks. As such, border controls cannot be conducted in a systematic way and must not be the objective of such practices.
The Mobile Security Monitor (MSM) is carried out by the Royal Netherlands Marechaussee (RNM, in Dutch: Koninklijke Marechausse). Based on article 50 of the Aliens Law (Vreemdelingenwet) and article 4.17a of the Aliens Decree (Vreemdelingenbesluit), the RNM has the authority to patrol in a 20 km zone around the Dutch-German and Dutch-Belgian borders. In this 20 km zone, people entering Dutch territory (either by plane, train or motor vehicle) can be asked for their identification papers as well as residence permits, without the necessity of there being any reasonable suspicion.
The goal of the MSM is to combat illegal migration into the country as well as certain forms of cross-border crime such as people smuggling and identity fraud. As a result of two rulings of the Court of Justice for the EU – the Melki/Abdeli Case and the Adil Case – the frequency and intensity of the MSM have been limited. According to article 4.17a section 4, checks on the road can be carried out for 6 hours a day with a maximum of 90 hours a month. Limitations also apply to the number of trains and planes that can be checked on a daily and a monthly basis. According to the Court, these limitations were necessary to guarantee that the practical exercise of the power to carry out identity controls in border areas did not have an effect equivalent to border checks.
The Dutch response to the new migration reality: not closing borders
So what is going on in the Netherlands right now? What are the new measures that the government has taken in response to the growing number of migrants crossing the external borders of the EU?
The Netherlands is neither closing its borders nor introducing new forms of border control ‘out of the blue’. Basically, the Netherlands has increased the intensity and the frequency of the MSM under article 4.17b of the Aliens Decree. This article was first introduced in the Aliens Decree in July 2014 and enables the Dutch authorities to temporarily, for no longer than four weeks, expand the possibilities of carrying out the MSM. Instead of the previously mentioned 6 hours a day with a maximum of 90 hours a month, road checks can be carried out for 12 hours a day with a maximum of 180 hours a month. Similar expansions apply to checks on international trains and at airports on intra-Schengen flights. The expansion can be issued when there are “concrete indications” of “a significant increase in illegal residence after crossing the border”. In response to concerns expressed by the Advisory Committee on Migration Affairs on the vagueness of the grounds for expansion, the grounds have to be specified and substantiated to such an extent that the legitimacy of the expansion can be reviewed by a judge.
In the light of the current events, the RNM aims not only to combat illegal residence and human smuggling with their increased presence in the border areas, but also to prevent dehumanising incidents from occurring, to prevent substantial national security incidents and to generally monitor the migration flows. The latter also in order to provide information to other organisations involved in migration control – such as the Immigration and Naturalisation Service but also the Central Agency for the Reception of Asylum Seekers. Despite what is being suggested in some media, under article 4.17b people cannot be detained at the border, nor can they – when they claim asylum – be denied proper procedures.
Since this is the first time that the expansion under article 4.17b is being called into force since the enactment of the new article, it will be interesting and important to see how it plays out in practice.
By means of the legal framework as discussed in the previous sections, the Netherlands is one of the only Schengen countries to have actually acted upon the consideration of the Court of Justice for the EU in the Melki & Abdeli case that: “(…) in order to comply with Articles 20 and 21(a) of the SBC, national legislation granting a power to police authorities to carry out identity checks must provide the necessary framework for the power granted to those authorities in order, inter alia, to guide the discretion which those authorities enjoy in the practical application of that power.” There are no other countries that have national legislation in place that allow them to carry out “Schengen proof” police checks to the extent the Netherlands has.
As I have argued elsewhere more extensively (van der Woude & Van Berlo 2015), in the light of the ongoing securitisation of migration that is visible throughout the European continent, and especially in the light of the current refugee crisis, states will continue to explore the possibilities offered under the SBC to legitimately monitor internal cross border mobility. Since the temporary reinstatement of internal border controls, as recently undertaken by Germany, is the most far-reaching measure and – at least on paper – restricted by a rather extensive procedure, it seems more plausible that countries will follow the Dutch example. The Dutch approach of spot checks in border areas seems to be putting less pressure on “Schengen”, and it also allows member States to continuously be present in border areas for a certain number of hours a day and a certain number of hours a month. From the perspective of some Schengen countries this continuity, despite the limitations that result from the rulings of the Court of Justice for the EU, is better than not being present at all.
It is precisely for this last reason that some critics argue that the simple possibility of performing immigration checks in the border areas is, in itself, already questionable from the perspective of free movement. Member States still enjoy a great amount of discretion on how to exactly translate the Schengen Border Code into their national legislation. Having national legislation in place obviously increases the transparency and enhances the accountability of border control. Nevertheless, it is necessary to remain critical of all responses that interfere with the original promise of Schengen, i.e. that crossing a land border was going to be as easy as crossing a municipal border. It is acknowledged that the law found in books tends to be very different to the law in action. In order to keep an eye on how the legislation actually plays out in practice and to what extent these practices resemble permanent border controls in the way they are carried out, more and stricter oversight from the European level would be required.
Yet although I see the complexity of the reality that Schengen countries are facing in the current era of globalisation, migration and cross-border crimes, it is of vital importance to guard against the process of crimmigration: the merger of crime control and immigration control and hence the underlying assumption that criminals and migrants are interchangeable groups. This process is visible on the level of public and political discourse, but also on the level of law making and enforcement. Although scholars provide different explanations for the crimmigration trend, they are unanimous in concluding that it creates an ever-expanding population of outsiders, turning migrants into criminals without the protection that citizens should enjoy. Immigration officers operating in border areas are of vital importance in the decision-making process of who belongs, and subsequently can cross the border, and who does not, thereby continuously differentiating ‘insiders’ from ‘outsiders’. All the more reason to keep a close and attentive eye on current developments at the internal borders of Europe.
Maartje van der Woude is currently working on the research-project “Decision-making in EU Borderlands”. As part of this project, together with Jelmer Brouwer & Tim Dekkers, Van der Woude is currently carrying out an in-depth legal and empirical research into the Mobile Security Monitor.