by  Johanna Scholz

After discussing the role of various actors involved in international and European migration politics, I will aim to analyse two distinctive trends in the field of policies: the exterritorialization and the increase of technology-based approaches in European migration policy. At the core of these developments is the notion of border which is inherent in the concept of (international) migration and will pose a few questions central to this article: Where do migrants face borders and what is the nature of these borders? Do they match the territorial borderlines or, generally speaking, can borders be described as lines at all? And in how far does the protection of these borders collide with existing values and rights? To answer these questions I will give a short introduction on the Schengen borders and analyse both trends regarding their impact on these borders.

The idea of the Schengen area as a common area of freedom, security and justice manifested itself in the Schengen Agreement of 1985. The freedom of movement resulting from the abolition of checks at the common borders of its Member States has constituted the core of the Schengen cooperation ever since.[1] Therefore, the Convention Implementing the Schengen Agreement of 1990 laid down measures to harmonise European border policies (e.g. common Schengen visa) but also emphasized the crucial role of external border protection to account for the freedom achieved inside the Schengen area. This security-related principle of European migration policy gained in importance in the light of the 9/11 attacks, the London and Madrid bombings in 2004 as well as the upheavals in the Arab World since the end of 2010 including the disaster of Lampedusa in the fall of 2013. Accordingly, the image of “Fortress Europe” dominates the discourse on European border policy. Other tendencies are discernible, for example in the field of European asylum policy with the introduction of a Common European Asylum System in 2013, but this attempt only targets refugees that have already reached the territory of an EU Member State. As for European migration policy, however, the focus appears to be on the protection of the European Union from irregular migration before it even reaches its realm, which is also implied in the conclusions of the European Council in 2014. This emphasis on external border control has since the very beginning been accompanied by an increase in technology-based approaches:

  1. With the implementation of the Schengen Agreement in 1995 the Schengen Information System (SIS) was introduced as a central database to facilitate the cooperation between European security agencies on stolen goods as well as on persons wanted by the police or that have previously been denied entry into the EU.
  2. Following the 9/11 attacks a Visa Information System (VIS) was established to  verify personal data, which finally commenced operations in 2011.
  3. A new era of border management began in 2004 with the use of biometrical data (fingerprints, iris scans, etc.), which enabled the development of the digital passport (e-passport). To process this data the SIS got upgraded to SIS II in 2013.
  4. As a response to humanitarian disasters in the Mediterranean Sea, particularly Lampedusa in 2013, EUROSUR was introduced as a comprehensive border surveillance system.[2]

In addition to the use of these new technologies, the European Union has extended and strengthened the physical barriers along its external borderline in recent years. In 2013 new fences were set up at the borders between Turkey and Greece as well as Bulgaria while the constructions around the Spanish exclaves Ceuta and Melilla are being enhanced on a regular basis.[3] Nevertheless, these hard borders as well as technological approaches fail to reduce the overall flow of irregular migrants towards the European Union. Instead, migration routes only get relocated as migrants choose alternative paths and measures; they take to the sea rather than safer land routes, increasingly rely on smuggler groups or simply overstay their visa once inside the EU. According to the European Commission, the latter group comprises the largest number of irregular migrants with approximately 345,000 overstayers in 2013.

The concept of smart borders, which was proposed by the European Commission in 2008, aims to tackle this very phenomenon. The system is composed of an Entry/Exit-System (EES) that registers time and place of every border crossing as to automatically alert the Member State in charge in case an overstaying occurs. This way the EES reinforces border control and surveillance, yet the smart border package has a twofold approach: The second component, the Registered Traveller Programme (RTP), targets bona-fide travellers by facilitating entry to the European Union after undergoing a pre-screening process. The European Commission estimates that about five million visitors to the European Union will benefit from the RTP every year which will in return secure Europe’s attractiveness as a travel destination and stimulate economic growth. A study commissioned by the European Parliament, however, strongly disagrees with these prospects and expects costs to exceed the estimated amount of 1.3 billion Euros without having any considerable benefit. To the contrary, the former Federal Commissioner for Data Protection Peter Schaar points at legal questions arising from the collection of a vast amount of sensitive data in the absence of any security-related reasons. Besides, the EES can potentially identify and criminalize persons that have overstayed their visa for legitimate reasons such as a stay in hospital or an application for asylum. Overall, the use of new technologies in European migration policy has a considerable effect on the nature of the Schengen borders as they get transformed to a virtual “firewall” independent from the course of their physical counterpart:

“In the 21st century border management must be intelligence-driven. […] That is why the concept of a ‘virtual border’ is so important; because the management of a border starts even while gathering intelligence or issuing a visa in a third country. The physical border is, so to say, the ‘last border line’.[4]

 The second trend related to the Schengen borders is the exterritorialization of the borderline due to the outsourcing of its management on external actors. The European Union realizes this transfer of responsibility through concentric circles that are grouped around the Schengen area and thus function as a buffer zone for the centre. The first circle consists of Member States that are not yet (full) members of the Schengen area whereas the second circle comprises third countries without any accession perspective to the European Union. As the countries of the first cluster have to abide by certain criteria (which since 1999 also include border management regulations) in order to enter the Schengen area, the European Union manages to partly shift its responsibilities onto these countries and incorporate them into the protection of the Schengen borders. Creating incentives for the countries inside the second circle to cooperate on migration issues and reach compliance with European provisions is a far more complex process. This external dimension, nevertheless, forms an integral part of European migration policy, as outlined in the Global Approach to Migration and Mobility (GAMM)[5] in 2011. Based on a comprehensive approach to migration management that takes the dialogue and partnership with countries of origin and transit into account, it pursues the following goals:

  • Combating illegal migration
  • Utilizing the positive effects of legal migration
  • Linking migration and development policy
  • Refugee /international protection

To reach these goals the European Union has a variety of instruments at hand, among them mobility partnerships, regional protection programmes and readmission agreements. As mobility partnerships link the fields of migration and development by aiming to utilize mobility to reach development goals they are considered to be “the most innovative and sophisticated tool”[6] in this regard. They constitute a flexible and non-legally binding framework for cooperations between the European Union and third countries in the field of migration policy and have already been established with the Republic of Moldova, Georgia, Armenia, Cape Verde, Azerbaijan, Tunisia and Morocco, as well as the Kingdom of Jordan in October 2014. To get an insight into the general design of these partnerships we had a short look at the recent mobility partnership with Jordan during my presentation in our seminar. The underlying provisions are the following:

 The European Union commits itself to:

  • facilitate visa issuing procedures for Jordanian citizens to initiate circular migration
  • make the mutual recognition of qualifications (university degrees, etc.) easier and inform qualified Jordanian citizens on education and employment opportunities in the European Union
  • support Jordan in its capacity to manage the influx of refugees on its territory (regional protection programme)

 Therefore Jordan has the obligation to:

  • readmit irregular migrants (readmission agreement)
  • combat smuggling and human trafficking

 While other mobility partnerships vary regarding their specific provisions, they all contain conditions for third countries related to irregular migration, for instance readmission agreements, the reinforcement of border protection or the combating of cross-border crime. The European Union thus externalises the prevention of security issues perceived inside its own borders onto the countries of origin and transit where it hopes to tackle their root causes. Human Rights Watch therefore once summarized these procedures under the title “Getting the neighbours to do the dirty work“[7]. That way, mobility partnerships lag behind their potential as they prove to be a flexible instrument, however not transparent enough and too focused on conditionality and therefore don’t provide partnership on equal footing.

It is obvious that increased border protection by the means of exterritorialization and the use of new technologies can collide with existing values and rights and result in conflicting aims. This is the case if the European Union not only externalises the responsibility to manage and secure its borders but additionally transfers its obligation to protect on other actors as laid down in the principle of non-refoulement (art. 33) of the Refugee Convention. To secure this right, the European Union has to balance its goals and open up legal ways for refugees to reach its territory.

[1] However, the Schengen Border Code (2006) was reformed in 2013 as to expand the possibilities

for member states to reintroduce temporary checks at their common borders.

[2] See previous article by Bumblies/Köller on Frontex and EUROSUR.

[3] For further information on hard borders see the following article by Lisa-Maria Leipersberger.

[4] Laitinen, I. (2008): Shaping European security, ASD Focus 02 (Summer), 8, cited in: Pawlak/Kurowska: The fog of border, in: Kaunert/Léonard/Pawlak (2012): European Homeland Security, Oxon, 130.

[5] The paper is based on the Global Approach to Migration of 2005.

[6] European Commission (2011): The Global Approach to Migration and Mobility, COM(2011) 743 final, Brussels.

[7] Gorvin Ian (2006): „Getting the neighbours to do the dirty work“, Human Rights Watch Briefing Paper, available at: http://www.hrw.org/news/2006/10/18/getting-neighbours-do-dirty-work, 25 Nov. 2014.

Selected literature

Angenendt, Steffen (2012): Migration, Mobilität und Entwicklung. EU-      Mobilitätspartnerschaften als Instrument der Entwicklungszusammenarbeit. SWP-Studie, Berlin. Available at: http://www.swp-berlin.org/fileadmin/contents/products/studien/2012_S25_adt.pdf.

Bendel, Petra (2014): Ein Raum der Freiheit, der Sicherheit und der Menschenrechte? Zugang zum Territorium und zu einem fairen Asylverfahren in der Europäischen Union, in: Zeitschrift für Menschenrechte, 8 (2), 84-100 (forthcoming in December).

European Commission (2008): Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Examining the creation of a European border surveillance system (EUROSUR) , COM(2008) 0068 final, Brussels.

European Commission (2011): Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions -The Global Approach to Migration and Mobility, COM(2011) 743 final, Brussels.

Hayes, Ben/ Vermeulen, Matthias (2012): Borderline. The EU’s New Border Surveillance Initiatives: Assessing the Costs and Fundamental Rights Implications of EUROSUR and the „Smart Borders“ Proposals . Study by the Heinrich Böll Foundation. Berlin. Available at: https://www.boell.de/sites/default/files/DRV_120523_BORDERLINE_-_Border_Surveillance.pdf.

Jones, Chris (2014): Smart borders: fait accompli? Statewatch analysis, available at: http://www.statewatch.org/analyses/no-253-smart-borders.pdf.

Pawlak,Patryk/Kurowska,Xymena: The fog of border. The fragmentation of the European Union’s border policies, in: Kaunert, Christian/Léonard, Sarah/Pawlak, Patryk (2012): European homeland security. A European strategy in the making? Abingdon, 126-144.

The Hashemite Kingdom of Jordan/European Union/Participating Member States: Joint declaration establishing a Mobility Partnership between the Hashemite Kingdom of Jordan and the European Union and its participating Member States, 2014, available at: http://ec.europa.eu/dgs/home-affairs/what-isnew/news/news/docs/20141009 _joint_declaration_establishing_the_eu-jordan_mobility_partnership_en.pdf.

The Schengen area and cooperation, on EUR-Lex.eu: access to European Union law, available at: http://eur-lex.europa.eu/legal- content/EN/TXT/?qid=1417240978452&uri=URISERV:l33020 28 Nov. 2014.

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