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SEE_briefing_-_Schengen_Area

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					                                     The Schengen Area
     Introduction
     The Schengen Area, made up of 22 EU Member States and three other European
     countries, enables the citizens of those countries to travel freely without passports
     across the borders of the countries concerned. It is the largest such passport free zone
     in the world. The legal basis for the Area was incorporated in the EU Treaties
     through the Treaty of Amsterdam in 1999.

10   The United Kingdom and the Republic of Ireland, who have a common travel area of
     their own created before Schengen came into being, have an opt-out from the
     Schengen Area agreement but all other EU Member States have joined or will do so
     as soon as they can convince the present members that they can meet the
     responsibilities of the system. The UK has always operated water-edge border
     controls and not the internal controls (such as identity cards or identity checks when
     booking into a hotel) that are common in the Schengen Area.

     This paper explains the history of the Schengen Area, what it does and looks at the
     special position of the UK and the Republic of Ireland.
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     Background
     Prior to the First World War passport free travel was the norm in Europe but after
     1918 travel restrictions became common. The Schengen Agreement of 1985 was an
     attempt by the countries that joined to create once again a passport free travel area in
     Europe. Passport controls would be abolished at the borders between the members of
     the Schengen Area but they would jointly ensure that on the external borders (and on
     international flights into any Schengen Area airport from outside the area) tough
     controls would be maintained on third country citizens wishing to enter the Schengen
     Area.
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     The concept built upon existing passport free zones within Europe such as that which
     had existed since the 1940s between the Benelux countries and the Nordic Passport
     Union of 1952 which allowed passport free movement for the citizens of Denmark,
     Finland, Iceland, Norway and Sweden between their countries.

     The 1985 Agreement was signed in the Luxembourg village of Schengen, where the
     borders of Germany, France and Luxembourg meet. This initial agreement, signed by
     Belgium, France, Germany, Luxembourg and the Netherlands, provided for the
     replacement of passport controls with visual checks of vehicles, which would be able
40   to cross borders without stopping by travelling at reduced speed through border posts.
     Five years later, the Schengen Convention of 1990 extended the concept of passport
     free travel to air and rail passengers and introduced common visa rules and police and
     judicial co-operation; Italy joined at that time. Other countries joined the Schengen
     Area later, including the Nordic countries in 1996.

     The 1999 Treaty of Amsterdam incorporated the Schengen agreements (the Schengen
     acquis) into the law of the European Union. All Member States accepted the
     Schengen concept and agreed they would join save for opt-outs given to the United
     Kingdom and the Republic of Ireland (see below). Other exclusions were agreed for
50   certain specific territories such as the Faroe Islands.


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     Three non-Member States of the EU are participants in Schengen – Iceland, Norway
     and Switzerland – and are therefore bound by the rules agreed under EU law that
     apply to the Schengen Area but are of course unable to participate in the debate and
     approval of such legislation, save that they are consulted by the Commission.

     Schengen in Practice
     The abolition of passport controls between Schengen states means in practice that
     many physical border posts have been removed. There are no passport controls for
     air, rail and road passengers when crossing frontiers within the Schengen Area.
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     Common visa rules mean that a Schengen visa admits the national of a third country
     to all the Schengen countries that participate in the common visa application system
     (25 countries at present; Bulgaria, Cyprus and Romania will join later if they can
     satisfy the requirements of the system). This visa is valid for three months; longer
     periods of entry are subject to national rules.

     There is a single list of countries for which a visa is required and another list of those
     countries whose citizens are exempt from any visa requirement for short stays
     (Australia, Canada, Israel, Japan, New Zealand, South Korea and the United States are
20   some of the countries currently on the exempt list). Countries exempt from the visa
     requirement are expected to extend reciprocal arrangements to EU/Schengen citizens.
     When a country breaks that reciprocity (as Canada did in respect of Czech citizens in
     2009 because of the number of asylum claims), the Commission publishes a report
     setting out what has happened. Citizens of some countries have to apply for a transit
     visa if they are travelling through the Schengen Area, even if they are not staying
     there.

     The visa requirements are set out in the Community Code on Visas and detailed
     advice is provided to borders and immigration staff in handbooks. Frontex, the EU’s
30   specialist agency handling border issues, provides support to Member States in
     meeting the requirements of the Schengen system, particularly in maintaining the
     external border. Those entering the Schengen Area with the common visa since
     October 2010 have had to produce proof of valid travel insurance.

     The Schengen Area co-operation extends to police and judicial co-operation, in order
     to enable cross-border crime to be tackled effectively. In certain circumstances,
     police officers have a right of hot pursuit across national frontiers from one Schengen
     state into another. They have to inform the second country that they have entered its
     territory and the originating country remains liable for the actions of its officers.
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     Although border controls have been abolished, other ways of monitoring movement
     remain. For example, it is a requirement that guests staying in the Schengen Area
     produce proof of identity and give their home address when checking into a hotel.

     Maintaining Secure External Borders
     The key principle of the Schengen Area is that while border controls are largely
     abolished within it, the external border of the Area is carefully policed. In addition to
     the common visa, an electronic database called the Schengen Information System
     (SIS) is maintained to assist border control. This database contains details of those
50   who have committed serious crimes as well as those who may have been denied entry


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     to the Schengen Area. Vehicles reported stolen and other missing items can also be
     included. A second generation of the SIS database is in the process of being created.
     Members of the Schengen Area have to meet certain tests to show that they can
     introduce and maintain effective external border controls. New Member States of the
     EU in 2004 were helped with the costs of meeting these requirements and a similar
     process is in train with Romania and Bulgaria to enable them to join the visa free area.

     The designated border controls are laid down in a code. They include exit as well as
     entry controls at the external border. On entry, an identity check for third country
10   nationals is required. On exit, the SIS database allows border control staff to see
     whether a warrant for the arrest of the person has been issued during their stay and to
     check that all visitors have complied with any entry rules, such as not staying for
     more than the permitted period of their visa.

     Internal (i.e. within the Schengen Area) border controls can be reintroduced by
     Schengen member countries in certain circumstances. They were reintroduced in
     Germany for the period of the 2006 World Cup for example and have been brought in
     during other major events in Schengen countries.

20   Future Developments
     Transitional funds were granted to Romania and Bulgaria to enable them to meet the
     standards required for external border controls (at least half the grant to them had to
     be spent for this purpose) and for the implementation of the Schengen acquis. It was
     intended that Bulgaria and Romania would fully join the Schengen Area in March
     2011. Romania has the second longest external border of any EU Member State, after
     Finland’s border with Russia. Romania’s border with Ukraine and with Moldova is
     regarded as being particularly difficult to police.

     No agreement has yet been reached as to whether the Schengen Area will be extended
30   to Romania and Bulgaria as planned. It is thought unlikely because of delays in
     installing SIS terminals in police posts and in creating separate areas for Schengen
     and non-Schengen passengers at all their airports.

     Cyprus has not joined the Schengen Area because the division of the island creates
     particular problems. Cypriots from the Turkish side of the island would need a
     Schengen visa to cross on to the Greek side of the island and that would be
     impractical and contrary to the easing of Green Line restrictions in recent years.

     Many of the countries on the list of those whose citizens are required to have a visa to
40   enter the Schengen Area would like to join the exempt list. This particularly affects
     countries bordering the EU, notably Russia and the states of the Western Balkans.
     Special arrangements have already been made to allow Russians to get to and from
     the EU-surrounded enclave of Kaliningrad. Another exception allows Croatians in
     border areas to get in to neighbouring EU countries in order to be able to work locally.

     Visa requirements were abolished in December 2009 for Serbia, Macedonia and
     Montenegro. Negotiations are under way with Albania, Croatia and Bosnia &
     Herzegovina – agreement has been reached in principle for them to join - but
     arrangements for Kosovo are still under discussion and are more complex because not
50   all EU Member States recognise Kosovo’s independence. Turkey would like to join


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     Schengen but no progress has been made in achieving this as a result of opposition
     from existing Schengen members.

     The requirement to hold a visa to access the EU is a cause of considerable concern
     (and criticism) in a number of countries on the EU’s eastern border. Resistance to
     extending visa-free travel stems from the fact that lower levels of income in many of
     the EU’s neighbours could lead to a rise in illegal immigration if visa requirements
     were relaxed. Nonetheless, the visa question is a significant issue in relations between
     the EU and its eastern neighbours and is a lever for getting the neighbouring countries
10   to tighten up their own policing of immigration.

     The British & Irish Opt-outs
     Neither the United Kingdom nor the Republic of Ireland chose to join the Schengen
     Agreement and were given opt-outs from it when the Schengen acquis was
     incorporated into EU Law. The Irish Government has stated that it wishes to join the
     Schengen Area at some point in the future; the UK Government has no plans to do so.

     The British Government’s major objections to joining the Schengen Area centre on
     the potential loss of control of immigration policy. The UK has always operated
20   water-edge border controls and not internal ones. In addition, the UK has argued that
     it does not wish to be part of a common visa system that might not reflect the UK’s
     needs and the rules of which can be decided by QMV. The difficulties in maintaining
     the external borders of the Schengen Area are such that the UK lacks faith in the
     ability of its fellow Member States to prevent an increase in illegal migration to the
     UK if it joined Schengen. In most years the UK receives the highest or second highest
     number of applications for asylum in the EU and it does not wish to see any increase
     in such applications.

     The UK’s decision to stay out of the Schengen Area partly reflects the fact that it only
30   has one natural land border with another country – the Republic of Ireland – and
     passport free travel has largely operated between the two countries since Ireland
     achieved independence in the 1920s. That arrangement, known as the Common
     Travel Area, enables citizens of the British Isles (UK, Republic of Ireland, Channel
     Islands and the Isle of Man) to move freely between the different parts of the British
     Isles without the need for a passport or identity card. In practice, the existence of the
     Common Travel Area would make it difficult for Ireland to join the Schengen Area if
     the UK declined to join.

     Generally speaking, the UK’s policy since 1999 has been to opt in to measures
40   concerning illegal migration but to stay out of those that deal with legal migration (eg.
     the Schengen common visa). Under the Treaty of Lisbon, the UK (and Ireland and
     Denmark) does not automatically participate in any part of justice and home affairs
     but can opt in to legislative proposals. The only caveat is that if it does so, the UK
     will be bound by any further measures that build upon this initial measure.

     The UK has opted in to the Schengen Information System and the improved version
     (SIS II). British police and border control staff can access the SIS through the Police
     National Computer. The UK also supports the Commission’s proposal to establish a
     special agency of the EU to manage all the IT systems connected with justice and
50   home affairs work at EU level. The UK also supports the Frontex border agency and


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has made strengthening it one of the eleven priority points for the new Government’s
EU policy set out in the Strategic Defence & Security Review.

November 2010




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