Post by Maartje van der Woude. Maartje is Professor of Law and Society at Leiden University (the Netherlands) and Chair in the Van Vollenhoven Institute for Law, Governance and Society. Her work examines the politics and dialectics of terrorism/crime control, immigration control and border control and the growing merger of all three, also referred to as the process of crimmigration. She is currently working on a 5-year research project - “Getting to the Core of Crimmigration” - funded by the Netherlands Organization for Scientific Research (NWO). In 2018 Maartje won the Young Scientist Award in the Humanities for her academic achievements and active participation in public debates. This is the seventh and final instalment in the themed series on Policing, Migration and National Identity.

Photo credit: Radek Homola

The borders between Schengen states have never been as ‘open’ as they were pictured to be. In order to enhance the free movement of services and goods and to stimulate their economy, Schengen member states have given up on permanent border checks at the intra-Schengen borders. Yet, as the free movement of people was seen as a potential risk to national security, sovereignty and identity, member states were not so willing to give up on all the means to control the mobility across their borders (Van der Woude & Van Berlo 2015Dekkers, van der Woude & Van der Leun 2016). Among several compensatory measures that were negotiated, article 23 of the Schengen Border Code – the legislative framework governing the implementation of the principle of free movement – allows member states to continue to carry out a-systematic immigration and/ or crime control checks in the regions around the border. So, in other words, as long as the checks were not permanent and not carried out at the physical border, they were not considered as border checks. 

Expending significant political, material and ideological efforts on border policing regimes is regarded as the heart of the regulatory effort to sustain national sovereignty. But border control is much more than a business card of state sovereignty. Border control and bordering practices are seen as an important defense mechanism to ensure the survival of national cultures. To give up control of territorial borders is to relinquish a powerful instrument in the production of national cultures. National identity can only be established through contradictions and exclusions. Border zones, or frontiers, are sites of social sorting and delineate who belongs and who does not. Border zones and bordering practices taking place in these zones therefore should also be seen as serving a nation-building and identity establishing function. 

The ‘voice’ and agenda of the (supra)national government is strong and influential, but on the local context where the measures should be implemented and thus felt most directly, local actors seem to play an important role as well. The increased flexibility of the law as a result of the increased multi-scalar dimension of legal governance is, at least partly, the result of the increased use of open norms creating discretionary space to decide when to use what (legal) norm or jurisdiction. The discretionary space left by the European Union as to how member states implement article 23 SBC checks, and therewith to a certain extent how member states interpret ‘free movement’, has led to a rather fragmented landscape in which one thing is clear: the intra Schengen borders never disappeared, they have just been moved. 

Actors & institutions 

A 2018 survey on the different ways in which countries have implemented article 23 SBC issued by the European Migration Network further illustrates this. The query shows that states are indeed doing “something” at intra-Schengen borders. This immediately illustrates the false premise of free movement in the Schengen area. The query also shows that in most countries, the responsibility for the monitoring and control of intra Schengen cross border mobility lies with a combination of actors: the national/federal (and regional and/or local) police are paired with either immigration authorities, and customs or border guard agencies, or there is a combination of all three. 

Legal mandate 

Apart from European Union legal provisions, the legal mandate under which the agencies and institutions perform intra-Schengen border checks is a mixture of administrative and criminal law. There are also countries that report only an administrative mandate.The dual mandate that many of the countries have attributed to the responsible agencies and actors involved in intra-Schengen border policing makes sense in the light of the dual aim of  the measures to be implemented. Yet, as explained by Sklansky (2012), equipping enforcement agencies with both crime and immigration control powers can in practice lead to unwanted inconsistencies between the application of criminal and immigration law (also see Van der Woude & Brouwer 2017). 

Measures & aims

The different agencies are involved in police checks, immigration checks and traditional border control in countries that have temporarily reinstated permanent border checks under article 29 SBC. These measures are driven by a logic of risk for national security and crime prevention. Some countries report that technological devices or risk assessment analysis are being used as part of, or to support the checks that are carried out. When asked to describe what the aim of the various measures that are being carried out at the intra-Schengen borders is, all countries report a mixed aim: on the one hand, the checks are carried out to prevent irregular stay in and irregular migration into the country, and on the other, the checks also serve crime control or public order purposes. Germany, for example, lists four specific aims: “to prevent and suppress illegal secondary migration, to identify smugglers of migrants and other forms of organised unauthorized entry, to avert risks to public safety and health risks, to prevent property crime.” Some countries specifically address the pre-emptive aim of the different checks in relation to, among other things, the lack of external border control. Austria for instance mentions that: “Due to existing grave deficits in the protection of the external border and uncontrolled, illegal secondary migration a serious risk to the public safety and security persists. The measures therefore target the prevention of illegal migration for migration and security policy reasons –as a preemptive measure. Reducing border controls in the current situation would send wrong signals to illegal migrants and organizations active in the field of human trafficking.” 

Wonders (2016) describes how security regimes manufacture states of exception as a way to enhance the flexibility of the law to respond to—or preventatively avert—legitimacy threats. The strong prevalence of the language of risk, prevention and preemption illustrates this. As it has become clear that the external borders of ‘fortress Europe’ are not as secure as envisioned, countries are feeling an increased pressure to more closely monitor their intra-Schengen borders. All over Europe, Schengen member states have  actively adopted a language of risk and have developed rhetorical campaigns based on fear, fear of terrorism, fear for national security but also fear for national identity as a result of the influx of potential ‘crimmigrant others’. These campaigns aim to foster the securitization of national and transnational spaces and to provide an enduring excuse for potential violation of European rules and regulations and the further exclusion of migrants. 

Threats to national security and idenity are a particularly useful tool for nations in a globalized world since risk aversion to ‘threats’ justifies the suspension of the law and the use of law just-in-time, in some cases even before any harm or crime has occurred. In the case of intra-Schengen border policing, the rhetoric of risk and prevention seems to be used as a justification to have a permanent presence of law enforcement in the intra-Schengen border areas. They operate in a highly discretionary way while having access to a mixed ‘toolbox’ of administrative and criminal law based powers.

The European Migration Network data shows a clear lack of ‘unity’ and harmonization with regard to migration and border control in Europe. This lack of unity seems to be at odds with the overarching idea of “Europe” as a unified and harmonized entity with fortified external borders but barely noticeable internal borders. By using the discretionary rules and regulations to the best advantage of their unique interests, the different national and local actors involved in intra-Schengen cross border monitoring seem to be involved in a complicated border game evolving around the demarcation of boundaries: the creation of boundaries where there shouldn’t be any to keep out the “crimmigrant” other.

Photo credit: Sara Kurfess

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How to cite this blog post (Harvard style) 

van der Woude, M. (2020). The Patchwork that is Schengen. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/04/patchwork [date]