The Borders of the EU: European Integration, "Schengen" and the Control of Migration (essentials) 3658391995, 9783658391997

Table of contents :
What You Can Find in This essential
Contents
1 Introduction
2 Europe Without Internal Borders: A Long Initial Phase
3 The Conclusion of the Schengen Agreement and Its Implementation
4 The Schengen Area’s Eastern Expansion
5 The EU’s Asylum Policy as a Result of the Establishment of a Common External Border
6 Conclusion
What You Can Take from This Essential
References

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Jochen Oltmer

The Borders of the EU European Integration, “Schengen” and the Control of Migration

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Springer essentials provide up-to-date knowledge in a concentrated form. They aim to deliver the essence of what counts as “state-of-the-art” in the current academic discussion or in practice. With their quick, uncomplicated and comprehensible information, essentials provide: • an introduction to a current issue within your field of expertise • an introduction to a new topic of interest • an insight, in order to be able to join in the discussion on a particular topic Available in electronic and printed format, the books present expert knowledge from Springer specialist authors in a compact form. They are particularly suitable for use as eBooks on tablet PCs, eBook readers and smartphones. Springer essentials form modules of knowledge from the areas economics, social sciences and humanities, technology and natural sciences, as well as from medicine, psychology and health professions, written by renowned Springer-authors across many disciplines.

Jochen Oltmer

The Borders of the EU European Integration, “Schengen” and the Control of Migration

Jochen Oltmer Universität Osnabrück Osnabrück, Germany

ISSN 2197-6708 ISSN 2197-6716  (electronic) essentials ISSN 2731-3107 ISSN 2731-3115  (electronic) Springer essentials ISBN 978-3-658-39199-7 ISBN 978-3-658-39200-0  (eBook) https://doi.org/10.1007/978-3-658-39200-0 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Responsible Editor: Cori Antonia Mackrodt This Springer imprint is published by the registered company Springer Fachmedien Wiesbaden GmbH, part of Springer Nature. The registered company address is: Abraham-Lincoln-Str. 46, 65189 Wiesbaden, Germany

What You Can Find in This essential

• An account of migration and border policy in the context of European integration from the 1950s until today • An explanation of the heterogeneity of migration patterns in the European Union (EU) and the different perceptions among member states’ populations on the subject of migration • Explanations for the European Economic Community’s (EEC), European Community’s (EC), and EU’s efforts to do away with controls at the borders between the states involved in European integration • A discussion of why, with the Schengen Agreement of 1985 at its centre, an increasingly security-oriented discussion of migration in Europe began • An analysis of the consequences of the development of common European ideas about the control of external borders • An investigation of the state of the EU’s asylum policy as a result of the establishment of a common European external border

V

Contents

1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 Europe Without Internal Borders: A Long Initial Phase. . . . . . . . . . . 7 3 The Conclusion of the Schengen Agreement and Its Implementation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 4 The Schengen Area’s Eastern Expansion. . . . . . . . . . . . . . . . . . . . . . . . 19 5 The EU’s Asylum Policy as a Result of the Establishment of a Common External Border. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 6 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

VII

1

Introduction

The term “Schengen” today stands for the abolition of regular stationary border controls between the 26 member states of the Schengen area. “Schengen” thus forms an essential element of the free movement of persons formulated by the European Union (EU) as a central goal of its policy: that is, the unrestricted movement of all citizens between member states and the freedom of establishment granted there. “Schengen” also stands for police cooperation between states within Europe and at the external borders of the EU. The much-cited “Fortress Europe” is therefore often understood in the media and activist circles as the mirror image of “Europe without borders”.1 The process of granting equal rights to spatial movement and establishment to all citizens on the one hand and limiting state competences to control migration between member states of the European Economic Community (EEC), European Community (EC) and EU began in the 1950s, long before the signing of the Schengen Agreement in 1985. It developed neither uniformly nor continuously or without contradictions, and thus corresponds to the erratic course of European integration: despite many debates about its goals, function, form, scope and speed, more and more states participated in the construction of supranational and intergovernmental institutions, transferred state powers to European authorities and agreed on common regulations. There are very different ideas about migration within the societies of the Schengen area or EU member states. They also emerged against the background of an extremely heterogeneous European migration history: In some EU countries, such

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would like to thank Simon Hellbaum, Annika Heyen and Katharina Kleynmans for their diverse support in the preparatory research for this booklet.

© The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2022 J. Oltmer, The Borders of the EU, essentials, https://doi.org/10.1007/978-3-658-39200-0_1

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1 Introduction

as France, Great Britain, the Netherlands or Portugal, which were colonial powers for centuries, the process of decolonization from the 1940s to the 1970s led to specific intercontinental migration patterns. In the case of other EU members, on the other hand, spatial proximity shaped the migration process (as in the case of the great importance of Albanian migration to Greece) or the former common membership in a collapsed state, as the example of the Czech Republic and Slovakia shows. The intensive involvement in the far-reaching system of recruiting workers within the framework of related agreements from the late 1940s to the early 1970s proved to be significant in other Schengen states. It also led to extensive follow-up migration, as can be seen, for example, in Switzerland, Austria or Luxembourg. France, Belgium or the Federal Republic of Germany, on the other hand, were immigration countries as early as the 1950s and 1960s. Greece, Spain or Portugal remained important countries of origin for internal European movements until the 1980s. Bulgaria, Poland or Romania were in the Soviet Union’s sphere of influence after the Second World War and were hardly confronted with the issues of migration or asylum for many decades. Only after the fall of the “Iron Curtain” in 1989/1990 did stronger migration from there to the western part of the continent begin. This pronounced heterogeneity and the resulting different intensities of migratory interweaving of European societies with each other (Arango 2012) are also reflected in the data of the European statistical office Eurostat on the migration balances of the EU member states, which result in a remarkably symmetrical structure in their visualization (see Fig. 1.1): In 2014, which was chosen here to illustrate the situation before the significant asylum immigration of 2015 and 2016, 15 of the 28 EU states had more immigration than emigration: that is, they had positive migration balances. This resulted in, as documented in Fig. 1.2, large differences: While in some EU countries the share of foreign nationals in the population was less than 1 % (Croatia, Lithuania, Poland, Romania), it reached 45 % in Luxembourg. In the EU as a whole, the number of EU nationals living in another member state was 17.6 million (3.5 % of the EU population) in 2018. This was added to 22.3 million third-country nationals. This was 4.4 % of all people living in the EU. Five countries alone registered 76 % of the total 39.9 million “non-nationals”: Germany 9.7 million, the United Kingdom 6.3 million, Italy 5.1 million, France 4.7 million and Spain 4.6 million.2

2 Eurostat,

Migration and Migrant Population Statistics, 2018: https://ec.europa.eu/eurostat/ statistics-explained/index.php/Migration_and_migrant_population_statistics (04.06.2020).

1 Introduction

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20 17.5 15 12.5 10 7.5 5 2.5 0 -2.5 -5 -7.5 -10 -12.5 -15 -17.5

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-20

Fig. 1.1.   Net migration rates in EU member states in 2014. Note: The net migration rate is the migration balance (arrivals minus departures) per year per 1,000 inhabitants. (Data source: Eurostat) Percent 50 45 Third-country nationals 40 35

Citizens of another EU-27 country

30 25 20 15 10 5 0 m xe Lu

* m s y n d g s n e ia al nd ary kia tia ia ia nia d* ia ic rk ce* lta nia ly ai ur ru atv dom str and giu n bl ug nd a an Ita lan eec ede ma a ar n a l l va ro ulg ma hua ola g nl ng an M love erla epu ort L r Sp rm bo Cyp Au Ire Be ng Fi Hu Slo C e G Sw en Fr P B Ro Lit En P h S R Ki D t G e ch d N e t ze ni C U

Fig. 1.2.   Share of foreign nationals within the population of EU member states in 2014. Note: * = provisional data. Source: Eurostat

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1 Introduction

With the withdrawal of the United Kingdom from the EU, the constellation changed somewhat: If one deducts the British data from the 2019 figures, it becomes clear that, despite further immigration to the EU, the number of “nonnationals” in the EU fell sharply to 35.1 million in 2019 (21.8 million thirdcountry nationals, 13.3 million EU citizens living in another member state). The total population of the EU was now only 447 million. The share of third-country nationals rose to 4.9 %, that of Union citizens in another EU country fell to 3 %, because the UK had been a more important migration destination for EU citizens than for third-country nationals. The four most important destination countries in the EU, excluding the UK, now accounted for 71 % of all migration: Germany 10.1 million, Italy 5.3 million, France 4.9 million and Spain 4.8 million.3 This booklet aims to situate the origins and implementation of the Schengen Agreement in a longer line of migration policy change in Europe since the 19th century. It thus takes a different perspective than numerous studies on migration relations in the EU, which usually begin their analysis (at the earliest) with the implementation of the Schengen Treaty work4 and/or refer exclusively to its border policy significance, but do not place it in the much broader context of migration policy regulations5– although border controls were only one of several instruments to influence migration movements and to establish and maintain a specific order of migration relations (Oltmer 2018). The background, conditions and forms of the European migration and border regime’s redesign over the decades are examined. These considerations also apply to the consequences of this long and conflict-ridden process, which resulted in the division of borders of European nation-states into EU internal borders on the one hand and EU external borders on the other. This was accompanied by a distinction between desired movements within Europe, for which the positively connoted term “mobility” is used in the political space, and the undesired movement from outside Europe, for which the negatively connoted term “migration” is used.

3 Eurostat,

Migration and Migrant Population Statistics 2019: https://ec.europa.eu/eurostat/ statistics-explained/index.php/Migration_and_migrant_population_statistics#Migrant_population:_21.8_million_non-EU-27_citizens_living_in_the_EU-27_on_1_January_2019 (29.10.2020). 4 See, for example, the numerous political and European publications on the subject by Boswell and Geddes (2011), which offer an excellent overview of the constellation of the 1990s and early 2000s. 5 From History and its subdisciplines, reference is made here to the undoubtedly very meritorious work of Pudlat (2013) and Siebold (2013).

1 Introduction

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In what way, with what goal and on the basis of which regulatory infrastructure (e.g. legal norms, contracts, authorities, statistics) (Xiang and Johan Lindquist 2014; Lin et al. 2017) did this happen and is this still happening? When answering this question, the consequences of the far-reaching differences in migration relations of the EWG/EC/EU member states for the border and migration policy ideas and regulations in Europe must also be taken into account. The following can only offer a rough overview of the ways in which a Schengen regime has developed and been established, leaving out essential references to other policy areas. Chapter 2 looks at the discussions on limiting the competence and capacity for controlling migration in Europe since the 19th century, with a focus on the period since the 1950s. Chapter 3 refers to the motives that led to the signing of the Schengen Agreement, and looks at the disputes over its implementation, which in the late 1980s and early 1990s were increasingly shaped by an insurance-based approach to the debate on migration – the background to which needs to be clarified. Chapter 4 discusses the consequences of the fall of the “Iron Curtain” in 1989/1990, which in the first decade of the 21st century led to the EU’s eastern enlargement, for the development of the Schengen area. Chapter 5 asks about the consequences of the freedom of movement along internal borders in the Schengen area for the asylum policy (non-)cooperation of EU member states. Chapter 6 finally draws conclusions and, looking ahead, refers to some of the effects of the security policy focus on cross-border migration regarding the way the spatial movement of people is now viewed. In recent years, challenges to European migration policy and European migration relations have been intensely discussed politically, media-wise and in public. Numerous scientific publications accompanied the debates and political processes relevant at the time and placed them in context. It is noteworthy here that a historical examination is hardly present: one of the core competencies of historians, namely working out long-term changes in societies, has been used very rarely for the topic at hand. Consequently, it can be seen that in common overall representations of the formation and dynamics of European integration, migration policy aspects take low priority: topics such as “freedom of movement”, “Schengen” or “asylum” are usually only mentioned briefly.6 Also, a more ­intensive

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few individual remarks on “Schengen” and other migration policy aspects without greater references to the migratory intertwining in Europe can be found, for example, in: Mittag (2008, p. 241), Elvert (2013, p. 117), Loth (2014, pp. 274, 334 f.), Berend (2016, pp. 169 f.), Brunn (2017, pp. 287–291), Middelaar (2017, pp. 412–414), Gehler (2018, pp. 395–397) and Usherwood and Pinder (2018, pp. 89–94).

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1 Introduction

e­xamination of the change in European migration relations remains mostly absent.7 A perspective connecting past and present, examining the change in migration and border policy concepts in the context of an increasingly pan-European integration, and their consequences for migration relations therefore appears to be a gap that the remarks offered here would like to contribute to closing.

7 Some brief remarks on the nexus of migration and the labour market, and on the intertwining of European societies through migration without greater references to migration policy aspects, can be found, for example, in: Clemens et al. (2008, p. 272), Thiemeyer (2010, pp. 55 f., 152–154), Wirsching (2012, pp. 284–292) and Patel (2018, pp. 113 f., 150, 165).

2

Europe Without Internal Borders: A Long Initial Phase

The debates about a “Europe without borders” after the Second World War must be seen against the backdrop of the protracted development of assumptions about the advantages and disadvantages of giving up control of migratory movements. A central starting point is the idea of liberalism emerging in the 19th century, with the free movement of workers and the renunciation of passports, visas and border controls being deemed necessary to give market forces effect and to enable a prosperity gain for all. The United States of America had already given up the demand for passports upon entry and the carrying out of controls from 1802. Great Britain followed suit in 1836; mainly in the 1850s and 1860s numerous other states of Western, Central and Northern Europe would do the same (Fahrmeir 2001). The widely received Rotteck-Welcker’s State Lexicon commented on the change in an article on the passport system in its third edition of 1864 with the remark: “Recently, the governments of the Continent have realized that the passport laws are incompatible with civil and economic freedom” (Passport System 1864). Internal and cross-border migration was considered in this phase of high economic prosperity an expression of modernity. Alex Dowty describes the state as “the closest approximation to an open world in modern times” (1987, p.54). However, it must not be overlooked that after a few decades of decreasing control needs and a decline in control intensity since the 1880s/1890s, the interest in and performance of control infrastructure in the Euro-Atlantic area increased once again. The rise of nationalist and racist ideas contributed as much hereto as the growing political influence of the labour movement did with its views on the “protection of the national labour market” against the immigration of workers who could undercut wages and break strikes. Increasingly, indigenous and migrant minorities were seen at large as a threat to internal s­ ecurity, the © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2022 J. Oltmer, The Borders of the EU, essentials, https://doi.org/10.1007/978-3-658-39200-0_2

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homogeneity of the population, economic stability and national culture. Restrictive policies and immigration barriers against foreign nationals as well as the erection of formal or informal barriers to social participation were intended to minimize the risks allegedly posed by minorities (Collomp 2003). Finally, during the First World War, passport and visa requirements were introduced for interstate travel in the European North Atlantic region, and crossing borders was made much more difficult. This innovation was the result of the growing security and control needs of the states in a situation of war (Lucassen 1998; Torpey 2000, pp. 111–117). The requirement to apply for a visa, designed to control migration before it took place, developed after the First World War into a central instrument for controlling migratory movements (Oltmer 2020). Although the need to monitor and influence spatial movement was high and remained so, it seemed to many governments in the interwar period that the careful restriction of controls was called for: in many cases it was argued that visa regulations would not only impede travel but also hinder the circulation of goods and capital (Oltmer 2005, pp. 427–433). The waiver of visa requirements in the relations between individual (but by no means all) states was considered a means of promoting economic development and a symbol of mutual trust, which found expression in the privileging of travel in the context of numerous bilateral visa agreements. However, as early as the 1920s and 1930s all negotiations on visa agreements in Europe made clear that they could not be limited to regulations for business people and tourists. They necessarily had to touch on the question of whether and to what extent visa-free travel applied to those who wanted to take up employment as migrant workers or claim protection as political refugees in the country of destination (Mau et al. 2015). Regulations on the restriction of the right of free movement and visa requirements, as well as the facilitation of border formalities, also took place in Western Europe after the Second World War initially by means of bilateral agreements. In the 1950s, numerous states concluded such contracts again. Belgium, the Netherlands and Luxembourg, however, left the path of mere bilateral understanding and agreed on a passport union in 1960. This – but also the bilateral agreements on visa-free travel and the facilitation of border formalities for people and goods – was the prerequisite for multilateral coordination on the waiver of border controls along internal borders, as discussed in the context of the EEC and finally established in the Schengen area. The conclusion of multilateral agreements and the establishment of supranational organizations that influenced the migration and border policy of European states from the 1950s also went hand in hand with an informal standardization

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of regulations in Europe, accompanying it through the early 1970s: With a treaty between France and Poland in 1919, the construction of a far-reaching network of bilateral agreements for the recruitment of (presented as temporarily employed) workers between agricultural economies in Southern and Eastern Europe and the industrial societies of Western, Central and Northern Europe began. By the early 1970s, around 120 recruitment agreements had been concluded. Large parts of Europe but also states in Asia (Turkey), North Africa (Algeria, Morocco, Tunisia) and West Africa (Ivory Coast, Senegal, Togo) were involved herewith after 1945. Although Eastern Europe did not form part of the network of recruitment agreements after the Second World War due to the division of the continent by an “Iron Curtain” (with the exception of Yugoslavia), the intensity of interstate cooperation increased especially from the end of the 1950s in Western Europe. The boom years of the post-war period led to an increase in demand for labour in the industrial countries, which was to be covered above all by immigration from Southern Europe and Turkey: some 46 new bilateral migration agreements were concluded between 1960 and 1974, following the 15 agreements signed between 1946 and 1959. These agreements initiated, facilitated and channelled the migration of many people. In the Federal Republic of Germany alone it is estimated that 14 million workers came as a direct or indirect result of recruitment activities from the end of the 1950s to 1973, of which around 11 million (or 80 %) returned to their countries of origin during this period (Münz et al. 1997, pp. 35–42). Although it was always about contracts between individual states, one can nevertheless speak of a “harmonization” of migration policy regulations in Europe: the contract texts were usually identical; their core formulations had already been developed by the International Labour Organization, as an organ of the League of Nations, in the interwar period. Because of the pronounced competition for workers from Southern Europe, the industrial countries were forced to guarantee minimum standards regarding employment, remuneration and accommodation after the Second World War. For the process of supranational organization-building in Europe, which began in the 1950s, the web of recruitment contracts and the practice of recruitment proved to be of immediate importance in that. Belgium, the Federal Republic of Germany, France, Luxembourg and the Netherlands were among the most important recruiting countries represented, while the remaining EEC founding member, Italy, was also the most important country of origin of female and male workers until the 1960s, who moved within the system of bilateral recruitment agreements existing in Europe (Oltmer et al. 2012; Oltmer 2014). Even during the negotiations on a “European Coal and Steel Community” (ECSC) – which Belgium, the Federal Republic of Germany, France, Italy, Lux-

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embourg and the Netherlands founded in 1951 for the joint promotion and control of coal and steel production as well as the duty-free marketing of products among themselves –  the freedom of movement for workers in the mining industry was provided. However, it was limited in that these nation-states were able to control such movement according to their respective labour-market interests. A more farreaching freedom of movement was only decided on by the six contracting states of the ECSC within the framework of the “Rome Treaties” of 1957, with which the EEC was founded. The contracting parties to the EEC justified the granting of freedom of movement, taking up the argument of classical liberalism of the 19th century, according to its importance for economic growth and the convergence of living standards across member states. The aim of European integration is the unhindered circulation of goods, services, capital and labour as far as possible. The initiative for the freedom of movement regulation came again, as in the case of the ECSC, from Italy. For this Southern European emigration country, freedom of movement was one of the core elements of its European policy. While the Italian position had met with considerable resistance from the other contracting parties during the ECSC negotiations, the former was largely able to impose its will in 1957. Crucial was the sharply increased demand for labour in the five partner countries experienced since the early 1950s. Even in the Federal Republic of Germany, which registered high unemployment in 1951, full employment had prevailed from 1956, so that following the first German recruitment contract with Italy in 1955 further ones followed with Spain, Greece, Turkey, Morocco, Portugal, Tunisia and finally with Yugoslavia from 1960 onwards. Nevertheless, the other EEC member states did not fully embrace the Italian position: In order to be able to protect their own labour markets at any time, they were given the opportunity to “limit freedom of movement for reasons of public order, security and health”.1 Different national interests in the freedom of movement issue were thus interwoven in the Rome Treaties. Italy remained a key driver for the implementation of the freedom of movement regulation, which was initially still used mainly by migrants from that country (Romero 2015, p. 33). Article 48 of the 1957 EEC Treaty stipulated that the free movement of workers within the Community should be implemented by 1969. After that, any “different treatment of workers of the Member States with regard to employment,

1 Article

56 of the EEC Treaty: https://ec.europa.eu/romania/sites/romania/files/tratatul_de_ la_roma.pdf (04.09.2020).

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remuneration and other working conditions” was to cease.2 The cooperation of national employment administrations was also to remove obstacles to movement between member states and establish a European labour market by balancing supply and demand for labour or work. The three freedom of movement regulations of 1961, 1964 and 1968 implemented this objective of the Rome Treaties, facilitated a “European internal migration” of workers (and their family members), and made it more difficult to control the respective labour markets nationally. The 1961 regulation basically freed up the taking up of employment in another member state and abolished the need for a visa, a national ID card or a passport to cross the border. In 1964, the privileging of indigenous workers in the allocation of jobs was abolished. Since 1968, migrant workers have not needed a national work permit to work within the EC (Goedings 2005). The regulations of 1961 and 1964 still saw numerous restrictions on freedom of movement through national intervention options. However, they were not used as a result of the high demand for labour among the economies in Belgium, the Federal Republic of Germany, France, Luxembourg and the Netherlands. In fact, for workers from EEC member states there has been a largely unrestricted ability to seek and find work in other member states, to return to the country of origin or to change jobs within the EEC space since 1961 – that in order to achieve the best possible working and wage conditions (Sparschuh 2019, pp. 97–106). In the founding documents of the EEC, the freedom of movement regulations referred exclusively to economically active women and men and their family members. In the 1970s, in particular, the case law of the European Court of Justice, founded in 1952, ensured that they were also extended to other people in motion, including students, non-working people or the retired (Rogers et al. 2012, pp. 30–46). The judgments were later formalized into EEC/EC regulations. Based on this, freedom of movement became a core goal of the EU, which was finally introduced as a “right of Union citizens” in the “Treaty on the Functioning of the European Union” when the EU was founded in 1992. All Union citizens have the right to “move and reside freely within the territory of the Member States” according to Article 20.3

2 https://ec.europa.eu/romania/sites/romania/files/tratatul_de_la_roma.pdf

(04.09.2020).

3  https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri= CELEX:12012E/

TXT&from=DE (04.09.2020).

3

The Conclusion of the Schengen Agreement and Its Implementation

By the early 1970s, therefore, there was largely the free movement of workers and their family members between EEC member states, there were no longer visa requirements but there were still border controls. With the numerous recruitment agreements, cross-border labour migration between the Mediterranean coastal states and the industrial countries in Western, Central and Northern Europe had increased significantly. The consequences hereof are still often referred to under the in many respects incorrect term of “guest worker” migration. The EEC member states, with the exception of Italy, were the main destinations for labour migration taking place under these recruitment agreements. However, the end of recruitment and the sharp restriction of immigration in the early 1970s – specifically, between 1970 and 1974 – were the result of the debates on the costs of  settling foreign workers that had been ongoing since the late 1960s. They were long considered to be only temporarily present, but the duration of their stay increased as did the number of family members joining; the number of students from abroad also rose significantly. In the late 1960s, the consequences of this trend for schools, kindergartens, the social security system, the supply on the free-housing market and the preservation of the identity of a nation that was imagined to be homogeneous were considered to be so far-reaching that further recruitment was no longer considered acceptable. The beginning of a significant restriction on immigration was made by Switzerland in 1970: only as many new immigrants were allowed as other foreigners had emigrated from Switzerland, or if they were granted a permit for unlimited settlement. In 1971, the British government decided that only those Commonwealth citizens would be allowed to enter the country unhindered who could prove that their parents or grandparents had been born in Britain. This regulation came into force with the United Kingdom’s accession to the EEC on 1 January © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2022 J. Oltmer, The Borders of the EU, essentials, https://doi.org/10.1007/978-3-658-39200-0_3

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1973 and was a prerequisite for admission, because the other EEC member states did not want to exclude the free employment of non-European “British Subjects” in their countries (Layton-Henry 1992). In 1972, restrictions were imposed on other states, now in the form of a halt on the recruitment of foreign workers: Sweden and Denmark only allowed workers from other Scandinavian countries. Alongside the Federal Republic of Germany ending the recruitment of foreign workers in 1973 the Netherlands and Belgium also blocked the migration of workers from outside the EEC. The conclusion was the cessation of such recruitment in France in summer 1974. Although these measures were based on internal decisions and resulted from a specific national debate on the consequences of immigration, the fact that the  formal halting of recruitment was introduced in the target countries of labour migration in a relatively short period of time was also due to an increasing Europeanization of affairs: the media, politics and administration were very aware of the debates on migration and settlement in other European countries. In addition, there were increasingly used opportunities for political and administrative exchange on various – intergovernmental and supranational – levels about the respective measures to cope with the settlement of workers from abroad, now perceived to be a danger. The cessation of overseas recruitment was the prerequisite for discussion about a community without internal borders intensifying. In 1974, the heads of state and government of the EEC countries agreed on a passport union at the Paris Summit. The opening of internal borders achieved thereby would make a farreaching contribution to promoting a European identity and thus accelerate integration efforts. Border controls also bore high costs for the state and economy, in particular internationally operating companies would be at a disadvantage. However, implementation of the project failed: Concerns about national security and fears of a loss of migration policy control on the part of the member states prevented them from going through with it. It was also considered problematic that with the abolition of identity controls when crossing national borders not only citizens of EEC countries but also residents of third countries living there would have the opportunity to move freely within the EEC (Gehring 1998, pp. 47 ff.). A passport union and a reduction of border controls between the member states would only be possible, then, if a uniform European passport had been introduced for all EEC countries’ citizens. In addition, member states’ legal provisions on aliens would have to be coordinated ( on this and the following, see: Pudlat 2013; Siebold 2013). The decision to introduce a uniform European passport was made in 1981, thus with a seven-year delay. It occurred just then when, against the backdrop of

3  The Conclusion of the Schengen Agreement …

15

an increasing number of asylum seekers arriving on many EEC countries’ shores, the opening of internal borders was again considered inopportune. Basic resistance also came from the UK. The latter’s government wanted to limit European integration to the field of economics. Because the UK population did not carry ID cards and there was no similar passport requirement, there were no individual controls internally – only on the country’s external borders. In a borderless Europe, the UK would have had to either waive all controls on the individual or rebuild its passport and control system. The government was not prepared to do so. France and the Federal Republic of Germany therefore sought a way to abolish internal European border controls outside the framework of the EEC. Federal chancellor Helmut Kohl and French president François Mitterrand agreed in the “Saarbrücker Abkommen” of 1984 to gradually reduce controls along their shared borders in three steps. First, only visual checks were to be carried out at the border, but vehicles were no longer to be stopped. Agreed were also customs and exchange-rate alignments as well as increased activities to combat cross-border crime and to prevent illegal immigration along external borders. In the second step, the relocation of border controls to the external borders and the complete abolition of internal borders were to be prepared. For the implementation of the third step, the two states put in place the deadline of the end of 1986: by then, the value-added and consumption tax rates as well as the regulations on foreigner, narcotics and weapons law were to be aligned. This package of measures proved to be attractive for other EEC countries. They immediately expressed interest in concluding a similar bilateral agreement or, like Belgium, Luxembourg and the Netherlands, proposed to extend the arrangements made in the Saarbrücker Abkommen to their shared borders multilaterally. This was the trigger for the negotiations on the “Agreement” concluded in July 1985 in the Luxembourgish town of Schengen between Belgium, the Federal Republic of Germany, France, Luxembourg and the Netherlands “on the gradual abolition of controls at the shared borders”. The simplifications in crossing the border, which the regulations of the “Schengen Agreement” – a treaty of international law outside the framework of the EEC – provided were to benefit not only the citizens of the contracting states but also those in Denmark, Ireland, Italy and the UK – meaning all of the then EEC members. The governments of the five Schengen states formulated the goal of bringing forward the abolition of border controls by January 1990 and, in the meantime, negotiating measures to protect internal security to compensate for the abolition of controls along internal borders. This led to the “Convention implementing the Schengen Agreement” (“Schengen II”), which was to be signed in December 1989. But this did not happen at first: The fall of the Berlin Wall on 9 Novem-

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3  The Conclusion of the Schengen Agreement …

ber 1989 and the demise of the “Iron Curtain” seemed to bring new uncertainties for a Community without internal-border controls, since the countries of Eastern Europe had played no role in the previous considerations for the development of a Schengen area in the face of the Cold War. For the Federal Republic of Germany, the question also arose as to whether the territory of the GDR belonged to the Schengen area: the latter was not considered a foreign country by the Federal Republic of Germany, but there was a danger that the other contracting states would treat travellers from there as third-country nationals. With the foreseeable unification of the two German states, which took place in autumn 1990, this point was settled: when signing the Convention implementing the Schengen Agreement in June 1990, the German–Polish border was established as an external Schengen one. The contract came into force formally on 1 September 1993, but border controls between the five signatory states did not cease until the end of March 1995, ten years after the conclusion of the Schengen Agreement. Several factors turned out to be responsible for these long delays: In the negotiations in the early 1990s, the security interests formulated by the national interior ministries increasingly came into play. In contrast, those ministries responsible for the economy and for European integration lost standing (Baumann 2009; Balch and Geddes 2011, p. 23). This can be seen regarding the repercussions of the intense political, public and scientific debates on “globalization” (Bach 2020, pp. 139 ff.), which began in the late 1980s, and with the associated idea of the decline of the nation-state and its borders: an increasing density of wide-ranging economic, political, social and cultural relationships can be observed, which leads to increased feedback, dependencies and interdependencies that are no longer controllable by nation-states themselves. One element of this diagnosis, which increasingly spread with the erosion of national competences, was the idea of an (in a way, inevitable) increase in the spatial movement of people across continents as an accompaniment to globalization processes. In European nation-states, this resulted in the increased importance of security policy arguments: the negative consequences of globalization could only be offset by increased surveillance and the greater control of borders. Urgency was required in view of globalization being a rapid process, and intensified cooperation with other states and their security agencies was thus essential.1

1 It

is noteworthy that such a reflexive view of the “discovery” of globalization has so far been hardly found. For many years there has been intense debate about the beginning of globalization, its form and scope but rarely about the question of why the concept was

3  The Conclusion of the Schengen Agreement …

17

This perspective gained traction because, in addition to the idea of “globalization”, the category of “migration” also prominently established itself in late 1980s and early 1990s Europe; both concepts were closely linked together discursively. The formation of a migration discourse involving numerous actors from the political, administrative, civil society and scientific spheres led to a significant shift in the perception of spatial movements: Under the term “migration”, complex themes were newly structured or re-thought, ones that until then had been assigned to quite unconnected social areas. Examples are on the one hand flight/ asylum and on the other spatial movements for the purpose of securing work and income, but also demographic and economic change in Europe as well as population growth, poverty and economic development in the Global South. This far-reaching shift in discourse led to a re-ordering of the fields of action related to transnational spatial movements and their processing (in administration, in the social security system, in relief organizations, in civil society initiatives, in international agencies etc.). It also led to changed ways of perceiving and acting because, as a result of its link with the discourse on “the global” and “globalization”, it integrated ideas about worldwide spatial movements. In particular, focus was now on the Global South and, in view of the high rate of change presented by global networking, on formulating design requirements that included, inter alia, the development of concepts of “migration management” that could only be implemented through inter- and supranational coordination.2 The security policy-oriented debate about the consequences of globalization understood in this way, which intensified with the question of the effects of the fall of the “Iron Curtain”, meshed the fields of crime and migration very closely (Huysmans 2000; Baumann 2009): far-reaching measures to secure borders would be necessary in order to combat the cross-border crime perceived as now increasing as well as the “smuggling” or “smuggling” of people and the “illegal” – that is, punishable migration. This is also made clear by the wording of the “Schengen Border Code” of 2006, with which all previous agreements on bor-

embraced so quickly in the 1980s and early 1990s and what consequences that reception had for the various contexts in which the notion was deployed. In this context, the current efforts to historicize globalization – which also stimulate debate about the history of the concept and critical reflection on its application  – are to be welcomed. See in particular: Eckel (2020) and Wirsching (2020). 2 Very instructive, based on the case of Switzerland, with perspectives that can be transferred to other European societies is: Espahangizi (2021).

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3  The Conclusion of the Schengen Agreement …

der controls were summarized: “Border controls should contribute to combating illegal immigration and trafficking in human beings as well as to preventing any threat to the internal security, public order, public health and international relations of the Member States”.3 On the one hand, the “combating of illegal immigration” appears here the most important consideration, as the stated first priority of the task force established to oversee border controls. On the other, it is argumentatively equated with the “threat to the internal security, public order, public health and international relations of the [EU] Member States”. The Schengen Agreement had a significant suction effect on other European countries in the 1990s: Italy had already joined in 1990, Spain and Portugal followed in 1991, Greece in 1992. They implemented the regulations parallel to the five original signatories. Austria had already expressed interest in the mid-1980s and joined the Schengen area as part of EU accession in 1995. In 1996, the five states of the “Nordic Pass Union” (Denmark, Finland, Iceland, Norway, Sweden), which had existed since 1957, signed up to the Schengen Agreement, although Norway and Iceland were not striving for EU membership. Switzerland, as a nonmember of the EU, also held negotiations on an association agreement, as concluded in 2004. With the “Amsterdam Treaty” of 1997, “Schengen” became part of the EU regulatory canon. The UK did not sign the Schengen Treaty. Because EU member the Republic of Ireland did not want to introduce a Schengen border with Northern Ireland it also waived becoming part of the Schengen area, too.

3  https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006R0562&

from=DE (04.09.2020); see also, the wording of the corresponding provisions of the Treaty of Maastricht 1992 in Title VI:, https://eur-lex.europa.eu/legal-content/DE/ TXT/?uri=CELEX:11992M/TXT (18.09.2020).

4

The Schengen Area’s Eastern Expansion

When the Schengen area was expanded to the south and north, the freedom of movement across borders was particularly focused on holidaymakers. If debates arose about the dangers of opening borders, they usually revolved around the challenges of police cooperation due to the concern that the possibility for criminal prosecution would be restricted in an area without border controls. The discussion about a shift of the Schengen border to the east, on the other hand, was dominated by the question of how to deal with an east–west migration declared undesirable (Siebold 2013, pp. 234–238). Not only the stability of labour markets, social security systems and wages in the north, west and south of Europe were considered at risk but also increasingly social conflict seemed to loom, too (Grabbe 2000; Engbersen et al. 2010). The process referred to as the “fall of the Iron Curtain” and “collapse of the Eastern Bloc” was a mixture of various political tensions and conflicts that in part led to situations of social schism. Structural prerequisites for increased migration were the transformations – often perceived as social crises – of the political, economic and social systems in Central, Southeast and Eastern Europe: The centrally planned economies were transformed into market economies, state-owned enterprises were privatized, prices for basic foodstuffs and rents were no longer subsidized, employment guarantees ended. Especially the accelerated restructuring in the 1990s led to increased unemployment, inflation rates and prices, while savings were devalued, many qualifications no longer seemed to meet the requirements and real incomes fell. As late as 1999 – ten years after the upheaval of 1989/1990 – for example, the gross domestic product per capita in Central and Eastern Europe only reached 36 % of the value determined for Western and Central Europe. In 1999, the ratio of average wages in these two parts of the continent was 6:1 (Morawska 1999). © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2022 J. Oltmer, The Borders of the EU, essentials, https://doi.org/10.1007/978-3-658-39200-0_4

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At the end of the 1980s and the beginning of the 1990s, the number of people from Poland, Hungary and Czechoslovakia who applied for asylum in Central and Western Europe would increase rapidly. Soon, asylum seekers from Romania, Bulgaria and Albania followed. In the states of Western Europe, political discussions about the abusive use of asylum rules were the initial reaction, followed soon by restrictions on access to asylum procedures. They culminated in the context of the extensive displacement that resulted from the break-up of Yugoslavia in the 1990s. According to the United Nations High Commissioner for Refugees (UNHCR), in 1995, 3.7 million people were displaced regionally as a result of the Yugoslavia conflict. In addition, several hundred thousand people fled to other European countries and remained there for varying lengths of time (Selm 1998, pp. 173–239; Calic 2006). During the war in Bosnia and Herzegovina from 1992 to 1995, the number of asylum seekers in Western and Central Europe increased significantly. Estimates suggest that approximately 2.5 million people fled because of the military conflict in and around Bosnia and Herzegovina. Around 600,000 of them moved internally, while a similar number remained within the states of the former Yugoslavia. About 1.3 million people arrived in other countries, about half of them in EU ones. In 1997, there were still 580,000 asylum seekers from Bosnia and Herzegovina in the EU. The largest group of 340,000 such individuals was in Germany, which pursued a policy of increased pressure for return: people who had fled Bosnia and Herzegovina because of war and civil war were not allowed to apply for asylum. A precarious residence status and numerous deportations caused the number of asylum seekers from Bosnia and Herzegovina in Germany to decrease to one-tenth of the value in 1997 – that is, within only six years. The new east–west labour migration after 1989 was initially directed primarily at the immediately neighbouring countries in the west: Italy or Greece were mainly the target of Southeast European immigration, with Albanian migration dominating. Immigration to Austria was mainly fed by movements from Yugoslavia and its successor states, while in Germany Polish employees predominated. Of the working migrants from Poland registered in Western and Central Europe, three-quarters worked in Germany in the 1990s. In order to reduce permanent immigration and undocumented labour migration as well as to focus immigration on those labour-market areas where the need seemed to be particularly high, Germany agreed with a large part of the East-Central and Southeast European states on agreements to regulate labour migration – from Bosnia-Herzegovina and Bulgaria via Croatia, the Czech Republic, Slovakia, Serbia, Latvia, Macedonia, Poland, Romania to Slovenia and Hungary. Central elements were the limitation of the scope of immigration on the basis of needs analyses of the German labour

4  The Schengen Area’s Eastern Expansion

21

administration as well as the restriction to seasonal or short-term activities (usually one to three months) (on this and the following, see Dietz 2016). In the 1990s, other West and Central European countries also concluded such bilateral agreements, although they never reached the extent of German regulations. In 2003, a total of 320,000 Polish migrant workers were employed in Europe under bilateral agreements, 95 % of them in Germany. The restrictive control of labour migration by the latter contributed to other destinations in Western and Central Europe becoming more attractive to migrants from Poland. From the mid-1990s, the number of movements to Spain, the United Kingdom, Belgium, France, Italy and finally also to Ireland increased (Kaczmarczyk 2010, pp. 165 ff.). However, the fact that the areas of employment in Germany that most frequently demanded Polish workers also increasingly sought workers from further-away Eastern European countries (e.g. Romania or Bulgaria) from the end of the 1990s onwards was also due to the improved economic situation in Poland itself: the latter developed into an immigration country; moreover, many highly qualified Polish workers returned to their country of origin because of the increased employment opportunities there. According to UN data, between 2000 and 2010 some 4,000 more people immigrated to Poland on average , than emigrated from there every year. This was one reason why the expected increase in emigration from Poland to Central and Western Europe did not materialize after the country’s accession to the EU in 2004. However, from 2015 onwards emigration from Poland again exceeded immigration– albeit remaining at a relatively low level (15,000 more people emigrated than immigrated annually) (Federal Statistical Office 2017). However, Eastern Europe must not be understood solely as an emigration region in this context. Building on the migration relations before the fall of the “Iron Curtain”, when Poland, Bulgaria, Romania and Ukraine tended to be emigration countries and Czechoslovakia, Hungary and the GDR immigration ones (albeit made up of relatively small movements) (Mazurkiewicz 2019), Hungary and the Czech Republic remained the targets of labour migration from Eastern European neighbouring countries during the 1990s. Only at the end of that decade did they lose their importance as immigration destinations. This was due, among other things, to the growing networks of Eastern European workers in and to Western Europe, which considerably facilitated further movement from east to west. How many people from the countries of Central and Southeast Europe, which became part of the EU in 2004, migrated from 1989 to the early 2000s to the west of the continent cannot be reliably determined – especially because in many cases these were temporary migratory movements. Estimates suggest that 3.2 million people from these countries emigrated rather than immigrated, with Romania

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and Bulgaria accounting for more than 60 % hereof. The population of Bulgaria, for example, is said to have decreased by 700,000 people (around 7 %) between 1989 and 2004 due to emigration (Engbersen et al. 2010, p. 9 ff.; Mintchev and Boshnakov 2010, p. 231 ff.). Between 2001 and 2005, one-in -ten households in Bulgaria is said to have migrated to another country. In Romania, this proportion is said to have been 35 % of all households between 1990 and 2000 (Potot 2010, p. 250). Highly qualified workers were hardly subject to any restrictions on emigration to the west. They came mainly from Poland, Bulgaria, Romania and the Baltic states, where the debate on a “brain drain” and the related economic consequences intensified in the 1990s. It also flared up because it could be observed that highly qualified migrant workers often took up positions in the west that were below their level of qualification (“brain waste”) (Galgóczi et al. 2012, p. 8). Both in the east and in the west of Europe, the practice of “social dumping” was also discussed as a negative consequence: namely, the practice of Western companies commissioning workers or entire companies from Eastern European EU countries to carry out orders at low wages or costs, meaning under the conditions of the country of origin. However, there was also increased movement to the east or southeast of Europe: seniors from wealthier EU countries settled in countries with better climatic conditions and lower living costs as part of “sunset migration” or “lifestyle migration” (Boswell and Geddes 2011, pp. 186–194). The global financial and economic crisis of 2007/2008 caused considerable changes in movement directions. It is said to have resulted in a loss of seven million jobs in old EU states. This had a particularly strong effect on working migrants from new Schengen states in Eastern Europe who were working in the West – their unemployment rate was already above average before the crisis. Herewith, unemployment among immigrants increased significantly more in Belgium, Ireland, Spain, France, the Netherlands and Sweden than among the native population (Galgóczi et al. 2012, pp. 17–21). In the Federal Republic of Germany and Luxembourg, however, unemployment decreased because both countries quickly overcame the crisis, the economy expanded and there was a high demand for labour. This also led to migrants from Eastern Europe who had lived in Portugal, Spain, Italy and Greece – countries particularly affected by the financial and economic crisis – moving northwards after 2008 and increasingly reaching Germany or the UK, for example (Glorius and Domínguez-Mujica 2017, p. 7 f.). Estonia, Poland, Slovenia, the Czech Republic, Hungary and Cyprus started negotiations to join the EU in 1998. Since 2000, Bulgaria, Latvia, Lithuania, Malta, Slovakia and Romania had also been negotiating their accession. All of these states, with the exception of Romania and Bulgaria, became EU members

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on 1 May 2004. In accordance with the Amsterdam Treaty of 1997, they thus also adopted the Schengen Agreement. However, the abolition of border controls visà-vis these countries and thus the full implementation of the Schengen Agreement did not take place until 21 December 2007, when the security standards required for this step (with the exception of Cyprus due to the division of the island) were met. But not all components of EU law applied from the very beginning. In particular, the free movement of workers was suspended in some Western European countries for up to seven years due to concerns about the consequences of high immigration there for national labour markets. Ireland, Sweden and the UK opened their labour markets to citizens of Eastern and Southeastern European countries that became EU members in 2004, but only in that same year. Greece, Portugal and Spain followed in 2006, the Netherlands in 2007, France in 2008. Germany made full use of the seven-year period and did not open its borders to workers until 2011 (Boswell and Geddes 2011, pp. 76–102). Bulgaria and Romania became EU members on 1 January 2007, Croatia on 1 July 2013. All three countries have signed the Schengen Agreement, but they still do not meet the balance rules for border and migration policy stipulated in the Schengen Implementation Agreement of 2021, which is why border controls still exist vis-à-vis other Schengen countries. Did the agreement of European states on common rules for free movement and the waiver of border controls form a model for other parts of the world? At least partially, this can be said of Latin America and West Africa (Lavenex et al. 2016, p. 474 f.). The European initiative to establish a common market including rules on free movement was already picked up on by the Andean Community (Comunidad Andina) in 1969. Bolivia, Chile (withdrew in 1976), Ecuador, Colombia, Peru and Venezuela (withdrew in 2011) agreed on non-discrimination rules and the right to equal access to education and healthcare, the housing market and the social security system for citizens of partner states working in another country of the Andean Community. Since the early 2000s, the “Andean Pass” has facilitated movement across member states’ borders and guaranteed visa-free travel. The “Andean Migration Statute” (Estatuto Migratorio Andino), which was also concluded at that time, provides for the free movement of citizens of the contracting states and, like “Schengen”, is intended to eliminate all controls along the internal borders of the Andean Community; it has yet to come into force more than 18 years later, however. The “Southern Common Market” (Mercosur), founded in 1991, also initially leaned towards European integration and understood this as a model. Founded by Argentina, Brazil, Paraguay and Uruguay, with other countries later joining too,

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Mercosur is essentially a customs union, but also pursues migration policy goals: since the end of the 1990s, a regulation on the transfer of pension claims across borders as well as the equal treatment of and non-discrimination against migrant workers has been anchored in law. There is also visa-free travel (Brumat and Acosta 2019). As in Europe, migration- and border policy measures were primarily justified by the interest in promoting the economy. In the face of the severe economic crisis in South America at the end of the 1990s and the beginning of the 2000s, Mercosur moved away from the idea of understanding migration policy primarily as a question of economic development. Above all, the discussion about how to deal with hundreds of thousands of undocumented migrants, who were often particularly affected by the consequences of the economic crisis, led to a political initiative that significantly improved the chances of member states’ citizens obtaining a residence permit in another partner country. The fact that this was a regularization of their stay and not a freedom of movement regulation is shown by the fact that border crossing was not made easier. While these measures reacted to challenges in South America and the political debate explicitly rejected European integration being a mirror for South American migration policy, the EU has recently become more present again as a political role model: since the beginning of the 2010s, Mercosur has been pursuing the goal of developing a common citizenship – the plan has yet to be implemented, though. Approximately a decade after the Andean Community, the Economic Community of West African States (ECOWAS) agreed to a “Protocol on Free Movement of Persons, Residence and Establishment”. It laid down as a core goal the free movement of citizens of the member states Benin, Burkina Faso, Cape Verde, Ivory Coast, Gambia, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo in three phases. The 1979 agreement included provisions on visa-free entry and the right to seek employment and settle in another member state without having to first obtain approval. Immediately after the end of the colonial era in West Africa, a political consensus emerged on strengthening interstate cooperation. The goal was not only to improve the economic situation. Much more, it was also about promoting political dialogue, not least to find common ways of dealing with the far-reaching repercussions of colonization and decolonization – including the highly consequential arbitrary drawing of state borders by the colonial powers to manage migration relations. To this day, the political elites in the ECOWAS states have adhered to the goals of the 1979 Protocol, although various agreements have not entered into force in all member states: While regulations on visa-free entry and subsequent stays of up to 90 days had already been implemented in all member states by the

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mid-1980s, this was not the case for the right to employment and the establishment of self-employed activity. And even if the common regulations have been implemented in national law, in many states it is not guaranteed that they will be applied in practice. For a long time, the EU supported the process of further developing freedom of movement regulations in West Africa financially and politically. Since the mid2010s, however, a paradigm shift can be observed: In view of the increase in the number of asylum seekers from West and East Africa to Europe and the widespread belief in the EU that it could increase significantly in the future, the EU’s Africa policy no longer focuses on the promotion of the integration of economies but on the strengthening of the separation of these states from one another. Crossborder movements are to be controlled and prevented with greater frequency in West Africa in order to make migration to Europe more difficult. A similar development is to be expected in East Africa: While in West Africa a policy of supranational cooperation has found many supporters since decolonization, interstate relations in East Africa have been characterized more by conflict and war. Cross-border movements have been predominantly perceived as risks to security and the economy. Only since the peace agreement between Ethiopia and Eritrea in 2018 has regional cooperation in Northeast Africa, in particular within the framework of the “Intergovernmental Authority on Development”, increased as a common institution of seven countries –  as also aimed at facilitating crossborder migration (Dick and Schraven 2018). Everything points to the fact that the EU will soon withdraw its support here as well.

5

The EU’s Asylum Policy as a Result of the Establishment of a Common External Border

Because control-free internal borders seemed to allow asylum seekers to move relatively unhindered within the Schengen area, regulations on the common handling of asylum applications would already be discussed at the end of the 1980s. Almost at the same time as the Convention implementing the Schengen Agreement, which already contained some asylum provisions, the “Convention on the determination of the competent state for the examination of an asylum application lodged in a Member State of the European Communities” was signed in Dublin in 1990.1 After protracted debates on implementation, it came into force in 1997. On the one hand, it stipulates that an asylum procedure is to be carried out in the EU state in which the asylum seeker first entered. In this way, it is intended to prevent asylum seekers from being rejected by individual states and thus travelling from country to country within the Schengen area without due procedure (discussed under the formula “refugees in orbit”). On the other hand, the regulation is intended to prevent a further application from being made in another country in the event of a rejection of an asylum application by a member state (so-called “asylum shopping”) (Lavenex 2001). Because asylum seekers and the implementation of asylum procedures are primarily the responsibility of states on the EU’s external borders, the Dublin system has led to significant imbalances (in the 1990s, mainly to the detriment of countries with a border to the European east; since the early 2000s, mainly to the detriment of the Mediterranean coastal states of Spain, Italy and Greece). However, a mechanism for the further distribution of refugees within the EU proved to be

1 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:41997A0819(01)&fro m=DE (31.08.2020).

© The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2022 J. Oltmer, The Borders of the EU, essentials, https://doi.org/10.1007/978-3-658-39200-0_5

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5  The EU’s Asylum Policy as a Result …

unenforceable due to the resistance of various states, most recently those in Eastern Europe in particular. The sizeable differences between the asylum systems of the member states could not be resolved either. They did agree on a “Common European Asylum System”, however. Yet it was only able to contribute to the standardization of national asylum regulations to a limited extent. The European Parliament and the European Commission have been urging closer cooperation between member states since the 1990s, pointing to the advantages of introducing common rules and being seen to strengthen the rights of asylum seekers. The European Council, as an institution representing the EU member states, has generally taken a much more restrictive position. There are also far-reaching disagreements between the member states and in the respective domestic debates on the orientation of asylum policy. While some states want to protect the rights of asylum seekers, others point to the primacy of immigration control and limitation of movement. The question of the participation of asylum seekers in the labour market has long been just as controversial as the granting of social benefits or freedom of movement in the member states. In the EU countries, the debate is also engaged with by actors at different levels because of the varying asylum systems in place: in some cases, the provision of benefits and opportunities for asylum seekers is exclusively the responsibility of the state, in others responsibility is shared federally or belongs to the competence of the municipalities. At the beginning of the 2000s, the EU decided on minimum standards for national asylum legislation and asylum procedures – less in the interest of those seeking protection, but above all to exclude the latter from continuing to migrate (in view of very different standards) so as to find better conditions in other countries. However, the minimum standards remained limited by national discretionary powers, so that the differences in procedures and benefits granted to asylum seekers and recognized refugees remain pronounced. In addition, the minimum standards are not met in all member states – not least because, from the perspective of many state actors, long procedures, low benefits and few rights can contribute to keeping the number of asylum applications low, with any “pull factors” hence excluded (Boswell and Geddes 2011, pp. 150–175). Against this background, the Schengen or EU states were able to agree on measures in the decade before and after the turn of the millennium that were primarily aimed at strengthening border controls and border protection and reducing the number of people who could apply for asylum on the EU’s external borders. Of particular importance here was the assumption of border-control tasks by third countries and the promotion of or the demand for the introduction of passport,

5  The EU’s Asylum Policy as a Result …

29

visa and border controls along the EU’s borders. In the sense of “remote control” (Aristide Zolberg), not only movements of people outside the EU were monitored more often but also immobilized as far as possible. Instruments for the realization of the pre-displacement of border controls have been, since the 1990s, primarily regulations to declare other states as “safe third countries”, “safe countries of origin and transit countries” and thus make them responsible for asylum procedures themselves (Geiger and Pécoud 2010). Such regulations have often been supported by agreements with countries of origin or transit, which were by no means always willing or able to guarantee human rights. Cooperation and association agreements of the EU with third countries, inter alia, under the “European Neighbourhood Policy” regularly include, for example, “mobility or migration partnerships”, as migration policy provisions (Bendel and Ripoll Servent 2018). Initially, the focus was mainly on aspects of border protection, the control of movement and the re-admission of third-country nationals. Soon, however, the importance of the mediation of information on movement well before reaching the EU’s external borders and coordination on how potential flight could be prevented grew. The EU has so far concluded mobility partnerships with nine states: Moldova (2008), Cape Verde (2008), Georgia (2009), Armenia (2011), Azerbaijan (2013), Morocco (2013), Tunisia (2014), Jordan (2014) and Belarus (2016). These states are to block unwanted migration and are obliged to take back those migrants who do not have or receive residence status in the EU. Incentives for the conclusion of these contracts include economic and financial support as well as the liberalization of visa requirements. The instrument of migration partnerships was introduced in reaction to the increase in the number of asylum seekers entering the EU in 2015/2016: they would be mainly concluded with North, West and East African states in order to prevent movements towards Europe or to return people from the latter under eased conditions. Unlike in the case of mobility partnerships, visa facilitation is not foreseen: the focus is on development- and trade policy cooperation instead. As a glance at the asylum statistics of the 2010s shows (see Tab. 5.1), the EU or individual member states remained important countries of arrival and reception of asylum seekers despite the described measures to reduce asylum immigration. But why was Europe, and here in particular Germany, the main target of the movement of Syrian asylum seekers in particular in the middle of the 2010s? Six elements of a complex relationship are sketched out here. The order of the arguments does not represent a hierarchy, all the factors mentioned are interconnected to one another:

30 Tab. 5.1  Number of asylum seekers in the 28 member states of the EU (2011–2019)

5  The EU’s Asylum Policy as a Result …

Year

Number

of which Germany

2011

309,045

53,240

2012

335,290

77,485

2013

431,100

126,705

2014

626,965

202,645

2015

1,322,850

476,510

2016

1,260,920

745,160

2017

712,250

222,565

2018

664,410

184,180

2019

743,595

165,615

Source: Eurostat.

1. Financial resources: Important countries of origin of asylum seekers in the EU were in relative geographical proximity (Syria, Southeast Europe). The costs of flight from there were, therefore, limited – at least in comparison to movements from other global conflict hotspots such as West or East Africa, South Asia or Latin America, with those concerned having rarely reached Europe in recent years and decades. In addition, Turkey as the most important first destination of the majority of Syrian asylum seekers borders directly onto EU countries – and at the same time seemed to offer limited prospects for the future against the background of more than three million asylum seekers in the country, precarious residence status and limited access to education and the regular labour market. 2. Networks: Migration takes place primarily in networks that are constituted by kinship and acquaintance. EU states and Germany in particular developed into an important destination for asylum seekers in the mid-2010s because there were (with considerable differences between the EU states, see above) already relatively large communities of origin in some cases, which served as a central point of contact for people fleeing from war, civil war and authoritarianism. This applied not only to people from Syria and Southeast Europe, but also to those from Iraq, Afghanistan and Eritrea. And because migrant networks increase the likelihood of further migration, the immigration of asylum seekers gained a momentum that could be observed in particular in the years 2014 to 2016. 3. Admission perspectives: States decide with broad discretionary powers on the admission of migrants and who is to receive protection status. The willingness

5  The EU’s Asylum Policy as a Result …

31

to grant protection is always the result of multilayered processes of negotiation by individuals, collectives and (state) institutions, whose relationships, interests and categorization practices are subject to constant change. A permanent shift in the political, administrative, journalistic, scientific and public perception of migration is associated with a change in view regarding who is to be understood as seeking protection and to what extent, as well as for how long protection or asylum is to be granted. In the early 2010s and well into 2015, a relatively high level of willingness to accept new arrivals was observed in the Federal Republic of Germany to a greater extent than in many other EU countries. This was due to a positive expectation of the future in politics, business and society, not least against the background of the favourable situation of the country’s economy and labour market. The wide-ranging discussion of the shortage of skilled workers and of demographic change, which has been going on for many years now, also led to an opening, as did the acceptance of human rights standards and the recognition of the need to protect people primarily from Syria – from which a great willingness to engage in volunteer work also resulted. 4. Removal of migration barriers: As described earlier, from the 1990s the EU built a system to defend against refugee flows. Migration policy cooperation diverse in nature with countries like Libya, Egypt, Tunisia, Morocco, Albania or Ukraine sought to prevent potential asylum seekers from reaching the EU’s borders (Geiger and Pécoud 2010; Gammeltoft-Hansen 2011; Walton-Roberts and Hennebry 2014). This EU pre-field security collapsed in the early 2010s due to the de-stabilization of various of these cooperation partners on the Union’s periphery (including in the context of the “Arab Spring”, but also of the Ukraine conflict). The breaking down of their political systems was closely linked to the deep-seated consequences of the global financial and economic crisis post-2008, which exacerbated social conflicts in numerous EU neighbouring states, limited state-action options and minimized the willingness for and scope of cooperation with the EU. 5. Dissolution of the “Dublin system”: The global economic crisis not only affected the outer ring of the pre-emptive security against the immigration of asylum seekers beyond the borders of the EU but also the inner ring, too. The European “Dublin system” developed in the early 1990s tended to lead to the closure of the EU core states and in particular Germany to global refugee movements, leaving instead responsibility for the conducting of asylum procedures to those European states in which applicants first entered (Lavenex 2001). This could only be states on the EU’s external borders. For a long time the system seemed to work, especially because the number of refugees

32

5  The EU’s Asylum Policy as a Result …

r­eaching European borders was relatively low from the mid-1990s onwards. However, due to the financial and economic crisis of the next decade and in the context of the increase in the number of asylum seekers various European border states– primarily Greece and Italy – were increasingly unwilling and unable to bear the unevenly distributed responsibilities of the Dublin system, to register refugees and to integrate them into their respective national asylum procedures. 6. The Federal Republic of Germany as a “substitute refuge”: The global financial and economic crisis led to a significant decrease in the willingness of traditional and important asylum countries such as France or the United Kingdom to grant protection within the EU (see point 3 on the different negotiations on the admission of asylum seekers in the EU states). In this context, Germany became a kind of substitute refuge in 2015 and thus a new target in the global flight situation – new in that there had been no extensive movements of refugees from outside Europe to the Federal Republic up to that point. Several key factors contributed to the fact that, in particular since autumn 2015, the migration of asylum seekers significantly changed as a constellation: There was now hardly any talk of a European or even global sharing of responsibility for the world’s contemporary refugee movements. The disinterest or refusal of many states to take in asylum seekers not only led to measures to close borders emerging everywhere, resulting in people fleeing being immobilized or having to take new paths that were associated with greater risks, higher costs and less chance of finding protection. As a result of the failure of the responsibility-sharing discussed for a long time also in the EU, states and populations that initially showed a greater willingness to take in asylum seekers, such as Turkey, Lebanon, Germany or Sweden, relatively quickly also turned to a political trajectory of border closure and disinterest in accommodating these individuals. Asylum seekers everywhere were presented as potentially being a burden and a threat to security, economic prosperity, social systems or specific cultural and political values of a society, with these individuals often depicted as homogeneous in nature. The EU had, as described, since the mid-1990s with the Dublin Agreement and the reforms of 2004 to 2006 developed instruments for the “harmonization” of member states’ asylum policy regulations and related procedures. But the framework remained fragmented, so to speak: a project run aground from the beginning (Bendel 2017), the application of which failed in the constellation of 2015/16. Thereafter, cooperation between EU member states was again limited to the development of restrictive rules for a common border and visa policy as

5  The EU’s Asylum Policy as a Result …

33

well as to cooperation on limiting asylum immigration – as could be realized, for example, within the framework of the agreement concluded with Turkey in March 2016. This has been accompanied by the renaissance of pre-border security: Even more than in the decade before and after the turn of the millennium, agreements with states beyond the borders of the EU are to stop (potential) asylum seekers well before reaching the latter’s external borders. In addition, there has been a tightening of asylum policy within the member states, intended to contribute to (potential) asylum seekers not taking flight for Europe in the first place. At the same time, it seemed to many member states that increased border security within the Schengen area was necessary. With the increase in the number of asylum seekers in the mid-2010s, calls for reducing the barriers to border controls’ enactment in the Schengen area intensified. Such measures have been re-introduced more often since then. Furthermore, six of the 26 Schengen states carry out checks on persons along parts of their state borders – or, in the case of France, within their own territory. The reasons given by all states for the re-introduction of border controls are similar: protection against global terrorist threats, cross-border organized crime and so-called “secondary movements” of asylum seekers within the Schengen area.2 That is, phenomena marked as the challenges of globalization, ones to be addressed not only by European cooperation but also by the emphasis on national sovereignty and the protection of national territories.

2  European

Commission, Temporary Reintroduction of Border Control, 2019: https:// ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroductionborder-control_en (20.09.2020).

6

Conclusion

Since the conclusion of the Schengen Agreement, the gravity of asylum and migration policy has increased significantly for the EU. Until well into the 1990s, common activities in these fields were characterized by procedures for intergovernmental decision-making: above all, the interior and justice ministries of the EU countries agreed on common political initiatives and regulations. Since the end of the 1990s, however, the procedures have been Community-based. That is, member states and the EU’s supranational institutions decide together: legislative proposals come exclusively from the European Commission, while they are adopted by the European Parliament and the Council of the EU. The field of labour migration is still excluded from common initiatives. The demand of the “Lisbon Treaty”, which came into force in 2009, for the development of an EU immigration policy has remained largely unfulfilled. The only area in which this field has seen a departure from the primacy of national policy is in relation to highly qualified migrants: because of the great international competition over this group, the EU member states have focused on common activities here. A review of the negotiations on the Schengen Agreement of 1985, the Convention implementing the Schengen Agreement of 1990 and the subsequent national and interstate debates on the enactment of regulations makes one thing clear: the longer the discussion and the more intensely new worldviews such as “globalization” and “migration” shaped perceptions of the present and future of the community of states, the greater the need for regulation the participating states saw via the border and migration policy-motivated compensation measures of the Implementing Convention: because “Schengen” seemed to entail considerable risks, control capacities would have to be increased significantly – first through much greater police cooperation and heavily intensified surveillance of the EU’s © The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2022 J. Oltmer, The Borders of the EU, essentials, https://doi.org/10.1007/978-3-658-39200-0_6

35

36

6 Conclusion

e­ xternal borders, with the opening of its internal borders only able to take place thereafter. The agreed compensation measures of the Implementing Convention led to significantly more personnel being deployed along the EU’s external borders. Border protection remained the responsibility of the individual states. However, they are supported by Frontex, the EU's border agency, which was founded in 2004. Its resources and scope for action have grown continuously: While it had a budget of EUR 19 million in 2006, this figure was EUR 320 million in 2018. Frontex’s central task is to collect data on cross-border crime, the smuggling of people and goods, and on  the cross-border movement of people who do not have residence permits. These data are to be analysed, results prepared for the member states, concepts for border protection developed, research initiated, borderprotection activities coordinated and national border police supported. In order to expand Frontex’s operational capabilities, more EU border guards are to be deployed along the Union’s external borders in the coming years (Bossong 2019). Frontex is a sign of the growing importance of the idea of the need to secure the EU’s external borders, but also of the willingness to relieve those member states that take on the task of securing them for the entire Union. Frontex is also a sign that the core countries of Europe are not convinced in all cases that the states on its external borders are monitoring them efficiently enough (Fink 2018, pp. 22–79). The increased technologization and digitalization of border surveillance is also part of the intensified monitoring of the EU's external borders, which is why terms such as “e-border” or “technological borders” are also used (Dijstelbloem et al. 2011, pp. 1, 5). Since 1993, devices for document and baggage inspection as well as thermal imaging and surveillance cameras have been increasingly used along the initially mainly security policy-focused Schengen area’s eastern borders (but also at airports). They were supposed to deter people who did not have or had falsified entry documents, or who tried to enter hidden inside vehicles. Since then, the infrastructure for monitoring borders has changed and grown considerably: namely, through the use of drones, airplanes and satellites, but also via the much faster processing of ever more data within the framework of various Schengen or EU information systems – which can be described as the “digitalization of the border regime” (“Schengen Information System”, “Visa Information System”, “Eurodac”) (Marin 2011). Beyond the activities on and along the EU's external borders, the number of controls have increased within-country, too. Border protection has shifted from the border lines to the border area, which encompasses the entire territory of a state or the Schengen states as a whole. This includes measures such as “veil

6 Conclusion

37

checks”, which allow for controls far from a country’s borders, for example on important roads. The intensified cross-border cooperation of the security authorities of the Schengen states is also oriented towards the entire Schengen area and not towards the border lines per se. In addition, more and more private actors are being integrated into the border regime: Since the end of the 1980s, individual states, transport companies– and, above all, airlines –have required that personal documents be checked before embarking on journeys to the Schengen area. In the event of the transport of people with invalid papers, the companies concerned have to bear the costs of return transport and pay fines. This obligation was incorporated into the Implementing Convention (Laube 2010; Menz 2010). The development of a migration and border policy in the Schengen area and in the EU makes two areas of tension visible in the state community, which is characterized by the far-reaching heterogeneity of migration policy ideas in existence. It moves first of all between the poles of a supranational striving for unification on the one hand and the preservation of national autonomy on the other, which only finds itself ready at present for mutual coordination without surrendering sovereignty rights, and secondly between the enforcement of human rights as universally valid and the premises of internal security. Migration and asylum policy are generally regarded as highly sensitive areas regarding internal and national-identity policies within member states, where the restriction of national sovereignty appears particularly threatening in the face of the apparently limitless claims of those seeking protection, defined as human rights. Common interests were therefore marked and mutual regulations developed above all where an intensification of controls and restrictions on access to Europe was to be pursued. In contrast, the often-demanded sharing of responsibility for the reception of those seeking protection has remained largely unfulfilled – as the intense debates in the late 2010s about search and rescue operations in the Mediterranean, the handling of asylum seekers in camps on the outskirts of the EU or the failed further development of a Common European Asylum System would in many ways make clear.

What You Can Take from This Essential

• European integration did not develop uniformly or continuously in the field of migration and border policy, nor was it free of contradictions and conflicts. • The Schengen Agreement of 1985 represented a significant cut in border and migration policy. However, a vote on the design of a common migration policy had already begun in Europe in the 1950s. “Schengen” is therefore not a migration policy beginning, but only one of several important milestones. • At the same time as the implementation of the Schengen Agreement, a farreaching discussion began on the security risks posed by migration, while until then only the labour market and economic dimensions of spatial mobility had been debated. • The “securitization” of the discussion on migration was closely linked around 1990 to the enforcement of an understanding that Europe, nation-states and their options for action were subject to significant change as a result of the process referred to as “globalization”. • Since the early 1990s, with the establishment of an EU external border, the need for a common coordination of asylum policy has grown, but this has come up against member states’ very different respective interests. • Since the European states were only able to agree in a very limited and hesitant way on common asylum standards and the sharing of responsibility for asylum seekers, the political endeavour not to allow asylum seekers to reach Europe‘s borders at all would gain traction.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2022 J. Oltmer, essentials, https://doi.org/10.1007/978-3-658-39200-0

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