“Migration” Episode 1: Schengen Borders and Multiple National States of Emergency: From Refugees to Terrorism to COVID-19 with Dr. Elspeth Guild

Hello, thank you for joining us. We are proud to welcome you to our special series, Migration, brought to you by Brill, where we talk about creating a more inclusive world by revamping border policies in this rapidly changing global scenario. I'm your host, Li Jung-Grecco. Today, we're speaking with Professor Elspeth Gild. Her article is "Shengen Borders and Multiple National States of Emergency" from refugees to terrorism to COVID-19. Professor Gild is a Jean-Monnaie Professor at Persona, at Queen Mary University of London, and a visiting professor at the College of Europe in Bruges. Professor Gild, thank you so much for sitting down with us today. Thank you so much. This is such an honor to be included on this podcast. I'm delighted to talk to you about this issue, which is of tremendous importance, particularly in light of the arrival of over a million Ukrainian refugees over the last 10 days. It is very timely right now that we have you on during all this. So, first of all, can you tell us who is part of the Shengen area and what events have threatened its existence in the last six years? The Shengen area commenced in 1985 as a result of an intergovernmental move from a trucker's strike for the Canadians listening. They'll be well aware of the problems of over-excited truckers between France and Germany, which resulted in the German Chancellor and the French Presidents announcing that they would abolish border controls between the two countries. A wonderful announcement made on the Zarbbrook and Bridge extremely memorable. And to move this into a legal setting, they agreed a convention in 1985 abolishing border controls among themselves. Of course, the Benelux countries, the Netherlands, Belgium and Luxembourg, because of their tremendous dependence on the German and French markets, wanted absolutely to be part of this. So, the original agreement was between five states. The EU had put the abolition of border controls on goods and persons at the center of its agenda for the 1992 project. But that was only included in the EU treaties in 1987. So, Shengen was a bit of an event before the event among five member states, but extremely popular. By the time we get into the early 2000s, all member states, except Ireland, Denmark and the UK, have become part of the Shengen area with the abolition of interest-state border controls among themselves. The UK stayed out, because it was particularly anxious about irregular migration. Ireland stayed out to maintain the integrity of the border control-free area between the UK and Ireland. And Denmark joined, but as an international agreement outside of the EU, because it was part of what was called the Nordic Union, an area without border controls among the Nordic states. The non-EU Nordic states decided they very much wanted to be part of this. Norway and Iceland joined then Switzerland and Lichtenstein. And these four countries have always been outside of the European Union. There have been a couple of referenda in Norway about whether the Norwegians want to join the EU and they never have. But they wanted to abolish border controls with their EU neighbours. In the big enlargements of the EU in 2004, 2007 and 2011, when the Central and Eastern European states became part of the EU, the 2004 states, that is all the Central and Eastern European countries, and Malta and Cyprus became part of Schengen except Cyprus because Cyprus does not have a defined external border. You have the Green Line running through the island with the Turkish Cypriots on one side, the Greek Cypriots on the other, only the Greek Cypriots joined the EU. So you had a very different framework for Cyprus. Then in 2007, when Romania and Bulgaria joined the EU, they were not admitted to the Schengen system, Norway was Croatia when it joined in 2011. The whole of the Schengen system, this idea of the abolition of border controls among states, was incorporated from an intergovernmental framework into EU law in 1999. So we have a big moment of transformation and the insertion of this whole set of agreements about how to abolish border controls in an area where individuals, EU citizens have a right of free movement of persons, began to develop mainly complementarily. So the Schengen area for the abolition of border controls consists of 26 countries of which only some are EU member states, some are not. And the EU consists of 27 member states where some are Schengen states but some are not. So that's really fascinating because I think before reading this article, I always view the Schengen area as synonymous with the EU, but I didn't know how it evolved, how all of these countries sort of jumped in on it over time. So kind of pivot back to my second part of that question, what events have threatened its existence now over the last six years? Well, I think one of the things that we need to remember about the Schengen project is just how ambitious it is because the Schengen project doesn't establish a right of people to move from one state to another within the Schengen area. What it does is it abolishes border control. So what it does is it attacks an institution, border guards, and provides that there will no longer be border guards on these Schengen borders. So asylum seekers, irregular migrants, anybody can wash back and forth across this area of 26 states. And their status once they arrive on another state is determined, either by EU law through free movement of persons or through national law that they are irregularly present, third country nationals. So it's a very ambitious project to embark on. It's also particularly ambitious because it's only partially EU, it's partially a member state and that has led to a whole series of challenges. The member state, the Schengen member state also an EU member state, which was the most reluctant to be engaged in the Schengen project if we leave aside the UK, which is of course no longer a member state and no longer involved at all, was France. And from the date on which border controls were lifted across the Schengen area, the 25th of March 1995, the French announced an exception on the basis of Dutch drug policy, soft drug policy, which are, which at the time, including now, were not criminalized in order to prevent the arrival of illegal drugs in France. They gradually abandoned those controls and for the better part from 1995 until now. In fact, across the continent, there has been more or less continuous free movement without border controls. The first big challenge to this border control area was in 2015 and 2016, when more than expected Syrian refugees arrived in the EU. We will all remember the extremely moving pictures of Syrian and other refugees walking across the Western Balkans up into Europe seeking international protection. And a number of interior ministries in some of the member states, but certainly not all, became extremely anxious, particularly about their reception capacity, and sought to reintroduce shang and border controls to prevent people from arriving on their territory. The consequence of this was mainly to block Syrian refugees in a neighboring country, so the neighboring country would have to provide them with reception conditions, rather than allowing them to move to the member state, where they may have had friends or family members or new job opportunities, as would have been the case under the border control free shangan area. So that was the first real challenge to the shangan area, the first challenge of very large proportions. The second challenge occurred almost simultaneously, with a number of really rather grim terrorist attacks in France. The ones in France got a lot more publicity than the ones in other states, particularly the attack on a nightclub called the Bataclanin Paris, where really a couple of hundred people were killed. And the French, you had always been very nervous about the border control free area, reintroduced border controls with all of their neighbors. So we then had two regimes of temporary reintroduction of border controls. One was about too many refugees arriving, and the other was about too many terrorists turning up. Now, in fact, if one looks at the prosecutions in France in respect of the terrorism attacks, and we've recently finished one of the prosecutions relating to the Bataclan massacre, the perpetrators were pretty much all nationals of France, with a couple of exceptions, there were a couple of Belgians, but this was really an internal matter. So the reintroduction of border controls seemed a bit, egregious in respect of its efficiency in dealing with terrorism. And we know from subsequent terrorism attacks in the Nordic countries, the bravest case, of course, in Norway, which was particularly horrible, but also a couple in Denmark and in Sweden. The perpetrators were already people who were already living on the territory. The same is pretty much the case in respect of Germany, though often the perpetrators were non-EU nationals who happened to be in the country. This led to a way of thinking about risk and national security protection, which engaged the question of who are the people who were causing terrorism problems in our country? Are they third country nationals? Will border controls be a solution to the problem? And led to quite a lot of disagreement across the continent about exactly how to deal with these problems. The third big challenge to the border control free area in Schengen was, of course, the arrival of COVID-19. And when we had the first terrible scenes from Northern Italy in February 2020, we had no vaccines. We knew very little about what COVID-19 was about or how to treat it. And there were quite a number of member states, which had a knee-jerk reaction to reintroduce border controls with their neighbors, and the outside world to try and prevent the pandemic arriving in their country. Now, by the time we get to the middle of 2020, the European Commission has already identified that border controls are not an effective way of fighting a pandemic. So, you need to take internal measures, you need to test people, provide health services for them, provide medical services, etc. One of the issues which took priority and is increasingly acknowledged as the reason for measures to be taken, whether they were confinement measures on the territory. And that was by far the largest field of measures which were adopted to fight the pandemic in most of the EU area, though not in all of it. Noticable exception. But the argument was we need to protect our public health services against being overwhelmed by people who are sick. We had our third challenge after our migrants, terrorism, public health, which resulted in the reintroduction of border controls. The Commission struggled tremendously with the member states on all three grounds, and succeeded particularly well on the grounds of temporary border controls among the Shagon states to convince all states except France to drop border controls as a measure taken for the purposes of fighting the COVID-19 pandemic. So, I want to talk a bit more about the refugee crisis and COVID-19, but first of all, can you detail just a bit more what role the Shagon area plays in the free movement of goods within the EU? How those threats affected that aspect? The free movement of goods is, of course, is the free movement of persons in the EU is a fundamental freedom within the EU. However, the abolition of border controls for the free movement of goods in the free movement of persons was achieved not so much under the EU measures, but under the Shagon measures. So you have something of a competition between the two. And while free movement of goods has been much more successfully transformed into the realization of an EU free movement, the free movement of persons and the abolition of border controls on persons has been somewhat less enthusiastically embraced by some rather powerful EU member states. So we have a different perspective. This became particularly apparent during the COVID initial periods of border closures, where the Commission was very early on successful in creating the system of green lanes for border traffic to continue to move across the EU. While free movement of persons was a bit more tricky, and the Commission had to enter into negotiations with states to agree recommendations on essential services and people being entitled to move for essential services. So we were considered almost immediately to be part of essential services and keeping the trucks running from Spain to Sweden, from Ireland to the Czech Republic was of such importance in terms of how integrated the EU market was. So we were considered to be part of the COVID-19 challenge for free movement of goods. Free movement of goods were never really affected either by the terrorism ground for the reintroduction of temporary border controls, nor for those reintroductions on the basis of too many refugees. the refugee crisis, you obviously detailed what happened. with the influx of Syrian refugees back in 2015. How do you think the potential influx of Ukrainian refugees is going to affect the Shangan area and those non-member states especially? There is a very different framework in respect of the arrival of Ukrainian refugees. The EU had abolished mandatory visa requirements for Ukrainians back in 2011, even before the annexation of Crimea. So Ukrainians arriving in the EU do not arrive irregularly. They do not require Shangan visas. So they arrive across the border and then they seek to regularize their stay. Since the annexation of Crimea, there has been a steady outpouring of about half a million Ukrainians a year. From Ukraine, first into Poland, where they have been given working residence permits under national law, but many of them have signed up to posted workers' companies and are working all across the EU in care homes, in the building industry. You name it, you'll find them everywhere. Over the last 14 days, since the commencement of hostilities in the Ukraine, the EU legislator has been extremely generous towards Ukrainian refugees pouring across the border. I know there are terrible problems of delays at the Ukrainian Polish border, people spending days in queues trying to get across that border, but when they arrive in the EU, the EU legislator on Saturday last week opened what's called a temporary protection regime for Ukrainians arriving in the EU, so that they automatically are provided with a status, temporary protected status, they have the right to work to social benefits to healthcare, etc. And they don't have to remain in the first member state they arrived in. The member states agreed when they opened the temporary protection regime that the Ukrainians would be free to travel wherever they wished in the EU and enjoy the status of a temporary protected person. So we have a very different scenario from the attempt to prevent the serious from arriving, which quite a number of member states took Germany and Austria were the first to reintroduce border controls between themselves on the 13th of September 2015, but in respect of the Ukrainians, there has been no reintroduction of border controls. Instead, there has been the adoption of a temporary protection scheme. So a very generous approach undoubtedly driven by geopolitical considerations about the concerns of Russian aggression, particularly in northeastern European states, but it's very noticeable that we are looking at a very different approach to a humanitarian disaster, which is a approach which is much more based on humanitarian considerations than security considerations. Yeah, I was just going to ask why you think that approach is different and how much that has to do with the fact that these are people coming from Eastern Europe versus the Middle East, whether any prejudice factors into that in terms of what politicians decide to do within the EU or rather within the Schengen area. Yes, well, I know that there has been quite a lot of social media activity about whether or not racism and discrimination are elements in the welcoming hand, which the EU has extended to Ukrainians. And I must say, I don't participate in that perspective. I think that the defining feature of the welcome which Ukrainians are gassing in the European Union is tied to the enemy which they have. The aggression on the part of the Russian federation is a matter of intense concern in former Soviet block states in the east. These are also the states which have been the most reluctant to accept Syrian refugees and we saw recently with the arrival of Syrian Zirakis and Afghans via Belarus the almost obscene reaction of a couple of number states to try and prevent their arrival and to accuse Belarus of instrumentalization of migrants. But I think that the difference is not one of racial origin nor is it one of religion. It's the question of who has caused the problem, who is the aggressor, who is creating the conditions under which people have to flee their country. And in this case the solidarity which member states have found was very strongly built on Russia as the aggressor. That makes sense. To the other big crisis over the last two years that you mentioned, COVID-19, what's the problem with using border controls as a means of fighting the spread of COVID in the EU? Well, the first problem about using border controls to fight a pandemic is what do border controls do? You need to think about what they do. So people arrive at a border, they seek entry, the border guards, look at their documents and say yes, you are entitled to enter or no you're not. But if the border guard says oh I think you're sick, what does that person do? They are there at the border, they're busy transmitting the illness to everybody else at the border, including the border guards themselves. And it's difficult to say that this is an effective way to deal with a pandemic. Pandemics do not respect border controls. The only thing that pandemics respect is immediate and extensive healthcare. So if someone turns up at a border and says the border guard says do you have a fever and the person says well I'm feeling rather hot and sweaty. The best way to prevent the spread of the pandemic if the person is ill is for the person to immediately receive health treatment and of course isolation. So trying to prevent a pandemic by isolating people. Border controls are not designed for pandemics. They don't at border crossing points whether they're air, sea or land. You rarely have large numbers of medical officers available who are able to immediately provide services that are needed to people who are suffering from illness. Usually you have one or two medical officers in large airports but you certainly by an arch don't have them on land borders. And the idea that you can somehow reorganize your border controls to keep sick people out is an argument which may go down well with certain populists who want to protect national health services. But do not go down well with anyone who's involved in health services and trying to prevent the spread of a pandemic. That's Professor Alspeth Gild her article is Shengen Borders and multiple national states of emergency from refugees to terrorism to COVID-19. Professor Gild thanks again so much. Thank you very much. You are listening to the Humanities Matter podcast. You can find more podcast episodes on Apple podcast, Spotify, and Google podcast.