The Challenge of EU Border Controls on Persons

By Elspeth Guild, Senior Associate Research Fellow at CEPS and Jean Monnet Professor ad personam at Queen Mary, University of London as well as at the Radboud University Nijmegen, Netherlands.

What is the purpose of border controls? Before a state can design an appropriate system of border controls on the movement of persons, there needs to be a consensus on what the purpose of those controls is. In 1987 the European Union embarked on a very ambitious project to abolish border controls on the movement of goods, persons, services and capital across the territory of the Member States. The objective of this  1992 project was very clear – to re-launch economic growth in Europe and was successful. The vision of border controls as encompassing four elements, the four fundamental freedoms of the internal market, meant that there was clarity regarding the objective and purpose of the abolition of border controls. As the deadline for the abolition of border controls among the Member States approached towards the end of 1992, the Commission prepared a report which confirmed that while the objective was on track to be achieved regarding three of the four field by 31.12.1992, the deadline to which the Member States had committed themselves, the abolition of intra EU border controls on persons was lagging. There was too much resistance from interior ministries in some Member States. Nonetheless, the objective was achieved in 1995 (with the exception of Ireland and the UK).  However, the clarity of the objective regarding intra-Member State border controls was not accompanied by a similar vision regarding external border controls – in particular controls on persons at the external borders of the EU.

Border controls on the movement of persons into and out of a state or territory such as the EU needs to have a purpose. There are four main purposes which may be pursued by border controls each of which engages different state actors. First, the North Korea model vis-à-vis South Korea – the objective of border controls is military, designed to prevent invasion both military and by espionage agents. This objective of border controls on movement of persons engages the army as the main actor to carry out the controls in order to achieve the objective. The mining of the border area, installation of military hardware and highly visible military presence are all characteristics of this objective of border controls. The collateral damage of this vision of border controls is of course isolation for the state generally as regards its terrestrial and sea borders and the accidental killing of civilians who fail to comply with the prohibitions.

The second vision of border controls is as mechanism in the fight against crime. This model is perhaps best exemplified by the US war on drugs as a border control operation to prevent the arrival of drugs into the USA. In this model of border controls it is people carrying objects who are the focus. The people are criminals and it is the protection of the state’s people from the consumption of illegal substances which is the objective in a crime prevention project. The rapidity of the decriminalisation of some previously illegal drugs and the dramatic rise in the recreational use of drugs available on prescription has raised rather important questions about this objective of border controls. The state authority are the heart of this framework of border controls is the police. The criticisms of the US war on drugs and its consequences for its neighbouring countries have been many. One of the outcomes of the war on drugs as an objective of border controls has been substantial friction with neighbouring countries and a constant temptation to move these controls across the border into the territory of the country from which the threat is seen to be coming.

The third main purpose for border controls is to prevent illegal immigration. This objective has substantial problems regarding its achievement. The first is that of defining illegal immigration – only after a person has entered a state and stayed beyond his or her permitted leave to be present or entered into activities (such as work) which are not permitted in the category in which the person was admitted, can it be determined that the person is an ‘illegal’ immigrant (this is a term much criticised by the UN, Council of Europe and other international organisations as both inaccurate and pejorative and thus to be avoided, however the EU insists on continuing to use it). This presupposes a highly defined immigration law which regulates down to the last comma what a foreigner can and cannot do when permitted to enter the state. Without such legislation a foreigner cannot become an ‘illegal immigrant’. Secondly, it must be possible to identify who is likely to become an illegal immigrant before the person has entered the state – a difficult project at the best of times. In order to achieve this objective of border controls, a specialised authority needs to be created comprised of officials whose job is to determine who might become an ‘illegal immigrant’ if admitted to the state and to refuse those persons admission. As the EU’s border agency, FRONTEX, has stated, border guards in the EU have 12 seconds to make a decision to admit or refuse admission to anyone entering the EU. If the border guard takes more time, the fluidity of the border is compromised with enormous consequences for trade and travel. As a result, out of the hundreds of millions of people who cross the EU’s external border every year only about 120,000 per year are ever refused admission by a border guard.

A further complication of the objective of border controls as a mechanism to prevent illegal immigration is the coherence of this objective with the profitable commercial activity of tourism. As the EU seeks to develop its tourism industry including by encouraging foreigners to come to visit the EU, negative images of border controls are unwelcome. Not many people want to go on holiday to a country where there is a substantial risk they will be harassed by officials at the border when they arrive (indeed people do not even like having to obtain visas to go on holiday and often avoid countries which require them). The choice of enhanced border controls only on nationals of some countries and not others creates diplomatic tensions regarding the discriminatory treatment of the nationals of those countries.

Finally, the fourth objective of border controls which is frequently put forward is to permit states to have knowledge of the people on its territory. This is a counting objective – who is here. Unless it is tied to an invasion, crime or illegal immigration objective it is fairly innocuous. But as an objective simply of counting and identifying, it has substantial costs for fairly opaque benefits (well rehearsed by the European Parliament in the context of the entry-exit project). In an EU without internal border controls a counting and identifying procedure at the external border of one Member State may not give the authorities of that state any clear idea of who is on the territory as once within the Schengen area everyone can circulate freely without intra-Member State border controls (except in periods of exception).

The challenge of border controls in the EU is first and foremost a challenge of purpose and objective. Until the EU is clear about what it is seeking from external border controls it will not be possible to design a system which fulfils the objective.

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