Schengen Area Exam Summary Notes PDF

**[Part 1 -- The Right to cross borders of the schengen area ]** [Key articles / secondary law ] - A21 TFEU = every person within MS can move freely between states - A77 TFEU + Secondary law = Schengen border code - Schengen Agreement 1985 - Schengen Convention 1990 - Maastricht Trea...

**[Part 1 -- The Right to cross borders of the schengen area ]** [Key articles / secondary law ] - A21 TFEU = every person within MS can move freely between states - A77 TFEU + Secondary law = Schengen border code - Schengen Agreement 1985 - Schengen Convention 1990 - Maastricht Treaty = created EU - Amsterdam Treaty = integration of Schengen acquis into EU law - Schengen Border Code 2006 -- reg 2016/399 - Article 2 = definition of internal vs external borders - Article 5 = restrictions on external borders - Article 6 = valid entry conditions - Article 8 = external border controls of people with right to movement + TCN - A21a = restrictions on external borders during public emergencies - A22 = no restrictions on internal borders - A23 = MS can carry out checks within their territory - A24 = Principle of absence of control = obligation of MS to remove controls at internal borders - Chapter 2 = Temporary reintroduction of border controls at internal borders - A25 = foreseable + unforeseeable cases for internal controls - A28 = internal controls for public health - A29 = cases where exceptional circumstances put the overall functioning of Schengen at risk + need internal controls - Reg 2017/458 - new databases in checks - Reg 2021/1134 - Reforms of visa information system - Reg 767/2008 - creating Visa Info System - Reg 603/2013 establishing Eurodac -- repealed by reg 2024/1358 - Reg 2017/2226 - establishing Entry/Exit system - Reg 2019/1896 creating Frontex + repealing reg 1052/2013 - Reg 2018/1240 creating European Travel Info and Authorization System + amending reg 2016/399 - Reg 2024/1717 = amending 3 cases for introducing internal controls (amending SBC) [Key terms ] - Differentiation = territorial scope of \'free movement\' differs from state to state - Schengen Acquis = Schengen agreement and the Schengen convention + acts adopted by the executive committee - Associated states = states that are in Schengen but not in EU. Still apply EU law in certain areas - Instrumentalization of migrants = when third party states use migrants (opening borders) too leverage Schengen/EU eg Turkey and Belarus [Schengen Agreement/Cooperation/Acquis/Area ] Schengen Cooperation = Schengen Agreement and Convention Concluded outside the EC framework 1985-1997 - Allowed states to protect their sovereignty in EU framework - 2 separate international agreements -- Agreement + Convention -- create the Schengen - cooperation Schengen Acquis - Maastricht created 3 pillars of competences for the EU 1. Communities\' integration method 2. Competences deferred to the EU 3. Justice and Home affairs -- governed by the EU - 3^rd^ pillar included asylum, immigration etc. = in conflict with the Schengen - Amsterdam Treaty resolved this conflict -- led to several secondary EU acts (Council of EU): - 2 decisions 20 may 1999 = defined Schengen + which elements to integrate + identified the legal basis for Schengen acquis in EU law = A62 TEC/A77 TFEU - Schengen Borders Code 2006 adopted on A62 TEC -- attempts to make one coherent text Schengen Area today: - 29 states -- 25 are also EU - 4 others = associated states (A39-41 Preamble of the Schengen borders code) - Some 3^rd^ countries are considered part of Schengen due to their geographical situation -- Vatican, Monaco + San Marino - Andorra has a specific bilateral international agreement - Some EU MS have exceptions as well - Ireland = Protocol 19 + 21 of acquis said that Schengen would not apply to Ireland. But ireland negotiated the possibility of requesting to take part in some/all of the Schengen rules - Cyprus = not in Schengen because of Turkey occupation -- would mean possible to enter Schengen without controls from outside - Bulgaria + Romania = partial states = in Schengen but its limited. 31 march 2024 have air/sea controls lifted but land controls still in place - France/Netherlands = overseas territories are not included (Schengen Preamble) (Note Spanish/Portuguese oversees ARE included) [Control of External Borders ] A77 TFUE -- gives EU power to develop policy to carry out checks + efficient monitoring of external borders + introduction of management system for external borders [Border checks ] - Article 5 SBC -- can cross external borders at crossing points, during fixed hours - A5(4) (added in 2024) - can temporarily close/limit opening hours of specific border crossing points where circumstances require (introduced to prevent instrumentalization of migrants) - A21a SBC (new in 2024) - can temporarily restrict borders in large-scale public emergencies eg requirements for testing, quarantine etc. - must be proportionate and non-discriminatory - Controls must always comply with Directive 2004/38/EC [Persons enjoying the right of free movement under Union Law] - Before 2017 A8(2) - subject to 'minimum checks' of travel documents. On a "non-systematic basis" will check databases. - After 2017 A8(2) - subject to verification of identity, nationality, verification against databases. [Third Country Nationals ] - A8(3) - subject to thorough checks = verification of conditions governing entry and docs authorising residence/professional activity + 'detailed examination' of ID + consulting databases. - A6 entry conditions = valid travel dox, visas, residence permits, justification of stay etc. - SBC has been amended to reinforce checks on TCN: - Reg 2017/458 - new databses in checks - Reg 2017/2225 - Entry/Exit system - Reg 2021/1134 - Reforms of visa information system [Extension of databases for TCN ] - Schengen Information System: - For all people crossing external borders - Exchange of info among border authorities - guards can enter + consult alerts on people - Initially for criminal management but extended in 2018 to irregular migration - Visa Information System: - Schengen visa data shared across consulates + border points - Processes data eg fingerprints/visa app decisions - Extended in 2021 to long stay visas + residence permits - Reg 767/2008 on the VIS - Eurodac: - Reg 603/2013 establishing Eurodac - Compares fingerprints of asylum seekers - Mostly for asylum purposes but also criminal management - Reg 2024/1358 - repeals old reg in New Pact -- adds new data and new categories of people disembarked after search and rescue ops. - Entry/Exit System: - Reg 2017/2226 - System for entry/exit of 29 schengen states - For TCNs for short stay -- registers time + place of entry + calculates authorized period of stay - European Travel Information and Authorization System: - Reg 2018/1240 - establishes ETIAS amending reg 2016/399 - For 30 states (Schengen + Cyprus) - For visa-exempt visitors -- introducing an online prior authorization system (like US) [Frontex] - Reg 2019/1896 creating Frontex + repealing reg 1052/2013 - Aim of securing external borders [Internal Borders ] Principles: SBC - A22 = internal borders can be crossed at any point without checks - A23 = MS can carry out checks WITHIN their territory - A24 = Principle of absence of control - 2024 amendment A23a = process for transferring people apprehended in internal border areas = control for public security Exceptions SBC Chapter 2 = temporary reintroduction of border controls at internal borders - Must be temporary for reasons of public security, public health etc. - 2013 -- internal controls after Arab springs + flows of migrants into Schengen. 3 cases for introducing internal controls before 2024 - A25 foreseeable cases - Eg Olympics - Can be up to 30 days/foreseeable duration of threat. Total period cannot be extended for more than 6 months - Must notify the commission + MS up to 4 weeks before - A28 -- cases requiring immediate action - In emergency situations - Notification = at the time, or ASAP - 10 day duration. 2 month extension - A29 -- cases where exceptional circumstances put the functioning of Schengen at risk - Council of EU on proposal of Commission will recommend internal controls then MS decide to notify Commission, PE + MS if they decide to adopt. Reg 2024/1717 amending these categories - A25 = general framework - A25a -- cases due to foreseeable/unforeseeable events - A28 -- large scale public health Initial 6 month period after Commission establishes a public health emergency - A29 = same Practice of internal controls - Proposal for amendment to Reg 206/399 = increase of temp reintroduction after migration crisis, terrorist theeats - 2006 -- 2015 = 36 controls - 2015 -- 2017 = 50 (terrorist attacks + migration crisis in 2015) - Use in France: - Controls in 2015 for COP21 - Then bataclan attacks nov 2015 = law for state of emergency extended the use of the foreseeable measures for COP21 - France continued to extend controls after this - Conseil d'état dec 2017 -- found controls were proportional to terrorist + migrant threats - ECJ april 2022 -- if there is no new threat after 6 months, cannot extend A25 use - Conseil d'état july 2022 -- repeats above decision but interprets new threat broadly saying covid + terrorism have new elements which constitute a new threat warranting extension of controls - Control of migrants: - 2015-2017 Council continuously recommended every 6 months to prolong controls under A29 but stopped after 2017 - In 2019 -- 6 states still had partial/full controls under A25 - 2020 = COVID -- reintroduction of controls in disordered way as no solid legal basis - 2023 -- 6 MS still have controls **[Part 2 -- The right to move and reside freely in the EU ]** [Key law ] TEU - A9 -- every national of a MS is a citizen TFEU - A20 -- citizens have inter alia the right to move and reside freely. Every person of MS nationality = citizen - A21 -- Council has the right to adopt acts in the name of social security or social protection - A77/78/79 - rights of TCN to move and reside freely 78 = European Common Asylum Policy Directive 2004/38 - right of citizens to move and reside freely. - A2.2 - family members def. - A3 - 'beneficiaries' = applies to people outside of the MS that they are a national + family members - Chapter 2 + 3 -- right of exit, entry and residence A4 = exit A5 = entry A6 = residence A8 = sufficient resources - A12 + 13 -- possible dissociation of the right of family member from the one of union citizens - A16 right of pemanent residence - A24 -- right to non-discriminatory living conditions - A27-29 = limitations to rights of entry, exit and residence A45 EU Charter of Fundamental Rights -- every EU citizen has the right to move and reside freely Withdrawal Agreement: - Part 2 -- citizens rights - A158 -- CJUE can interpret for 8 years - A159 -- Creation of Independent Monitoring Authority - A165 -- Creation of Committee on citizens' rights Reg 2016/399 - right of TCN to move and reside freely Dublin III Regulation Eurodac Regulation Directive 'Procedure' Directive 'Reception' - reception criteria + protection of applicants awaiting decisions Directive 'Qualification' - adopts definitions of Geneva Convention Creation of European Asylum Support Office (EASO) in 2010 + replaced by European Union Agency for Asylum (EUAA) in 2022. Directive 2001/55 - minimum standards for temporary protection [Key terms ] Principe of non-discrimination = EU citizen must be treated as a citizen of each MS Subsidiary protection = EU policy giving international protection to TCN without officially being refugees Temporary protection = Protection in case of massive flows of immigrants -- used for Ukraine [Course notes ] **[Right of EU citizens ]** EU citizens = mobile citizens Citizen definitions: - A9 = every nation of MS = citizen - Granted automatically dependent on the MS internal rules of citizenship - ICJ 1955 Liechtenstein V Guatemala "Nottebohm" - nationality must be 'real and effective' - there must be a meaningful connection to the state - But in some states Golden Passports (possibility to buy nationality) = danger to the EU nationality. Eg in countries like Malta, Cyprus and Bulgaria. Oct 2020 Commission opened a procedure against Cyprus and Malta to end golden passport system. March 2023 Commission v Malta -- claim of infringement of A21 Loss of nationality: - Individual loss (eg based on national law/gaining new nationality etc.) X v Udlaendige 2023 C-689/21 S.O v Stadt Duisberg 2024 C-684/22 In both cases ECJ noted that A20 should not preclude national law as long as individuals are given the opportunity to lodge an application for retention/recovery of nationality - Collective loss Cessation of a part of territory = currently theoretical but eg independence of Scotland Losing status of MS -- Brexit Regardless of professional situation - 1990s right of free movement was extended to non-workers - Dir 90/365 1990 -- retired people - Dir 93/96 1993 -- right of residence for students - Dir 90/364 1990 -- all other 'community migrants' - Maastricht Treaty 1992 -- introducing idea of EU citizenship -- A21 TFEU allowed all to reside and move freely - Directive 2004/38 - replaced all previous directives Provided you move to an MS other than that of which you are a national - Dir 2004/38 - A3 -- beneficiaries = mobile citizens - ECJ 5 May 2011, Shirley McCarthy -- dual nationality, even if she didn't live there full time, couldn't invoke rights of free movement [Rights of family members] [Beneficiaries of rights ] Only in Dir. 2004/38 Broad scope in Dir 2004/38 - A2.2 - family members = 1. spouse/partners with contracted a registered partnership if the same as marriage in the MS, 2. direct descendants under 21/dependents + those of spouse/partner 3. Ascendant dependents (parents) + those of partners - A3 -- beneficiaries = all union citizens + family members MS facilitates entry for entry/residence of any family members outside of A2.2 - dependents/members of household/those where serious health grounds require personal care/have a durable relationship, duly attested. 3.2 - will be considered under extensive examination of personal circumstances. - 2 levels of rights: A2 = implicit right to move and reside freely + A3 = facilitation of entry/residence - not a right in itself. - ECJ July 2008 Metock: Spouse = any marriage irrespective of where - ECJ June 2018 Corman: Spouse includes same-sex - ECJ March 2019 SM: A child under guardianship in the context of Algerian Kafala procedure = not parentage but dependent child -- this fell under 'other family member' Conditions for family members to accompany/join EU citizens: Dir 2004/38 - TCN don't have right to move reside freely in other MS by themselves. Only when attached to family member. But 2 main exceptions: 1. Possible to get right of residence in host MS in case of death/divorce etc. A12 + 13 Dir 2004/38 2. Extensive interpretation of 'accompany' and 'join' ECJ Metock -- TCN must be considered as spouse regardless of how they entered MS -- even if marriage took place after entry. A7 ECHR (family) ECJ Oct 2004 Zhu and Chen -- where citizen is a minor and TCN are parents -- they can accompany child in free movement. In situation of dependency, right to reside only applies to primary carer. ECJ June 2018 Coman + July 2018 Banger -- derived right is conferred only if citizen has exercised right to move/freely reside in a different MS. But court will recognise if the genuine enjoyment of the rights of citizens are in question. ECJ June 2011 Ruiz Zambrano -- Children in an MS hadnt moved = not mobile but court found that if TCN father couldn't join they would be forced to leave = limit to enjoyment of rights. [Rights of exit, entry and residence ] Exit: - A4 directive 2004/38 - no exit visa or equivalent formality can be imposed on EU citizens exiting one MS to another MS - Conditions = valid identity card/passport or passport for TCN family members - MS are obliged to issue their own nationals with ID cards/passports stating their nationality Entry: - A5 dir 2004/38 - with valid identity card etc. MS shall grant entry to EU citizens without visa or other formality. TCN family members only need an entry visa in accordance with Reg 539/2001 or valid residence card. - MS can require person to report their presence within a reasonable, non-discriminatory period of time. - Normative/Operational obligation for MS to facilitate the stay -- granting family members facilities for visas, give EU citizens + family members reasonable opportunity to obtain necessary travel documents. Residence: - Up to 3 months A6 dir 2004/38 - right of residence up to 3 months, no formality other than to hold a valid identity card/passport. Also applies to TCN family members with valid passport accompanying EU citizens. - More than 3 months Workers/self-employed = absolute rights Inactive people = must have sufficient resources for themselves and FM + health insurance Students/Vocational Trainees = must be enrolled in a public/private establishment + health insurance + sufficient resource Family members accompanying = joining EU citizen + fulfilling above criteria depending on activity of EU citizen. - A8 Dir 2004/38 Sufficient Resources = not a fixed amount -- must take into account personal situation of the person concerned + must not be higher than the threshold that MS become eligible for social assistance/the rate of social pension. ECJ Feb 2020, Ciudad Real -- counts if the resources are of the TCN spouse + then applies for reunification. - Permanent residence A16 dir 2004/38 - EU citizens who have resided in MS for 5 years continuously have right to permanent residence. Not subject to conditions. Applies for TCN family members who have legally resided for 5 years. Continuity of residence cannot be interrupted by absences of more than 6 months (longer for military service of pregnancy, serious illness, study or training) Right to permant residence can only be lost by absence from MS for 2 consecutive years. [Restriction of rights ] On imperative public security grounds - For reasons of public order, security and health For reasons of personal conduct of individual concerned - ECJ Oct 1997 Bouchereau -- now A27 Dir 2004/38 - Restrict = refusing entry or explusion from territory - Under guarantee of procedural safeguard (defence rights) + substantive safeguard (non-discrimination/proportionality) [Right to non-discriminatory living conditions ] - ECJ May 1998 Martinez Sala: right to non-discriminatory living conditions is a combination of right to move/reside freely + principle of non-discrimination on basis of nationality (A8 TEU) - A24 dir 2004/38 - EU citizens residing other MS enjoy equal treatment with nationals of MS + TCN family members. [Social assistance] - ECJ March 2005 Bidar: Right to student loan - ECJ Sept 2001: Minimum subsistence allowance - ECJ July 2002: Right to a tide over allowance - A24 -- only if the social benefit falls within EU law + limitations for people other than workers (no social assistance in first 3 months) Case law - Intro of a new criterion -- degree of integration into host MS - ECJ March 2005 Bidar -- it is legitimate to grant assistance only to students who have demonstrated a certain degree of integration into society - ECJ July 2013 Prinz and Seeberger -- Can limit social rights but not so much that they dissuade citizens from moving - Fear of social tourism - ECJ Nov 2014 Dano -- Court note that allowing non-residence to claim benefits would run counter to an objective of the directive eg prevention of EU citizens becoming an unreasonable burden Protection of social system vs fundamental rights - ECJ Oct 2020 Jobcenter Krefeld -- social rights limited to workers and their families - ECJ July 2021 CG -- requirement to check no violation of fundamental rights when refusing access to social system [Impact of Brexit ] A50 -- Right to withdraw from the EU UK-EU relationship is governed by Trade and Cooperation Agreement + Withdrawal Agreement + Windsor Framework (political Ireland agreement) British nationals lost EU citizenship except w dual citizenship Withdrawal agreement rules: - A10 -- agreement applies to EU citizens + UK nationals exercising right to freely reside in territory of UK/MS + family members - Principle = maintenance of the rights of EU/UK citizens or nationals in host state. Right of entry/exit without of visa (A14) Right of residence A13 Right of permanent residence remains A15 - Rights are governed by EU law but certain formal requirements from host state eg applying for new residence status Safeguards and remedies - A159 Withdrawal agreement = creating of independent monitoring authority with powers to Commission to conduct inquiries on alleged breaches by the UK + bring charges infront of UK court. - A165 = Creation of a specialized Committee on citizens rights - can be abolished after 8 years - A158 = CJEU can give preliminary rulings on interpretation of the withdrawal agreement up to 8 years after. **[Rights of TCN ]** Pact on migration - Proposals from 2016-2018 then amended several times. - Finally adopted in May 2024 -- 9 seperate acts but all had to be adopted together Different beneficiaries of TCN - TCN or stateless persons in a regular situation who are NOT family members - Different policies apply slightly different scopes eg A78 TFEU = any TCN requiring international protection but A79 = TCN residing legally in MS -- depends on the object of the disposition Asylum policy beneficiaries: - Any TC under subsidiary or temporary protection or meeting the Geneva Convention 1951 definition of refugee - A33 Geneva Convention -- non-refoulement -- adopted by directive qualification - A2 directive qualification = subsidiary protection definition + family members - A23 -- MS must ensure family members who don\'t individually qualify are entitled to claim benefits to maintain family unity. - new pact extends the notion of family members to include dependant adults - Applicants for international protection whos final decision hasnt been made -- covered by A2 Directive Reception - Directive 2001/55 - minimum standards for temporary protection -- EU Council decides if mass influx is happening. 3 areas of policy creating 3 types of beneficiaries: 1. **Asylum policy** Qualification Directive: - A24 -- refugees get residence permits for min 3 years + renewable. Subsidiary protectees get 1 year renewable for min 2 years. - A33 -- freedom of movement Wtihin a member state - Above only available if protection has been granted Long Term Residents Directive - Right of residence in other MS - These applications have changed since the new pact -- travel docs are valid for longer + can be renewed for longer + asylum beneficiaries dont have the right to move and reside but can apply to other MS. Directive Reception - A6 -- applicants must get documents certifiying permission to stay until decision is given. - A7 -- right to move freely within MS / part of the territory if assigned by MS for public order/safety etc. - Since new pact = more limited provision of travel documents -- only in serious humanitarian or imperative circumstances + allocation of applicants to geographical area. Responsible member state: - Dublin 3 -- responsible MS = most involved in the entry of the person on the Schengen area - Chapt 3 -- criteria for determining the responsible MS. - A7 -- hierarchy of criteria = criteria are applied in the order that they appear in the chapter. (will attempt to reunite families where possible) - A8 -- Unaccompanied minor - A9 -- Family member of beneficiaries of international protection - A10 -- Family members of applicant for international protection - A11 -- Family Procedure - A12 -- Issue of residence documents/visa In case of unbalanced sharing - Mechanism of relocation under the principle of solidarity - Council Decisions 2015 for provisional measures to share apps in Italy and Greece among MS. 2. **Visa policy** - A77 -- EP and Council must adopt measures for conditions/freedom to travel for TCN - A6 Schengen Border Code = entry conditions and right to stay/travel until expiry of visa 3. **Immigration policy** - A79 TFUE -- EP and Council shall adopt measures for conditions of entry/residence for long-term visas + residence permits + definition of rights of TCN residing legally in MS - Different texts for different types of workers eg Blue Card Directive 2021/1883 for highly qualified employment [Impact of War in Ukraine: ] 2 types of TCN concerned -- those subject to temporary protection measures + those subject to sanctions