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The future of Schengen cooperation

At the 23-24 June 2011 meeting of the European Council, held in Brussels, the EU Member States’ heads of government and state discussed the impact of increased immigration on the Schengen Agreement, the treaty which removed internal border controls in the countries forming the Schengen Area.

At the initiative of certain countries, namely France and Germany, it was agreed that a special mechanism should be introduced to respond “to exceptional circumstances putting the overall functioning of Schengen cooperation at risk”. In principle, this mechanism would grant various types of assistance to a country facing a sudden and direct influx of immigrants.

However, the participants of this European Council meeting also concluded that as “a very last resort” the new mechanism would include a “safeguard clause” which would allow for the “reintroduction of internal border controls in a truly critical situation where a Member State is no longer able to comply with its obligations under the Schengen rules.”

The proposal to depart from the Schengen rules, one of the most notable achievements of the European integration and the European Union, must give rise to serious doubts. Despite the fact that this “very last resort” would be based on “specified objective criteria” and established “for a strictly limited scope and period of time”, and would not affect “the rights of persons entitled to the freedom of movement under the Treaties”, it is difficult to tell how it would be applied in practice and what rules would be used to identify persons exempted from border controls as beneficiaries of the Treaties.

The statement regarding respect for the rights of persons entitled to the freedom of movement under the Treaties was added at the request of the meeting’s Polish representatives.

The European Council has required the European Commission to present in September 2011 a proposal for a mechanism enabling the Member States to depart from Schengen rules.

Dr. Ireneusz C. Kamiński, HFHR legal expert, stated in an interview for Gazeta Wyborcza (25-26 June 2011) that the departure from Schengen rules raises serious objections. “What will be the pre-selection criteria for border controls? Facial features, skin colour, or maybe characteristics differing from those of the white race?” asked Dr. Kamiński.

The Schengen Agreement should remain in its present form, with the exception of added provisions for assistance granted to a Member State facing a sudden wave of immigration. Any rules allowing for selective control would undoubtedly lead to identifying persons subject to verification on the basis of ethnic criteria. Any practice of this kind would constitute a violation of human dignity.

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