Schengen Area

History

The Schengen Agreement was signed on 14 June 1985 by five of the ten EEC member states in the town of Schengen, Luxembourg. The Schengen Area was established separately from the European Economic Community, when consensus could not be reached among all EC member states on the abolition of border controls.

In 1990 the Agreement was supplemented by the Schengen Convention, which proposed the abolition of internal border controls and a common visa policy. The Agreements and the rules adopted under them were entirely separate from the EC structures, and led to the creation of the Schengen Area on 26 March 1995.

As more EU member states signed the Schengen Agreement, consensus was reached on absorbing it into the procedures of the EU. The Agreement and its related conventions were incorporated into the mainstream of European Union law by the Amsterdam Treaty in 1997, which came into effect in 1999. A consequence of the Agreement being part of European law is that any amendment and regulation is made within its processes, in which the non-EU members are not participants. The UK and Ireland have maintained a Common Travel Area (CTA) since 1923, but beyond this the UK could not accept abolishing border controls, and were given a full opt-out from the area. While not signing the Schengen Treaty, Ireland has always looked more favourably on joining but has not done so to maintain the CTA and its open border with Northern Ireland. The Nordic members required Norway and Iceland to be included, which was accepted, and so a consensus could be reached.

Membership

The Schengen Area consists of 26 states, including four which are not members of the European Union (EU). Two of the non-EU members, Iceland and Norway, are part of the Nordic Passport Union and are officially classified as 'states associated with the Schengen activities of the EU'. Switzerland was subsequently allowed to participate in the same manner in 2008. Liechtenstein joined the Schengen Area on 19 December 2011. De facto, the Schengen Area also includes three European micro-states – Monaco, San Marino and the Vatican City – that maintain open or semi-open borders with other Schengen member countries. Two EU members – Ireland and the United Kingdom – negotiated opt-outs from Schengen and continue to operate the Common Travel Area systematic border controls with other EU member states.

The remaining four EU member states – Bulgaria, Croatia, Cyprus and Romania – are obliged to eventually join the Schengen Area. However, before fully implementing the Schengen rules, each state must have its preparedness assessed in four areas: air borders, visas, police cooperation, and personal data protection. This evaluation process involves a questionnaire and visits by EU experts to selected institutions and workplaces in the country under assessment.

The only land borders with border controls (not counting temporary ones) between EU/EEA members, are those of Bulgaria, Croatia and Romania (which are expected to be removed), and the one at Gibraltar and those at the Channel Tunnel.

Areas that are not members of the Schengen Area but still have open borders with the area:

Prospective members

Although Cyprus, which joined the EU in 2004, is legally bound to join the Schengen Area, implementation has been delayed because of the Cyprus dispute. According to former Cypriot Minister of Foreign Affairs Giorgos Lillikas, "strict and full control based on Schengen will create a huge tribulation on a daily basis for the Turkish Cypriots", and it is unclear if this control is possible before the resolution of the dispute. The Sovereign Base Areas, which are outside the EU, will also need "other handling and mechanisms". As of 2011 no date has been fixed for implementation of the Schengen rules by Cyprus. Cyprus has less benefit from a Schengen implementation, since it has no land border with another EU member, so air travel or around 400 kilometres (250 mi) / 12 hours sea travel is needed to the nearest one.

While Bulgaria and Romania, which joined the EU in 2007, are also legally bound to join the Schengen Area, implementation has been delayed. Bulgaria's and Romania's bids to join the Schengen Area were approved by the European Parliament in June 2011 but rejected by the Council of Ministers in September 2011, with the Dutch and Finnish governments citing concerns about shortcomings in anti-corruption measures and in the fight against organised crime. Concern has also been expressed about the potential influx of illegal migrants through Turkey to Bulgaria and Romania and then to present Schengen countries. Although the original plan was for Schengen Area to open its air and sea borders with Bulgaria and Romania by March 2012, and land borders by July 2012, continued opposition from Germany, Finland and the Netherlands has delayed the two countries' entry to the Schengen Area.

With Croatia's accession to the EU on 1 July 2013, it is also legally bound to eventually join the Schengen Area. In March 2015, Croatia's then Interior Minister Ranko Ostojić said that his country was ready to join the Schengen Area. He said that he would request that the EU conduct a technical evaluation, which would take a year and a half, beginning on 1 July 2015.

The influx of refugees and illegal migrants from Greece through Macedonia and Serbia to Croatia and then to current Schengen member states like Slovenia, Austria and Hungary, as part of the 2015 European migrant crisis, has led some to question whether there will be the political consensus necessary for further enlargement of the Schengen Area in this atmosphere. In September 2015, Hungary threatened to veto Croatia's accession to the Schengen Area after it allowed migrants to transit the country into Hungary.

Territories of Schengen states outside the Area

There are territories of member states that are exempted from the Schengen Agreement. No area that is located outside Europe (except the Canary Islands, the Azores and Madeira) is part of the Schengen Area. Some areas in Europe are also excluded.

The French overseas departments of French Guiana, Guadeloupe, Martinique, Mayotte and Réunion, and the overseas collectivity of Saint Martin are part of the European Union but do not form part of the Schengen Area. The EU's freedom of movement provisions apply, but each territory operates its own visa regime for non-European Economic Area (EEA), non-Swiss nationals. While a visa valid for one of these territories will be valid for all, visa exemption lists differ. A Schengen visa, even one issued by France, is not valid for these territories. A visa for Sint Maarten (which is valid for travelling to the Dutch side of the island of Saint Martin) is also valid for the French side. France also has several territories which are neither part of the EU nor the Schengen Area. These are: French Polynesia, French Southern and Antarctic Lands, New Caledonia, Saint-Pierre and Miquelon, and Wallis and Futuna.

Only the Netherlands' European territory is part of the Schengen Area. Six Dutch territories in the Caribbean are outside the Area. Three of these territories – Bonaire, Sint Eustatius and Saba (collectively known as the BES islands) – are special municipalities within the Netherlands proper. The other three – Aruba, Curaçao and Sint Maarten – are autonomous countries within the Kingdom of the Netherlands. All islands retain their status as Overseas countries and territories and are thus not part of the European Union. The six territories have a separate visa system from the European part of the Netherlands and people travelling between these islands and the Schengen Area are subjected to full border checks, with a passport being required even for EU/Schengen citizens, including Dutch (national ID cards are not accepted).

Svalbard is part of Norway and has a special status under international law. It is not part of the Schengen Area. There is no visa regime in existence for Svalbard either for entry, residence or work, but it is difficult to visit Svalbard without travelling through the Schengen Area, although there are charter flights from Russia. Since 2011, the Norwegian government has imposed systematic border checks on individuals wishing to enter and leave Svalbard, requiring a passport or national identity card for non-Norwegian citizens. As a result, the border between Svalbard and the rest of Norway is largely treated like any other external Schengen border. A Schengen visa must be multiple entry to allow returning to Norway. There is no welfare or asylum system for immigrants on Svalbard, and people incapable of supporting themselves may be sent away.

The Danish territories of the Faroe Islands and Greenland are neither part of the European Union nor the Schengen Area, and visas to Denmark are not automatically valid in these territories. However, both of these territories lack border controls on arrivals from the Schengen Area, and the air or sea carriers are responsible for carrying out document checks before boarding, as is common for travel inside the Schengen Area. Citizens of EU/EFTA countries can travel to the Faroes and Greenland using a passport or national ID card, while citizen of Denmark, Finland, Iceland, Norway or Sweden can use any acceptable identification (such as driving licences or bank ID cards).

EU member states with opt-outs

The Republic of Ireland and the United Kingdom of Great Britain and Northern Ireland were the only EU members which, prior to the 2004 enlargement, had not signed the Schengen Agreement. Both countries maintain a Common Travel Area with passport-free travel for their citizens between them and the three British Crown Dependencies of Jersey, Guernsey and the Isle of Man, that are outside the European Union. On 23 June 2016, the British electorate voted for the United Kingdom to leave the European Union.

The UK declined to sign up to the Schengen Agreement, one argument being that, for an island nation, frontier controls are a better and less intrusive way to prevent illegal immigration than other measures, such as identity cards, residence permits, and registration with the police, which are appropriate for countries with "extensive and permeable land borders". Ireland did not sign up to the Schengen Agreement because it "would not be in the interest of Ireland to have a situation where the common travel area with Britain would be ended and Ireland would impose both exit and entry controls on persons travelling between here and Britain and, in addition, on the land frontier".

When Schengen was subsumed into the EU by the Treaty of Amsterdam, Ireland and the UK obtained an opt-out from the part of the treaty which was to incorporate the Schengen rules (or acquis) into EU Law. Under the relevant protocol, Ireland and the United Kingdom may request to participate in aspects of the Schengen acquis but this is subject to the approval of the Schengen states.

The UK formally requested to participate in certain provisions of the Schengen acquis – Title III relating to Police Security and Judicial Cooperation – in 1999, and this request was approved by the Council of the European Union on 29 May 2000. The United Kingdom's formal participation in the previously approved areas of cooperation was put into effect by a 2004 Council decision that came into effect on 1 January 2005. Although the United Kingdom is not part of the Schengen passport-free area, it still uses the Schengen Information System, a governmental database used by European countries to store and disseminate information on individuals and property. This allows the UK to exchange information with countries that are a part of the Schengen agreement, often for the sake of liaising over law enforcement.

In contrast while Ireland initially submitted a request to participate in the Schengen acquis in 2002, which was approved by the Council of the European Union, that decision has not yet been put into effect. In February 2010 the Irish Minister for Justice, in response to a parliamentary question, said that: "[t]he measures which will enable Ireland to meet its Schengen requirements are currently being progressed".

A previous 1999 report by the European Union Select Committee of the House of Lords recommended "full United Kingdom participation" in all the various four Titles of the Schengen Implementing Convention.

Status of the European microstates

Three European microstates – Monaco, San Marino and the Vatican City – can be considered as de facto within the Schengen Area. They do not have border controls with the Schengen countries that surround them, but they are not officially part of Schengen. Some national laws have the text "countries against which border control is not performed based on the Schengen Agreement and the 562/2006 EU regulation", which then includes the microstates and other non-EU areas with open borders.

Liechtenstein has been a member of the Schengen Area since 2011. However, Liechtenstein does not issue visas, and recommends visitors to apply for a visa in another Schengen country, e.g. Switzerland. Liechtenstein has no border check at the Balzers heliport, so helicopters must go inside Schengen only.

The other four microstates are not party to the Schengen Agreement, cannot issue Schengen visas and, with the exception of Monaco, are not part of the Schengen Area. San Marino and the Vatican City are both landlocked states surrounded by Italy. As they both have open borders, they can be considered to be de facto within the Schengen Area, meaning they are not officially in an agreement but are accessible without any border controls. San Marino and the Vatican City do not perform border checks for arrivals from outside Schengen, but these are not needed since neither of them have any airports or seaports. Helicopters are not permitted to go from outside Schengen or from a ship directly to San Marino or the Vatican City.

As of 2015, Andorra, Monaco and San Marino are negotiating an Association Agreement with the EU. Andorran ambassador to Spain Jaume Gaytán has said that he hopes that the agreement will include provisions to make the states associate members of the Schengen Agreement.

Andorra retains border controls with both France and Spain. Citizens of EU countries are required to have either their national identity cards or passports to enter Andorra, while anyone else requires a passport or equivalent. Schengen visas are accepted, but those travellers who need a visa to enter the Schengen Area need a multiple-entry visa to visit Andorra, because entering Andorra means leaving the Schengen Area. There are border controls in the other direction also, but more focused on customs control (Andorra is a tax haven with 4% VAT).

Monaco has an open border with France. Schengen laws are administered as if it was part of EU, and Schengen visas are accepted. Both French and Monégasque authorities carry out checks at Monaco's seaport and heliport.

San Marino has an open border with Italy, although some random checks are made by Guardia di Finanza and San Marino's Guardia di Rocca.

Vatican City has an open border with Italy. In 2006 it showed interest in joining the Schengen agreement for closer cooperation in information sharing and similar activities covered by the Schengen Information System. Very exceptionally, Italy has allowed people to visit the Vatican City, without being accepted for an Italian visa, then being escorted by police between the airport and the Vatican, or using helicopter.

Regulation of internal borders

Before the implementation of the Schengen Agreement, most borders in Europe were patrolled and a vast network of border posts existed around the continent, to check the identity and entitlement of people wishing to travel from one country to another.

Since the implementation of the Schengen rules, border posts have been closed (and often entirely removed) between participating countries; that and the pro forma borders are the subject of a photo-journalistic art project. The Schengen Borders Code requires participating states to remove all obstacles to free traffic flow at internal borders. Thus, road, rail and air passengers no longer have their identity checked by border guards when travelling between Schengen countries, although security controls by carriers are still permissible. Travellers should still bring a passport or national identity card, as one may be required.

In-country checks

Although travellers within the Schengen Area are no longer required to show documents at an internal border (although there have been some controversial instances when they have, and it is fairly common at major land border crossings with Switzerland), the laws of most countries still require them to carry identity documents. Thus, foreigners with a valid residence permit in a Schengen State and carrying valid documents can travel within the territory and do not need any special permission to do so. It is the obligation of everyone travelling within the area to be able to show a fully valid form of personal identification approved by other Schengen states.

According to the Schengen rules, hotels and other types of commercial accommodation must register all foreign citizens, including citizens of other Schengen states, by requiring the completion of a registration form by their own hand. This does not apply to accompanying spouses and minor children or members of travel groups. In addition, a valid identification document has to be produced to the hotel manager or staff. The Schengen rules do not require any other procedures; thus, the Schengen states are free to regulate further details on the content of the registration forms, and identity documents which are to be produced, and may also require the persons exempted from registration by Schengen laws to be registered. Enforcement of these rules varies by country.

The Schengen regulation on crossing internal borders describes the checks for foreigners done by the police at suitable places inside each country.

Internal controls

The European Union constitutes a customs union and a Value Added Tax area. However, not all Schengen states or all of the territory of Schengen states are part of the customs union or VAT area. Some countries therefore legally conduct customs controls targeted at illegal goods, such as drugs.

Security checks can legally be carried out at ports and airports. Also police checks can be conducted if they:

Air travel

For flights within the Schengen Area (either between Schengen member states or within the same Schengen member state), law enforcement agencies, airport authorities and air carriers are only permitted to carry out security checks on passengers and may not carry out border checks. Such security checks can be conducted through the verification of the passenger's passport or national identity card: Such a practice must only be used to verify the passenger's identity (for commercial or transport security reasons) and not his or her immigration status. For this reason, law enforcement agencies, airport authorities and air carriers cannot require air passengers flying within the Schengen Area who are third-country nationals to prove the legality of their stay by showing a valid visa or residence permit. In addition, according to European Commission guidelines, identity checks on air passengers flying within the Schengen Area should take place only either at check-in, or upon entry to the secured zone of the airport, or at the boarding gate: passengers should not be required to undergo a verification of their identity on more than one occasion before their flight within the Schengen Area. Nevertheless, the identity checks function as practical border controls anyway, and are a problem for illegal immigrants who arrive in Greece (which has no land border to another Schengen country) and want to go to some other Schengen country. The requirements as to which identity document to possess varies by country and airline. Normally a passport or EU national identity card is needed. Greece, Iceland and Malta do not have land borders to other Schengen countries.

Travelers boarding flights between Schengen countries, but have originated on a third country outside the area, are required to go through Schengen exit border checks upon departure in and Schengen entry border checks upon arrival because the route originates outside the area and the authorities at the destination would have no way of differentiating between arriving passengers who boarded in the origin and those who joined in the middle.

Temporary border controls

A Schengen state is permitted to reinstate border controls with another Schengen country for a short period where there is a serious threat to that state's "public policy or internal security" or when the "control of an external border is no longer ensured due to exceptional circumstances". When such risks arise out of foreseeable events, the state in question must notify the European Commission in advance and consult with other Schengen states.

In April 2010 Malta introduced temporary checks due to Pope Benedict XVI's visit.

Estonia introduced temporary checks in September 2014 due to the visit of US President Barack Obama.

In response to the European migrant crisis, several countries set up enhanced border controls.

Recent internal border controls

Recent internal border controls according to the information that the member states have provided to the European Commission.

French controls against migrants from northern Africa

Following the Tunisian Revolution of 2010–11, the government of Italy gave six-month residence permits to some 25,000 Tunisian migrants. This allowed the migrants to travel freely in the Schengen Area. In response, both France and Germany threatened to impose border checks, not wanting the Tunisian refugees to enter their territory. In April 2011, for several hours, France blocked trains carrying the migrants at the French/Italian border at Ventimiglia.

At the request of France, in May 2011 the European Commissioner for Home Affairs, Cecilia Malmström proposed that more latitude would be available for the temporary re-establishment of border control in the case of strong and unexpected migratory pressure, or the failure of a state to protect the external borders of the EU.

On 25 July 2011, in delivering the European Commission's final assessment on the measures taken by Italy and France, the Home Affairs Commissioner said, "[f]rom a formal point of view steps taken by Italian and French authorities have been in compliance with EU law. However, I regret that the spirit of the Schengen rules has not been fully respected". Ms. Malmström also called for a more coherent interpretation of the Schengen rules and a stronger evaluation and monitoring system for the Schengen Area.

2015 migrant crisis

During the migrant crisis of September 2015, Germany announced it was temporarily bringing border controls back in accordance with the provisions on temporary border controls laid down by the Schengen acquis. Such border controls appear to be an attempt to prevent disorder from making the crisis worse. Open borders appeared to have impeded Germany's ability to provide for very large numbers of persons seeking refuge all at once. Germany signals the border controls are only temporary, and only to support an orderly flow of migration into the area.

Other countries, including Austria, Denmark, Slovenia, Hungary, Sweden and Norway have set up border controls in response to the crisis.

In December 2015, Sweden passed a temporary law that allows the government to oblige all transport companies to check that their passengers carry valid photographic identification. The new law came into effect on 21 December 2015 and is valid until 21 December 2018. The government decided that the new rules will apply from 4 January 2016 until 4 July 2016. The new law led to the mandatory train change and passage though border control at Copenhagen Airport for travellers between Copenhagen and Sweden, and with a reduction in service frequency. Sweden introduced border control from Denmark earlier (15 November 2015), but that could not stop the migrant flow, since they have the right to apply for asylum once on Swedish ground. First when the transport companies had to stop foreigners on the Danish side, asylum seekers were efficiently stopped. This caused considerable disruption to the train traffic since the railway station did not have capacity for such checks.

2015 Paris attacks

During the November 2015 Paris attacks, France introduced full identity and nationality checks at its borders.

Police and judicial co-operation

To counter the potentially aggravating effects of the abolition of border controls on undocumented immigration and cross-border crime, the Schengen acquis contains compensatory police and judicial measures. Chief among these is the Schengen Information System (SIS), a database operated by all EU and Schengen states and which by January 2010 contained in excess of 30 million entries and by January 2014 contained in excess of 50 million entries, according to a document published in June 2015 by the Council of the European Union. Around 1 million of the entries relate to persons, 72% of which were not allowed to enter and stay in the Schengen area. Only 7% of persons listed on the SIS database were missing persons.

The vast majority of data entries on the SIS, around 49 million, concern lost or stolen objects. The European Council reports that in 2013 an average of 43 stolen vehicles a day were detected by authorities using the SIS database.

A list of EU authorities with access to SIS is published annually in the Official Journal of the European Union. As at 24 June 2015, 235 authorities can use the SIS database. The SIS database is operationally managed by EU-LISA.

The Schengen Agreement also permits police officers from one participating state to follow suspects across borders both in hot pursuit and to continue observation operations, and for enhanced mutual assistance in criminal matters.

The Schengen Convention also contained measures intended to streamline extradition between participating countries however these have now been subsumed into the European Arrest Warrant system.

Provisions in the treaties of the European Union

The legal basis for Schengen in the treaties of the European Union has been inserted in the Treaty establishing the European Community through Article 2, point 15 of the Treaty of Amsterdam. This inserted a new title named "Visas, asylum, immigration and other policies related to free movement of persons" into the treaty, currently numbered as Title IV, and comprising articles 61 to 69. The Treaty of Lisbon substantially amends the provisions of the articles in the title, renames the title to "Area of freedom, security and justice" and divides it into five chapters, called "General provisions", "Policies on border checks, asylum and immigration", "Judicial cooperation in civil matters", "Judicial cooperation in criminal matters", and "Police cooperation".

The Schengen Agreement and the Schengen Convention

The Schengen Area originally had its legal basis outside the then European Economic Community, having been established by a sub-set of member states of the Community using two international agreements:

On being incorporated into the main body of European Union law by the Amsterdam Treaty, the Schengen Agreement and Convention were published in the Official Journal of the European Communities by a decision of the Council of Ministers. As a result, the Agreement and Convention can be amended by regulations.