Ausgrenzung (BD2015)

Exzerpte aus Ruben Zaiotti: Cultures of Border Control Schengen and the Evolution of European Frontiers Chicago and London 2011

S. 72

The Schengen conventions redefined the traditional meaning of borders. Two new categories were created: “internal” and “external” borders. The Implementation Convention referred to “internal borders” as “the common land borders of the [Schengen States], their airports for internal flights and their ports for regular ferry connections exclusively from and to other ports within the territories of the [Schengen States] and not calling at any ports outside these territories” (art. 1 SIC). “External borders” were classified as Schengen states’ “land and sea borders and their airports and sea ports, provided that they are not internal borders” (ibid.). This “negative” definition of external borders was an attempt to avoid the sensitive issue of who should be legally responsible for their management. The formal distinction between “internal” and “external” was thus presented as neutral. Indeed, in this formulation both internal and external borders still coincided with national borders. Their creation did not entail any boundary redrawing. Yet, if we go beyond legal formalities, we can see that Schengen outlined a novel way to conceptualize borders. The external border marked the perimeter of a new area comprising the territory of all member states. It was therefore superimposed on national borders and represented a distinct entity with unique features. Internal borders were “subordinate” to their external counterparts (the former was a prerequisite of the latter, but not the other way around). Internal and external borders were also considered a common good. When it is explicitly applied to internal borders, the term “common” seems to refer to the territorial line that two countries share; however, if we look at the equivalent term used for the external border of the Schengen area, it is clear that the term has a collective connotation. The border belongs to all countries in the Schengen area. Indeed, each country needs to take into account the interests of all contracting parties when conducing controls at the external borders (art. 6.1 SIC).

The Schengen conventions redefined not only the meaning of European borders but also their functions. Article 2.1 of the Schengen Agreement stipulates the de facto abolition of controls at internal borders. The function of “filter” played by borders does not disappear, however. The agreement transfers it to the external perimeter of the Schengen area (art. 17). The link between the abolition of internal border controls and their relocation to the external perimeter is deemed necessary. The logic is that of the “security deficit”: the abolition of controls inevitably creates a vacuum that needs to be constantly filled.

With the creation of a common external perimeter, controls would not only be transferred but also reinforced. At one level, this is the indirect result of policy harmonization that the establishment of a new regime entails. For example, when deciding on the applicable rules for admission of a person, what applies is the accumulation of rules (i.e., in the absence of common rules, a person must meet the requirements of all states to enter Schengen). At another level, it is a conscious policy choice. In response to the removal of common frontiers, the texts in fact envisaged a hardening of borders through the introduction of new security measures at the external borders (and sometimes even internal borders)

S. 77

Was Schengen really a laboratory for the European project? There are contrasting opinions amongst practitioners and scholars. For some, Schengen was a dangerous development for the EU. Commissioner Martin Bangemann went so far as to argue that Schengen was a potential “graveyard instead of a laboratory for the EC” (quoted in Wiener 1998: 241). The European Parliament was strenuously against it and criticized the Commission for its complacent position. Its main concerns over Schengen were its undemocratic nature and its effect on immigrants and asylum seekers. On various occasions it threatened to initiate legal action against the Commission for its stance on Schengen. Among the few national voices participating in the debate, the Dutch Council of State expressed similar concerns. In its analysis of the legal implications of Schengen, the council argued that Schengen’s entry into force “might have an inhibiting effect on the realization of the Community proposal.”20 Other commentators accepted that Schengen was a laboratory, although not necessarily for the EU. Julian Schutte, a member of the Dutch delegation during the negotiation over the Schengen Implementation Convention, contended that the promoters of Schengen envisioned a scenario in which the EC followed in Schengen’s footsteps, and not the other way around.21 This would also explain the late and reluctant inclusion of the reference to the Community element in the Schengen Implementation Convention.

No matter what the reasons for the various actors’ stances, the laboratory metaphor nonetheless had the effect of conferring a degree of legitimacy on Schengen. According to Bigo and Guild (2003) the discourse about Schengen as laboratory became so powerful that few dared to move away from it or officially challenge it. It thus acquired the force of “myth.” All actors involved converged on the fact that Schengen, despite its questionable origins, was a project they should all embrace.

Exzerpt aus Evelein Brouwer: Digital Borders and Real Rights. Immigration and Asylum Law and Policy in Europe. Leiden, Boston 2008

S. 141f

Central Databases, Immigrants and Biometrics

SIS II, Eurodac and VIS have the common feature of being centralised largescale databases, focussed on the registration of third-country nationals and that they include biometric data. The set-up of these centralised databases is closely related to the aim of the EU governments to acquire an additional tool or mechanism for controlling the entrance and movement of migrants. These migrants include persons staying irregularly in their territory, asylum seekers and migrants declared inadmissible by national authorities. SIS II, VIS and Eurodac will not only be accessible at the external borders of Member States, but also within the national territory and at the embassies and consulates of third countries.

This means that border control is performed at different levels: within the country, at the internal94 and external borders, and at the consular post abroad. The use of these EU databases implies a presumption concerning the legal or virtual status of an individual. A third-country national reported in SIS II on the basis of Article 24 of the Regulation is presumed “inadmissible” based on public order or security grounds, or because he or she may have infringed national immigration law. A hit based on Eurodac implies that the person concerned is presumed to have arrived through the territory of another Member State and thus may be sent back to this country. Finally, a person whose visa has expired, according to the information stored in VIS, may be immediately expelled when his or her VIS record is checked by a national authority. A third common feature of SIS II, Eurodac, and VIS is that in the decisionmaking, the decisions on the technical feasibility of these systems preceded the political decisions on the desirability or even necessity of these systems.95 The decisions to develop Eurodac, VIS and SIS II were taken without a fundamental discussion of the expected efficiency of these systems, the consequences for individual rights, or the balance between these interests. The legal and practical implementations of large-scale EU-wide databases, including the use of biometrics, were only dealt with as a matter of secondary concern or as a limiting condition.

Differences Between SIS, Eurodac, and VIS

Despite these common features, there are also differences between the systems. In the first place, there is an important difference with regard to the criteria based on which an individual can be recorded. The inclusion of persons in SIS or SIS II is based on the individual behaviour of a person, taking into account who is likely to be a risk from the viewpoint of illegal immigration, security or criminal offences.97 Since the Schengen rules do not give harmonised rules on the criteria for having a third-country national reported in SIS, situations in which a person can find himself reported in SIS are to a certain extent arbitrary. Although individual behaviour is the basis for being registered in SIS II, the question of which types of behaviour exactly produce this effect is still not transparent.98 This is particularly true when the person is reported by a Schengen State on the basis of national provisions and that person is not informed of the data or the reasons for this report. Furthermore, it is possible for SIS or SIS II to include ‘soft’ data on third-country nationals, in other words information of which the accuracy or correctness is not guaranteed. This is the case when data on third-country nationals are recorded in SIS II on the basis of the criterion that there is a “clear indication” that he or she intends to commit a serious criminal offence. In principle, registration in Eurodac includes every asylum seeker applying for asylum in one of the Member States or every person entering the territory illegally. However, on the basis of the annual figures from Eurodac, one can see that practical implementation is different for each EU Member State. The question of when and which third-country nationals are fingerprinted for storage in Eurodac is dependent on national policies and the practice of the national officials in question. Furthermore, unlike SIS II or VIS, Eurodac does not include personal data: no name, address or date of birth: only the fingerprints of the person concerned and the place and date of arrival. Using the reference number in Eurodac, the fingerprint data may however be ‘connected’ to the personal information for that person. VIS will include data on each individual applying for a visa for one of the EU countries and data on the EU or non-EU citizens inviting (or sponsoring) the visa applicant. Since EU visa policy is based on the so-called ‘visa lists’, including the third countries whose nationals are obliged to obtain a visa before entering European territory, registration in VIS will only affect the nationals of those states.

Exzerpt aus Dennis Broeders: Breaking Down Anonymity. Digital Surveillance of Irregular Migrants in Germany and the Netherlands. Amsterdam University Press 2009

S. 27

‘The border is everywhere,’ wrote Lyon in 2005. We are accustomed to think of the border in terms of territorial lines dividing the world into countries. While these traditional territorial lines originate in politicolegal international agreements (often codifying the outcomes of war and civil strife), they have also been translated into legal documentary requirements, which, in turn have been translated into prerequisites for rights, obligations and entitlements for those ‘belonging’ to a specific side of those ‘territorial’ lines. In other words, the border has been translated into a myriad of smaller belongings and memberships that in everyday life determine rights and limitations. And if the border is everywhere, than logic dictates that it can also crossed – legally and illegally – everywhere.

S. 157f
From the perspective of internal migration control, the defining characteristic of an irregular migrant is his irregular residence. Irregular residence, however, does not presuppose irregular entry. There are three basic categories of irregular migrants: those who enter and stay illegally (the irregular migrant ‘proper’), those who apply for asylum
and become irregular after their application is rejected and those who travel to the EU on a legal visa and become irregular its validity expires. These migration histories lay at the base of the development of the EU migration databases and their use for the exclusion of irregular migrants.

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The main function of these systems in migration control is primarily linked to the external borders of the EU – the geographical borders and the access to legal procedures for asylum and visa – and therefore to external migration control. For the internal migration control, the main contribution of these systems can be expected in the support and instrumentalisation of the second logic of exclusion: that of exclusion through documentation and registration. The EU-wide scale of these systems that will document and register important legal migration flows into all of the member states brings the level of ‘identity management’ (Muller 2004) through database technology to a whole new level. Documenting identities and itineraries can be used for internal migration control as it may provide links to the missing information that frustrates national level expulsion policies. When these systems become operational in the context of the fight against illegal migration and especially in the internal control on irregular migrants they should become vital tools for the exclusion through registration, as their principal function is to re-identify irregular migrants (Broeders 2007).