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Legitimate decision-making in border areas – Part 1 Photo: KMar

Legitimate decision-making in border areas – Part 1

Border checks within the Schengen area are a difficult subject. New developments in technology are not making it any easier.

The Schengen Border Code (SBC) forbids the use of border checks at the internal borders between EU Member States. Over the course of the years it has become clear that Member States do wish to keep an eye on who is entering their nation state’s territory. Recent discussions on the reinstatement of internal border checks in France, Italy, Denmark and Germany illustrate this. The rationales behind these discussions are fears of an upsurge in illegal immigration and various forms of cross-border crime and terrorism. In this blog, as part of a series of blogs, we will focus on the Dutch case with regard to internal border monitoring.

Mobile Security Monitoring

In order to meet the wish to monitor the internal border-crossings, in 1994 the Netherlands introduced so-called Mobile Security Monitoring (Dutch: Mobiel Toezicht Veiligheid, MTV) which is carried out randomly in border areas between the Netherlands and respectively Belgium and Germany. The controls can take place on roads, in trains, on the water and at airports. They allow the Military Police (Dutch: Koninklijke Marechaussee, KMar) to check citizens’ travel documents in areas immediately behind the internal borders. The purpose of these “stop and identify” controls is to counter irregular stays in the Netherlands as well as various forms of related cross-border crime, such as human trafficking, human smuggling, and identification fraud. Since August 2012, MSM has been supported by the use of the @migo-Boras camera-system.

Disguised forms of border checks?

The aforementioned international discussions on the reinstatement of internal border controls have raised questions on how MSM fits in with the Schengen Border Code and whether the controls – despite their mobile nature – are in fact a disguised form of border patrol. Whereas this issue has been debated repeatedly over the course of the years, a 2010 ruling of the Court of Justice for the European Union (CJEU) in the combined case of Aziz Melki and Sélun Abdeli resulted in an adaptation of the legal framework of MSM. In this case, the CJEU ruled that the French national legislation authorizing identity checks in the area between the land border of France with States party to the Convention left too much room to be carried out in a permanent way. Therefore further legal restriction was necessary in order to be in line with the Schengen Border Code. Following the ruling of the CJEU, the Administrative Jurisdiction Division of the Council of State concluded that the same concerns applied to the Dutch MSM. As with the French identity checks, the performance of MSM leaves much to the discretion of the officers in charge in terms of deciding which and how many vehicles or persons will be checked. Therefore, further curtailment of these discretionary powers by limiting them in terms of intensity and frequency was deemed necessary. Now, article 4.17a of the Aliens Decree for instance states that MSM carried out on the international highways between The Netherlands and Germany and Belgium can only be conducted for 6 hours a day with a maximum of 90 hours a month.

Legitimacy at stake?

With the CJEU ruling and its impact on the Dutch legal framework, the legitimacy of MSM no longer seems to be at stake. Nevertheless, a new issue has come to the fore with the introduction of @migo-BORAS. The function of the cameras is twofold: On the one hand the system is used to assist random mobile security monitoring on the basis of a predetermined risk profile, on the other hand it systematically collects and stores information on vehicles passing into the Netherlands to potentially discover patterns that can be related to illegal migration or trans boundary forms of migration related crime. In a letter to the European Committee, the The Meijers Committee expresses its concern that the use of the “smart cameras” – especially in their second function – approximates permanent border control.

In this short blog, we aimed to provide some modest insight into the complexity of the field of border control and the monitoring of internal borders in the Schengen area. Although the criticism of MSM is valid in terms of its compliance with the Schengen Border Code, approaching these complex matters solely through the lens of international legal boundaries seems unsatisfactory and a little too easy. The increasingly transboundary nature of crime and its relations to migration movements cannot be denied. Neither should we underestimate the challenges this complexity brings to the daily practice of those officers and institutions working in the area of migration management and border control. Therefore, in order to fully grasp the dynamics, we advocate a more interdisciplinary and empirical study of this rich and interesting area for research.

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