Border controls and EU citizenship: convergence towards the lack of fundamental rights’ protection

EU nationals theoretically enjoy a mobility regime that is free and characterised by a lack of internal border controls within the Schengen+ area. This paper examines how the many crises witnessed by the EU in the last decades, from the so-called migration crisis to the Corona pandemic, have chipped away at the idea of free movement and affected fundamental rights’ protection for everyone. Member States have routinely reintroduced internal border controls to deal with varied security threats, while the border control measures adopted during the Corona pandemic fit seemingly within this longer trajectory of restrictions warranted by security concerns but not necessarily meeting the legal conditions of the Schengen Border Code (SBC). Legally the Corona related border measures require a judicial reinterpretation of the notion of public security as including public health emergencies, which would operate as an ex-post legitimation of Member States’ practices. At the same time, the 2021 SBC proposal introduces the possibility to rely on alternative measures to border controls as a way to break away from Member States’ practices that have normalised internal border controls despite their supposed exceptional nature. These proposed measures have been criticised for their effects on the fundamental rights of migrants and persons seeking protection, but their impact on the rights of EU citizens figures less in public and legal debates. Nonetheless, according to EU law the SBC neither calls into question, nor affects the rights of free moment of EU citizens and their family members. The paper argues that EU citizens are not insulated against SBC developments which have homogenising effects in terms of lowering fundamental rights protection for TCNs and EU citizens alike.