The Return of Borders and the Political Reconstitution of Schengen

The Schengen area is based on two pillars; the elimination of internal border controls and the harmonisation of external border controls. Since 2015, both pillars have been eroded as member states have reacted to a series of external shocks to the Schengen system with various processes of ‘re-bordering’. The shocks have included a large increase in the number of migrants and asylum seekers reaching Europe in 2015-2016, the Covid-19 pandemic of 2020-2022, and the migration ‘instrumentalisation’ tactics of the Belarusian and Russian governments since 2021. Member state reactions have included the prolonged re-introduction of internal border controls, the breakdown of normal processes for receiving third country nationals at Schengen’s external borders, and legally and ethically questionable attempts to prevent potential asylum seekers from entering the Schengen area and to remove those who have arrived. These national and supranational processes of re-bordering have attracted considerable scholarly attention. Schengen’s re-bordering has been conceived, among other things, as a ‘reconfiguration’, a ‘defensive integration’, and a reframing of Schengen as a pan-European security project. In this paper, I suggest that Schengen’s re-bordering amounts to a hollowing out of its legal framework in favour of maximising the space for political discretion. Re-bordering does not equal de-legalisation because no states have withdrawn from Schengen and the ECJ’s jurisdiction has not formally changed. Re-bordering does not equal disintegration either, because both national and supranational executives are empowered by its processes. Yet, Schengen is fundamentally changed - both de jure and de facto. Existing rules are routinely ignored, while new rules carve out areas of exception to be governed by political action. The cumulative effect of these changes is to reinforce member states’ capacity to protect their borders vis a vis third country nationals, while largely leaving Schengen intact for EU citizens. Thus, the driving force behind this paper is an attempt to understand what is happening to the Schengen area. More specifically, I address the following research questions: First, how can we conceptualise Schengen’s legal and political transformation? Second, through which mechanisms is this transformation taking place? In answering these questions, I posit that Schengen’s transformation consists in its legal hollowing out and political reconstitution.