Schengen after Brexit

Schengen after Brexit

Refugees crisis and spread nationalism across Europe have questioned the third-countries visa rules in the Schengen Area, but the real test will be the Brexit that will redefine expats status.

Free movement of people, goods and services are one of the basic cornerstones of the EU’s political project. The Schengen Area is its materialisation and, after events such as the refugees’ crisis and, especially from a political point of view, the Brexit have cast doubt on it. But are we really approaching the end of the Schengen Area in the European Union?

When it comes to refugees crisis it is easy to remember the wall that Hungary built along its border to curb them from entering the country. However, from 2011 some European countries implemented some changes that have modified the Schengen Area: Denmark issued border controls in its Swedish and German border as well as France with its Italian border.

The idea of limiting the Schengen Area (or even abolish it) has its roots in the early 2000’s when the failed European Constitution was being negotiated. More than ten years later this thought has just spread across EU countries (hugely in Eastern Europe countries like Poland or Hungary) boosted by immigration and terrorism fears.

Breaking the Schengen Area would mean re-implementing border controls permanently in the EU countries. The keyidea is to renationalize those inner border controls, a notion related to nationalists, welfare, and identity speeches all around Europe.

European rules allow implementing just temporary border controls on the Schengen Area (for 8 months length only). Other measures restrict the free movement of people by limiting the residence permit to those who own resources enough (or provide services) to cover their stay by virtue of Directive 2001/38.

In the case of an erased Schengen Area the most affected people would be, obviously, the third countries citizens living (or trying to enter) in the European Union. The EU’s visa regime is regulated by the Regulation EC 810/2009.

There are third countries with a special relationship which are not members of the EU but they do of the Schengen Area like Norway. Other countries members of Nordic Passport Union (since 2001) but non-EU countries such as Iceland, as well as Switzerland and Liechtenstein, enjoy Schengen prerogatives too (since 2008). These include staying in the EU territory up to 90 days with a non-mandatory short-term visa.

But there are also third-countries’ citizens living in a Schengen country. Their citizens would need a residence permit but no need of a short-term visa. For those non-resident third country citizens, both long-term and short-term visas are needed as well as a residence permit.

There have been some proposals to modify this visa’s legal status by establishing a new kind of visa, the so-called itinerant visa which consists of allowing its holder to stay in the territory of one or two Member States during more than 90 days with a validity of 1 year, extendable for 2 years maximum. This proposal is framed in an EU program called ‘Smart Borders’.

But the most important threat to the Schengen structure has been the Brexit. The United Kingdom leaving the EU will imply, from a visa legislation point of view, that hundreds of British citizens living in EU countries would have to redefine its legal status (students, foreign workers, pensioners) in their residence countries. But also for European citizens trying to enter or living in the UK after Brexit negotiations are completed. This is a real test for the Schengen Area that will determine its future resilience.

Brexit could be the last straw for a Schengen system that is based on Dublin rules and international rules like Geneva Convention and the Statute of the Refugee and divided onto three cases: non-resident people, asylum seekers and undocumented people.

British living in EU/Schengen countries will be affected by this regarding how the negotiations between London and Brussels could be managed. It is unknown how much of current Brexpats’ visa conditions will remain the same, even for British overseas territories’ citizens.

It was even released an idea by which it could be implemented a kind of Green Card system like in the US for these expatriates. But for now the only options for them are both multilateral and bilateral approaches to be negotiated with all EU countries or one by one of them.

What can surely be said is that negotiating and reaching consensus is the most efficient approach that the UK and the EU have to bear in mind in order to assure Brexpats their visa rights and to not to harm even more the nowadays questioned Schengen Area.

At Del Canto Chambers we are specialised in tax and trade law and we can be contacted at clerk@delcantochambers.com

Del Canto Chambers’ Editorial Board

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