These are your Schengen rights

Internal border checks in the EU are illegal, but countries get away with it because citizens have never been told what the rules are.

Immigration, customs, airport security. They are three different things, but people often use them interchangeably. In Europe, it’s not just semantics - you have very different rights and obligations for these three depending on where you’re going. But as long as citizens don’t know their rights, national governments can get away with disregarding the law.

When I was living in the UK, it used to drive me crazy when people would say there was a long line at “customs” when they came back from France. They weren’t at customs, they were at immigration. Because the UK was in the EU but not in the passport-free Schengen Area, it meant the government could check the IDs of travellers (under EU rules this could be a passport or national ID) for immigration purposes but they couldn’t perform customs checks because those travellers were coming from two member states within the same customs union. Likewise, those travellers would have gone through an airport or Eurostar security but that has to do with their mode of transport, nothing to do with entering the country.

Imagine if an American flying from Texas to New York were asked, after going through airport security, to present their passport and have their suitcase searched for contraband. They would, rightly, pitch a fit. In fact during the pandemic New York actually tried to do this, but the courts ruled that it is unconstitutional to set up ID checks at state borders because it inhibits interstate commerce. But in Europe, travellers encounter these illegal checks all the time and they don’t say anything, because they don’t know it’s illegal.

These illegal checks have been happening for years and are actually increasing, party because the von der Leyen commission has been lax in enforcing the rules. Laws are pointless if they’re not enforced - especially when their violation isn’t even noticed by citizens. There was a reason why passport-free travel was deemed essential within a functioning single market, and if Europeans let the system unravel they are weakening Europe. So, here are your Schengen rights very clearly laid out:

First, a bit of history to understand when and why this system was created. It’s actually much simpler than the notorious Euler diagram above would suggest, I promise. The Schengen Convention signed in 1990 by five EU countries in the Luxembourg town of Schengen (which sits at the country’s triple border with France and Germany) abolishing internal border checks and established a common visa policy. It took effect in 1995, by which point Spain, Portugal and Austria had also joined. The passport-free area kept getting bigger but the biggest growth came in 2008 with the historic expansion to the Eastern EU. It was a highly symbolic moment, and the memory of seeing the fireworks over the border bridge which had divided Frankfurt on der Oder in two since the start of the Cold War is one that is etched in my mind. Don’t forget, there was no such thing as passport controls before World War One. These impediments to free travel are a relatively modern 20th century invention.

Today there are 27 countries in the free travel area. These include four non-EU countries: Switzerland, Liechtenstein, Norway and Iceland. That means that when you’re crossing into these four countries from the EU, they can search your bag or car for customs purposes (they’re not in the EU customs union) but they can’t ask for your passport. Three EU countries, Bulgaria, Romania and Cyprus, are waiting to be allowed in to Schengen. The Dutch are blocking the entry of the former two over corruption concerns (though recent progress has been made and it looks like they’re joining soon) and Cyprus’s unresolved border with Turkish-controlled Northern Cyprus means they cannot join until peace is restored. Ireland would like to be in the Schengen area but it can’t because it already has a Common Travel Area with the UK. While it was an EU member the UK refused to join Schengen and negotiated an opt-out, and Ireland had to follow suit otherwise they would have to erect border controls on the island of Ireland. Now that the UK has left the EU the same logic applies - they would risk violence if they conducted immigration checks between the Republic and Northern Ireland. Schengen’s external borders are also regulated by the code, since the frontier countries are acting as the border patrol for the whole area (along with the toothless and dysfunctional EU agency Frontex). Hence why Cyprus cannot join.

Countries are not allowed to carry out systematic passport checks at internal Schengen borders. That means there cannot be border infrastructure at road crossings, and passengers flying from one Schengen member state to another cannot be made to go through passport control. That means EU airports have two types of terminals: Schengen which you go straight into (Brussels terminal A) and Non-Schengen which you must pass through passport control first (Brussel terminal B). This is why Irish people here in Brussels flying home have to arrive at the airport earlier than their colleagues.

Even without infrastructure, the law very clearly states that a border guard sitting in a car at a border or standing at an airport exit gate would violate the law. For flights within the Schengen Area, law enforcement agencies, airport authorities and air carriers are only permitted to carry out security checks on passengers and may not carry out border checks. When an airport employee checks your passport or ID card at the gate before boarding a flight that is purely for identity verification purposes, for commercial or transport security reasons. They cannot check a passenger’s immigration status, nor can they transmit that data to border authorities. Whether to check IDs before a flight is up to the airport or airline, which is why sometimes you’re asked to show it and sometimes you’re not.

All clear, right? Then why, you may ask, have you been stopped while driving across EU internal borders or after flying between Schengen countries? Well, here’s where it gets tricky. Almost all continental European countries require all people to carry identity documents with them at all times and produce them to an authorised person upon request (unlike all English-speaking countries, which do not even issue national IDs and for whom the concept of these “papers please” laws are reminiscent of authoritarianism). But what is a random spot check and what is a systematic check? That’s where it gets murky. A national police officer checking people’s IDs as they exit an intra-Schengen flight, or on a train as it passes the border, can claim they are just conducting a random spot check. But this claim is blatantly not credible if they’re standing at the border or at the gate.

But ironically, this “random check” claim is reinforced by the blatant racism with which they conduct these checks. Anyone who’s ever seen this happen on a train or bus crossing a border knows the drill. People of color are asked for ID, white people are not (racism is much more on the nose here in Europe than in America). If you want to stand up for your rights, you can do what Jon Worth does: ask the officer why they are conducting the check. If they say “because you just crossed a border” you can refuse to show it. But if they say “I am conducting a spot check” your rights in the moment are limited. You could, however, take them to court afterwards arguing that the check was actually systematic (particularly if they detain you for failing to show an ID).

Now you may have encountered a very blatant systematic check at a road border, perhaps with traffic cones stopping traffic, that could still be legal. That’s because, unlike in the US, it’s possible for member states to request “temporary border controls” when there is a serious threat to that state's "public policy or internal security" or when the "control of an external border is no longer ensured due to exceptional circumstances.” These cannot exceed six months.

There are currently 13 temporary border controls registered with the European Commission. In a union of 27 countries, that’s a lot. They are the yellow borders on the Wikipedia map above. The temporary controls apply to specific borders with a specific country, and only in one direction. The yellow line doesn’t necessarily mean there are passport checks at those roads (there usually aren’t), it just means the country has the right to do them in a systematic (but temporary) way. They are almost always concerning road crossings rather than air, and most of the justifications are citing high levels of migration from non-EU countries. France has temporary controls at all of its borders, citing terrorism as the justification. Norway has cited the war in Ukraine as the reason for temporary controls at its ferry ports. Usually the temporary controls are at South-North connections, reflecting migration routes. So Slovenia has one for its Croatian border (introduced immediately after Croatia joined Schengen last year, what a sign of good faith) but not for its Austrian border. Austria has one for Slovenia, but not Germany. Germany has one for Austria, but not Denmark. And so on.

But these temporary exemptions are so numerous, and last so long (the countries simply re-register them every six months citing a slightly reworded reason), that the assumption seems to increasingly be that anyone can expect a passport control at an internal Schengen border at any time. I was skiing in Austria last year, and we took a day trip to Salzburg. The quickest route meant driving briefly through Germany. We faced a traffic cone passport control glance (a quick check to verify that we were white) driving from Germany into Austria, but not Austria into Germany. I had to look it up to see that this is the exact opposite of what’s allowed. But how is anyone supposed to keep track, and why would they bother?

The people who are supposed to keep track and bother are at the European Commission. But under President von der Leyen, who has generally handled national governments with kid gloves, they have looked the other way. The Commission’s ability to reject a notification of temporary controls is limited, but in 2022 the European Court of Justice (the EU’s supreme court) ruled that the Commission could challenge the renotification of these controls if they deem it to actually be the same threat. National governments have barely tried to disguise the fact that they are using the same threat justification for the new notification in order to have “temporary” checks last for years, but the Commission has done nothing.

During the confirmation hearings for the new Commission college in the Autumn, MEPs should demand a promise from the candidates that they will crack down on these never-ending “temporary” Schengen exemptions. Someone has to stand up for the treaties, and for EU citizens. In the meantime, while their politicians fail them, here is what travellers in Europe should know:

• You cannot be made to go through a passport control before or after a flight within Schengen.

• You cannot be asked to show a passport on a train or bus simply because you have crossed an internal Schengen border, unless that border has a registered temporary exemption.

• You cannot be stopped in your car at an internal Schengen border road crossing and asked for a passport, unless that border has a registered temporary exemption.

• You cannot be asked, through a systematic check, to verifying your work authorisation or visa status while crossing an internal Schengen border, unless that border has a registered temporary exemption.

• You cannot be forced to have your bag or vehicle searched for customs purposes at an internal EU border.