The management of the outer border and migratory flows in the European Union
INTRODUCTION
My choice on the management of the outer border and the migratory flows in the European Union emphasized the migration crisis, is based on the transcendence that is currently coming to have this issue and the conflict that is causing its impact. Migration is a reality that today leads to the European Union, and to all countries that make it up, due to the situation that many people are forced to live, and that is reflected in European countries where a great magnitude of people , not getting enter through legal ways, they risk their lives to flee political oppression, poverty, wars and situations of instability of their respective countries.
In 2015 and 2016, the European Union was affected by a large attendance of migrants due to the conflict in Syria or the situation of years of drought and therefore of poverty and even hunger, political instability and presence of armed groups and terrorists which can be witnessed in various African countries such as Mali and Somalia, or the unfair distribution of wealth and dictatorial governments such as the countries of Gambia, Nigeria, Eritrea,, Guinea Conakry and Costa Ivory.
Faced with this problem, the European Union has prepared various measures to alleviate this crisis that leave behind that insecurity at the borders and help use safe roads so that people can legally enter the European Union.
Contextualization and legal framework on the management of the outer border
With the origin of the European Union, as we know it, the duty to create a series of provisions for the management of exterior borders, and specifically, of a migratory policy, due to the objective pursued by the European Union to create a European economic space without internal borders that allowed a common management of borders.
This operation to achieve European integration carried out by the European Union required the adoption of a series of common precepts in relation to traffic on external borders and basic rules on immigration, visas and asylum. This series of measures that led to the elimination of controls at the borders led European countries to cooperate, and pursued what was stated in article 3, section 2, of the Treaty of the European Union.
The concept of free movement in European countries was developed for the first time in the Schengen agreement, on June 14, 1985, in the city of Luxembourg that gave it the name. Germany and France were the pioneer countries that advocated this free circulation, and were part of this agreement with Luxembourg, the Netherlands and Belgium. Subsequently, this agreement was perfected by the agreement for the concrete application of the Schengen agreement, signed on June 19 in 1990, which includes issues related to the elimination of interior border controls, the formation of methods for the realization of visas, and the creation of the Schengen information system for data collection for all members.
In this way, the so -called “Schengen Space” is formed, an area that through the various measures created meant the elimination of the interior borders of the countries that made up the agreement, which are twenty -six countries: Belgium, Slovenia, Denmark, Republic, Republic Czech, Estonia, Greece, France, Italy, Spain, Latvia, Lithuania, Slovakia, Luxembourg, Hungary, Germany, Norway Malta, the Netherlands, Liechtenstein, Austria, Portugal, Poland, Finland, Sweden, and Switzerland.
The Schengen agreements were included in the community heritage thanks to the Amsterdam Treaty, signed on October 2, 1997, whose main purpose was to create a “space for freedom, security and justice”, which exalts article 3, section 2, of the Treaty of the European Union mentioned above. I try to regulate aspects such as the free movement of citizens, employment, foreign policy and common security, as well as measures for the integration of new members. These matters had been obvied in the Maastricht Treaty, and therefore, the first review of this will lead to the formation of the Amsterdam Treaty.
On February 26, 2001, the Nice Treaty was signed, which entered into force on February 1, 2003, whose objective was to deal with the extension of the European Union with an institutional reform, that the Amsterdam treaty could not address. Thus, in accordance with the declaration number twenty -three added to the Nice Treaty, the European Council of Laeken on December 14 and 15, 2001 carried out a convention to discuss the future of the European Union. It was about obtaining the integration of a text into the European Union that would guide it towards a more democratic, effective and transparent regulation, as is, for example, the protection of fundamental rights.
The current legal framework is found from the changes of existing treaties that give rise to the Lisbon treaty, which entered into force on December 1, 2009 and introduces significant changes. From the moment in which this treaty is constituted, the European Union will have legal personality, and the community law that characterized it will become European law, and with it, the presence of two new treaties (TUE and TFUE). This entry of the Lisbon Treaty does not generate a great change to the conception that had been created from "space for freedom, security and justice without interior borders", and thus will be confirmed in Title V of the Treaty of Operation of the European Union.
The European Union, in front of the historical model of the borders of international society, has created a legal regime applicable to the Member States of the European Union. This European border model is characterized in that the European Union and the states share shared competition competences, and for having established a common regime of foundational border categories: interior borders and exterior borders.
With respect to border, asylum and immigration policies, integrated into Title V, Chapter 2, Arts. 77 to 80, of the Treaty to the operation of the European Union, we can highlight the above in the ART. 77 TFUE, according to which the European Union will guarantee a common policy that ensures the controls of individuals, and also grants effective control in the transfer of exterior borders (since in the interior borders those controls of the people are not carried out to that common management conception) and establish a border management system. In accordance with this, in the same article, in the second paragraph, it is provided that the European Parliament and the Council will adopt ordinary legislative procedure for the development of the issues reported above.
Finally, it is also relevant that in the article, 21, paragraph 2. C, from the Treaty of the European Union, reference is made to exterior borders as an objective of external action as an objective of the exterior action of the Union. In fact, a reference case is the agreement between the European and Turkey Union for which irregular immigrants arriving in Europe will be re -enforced to Turkey.
Border management mechanisms in the European Union.
A. The Schengen Information System (SIS)
Within the framework of the Schengen agreement, after the abolition of controls on internal borders, this Schengen information system was established in the so -called "Schengen Space". This system can be described as an information system that facilitates the cooperation of the national authorities of the Member States for Border Control through information about people and objects.
The objectives of this system are oriented to control over people who want to enter the Schengen space. This control is articulated in two aspects through what was stated in article 93 of the 1990 Schengen Convention. First, series in the control of the people circulating in the territories of the states belonging to said agreement. And secondly, it would be a claim to public security and order.
The legal basis of this system was in Title IV of the Schengen Agreement Application Agreement, especially in article 29, which forces the contracting parties and exposes the purposes of said system. Due to the technological advance and the emergence of new threats, the European Union in 2013 replaced this system with the second generation Schengen information system (SIS II).
From this reform, the legal basis where this system moves revolves around two norms, the 2007/533/Jai decision and the 1987/2006 Regulation. On the one hand, the regulation constitutes the regulations governing the procedure in Title IV of the ESCREDITIVE TREATY OF THE EUROPEAN COMMUNITY. And on the other hand, the specific provisions of the decision expose the way of acting with respect to the purposes provided for in Title VI of the European Union Treaty.
B. The visa information system (VIS)
The visa information system, which is also part of the Schengen agreement, is limited to exchange information on the delivery of short -term visas between the Member States.
Their purposes revolve around improving the security of the databases and the exchange of this data, as well as the precaution to avoid crime. This last objective, caused the adoption of the 2008/633/JAI decision of June 23, 2008, on access to consult the Visa Information System (VIS) by the designated authorities of the Member States and by Europol , for prevention, detection and investigation of crimes of terrorism and other serious crimes.
C. The Dactillary Impress System of Asylum Applicants (EURODAC)
The countries of the European Union, through that system, identify through the comparison of fingerprints if the applicant has requested asylum in another country of the European Union while illegally in another territory of the Member States or has entered irregularly in The territory of the Union.
This procedure was regulated in Regulation (CE) 2725/2000 of the Council, of December 11, 2000. However, in 2015, Regulation (EU) 603/2013 of the European Parliament and the Council, of June 26, 2013, regarding the creation of the EURODAC system for the comparison of the fingerprints for the effective application of the Regulation of the Regulation (EU) 604/201336.
D. European Border and Costa Guard Agency (Frontex)
The European Border and Costa Guard Agency is a system aimed at perfecting collaboration at the external borders between the different Member States of the European Union. In 2002, the creation of this common body was ratified, and on October 26, 2004 it was finally created as a result of Regulation (CE) No. 2007/2004 of the Council.
The immigration crisis that suffocated the European Union that increased in 2015 due to the increase in immigrants especially from the Middle East due to the conflict situation in countries like Syria. This situation leads to the creation of the European Agency of the Border and Coasts Guard of the borders.
The restlessness caused by this immigration crisis led to the fact that on December 15, 2015, at the proposal of the European Commission, the renewal of the Frontex was produced to improve the safety of the outer borders of the Union. This renovation reinforced some aspects of the European Union’s operation treaty, specifically of articles 77 and 79, which advocate the creation of an external border management system and approve the establishment of a regulation according to which the Citizens of third countries that illegally reside in the European Union will be repatriated.
Then, in September 2018, the Commission presented a new proposal to improve Frontex that was approved by Plenary in the European Parliament.
The management of the outer border and the violation of human rights.
The European Union faced and continues to face a great immigration problem that leads to the creation of regulations on borders, migration and asylum to deal with that immigration demand. However, the implementation of this new regulation, due to the economic crisis and its social effects, has demonstrated the possible violation of the fundamental rights over which the European Union had advocated, and that we can verify in article 67.1 Tfue, expressing that "Union constitutes a space for freedom, security and justice within respect for fundamental rights …"
Thus, the Treaty of Operation of the European Union, under the rubric "Space of Freedom, Security and Justice" (Title V), fits as internal security issues of the European Union territory to immigration and asylum. In this section, there are provisions for the management of migratory flows through a common policy (Article 67.2 TFUE), as well as the attempt to alleviate immigration to confirm that security space by which he advocates. (Article 79.1 tfue). However, this common policy for borders management due to this great migration problem has not been respected by some countries such as Slovenia, Macedonia. Hungary, Croatia, Serbia and Austria. These countries have faced this crisis by lifting walls, mass deportations, imprisonment … that lead to the assumption that the European Union is responding to this immigration crisis by violating basic rights.
An example of this violation is the agreement carried out with Turkey on March 7 in Brussels, and which was endorsed in the European Council on March 17 and 18, for which migrants are redirected to Turkey. This pact has led to the violation of different treaties or conventions on human rights such as the Charter of Fundamental Rights of the European Union, the Universal Declaration of Human Rights, the European Convention on Human Rights or the Geneva Convention on the Refugees
This agreement violates European values since it does not defend that principle of non -return defended by art. 33.1 of the Geneva Convention of 1951 and that guarantees the right of asyl life.
Among the latest measures of the European Union, we find the distribution of those asylated by Europe, which is not being entirely effective due to the different treatments granted by states and the lack of regularization in their management.
conclusion
The European Union is living a delicate moment due to the flow of people who are receiving in its territory due to wars, dictatorial regimes, poverty or hunger, among other reasons.
In my view, the European Union has demonstrated great inability when managing borders since it has been losing some of the values that defined it, as is the case of the defense of human rights. The violation of these fundamental rights could damage the democratic system in the future, and even the rule of law, since they are built from the human dignity that is now beginning to break.
The rigid control of the borders caused by this immigration crisis, and that discourse against mass migration has also begun to encourage xenophobia in the territory of the European Union. We can see this with the growing influence of ultra-right in Europe as is the case of Vox in Spain, the Jean-Marie Lepen National Front in France, or the Northern League in Italy.
In short, I think that instead of that exhaustive control of borders, and that it violates the rights of migrants, the measures should not be so much to the rigid control of borders but to the countries that are in situations limits and that lead their inhabitants into exile. In this way, suffocating the problem from within in those countries, migratory flow could be reduced causing the different member states of the European Union, due to the serious economic crisis situation, they did not file different positions with respect to the management of external border, thus supporting that common policy and the non -violation of the principles of humanity and legality.
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