Temporary Border Controls: The End Of Schengen Or An Opportunity To Dismantle The European Asylum System?
Syrian migrants cross under a fence as they enter Hungary at the border with Serbia, near Roszke, Aug. 27, 2015. (Bernadett Szabo/Reuters) https://www.cbc.ca/radio/ideas/how-the-hungarian-border-fence-remains-a-political-symbol-1.5476964
Abstract
As of January 2025, ten European countries have reintroduced border controls within the Schengen Area, highlighting the European Union’s failure to establish a cohesive and effective common asylum policy. This trend raises concerns about the future of Schengen, as it signals a shift towards more restrictive immigration policies driven by political pressures rather than genuine security needs. The current asylum system, characterized by divergent national policies and an ineffective burden-sharing framework, has led to a “race to the bottom,” with each member state attempting to limit the influx of asylum seekers. The absence of efficient legislation and enforcement mechanisms has created a prisoner’s dilemma-situation, where countries are incentivized to deviate from the common asylum framework. As evidenced by the contentious negotiations surrounding the 2024 New Asylum Pact, the pursuit of a unified asylum policy appears politically untenable. Therefore, I argue that empowering individual states to manage asylum processes, while safeguarding human rights at the supranational level, could offer a more fair and resilient solution.
Several countries have implemented or extended temporary border controls within the Schengen area. This trend is yet another manifestation of the European Union's failure to develop a common asylum framework and threatens its very foundations. While European cooperation provides significant benefits across various policy areas, in the asylum context, it has given rise to a prisoner dilemma situation among member states in which every country is incentivized to deviate from the common framework.
A more effective approach would involve empowering individual countries to manage their own asylum policies, while ensuring the protection of asylum seekers' rights at the supranational level. Such a model could lead to a fairer, more efficient system that is better equipped to address future migration challenges.
The Current Situation
As of January 2025, 10 European countries have reintroduced border controls at the internal borders of the Schengen area. These are Bulgaria, Germany, Slovenia, Italy, Austria, The Netherlands, Norway, Denmark, France and Sweden. While the Schengen Borders Code states that this measure must be applied as a last resort under emergency circumstances, it is becoming common practice among member states to introduce border control measures. The Code sets a temporal limit of 6 months and specifies that the border control measures should be imposed for the minimum time needed to tackle the specific emergency. However, several countries have requested more than one period of border control implementation, extending it beyond the 6 months cap.
This trend became increasingly evident in the aftermath of the COVID-19 pandemic, during which emergency measures enabled the extended enforcement of border control policies. The situation was further exacerbated following the most recent European Parliament elections, which resulted in a parliamentary composition more predisposed to support and implement restrictive immigration policies designed to limit the entry of migrants. Among the “emergency” reasons reported by the states for requesting the implementation of internal border control are risks associated with irregular migration in relation to the Paris Olympic Games, the War in Ukraine and the War in Gaza. The European Commission has accepted these justifications despite the absence of specific, imminent threats and a clear explanation of how internal border control would contribute to mitigating them.
Rather than an emergency situation, these policies seem to reflect governments’ rhetoric against migration. Germany’s controls, for example, were implemented after a knife attack where the suspects were asylum seekers, days before the regional elections that saw the victory of the far-right anti-immigrant party AFD. The federal elections will take place next February, and the polls show that Social Democratic Chancellor Scholz is losing consensus over migration-related concerns. Germany’s choice to implement these measures is particularly concerning not only because it demonstrates a change of course in Social Democrats’ policies, but also because of Germany’s central position in the European Union and its status as its largest economy. If France and Germany, the historical promoters of open borders within the Union, increasingly implement internal border controls, the scope of Schengen as a whole is at stake.
The Failure Of The European Common Approach To Asylum
This situation results from policies that failed to manage asylum at the European level.
While programs like CEAS (Common European Asylum System, 2013) and the Dublin Regulation (2013) aimed at homogenizing asylum policies across member states, de facto asylum policies have been implemented differently at each member-state level, resulting in a lack of human rights and irregular secondary movements.
The EU plays a substantial role in regulating asylum policies, mainly through external border controls and through the principle of first-country responsibility under the Dublin Regulation, which has been confirmed in the New Asylum Pact (2024). However, the 28 EU member states differ greatly in terms of migration rates and asylum policy. This is reflected in divergent policies that member states implement based on their economic and political considerations. The Dublin Regulation gave rise to enormous issues in 2015, with several border countries perceiving themselves as shouldering a disproportionate burden, consequently sabotaging the system.
First-arrival member states have ignored their responsibility to process asylum requests and substantially allowed asylum seekers to move onward toward other European countries. Hungary, for instance, has built a physical wall to divert flows towards neighboring countries.
In September 2015, Germany effectively suspended the Dublin Regulation, permitting thousands of migrants to cross its border. The country framed the influx of asylum seekers in favorable terms, as a means to meet the high demand for low-skilled labor. This policy came with polarization in the country’s debate which has recently experienced a strong call for excluding asylum seekers.
National Asylum Policies: Race To The Bottom
Regardless of the EU's attempts to shape a common framework, European countries have aimed to attract fewer asylum seekers by introducing restrictive asylum policies, leading to a regulatory “race to the bottom”. The absence of efficient legislation (in enactment or enforcement) has given rise to a prisoner dilemma situation among member states in which every country has an incentive to deviate from the common framework.
A prisoner-dilemma-like situation can be seen in the member states’ attempts to exclude asylum seekers by implementing restrictive economic policies toward refugees with the aim of diverting their trajectories. Recent examples of this kind of policy come from Sweden, where the new migration law, implemented in 2023, introduced a specific income requirement for non-EU workers to obtain a work permit and restrictions on family reunification.
Lastly, while those who manage to enter the European Union have the right to apply for asylum, the country processing the asylum request has substantial discretion in assessing whether the applicant’s need for protection is sufficient to warrant asylum. Italy, for example, is currently involved in a case before the European Court of Justice (ECJ) due to its establishment of an independent national list of "safe countries of origin." The term “safe country of origin” (SCO) refers to countries whose citizens, in theory, should not require international protection, as these countries are widely regarded as safe. This designation may lead to the automatic exclusion from refugee status for nationals of SCOs, or it may create a presumption of safety that such nationals must counter.
In October 2024, the ECJ ruled (case No. C-406/22) that the designation of a third country as a safe country of origin must apply to that country's entire territory, rather than to specific regions alone. Italy’s list includes nations considered “safe,” with exceptions for specific groups; for instance, Nigeria is deemed safe only for heterosexual men.The ECJ’s ruling complicates the start of the Italy-Albania project, which was intended to provide expedited processing for newly arrived asylum seekers in Italy, with those ineligible for asylum to be deported to Albania for return to their countries of origin. However, the Italian Court of Justice rejected the denial of asylum claims for the first migrants sent to Albania last October (2024). These migrants originated from countries listed by Italy as safe, but these countries do not meet the ECJ’s criteria, as they are not uniformly safe across their entire territories. Although the externalization component of the Italy-Albania agreement has been praised by Von Der Leyen, revealing the tension between the will to reject asylum seekers and the desire to guarantee them basic human rights.
The European unified approach should focus on the human rights aspect, recognizing a “safe country of origin list” that is independent of a single state’s preferences. On the other hand, the externalization policies should not be handled at the supranational level, as demonstrated by the consequent failures of such an approach.
No, Not Even The New Asylum Pact Will Work
The New Asylum Pact aims to overcome previous issues of the unitarian European approach to asylum policies, promoting externalization and a more equitable distribution of asylum seekers among member states. However, after its hard-fought approval, tensions are already rising over its implementation, with Germany requiring the return of a large number of migrants to its neighboring countries and with Austria and Poland already expressing opposition. With the rise of right-wing parties in several European countries, governments are increasingly moving toward tailored policies that disrupt the unitarian system while taking the responsibility of asylum away from single countries.
A common asylum policy seems less politically rational and national governments do not intend to push for an effective common approach. The consequence is that single-country policies are becoming so extreme that they are undermining the role of the European Union as a whole. Public opinion’s resistance towards a communitarian approach is driven by the great variation in economic, cultural and political factors that lead to different degrees of desirability of migrants.
The tensions and conflicts between EU member states over refugee issues indicate that a common asylum policy may not be optimal for the EU. A fairer and more resilient European asylum approach would involve assigning only the human rights aspects to the supranational level while dismantling externalization mechanisms. This approach would improve member states' accountability to international human rights law, reducing irregular secondary movements within the Union and curbing black-market activity arising from registration failures. Abandoning a European common asylum policy would also lead to abandoning the Dublin Regulation. Allowing asylum seekers to apply for asylum in the European country of their choice would not only support their aspirations but also enhance the economic productivity of the host countries.
Under the current system, asylum seekers are often isolated in the first EU country they enter, despite having networks in other member states. Research shows that – when given the possibility – asylum seekers choose labor markets with better opportunities and invest their skills and resources in the host countries. Furthermore, research has recognized the role of social capital both as a pull factor and as a resource that migrants can use to mobilize financial and human capital. Therefore, allowing asylum seekers to choose the EU application country will enable them to effectively mobilize their resources based on the destination country’s needs.
Asylum policies will still be determined at the national level allowing each state to prioritize its labor market needs and security considerations. A primary concern with such a system would be the increased vulnerability of asylum seekers to the policies of individual countries. However, the European Union must continue to uphold its role as a protector of human rights by implementing common policies that avoid creating a prisoner’s dilemma. Instead, these policies should aim to achieve at the supranational level what individual countries might struggle to address effectively on their own, especially on human rights protection.
The single country’s border closure not only creates chaos and undermines the respect of human rights of asylum seekers, but it also challenges the functions of Schengen as a whole.
A 2016 report by the Bertelsmann Foundation estimated that reintroducing internal border controls would result in a loss of approximately €470 billion (£397 billion) in economic growth over a decade.
Blindly continuing to pursue a common European asylum system is one of the causes behind the proliferation of temporary border control policies among Schengen countries. This dynamic poses questions about the efficiency of the European system as a whole and risks undermining the benefits of European cooperation in many other policy domains.
Allowing single countries to manage their asylum policies while safeguarding asylum seekers’ rights at the supranational level creates a fairer and more efficient system that equips the European Union to face future migration-related challenges.