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Scotland in the European Union

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Annex 7: Schengen and the Common Travel Area

The Scottish Government, while endorsing the objectives underpinning the Schengen Agreement, has no plans in the foreseeable future to recommend to the people of Scotland that an independent Scotland should begin the process of joining the Schengen area.

The Scottish Government has made clear that following independence Scotland will remain an integral part of the broader "social union" that is the expression of the close economic, social and cultural ties that exist across the nations of the UK (including the Isle of Man and the Channel Islands) and Ireland. Independence does not threaten that social union: indeed it will make it stronger with Scotland taking its place within a renewed and reinvigorated partnership that will benefit citizens in each part of that social union.

An essential part of this social union, and one that will be fully maintained under independence, is the free movement of nationals between Scotland and the rest of the UK (rUK) and Ireland. There are no circumstances in which the Scottish Government would countenance any measure being taken that jeopardized the ability of citizens across the rUK and Ireland to move freely across the borders as they are presently able to do. It is for this reason that following independence Scotland will remain part of the Common Travel Area (CTA).

The Schengen Agreement

The provisions governing EU common policies on border checks, asylum and immigration - commonly referred to as the Schengen area provisions - were incorporated into the EU legal framework by the Treaty of Amsterdam which entered into force on 1st May 1999. However, the underlying policy objective - namely enabling movement across internal borders without being subjected to border checks - dates from a voluntary inter-governmental agreement, outside the EU legal framework, signed in 1985 between France, Germany, Belgium, Luxembourg and the Netherlands. In this sense the Schengen element of the EU acquis originates from a voluntary decision by some EU members to remove border checks on people moving between signatory countries, rather than from a fundamental objective of the EU. Over the period between 1985 and its incorporation in to the EU treaty, almost every EU Member State voluntarily acceded to the cooperation agreement. The exceptions were the UK and Ireland. Since 1999 the Schengen area has extended to include Member States that joined in 2004 as well as non-EU countries.

The objective of the Schengen agreement was to abolish border checks on people moving between the signatory countries. One unavoidable consequence was that controls at the external borders of the participating countries were tightened and that cooperation was triggered between the judicial and security authorities in the participating countries. This latter aspect was deemed necessary insofar as border posts had, up until then, provided a degree of protection against criminals and other potential law-breakers escaping the judicial authorities in one EU Member State by fleeing to another. It is important to note that members of the Schengen area have to meet certain tests to show that they can secure their external borders.

The Schengen agreement also had important implications for the immigration and asylum policies of the participating countries. The removal of border checks on persons travelling within the Schengen area essentially meant that once an individual had entered a Schengen country, that individual was then able to move freely between all Schengen countries; although internal border controls can be brought in by members under certain circumstances[80]. This prompted discussions leading to the emergence of a common approach to immigration and asylum by the Schengen area countries and the introduction of a legal base in the EU treaties to facilitate collective actions on these matters.

Accordingly, the underlying motivation for including the Schengen agreement within the EU Treaty framework was to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is ensured. This would be in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

Timeline - The Schengen Agreement

1985: Schengen Agreement signed

1997: Amsterdam Treaty signed which absorbed Schengen Agreement and rules into EU law. UK and Ireland obtain opt-outs

1999: Amsterdam Treaty comes into force.

Today, a total of 30 countries, including all EU Member States (except the UK and Ireland) and four non-EU members (Iceland, Norway, Switzerland and Lichtenstein) have signed the Schengen agreement. However, not all countries cooperating in Schengen are party to the Schengen area. This is either because they do not wish to eliminate border controls or because they do not yet fulfill the required conditions for the application of the Schengen acquis[81].

Key rules adopted within the Schengen framework included:

  • removal of checks on persons at the internal borders;
  • a common set of rules applying to people crossing the external borders of the EU Member States;
  • harmonisation of the conditions of entry and of the rules on visas for short stays;
  • enhanced police cooperation (including rights of cross-border surveillance and hot pursuit);
  • stronger judicial cooperation through a faster extradition system and transfer of enforcement of criminal judgments; and,
  • establishment and development of the Schengen Information System (SIS).

The UK and Ireland decided not to participate in the Schengen agreement and as such they secured opt-outs when the Schengen acquis was incorporated into EU law. Accordingly, border checks remain on travellers arriving in either country from Schengen area countries. However, they also have the possibility, through a provision in the Treaty to "opt-in" to some parts of the Schengen accords. This provision is set out in Protocol 19 of the Treaty, under which both the UK and Ireland can, and do, take part in some the Schengen arrangements - especially in fields relating to police and judicial cooperation in criminal matters, the fight against drugs and the Schengen Information System.

Regional practice in Schengen

The possibility of the UK and Ireland "opting in" to elements of the Schengen acquis is not the only flexibility provided for in this arrangement. There are a number of other flexibilities in the Schengen protocol that reflect specific regional practice. The Schengen area does not coincide solely with EU territory. Accordingly, the Schengen area is also open to EEA countries (see Annex 4). As such, from 25 March 2001, the Schengen acquis was extended and applied in its entirety to the five countries of the Nordic Passport Union (Denmark, Sweden, Norway, Finland, and Iceland - but excluding the Faroe Islands), although these countries cannot participate in the Council of Ministers meetings that approve legislation. However, there are some provisions in the Nordic Passport Union that give extra rights for Nordic citizens, not covered by Schengen, such as less paperwork if moving to a different Nordic country, and fewer requirements for naturalization of citizenship.

The Common Travel Area

As already noted, the UK and Ireland do not participate in the provisions of the Schengen Agreement on the free movement of persons, external border controls and visa policy though, as set out in Protocol 19, both may choose to participate in aspects of the Schengen system.

The CTA comprises Ireland, the UK (including the Channel Islands and the Isle of Man). The CTA pre-dates the EU. It came into being in the 1920s and is based on the principle of free movement for nationals of the UK and Ireland. The UK has always operated external border controls (at point of entry) but not within the UK. This allows citizens to move freely across the UK and Ireland without passports or identity cards. Co-operation between the UK and Ireland on measures to secure the external CTA border are underpinned by a Joint Statement published in December 2011[82]. This commits both Governments in an unbinding agreement to continue the co-operation through the CTA and to align visa requirements, data sharing practice and the e-Borders/Irish Border Information System.

On December 21, 2011 the UK and Ireland Governments:

"…signed an important agreement reinforcing their commitment to preserving the Common Travel Area (CTA) while further cracking down on illegal immigration and spurious asylum claims." (European Union News, December 21, 2011)

The Irish Position on Schengen

Ireland joined the EU in 1973, at the same time as the UK, and has continued to remain committed to the CTA. In 1995 the Irish Government said that:

"It would not be in the interest of Ireland to have a situation where the common travel area with Britain would be ended and Ireland would impose both exit and entry controls on persons travelling between here and Britain and, in addition, on the land frontier."[83]

In 1999 they said that:

"For reasons related to the United Kingdom's position on freedom of movement of persons and to the common travel area between both countries, neither Ireland nor the United Kingdom participate in the Schengen process".[84]

An independent Scotland in the EU would essentially take the same approach. As such the Scottish Government's position to remain within the CTA is based on valid practical considerations of geography and working arrangements that predate the EU. These arrangements are not only robust and help protect the security of the CTA but also that of the Schengen area.

The Scottish Government does not consider there is any reason to believe its decision to remain part of the CTA and forego Schengen area membership would be challenged by the European Commission. After all, the EU has spent all of its 50 or so years of existence seeking to demolish borders across the EU. It is therefore unlikely that the Commission will use the moment of Scotland's independent membership of the EU to insist that a new internal border is created between Scotland and the rest of the CTA.

Legal requirements

The current CTA between the UK and Ireland is based on administrative agreements, rather than binding Treaty obligations to which an independent Scotland would succeed. These arrangements are reflected in the UK's immigration laws (and those of the Republic of Ireland) and could be replicated by an independent Scotland in due course.

From a UK Border Agency Document:

"The CTA was purely an administrative arrangement until it was given statutory recognition in the UK under the Immigration Act 1971 and the Immigration (Control of Entry through the Republic of Ireland) Order 1972. The European Treaty of Amsterdam recognises the provisions of the CTA in order to distinguish it from the Schengen area."

It is likely that in order to continue being a member of the CTA, an independent Scotland would be asked by the rUK and Irish Governments to ensure that visa and immigration controls and practice met certain shared standards. The detail of this would require negotiation, but it should be noted that the Ireland and the UK already operate different systems within the Common Travel Area and therefore it should not be assumed that full harmonisation will be required.

"…the only sensible thing would be for Scotland to have an opt-out of Schengen… It depends on the level of agreement that has been achieved between Scotland and the United Kingdom, so an agreed position can be presented to the EU. Without an opt-out from Schengen, you would have the nonsense of 20-mile tailbacks of trucks on the M74. You would have border posts and biometric checking along Hadrian's wall. It does not make any sense, so the two parts of the island really have to have a common border system." Professor Sir David Omand, former Home Office Permanent Secretary (evidence to Foreign Affairs Committee, 4 Dec 2012)

The Scottish Government has no plans in the foreseeable future to recommend to the people of Scotland that an independent Scotland should begin the process of joining the Schengen area. While endorsing the objectives underpinning the Schengen Agreement, protecting the integrity of the UK and Ireland social union means that an independent Scotland will join the Common Travel Area (CTA).

Following independence the Scottish Government will take the steps required to participate in the Common Travel Area. This will ensure that the citizens of Scotland, rUK and Ireland will continue to enjoy the benefits of unimpeded travel and social engagement in every aspect of their lives as they do at present.