European Union: New Schengen Borders Code Forthcoming

• Public health emergencies. In the event of a large-scale public health emergency, the European Union will be able to implement harmonized EU-wide temporary rules regarding the access and travel of most non-EU nationals into and within the European Union. This includes not only limiting or barring entry at external EU borders, but also introducing testing, quarantine and self-isolation requirements, alongside other health requirements. Such limits will not extend to foreign nationals with full EU-mobility rights, such as EU Long-Term Residence Permit holders. Currently, the European Union can only issue non-binding recommendations to EU Member States regarding travel restrictions.
• Internal border controls:
  • Border control periods. The initial border control period can be implemented for up to six months, as opposed to the current 30 days. Additionally, EU Member States will be able to formally have internal border controls in place for a maximum of three years – comprising the initial six-month period, plus subsequent extensions. After the second year, extensions would only be possible in the event of exceptional circumstances. Currently, border controls can formally remain in place for only two years. However, in practice, many EU Member States disregard this two-year limit.
  • Justification of extensions. When extending any internal border controls beyond the initial six-month period, EU Member States will need to conduct a risk assessment analyzing the necessity and proportionality of such measures. This would often require assessing whether other viable and less-restrictive solutions exist. Additionally, EU Member States will also need to consider implementing policies which reduce restrictions on the mobility of important logistics and services as well as population movements in cross-border regions (for instance, movement between ‘twin cities’). Finally, EU Member States will also need to consult with other affected EU Member States about such internal border controls. The previous Code did not require an equivalent level of analysis and justification in the event of extending internal border controls.
• Instrumentalization of migration. EU Member States will be able to close or limit the opening hours of specific border crossing points in order to respond to so-called ‘instrumentalization of migration’ (where governments or non-state actors cause or increase migration at external European Union borders for political ends). The previous version of the Code did not provide such an option.  
• Transfer procedures. Subject to certain conditions, EU Member States will be able to transfer foreign nationals unlawfully staying in their border area back to the EU Member State from which they arrived.

Such policy changes are unlikely to have an immediate impact on employers, business travelers or foreign nationals with valid immigration status. Nonetheless, businesses are advised to track the status of potential border closures (including internal borders) as this may affect the movement of talent.

The impetus for these reforms included mobility-related public health challenges during COVID-19, as well as the separate issue of some EU Member States maintaining internal border controls well beyond prescribed time limits. These reforms follow other recent significant EU policy change, including approval of the revised Single Permit Directive.

• Effective date. These laws will come into effect on July 10, 2024.
• EES/ETIAS. These reforms come amid broader efforts to monitor and regulate movement in the Schengen Area, including the future scheduled introduction of the Entry/Exit System (an automated border check system) and the European Travel Information and Authorisation System (a pre-travel authorization system) in late 2024 and 2025, respectively.