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Samenvatting Onderwijsgroepen European Law_JHA inclusief stappenplan
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Onderwijsgroepen European Law_JHA inclusief stappenplan
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1Problem 1
1) What is the Schengen-Area?
Stappenplan for the Schengen area
1) Issue
- What is the issue?
2) Rules
- Art. 67/77/79 TFEU
- Art. 3 TEU
- Art. 1 SBC
3) Application
- Art. 67 TFEU → legal basis: ensures the absence of internal border controls.
- Art. 77 TFEU → legal basis: right to move and reside freely.
- Art. 79 TFEU → a common immigration policy aimed at ensuring, at all
stages, the efficient management of migration flows, fair treatment of
third-country nationals residing legally in Member States, and the prevention
of, and enhanced measures to combat, illegal immigration and trafficking in
human beings.
- Art. 3 TEU → legal basis: the Union shall offer its citizens an area without
internal frontiers, in which the free movement of persons is ensured.
- Art. 1 SBC → the Regulation provides for the absence of border control of
persons crossing internal borders.
4) Conclusion
- Summary of all the above + give an answer to the issue.
, 2
2) What are the Schengen rules on border checks for persons entering the
Schengen Area?
Stappenplan for the external borders of the Schengen area
1) Issue
- What is the issue?
2) Rules
- Art. 2(2) SBC
- Art. 6 SBC
- Art. 8 SBC
- Art. 14 SBC
3) Application
- Art. 2(2) SBC → definition external border: the Member States’ land borders,
including river and lake borders, sea borders and their airports, river ports,
sea ports and lake ports, provided that they are not internal borders.
- Art. 6 SBC → entry conditions for third-country nationals.
- Art. 6(1) sub a t/m e SBC → conditions entry third-country nationals.
- Art. 6(5) SBC → if you don’t meet these conditions, you can still be
allowed entry if…
- Art. 8 SBC → border checks
- Art. 8(1) SBC → cross-border movement at external borders shall be
subject to checks. (art. 2(5) SBC)
- Art. 8(2) SBC → checks on persons enjoying the right of free
movement under Union law. (art. 2(6) SBC) & (art. 20/21 TFEU)
- Art. 8(3) SBC → checks on checks for third country nationals.
- Difference → thorough checks (more detailed).
- Art. 14 SBC → refusal of entry.
4) Conclusion
- Summary of all the above + give an answer to the issue.
, 3
3) Is it possible for Schengen Member States to conduct checks within their
territory?
Stappenplan for the internal borders of the Schengen area
1) Issue
- What is the issue?
2) Rules
- Art. 2(1) SBC
- Art. 22 SBC
- Art. 23 SBC
- Art. 24 SBC
3) Application
- Art. 2(1) SBC → definition internal border: the common land borders,
including river and lake borders, of the Member States; the airports of the
Member States for internal flights; sea, river and lake ports of the Member
States for regular internal ferry connections.
- Art. 22 SBC → internal borders may be crossed without a border check.
- Art. 23 SBC → there can be checks within the internal borders.
- Art. 23 sub a SBC → the exercise of police powers by the competent
authorities of the Member States under national law, insofar as the
exercise of those powers does not have an effect equivalent to border
checks.
- Art. 23 sub a SBC → criteria → checks within the internal borders are
aloud when the police measures:
1) Do not have border control as an objective;
- Adil case, par. 77.
2) Are based on general police information and experience
regarding possible threats to public security and aim, in
particular, to combat cross-border crime;
- Adil case, par. 78.
3) Are devised and executed in a manner clearly distinct from
systematic checks on persons at the external borders;
- Adil case, par. 79.
4) Are carried out on the basis of spot-checks.
- Adil case, par. 80.
- Art. 24 SBC → removal of obstacles to traffic at road crossing-points at
internal borders.
4) Conclusion
- Summary of all the above + give an answer to the issue.
, 4
Adil case
Issue → Adil claims that there was an unlawful situation in Netherlands territory, after having
been stopped during a check carried out in the Netherlands in the frontier area with
Germany. But they were in fact not looking for illegals; they were spot-on checks. The Dutch
immigration law permitted spot-checks on persons in border areas in order to combat illegal
residence after crossing of the border. Mr. Adil already asked for asylum in Norway, then
tried again in the Netherlands The checks by the Dutch police within 20 kilometers of the
borders are allowed and are not checks that are equivalent to border controls. These checks
need to be limited and have a specific goal; in this case combating illegal residence.
- Par. 2, 21, 22, 24, 28
Question: Is it possible to have checks within the territory and if yes, what should they look
like?
- Par. 32, 37, 38
Rules → art. 22, 23 SBC
Application → par. 48, 49, 50, 51 t/m 67, 68 t/m 82, 87 t/m 87
Conclusion → The detailed rules and limitations put in place by national legislation in order
to define the intensity, frequency and selectivity of the checks which may be carried out, are
such as to ensure that the practical exercise of the police powers granted under Netherlands
law does not result in checks which have an equivalent effect to border checks: Dutch
checks were legal.
The Dutch checks were different from border checks because they “sought to establish the
identity, nationality and/or residence status of the person stopped in order, principally, to
combat illegal residence” (62). Neither did they have an effect equivalent to border checks,
even though these checks applied only in frontier areas, because they were selective and
the legal framework put down some limitations regarding their intensity and frequency.
- Par. 82, 88
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