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Legal action against UK authorities aims to highlight the “utter chaos” of EU borders

UK border imageBy Simon Davies

The Privacy Surgeon is shepherding an appeal by a US citizen who earlier this week was detained and interrogated for more than seven hours at the UK border. The man was subsequently refused entry and forced back to mainland Europe on grounds that can best be described as bizarre and unstable (you can read the victim’s first hand story here).

We’re backing this appeal not simply because this action underscores an increasingly inhumane and unlawful UK border policy, but also because it will help highlight the utter chaos of the broader EU border management regime.

The management of European borders frequently leads to uncertainty and conflict. Different visa systems operated by the UK, Ireland and mainland Europe have created a situation where travellers are exposed to the risk of overstaying, with the consequence of detention and interrogation.

Welcome to Britain... now get out! The removal stamp with cross applied by UK border authorities

Welcome to Britain… now get out! The removal stamp with cross applied by UK border authorities

The primary arrangement in the EU is called “Schengen”, an agreement that in theory creates a borderless region comprising 26 European countries. Schengen is an important agreement primarily because freedom of movement and the elimination of internal borders are central to the European ideal.

To satisfy this ideal, Schengen was designed as a vast “passport free” zone. Or, it would have been a passport free zone were it not for the fact that it isn’t. The laws of most Schengen countries require you to carry identity documents at all times. In other words, you would be illegal if you didn’t carry a passport.

All of which may not matter so much if there were no actual border checks, but there are. Indeed border checks involving demands for disclosure of identity are permitted by the Schengen agreement, so every country conducts border checks.

Here’s the background to Schengen.

The idea is that the system comprises a “hard” outer border encapsulating all member countries, and then “soft” internal borders so EU residents and tourists have “freedom” of movement. The logic is that it’s hard to sneak into the Schengen area, but easy to move around once you’re in it.

I should add a caveat. The deal that governments cut in return for having “soft” internal borders is that national authorities can often detain you at will and demand identity in a wide range of circumstances (and require your passport in situations like booking a hotel room). Much of this data feeds into a vast panopticon called the Schengen Information System. In this way, Schengen is being constructed as the world’s largest zone of surveillance.

Be that as it may, most travellers can stay in the Schengen area for a cumulative ninety days in any 180 day period. In the past, things were allegedly more complicated. Border officials used a calculation based on “90 days in a 180-day period” (or the “90/180″ rule).

The deal that governments cut in return for having “soft” internal borders is that national authorities can often detain you at will and demand identity in a wide range of circumstances (and require your passport in situations like booking a hotel room).

Here’s the core problem. Even now, no-one – least of all the actual border authorities – has an agreed way of calculating this equation. In theory, officials should work backwards and count the number of days spent in Schengen to see whether the 90 allowable days has been spent. In reality, busy border officials look for the first (or sometimes the last) Schengen entry stamp and then count forwards. Indeed the Danish Immigration service advises using a calendar to count forward from the last date of entry into Schengen. This confusion triggered the problems encountered by the appellant in question.

While the appeal is in process we’ll give this man the codename “Jonathan”. Jonathan, for the record, is a young, white, working class, partly Jewish, small-town American with a back injury and no criminal record. Jonathan’s story – in his own words – can be read here.

By way of background, Jonathan had made two trips to Europe, one short journey last September and another extended trip in late November. The UK believed he had thus overstayed his welcome.

Jonathan was advised last month by border officials in the Netherlands that his Shengen clock began on his last trip to Europe in November. That is, he still had plenty of free days to continue travelling.

With this in mind, Jonathan then took the decision to see friends in the UK, which he attempted to do on March 11th.

Before exploring this tale in more depth, it’s important to see where the UK fits into Schengen.

In short, it doesn’t fit into Schengen. Both the UK and Ireland refused to join Schengen, and opted instead for their own visa and border system operating under their own set of rules. Britain argued at the time that it couldn’t trust Schengen to protect its borders, principally because Britain is an island.

This logic has always been a source of bemusement across the rest of Europe, mainly because Iceland is in Schengen – and of course Iceland is an island. For that matter, so is Malta. And even EU countries such as Estonia, which have a volatile border with Russia, are happy to be part of Schengen.

All of which means that travellers need to be conscious of at least two sets of border conditions. A US citizen, for example, can travel freely in Schengen for up to ninety days, but that same citizen can reside in the UK for six months. However, while Schengen allows multiple external border entries and calculates days cumulatively, the UK often disallows multiple entries.

You can add to this confusion certain special conditions created by individual EU countries. For example Denmark’s official travel portal advises that US citizens can enter the country without a visa for up to ninety days “regardless of stays in other Schengen countries”. A reasonable interpretation of this advice is that stays in Denmark can be made outside the Schengen 180-day clock. This is not the interpretation that UK officials use.

Both the UK and Ireland refused to join Schengen, and opted instead for their own visa and border system operating under their own set of rules. Britain argued at the time that it couldn’t trust Schengen to protect its borders, principally because Britain is an island.

The first I had heard about Jonathan’s predicament was a message via a friend to call the border authorities at London’s Gatwick Airport. Jonathan was being detained and questioned – and had been in that state for almost five hours. He had told the authorities that I was a good friend and they should call me to verify that he wasn’t planning to abscond forever into some remote English forest. It seemed a reasonable request.

I advised the border officials that there was no question of Jonathan breaking UK visa rules. Indeed he had already booked a flight to the Netherlands the following week. He would be staying with – and supported by – close friends during his short stay (those friends were actually in the airport and confirmed this situation directly with the authorities).

Despite these interventions, UK officials took the decision after seven hours to remove Jonathan from the country and place him on the next flight to Copenhagen – his most recent point of origin.

The Notice of Refusal of Leave to Enter that was handed to Jonathan is nothing short of mystifying. It states that the reason for refusal is that Jonathan demonstrated “a willingness to flout the immigration rules of another country” (i.e. Schengen). This assertion stretches credulity to breaking point.

Jonathan’s appeal will be based in part on miscalculation and an apparently wilful deception within this document. For example, it was claimed that: “Within the past 180 days you have spent 114 days in Europe,. You are only entitled to spend 90 days in the Schengen area within a period of 180 days.” The fact is Jonathan spent a total of thirty days in the UK visiting friends during that period, so the figures don’t stack up. That is, Her Majesty’s government based its decision on a false calculation. 114 days in Europe minus the thirty days in the UK leaves 84 days in Schengen, leaving six clear days of travel (and with the Schengen 180-day clock about to re-start).

As the UK has a tight electronic borders regime, this data is obvious and incontrovertible.

However, it is the deceptive nature of the claim that is most contentious. To state that “Within the past 180 days you have spent 114 days in Europe,. You are only entitled to spend 90 days in the Schengen area within a period of 180 days” is like comparing apples with oranges. It also appears to be an intentional distortion of words that aims to confuse the calculation.

During the Privacy Surgeon’s interview with border officials, one officer went as far as to admit “I guess no-one really knows how Schengen works”. If this is the case, clarity and consistency across Europe are urgently needed to ensure that cases such as Jonathan’s do not emerge again.