by Hugo Brady

The freedom enjoyed by EU citizens to live and work in each others' countries is a unique liberty. It is the basis around which European governments have tried to build a single border, a compensatory system of co-operation between police, judges and immigration officers and a common refugee policy. But hardening attitudes towards immigration in many countries and widening policy disagreements between governments and the EU's institutions are exposing fault-lines in this structure. As the cracks threaten to widen over the coming months, policy-makers face some tricky dilemmas.

For a start, some EU governments are struggling with the very concept of free movement. The Dutch government – prodded by far-right politician and coalition kingmaker Geert Wilders – recently announced that it wants to renegotiate the free movement directive. At first sight, the Dutch demand does not seem that outrageous: change the law to allow governments to deport EU nationals with criminal records back to their home countries. The problem is that any re-opening of the 2004 directive risks sparking a plethora of demands from France, Italy or Britain to restrict free movement in other ways. The law was also at the centre of last year's spectacular row between the European Commission and France over arbitrary deportations of Roma. Poorer countries like Poland, Hungary or Romania would be livid, leading to a bitter split between east and west and, possibly, north and south.

Second, the Schengen area – the passport-free travel zone that incorporates most countries where free movement applies – is showing signs of strain. The most startling example of this is the partial takeover of Greece's border with Turkey by Frontex, the EU's border agency, due to a spike in illegal arrivals across the Evros river. Schengen is a bit like the euro, where countries share the benefits of a common good but largely trust each other to run a tight ship at home. However Greece already appears to view the Frontex mission as permanent, throwing up questions of moral hazard amid years of under-investment in its border services. With Italy appealing for similar intervention to help with migratory pressures from Tunisia, we could be witnessing the de facto creation of a European border guard. That development will take many EU countries by complete surprise.

Meanwhile, Bulgaria and Romania are adamant that they should join the Schengen area this year. But despite diplomatic bluster from both governments, neither is yet truly ready to cope with the kind of situation currently evident in Greece. For example, the Romanian port of Constanta risks becoming a Baltimore-on-the-Black Sea if traffickers and smugglers operating in the region can access the Schengen area there under current conditions: organised crime and corruption are commonplace. Moreover, Schengen entry is probably the last piece of leverage the EU has left to encourage both countries to cleanse corruption, reform their judiciaries and step up the fight against serious crime, as they solemnly promised to do in 2007. To argue that these issues are irrelevant to the maintenance of a common border is to dwell on niceties: they are all inherently linked to the rule of law.

Third, the EU's common asylum system is broken. Its cornerstone principle – that those fleeing persecution must apply for refugee status in whatever EU country they first reach – has been undermined by a recent judgement of the European Court of Human Rights on sub-standard refugee conditions in Greece.* The court exposed publically what governments and the European Commission already knew: despite the theoretical existence of common asylum rules, EU countries apply these more according to their national administrative traditions than the spirit of European law. Sadly, there is little agreement between Northern Europeans, the Mediterranean member-states or the Commission about what direction reform should take. While the Commission wants to raise standards and create some exceptions to the first-country-of-arrival rule, most governments oppose any liberalisation on the grounds of cost or moral hazard or both. Indeed the Netherlands wants the rules toughened to make it more, not less, difficult to claim refugee status; Sweden has tightened its own system in response to a rise in support for the far-right; and the UK has opted out of most of the new legislation proposed. This matters because no common border can work without an agreed approach to refugees: asylum seekers have special rights under international law to cross national frontiers. And with a fresh refugee crisis brewing in the EU's North African neighbourhood, it is imperative that the current system be replaced with something workable.

Fourth, the EU is about to embark on a complex and difficult debate about the sharing of police data across borders. EU countries have responded to the loss of control over their borders by creating ever more IT systems for sharing information like fingerprints, DNA records and criminal convictions. Later this year, Viviane Reding, the EU's justice commissioner, will unveil a robust new regime for protecting personal privacy in such cases, as well as an overall agreement with the US on data exchanged for the purposes of counter-terrorism and other serious crimes. The problem here is that the Commission is attempting to regulate the exchange of police files for the first time, using new powers under the Lisbon treaty. The issue is full of potential pitfalls. Given the disparity between national regimes for handling police data, an over-zealous proposal from the Commission would set it on a collision course with national security establishments across the EU and possibly provoke fresh tensions with the US. It is also questionable whether – as the Commission intends – a single EU system covering both commercial data and police records is feasible. It is important that information on private citizens shared across borders between police forces with different cultures and levels of professionalism is subject to credible restrictions. So too is the need for law enforcement bodies to work effectively together across borders. The Commission must exercise subtlety and good judgement.

The EU has a new politics of the interior. Failure to address any of the aforementioned issues correctly would undoubtedly have consequences for free movement and passport-free travel given the current political climate in Europe. It is no co-incidence that both France and the Netherlands have already recently attempted to step up police checks at their borders, in contravention of EU rules. As with the original system underpinning fiscal stability in the eurozone, some EU policies to do with border management, refugee protection and police co-operation were poorly designed. Their consequences, flaws and inherent contradictions will trigger much political and diplomatic confrontation in the months ahead. Many will say this is healthy: policies that have hitherto enjoyed years of cozy consensus and relative anonymity are now subject to proper scrutiny and debate. That is true enough. But the battles ahead are not for the faint-hearted.

Hugo Brady is a senior research fellow at the centre for European Reform

* M.S.S. v Belgium and Greece, http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=880339&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 [2]