Covid-19 Using Border Controls to Fight a Pandemic? Reflections From the European Union

Abstract

When Covid-19 was acknowledged to have arrived in Europe in February-March 2020, politicians and public health authorities scrabbled to find appropriate and effective responses to the challenges. The EU obligation contained in Article 9 Treaty on the Functioning of the European Union (TFEU) requiring the EU (including the Member States to achieve a common protection on human health, however, seems to have been missing from the responses.) Instead, borders and their control became a site of substantial political debate across Europe as a possible venue for effective measures to limit the spread of the pandemic. While the most invasive Covid-19 measures have been within EU states, lockdown, closure of businesses etc., the cross-border aspects (limitations on cross border movement) have been important. In the European Union this had important consequences for EU law on border controls, in particular free movement of persons and the absence of controls among Schengen states. It also implicated border controls with third countries, including European Free Trade Area (EFTA and Switzerland) all states neighboring the EU, the UK (having left the EU on 1 January 2020) the Western Balkans and Turkey. While EU law distinguishes between Schengen borders where no control takes place on persons, non-Schengen EU borders, where controls take place but are limited to identity checks and border controls with third countries and external borders with third countries (non-EFTA or Swiss) the responses of many Member States and the EU institutions abandoned many aspects of these distinctions. Indeed, the difference between border controls between states (inside Schengen, the EU, EFTA, or outside) and internal restrictions on movement became increasingly blurred. Two approaches—public health and public policy—were applied simultaneously and not always in ways which were mutually coherent, or in any way consistent with the Article 9 TFEU commitment. While the public health approach to movement of persons is based on ensuring identification of those in need of treatment or possibly carrying the disease, providing treatment as quickly as possible or quarantine, the public policy approach is based on refusing entry to persons who are a risk irrespective of what that may mean in terms of propagating the pandemic in neighboring states or states of origin. I will examine here the ways in which the two approaches were applied in the EU from the perspective of EU law on border controls.

Migration Issues in the Age of the COVID-19 Pandemic: A Comparison Between the European Union and Association of Southeast Asian Nations

“…The WHO declared COVID-19 a global pandemic on 11 March 2020 and while the most invasive COVID-19 measures have been implemented within EU Member States, such as lockdown, closure of businesses etc., the cross-border aspects (restrictions on cross border movement) have been important [26]. For example, internal border controls within the Schengen Area were reintroduced to prevent irregular secondary movements of migrants from neighbouring countries.…”

Política social en tiempos de la Cuarta Transformación

“…Con respecto al primero, el control de la movilidad humana obedece a la necesidad de identificar a las personas con necesidad de tratamiento o portadoras del virus. Por otro lado, el enfoque de política pública considera que dicho control es clave para detectar a quienes son personas de "riesgo", independientemente de lo que esto signifique en términos de la propagación del virus (Guild, 2020). Esta distinción resuelve cómo la pan-demia sirvió de justificación para cambiar los regímenes de internamiento y de asilo mediante la imposición de medidas más restrictivas, utilizando como justificación la pandemia (Gilman, 2020).…”