The ‘spirit of the Schengen rules’, the humanitarian visa, and contested asylum governance in Europe – The Swiss case

Abstract

ABSTRACTThe paper examines why Switzerland along with several other European countries introduced a Schengen visa to substitute for individual applications for asylum at the country’s embassy as a pathway to protect Syrian refugees. The case study highlights the inherent interest asymmetries in a tenuous arrangement of multi-layered governance, revealing a conflict over the interpretation of Schengen law in a collective governance environment – a conflict that was recently resolved by the Court of Justice of the European Union (CJEU). Drawing on multi-layered governance, the paper discusses why the Swiss divergence from the ‘spirit’, but not the ‘letter’ of the Schengen code (a metaphor used by the EU Commission), could be considered as an example of ‘de-coupling’ from the negotiated, intergovernmental order. Whereas de jure the unity of the Schengen visa code is maintained, the amount of discretion which Switzerland and other Schengen countries have used to interpret the regulatory purpose behind the Schengen humanitarian visa went too far for the CJEU and the EU Commission. The case study illustrates how the interpretation of rules matters in a multi-layered framework of governance, possibly giving the ability to react to changing circumstances, but also bearing the potential for conflict.