In 1985 at Schengen, France, the Federal Republic of Germany, The Netherlands, Belgium and Luxembourg concluded a treaty ‘on the gradual removal of border controls on joint frontiers’. A new treaty is emerging, however, which, if it ever enters into force, will have a major impact both on national legal systems and on the legal position of those seeking asylum in western Europe. The author analyses certain aspects of the draft text of the treaty, which has been drawn up in secret and never officially published. He mentions in particular the provisions on responsibility for dealing with an asylum claim, and notes that these not only ignore the wishes or intentions of the individual, but also provide few if any procedural guarantees. The author argues that the present Schengen draft appears to infringe the 1951 Convention on two essential points, namely, the abandonment of the duty of each Schengen State to offer every refugee a certain measure of protection; and by way of restrictions on the carriage of refugees not in possession of the necessary documents. In this way, the Schengen States would place upon the shoulders of remote carrief personnel the duties of their own immigration officers. Other areas of concern include the provisions dealing with the exchange of personal data relating to persons seeking asylum; the question whether human rights treaties and the 1951 Convention will in fact be undermined by the Schengen arrangement, and how long ‘Schengen’ is to remain in force. The author concludes that the draft is not so much a case of harmonization, as a reflection of the desire of civil servants to facilitate the removal of persons from the Schengen territory. He considers that an important opportunity to fill some of the gaps left by the 1951 Convention has been lost, and he suggests some alternatives whereby individual rights can be better protected within the European system. © 1990 Oxford University Press.

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