Brave new world? the new EU law on travel authorisation for non-EU citizens

Professor Steve Peers, University of Essex

Introduction

Yesterday it was announced that a new EU law on travel authorisation for non-EU citizens to visit the EU had been agreed. This will affect millions of travellers a year, probably including British citizens after Brexit. In fact, as a UK citizen who often travels to the continent, it’s the first EU law on non-EU immigration that will have a direct impact on me. The law won’t apply for awhile, but in light of its future significant impact and some public confusion about who it will apply to and how it works, it’s worth explaining in detail. (Update: the final version of the law was published in the EU Official Journal in September 2018).

Basics of the system

First of all, a travel authorisation is not a visa. While it is similar to a short-term travel visa in the sense that it is a process for deciding in advance whether a person can enter the territory, it will be much simpler and less costly to apply, and be valid for much longer.

The second key issue is: which countries are covered? This has two dimensions: the countries which will apply the travel authorisation law and the countries whose citizens will be subject to travel authorisation.

Taking these points in turn, the countries which will apply the travel authorisation law are the countries fully applying the Schengen system. This means all the EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia – although those States all except the UK and Ireland are obliged to take part in Schengen eventually. It also means non-EU countries associated with Schengen: Norway, Iceland, Liechtenstein and Switzerland.

As for the countries whose citizens will be subject to travel authorisation, that’s all non-EU countries which are a) not subject to a visa obligation for their citizens to visit the EU and b) do not have a free movement arrangement with the EU. So it follows that the new travel authorisation law will apply to British citizens who visit the EU after Brexit – unless they are visiting Ireland or the other EU countries not yet fully applying the Schengen rules. As an exception, though, the law will not apply (even if the new system is ready) to the UK during the post-Brexit transition period, because (as discussed here) it will be applying free movement with the EU during that time.  (Despite the weird claim in one newspaper, this has nothing to do with whether the UK has some form of customs union with the eU).

This new development fits into the broader framework of UK/EU immigration arrangements after Brexit, as I discussed in an earlier post. While UK citizens will very likely not be subject to short-term travel visas (that would be inconsistent with EU visa policy on wealthy and/or nearby countries), they will be conversely (on the basis of the law as it stands) be subject to the new travel authorisation law and other EU border control laws as non-EU citizens without free movement rights, including the loss of fast-track lanes at external borders. It would be possible for the UK and EU to negotiate a reciprocal exception to this, but that depends on the willingness of both sides to do so. It’s not clear if the UK is interested yet, or whether the EU would be willing to talk if it were.

It is absurd to argue that the application of the new law to UK citizens is a form of “punishment” by the EU. The UK government wants the UK to be a non-EU country without a free movement relationship, and the EU (as it stands) will therefore treat the UK like any other non-EU country without a free movement relationship. In fact the UK will be treated better than the many non-EU countries whose citizens are subjected to a visa requirement. Some Leavers should apologise for previously claiming that the likely application of the ETIAS to the UK after Brexit was “scaremongering”; likewise some Remainers should retract their assertion that tourist visas will definitely be required for UK citizens after Brexit. (Spoiler: neither will).

Remember, though, that the new law is not just relevant to the UK, but also to many other non-EU countries, including the USA, Canada, Australia, New Zealand, Japan, South Korea, Israel, and many States in the Caribbean, Latin America and neighbouring the EU to the east. A full list of non-visa countries can be found in Annex II to the EU visa list Regulation.

The new law will also apply to non-EU citizens subject to an optional visa exemption by Member States, namely re school pupils, refugees and armed forces’ members under certain conditions, along with non-EU family members of EU citizens who do not have residence cards on the basis of EU free movement law.

On the other hand, it will not apply to some other non-EU citizens:  refugees and stateless persons in a Member State; non-EU family members of EU citizens with a residence card; persons with residence permits from a Schengen state, uniform (Schengen) visas or national long-stay visas; nationals of European micro-states (Andorra, Monaco and San Marino and holders of a passport issued by the Vatican State or the Holy See); those who hold a border traffic permit subject to EU law when they travel within the local border traffic area; those subject to the optional visa requirement or exemption for holders of diplomatic or other official passports or travel documents issued by international organisations or certain international transport or emergency workers; those subject to the optional visa requirement because they are carrying out paid work; and non-EU citizens moving between Member States on the basis of EU law on intra-corporate transferees (discussed here) or on students and researchers (discussed here).

For UK citizens living in the EU27 states before Brexit, their rights on the basis of the Brexit withdrawal agreement (discussed here) will need to be evidenced by a residence permit from a Schengen states if they want to take advantage of these exemptions when coming back to the Schengen countries.

When will the new travel authorisation system apply?

The new Regulation will likely be formally adopted in a couple of months’ time.  While it will technically come into force twenty days after its formal adoption, the database needed to run the system take time to set up. So it will only begin operations when the Commission decides that other proposed EU laws on the interoperability of databases have entered into force, various implementing measures have been adopted, and there has been a successful comprehensive test of the system. It’s too early to say when this will be, but experience shows that several years may be necessary.

For the first six months after the system starts operations, its use will be optional and there will be no need to have a travel authorisation. The Commission may extend that for a further period of six months, renewable once. After that point, there will be a six months’ grace period when border guards may exceptionally allow people to enter without a valid travel authorisation. The Commission may extend this for another six months.

Process for the applicant

An applicant for travel authorisation must apply via a website or a mobile app “sufficiently in advance of any intended travel”, or, if they are already present in a Schengen State, “before the expiry of the validity of the travel authorisation”. If they already have a valid travel authorisation, they can apply for the next such authorisation as from 120 days (about four months) before it expires.  The system must “automatically inform” holders of travel authorisation via e-mail about the upcoming expiry of their authorisation, and the prospect of applying for a new one. Applications won’t have to be lodged by the potential traveller, but can instead be lodged by a company authorised to act on his or her behalf.

The application form has to include the applicant’s name, date of birth, place and country of birth, sex, nationality, parents’ names, travel document information, home address, e-mail and phone number, education level, occupation (which may be followed by a further request for information about an employer or where a student is studying), and Member State of first intended stay. Applicants must also answer whether they have: been convicted of a specified criminal offence over the last ten years (or the last twenty years, in the case of terrorist offences), and in which country; or “stayed in a specific war or conflict zone over the previous ten years and the reasons for the stay”; or been required to leave the territory of a Member State or any country on the EU visa whitelist over the last ten years.  If they answer yes to any of those questions, they will have to answer a further set of questions (yet to be determined). Each application will cost €7, but that fee will be waived for those under 18 or over 70, and applicants who are family members of EU citizens.

After the application is made, the data will be compared automatically to data in databases including the Schengen Information System (SIS), the planned Entry/Exit System (EES), the Visa Information System (VIS), the Eurodac database (which concerns asylum seekers and some irregular migrants), Europol data, and Interpol databases. The purpose of these checks is to determine whether: the travel document has been stolen, lost, misappropriated or invalidated; the person is listed in the SIS to be denied entry or wanted for arrest for extradition or as a missing person, potential witness or person subject to surveillance; a travel authorisation has been refused, revoked or annulled or there is a refusal based on the EES or the VIS; the travel document matches an application with different identity data; the applicant is a current or previous overstayer (ie did not leave on time when the permitted period of stay expired); there are matching data in Interpol, Europol or Eurodac files; or whether there are extradition or entry refusal data on the parent of a minor.  The application will also be checked against a watchlist and risk indicators. A number of these rules are waived for family members of EU citizens, in light of their rights under free movement law.

If this process does not result in any “hit”, then the travel authorisation will be issued automatically. If there is a hit, then the application is further examined to see if the hit was false. If it was genuine, then national authorities must examine the application further and decide on whether to issue the travel authorisation. This might entail asking the applicant further questions or consulting other Member States or Europol. The deadline for deciding on each application is 96 hours (four days), unless further information or an interview is required; in that case the deadline is extended to 96 hours after the further information is provided, or 48 hours after the interview is held.

When assessing applications, there will be profiling of applicants based on screening rules to be determined, which will be based on statistics indicating: “abnormal rates of overstayers and refusals of entry for a specific group of travellers”; “abnormal rates of refusals of travel authorisations due to a security, illegal immigration or high epidemic risk associated with a specific group of travellers”; “correlations between information collected through the application form and overstay or refusals of entry”; “specific security risk indicators or threats identified by” or “abnormal rates of overstayers and refusals of entry for a specific group of travellers” concerning a Member State, which must be “substantiated by factual and evidence-based elements”; or “information concerning specific high epidemic risks provided by Member States” along with “epidemiological surveillance information and risk assessments” produced by the WHO or the EU disease prevention agency.

These rules will be set out in Commission acts implemented by Frontex, which shall then “establish the specific risk indicators” based on: age range, sex, nationality; country and city of residence; level of education; and current occupation. However, these “specific risk indicators” must be “targeted and proportionate”, never based solely on sex or age nor on “information revealing a person’s colour, race, ethnic or social origin, genetic features, language, political or any other opinion, religion or philosophical belief, trade union membership, membership of a national minority, property, birth, disability or sexual orientation”.

Furthermore, there will be a “watchlist” of those “who are suspected of having committed or taken part in a terrorist offence or other serious criminal offence” or of those who may commit such offences in future, where there are “factual indications or reasonable grounds, based on an overall assessment of a person”, to believe that. (Note that “serious criminal offences” is defined as the 32 crimes listed in the EU law establishing the European Arrest Warrant, if they could be punished by at least three years in jail). The watchlist information shall be entered by either Europol or Member States, and shall consist of names, birth date, travel documents, home address, e-mail address, phone number, information on an organisation, or IP address. Listings in the watchlist cannot duplicate an alert that has already been issued in the SIS. The listings must be reviewed at least once a year.

Granting or refusing a travel authorisation

If there are “no factual indications or reasonable grounds based on factual indications” to believe that the applicant “poses a security, illegal immigration or high epidemic risk”, then a travel authorisation will have to be issued. It will be possible to issue an authorisation but with a flag to recommend that the traveller is interviewed by border guards at the border. The travel authorisation will be valid for three years, unless the travel document expires before that date.

Conversely, a travel authorisation application will have to be refused if the applicant: “used a travel document which is reported as lost, stolen, misappropriated or invalidated in the SIS”; “poses a security risk”; “poses an illegal immigration risk”; “poses a high epidemic risk”; is subject to a SIS alert to refuse entry; failed to reply to a request for additional information or attend an interview. It will also have to be refused if “there are reasonable and serious doubts as to the authenticity of the data, the reliability of the statements made by the applicant, the supporting documents provided by the applicant or the veracity of their contents”.

In that case, applicants will have the right to appeal, against the Member State that decided on their application in accordance with its national law. Furthermore, a previous refusal will not necessarily lead to a refusal of the next application, which will have to be considered separately on its own merits.

In either case, the applicant must be notified of either the positive or negative decision on the application, with information on either the conditions for travel to the EU or the grounds for refusal and information on the appeal process. Details of the decision will be added to the ETIAS database.

It will be possible to annul or revoke a travel authorisation. The basis for annulment is that “it becomes evident that the conditions for issuing it were not met at the time it was issued”, while an authorisation must be revoked “where it becomes evident that the conditions for issuing it are no longer met”. In either case, the decision must be taken on the basis of the usual grounds for refusal, the applicant must be notified of the grounds, there will again be an appeal right for the person concerned, and details will be added to the ETIAS database. An applicant may also ask for the authorisation to be revoked.

As with Schengen visas, there will be a possibility to issue a a travel authorisation with limited territorial validity, “when that Member State considers it necessary on humanitarian grounds in accordance with national law, for reasons of national interest or because of international obligations” even if the travel authorisation has not yet finished or has been refused, annulled or revoked. It will only be valid for 90 days, not the usual three years.

Given that transport companies have obligations if they carry passengers without immigration authorisation, the new law will give them the power to check the ETIAS database, to see if their passengers who need it have a valid travel authorisation. The database will also be available to border guards, to immigration authorities, national law enforcement bodies and Europol.

The ETIAS data will be kept in the database for the period of validity if an authorisation is granted, or five years from the last failed application if not. An applicant can consent to another three years of retaining the data in order to facilitate later applications. The general EU rules on data protection will apply to the processing of personal data in the system. Data cannot be transferred to non-EU countries, except to Interpol or for the purposes of facilitation of expulsion or where there is an imminent security risk, subject to detailed conditions.  

Comments

The new law will, if applied as planned, become a regular feature in the lives of those travelling to the EU, from the UK and many other States besides. For those who spend ten or twenty minutes making an application every three years and get travel authorisation after paying a €7 fee, there is limited hassle factor.  For those who fail to apply on time, or whose application is rejected, the hassle will be vastly greater, particularly if the refusal complicates their family or professional life.

On that point, the grounds for refusal are rather murky. The refusal of travel authorisation due to prior convictions for serious crimes, well-evidenced security risks or prior significant breaches of immigration law is reasonable, but the new law also refers vaguely to several levels of algorithms and profiling which have yet to be developed.  Recent events have called into question such use of “big data” more than ever; and “computer says nah” is not a good enough answer to an applicant, in particular for citizens of the UK or other neighbouring States who are more likely to have strong personal and professional links with the EU.

Barnard & Peers: chapter 26, chapter 27

Photo credit: GTP headlines

*This blog post was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'