Revising EU visa policy

Professor Steve Peers

Back in 2014, the Commission proposed a revamp of EU visa policy (concerning short-term visit visas), in the form of a proposal to revise the EU’s visa code. This proposal ultimately failed, because the EU Parliament and Council could not agree on whether it should include “safe passage” visas for those needing protection or not. Now the Commission is trying again, focussing this time on security concerns, rather than economic growth.

Background

The rules for issuing short-term visas are set out in the Visa Code, adopted in 2009. The CJEU has clarified some key points of the Code, ruling that: in effect it creates a right to a visa if the conditions are satisfied, although Member States have flexibility over how to apply those conditions (Koushkaki, discussed here); there must be a possibility of judicial review as part of the appeal process (El-Hassani); and “safe passage” visas are not covered by the Code (X and X).

The Code concerns “Schengen visas”, ie visas which allow travel across the entire Schengen area. As such it applies to the EU countries fully applying the Schengen rules (all Member States except the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria) as well as the non-EU Schengen associates: Norway, Iceland, Switzerland and Liechtenstein.

The list of non-EU countries whose citizens do (or do not) need a visa to visit the Schengen area is set out in a separate visa list Regulation (the plans for visa waivers for Turkey and Kosovo are on hold). EU policy is to waive visa requirements for nearby countries, subject to a (loosely-enforced) requirement for reciprocity, so it is likely that UK citizens will not need a visa to visit the EU after Brexit. However, EU legislation to set up a “travel authorisation” system, about to be adopted (see discussion here), will apply to all non-EU countries with a visa waiver but without a free movement agreement with the EU. As things stand, this law will apply to the UK, unless some special exemption is requested and agreed. A travel authorisation is similar to a visa in that it requires a prior authorisation to travel, but will cost less and be valid for much longer.

2014 proposals

As noted above, the ill-fated 2014 proposal to amend the visa code was focussed on economic issues, in particular aiming to facilitate tourism. A parallel proposal for a “touring visa” would have provided for an extended stay for those visiting multiple Member States for a longer period, as part of an orchestra or circus, for instance. (I discussed the details of both proposals here). The 2014 proposal also included provisions on facilitating the travel of EU citizens’ non-EU family members (discussed here), and, as noted already, it was an opportunity to argue for explicit “safe passage” rules to be added to the rules (as discussed here).

2018 proposal

The Commission withdrew both 2014 proposals in light of the negotiation deadlock, and tabled a revised visa code proposal in March 2018. (It did not try to revive the “touring visa” proposal). This was met with much interest in the Council, which adopted a negotiation position on the proposal already by June 2018. The European Parliament is taking a more leisurely approach, so has no position yet. (Note that the Commission has also suggested a revision of the law governing the related database, the Visa Information System, which would, among other things, provide for fingerprinting 6-year-old visa applicants, and extend that system to apply to long-stay visas and residence permits). 

The Commission’s 2018 communication on visa policy is a good overview of the purposes of the recent proposal. In addition to the main focus on security – which takes the form of penalties for non-EU countries that do not cooperate with the EU on readmission policy – it contains a limited number of simplifications for legitimate travellers. The Commission has dropped the proposals to simplify travel for EU citizens’ family members, and has made more suggestions to simplify the rules on multiple entry visas as compared to 2018.

The Council’s position

Compared to the Commission’s proposal, the Council has reserved for itself the power to punish countries that do not cooperate with the EU on readmission (by raising visa fees, requiring more documents, and slowing down processing times), following a diplomatic process in which the EU will threaten these sanctions if no cooperation is forthcoming. (It’s already EU policy to link treaties simplifying the issue of visas to readmission treaties, but this policy will now become unilateral, and take the form of sticks, rather than carrots).

On other issues, it will be possible for travellers to apply for a visa six months in advance, rather than three. The Council rejected the Commission’s proposal to let NGOs apply for visas on behalf of their staff. The visa application fee will rise from €60 to €80, and from €35 to €40 for 6-12 year olds. The Commission will have the power to revise the fee every three years. Member States’ option to waive the fee for diplomats is dropped. The new “punishment” clause will raise the visa application fee to €120 or €160 for travellers from countries that are judged not to cooperate on migration.

Multiple entry visas lasting for one, two or five years will be available, based on prior lawful use of a visa. The Council dropped the Commission’s proposal to refer to judicial review in the event of an appeal against refusal of a visa, but this cannot change the legal obligation to provide for such a review, since the CJEU ruling on this issue (El-Hassani, noted above) based this obligation on EU primary law: the EU Charter of Fundamental Rights.  The Commission proposal to issue visas at the border in order to encourage tourism has been dropped by the Council, and the current law’s possibilities of having “co-location” and “common application centres” are dropped, as they have been overtaken by events – the trend of outsourcing the visa application process to private entities. As a partial substitute, the revisions will simplify the rules which apply when one Member State represents another one for visa applications.

Comments

It remains to be seen whether the European Parliament will go along with these amendments, or whether it will seek to retain some of the simplification of travel rules which the Commission initially proposed in 2014, for instance for EU citizens’ family members. (Such rules, if agreed, will only briefly be helpful for UK citizens’ non-EU family members, before the end of the post-Brexit transition period).  The Parliament might also try to address the “safe passage” issue again, and it has traditional concerns about limiting fee increases for vulnerable groups like children. The visa code amendments might be linked in practice to the proposals to turn the Visa Information System into an even bigger Panopticon.

However, some version of the readmission punishment clauses are likely to go through, as they are part of the EU arsenal of stricter migration control policies (along with greater internal and external border checks, an expanded Frontex border control body, and agreements with countries like Turkey to control and take back asylum seekers and migrants). Whether they will be effective remains to be seen; there will presumably still be ‘carrots’ from the EU-Africa funds offered to States which cooperate with the EU’s increasing attempts at “remote control” of migration. Whether the new policy will work in practice, or – even if they do work – satisfy those voters who already remain angry despite hugely reduced migration flows, equally remains to be seen. 

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: schengenvisainfo.com

EU visa policy: A dash for growth?

Steve Peers

Historically, EU visa policy has principally concerned itself with controlling the risk of irregular migration and possible threats to security, balanced against EU foreign policy objectives. But in the last few years that policy has increasingly come to take account of economic growth (most notably as regards the EU tourism industry). This reorientation was launched in a Commission communication of 2012, and is already reflected in the last set of changes to the EU’s visa ‘whitelist’, which now includes trade and investment among the criteria for liberalising visas. Indeed those most recent amendments applied this policy by moving Peru and Colombia onto the visa waiver whitelist in return for signing a trade deal with the EU.

Will this policy also impact upon the EU’s visa code, which sets out the detailed rules for visa applications? Last year, the Commission proposed an overhaul of the code, alongside a parallel proposal for a ‘touring visa’ for those who wanted to stay for more than three months in the Schengen area (but for no more than three months in any one Schengen State). I have previously examined two specific issues relating to the visa code proposal: the position of EU citizens’ family members, and the possibility of developing the (implied) rules on humanitarian visas. The following analysis completes my comments (for now). It’s based on my ongoing work on the fourth edition of EU Justice and Home Affairs Law.

Visa code proposal

The proposal to overhaul the visa code keeps the basic structure of the code intact, but suggests a number of significant amendments. It doesn’t affect the issue of who does or doesn’t need a visa to visit the EU in the first place. The code only applies to States fully applying the Schengen system: 22 EU Member States (excluding the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria, although the latter four States must apply it someday when they join Schengen), and four Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

It should be recalled that the CJEU has already ruled, in its judgment in Koushkaki (discussed here) that anyone who meets the criteria to obtain a Schengen visa set out in the visa code is entitled to one. The proposal wouldn’t change that case law either.

There’s a long list of proposed amendments, but the main aim of the proposal is to simplify the process of applying for a Schengen visa. So the obligation to appear in person to apply in a consulate would be dropped, except for when the applicant has to be fingerprinted for registration in the Visa Information System database (once every five years). Already only 30% of applicants appear in person, since most countries have outsourced the collection of visa application information to private companies. There would be revised rules determining which Member State consulate is responsible for each application, to make sure that each applicant will be able to apply for a visa without having to travel to a consulate in another country. Applicants could apply for a visa up to six months in advance (at present, the rules only allow them to apply up to three months in advance).

Checks on whether applicants have accommodation, means of subsistence and an intention to return would be relaxed if they were regular travellers with a ‘clean’ immigration record (this could be checked in the Visa Information System). Applicants would no longer have to obtain travel medical insurance, and Member States would have to make decisions more quickly. The rules on waiving the €60 visa application fee would become uniform, so that (for instance) there would be no fee for children under 18, researchers or diplomats. Regular travellers with a clean record would have a right to a multiple-entry visa, with a three year validity rising to five years (currently such visas might be valid for as short as six months). There would also be more possibilities to apply for visas at borders; at the moment this is a highly exceptional rule which mainly applies only to seafarers.

The European Parliament has not yet issued a draft report on either proposal, but the Council was initially unenthusiastic. A report earlier this year indicated that many Member States questioned the liberal proposed rules on multiple-entry visas, as well as the abolition of the medical insurance requirement, because of ‘large numbers of medical bills left unpaid’. Many also objected to shorter time periods for the application, and for any facilitation for EU citizens’ family members. A few opposed the proposed additional mandatory fee waivers. More recently, a redraft of part of the text shows that Member States were willing to accept the multiple-entry visa rules if the criteria were stricter, as well as some (but not all) of the fee waivers, while retaining the medical insurance requirement.

Touring visa proposal

Currently a number of Member States have separate deals with third states such as the USA or New Zealand, allowing the nationals of those States to add together a series of short stays in individual Schengen States. But this only applies to a fairly limited number of third countries. The Commission proposal would simplify this system, replacing it with a common Schengen-wide approach. It estimates that while only about 120,000 people would benefit from this proposal, they are relatively ‘big spenders’, and so the net benefit to the EU economy would be €1 billion.

A touring visa could be issued for up to one year, with a possible further extension to two years. It would also apply to the citizens of countries like the USA who did not normally need short-term visas, since their planned total stay in the Schengen area with a touring visa would exceed the normal limit which would usually apply (90 days in a 180-day period). The EU’s Visa Information System database would apply, except that non-visa nationals like Americans would not have to give fingerprints. Also, the normal visa code rules (as amended by the separate proposals) would apply, with derogations. For instance, there would be no applications at borders; the first Member State the touring visa applicant would enter would be competent for the whole application; and sickness insurance would be required.

Again, the Council shows limited enthusiasm for this proposal, with some Member States preferring to maintain their bilateral deals and some concerned about security risks.

Comments

Overall, the Commission’s proposals have much to recommend them. They would ease the hassle that many would-be visitors face when they apply to come to the EU: cutting the costs for families and researchers, ensuring that an application could be made more easily, and streamlining the process considerably for frequent visitors who have shown that they can be trusted.

The proposals would benefit the EU economy, too, if the Commission’s estimates are correct. On top of the estimated €1 billion boost to the economy from the touring visa proposal, the accompanying Commission paper on visa policy suggests that the economic boost from the changes to the main visa code may be between €4 to €12 billion, with 80,000 jobs created.

So it is striking that these proposals have not impressed Member States much, with some suggesting that costs would increase from the visa code proposal. It is hard to see how the costs to consulates would increase overall, since there would be fewer visa applications to process in light of the longer validity of multiple-entry visas. However, it is possible that the cost would increase for some Member States individually, if those Member States become responsible (under the revised rules) for a greater share of visa applications. If any Member State has to incur considerable extra costs processing applications for applicants who won’t spend much time on its territory, it would be reasonable to consider compensating that Member State for those costs out of the EU budget, or arranging for bilateral compensation from the Member States which the applicants mainly go on to visit. As for unpaid medical bills, the Commission argues that such bills aren’t run up entirely by visitors with Schengen visas.

While that particular point about cost (to a different part of national budgets) may possibly have some merit, the objections against facilitating travel for EU citizens’ family members have none. Such facilitation is anyway an obligation under the EU citizens’Directive; all that the Commission’s proposals do is spell out what that entails, for the sake of legal certainty. And there can be no valid objection about irregular migration risks as regards core family members, given that EU citizens have the right to move to another Member State with those members of their family.

Time will tell, when the European Parliament develops its response to these proposals and begins to negotiate with the Council, whether the personal and economic benefits of the Commission’s proposal can survive the objections of national interior ministries. Much may depend on whether other ministries (foreign and economics) intervene to ensure that there is a broader perspective on what modern visa legislation should seek to do.

Barnard & Peers: chapter 26