The revised EU visa code: controlling EU borders from a distance

Professor Steve Peers, University of Essex

Today, the European Parliament is due to approve a revision of the law on the EU visa code, which sets out the basic rules on how to get a short-term visa to visit Schengen countries. (Update: the EP has voted in favour of the law.) Since this law was previously agreed with the EU Council, it is likely to be finally adopted by the Council in the near future. [Update: the law was adopted soon after, and published in the EU Official Journal in July 2019.] This law simplifies the visa application process a little, in return for increased application fees. But more significantly, it integrates EU visa policy even more closely with the EU’s external migration control policy, providing for incentives and sanctions for non-EU countries which respectively cooperate or fail to cooperate on readmission. (Parts of this blog post build on my previous post on the visa code proposal, before the recent agreement on the final text).  

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 for refugees in need of protection 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, which was recently amended to waive visas for UK citizens after Brexit, as I discussed here. (Note that proposals for visa waivers for Turkey and Kosovo are on hold). In practice, visa requirements are waived for most of the Americas, most neighbouring European countries, higher-income countries in Asia/Pacific and a couple of Middle Eastern States (Israel and the United Arab Emirates). Conversely, visas are required for visitors from lower-income Asian and Pacific States, the rest of the Middle East, most of Africa and the Caribbean (except for some smaller islands), a few Latin American countries and the bulk of the former USSR (most notably Russia).

There is also separate EU legislation to set up a “travel authorisation” system (see discussion here), which 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.

The visa code is also separate from (but closely linked to) the EU law setting up a Visa Information System, a database of information on applicants for Schengen visas. Although the Commission also suggested a revision of this law in 2018, and the EP and the Council adopted their positions on this text, the two institutions did not agree between themselves before the end of the EP’s five-year session. So they will negotiate on this in the next EP session. (The proposal 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). 

2014 proposals

The law approved by the EP today is the second attempt to revise the visa code. The first proposal  dates to 2014, and 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” visas to be added to the rules (as discussed here). However, it ultimately failed, because the EU Parliament and Council could not agree on whether it should include those “safe passage” visas. In light of the perceived “refugee crisis” of 2015-16 in the meantime, the 2018 proposal focussed instead time on security concerns, rather than economic growth.

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. I discussed the Council’s position further in a previous blog post. The European Parliament adopted its position in December 2018.

The Commission’s 2018 communication on visa policy is a good overview of the purposes of the 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 dropped the proposals to simplify travel for EU citizens’ family members, and made more suggestions to simplify the rules on multiple entry visas as compared to 2018.

The agreed amendments

One key feature of the new law is the power to punish countries that do not cooperate with the EU on readmission (by raising visa fees, requiring more documents, slowing down processing times, and limiting the issue of multiple-entry visas), 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). At the behest of the EP, it will also be possible to offer carrots as well as sticks: lowering visa fees, speeding up processing times, and issuing multiple-entry visas with longer validity, where the country concerned is ‘cooperating sufficiently’ on readmission.

On other issues, it will be possible for travellers to apply for a visa six months in advance, rather than three, although they should also apply (except in cases of urgency) at least 15 days before they plan to travel. Professional, sporting, cultural or educational bodies can now apply for visas on behalf of their staff. The requirement to appear in person (usually subject to a waiver in practice) will only apply when registering fingerprints, although they might also be submitted electronically.

Visa application fees will rise from €60 to €80, and from €35 to €40 for 6-12 year olds, and the Commission will now have the power to revise the fee every three years. The mandatory fee waiver for researchers is extended to apply not only where they are carrying out research, but also when they are attending seminars or conferences. (Other mandatory fee waivers, for children under six, pupils and students, and NGO representatives at youth conferences or events, are retained.) The optional fee waivers for diplomats and youth attendees at conferences or events are retained, and the optional fee waiver for children is extended, to apply to children up to 18 years old (not just 12 as in the current code). 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. Service providers will be able to charge higher fees than they do now in some cases.

The current rule on deciding on a visa application within 15 days will be kept (the Commission had proposed to reduce it to 10 days), although the length of the extended period in certain cases will be cut (45 days, instead of 60).

Streamlining the current rules on multiple entry visas, such visas will be available lasting for one, two or five years will be available, based on prior lawful use of a visa. The final text 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 was also dropped, as was the current law’s possibilities of having “co-location” and “common application centres”, 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

The European Parliament has ultimately gone along with the bulk of the Commission proposal and Council amendments, giving up on the simplification of travel rules which the Commission initially proposed in 2014, including for EU citizens’ family members, as well as the “safe passage” issue (on which the EP has passed a non-binding resolution). There are some modest facilitations of travel, in particular as regards multiple-entry visas and some additional fee waivers, in particular as an option for older children.

The readmission punishment and incentive clauses form part of the EU arsenal of stricter migration control policies, such as arrangements with Turkey and Libya and with greater internal and external border checks, including the expanded powers for Frontex also approved by the EP today. Whether these changes will be effective remains to be seen; there will presumably still be juicier carrots offered via 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 it does work – satisfy those voters who remain angry despite reduced migration flows, equally remains to be seen. 

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: eturbonews

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

Goodbye, cruel world: visas for holidays after Brexit?

Steve Peers

Until yesterday, I have consistently argued that the prospect of British citizens being subject to visas for short-term visits to the EU after Brexit was highly remote. In fact, I even told off some ‘Remain’ supporters who suggested that this might happen. EU policy is consistently to waive short-term visa requirements for wealthy countries (like the USA, Canada and Japan) as long as those countries waived short-term visa requirements for all EU citizens in return. I couldn’t imagine that it was likely that anyone on the ‘Leave’ side would wish to advocate short-term visa requirements for EU citizens visiting the UK after Brexit, thus damaging the British tourist industry and leading to a reciprocal obligation for UK citizens to get visas for short visits to the EU.

Incredibly, I was wrong on this. Yesterday, Dominic Raab, a senior figure on the Leave side, suggested that the UK might want to introduce visas for EU citizens after Brexit, and accepted that UK citizens might be subject to visa requirements for visits to the remaining EU in turn. It can’t seriously now be suggested that it’s ‘scaremongering’ to consider that this might become UK policy after Brexit – unless there’s such a thing as ‘self-scaremongering’ by the Leave side.

Let’s be clear about this. The idea of short-term visa requirements after Brexit is utterly and profoundly stupid. It is by no means a necessary consequence of Brexit, and would cause the maximum possible damage to UK businesses and the ordinary lives of British citizens who seek to visit the EU after Brexit, with little or no security benefit in return.

Background: EU visa policy

As an EU Member State, the UK allows short-term entry to EU citizens without a visa, as well as longer-term free movement of people – although the latter issue is severable from short-term visas. The reverse is also true, of course: simplifying the leisure, family and business visits of millions of British citizens to the EU every year. While there is an earlier treaty from the Council of Europe (a body separate from the EU) which abolishes visa requirements between European states, the UK is not a party to that treaty – and presumably would not become one under Raab’s plans.  

The EU has agreements on free movement of people with Norway, Iceland and Switzerland, but it seems clear from official statements by the Leave side that the UK would not sign up to these after Brexit. But as I said, short-term visa waivers are a severable issue: the EU does have reciprocal short-term visa waiver treaties with a number of non-EU countries, as well as a unilateral policy of waiving short-term visa requirements for other wealthy countries who reciprocate. Therefore, all it would take for British citizens to retain the visa waiver for short-term visits to the EU after Brexit would be a British government policy not to impose short-term visa requirements on EU citizens, or a UK/EU treaty to this effect. This seemed highly likely – until Raab’s rant.

The EU decides visa policy as a bloc, so there is no possibility that the UK could do separate deals on short-term visas with individual EU countries. As an exception, Ireland (like the UK at present) has an opt-out from the EU’s visa policy, so the UK and Ireland could retain their separate Common Travel Area arrangements – if they wished to. It’s not clear if Raab also wants to impose visa requirements for Irish nationals (which might also then be reciprocated). If that happens, then border controls would have to be reimposed between Northern Ireland and the Irish Republic, as some on the Leave side have already called for (though others have taken a different view).

EU visas: the legal framework

The EU (apart from Ireland) has a standard short-term visa policy, which entails issuing ‘Schengen visas’ valid for all the Schengen states.  So in legal terms we know what the impact would be of the EU imposing visas on British citizens. The basic rules are set out in the EU visa code, although a few EU countries (Romania, Bulgaria, Cyprus and Croatia) don’t apply that code yet as they are not yet fully part of Schengen. While the Schengen system currently has many well-known problems as regards border control, this has not affected Schengen visa policy, and there is no reason why it would do.

To get a Schengen visa, the visa code requires an application at a consulate, although in practice the applications are often made through a private service provider. Applications can be made up to three months before the date of travel, or six months for multiple-entry visas. Applicants need to provide fingerprints, except for children under twelve and some other limited exceptions. They must also provide documents supporting the reason for their travel, obtain medical insurance and pay a fee of €60 per applicant, along with an extra fee if the applicant uses a private service provider. The fee is reduced to €35 for children between six and twelve, and waived for younger children, as well as pupils and teachers on study trips, researchers and representatives of NGOs. It may be waived in a small number of other cases; but it is always payable for tourist or business trips.

Most applications for Schengen visas are accepted, but applications are scrutinised for subsistence and intention to return, so it may be more likely that unemployed or low-waged British citizens find their visa applications refused. Any rejections will be registered in the EU’s Visa Information System for five years, which may make it less likely for a future application to be accepted. Usually a visa is valid for a period of three months over the next six months, but it is possible to get a multiple-entry visa (valid for several trips over a five year period) if there is a proven need to travel frequently. Visas can’t usually be obtained at the border, so British citizens would have to apply for a visa at least several days in advance to be sure of being able to travel. Without a visa, they would be denied boarding planes, trains or ferries, due to the EU law on carrier sanctions.

Back in 2014, the Commission proposed amendments to the EU visa code. They would, for instance, simplify the rules on getting multiple-entry visas, and allow for earlier applications. But such visas would still not be standard. Recently, both the Council and the European Parliament adopted their positions on this proposal, and so it will likely be agreed later this year. I’ve blogged separately on the main changes that the Commission proposed, as well as the chance to add rules on humanitarian visas, and on the specific proposals affecting UK citizens’ non-EU family members. But if the new code ultimately applies to all British citizens, its impact will be obviously be much greater.

The EU has signed some treaties on visa facilitation with non-EU countries. These treaties don’t waive the visa requirement, but they reduce the application fee and simplify the process. Of course they are reciprocal – the UK would have to cut the fees and simplify the process for EU citizens applying for short-term visas to visit the UK too.

Practical consequences: the unbearable madness of visa requirements

There’s no doubt that visa requirements reduce travel for tourism, business and other purposes. There are detailed estimates of the scale of the economic impact in a report drawn up for the Commission before it proposed the revised visa code. Think of it at the individual level: if there’s no visa facilitation treaty, a British couple with two teenagers would have to pay an extra €240 for a family holiday in the EU in visa application fees, with fees often paid to service providers on top. Even with a visa facilitation treaty like the one with Ukraine, the family would pay €70 in fees (€35/adult, under-18s exempt from fees), and again possibly service providers.

Raab argues that all this is justified on security grounds. Is it? First of all, the vast majority of terrorist (or other) offences in the UK are committed by British citizens. But some foreign visitors do commit crimes. How best to screen them out? The basic problem is that imposing a visa requirement doesn’t, in itself, increase our capacity to determine if a particular individual is likely to pose a threat. It simply, in effect, moves the decision on entry in time (to a date before arrival) and space (away from the border to a consulate – although individuals will still be checked at the border to ensure that there is a visa in their passport). The best way of knowing if a particular individual is a threat is by checking the available data.

That information is easy to find if the visa applicant has previously committed a crime in the UK, because in that case there ought to be a criminal record accompanied by an entry ban. But in this scenario, the entry ban information should in principle not only be available to consulates considering a visa application, but also to border guards deciding on entry at the border. So the visa requirement adds nothing. Nor does it add anything as far as EU citizens are concerned: the EU citizens’ Directive allows the UK to impose an entry ban on EU citizens who have committed serious crimes; and the UK can (and does) refuse entry to EU citizens at the border.

What if the visa applicant has committed a crime in another country? Whether people have to apply for a visa or are checked at the border, there is no general access to other countries’ criminal records. However, the UK does have access to some relevant data as an EU Member State. Last year, it gained access to the Schengen Information System, which includes information on wanted persons, including some terrorist suspects. From 2012, the EU system for exchange of information on criminal records was set up (known as ECRIS: the European Criminal Records Information System), and the EU Commission recently reported that it had greatly improved the flow of information on this issue. The ECRIS law provides for criminal records to be exchanged more easily as regards a country’s own citizens (so we now have more information on UK citizens who have committed crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t provide perfect security, of course. Not all terrorist suspects’ names appear in the Schengen Information System, for instance. The passenger name records law is likely to be challenged on human rights grounds, since it gathers information on all passengers, not just suspects. The criminal records law was unable to stop a tragic killing two years ago, because British police unfortunately did not ask another Member State about the killer’s criminal record (on the basis of a separate EU law) when they had the opportunity. As I suggested at the time, it would be desirable to provide for automatic circulation of the criminal records of EU citizens who have been convicted of very serious crimes, if they have been released from prison, so that they can be stopped and validly rejected from entry at the border.  The upcoming amendments to the Schengen Information System would be an opportunity to do this.

But how would Brexit, with or without a visa requirement, improve this situation? It would not give the UK any more access to EU databases, or to other Member States’ criminal records systems; indeed, it might mean less access. The EU has not extended ECRIS to any non-EU countries; the Schengen Information System has only been extended to those (like Norway and Switzerland) that are fully part of Schengen. The EU has some treaties on exchange of passenger name data with non-EU countries, but this policy is being challenged on data protection grounds in the EU court.

More broadly, the EU court has ruled in the Schrems case that personal data can only be transferred to non-EU countries that have data protection law ‘essentially equivalent’ to EU law. The UK would have to commit to continue applying a law very similar to EU law, or risk disruptions in the flow of personal data – affecting digital industries as well as exchange of data between law enforcement authorities. This restriction can’t easily be negotiated away, since the case law is based on the EU Charter of Fundamental Rights, which has the same legal effect as the Treaties. The UK’s compliance with the EU rules would almost certainly be challenged in practice: see by analogy the Davis and Watson case already pending before the EU court. Outside the EU, the effect of a ruling that the UK did not comply with the rules would be a potential disruption of the flows of personal data.

One final point. Let’s remind ourselves that the UK already allows nationals of over fifty non-EU countries to visit for a short period without a visa. So obviously we have found a way to reconcile the possible security threat this might pose with the needs of the UK economy. Why should that be so difficult to do as regards EU countries after Brexit? The mere existence of that policy anyway creates a loophole: any EU citizen with the dual nationality of one of those non-EU states (or perhaps Ireland) would be able to visit the UK without a visa anyway. Or is the intention to require a visa for everyone?

Of course, this loophole would work the other way around too. As a dual citizen of the UK and Canada, I could still visit the EU visa-free on a Canadian passport. So could any other British people who are also citizens of a Member State, or a non-EU country on the EU visa whitelist. But many others (including my family, for instance) could not. Let’s conclude on the utter absurdity of this: a British citizen contemplating the use of a Canadian passport to visit the European Union. Is this really the vision of an open, liberal, global United Kingdom after Brexit that the Leave side want people to vote for on June 23^rd?

Barnard & Peers: chapter 13, chapter 26

JHA4: chapter I:4

Photo credit: welcome2britain.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

Migrant deaths in the Mediterranean: What can the EU do?

 

Steve Peers

The latest tragedies in the Mediterranean add to the enormous and growing death toll of migrants crossing that sea. Today EU ministers will consider the issue as a matter of urgency, and the Commission is due to propose an EU strategy next month. Here are some thoughts as to what parts of the EU response should be.

First of all, it is necessary to reinstate a major search and rescue operation. The EU’s ‘Triton’ operation which replaced the Italian ‘Mare Nostrum’ operation from the end of last year is obviously inadequate as regards saving lives – which is not its main purpose in the first place. Equally the assumption that the termination of Mare Nostrum would reduce the number of migrants willing to undertake the Mediterranean crossing – and die in the attempt – was obviously mistaken.

The new operation need not be an EU operation as such, due to legal questions about how much the EU as such can set up a search and rescue operation. Possibly the EU, or at least a large group of its individual Member States, can contribute toward the coordination and funding of a joint operation, rather than leave this entirely up to the Italian government as before.

Secondly, the EU has an established system for border surveillance, known as Eurosur. Its main focus in border control but it has a subsidiary role as regards detecting migrants in need of rescue. It could be focussed more on the humanitarian aspect, if necessary by means of a rapid amendment to the legislation establishing it – or alternatively, if there are legal doubts about this, by a parallel agreement among the Member States.  

Thirdly, the EU should address the important role of the private rescue of migrants. At present, the EU Directive prohibiting the smuggling of migrants specifies that any assistance to irregular migrants is prohibited – even if the person or organisation concerned is not acting for profit. There is only an option for Member States to exempt humanitarian assistance from the prohibition. This legislation should be amended as soon as possible to make this exception mandatory, clarifying that this also exempts private sea vessels which assist those in need (in accordance with the law of the sea) also benefit from the exception. Private vessels which lose money as a result of offering assistance (for instance, because they were diverted from catching fish) should be compensated by national or EU funds if necessary. This amendment could be fast-tracked, pending a more comprehensive review of the legislation to consider the best criminal law response to smugglers and traffickers.

Fourthly, there is a need to address the situation in countries of origin and transit, so that fewer people feel the need to make this risky journey in the first place. This also takes account of realpolitik: it’s not socially, economically or politically feasible for the EU to offer protection to everyone in the world that needs it. Of course, solving the conflicts and poverty that cause desperate people to flee in the first place is far easier said than done. But it would certainly be possible to fully review EU foreign policies and development aid funding with a view to addressing the root causes of migration.

In terms of a legal response, there are several other external aspects of EU migration policy. For those who have a need for international protection, many already receive support or protection in neighbouring and transit countries, and the EU could step up its contribution to such assistance.  A proportion of the people concerned are already resettled by Member States, and the EU could increase its support for this resettlement process. It might be useful to amend EU asylum legislation to confirm that the persons concerned have refugee status in the Member States concerned, in accordance with the EU’s ‘Qualification Directive’, upon arrival.

There’s also an existing legal framework for Member States to consider applications for asylum lodged at their consulates in third (non-EU) countries. At the end of 2013, the EU’s main court (the CJEU) already ruled in the Koushkaki case that the EU’s current visa code requires Member States to issue visas to applicants if the criteria for issue are met. The visa code mainly applies to short-term visas, not visas for people who need long-term international protection. However, the code also provides for rules on the issue of a short-term visa with ‘limited territorial validity’ (LTV). These visas are not valid in all Schengen states, but rather valid usually in only the single Schengen State which issues them.  

According to the current visa code, an LTV visa ‘shall be issued…when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. The important point is that an LTV visa can be issued where the usual conditions for issuing a visa are not met, for instance where there is insufficient evidence of an intention to return to the country of origin. Obviously, where a person has a genuine protection need, a reluctance to return to her country of origin is perfectly understandable; indeed, it is built into the very definition of refugee or subsidiary protection status (ie a well-founded fear of suffering persecution or serious harm in that country).

It’s arguable the 2013 CJEU ruling in the Koushkaki judgment also applies to LTV visas, in light of the word ‘shall’. Admittedly, that word is then qualified by the words ‘considers it necessary’. But arguably, at least in cases involving a potential international protection need, the EU Charter of Fundamental Rights requires that where a person applies for a visa from a (Schengen) Member State, the existence of such a need must be considered if it is alleged, and an LTV visa must be issued if such a protection need exists. It can hardly be denied that EU law (and therefore the Charter) applies whenever a third-country national applies for a visa from a Schengen Member State.

So the EU and its Member States could agree that this is the correct interpretation of the existing law, and take action to put it into effect, for instance adopting guidelines or standard rules for consulates on how to apply such obligations. EU funds could assist with any additional costs for Member States.

There’s also an immediate opportunity to address this issue by means of legislation, since proposed amendments to the visa code that would fully overhaul it are currently under discussion in the Council and the European Parliament (EP). These proposals raise many different issues, and the Council and EP are still at an early stage of discussing them. But it would be possible to split up the proposal and adopt an amendment to the LTV rules on a fast-track basis.

In a previous blog post, I suggested a simple amendment to the visa code to this end. This would simply amend the rules to state that an LTV visa ‘shall be issued…when it is necessary in order to ensure the international protection of the person concerned in accordance with Directive 2011/95 [the Qualification Directive], or when the Member State concerned considers it necessary…’.

In the longer term, other difficult and controversial aspects of an external protection policy could be developed. It would be possible to develop ‘joint external processing’ of asylum claims, as long as such processing in no way prejudices applications made at the border or on the territory of Member States, and entails the entry and stay of persons with international protection needs either on the territory of Member States, or on the territory of third countries which offer an equivalent level of protection. Nor should joint processing prejudice the resettlement of those groups of persons (such as Syrian refugees) whose need for international protection is obvious.

The problems associated with such joint processing should not deter the EU from taking the immediate steps outlined here that could reduce the death toll on the Mediterranean by stepping up rescue efforts and by giving more people with an established protection need a form of safe passage to the EU – either by means of resettlement of established refugees or assessment of asylum-seekers’ protection needs as an adjunct to the visa application process. There is a moral imperative for the EU to act swiftly and effectively to address the issue.

 

Photo credit: Daily Mail

Barnard & Peers: chapter 26

Two Codes to rule them all: the Borders and Visa Codes

Steve Peers

In today’s judgment in Air Baltic, the Court of Justice of the European Union (CJEU) has taken the next logical step following its judgment late last year in Koushkaki, where it ruled that the EU’s visa code set out an exhaustive list of grounds for refusing a visa application.  Today the Court has confirmed that the same is true of the Schengen Borders Code. Moreover, the Court has clarified a number of general and specific points about the nature and interpretation of the two codes.

Facts and judgment

This case concerned an Indian citizen who flew from Moscow to Riga. He had a valid multiple-entry Schengen visa, which was attached to a cancelled Indian passport. He also had a second Indian passport, which was valid but which did not contain a visa. The Latvian border guards then refused him entry into Latvia, on the grounds that the valid visa had to be attached to the valid passport, not to the cancelled passport.

For good measure, the Latvian authorities also fined the airline, Air Baltic, for transporting him without the necessary travel documents. The airline appealed the fine, and lost at first instance. But an appeal court then sent questions to the Court of Justice to clarify the legal position.

The CJEU ruled first of all that the cancellation of a passport by a third country did not mean that the visa attached to the passport was invalid. This was because only a Member State authority could annul or revoke a visa, and because the visa code did not allow for the annulment of a visa in such cases anyway. The Court extended its ruling in Koushkaki to confirm that the grounds for annulling a visa were exhaustive; the same must be true of the grounds for revoking a visa.

Secondly, the Court ruled that the Schengen Borders Code did not require entry to be refused in cases like these. The different language versions of that code suggested different interpretations, but as always, the Court seeks a uniform interpretation of EU law regardless. In this case, the standard form to be given to persons who were refused entry at the border to explain why they were refused does not provide for refusal on the grounds that a valid visa was not attached to a valid passport.

Also, the Court pointed out that the idea of separate visas and passports was not unknown to EU law, since the visa code provides that in cases where a Member State refuses to recognise a passport as valid, a visa must be issued as a separate document. Checking two separate documents was not a huge burden for border guards, and refusing entry simply on the grounds that the valid passports and visas were in two separate documents would infringe the principle of proportionality.

Finally, the Court ruled that the national authorities of Member States do not have any residual powers to refuse entry to third-country nationals on grounds besides those listed in the Schengen Borders Code. The Court reached this conclusion, by analogy with Koushkaki, because: the standard form giving the grounds for refusing entry contains an exhaustive list of grounds for refusal; the nature of the Schengen system ‘implies a common definition of the entry conditions’; and this interpretation would support ‘the objective of facilitating legitimate travel’ referred to in the preamble to the visa code.

Comments

The Court’s ruling that the Schengen Borders Code provides for complete harmonisation of the rules on refusal of entry is not really surprising, particularly after the judgment in Koushkaki reaching the equivalent conclusion regarding the visa code. However, it should be noted that in today’s judgment, the Court does not repeat its qualification in Koushkaki that national authorities had wide discretion to interpret the common rules in question. Furthermore, the Schengen Borders Code is relevant not only to those third-country nationals who need visas for entry, but also those who do not, such as visitors from the USA, Canada and most of the Western Balkans.

In effect, the Court’s ruling confirms that the Schengen zone is in effect the equivalent of the EU’s customs union, as regards the movement of people. Of course, the customs union and the Schengen zone do not apply to the same countries, due to opt-outs from Schengen (UK and Ireland), the deferred admission to the Schengen system (Romania, Bulgaria, Cyprus and Croatia), and the rules on association with each system (Turkey is part of the EU’s customs union, while Norway, Iceland, Liechtenstein and Switzerland apply the Schengen rules). But the basic concept is the same, with the obvious implications as regards exclusive external competence of the EU (although a Protocol to the Treaties conserves some external competence over borders for Member States), and uniform interpretation of the rules in the respective codes.

As to the more detailed aspects of this case, the Court is surely right to rule against the pedantry of insisting that where a person holds a valid visa and a valid passport, the visa must always be attached to the passport. The underlying objective to ensure that the person concerned meets the conditions of entry is satisfied regardless of whether the visa is attached to the passport or not. Also, the Court’s ruling that the Borders Code has to be interpreted in accordance with the principle of proportionality, and in light of the objective of facilitating legitimate travel, could have broader implications in other cases.

Finally, the necessary corollary of the judgments in Koushkaki and Air Baltic is that a third-country national who meets the conditions to obtain a visa and/or cross the external borders has the right to that visa and/or to cross those borders. So these issues are not governed by national administrative discretion, but by uniform EU rules. The strengthening of the rule of law in this field is very welcome.

Barnard & Peers: chapter 26