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.
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.
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).
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.
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