Carrying a bigger stick: the EU strengthens its power to suspend visa waivers quickly, in pursuit of immigration policy and external relations objectives

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Jelger Groeneveld, via Wikimedia Commons

Introduction

What tools does the EU have to get non-EU countries to agree to do something the EU wants them to do – or to stop doing something the EU objects to them doing? One mechanism is foreign policy sanctions, which often limit trade or investment in some way, or freeze assets, but also sometimes impose an entry ban on individuals who are linked to a government, group or policy that the EU objects to. But under the law of the EU, foreign policy sanctions require unanimity, and sometimes that can be hard to reach. As an alternative approach, trade measures as such can be adopted by a qualified majority vote; hence the recent EU law increasing tariffs on some Russian and Belarusian products, which sits alongside the more traditional sanctions on those countries.

Another area for exerting such pressure is visas, where a common visa policy gives the EU leverage to (threaten to) require some or all of a non-EU country’s citizens to obtain visas to visit the EU, or, in the event of a visa requirement being imposed, to make those visas more difficult or expensive to get. Conversely, the EU sometimes offers carrots rather than sticks: it can be willing to drop visa requirements for some or all of a non-EU country’s citizens to visit the EU, or where a visa requirement is maintained, to make visas easier or cheaper to get, in return for some commitments from the non-EU country concerned.

Recently the EU has agreed to amend its visa law to add a new string to its bow in this field – making it easier to reimpose visa requirements on non-EU countries (or categories of their citizens) on a fast-track basis, and to provide for more grounds on which to do so. (The full text of the agreed new law is here) This ‘suspension mechanism’ now includes grounds for reimposing visa requirements going beyond the scope of immigration policy as such. The following blog post analyses the newly agreed law within the broader context.

Background

Current EU visa law generally

All EU countries except Ireland, plus the Schengen associated countries of Norway, Switzerland, Iceland and Liechtenstein, have agreed a common list of countries whose nationals are required (or not required) to have visas for a short-term visit (90 days out of every 180 days).  This is set out in the frequently-amended visa list Regulation, last codified in 2018. The recently-agreed law discussed in this blog post is an amendment to the visa list Regulation.

At present, the countries whose nationals are not subject to EU short-term visa requirements (the ‘whitelist’) comprise most non-EU European states (including the UK), North American and most Latin American countries, some wealthier Asian countries (such as Israel, the UAE, Japan and South Korea), Australia, New Zealand and a number of small middle-income islands in the Caribbean and the Indian and Pacific Oceans. All other countries (the ‘blacklist’) are subject to visa requirements.

While the list of countries on the visa whitelist or blacklist is harmonised, there is some discretion for Member States as regards categories of people from the non-EU countries on these lists. For example, individual Member States can drop visa requirements for holders of official or special passports even though their country is on the visa blacklist; or conversely impose visa requirements for holders of official or special passports even though their country is on the visa whitelist.

The detailed rules on issuing ‘Schengen visas’, ie a visa allowing travel across all the countries participating in Schengen (currently all EU countries minus Cyprus and Ireland, plus the Schengen associated countries), are set out in the EU visa code, adopted in 2009 and amended in 2019.  

The EU also has two types of visa treaty with non-EU countries. First, visa waiver treaties, where the EU and the non-EU country concerned agree reciprocally to waive visa requirements for short-term visits in each direction. Secondly, visa facilitation treaties, where the EU and the non-EU country concerned agree reciprocally to make visas easier to obtain – ie simplifying the documents required, reducing or waiving the fee for an application, and even dropping visa requirements entirely for holders of official or special passports. In practice, the EU usually links visa facilitation treaties to readmission treaties.

Current visa sanctions: broader context   

Since its amendment in 2019, the visa code has provided for the EU to (threaten to) sanction non-EU countries on the visa blacklist, by making visas harder and more expensive to get, if a country (in the EU’s view) does not cooperate sufficiently on readmission of its own citizens. This power has been used (or threatened) several times (see page 5 of the latest Commission annual report).

A further proposal to restrict EU trade preferences for developing countries on the same grounds has not yet been agreed (in part because it has been criticised for potentially breaching WTO law). Negotiations on this proposal broke off last year because the European Parliament objected in principle to this idea. However, they have recently resumed.

The EU has (respectively) wholly or partly suspended three visa facilitation treaties: wholly with Russia (due to the invasion of Ukraine); partly with Belarus (due to Belarus suspending the parallel readmission treaty, plus facilitating migration into neighbouring EU countries); and most recently partly with Georgia, due to concerns about human rights there. In the latter two cases, the EU targeted the removal of visa facilitation upon the holders of official passports; the general public still benefits from visa facilitation (as regards Belarus) and the subsequent visa waiver (as regards Georgia). But because the visa list Regulation (as it stands) still gives Member States discretion whether to drop visa requirements for Georgians with official passports or not, not all Member States have followed up the EU’s decision to partly suspend the treaty with Georgia: at time of writing, only eight Member States have notified the reimposition of visas for holders of official Georgian passports.   

Also the EU has partially then fully suspended the visa waiver treaty with the Pacific island of Vanuatu, due to its investor citizenship policy. This is linked to visa sanctions under the visa list Regulation, discussed further below. 

Current visa sanctions: visa list Regulation

The visa list Regulation provides for two routes to reimpose visa requirements on a fast-track basis. First of all, it’s possible to do so on reciprocity grounds, ie as a reaction to a country on the whitelist not waiving visa requirements in turn for all EU Member States. This issue is contentious in practice: the rules have been amended several times; the Commission frequently reports on them; and the CJEU has ruled on them twice (ruling against the Commission when it challenged the procedure involved, seeking less accountability; but later ruling for the Commission when the European Parliament sued it for ‘failure to act’ when it did not impose sanctions upon the USA in response to a lack of full reciprocity; in the Court’s view, the Commission was not under a legal obligation to sanction the USA). (During negotiations on the amendments discussed in this blog post, the European Parliament also tried to amend the reciprocity rules to overturn the outcome of this judgment going forward; it was unsuccessful).

But our main focus here is the second route to the fast-track reimposition of visa requirements (the suspension mechanism): dropping the visa waiver on immigration and asylum policy grounds, now also to include more general external relations grounds. For this is the only part of the visa list Regulation that will be amended by the newly agreed law. (Note that the amendments have not yet been formally adopted; this will likely take until the autumn).

The visa list Regulation was first amended to provide for a suspension mechanism in 2013, due to concern from Member States about the impact of dropping visa requirements for most of the Western Balkans several years beforehand. Those rules were amended in turn in 2017, this time due to concern from Member States about dropping visa requirements for eastern neighbourhood countries (eventually visas were waived for Moldova, Ukraine and Georgia).

Substantive grounds for using the suspension mechanism

Under the current law before amendment, the suspension mechanism can apply on any of four grounds:

-          there is ‘a substantial increase in the number of nationals of that third country refused entry or found to be staying in the Member State's territory without a right to do so’; or -          ‘a substantial increase in the number of asylum applications from the nationals of that third country for which the recognition rate is low’; or -          ‘a decrease in cooperation on readmission with that third country, substantiated by adequate data, in particular a substantial increase in the refusal rate of readmission applications submitted by the Member State to that third country for its own nationals’ (or nationals of other states who transited through that country, if a readmission treaty with the EU or the complaining Member State obliges the country concerned to readmit them); or -          ‘an increased risk or imminent threat to the public policy or internal security of Member States, in particular a substantial increase in serious criminal offences linked to the nationals of that third country, substantiated by objective, concrete and relevant information and data provided by the competent authorities’. All four grounds refer to a ‘substantial increase’. But what is a ‘substantial increase’? The concept is further defined in the preamble to the Regulation: it means an increase of more than 50% over a two-month period compared to the same period in the previous year (or compared with the last two months prior to dropping the visa requirement for a non-EU country). However, the Commission can use a threshold lower than 50% if it ‘deemed it applicable in the particular case’. As for a ‘low recognition rate’ for asylum applications, this is ‘around 3 or 4%’ according to the preamble, although again the Commission can deem a higher rate applicable in a particular case. For readmission, the ‘decrease in cooperation’ does not necessarily have to take the form of a substantial increase in refusal of readmission requests (as confirmed by ‘in particular’). The main text of the Regulation states that ‘non-cooperation’ on readmission (note the different wording from ‘decrease’) can also, as regards a readmission treaty with the EU, apply ‘for instance’ to ‘refusing or failing to process readmission applications in due time’; or ‘failing to issue travel documents’ or ‘refusing to accept European travel documents’ in accordance with the deadlines in the treaty; or ‘terminating or suspending’ the readmission treaty. Conversely, there is currently no further definition of ‘serious criminal offences’, or any indications of what might otherwise comprise ‘an increased risk or imminent threat to the public policy or internal security of Member States’, given that the ‘substantial increase in serious criminal offences’ ground is only an example of such a risk or threat (‘in particular’).  Procedural rules of the suspension mechanism The mechanism can be triggered either by the Commission or a Member State. In fact, as part of the rules on the suspension mechanism, the Commission has a specific obligation to monitor compliance with commitments given by a non-EU country in the context of a ‘visa liberalisation dialogue’, referring to a process over several years in which non-EU countries make commitments on immigration law and human rights issues, in return for which the EU eventually waives the visa requirement (in practice, this applies to Western Balkans and eastern neighbourhood countries; a dialogue is also currently underway with Armenia). The Commission must report on these countries annually for seven years after the visa waiver, and since 2023 has been reporting on some other whitelist countries too (see the most recent report). In effect, this is a fifth ground of suspension, because the visa list Regulation also refers to triggering the suspension mechanism ‘where a report of the Commission shows that one or more of the specific requirements is no longer complied with as regards a particular third country’. After taking account of evidence required by the Regulation, the Commission can ‘decide’ to sanction the non-EU country; seemingly it is obliged to do so if a simple majority of Member States (so 14 of them) have triggered the process as regards the four grounds for using the mechanism. This would take the form of an implementing act (ie subject to scrutiny by Member States’ representatives) suspending the visa waiver for some groups of that country’s nationals for nine months. If the issues persist, the Commission ‘shall’ adopt a delegated act (ie subject to control from the Council and the European Parliament) suspending the visa waiver for all nationals of that country for 18 months. That can be extended for six months if the Commission makes a legislative proposal (which would need to be agreed by the Council with a qualified majority of Member States, and the European Parliament) to make the move to the blacklist permanent.  The suspension mechanism in practice The EU has only used the rules once so far. As noted above, it punished Vanuatu for its investor citizenship rules, taking the view that the ‘public policy and internal security’ ground of the suspension mechanism justified reimposing visa requirements in these circumstances. (Remember that a substantial increase in criminal offences was only one example of a public policy or internal security threat: ‘in particular’) Applying the procedural rules, this entailed an implementing decision, then a delegated act, later extended while the legislation was amended, as well as the suspension of the visa waiver treaty discussed above. (Note that this process was different from that leading to the CJEU recently finding that a Member State (Malta) had breached EU law by, in effect, selling its nationality as a route to obtaining EU citizenship.) The newly agreed amendments The recently agreed amendments follow the Commission’s proposal in 2023 (and see the Commission's earlier discussion paper), the Council’s (ie Member States’) agreed position in March 2024, and the European Parliament’s position earlier this year. I analysed these competing versions several months ago. The different versions can also be compared in a four-column document, and there is a very useful later four-column document that gives a snapshot of where the negotiations stood in May. With the text of the amendments now agreed, the following sets out what those amendments will change, indicating if it was the Commission, the Council or the European Parliament that had the biggest role in securing the key amendments. I’ll also mention some proposed amendments that weren’t adopted. At first sight, the first two grounds for using the suspension mechanism – a substantial increase in refusals of entry or overstay rates, and a substantial increase in asylum applications from a country with a low recognition rate – remain the same. But in fact, changes to other parts of the Regulation will alter their interpretation: the main text (no longer the preamble) to the Regulation now defines a ‘substantial increase’ as 30%, instead of 50%, and a ‘low recognition rate’ is now defined as 20%, instead of 3-4%, matching the new asylum procedures Regulation. This means that it will be easier to trigger the suspension mechanism on these grounds. Indeed several countries assessed in the Commission's annual report will now potentially fall within the scope of the suspension mechanism (and see page 5 of this Council document). The Commission proposal would not have changed these numbers; the Council insisted on the amendments, with the European Parliament dropping its compromise proposal of 40% to define ‘substantial increase’. However, there is a requirement for the Commission to assess the interpretation of the 30% rate within three years. Unlike the current Regulation, the Commission could decide to change these rates either way, although (at the behest of both the Parliament and Council) it must ‘duly justify’ any decision to do so.    The third ground – a decrease in readmission cooperation – remains, but is reworded more simply, referring now to ‘a decrease on cooperation on readmission…or other cases of non-cooperation on readmission’. However, the text still separately retains a reference to a ‘substantial increase’ in refusal of readmissions, now defining this, as elsewhere, as a 30% increase. The European Parliament’s proposal to require that it must be shown that this reduction in cooperation is the fault of the country concerned was rebuffed. The current definition of other forms of non-cooperation on readmission is also retained, now supplemented by clarifying that it also applies to ‘failing to assist in identifying third-country nationals for whom a Member State has submitted readmission applications or otherwise creating persisting practical obstacles regarding the enforcement of returns’. The Parliament’s attempt to limit the potential use of the suspension mechanism against countries which did not issue travel documents (so the rules would apply only if the non-EU country failed to issue the documents for its own nationals, or for non-nationals who held a right of residence in that country) was rebuffed. The fourth ground – public policy or internal security – now refers to a ‘significant risk’ (rather than an ‘increased risk’, and adds to the list of examples of such risks or threats (this list is still non-exhaustive: ‘in particular’ is retained, at the Council’s behest). The first example remains a ‘substantial increase in serious criminal offences’, which is now defined, as elsewhere, as a 30% increase. On the other hand, ‘serious criminal offences’ is not defined; although the Council wanted the preamble to refer to ‘terrorist offences and activities of organised criminal groups’ in this context, this was not agreed. A new second example is ‘hybrid threats’, referred to in the preamble as including ‘state-sponsored instrumentalisation of migrants’ as defined in the EU’s asylum crisis Regulation; and a new third example is ‘systemic deficiencies in document security legislation or procedures’ (at the behest of the Council, although ‘systemic’ was added to limit its scope; there is no definition of ‘systemic’). A new fifth ground is investor citizenship schemes, defined as schemes ‘whereby citizenship is granted without any genuine link to the third country concerned, in exchange for pre-determined payments or investments’. As we have seen, though, this ground is not genuinely new, as the current ‘public policy or internal security’ ground has been interpreted to cover investor citizenship. The preamble asserts that ‘visa-free third countries should be deterred from using visa-free access to the Union as a tool for leveraging individual investment in return for their citizenship’, and adds a further rationale, at the behest of the European Parliament: ‘a lack of comprehensive security checks, vetting procedures and due diligence by such third countries with regard to investor citizenship schemes pose several serious security risks for Union citizens, such as those stemming from money laundering and corruption’.      Next, a new sixth ground is non-alignment with EU visa policy, where, in particular due to geographic proximity to the EU, this ‘could lead to a substantial increase in the number of third-country nationals, other than nationals of that third country, who enter irregularly the territory of the Member States after having stayed on, or transited through, the territory of that third country’ (italics added). The ‘could lead to’ wording is a compromise: the Commission had proposed ‘there is a risk of’; the Council agreed; but the European Parliament wanted to delete the words, meaning that this ground could only have applied if a ‘substantial increase’ had actually happened. Frankly, the European Parliament has conceded the point here: it’s hard to see any real difference between ‘risk of’ and ‘could lead to’. This brings us to the new seventh ground for using the suspension mechanism: non-compliance with commitments made to the EU during a ‘visa liberalisation dialogue’ which resulted in a country being moved to the whitelist. As we saw above, though, this is already a de facto ground for suspension under the current law. The new eighth ground for using the suspension mechanism is perhaps the most eye-catching, as it refers to external relations issues generally, not necessarily linked to immigration or asylum policy at all: a deterioration in the Union’s external relations with [whitelist country] caused by: (i) serious breaches by that third country of the principles set out in the Charter of the United Nations; (ii) grave violations by that third country of fundamental freedoms or of the obligations deriving from international human rights law or international humanitarian law; (iii) serious breaches of international law and international legal standards; (iv) that third country carrying out hostile acts against the Union or Member States with the aim of destabilising or undermining society or institutions which are key for the public policy and internal security of the Union or the Member States; or (v) non-compliance with international court decisions and rulings. The Commission did not propose this new ground; the European Parliament and the Council each proposed their own version of it, and the final text is based on the Parliament’s version, with some of the Council’s preferred text added in and parts of the Parliament’s version dropped. In particular, the final text uses: the Parliament’s version as regards any deterioration (the Council’s version set a threshold of a ‘significant and abrupt’ deterioration); the Parliament’s version of the necessary link (‘caused by’; the Council’s version was ‘when it relates to’ and ‘is deriving from’); the Parliament’s version as regards the broad scope (the Council version applied ‘in particular’ to human rights); the Parliament’s version as regards ‘serious breaches’ of the UN Charter; largely the Parliament’s version as regards ‘grave violations’ of human rights law et al (although the ‘fundamental freedoms’ point comes from the Council’s text, and the Council version did not differ much: ‘serious human rights violations and abuses’); the Council’s version as regards ‘serious breaches of international law and international legal standards’; the Parliament’s version as regards ‘hostile acts’; and the Council’s version as regards ‘non-compliance with international court decisions and rulings’. The Parliament’s suggested inclusion of ‘violations…of bilateral agreements between it and the Union’ and ‘non-compliance or non-alignment by that third country with relevant Union sanctions’ were dropped – perhaps because the former could have circumvented dispute settlement processes (whereas if the EU goes to dispute settlement and wins, the ‘non-compliance with court rulings’ ground could apply) and the latter attempts to insist that non-EU countries conform to EU foreign policy (although the new Regulation already attempts to insist that they conform to EU visa policy). The notion of ‘hostile acts’ is further defined in the preamble: this ‘could result from foreign interference in political processes, economic coercion, cyber operations, economic espionage or the sabotage of critical infrastructure’.  Finally, a new ninth ground for use of the suspension mechanism is ‘any other ground for suspension set out in a short-stay visa waiver agreement between’ the EU and a whitelist country, ‘limited to the scope of application of such agreement’. Both the Council and the European Parliament pushed for this new ground, although in effect it already existed and was applied already: the EU’s reaction to Vanuatu’s investor citizenship scheme took the form of invoking both the ‘public policy or internal security’ ground in the current Regulation, and the parallel ground to suspend the treaty concerned. The threshold for assessing increases in asylum applications etc compared to the previous year will be more flexible, changing to between two and twelve months. (The Commission proposed to make it even more flexible – ‘at least two months’ – but the European Parliament insisted on at least some limit applying).   At the behest of both the Parliament and the Council, most of the new grounds for suspension could be triggered by Member States too – with the significant exception of the ‘external relations’ exception, which only the Commission can trigger, because (according to the preamble) ‘the external relations of the Union will be affected as a whole’. Interestingly, the new law does not provide for any special rules as regards the evidence to be assessed, or the process to be followed, for applying that exception. In addition to assessing the evidence relating to the ground for using the suspension mechanism, the Commission will also have to assess (at the Parliament’s behest) ‘the necessity, proportionality and consequences of a suspension of the exemption from the visa requirement.’ There’s also a new obligation, if a suspension is adopted, to ‘work together in close cooperation with the third country concerned to find alternative long-term solutions in respect of the relevant ground or grounds…and take into account the political context, the economic matters at stake and the consequences of a suspension of the exemption from the visa requirement for the overall external relations of the Union and the Member States with that third country’. When it comes to applying sanctions in practice, the first level of sanctions (an implementing measure against categories of persons) can now apply for 12 months, rather than 9. There is still an apparent obligation to act here if a simple majority of Member States trigger the rules (although this does not apply to the ‘visa dialogue’ or ‘external relations’ grounds). Moreover, where the suspension mechanism is used, Member States can no longer choose to exempt holders of special or official passports from it, at the behest of the European Parliament. This addresses the issue that arose from the recent partial suspension of the visa facilitation treaty with Georgia, as discussed above (ie partially suspending the treaty as regards visa waivers for holders of official passports did not necessarily require that Member States reintroduce visa requirements for the category of Georgians holding those passports, because the Regulation still left them with discretion on that point). There is a new quicker fast-track possibility for the Commission to use the suspension mechanism in the event of ‘urgency’. The European Parliament attempted to restrict this process to the ‘public policy and internal security’ ground, but this was rebuffed – although the preamble suggests that urgency only applies ‘for example’ to prevent mass influx or ‘serious damage to the public policy or internal security of Member States’. Conversely, the Council successfully insisted that there must still be some advance scrutiny by Member States of draft Commission decisions (albeit quicker than usual) – rather than use the ‘full-fat’ urgency procedure in the comitology Regulation as the Commission had wanted (that procedure allows the Commission to act without prior discussion with Member States at all, although only for a limited period). If the issues persist, as under the current law, the Commission ‘shall’ adopt a delegated act suspending the visa waiver for all nationals of that country. But the new law extends the time those delegated acts can apply from 18 months to 24 months. Furthermore, if the suspension mechanism is invoked on external relations grounds, the new law allows the delegated act to apply still to limited categories of people only, because in such cases (according to the preamble), ‘the Commission should favour a targeted approach’, suspending visa waivers first for those ‘holding positions of responsibility, such as members of that third country’s official delegations, members of local, regional and national governments, members of parliaments or high-ranking public or military officials, minimising adverse consequences to the general population’. As with the implementing measures, if the delegated act applies to the holders of special or official passports, Member States lose their power to exempt them from the visa requirement (ie the recent Georgia issue). In the event of a legislative proposal to make the move to the visa blacklist permanent, the delegated act can be extended for 24 months (rather than six months under the current law). And it can be extended for a further 24 months where it is targeted on holders of special or official passports, on external relations grounds. Finally, the European Parliament had also proposed a change in the law aimed at blacklist countries. It wanted to give the Commission the power to adopt an implementing measure removing Member States’ option to drop the visa requirement for holders of special or official passports from those countries too, in the event of a deterioration in external relations as defined in the new law. However, this proposal was rebuffed.

Comments

All three institutions were broadly in agreement on the main features of the Regulation. Some of them won or lost on particular points: the Parliament lost its attempts to extend its scope to cover some issues relating to reciprocity or blacklist countries, but mostly won as regards a broader scope and lower threshold for the external relations ground, and the insertion of a ‘Georgia clause’ (removing the power of Member States to waive visa requirements for official passport holders when visa requirements are reimposed). The Council won lower thresholds for the definitions of ‘substantial increase’ and low recognition rates for asylum; and the Commission got at least a limited version of fast-track powers to apply the suspension mechanism, albeit still being subject to advance scrutiny by Member States. There was little dispute as regards adding most of the new grounds for using the suspension mechanism, and the lengthened periods for reimposing visa requirements via implementing or delegated acts.

One consistent feature of the new Regulation is the broadening of scope of the suspension mechanism: not only (most obviously) by adding new grounds for its use, but also lowering the thresholds for applying the existing grounds, and by widening the reference period for determining if any of the various ‘substantial increases’ have occurred.

Traditionally Member States have been reluctant to give up powers as regards visa exemption (or requirements) for holders of special or official passports, except when the EU negotiates visa facilitation treaties. But when negotiating the new law they were willing to accept the Parliament’s proposed ‘Georgia clause’, which will constrain their powers as regards holders of such passports from whitelist countries – although they did reject the Parliament’s parallel proposal to restrain their powers as regards holders of such passports from blacklist countries.

Member States have also been remarkably willing to address foreign policy issues – traditionally a closely guarded field where unanimous voting applies – by means of visa sanctions. Usually one might expect the European Parliament to be pushing this, against strong resistance from Member States; but on this occasion, the Council had suggested a new ‘external relations’ ground first, and largely accepted the Parliament’s broader version of the clause. This is so even though the focus on targeting government officials on external relations grounds is remarkably similar to the foreign policy process of naming individuals to be sanctioned.

There’s a key difference, though, despite the overlaps: the visa suspension mechanism can only lead to officials being required to apply for a visa, whereas foreign policy sanctions can entail an entry ban. (The EU has not resorted to Trump-style entry bans for entire countries). So even if (say) Hungary complies with the ‘Georgia clause’, it could be malicious compliance: the (hypothetical) police chief of Tbilisi, fancying a weekend break after a long week of thumping protesters, applies for a Schengen visa from Hungary. Not only is it granted; the Hungarian government lays on a hotel suite full of finely aged wine – and barely dressed women – to welcome him.

The breadth and lack of clarity of the external relations ground to invoke the suspension mechanism leaves the Commission much discretionary power to determine when it might be used. While, as noted above, the EU has always avoided using the reciprocity mechanism in the visa list Regulation, it has used every other form of visa sanctions power it has, at least once. Widening the scope of the suspension mechanism makes it likely that this visa sanctions power will be used more often.

Some political considerations will of course remain: the EU seems determined so far to avoid further confronting Trump (consistent with a longer history of avoiding conflict with the USA in this field); and whatever argument might be made about Israel and international (humanitarian) law, the EU rarely goes beyond mild expressions of concern.

There may be more enthusiasm for using – or at least threatening to use (cf the visa code sanctions) – the enhanced suspension mechanism as regards immigration and asylum policy. On this point the effect of the ‘visa policy alignment’ ground of the new rules – despite the EU’s supposed opposition to smugglers and to unsafe routes for asylum-seekers – is to make it harder for asylum-seekers to get to the EU via a safe, smuggler-free journey to a neighbouring country. Moreover, to apply the ‘visa policy alignment’ ground, there’s no requirement that the asylum recognition rate has to be low. Put another way, the EU wants to end a safe route for would-be asylum-seekers to get close to the EU in order to claim asylum there, regardless of whether their application might be successful. For all the rhetoric about evil gangs of smugglers and unfounded applications, it seems the reality is that the EU just does not want refugees.