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

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

Professor Steve Peers, University of Essex

Introduction

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

Basics of the system

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

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

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

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

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

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

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

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

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

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

When will the new travel authorisation system apply?

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

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

Process for the applicant

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

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

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

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

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

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

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

Granting or refusing a travel authorisation

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

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

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

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

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

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

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

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

Comments

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

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

Barnard & Peers: chapter 26, chapter 27

Photo credit: GTP headlines

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

Beyond Blue Passports: UK/EU immigration after Brexit

Professor Steve Peers, University of Essex

In the last few days, there has been much debate about the UK government’s intention to ‘return’ to blue British passports after Brexit. It’s unfortunate that there have been false statements on both sides of the argument – that the change in passports will cost extra money (the contract was due for renewal anyway) and that the EU forced the UK to apply the burgundy colour (there’s only a non-binding Resolution on this issue).

Some prefer the idea of a change in colour due to Brexit, but the issue isn’t about ‘sneering’ at people who might prefer one passport colour to another. In fact, aesthetically I prefer my previous UK passport colour (which was black, not blue). But a passport should be judged not by the colour of its cover but by the content of the rights it confers.

In that light, it’s a good moment to review the rules on visits and long-term immigration to the EU that will likely apply to UK citizens after Brexit. This is an update of a previous post from 2014 on this issue, except it should be noted that there will likely be separate rules on UK citizens who already live in the EU27 states on Brexit Day – on the basis of the withdrawal agreement, as partly agreed earlier this month. I have discussed that partial deal separately and so I won’t discuss that category of people further again here. My focus is on UK citizens who are still in the UK on that point (and who do not also have the citizenship of an EU27 country).

There are several general points at the outset. First, it seems likely that a transition period will be agreed as part of the withdrawal agreement (see discussion here). This may well mean that EU free movement law continues for a short period longer to apply between the UK and the EU after Brexit Day. Those who move during the transition period will likely be treated the same as those who moved before Brexit Day, although this has yet to be confirmed.

Secondly, EU immigration law (by which I mean the EU laws generally governing the immigration status of non-EU citizens) does not apply to all Member States. In particular, the rules relating to short-term visas and borders (and aspects of irregular migration) deriving originally from the Schengen open borders agreement don’t apply to the UK or Ireland. They only partly apply to Romania, Bulgaria, Cyprus and Croatia (although those States are meant to join in future) and have been extended outside the EU, to Schengen associates: Norway, Iceland, Liechtenstein and Switzerland. The rules relating to longer-term legal migration and asylum apply to all Member States except Ireland and Denmark, but not to any non-EU countries (other than the Dublin rules on which State to apply for asylum in, which apply to the Schengen associates). 

Crucially, this means that immigration between the UK and Ireland after Brexit isn’t directly affected by any of the laws discussed in this blog post. Also EU free movement law will still apply to UK citizens who are family members of EU citizens who move to another Member State. 

Thirdly, the following analysis is based on EU law as it currently stands, as it is applied to countries like the UK post-Brexit: ie, relatively wealthy non-EU countries which do not have free movement with the EU. I’ll indicate where the law is currently being revised. It’s possible that some special post-Brexit deal on some or all aspects of immigration, falling short of free movement, might be agreed between the EU and UK after Brexit. While this prospect can’t be discussed in detail, since the UK government has not indicated whether it would even wish to seek such an agreement and so there’s no indication of what the content might be (or whether the EU would agree to it), I’ll discuss this prospect generally in a final section.

Finally, while some might try to argue that any new difficulty for UK citizens moving or travelling to the EU after Brexit would constitute some form of ‘punishment’ by the EU, this would be profoundly dishonest. The UK government seeks – as most Leave voters supported – to become a non-EU country without free movement after Brexit. Ending free movement law necessarily means that it’s not only harder for EU citizens to visit and stay in the UK, but also the other way around: the clue is in the words ‘free movement’. It should not be too much to hope that people have the integrity to accept the responsibility for the consequences of the outcome which they advocated.

Visas and border controls

‘Visas’ are an issue for both longer-term immigration and short-term travel; here I’ll discuss short-term travel, which (like border controls) has been fully harmonised by the EU as part of the Schengen process. While it’s sometimes argued that UK citizens will face short-term visa requirements to visit the EU after Brexit, the current law of the EU (the visa list Regulation) suggests that they will not (as I discuss in more detail here). That’s because it’s EU policy not to apply visa requirements to fairly wealthy non-EU countries, or to most neighbouring EU states, provided that the countries concerned reciprocate by not imposing visa requirements on EU citizens.

However, the EU is planning to set up an electronic travel advance authorisation system (ETIAS). I previously discussed this idea here; in the meantime, the legislation to establish ETIAS has been proposed by the Commission, agreed by the Council and is now under negotiation with the European Parliament. The text as agreed by the Council (and the most recent EP/Council negotiation text) would apply the ETIAS to all non-EU countries without free movement, therefore including the UK. Some in the UK would like to do set up a parallel system after Brexit, which would apply to EU citizens in return. (Note: I assume that during any transition period in the withdrawal agreement, the UK will temporarily be defined as a non-EU country which does apply free movement. The focus here is on what happens after that).

What about queues at border controls? At present, the Schengen borders code sets up a fast track solely for those with EU citizenship or nationality of a state with a free movement deal (see Articles 8 and 10). So UK citizens will no longer be fast-tracked at those borders after the end of free movement rules, unless the UK and EU negotiate an unprecedented special arrangement. Those who assert with certainty – like this MP – that nothing will change as regards longer border queues are therefore misstating the legal position. The comparison with Switzerland by the same MP is even more bizarre, given that Switzerland has signed up not only to free movement but also to the Schengen system.

UK citizens will also be subject to the planned EU entry-exit system, on the basis of newly adopted legislation, once that system is set up.  Again, that system, which will take records of all those entering and leaving the EU, will apply to all non-EU countries without a free movement agreement.  Similarly, UK citizens who have a record of criminal offences or immigration law breaches will be subject to entry bans for the entire EU enforced by means of the Schengen Information System (which is being revised), for the same reasons.  (The UK currently participates in other aspects of that System, as regards exchanges of criminal law and policing information, but it remains to be seen if this remains the case after Brexit: see further discussion here).

Long-term migration

Of course there will still be some UK citizens moving to EU countries on a long-term basis after Brexit. The point is that they (like EU citizens moving in the other direction) will no longer have the right to do so on the very liberal terms set out in free movement law, but instead will be moving on the basis of more restrictive rules set out in national law. On the EU side, those national laws have been partly harmonised by EU law. (Retirement of UK citizens in the EU will be entirely subject to the national laws of Member States).

First of all, as regards moving for work, there is EU legislation on highly-skilled non-EU migrants (the ‘Blue Card’ Directive, currently being revised as discussed here); the single permit Directive, which sets out common rules for equal treatment of non-EU migrants allowed to work; the Directive on seasonal workers (discussed here); and the Directive on intra-corporate transferees (discussed here). To some extent, this legislation sets only minimum standards or allows Member States to set up parallel national regimes.  

As regards students and researchers, a revised EU law (discussed here) will apply from 2018 (so before Brexit). UK students will lose the right to equal treatment as regards tuition fees and admission in EU universities that they currently enjoy as EU citizens (unless otherwise agreed). However, according to ECJ case law (discussed here) non-EU students must be admitted if the (more stringent) standards in the current version of the EU legislation on non-EU students are met. (There’s no reason to think that case law won’t apply to the newer version of the law).

Family reunion for UK citizens who move to the EU will also be harder after Brexit, whether their family are UK citizens or citizens of other non-EU countries, on the basis of the standards in the EU’s family reunion Directive. While Member States can set higher standards than the Directive, they often do not do so.

Finally, what about asylum? EU citizens are all but banned from applying for asylum in other Member States (the exception is discussed here), but UK citizens will no longer be EU citizens after Brexit. Like the UN Refugee Convention, EU refugee law (which is currently being revised: see discussion here) defines a refugee as person who is outside their country of origin due to a genuine fear of persecution by reason of race, religion, nationality, political opinion or particular social group. Persecution is defined as entailing some form of violence or other severe restriction on human rights. As things stand, despite obnoxious headlines from the UK’s most toxic newspapers, those calling for murder of Remain supporters are a tiny extreme fringe and there is no sign that the UK government is unable or unwilling to respond to any further violence which they might commit. Nor is there any move to lock up or ban the free speech of Remain supporters. Let’s hope this always remains the case.

Irregular migration

Finally, it should be noted that UK citizens who breach the immigration law of the EU and/or its Member States – which would obviously be more likely after Brexit as less liberal rules would apply – would be subject to the EU’s Returns Directive, which governs many aspects of the process of removing non-EU citizens who are not legally resident. This Directive has been subject to a relatively liberal interpretation by the ECJ, as I discuss here), but nevertheless it is rather more restrictive than the rules on expulsion or detention as set out in EU free movement law.

Special deal?

Could the EU and UK sign as special deal on immigration after Brexit? (I am leaving aside the likely transition period in the withdrawal agreement). As regards visas and borders, this would likely be an agreement with the entire EU, since the degree of harmonisation in this field means that the ECJ would likely rule that the EU has exclusive competence. In practice, the EU has been willing to sign treaties with non-EU countries on links with the border agency Frontex, and on visa waiver and readmission treaties. Would the EU be willing to go further, and (for instance) agree reciprocal non-application of the electronic travel authorisation rules on each side?

On legal migration, the EU has harmonised the law less and the Treaties reserve a national competence regarding the numbers of non-EU citizens admitted to work. Moreover, EU legislation in this field usually expressly states that Member States can enter into bilateral treaties with non-EU countries.  So any agreement would either be ‘mixed’ (needing ratification by the EU and its Member States), or purely bilateral between the UK and individual Member States. In some cases the EU has been willing to sign an association agreement with non-EU countries which contains limited rules on immigration.

More broadly, the issue of whether the UK and EU should sign a special immigration deal after Brexit may form part of the broader talks, with some in the UK willing to offer a trade of limited preferential labour market access in return for bigger access to the EU services market, for instance. Others might be unwilling on principle to offer any commitment regarding immigration. One factor that shouldn’t be overlooked is that such a deal would be reciprocal – preserving equally some possibility of facilitated immigration for UK citizens to the EU, not only the other way around.

*This blog post was supported by an ESRC priority grant on "Brexit and UK/EU immigration policy"

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:3, I:4, I:5, I:6, I:7

Photo credit: Telegraph

Will UK citizens have to pay to visit the EU after Brexit?

Steve Peers

Following a Guardian article on Saturday, and the Home Secretary’s confirmation on Sunday, it’s clear that the EU is planning to institute some kind of Electronic System of Travel Authorisation (ESTA) in future, which could well apply to UK citizens visiting the EU after Brexit. I’ll examine the background, context and consequences in this post.

Background

What is an ESTA?

First of all, let’s establish what an ESTA is not. It’s not a means of regulating longer-term migration as such, although there is an indirect link between long-term migration rules and ESTA systems, as discussed below. Rather it’s a means of regulating short-term visits for tourism or other reasons.

Nor is an ESTA a tourist visa. A lot of people have confused it with one, perhaps because a Guardian sub-editor initially put an inaccurate headline on the original story (I see the online headline has since been corrected). A tourist visa is a bigger hassle for visitors than an ESTA, since travellers must visit a consulate or pay an agency to handle their application. It entails higher fees and a longer waiting period, and probably a bigger risk of rejection.

During the Brexit referendum campaign, the prospect of a visa regime between the UK and EU was not raised by the Leave side generally. However, it was raised by a junior minister, Dominic Raab, and at the time I trashed the idea here. Since then, Theresa May has shown sufficient judgment to return Raab to the backbenches, so hopefully we have heard the last of this idea for a while.

So what is an ESTA? It’s a way of gathering travellers’ information in advance of travel, usually for citizens of countries subject to a visa waiver, for instance the USA and Japan. In fact, the best-known example of an ESTA is the American version, although there are several other countries with one.  If a traveller fails to complete an ESTA in advance of travel, they will likely be denied boarding or admission at the border.  The US version includes a fee for administration and tourism promotion. Usually the form is completed, and the fee paid, online. It’s recommended to complete the ESTA form several days in advance, although on my last trip to the USA, I did it just before dashing out of the house to catch my plane. (I am not suggesting this as best practice).

The EU context

The EU has been considering an ESTA for a while. It would form part of the Schengen system of standardised external border controls, which are paralleled by the abolition (in principle) of internal border controls between Schengen States. The Schengen states comprise all the remaining EU countries except Ireland – although Romania, Bulgaria, Cyprus and Croatia do not fully participate yet – plus four non-EU Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

A key feature of EU law in this area is that the Schengen system interacts with EU free movement law. So because the UK and Ireland have signed up to the free movement of EU citizens as EU Member States, their citizens are fast-tracked across the Schengen external borders. The same is true of the Schengen associates, because they have all signed up to free movement of their citizens with the EU as well.

Other non-EU citizens are subject to more intensive checks at the Schengen external border, as set out in the Schengen Borders Code. There’s a simple reason for this: they don’t have an underlying right to stay in the country, whereas citizens of EU Member States and the Schengen associates do – subject to exceptions. There are also distinctions between non-EU countries: some (like the US or Canada) have a visa waiver from the Schengen countries, while others (like India and China) don’t.

An ESTA was first discussed in a Commission discussion paper back in 2008. This was followed up by a very detailed study in 2011 which recommended against the idea, after which the Commission dismissed it.  In 2013, the Commission decided instead to propose an entry-exit system, which would record the movements of non-EU citizens (besides the Schengen associates) into and out of the Schengen external borders. Discussions on that proposal moved slowly, and the Commission proposed a new version of it in spring 2016. The intention is to agree on this system by the end of the year, although it will take several years afterward to get the system up and running in practice.

At the same time, the Commission revived talk of a possible EU ESTA, in a discussion paper on EU information systems. This excited many Member States, as can be seen by a Dutch EU Council Presidency paper published in the spring, which argued that the system could be a quid pro quo for visa waivers with countries like Ukraine and Turkey. Now the idea is on the agenda for the summit of the ‘EU27’ (ie the EU without the UK) to be held this week. It is being pushed by France and Germany in particular. Surely only a cynic would link this to the upcoming elections in those countries…

Consequences

Like the entry-exit system, an EU ESTA would take some time to set up. The details of how it would work would remain to be determined: the Commission is due to make a proposal this autumn, which would then be agreed by the Council (only Schengen States get a vote, so not the UK) and the European Parliament. So it might not follow the US model exactly, in terms of fees or the link to the broader border control system, or the two-year period of validity.

For one thing, some of the EU documents suggest an EU ESTA will apply at external land borders, whereas the US system does not. Also, some EU papers suggest an ESTA will be used as a method of screening people and denying them entry in advance, while others refer to it simply as generating information for border guards to use to speed up their work. It’s not clear whether an ESTA would apply to those UK citizens who live in the EU already, if they (for instance) visited the UK and then returned to France.

But it does seem very likely that it will apply to all non-EU countries which don’t have a treaty on free movement of citizens with the EU. This would follow the existing model of the Schengen Borders Code, the Schengen Information System (which includes data on non-EU citizens to be refused entry) and the proposed entry-exit system. It’s simply common sense: fast-track entry at the border for those who are not subject in principle to immigration controls, but scrutiny at the border (or in advance of it) for those who are.

It’s been suggested that the application of an EU ESTA to the UK would be an act of ‘spite’. This is simply ridiculous. If a country leaves the EU, it leaves behind both the pros and cons of membership. In short: divorce doesn't come with bed privileges.

Many on the Leave side argued that the UK should leave the EU and then stop applying free movement law, so that it could exercise more control over EU citizens at the border. Applying an EU ESTA to UK citizens would just be exactly the same principle in reverse. Equally UK citizens would no longer be fast-tracked at Schengen external borders, would be subject to the EU entry-exit system and (for a few) would be listed in the Schengen Information System as people to be denied entry into any Schengen State. This isn’t ‘scaremongering’: it’s simply a description of existing and proposed EU law.

So will the UK be subject to an EU ESTA after Brexit? The obvious way to avoid it (and the other forms of stepped-up border control) would be to conclude a deal on free movement of persons with the EU (this need not mean joining Schengen). Arguably even a free movement deal with derogations – for instance, limiting the numbers of EU citizens who can work in the UK in some way – could justify an exemption from stepped-up border controls, as long as those UK controls are not applied at the border. I can foresee the counter-argument that ‘the EU will never negotiate an exception to free movement of people’; but has it occurred to anyone that this might simply be a negotiating position?

If an EU ESTA does end up being applied to UK citizens, the UK could reciprocate with a system of its own, applied to EU visitors. But this doesn’t rule out some form of deal on immigration flows between the UK and the EU, which could be agreed in return for continued UK participation in the single market.  The mere existence of a UK ESTA – perhaps accompanied by some other form of immigration safeguard on EU citizens – might arguably go some way to satisfying those who want additional border controls. It could be accompanied by further mutual sharing of data on serious convicted criminals, for use in the ESTA process. Latvia’s daft decision to release a convicted murderer after only a few years in prison should not have had tragic consequences in the UK, or any other Member State.

Barnard & Peers: chapter 13

JHA4: chapter I:3

Photo credit: Kaihsu Tai - Own work, CC0, https://commons.wikimedia.org/w/index.php?curid=45487009

EU Referendum Briefing 1: Can the UK control the EU’s future if it stays a member?

Steve Peers

During the EU referendum campaign, a number of arguments have been made that staying in the EU is risky, because of possible future developments of the EU itself. While there will always be someone somewhere who says they would like to see an EU army, or some development related to the single currency, such an expression of opinion is meaningless by itself.  The fundamental issue is whether the UK could control such developments – either by vetoing them or opting out.

So what’s the worst that can happen? In this post, I’ll examine in turn the main alleged risks to staying in the EU. As we’ll see, in every single case the UK has control, either by an opt-out or a veto. In other words, none of these things can happen without the British government’s consent. Nearly all of them would also need our Parliament’s consent. And the large majority – all the fundamental possible changes to the EU that many are concerned about – would actually need the consent of the British public in another referendum. (Anyway, there's nothing to stop the UK holding another referendum on EU membership in future, if it wanted to).

All of these safeguards for UK control of further developments of the EU exist in the current law of the EU – as I will show in detail. None of them are first created by the renegotiation of EU membership agreed this February.

I’ll look at seven issues where the UK has control over future EU developments:

a) defence;

b) transfers of power;

c) new Member States, including Turkey;

d) taxation;

e) non-EU immigration, asylum and criminal law;

f) the single currency; and

g) the EU budget, including the UK rebate.

There's also an earlier blog post on the controversial issue of the planned EU/US trade deal (TTIP) and the NHS. 

a)      EU Defence and foreign policy

The UK has control over EU defence and foreign policy measures because they are in principle taken by unanimous vote, with only limited exceptions. On foreign policy in general, Article 31 TEU says:

Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise.

The exceptions are where there has been a prior act or request of EU Presidents and Prime Ministers (who act by consensus), or where the EU is implementing a prior act already agreed by unanimity, or where the EU appoints a ‘special representative’. However, there is a kind of ‘emergency brake’ in all these cases:

If a member of the Council [ie a Member State government] declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken.

Also the majority voting ‘shall not apply to decisions having military or defence implications’. It’s also possible to apply majority voting to funding issues, but again there’s a military and defence exception (Article 41 TEU), and also there’s an exception for a Member State which chose to abstain on a proposal. The bottom line is that the UK is in control of whether it has to contribute to EU foreign policy funding.

So whether EU foreign policy relating to Ukraine or Russia (for instance) is a good idea or not, it has not been imposed on the UK government. Rather the government is in control, because it could have vetoed it. This means that if EU Member States can’t agree on an issue, there is no EU foreign policy on that issue, and they do as they like – as in the case of the Iraq War, for instance.

Some have raised the issue of the UK’s permanent seat on the United Nations Security Council. In fact Article 34(2) TEU refers to Member  States’ seats on the Security Council, not to any EU seat. The UK has control here, because it could veto any EU decision that required it to give up its Security Council seat, as part of its veto over any foreign policy matters. It’s suggested that the European Parliament wants that to happen, but the European Parliament has no role in EU foreign policy: Article 36 TEU says that it’s only consulted.

Anyway, a change to the UK’s Security Council veto  could only happen by means of a change to the UN Charter, and the UK has control over that: a veto, according to Article 108 of the Charter:

Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

As for defence, can there be an EU army? Article 42(2) TEU says:

2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.

So the UK has control over any possible ‘common defence’, by means of its veto. And there’s more: the ‘constitutional requirements’ that would apply in the UK are not only parliamentary approval, but also a referendum, according to the European Union Act 2011. In general this law sets out a ‘referendum lock’ on further transfers of power to the EU, putting the British public in control over any future transfers. I’ll refer to this law again several times, since it sets many other limits on the development of the EU in future. It also requires a referendum before any British veto over foreign policy or defence is given up. 

b) Treaty amendments and transfers of power

It’s sometimes suggested that there might be future transfers of power from Member States to the EU, as part of the developing single currency project (perhaps following the so-called ‘Five Presidents Report’ on this issue) or for some other reason. This is sometimes presented as a 'superstate', or as an inevitable outcome of the EU's 'ever closer union' clause. However, the UK has control over these developments. First of all, the UK has an opt-out from the single currency, as discussed below. Secondly, it also has a veto over future Treaty amendments.

There are several ways to amend the EU Treaties, as set out in Article 48 TEU. They have two things in common: (a) the UK government has a veto over all of them (which it used in 2011, for instance); and (b) the British Parliament would have to approve each of them, either by voting in favour or deciding not to vote against.

But there’s more. The European Union Act 2011, first mentioned above, also gives control to the British public over any significant Treaty amendment, by means of a referendum. This would apply where the UK would drop nearly any veto. It would also apply to other transfers of powers to the EU from the UK, defined in detail as including:

a)      ‘the extension of the objectives of the EU’;

b)      any ‘conferring’ or ‘extension’ of any EU competences, including over ‘the co-ordination of economic and employment policies’ (an issue in the Five Presidents’ Report); or

c)       giving any EU ‘institution or body’ any power to give orders or impose sanctions upon the UK.

  

It’s been suggested that the UK gave up a veto relating to single currency and banking issues as part of the renegotiation deal. This isn’t true, as the deal didn’t amend the Treaties and Parliament has not amended the 2011 Act.

So the control over any transfer of power from the UK to the EU is threefold: the UK government, UK Parliament and the British public.

c)       New Member States

The rules on accession of a new Member State are set out in Article 49 TEU, as follows:

Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements. The conditions of eligibility agreed upon by the European Council shall be taken into account.

So the UK controls whether a new country joins the EU, by means of a veto. The ‘constitutional requirements’ are an Act of Parliament in favour.

There has been some concern about new Member States joining the EU in future, but in order to join each new State must negotiate 35 chapters of detail about EU law. In 11 years’ of negotiations, Turkey has only agreed one out of those 35 chapters. It has not even opened many of them:

Moreover, the ‘conditions of eligibility’ include human rights standards, which Turkey doesn’t now meet. Cyprus would veto Turkish membership unless there’s a deal on the future of the island. The other countries applying to join have not agreed many chapters either.

In any event, the current Member States can insist on a long waiting period before the free movement of persons fully applies to new Member States. The majority of the Member States which joined the EEC/EU after it was founded (14 out of 22) have been subject to seven-year waiting periods before full free movement of people, and longer periods could be applied in future.

The UK veto over enlargement could only be dropped by a Treaty amendment, approved by the government, parliament and public under the European Union Act 2011.

d)      Taxation

The main taxes harmonised at EU level are VAT and excise taxes. EU law sets a minimum rate for these taxes: it’s 15% for VAT, subject to exemptions. It also defines their scope. The UK has VAT exemptions on things like books, basic foodstuffs and children’s clothes.

While VAT is sometimes depicted as if it is imposed by the EU upon the UK, in fact the UK has consented to all VAT laws, since law-making in this area is subject to unanimity. The rule currently appears in Article 113 of the Treaty on the Functioning of the European Union:

The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation.

So the UK has control in this area, since it has consented to every VAT obligation and excise tax obligation set by EU law. It’s the UK’s own decision to set the rate of tax for VAT and excise taxes (taxes on alcohol, tobacco and petroleum) above the minimum level. Many people would like to see further exemptions from VAT, such as on tampons or environmental services; but it was the UK government that agreed to commit itself not to lower these rates. Actually, the UK government recently agreed to a renewal of the 15% minimum rate. In any event, the EU has recently agreed to a more flexible approach, which will allow VAT to be dropped on tampons and possibly a broader range of other products and services.

It follows from the existence of the veto that the UK has control over any future amendment to EU tax law in these areas, including any removal of any exemption, by means of its veto.

What about other taxes? There is little EU involvement in other areas of tax law. So, for instance, the UK is entirely free to set rates of personal income tax, National Insurance contributions, corporate taxation, council tax and many more. However, there is some limited EU involvement in cross-border aspects of corporate tax, such as the recent law which aims to tackle cross-border tax evasion.

The EU adopts these laws on the different legal basis of Article 115 TFEU:

Without prejudice to Article 114, the Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the internal market.

Again it can be seen that unanimity is the rule. So the UK has a veto. This veto is further protected by Article 114(2) TFEU, which says that the majority voting that normally applies to EU single market law does not apply to ‘fiscal provisions’.

Therefore the UK has control over any new EU tax that might possibly be proposed to fund refugee and migration costs, or upon pensions, or upon anything else. We can simply veto it.

Can these vetoes be removed? As discussed above, due to the European Union Act 2011, they can only be removed (in whole or part) if the Treaty is amended with the consent of the UK government and parliament, and the British public in a referendum.

e)      Asylum, non-EU migration and criminal law

The UK has an opt-out over EU laws on non-EU migration, criminal law and policing. This is set out in Protocol 21 to the Treaties.

As regards immigration and asylum, the UK opted out of most non-EU immigration laws, but opted in to the first phase of asylum laws from 2003-2005, using the veto which it had at the time to ensure that these laws did not require any change in UK asylum law. The only substantive EU asylum laws which the UK has opted in to since 2005 are the Dublin III Regulation (on returning asylum-seekers back to another Member State where they first entered) and the Eurodac Regulation (on fingerprinting asylum-seekers to that end). The UK opted out of recent EU laws on relocating asylum-seekers from Italy and Greece to other Member States.

The UK also has an opt-out from the Schengen system of open borders between Member States, and harmonised external border controls (see Protocols 19 and 20). This includes an opt-out from the EU laws on short-term visas (which concern stays of three months’ maximum). So the UK will not be covered by the proposed laws on waiving the short-term visa requirement for Turkish citizens, or for other countries (Ukraine, Georgia, Kosovo).

For the same reason, the UK will also not be covered by the proposed law on a European Border Guard. While this law originally provided for the border force to enter a Member State without its consent, that idea was dropped during negotiations. That would anyway not have applied to the UK; and in fact the EU court has ruled that the UK could not opt in to the EU law creating a border agency (the precursor to the proposed Border Guard law) even if it wanted to, without signing up to the whole of the Schengen system.

In the areas of criminal law and policing (which will be the subject of a separate blog post with more detail), the UK had a veto until 2009, when the Treaty of Lisbon came into force. Since that date, it has had an opt-out, which it has frequently used. In particular, it has opted out of the proposal for a European Public Prosecutor. Note that the EU’s police agency, Europol, is not a ‘federal police force’: the Treaty rules out ‘coercive powers’ for it, so it cannot arrest, question or detain people. Its main role is the analysis of police investigation data.

The abolition of the opt-outs on immigration and asylum, Schengen and criminal law would require a Treaty amendment subject to approval of the government and Parliament. The abolition of the Schengen opt-out would also require a national referendum, under the European Union Act 2011. So would participation in the European Public Prosecutor.

f) The Single Currency

The UK’s opt-out from the single currency appears in Protocol 15 to the Treaties. Point 1 reads:

1. Unless the United Kingdom notifies the Council that it intends to adopt the euro, it shall be under no obligation to do so.

This protocol does not expire at some point, as is sometimes suggested. Neither are ‘all Member States obliged to join the euro by 2020’. So the opt-out is valid for an unlimited period.

The protocol goes on to disapply the various EU law rules relating to the single currency. This has a number of implications. Due to the single currency opt-out the UK cannot be subject to austerity measures imposed by the ‘Troika’ that oversees bail-outs to Eurozone countries, since this only applies to states which adopt the single currency. Austerity policy in the UK is solely a decision made by our own government.

Furthermore the UK is exempt from some EU banking laws. Most notably it is not obliged to participate in the permanent bail-outs of Eurozone states. Only Eurozone states are involved in that, on the basis of a separate treaty. In fact the EU as such cannot adopt laws on permanent bail-outs, according to the EU court.

The UK could potentially be part of solely temporary bail-outs. But here the law was amended to provide a guarantee that the UK would get its money back in the event of any default.

g)      The EU budget – and the UK rebate

Of the money the UK in principle sends to the EU, there are two key features: a) a rebate, meaning some of that contribution is never sent at all; and b) some EU spending back in the UK. (For an overview, see here).

It’s often suggested that the rebate is not legally secure, and that the UK has no control over spending by the EU. Both suggestions are false.

The rebate is set out in the EU’s Own Resources Decision. This does not (as some suggest) have an expiry date (other Member States’ rebates will expire in 2020, but the UK rebate, and the law as a whole, will not). If the EU wants to amend this law, Article 311 TFEU applies:

The Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament adopt a decision laying down the provisions relating to the system of own resources of the Union. In this context it may establish new categories of own resources or abolish an existing category. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

It’s clear that the UK government can control the future of the rebate by means of a veto. Furthermore, so can Parliament, since the ‘constitutional requirements’ for the UK referred to mean that an Act of Parliament has to be passed for any amendment to the Own Resources Decision. These constraints have meant that the veto has stayed in place for over 30 years – although the UK government and parliament have agreed to some reduction in it over that time.

It’s clear that this rebate is not ‘conditional’, as is sometimes suggested. The UK has full control over the rebate money and can do entirely what it likes with it.

What about EU spending back in the EU? The basic rules on what the EU spends money on are set out in the law on the ‘Multi-Annual Financial Framework’. The latest such law is here. The UK does have control over the basic features of this law, because it has a veto over it, according to Article 312(2) TFEU:

2. The Council, acting in accordance with a special legislative procedure, shall adopt a regulation laying down the multiannual financial framework. The Council shall act unanimously after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.

It’s also useful to put the EU budget contribution into broader perspective. It’s less than 1% of UK spending (the small red section of the graph below). So if the UK no longer paid the contribution, it would be like getting a pay increase from £400 to £404. The average taxpayer is paying 12p a day toward the EU.

Conclusion

As we have seen:

a)      The UK cannot be required to join an EU army without consent of the UK government, parliament and public;

b)      Treaty amendments require the consent of the UK government and parliament, and (if there’s any transfer of powers) the public;

c)       Accession of new Member States requires the consent of the UK government and parliament; it is a long way off for Turkey in particular and if it ever happens, will be subject to long periods of transition for workers to be admitted;

d)      The UK has a veto on tax issues; the UK government, parliament, and public would have to consent to dropping it;

e)      The UK has an opt-out from EU law on asylum, non-EU migration and criminal law; the UK government and parliament would have to consent to dropping it, and the public would have to agree to join Schengen or the European Public Prosecutor;

f)       The UK has an opt out from the single currency and other related issues, and could only join after the consent of the UK government, parliament and public;

g)      The UK has a veto over the basic EU budget revenue and spending rules, including the UK budget rebate; the veto could only be dropped with the consent of the UK government, parliament and public.

Of course, there are many other possible criticisms of the European Union. Some may be valid, and some not. But the argument that the UK government could be forced into any of the measures listed above is quite clearly false and scaremongering. All of the above possible developments are subject to the control of the UK government, and usually our Parliament and the general public besides.

Art: ‘The Scream’, Edvard Munch