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:
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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.
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