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.

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’



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