EU Law Analysis: Revising EU visa policy


Professor Steve Peers

Back in 2014, the Commission
proposed a revamp of EU visa policy (concerning short-term visit visas), in the
form of a proposal to revise the EU’s visa code. This proposal ultimately
failed, because the EU Parliament and Council could
not agree
on whether it should include “safe passage” visas for those
needing protection or not. Now the Commission is trying again, focussing this
time on security concerns, rather than economic growth.

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 are not covered by the Code (X
and X
).

The Code concerns “Schengen
visas”, ie visas which allow travel across the entire Schengen area. As such it
applies to the EU countries fully applying the Schengen rules (all Member
States except the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria) as well
as the non-EU Schengen associates: Norway, Iceland, Switzerland and
Liechtenstein.

The list of non-EU countries
whose citizens do (or do not) need a visa to visit the Schengen area is set out
in a separate visa list Regulation (the plans for visa waivers for Turkey and Kosovo are on hold). EU policy is to waive visa requirements for nearby
countries, subject to a (loosely-enforced) requirement for reciprocity, so it
is likely that UK citizens will not need a visa to visit the EU after Brexit.
However, EU legislation to set up a “travel authorisation” system, about to be
adopted (see discussion here),
will apply to all non-EU countries with a visa waiver but without a free
movement agreement with the EU. As things stand, this law will apply to the UK, unless some special exemption is requested
and agreed. A travel authorisation is similar to a visa in that it requires a
prior authorisation to travel, but will cost less and be valid for much longer.

2014 proposals

As noted above, the ill-fated
2014 proposal
to amend the visa code was focussed on economic issues, in particular aiming to
facilitate tourism. A parallel proposal for a “touring visa” would have
provided for an extended stay for those visiting multiple Member States for a
longer period, as part of an orchestra or circus, for instance. (I discussed
the details of both proposals here).
The 2014 proposal also included provisions on facilitating the travel of EU
citizens’ non-EU family members (discussed here),
and, as noted already, it was an opportunity to argue for explicit “safe
passage” rules to be added to the rules (as discussed here).

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. The European Parliament is
taking a more leisurely approach, so has no position yet. (Note that the
Commission has also suggested a revision
of the law governing the related database, the Visa Information System, which
would, among other things, provide for fingerprinting 6-year-old visa
applicants, and extend that system to apply to long-stay visas and residence
permits). 

The Commission’s 2018 communication
on visa policy is a good overview of the purposes of the recent proposal. In
addition to the main focus on security – which takes the form of penalties for
non-EU countries that do not cooperate with the EU on readmission policy – it
contains a limited number of simplifications for legitimate travellers. The
Commission has dropped the proposals to simplify travel for EU citizens’ family
members, and has made more suggestions to simplify the rules on multiple entry
visas as compared to 2018.

The Council’s position

Compared to the Commission’s
proposal, the Council has reserved for itself the power to punish countries
that do not cooperate with the EU on readmission (by raising visa fees,
requiring more documents, and slowing down processing times), following a
diplomatic process in which the EU will threaten these sanctions if no
cooperation is forthcoming. (It’s already EU policy to link treaties
simplifying the issue of visas to readmission treaties, but this policy will
now become unilateral, and take the form of sticks, rather than carrots).

On other issues, it will be
possible for travellers to apply for a visa six months in advance, rather than
three. The Council rejected the Commission’s proposal to let NGOs apply for
visas on behalf of their staff. The visa application fee will rise from €60 to
€80, and from €35 to €40 for 6-12 year olds. The Commission will have the power
to revise the fee every three years. Member States’ option to waive the fee for
diplomats is dropped. The new “punishment” clause will raise the visa
application fee to €120 or €160 for travellers from countries that are judged
not to cooperate on migration.

Multiple entry visas lasting for
one, two or five years will be available, based on prior lawful use of a visa.
The Council dropped the Commission’s proposal to refer to judicial review in
the event of an appeal against refusal of a visa, but this cannot change the
legal obligation to provide for such a review, since the CJEU ruling on this
issue (El-Hassani, noted above) based
this obligation on EU primary law: the EU Charter of Fundamental Rights.  The Commission proposal to issue visas at the
border in order to encourage tourism has been dropped by the Council, and the
current law’s possibilities of having “co-location” and “common application
centres” are dropped, as they have been overtaken by events – the trend of
outsourcing the visa application process to private entities. As a partial
substitute, the revisions will simplify the rules which apply when one Member
State represents another one for visa applications.

Comments

It remains to be seen whether the
European Parliament will go along with these amendments, or whether it will
seek to retain some of the simplification of travel rules which the Commission
initially proposed in 2014, for instance for EU citizens’ family members. (Such
rules, if agreed, will only briefly be helpful for UK citizens’ non-EU family
members, before the end of the post-Brexit transition period).  The Parliament might also try to address the
“safe passage” issue again, and it has traditional concerns about limiting fee
increases for vulnerable groups like children. The visa code amendments might
be linked in practice to the proposals to turn the Visa Information System into
an even bigger Panopticon.

However, some version of the
readmission punishment clauses are likely to go through, as they are part of
the EU arsenal of stricter migration control policies (along with greater
internal and external border checks, an expanded Frontex border control body,
and agreements with countries like Turkey to control and take back asylum
seekers and migrants). Whether they will be effective remains to be seen; there
will presumably still be ‘carrots’ from the EU-Africa funds offered to States
which cooperate with the EU’s increasing attempts at “remote control” of
migration. Whether the new policy will work in practice, or – even if they do work – satisfy those voters who
already remain angry despite hugely reduced migration flows, equally remains to
be seen. 

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: schengenvisainfo.com



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