Schengen visa waivers for UK citizens


Professor Steve Peers, University of Essex*
*Supported by an ESRC Priority Brexit Grant on ‘Brexit and
UK and EU Immigration Policy’.
Yesterday, the European
Parliament (EP) and EU Council finally agreed
on a proposal
to waive visa requirements for UK citizens travelling to the EU after Brexit,
whether the UK leaves the EU with a deal or not. This still needs to go through
the formal steps of approval by the European Parliament and Council, but it’s unlikely
that the law will be rejected at this point. (An EP committee has already voted for it).
The final version of the law,
which will amend the main EU
Regulation
setting out which countries’ nationals do and don’t need a visa
to travel to the Schengen States, is straightforward. It will add the UK to the
so-called ‘white list’ of countries whose nationals don’t need a visa to travel
to the Schengen States, for a period of 90 out of 180 days. It will also put
travel documents issued by the Gibraltar authorities on the whitelist, with a
footnote asserting that Gibraltar is a ‘colony’ of the UK. Any Brexit
supporters upset about this perceived injustice to Gibraltar may wish to
consider that it is only happening in the first place because the UK is pursuing
a policy which the vast majority of Gibraltarians voted against.
The footnote on Gibraltar differs
from the European Parliament’s position
on the proposal. However, during negotiations, the EP agreed with the Council’s
position
on this point, while in return the Council agreed with the EP position
inserting slightly stronger language on the requirement of reciprocity (ie, the
UK is expected, like every other country on the visa whitelist, not to impose a
visa requirement for any EU country. This is unproblematic, as it’s UK
government policy not to impose visas for these States).
The law will apply to all EU countries except Ireland,
which has a common travel area with the UK and opts out of EU visa policy and
related laws. While several other EU countries are not fully part of the Schengen
area yet (Cyprus, Croatia, Romania, and Bulgaria), these countries apply the Schengen
rules on visa lists. The law will also apply to non-EU countries associated
with Schengen (Norway, Iceland, Switzerland and Liechtenstein).
It should be noted that a short-term
visa waiver is for visits only: it does
not constitute free movement of people
between the UK and EU. The EU’s
visa Regulation leaves it up to each Member State to decide on whether to
require a visa for ‘paid activity’, a term which is not further defined in the
legislation or in CJEU case law. The rules of the World Trade Organisation
equally leave it up to each WTO Member whether
to impose a visa requirement
for provision of services. So UK citizens
carrying out paid activity in the EU after Brexit – or vice versa – may face
further hurdles, depending on the national law of the EU Member States on the
one hand and the UK on the other (the EU has not harmonised Member States’
immigration laws on non-EU citizens on this issue).
Also, the visa waiver will not exempt UK citizens from the
full application of other
border control laws
of the EU. This means that in principle UK
citizens will be subject to going through the slower lanes at passport controls,
to the EU’s entry-exit and travel
authorisation
systems when operational, and to UK citizens potentially
being listed for refusal of entry in the Schengen Information System due to
previous criminal convictions, security concerns or breaches of immigration law.
Note that the travel authorisation system is not technically a visa as such:
although it is a form of advance control of entry, the cost, length of validity
and simplicity of application is easier than for a travel visa.
It’s sometimes argued that
applying the ordinary border controls rules to UK citizens is a form of ‘punishment’
by the EU, but this is not remotely a serious argument: unless otherwise agreed, the UK will be treated
the same as any other non-EU country with a visa waiver and without a free
movement arrangement with the EU, which is what the UK government chose to define
the Brexit vote as meaning. It is the obvious corollary of the ‘take back
control of borders’ slogan used by Leave campaigners. The real punishment is suffered
by those who have to listen to the whining of people who are unable to take
responsibility for the obvious and predictable consequences of their own
decisions.    
Note that if the withdrawal
agreement
is ratified, free movement will still apply between the
UK and the EU until the end of 2020, although this transition period might be
extended by a single period of one or two years. In this scenario, the visa
waiver will only really be relevant after that point, when (contrary to some
false claims) free movement of people will end, unless the UK decides that,
contrary to current UK government policy, it is willing to agree to a free movement
system after all. The withdrawal agreement will also protect the status of UK
citizens in the EU living there before the end of the transition period, which
will otherwise primarily be left to national law of the Member States, as
discussed here.
Finally, it should be noted that
like other
EU legislation
on Brexit, this legislation is unilateral. Sometimes the EU agrees visa waiver treaties with
non-EU States (for instance, with several Commonwealth States or Brazil),
and sometimes it doesn’t, but exempts them on its own initiative, subject to an
expectation of reciprocity (for instance, the USA, Canada and Japan). This isn’t
a visa waiver treaty, so it’s not up to the UK to agree. And the UK does not have
a vote on the law while a Member State either, because it opts out of Schengen visa
policies.
Barnard & Peers: chapter 26, chapter 27





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