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. Since this law was previously agreed
with the EU Council, it is likely to be finally adopted by the Council in the
near future. 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).  
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). 
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.
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.
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.
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



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