Steve Peers

EU citizens with family members who are non-EU citizens often face obstacles to free movement, especially when those family members are from Asia, Africa, or the Caribbean. Traveling outside of the Schengen area with these family members often requires obtaining visas, adding complexity to their trips.

The European Commission’s recent proposals on visas, if adopted, could bring some relief. One proposal focuses on revising the existing “Schengen visa” rules, which permit travel across Schengen countries for three months. The second proposes a new “touring visa,” granting travel within the Schengen area for up to a year. Though these proposals are in their early stages, they hold significant implications and merit analysis.

Due to the complexity of these proposals, this discussion will be divided into four parts. This initial post will examine the suggested regulations for non-EU family members of EU citizens. Subsequent posts will delve into the Schengen visa proposal, the touring visa proposal, and the critical, unaddressed issue of protection visas for individuals fleeing danger or persecution.

EU Free Movement and Schengen: A Comparison

It’s crucial to understand the distinction between countries covered by EU free movement law and those under the Schengen Agreement.

Outlined in Directive 2004/38, the “Citizens’ Directive,” EU free movement rules apply to all EU Member States, along with Norway, Iceland, and Liechtenstein, through the European Economic Area (EEA) agreement. While Switzerland also has a free movement agreement with the EU, it doesn’t directly implement the Citizens’ Directive.

The Schengen Agreement, eliminating internal border checks and establishing shared external border control and short-term visa rules, applies to 22 EU Member States, plus Norway, Iceland, Liechtenstein, and Switzerland (“Schengen associates”).

Those Member States not implementing Schengen can be categorized into two groups. Firstly, the UK and Ireland are not part of Schengen except for certain police cooperation aspects. Secondly, Romania, Bulgaria, Cyprus, and Croatia, while obligated to adopt all Schengen regulations, haven’t fully implemented them, particularly the abolition of internal border checks and Schengen visa rules, which await unanimous approval from other Schengen states.

The UK and Ireland have no say in the Commission’s new proposals. However, the four states yet to implement Schengen fully retain voting rights as they will eventually need to adopt these rules. For clarity, this latter group will be referred to as “Romania, et al.” and the six states currently outside Schengen as “non-Schengen states.”

The overlap between these systems significantly impacts non-EU family members of EU citizens. While they have the right to move and reside freely with their EU family within other Member States, short-term visa requirements differ within and outside the Schengen zone. Within Schengen, they don’t require a visa, even without their EU family member, due to regulations allowing travel for those with residence permits or long-stay visas. However, journeys between Schengen and non-Schengen states, or within non-Schengen states, are subject to visa and border controls.

Special regulations, known as the Common Travel Area, govern travel between the UK and Ireland but are outside the scope of this discussion. Similarly, as the Commission’s proposals focus solely on Schengen visas, border control matters won’t be addressed here.

Non-EU family members entering the UK and Ireland fall under national law alongside the Citizens’ Directive. Entering the Schengen area subjects them to both Schengen rules and the Citizens’ Directive. Entering Romania, et al. means adherence to national law, the Citizens’ Directive, and specific Schengen aspects like border controls and visa lists, excluding Schengen visa rules.

Since all Member States adhere to the Citizens’ Directive, it’s essential to understand its provisions. Primarily, non-EU family members generally have the right to enter a Member State with their EU family (Article 5(1)). However, visas might be required (Article 5(2)), determined by national law (UK and Ireland) or the EU visa list (other Member States, including Romania, et al.). For instance, an American spouse of a British citizen doesn’t need a visa to visit the Schengen area because the USA is on the Schengen “whitelist.” Conversely, an Indian spouse of an Irish citizen would require one.

Additionally, Member States must waive visa requirements for non-EU family members possessing a specific “residence card” from another Member State, the interpretation of which is currently under debate in the pending McCarthy case before the CJEU.

The crux of the Commission’s new proposals isn’t the need for a visa but the process involved if one is required. The Citizens’ Directive mandates that these family members be provided “every facility” to secure visas, which should be “free of charge” and issued via an “accelerated procedure.” While the Directive doesn’t elaborate on these terms, the Commission seeks to clarify them in its proposed amendments to the visa code, which we’ll now examine.

The Visa Code Proposal

Significantly, the Commission proposes clarifying the rules by specifying that “family members” of EU citizens covered under the visa code encompass all family members defined in Article 3 of the Citizens’ Directive. This confirms that these rules apply to both “core” family members (spouses, partners, children, and parents) mentioned in Article 3(1) and extended family members outlined in Article 3(2).

This clarifies an ambiguity in the Citizens’ Directive regarding the applicability of visa rules and other provisions to extended family members. Although there’s no absolute obligation to admit extended family members, this doesn’t preclude them from benefiting from the Directive’s provisions, such as employment access, if admitted, similar to core family members. This point would be clarified, at least concerning visas for Schengen entry.

The first substantive rule in the proposal for non-EU family members of EU citizens states they cannot be subjected to transit visa requirements (Article 3(8); all Article numbers reference the proposal, not the current visa code). This provision, however, already exists in the current code.

The second rule is new, addressing consulate appointments. It exempts non-EU family members of EU citizens from prior appointments or allows immediate appointments (Article 8(4)). A simplified document presentation process for these family members is also proposed (Article 13(3)). The proposal reaffirms the Citizens’ Directive by explicitly waiving visa application fees for such individuals (Article 14(3)). Lastly, faster processing deadlines (5 days, maximum 10 days) are set for their applications.

However, not all rules are waived or relaxed. Non-EU family members of EU citizens will still undergo fingerprinting and have their information entered into the EU’s Visa Information System. Although potentially aiding in obtaining multiple-entry visas, the proposal doesn’t automatically grant them (Article 21). A direct provision, contingent upon accompanying an EU citizen, would have simplified travel to other Member States, a cornerstone of free movement.

More concerningly, the proposal doesn’t explicitly exempt these family members from the criteria governing visa issuance (Article 19). This is surprising given the Commission’s own report highlighting Member States misapplying general visa code rules to these family members. While the Citizens’ Directive holds precedence, explicit reference to its rules would ensure proper implementation, as done with visa fee exemptions.

Also absent is a provision for issuing visas at the border (Article 32), contradicting the CJEU’s judgment in the MRAX case.

EU Free Movement Law and ‘Touring Visas’

The separate “touring visa” proposal lacks specific provisions for non-EU family members of EU citizens apart from a general reference to the priority of free movement rules (Article 1). While sufficient, as these family members can visit multiple Member States (Schengen or not) indefinitely by accompanying or joining their EU family member, subject to the Citizens’ Directive’s conditions, explicit clarification would provide legal certainty. Specifically, it would be beneficial to state that these family members are exempt from work permit requirements outlined in the proposal, as Article 23 of the Citizens’ Directive grants them the right to work in any Member State where they are accompanying or joining their family.

General Points

Firstly, the legal basis for including specific rules concerning non-EU family members of EU citizens in these proposals might be contested. The CJEU, in its Metock judgment, declared that Treaty provisions on EU free movement law should govern such matters. However, one could argue that EU competence regarding visas allows for supplementary detailed rules as long as they don’t clash with those established under EU free movement law.

Secondly, incorporating such specific rules within the visa code risks implying that non-Schengen states, not bound by the code, are also exempt from these rules. However, they are undeniably bound by the obligation to waive visa fees and expedite applications for these family members, as stipulated in the Citizens’ Directive.

Barnard & Peers: chapter 26