Steve Peers

Previously, I maintained that British citizens needing visas for short trips to the EU after Brexit was highly unlikely. I even disagreed with some “Remain” supporters who feared this outcome. The EU consistently lifts short-term visa requirements for wealthy nations (like the USA, Canada, and Japan) if they reciprocate for EU citizens. I couldn’t envision those on the “Leave” side supporting short-term visa requirements for EU citizens visiting the UK post-Brexit. Such a move would hurt British tourism and likely trigger reciprocal visa obligations for UK citizens traveling to the EU.

However, Dominic Raab, a prominent figure in the “Leave” campaign, recently suggested that the UK might implement visas for EU citizens after Brexit. He acknowledged that this could lead to retaliatory visa requirements for UK citizens visiting the EU. It’s no longer plausible to dismiss this as mere “scaremongering,” unless we consider it “self-scaremongering” by the “Leave” side.

Let’s be unambiguous: imposing short-term visa requirements after Brexit would be incredibly foolish. It’s not an inevitable consequence of Brexit and would severely harm UK businesses and everyday British citizens wishing to visit the EU, all for minimal security benefits.

Background: EU visa policy

As an EU member, the UK permits short-term entry to EU citizens without visas and allows for the longer-term free movement of people – though this is separate from short-term visas. This arrangement works both ways, making travel simpler for millions of British citizens visiting the EU annually for leisure, family, or business. An existing Council of Europe treaty (a separate entity from the EU) eliminates visa requirements between European states. Still, the UK hasn’t signed it and likely wouldn’t under Raab’s plan.

The EU has agreements on free movement of people with Norway, Iceland, and Switzerland. However, official “Leave” campaign statements suggest the UK wouldn’t pursue these post-Brexit. Nevertheless, short-term visa waivers are a distinct issue. The EU holds reciprocal short-term visa waiver agreements with several non-EU countries and unilaterally waives such requirements for affluent nations who reciprocate. Consequently, for British citizens to retain visa-free short trips to the EU after Brexit, the British government simply needs to maintain a policy of not imposing short-term visa requirements on EU citizens, or establish a UK/EU treaty to that effect. This seemed highly probable - until Raab’s statement.

The EU decides visa policy collectively, so the UK can’t negotiate separate short-term visa agreements with individual EU nations. Ireland, like the UK currently, has an opt-out from EU visa policy. Therefore, the UK and Ireland could preserve their Common Travel Area arrangement – if desired. It’s unclear if Raab also seeks to impose visa requirements for Irish nationals, which could trigger reciprocation. If so, border controls would need reinstatement between Northern Ireland and the Republic of Ireland, a move some in the “Leave” camp have already advocated (though opinions differ within the group).

EU visas: the legal framework

Except for Ireland, the EU has a standardized short-term visa policy issuing “Schengen visas” valid across Schengen states. Legally, we understand the implications of the EU imposing visas on British citizens. The core rules are outlined in the EU visa code, although some EU nations (Romania, Bulgaria, Cyprus, and Croatia) don’t yet fully implement it since they aren’t fully part of Schengen. While the Schengen system currently faces recognized border control issues, these haven’t impacted Schengen visa policy, and there’s no reason to believe they will.

Obtaining a Schengen visa necessitates applying at a consulate, although private service providers often handle applications. Applications are accepted up to three months before travel or six months for multiple-entry visas. Applicants must provide fingerprints (except children under twelve and a few exceptions), documents justifying their travel purpose, secure medical insurance, and pay a €60 fee per person (additional fees apply if using private providers). The fee is €35 for children aged six to twelve and waived for younger children, students and teachers on school trips, researchers, and NGO representatives. Fee waivers may apply in a few other situations but never for tourist or business trips.

Most Schengen visa applications are approved, but they’re reviewed for financial means and intent to return. Unemployed or low-income British citizens might face higher rejection rates. Rejections are recorded in the EU’s Visa Information System for five years, potentially hindering future applications. Visas typically last three months within a six-month timeframe. Still, multiple-entry visas (valid for multiple trips over five years) are possible with proven frequent travel needs. Obtaining visas at the border is generally impossible, so British citizens would need to apply at least several days in advance. Without a visa, they’d be denied boarding planes, trains, or ferries due to the EU law on carrier sanctions.

In 2014, the Commission proposed changes to the EU visa code, such as simplifying multiple-entry visa rules and enabling earlier applications. However, such visas wouldn’t be standard. Recently, the Council and the European Parliament adopted positions on this proposal, likely leading to an agreement later this year. I’ve previously discussed the proposed significant changes, the potential for adding rules on humanitarian visas, and the specific proposals impacting UK citizens’ non-EU family members. However, if the new code ultimately applies to all British citizens, its impact would be considerably greater.

The EU has signed visa facilitation agreements with non-EU nations. These agreements don’t waive visa requirements but lower the application fee and streamline the process. They are, of course, reciprocal - the UK would need to reduce fees and simplify the process for EU citizens seeking short-term UK visas.

Practical consequences: the unbearable madness of visa requirements

Undeniably, visa requirements decrease travel for tourism, business, and other reasons. A report prepared for the Commission before the revised visa code proposal offers detailed economic impact estimations. Consider the individual level: without a visa facilitation agreement, a British family of four (with two teenagers) would pay an extra €240 in visa application fees for an EU holiday, often with added service provider fees. Even with a visa facilitation agreement like the one with Ukraine, the family would pay €70 (€35 per adult, under-18s exempt), potentially plus service fees.

Raab justifies these measures on security grounds. But is it justified? The majority of terrorist (or other) offenses in the UK are perpetrated by British citizens. However, some foreign visitors do engage in criminal activity. So how do we effectively screen them out? Imposing a visa requirement doesn’t inherently enhance our ability to identify potential threats. It merely shifts the decision point in time (before arrival) and location (from the border to a consulate, though individuals would still undergo border checks to confirm visa validity). Examining available data offers the most effective way to identify if someone poses a threat.

This information is readily accessible if the applicant has a prior UK criminal record, which should ideally be accompanied by an entry ban. However, such entry ban information should be accessible not only to consulates processing visa applications but also to border officials making entry decisions. Thus, the visa requirement adds no value. Nor does it offer any benefit concerning EU citizens. The EU Citizens’ Directive permits the UK to impose entry bans on EU citizens convicted of serious crimes, and the UK can and does deny entry to EU citizens at the border.

What if the applicant has a criminal history in another country? Whether individuals require visas or undergo border checks, there’s no universal access to other countries’ criminal records. However, the UK, as an EU member, has access to some relevant data. Last year, it gained access to the Schengen Information System, which includes information on wanted individuals, including some suspected terrorists. The EU’s criminal records information exchange system (ECRIS) was established in 2012, and the EU Commission recently reported that it significantly improved information sharing in this area. The ECRIS law facilitates criminal record exchange for a country’s citizens (giving us more information on UK citizens committing crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t guarantee perfect security. For instance, not all terrorist suspects’ names are in the Schengen Information System. The passenger name records law might face human rights challenges since it collects data on all passengers, not just suspects. The criminal records law couldn’t prevent a tragic killing two years ago because British police didn’t inquire about the killer’s criminal record from another Member State (under a separate EU law) when they had the chance. I previously suggested that automatically circulating criminal records of EU citizens convicted of very serious crimes who have been released from prison would be beneficial. This would allow for their apprehension and justified refusal of entry at the border. The upcoming Schengen Information System amendments present an opportunity to implement this.

But how would Brexit, with or without visa requirements, improve this situation? It wouldn’t grant the UK greater access to EU databases or member states’ criminal records systems; it might even reduce access. The EU hasn’t extended ECRIS to any non-EU countries. The Schengen Information System is only accessible to those fully participating in Schengen (like Norway and Switzerland). While the EU has passenger name data exchange treaties with some non-EU nations, this policy is facing challenges in the EU court due to data protection concerns.

More broadly, the EU court, in the Schrems case, ruled that personal data can only be transferred to non-EU nations with data protection laws “essentially equivalent” to EU law. The UK would need to commit to maintaining a law closely mirroring EU law or risk disrupting personal data flow, impacting digital industries and law enforcement data exchange. This isn’t easily negotiable since the case law rests on the EU Charter of Fundamental Rights, which holds the same legal weight as treaties. The UK’s adherence to EU rules would likely be challenged in practice, similar to the Davis and Watson case currently before the EU court. Outside the EU, a ruling against the UK’s compliance could disrupt the flow of personal data.

One last point: the UK currently allows nationals from over fifty non-EU countries to visit short-term without visas. Clearly, we’ve found a way to balance potential security risks with the UK economy’s needs. Why should this be any different for EU countries post-Brexit? The existence of this policy already creates a loophole: EU citizens holding dual nationality with one of those non-EU states (or Ireland) could still visit the UK visa-free. Is the goal to require visas for everyone?

Of course, this loophole could work both ways. As a dual UK and Canadian citizen, I could visit the EU visa-free using my Canadian passport. Any British citizen with citizenship from an EU member state or a country on the EU’s visa whitelist could do the same. However, many others (including my family) couldn’t. This highlights the absurdity of the situation: a British citizen considering a Canadian passport to visit the EU. Is this the open, liberal, global UK post-Brexit that the “Leave” side wants people to support?

Barnard & Peers: chapter 13, chapter 26

JHA4: chapter I:4

Photo credit: welcome2britain.com