Steve Peers

The significant loss of life near Lampedusa last autumn, when numerous migrants drowned attempting to cross the Mediterranean, represents one of the most recent and tragic outcomes of irregular migration across this sea. This event should have prompted a thorough reevaluation of EU policies concerning border control and visas but did not. This inaction is likely due to concerns that far-right parties would exploit heightened public anxiety around migration.

Undoubtedly, irregular migration encompasses individuals with legitimate protection needs and those without. The former have a right to enter and remain in Member States, while the latter, in principle, do not. However, this doesn’t mean that those without immediate protection needs should be left in danger.

Addressing this complex situation is challenging, but shifting towards increased external processing of asylum seekers could be a positive step. This approach could provide safer passage to the EU for those with genuine protection needs, eliminating the perilous journey across the Mediterranean and exploitation by smugglers.

Over the past decade, external processing of asylum applications has been negatively associated with proposals made by Tony Blair, reminiscent of Australia’s “Pacific Solution.” His ideas, seemingly hastily conceived, envisioned external processing as the sole route for asylum seekers to reach the EU.

These proposals not only conflicted with human rights obligations but also relied on cooperation from third countries that was either unlikely or ethically questionable, potentially involving agreements with regimes like Gaddafi’s Libya or Putin’s Russia. If Putin could currently send thousands of refugees to the EU, the Union’s response to his actions in Crimea and Ukraine might be even less forceful, if imaginable.

A new approach

The EU has repeatedly rejected Blair’s proposals. However, the concept of collaborative external processing holds merit if based on fundamentally different principles. This process should not disadvantage applications made at borders or within Member States and must guarantee the safe entry and stay of individuals with protection needs, either within the EU or in third countries offering comparable protection. Additionally, it shouldn’t hinder resettlement efforts for groups with evident protection needs, like Syrian refugees.

While the EU needs time to develop a joint processing system, such as determining the allocation of individuals granted protection among Member States, a timely opportunity exists to establish rules for individual nations to conduct external processing of asylum applications. This can be achieved through proposed changes to the Schengen visa code.

This is the second of four posts on this blog examining these proposed changes. The first post addressed the impact on family members of EU citizens who are third-country nationals, while subsequent posts will focus on short-term Schengen visas and the new “touring visa” proposal.

The proposed visa code amendments retain the option for Member States to issue short-term visas with “limited territorial validity” (LTV), meaning the visa applies only to the issuing Schengen state, not all. Still, entry into even one Member State is preferable to facing risks outside the EU. When the visa expires, individuals can receive long-term residency. The EU’s Qualification Directive mandates residency permits for recognized refugees or beneficiaries of subsidiary protection, and the EU Directive on asylum procedures generally prevents deportations before asylum applications are processed.

The new proposal maintains current LTV visa rules (Article 22 in the proposal, compared to Article 25 in the existing code). However, the European Parliament and the Council could advocate for modifications.

The current and proposed visa code states that an LTV visa “shall be issued…when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations.” Notably, LTV visas can be issued even when usual visa requirements aren’t met, like lacking proof of intent to return to the home country. This makes sense for individuals with genuine protection needs, as reluctance to return home is understandable and integral to refugee or subsidiary protection status.

The Court of Justice of the European Union (CJEU) recently ruled in the Koushkaki judgment that standard Schengen visas must generally be issued when applicants meet the criteria, although Member States have discretion in assessing this. This principle seemingly applies to LTV visas due to the word “shall,” though it’s qualified by “considers it necessary.”

In cases involving potential international protection needs, the EU Charter of Fundamental Rights arguably mandates that when a Schengen Member State receives a visa application, any alleged protection need must be considered, and an LTV visa issued if it exists. Issuing an LTV visa while processing a protection application also fulfills the Member State’s Charter obligations. EU law, including the Charter, undeniably applies when third-country nationals apply for visas from Schengen Member States.

The EU’s Qualification Directive would apply when considering the application, as its geographic scope isn’t limited. However, EU asylum procedures and reception conditions only apply to applications at borders or within Member States. Still, since the EU Charter applies to visa applications from third-country territories, basic standards aligned with the Charter should apply to procedures and reception conditions. Determining the responsible Member State is unnecessary, as the EU’s Dublin rules have the same geographical limitations.

If this interpretation is accurate, the existing and proposed visa codes already implicitly cover individuals seeking international protection. However, including explicit rules would be beneficial. Detailed provisions aren’t necessary, as these national forms of external processing don’t require extensive harmonization. Stating that an LTV visa “shall be issued…when it is necessary in order to ensure the international protection of the person concerned in accordance with Directive 2011/95 [the Qualification Directive], or when the Member State concerned considers it necessary…” would suffice.

This small but significant step could help reduce the tragic deaths of migrants risking their lives crossing the Mediterranean to seek a better future in the European Union.

Barnard & Peers: chapter 26