Professor Steve Peers

In 2014, the European Commission put forward a proposal to update the EU’s visa policy for short-term visits by revising the existing Visa Code. This proposal ultimately stalled due to disagreements between the European Parliament and the Council on whether or not to incorporate “safe passage” visas for individuals requiring protection. Currently, the Commission is revisiting this issue, this time prioritizing security concerns rather than economic benefits.

Background

The regulations governing the issuance of short-term visas are outlined in the Visa Code, established in 2009. The Court of Justice of the European Union (CJEU) has since provided clarity on several crucial aspects of the Code. Firstly, it has determined that meeting the outlined conditions effectively grants one the right to a visa, while acknowledging that Member States retain some flexibility in applying these conditions (as seen in the Koushkaki case). Secondly, the CJEU has ruled that the appeal process must include the option for judicial review (as per the El-Hassani case). Lastly, it has established that the current Code does not encompass “safe passage” visas (as per the X and X case).

The Code specifically addresses “Schengen visas,” which permit travel throughout the entire Schengen Area. Consequently, it applies to all EU nations fully adhering to Schengen regulations (excluding the UK, Ireland, Croatia, Cyprus, Romania, and Bulgaria) as well as non-EU Schengen associates such as Norway, Iceland, Switzerland, and Liechtenstein.

The visa list Regulation separately outlines which non-EU countries require visas for Schengen Area entry (plans for visa waivers for Turkey and Kosovo are currently on hold). The EU generally aims to waive visa stipulations for neighboring countries, contingent on loosely enforced reciprocity. Therefore, UK citizens will likely be exempt from EU visa requirements post-Brexit. However, forthcoming EU legislation establishing a “travel authorization” system (discussed further in a separate analysis) will apply to all non-EU countries with visa waivers but without free movement agreements with the EU. Unless a specific exemption is sought and granted, this law will apply to the UK. Though requiring prior travel authorization like a visa, a travel authorization will be more affordable and remain valid for a longer duration.

2014 proposals

As previously mentioned, the unsuccessful 2014 proposal to modify the Visa Code primarily focused on economic considerations, particularly facilitating tourism. This included a complementary “touring visa” proposal that would have enabled extended stays for individuals visiting multiple Member States over a longer period, such as orchestras or circus troupes. The 2014 proposal also contained provisions to streamline travel for non-EU family members of EU citizens, and it provided an opportunity to advocate for the inclusion of explicit “safe passage” rules within the regulations.

2018 proposal

Due to the impasse in negotiations, the Commission withdrew both 2014 proposals and presented a revised Visa Code proposal in March 2018 (the “touring visa” proposal was not revived). This garnered significant attention from the Council, leading to the adoption of a negotiation position by June 2018. The European Parliament is proceeding at a slower pace and has yet to finalize its stance. It’s worth noting that the Commission has also suggested revising the law governing the related database, the Visa Information System. This revision would involve fingerprinting visa applicants as young as six years old and extend the system’s reach to encompass long-stay visas and residence permits.

The Commission’s 2018 communication on visa policy offers a comprehensive overview of the latest proposal’s objectives. Alongside its primary focus on security, which entails penalties for non-EU countries failing to cooperate with EU readmission policies, the proposal includes minor simplifications for legitimate travelers. The Commission has abandoned proposals to streamline travel for EU citizens’ family members and has instead focused on simplifying multiple-entry visa regulations compared to the 2018 version.

The Council’s position

The Council’s stance deviates from the Commission’s proposal in that it reserves the authority to penalize countries not collaborating with EU readmission policies. This would involve increasing visa fees, imposing additional documentation requirements, and extending processing times. These sanctions would be implemented after diplomatic efforts in which the EU threatens such measures if cooperation is not secured. While linking treaties that simplify visa issuance with readmission treaties is already an established EU policy, this approach shifts towards unilateral action and utilizes penalties rather than incentives.

Furthermore, travelers will be able to submit visa applications six months in advance, extending the current three-month window. The Council dismissed the Commission’s proposal allowing NGOs to apply for visas on behalf of their staff. Visa application fees will rise from €60 to €80, with a corresponding increase from €35 to €40 for applicants aged 6 to 12. The Commission will have the authority to adjust the fee every three years. The option for Member States to waive fees for diplomats will be removed. Notably, a new “punishment” clause will raise visa application fees to €120 or €160 for travelers from countries deemed uncooperative on migration.

Multiple-entry visas with one, two, or five-year validity will be accessible based on a prior history of lawful visa use. The Council rejected the Commission’s proposal to incorporate a judicial review option for visa refusal appeals. However, this cannot supersede the legal obligation to provide such a review, as established by the CJEU’s ruling in the aforementioned El-Hassani case, which bases this obligation on EU primary law, specifically the EU Charter of Fundamental Rights. The Council has also omitted the Commission’s proposal to grant visas at the border as a means of boosting tourism. Provisions for “co-location” and “common application centers” from the existing law have been removed due to being superseded by the current practice of outsourcing visa application processing to private companies. As a partial alternative, the revisions will simplify regulations for instances where one Member State handles visa applications on another’s behalf.

Comments

It remains uncertain whether the European Parliament will endorse these amendments or advocate for retaining some of the travel simplifications initially proposed by the Commission in 2014. These simplifications, if approved, would only temporarily benefit non-EU family members of UK citizens before the conclusion of the post-Brexit transition period. Additionally, the Parliament may revisit the “safe passage” issue and could voice concerns, as is customary, regarding increased fees for vulnerable groups like children. The Visa Code amendments might, in practice, be connected to proposals that could transform the Visa Information System into an even more extensive surveillance system.

However, some form of readmission punishment clauses are likely to be implemented, as they constitute a component of the EU’s more stringent migration control strategy. This strategy encompasses heightened internal and external border controls, an expanded Frontex border agency, and agreements with countries like Turkey to regulate and accept asylum seekers and migrants. The effectiveness of these measures remains to be seen. It’s probable that “carrots” in the form of EU-Africa funds will still be offered to nations cooperating with the EU’s escalating efforts to manage migration remotely. Whether this new policy will prove successful in practice, or if it will appease voters who remain dissatisfied despite significantly reduced migration levels, remains to be determined.

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: schengenvisainfo.com