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By Elspeth Guild, Jean Monnet Professor ad personam, Radboud University Nijmegen and Queen Mary University of London

Read another post on our blog about this issue “Of Carrots and Sticks: A Punitive Shift in the Reform of the Visa Code” by Niovi Vavoula.

 

The EU legislature has agreed about a substantial reform of the Visa Code which still needs to be adopted officially. It will tie the cost, processing time of visas and availability of multiple entry visas to the success rate of Member States’ return efforts to the relevant country. The idea, proposed by the Commission and accepted both by the Council and the Parliament, is that nationals of countries on the EU’s visa black list, should be punished for the inability of EU Member States to return people (both nationals of the state and where permitted non-nationals who travelled through) to their state.

This collective punishment would take the form of a doubling of the cost of a visa (from the proposed € 80 to € 120 or even € 160) or exclusion from:

(a) simplified visa application procedures,

(b) waivers for holders of diplomatic and service passports,

(c) the 15 day visa processing time and

(d) access to multiple entry visas. Further, the penalties would not necessarily apply to all nationals of the ‘offending’ country but possibly only to some categories (unspecified) of them.

This principle could constitute discrimination on the basis of nationality within the class of States which are on the EU’s visa black list and discrimination on the basis of economic, social and/or educational status in the delivery and cost of EU visas for nationals of the same state. While the international community is becoming increasingly intolerant of discrimination on the basis of nationality in immigration procedures (see for instance No 2018/36 Qatar v UAE ICJ Provisional Measures decision of 23 July 2018 where the ICJ gave provisional relief to Qatar regarding the threatened collective expulsion of its nationals from UAE in reliance on the Convention on the Elimination of All Forms of Racial Discrimination), the EU appears to be embracing it in a particularly arbitrary form. The vast majority of the people the proposal would punish have no control over or influence on the rates of expulsion of their fellow countrymen and women from EU states, yet would be the objects of this discrimination.

The original proposal of the Commission issued in 14 March 2018 (COM(2018)252) was accompanied by an impact assessment explaining the merits of linking visa issuance with return (SWD(2018)77). Highlighting the ‘unprecedented’ levels of refugees and irregular migration into the EU, it tied the policy context to threats to internal security and terror attacks, a flimsy linkage if there even was one (see: SWD(2018)77, p. 8). Relying on the flagging of visa policy as a possible element to ‘improve’ return policies set out in the 2015 Action Plan on Return (COM(2015)453) which was then picked up loosely the following year in the Partnership Framework Communication (COM(2016)385), the proposal introduces a fully blown linking option where visa policy and return rates are tied together. This rather absurd proposal has now made it to the last stages of the legislature apparently with no serious consideration of the legality let alone the effectiveness of such a proposal.

The proposal’s Staff Working Document refers to the European Travel Information and Authorisation System (ETIAS) the EU’s equivalent of the US ESTA system of pre-travel check on travelers which was adopted on 12 September 2018. The ETIAS system of prior authorisation for visa exempt travelers is completely electronic but the objective is broadly similar as that for visas – to screen foreign nationals seeking to enter the EU before they arrive. It would have been most helpful if the proposal could have clarified why there is a need for two systems – visas and ETIAS authorizations. It might well be asked why a single system applicable to all third-country nationals would not be preferable to avoid differential costs and discrimination on the basis of (third-country) nationality in the authorization system. In the Staff Working Document much attention is devoted to the cost of the visa system and the justification of the general increase of visa fees from € 60 to € 80 for visa nationals on the basis of the cost of administering the system (minors under six go free but six to twelve year olds pay a € 40 visa fee). In case of sanction against one country the visa fee can raised up to €160.

But the visa fee is not the only unavoidable cost in obtaining a Schengen visa. Within the system there is an increasing important place for external service providers (private companies which carry out an increasingly important part of the visa process). Under the proposal Member States can make it mandatory to cooperate with these external service providers. The proposal increases their fees allowing then them to charge for their services up to € 80 or exceptionally € 120 on top of the visa fee. So at its most expensive a Schengen visa can cost an individual € 280 under this proposal. An ETIAS authorization will cost € 7 and be free for minors under 18 years old (see here). The discrimination on the basis of nationality among third country-nationals in fees payable for the pleasure of visiting the EU is obvious and growing. It also falls disproportionately on nationals of countries with lower GDP and average incomes. A quick look at the EU’s visa black list shows that it includes very few high GDP countries so their nationals will only pay the € 7 for an ETIAS authorization. Nationals of lower GDP countries which are mainly on the EU visa black list will have to pay between € 80 and € 160 for the visa plus the external service provider fees an additional amount between € 80 and € 120 (to a possible total between  € 160 and 280 € per person).

The Visa Code, through the provisions on external service providers and their fees, has created the conditions for a cottage industry to develop around EU consulates consisting of companies which provide these services. It has also encouraged many consulates to rely ever more heavily on their services in processing visa applications. Allowing these companies to charge even more for their services will only entrench the economic interests of these companies in ensuring the continuation of the visa system.

The proposal sets out the criteria on the basis of which the Commission is to assess cooperation of third countries with regard to readmission for the purpose of punishing their nationals through visa procedures. These are:

  • The number of return decisions issued to persons irregularly staying on the territory of a Member State from the third country;
  • The number of actual forced returns of such persons (including other persons on the basis of bilateral agreements);
  • The number of readmission requests per Member State accepted by a third country as a percentage of the number of such applications submitted;
  • The level of practical cooperation in the area of return cooperation in the different stages of the return procedure such as:
    • Assistance provided in identification;
    • Acceptance of EU travel documents or laissez-passer;
    • Acceptance of readmission of persons who should be legally returned to their country;
    • Acceptance of return flights and operations.

These are the criteria on the basis of which the most egregious discrimination in the proposal (the possibility to increase the visa fee and service provider fee and otherwise punish nationals of countries to which EU Member States are having difficulties returning people) in the visa process is made possible. The justification contained in the Staff Working Document is far from satisfactory. It states that “in the case of 80 third countries the return rate (share of persons return to their country out of those ordered to leave the EU territory) fall below the EU average of 46.4%.” (para 2.2.3). Having regard to the Frontex Annual Risk Analysis 2019, the top three nationalities of persons against whom Member States took return decisions in 2018 were Ukraine, Morocco and Afghanistan. Iraq and Syria are in the top ten. Syria, Iraq and Afghanistan are among the top countries of origin of asylum seekers in the EU and have high recognition rates. The issue of return decisions against nationals of countries which are ravaged by civil war or otherwise highly unstable is a dubious practice. That these decisions are difficult if not impossible to execute comes as no surprise. It should not be used as an excuse to enmesh discrimination in the visa process.

Further, the Commission relies on the number of return decisions issued by Member States before the number of forced returns. In almost all Member States return decisions are challenged which may result in positive decisions in favour of the individual. In 2018,  around 50% of individuals issued with a return decision choose to leave. Thus the relevant figure is that of forced returns – which according to Frontex numbered a total of 75,241 in 2018. This is hardly a figure on the basis of which to adopt punitive legislation. In any event, the top five nationalities of people subjected to forced return from the EU, according to Frontex, were Albanian, Moroccan, Algerian, Tunisian and Ukrainian (in that order).  Two of these nationalities – Albanian and Ukrainian – are not subject to visa obligation so the policy would be irrelevant to them. The next five top nationalities of expulsion were Serbian, Georgian, Brazilian, Kosovar, and Russian. Of these, only Russians are visa nationals so once again the policy is irrelevant.

The argument can be made that other countries might be among the top ten if their states provided more cooperation to EU Member States in return. But this is not explained or justified. Indeed, the European Parliament’s own impact assessment study on the proposals for amendment to the Return Directive shows that alternatives to coercion are likely to be more efficient both in the short and long term. Good law making requires a direct relationship between the measure adopted and the objective to be achieved. Here there is only the weakest of links and no evidence that the measures proposed would have any effect in achieving the objective. This is a prime example of incoherent policy making.

A lack of practical cooperation of state authorities as a criteria for punishment of their citizens by the EU is hard to justify. There is little if anything an individual citizen can do to encourage his or her state to cooperate with the EU in return practices. Such an approach to international relations is likely to exacerbate already tense relations between the EU and many third countries around the issue of migration. The contention of the Commission in its Staff Working Document that “visa policy can play an important role to obtain better leverage vis-à-vis third countries on readmission of irregular migrants” (para 5.2.3) is unsupported by any evidence at all.

Targeting the citizens of third countries through collective punishment in the visa process for their state’s degree of cooperation with EU Member States in return is likely to be highly counter-productive in terms of the EU’s international relations with third countries. Such a policy, based on the principle of discrimination on the basis of nationality among third country nationals, is of dubious legality in international law. A policy founded on the collective punishment of people for actions beyond their control raises profound questions about the quality of the shared values of the EU.