EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Daniel Thym, Director of the Research Centre Immigration & Asylum Law, University of Konstanz, Germany

The ongoing war of aggression against Ukraine is such a turning point, which requires decisive action and political leadership. Changes of direction and a certain willingness to improvise are virtues in such scenarios, while respect for legal rules will not always be a top priority. Indeed, critics were swift in concluding that ‘there is no legal way under current EU law’ for a visa ban and border closure. It seems as legal rules are brushed aside in the name of superior political motives.

This blogpost will demonstrate that the legal picture is more ambiguous. Neither the border closure, nor the visa ban are based on formal decisions taken at the EU level. That is why it presents a formidable challenge to justify them on the basis of legislation adopted years ago. However, the existing legal framework gives States some flexibility and a hardly visible adjustment by the Commission and the Finnish government was a smart move. All the rest depends on the administrative practices of the Baltic States, Finland, and Poland, which may disrespect the procedural subtleties of EU migration law, nonetheless.

1.    ‘Standing Strong Together’: European Unity and Its Limits

EU integration has proven surprisingly robust in the face of recent crises. The activation of the Temporary Protection Directive was unprecedented. During the pandemic, an external travel ban for third country nationals was a novelty. For more than a year, foreigners from many countries across the globe were not allowed to enter the Schengen area, with the exception of certain categories of ‘legitimate’ travel. For once, ‘fortress Europe’ was embraced as a positive rationale, notwithstanding legal uncertainties.

Memory of the external travel ban may lie behind calls for the closure of the border with Russia. ‘Visiting #Europe is a privilege’ triggered a hectic debate in early August, when Europeans enjoyed their summer holidays. So did many Russian nationals who visited Finland, in particular. Member States agreed on a compromise a few weeks later, which paved the way for a first set of Commission Guidelines on visa restrictions. President von der Leyen could claim, in her State of the Union address, that the EU ‘stands strong together’.

The mass exodus of Russian men trying to evade military service reinvigorated the debate. The Baltic States, Poland, and Finland effectively closed the external border for Russians, albeit subject to some exceptions. At the same time, German politicians, in particular, publicly declared that deserters are welcome—in contrast to the Lithuanian Foreign Minister asking them to ‘stay and fight – against Putin’. The Commission tried to square that circle in the form of Updated Guidelines published on the last day of September.

Tensions between Baltic strictness and the German ‘welcome culture’ are only part of the problem. The Latvian Prime Minister was correct when she stated that visiting Europe is a ‘privilege’, not a human right. Tourists cannot insist on entry. At the same time, the EU’s Charter of Fundamental Rights upholds the right to asylum, and Member States have tied their hands, also with regard to tourism, in the form of legislation adopted years ago.

2.    Legal Basis: Coordination of National Practices

Neither the Visa Code Regulation 810/2009 nor the Schengen Borders Code Regulation2016/399 authorise blanket visa bans or border closures. Rather, they insist that border guards and consular staff shall examine each individual case. Visa applications can be rejected under the conditions laid down in Article 21, whose contents mirrors the entry conditions under Article 6 Schengen Borders Code Regulation. Legal remedies before domestic courts must be made available against visa rejection and refusal of entry, although doing so does not bring about a provisional right to enter Union territory (here, Article 14; and here, Article 32).

Notwithstanding the option of legal remedies, the unprecedented external travel ban during the COVID-19 pandemic has not resulted in prominent court judgments so far. Silence on the part of judges does not entail, however, that States can do as they please. They are bound by the EU rulebook. An amendment to formally authorise the Council to issue a travel ban for reasons of an ‘infectious disease’ is currently being considered (here, Article 21a); it would not cover the war against Ukraine.

In the absence of a legal basis for EU action, the Commission had recourse to soft law, mirroring the model set during the pandemic. The original and updated ‘Guidelines’ are an instrument of informal coordination and gentle tutoring, which domestic authorities are not legally obliged to follow. Both the visa ban and the external border closure emanate from the administrative practices of the Member States on the basis of the Visa Code and the Schengen Borders Code, which the Commission aims at coordinating politically.

3.    Public Policy and Security: Ambivalence of Individual Assessments

Most legal arguments so far have concentrated on the ‘public policy’ and ‘public security’ exception, which authorises States to reject a visa application and to refuse entry (here, Article 32(1)(a)(vi); here, Article 6(2)(d)). Public policy is a crucial yardstick, which settled CJEU case law defines as a ‘genuine and sufficiently serious threat affecting one of the fundamental interests of society’ (here, para 35; here, para 40). Crucially, any invocation of this exception requires an assessment of the individual case.

That may sound clear-cut to anyone who is not familiar with the intricacies of the case law. After all, an entry ban for Russians appears to be the opposite of an individualised assessment. If only the law was so simple. Jonas Bornemann has reminded us that the seemingly uniform ‘public policy’ exception gives way to graded solutions in the judicial practice (further here, pp. 416–18). Judges emphasise that the migration law instruments do not emulate settled case law on Union citizenship. This has tangible consequences, since ‘the concept of “threat to public policy” does not necessarily have to be understood as referring exclusively to individual conduct’ (here, para 31). Instead, judges have highlighted the distinct wording and rationale of the Visa Code and the Schengen Borders Code (here, paras 33–40). They found a ‘potential’, as opposed to a ‘present’, threat to be sufficient (here, para 40; here, paras 156–58). State authorities  benefit from a ‘wide discretion’ (here, paras 60–62).

To be sure, nothing of the above authorises the categorical rejection of all visa applications by Russian nationals or blanket entry bans without exceptions. Significantly, the Commission does not recommend such drastic measures. The Guidelines emphasise the need for an examination of each individual case. In doing so, the personal conduct is one element amongst others, not, however, the only or necessarily decisive factor (also here, paras 47-49; here, paras 60–62). The degree of factual discretion is reinforced by the obligation of domestic courts to confine their scrutiny to ‘manifest errors’ (here, para 46; here, para 49).

Assessing ‘potential’ threats in a highly volatile geopolitical context increases the degree of flexibility. Case law generally recognises that the proportionality test can be abstract when the factual circumstances require so (here, § 148). Blanket bans without  any exceptions are probably illegal, but humanitarian exceptions for some Russians in the Commission Guidelines and policy statements indicate that this is not what Member States are doing, on paper at least. It is a different matter, of course, whether the CJEU would find these procedures and exceptions to be sufficient. All I say is that the case law gives States quite some leeway.

4.    International Relations: Beyond Established Wisdom

Not surprisingly, the initial debate focused on the public policy exception. Doing so mirrored the rhetoric emphasis on security threats and settled case law. Closer inspection demonstrates a subtle change of direction. The Finnish government highlights, in line with the Commission Guidelines (here, No 21; here, Nos 28­–29), that its solution differs from the restrictions imposed by the Baltic States and Poland: it finds a threat to international relations instead of public security. That subtle modification was a smart move. Why?

The ‘international relations’ exception only features the Visa Code Regulation and the Schengen Borders Code Regulation, thus indicating that States shall have an additional ground for refusal compared to other migration law instruments (here, Article 32(1)(a)(vi); here, Article 6(2)(d)). There is no case law, but the degree of flexibility will usually be higher than in relation to public policy and security, especially in a volatile geopolitical context. Judges will control the meaning of the international relations exception, as a uniform concept of Union law, but they can be expected to give States quite some discretion in how they assess the current situation, as highlighted by Advocate General Jacobs in a related case (here, points 48–52) and case law on access to documents (here, paras 63–66). International relations are by definition about complex foreign policy assessments; the forward-looking appraisal of ‘potential’ threats in line with previous comments further amplifies the margin of manoeuvre.

Note that EU legislation covers threats to the international relations of ‘any’ Member State, thus taking into account distinct experiences and outlooks. The specific situation of the long Finnish land border with Russia and the Baltic struggle for independence from Soviet occupation are important factors at the moment (also here, § 212). Alerts entered in the SIS, mentioned in the legislation, are a critical requirement in usual circumstances, since Member States will rarely learn about perceptions of threat elsewhere. However, such an SIS entry is no precondition for invoking the exception.

Article 347 TFEU supports our conclusion about a considerable leeway for Member States when relying on an international relations threat. That outcome is indirectly supported by case law on the parallel guarantee for safeguarding internal security in Article 72 TFEU. Judges have repeatedly rejected an invocation of that provision to justify non-compliance with EU legislation, although that outcome remains possible as a matter of principle (here, paras 68–71). In doing so, the Court regularly emphasises that EU law protects the legitimate interests of the Member States (here, paras 143–53; here, paras 212–24; here, paras 306–09). That line of judgments does not render Articles 72 and 347 TFEU irrelevant but blends the rationale behind these provisions into the interpretation of EU legislation.

5.    Fall-back Position: Intention to Return to Russia

None of the above claims that the CJEU will find the practices of the Baltic States, Poland, and Finland to be legal if they comply with the Commission Guidelines. There are undeniable legal uncertainties, more so with regard to public policy than on grounds of international relations. The Commission is certainly aware of these pitfalls. That may be one reason why it highlights additional entry conditions.

More specifically, the Guidelines emphasise the obligation, on the part of the visa applicant, to provide information enabling an assessment of the intention of return before the expiry of the visa (here, Articles 14(1)(d), 32(1)(a)(iii); here, Article 6(2)(c)). That may sound academic but has tangible repercussions for Russian nationals. Those ‘seeking to avoid mobilisation by fleeing their country’ can be refused a Schengen visa or entry at the border for the simple reason that their stay can be expected to last more than three months (here, No 9).

Judges explicitly recognised that it is sufficient if national authorities have ‘reasonable doubts’ about the intention to return; certainty is not required (here, para 68). Like in the case of the public policy exception, the ensuing examination must consider individual characteristics and the ‘general situation in the applicant’s country of residence’ (ibid, para 69). In the current situation, that judicial position arguably amounts to a rebuttable presumption that young Russian men shall not be granted a visa, unless they provide credible information of the intention to return. We shall come back to the option to apply for asylum at the end.

6.    Administrative Procedure: Decisive Practical Yardstick

Most policy debates and many academic analyses focus on ‘sexy’ topics, such as human rights or the public policy exception, while sidelining seemingly ‘dull’ procedural aspects. That can be negligent, especially in the current situation. The informal character of the Commission Guidelines and the policy statements of the Baltic States, Poland, and Finland entails that administrative practices on the ground will ultimately determine whether the visa ban and border closure are legal or not. What matters is whether each individual visa rejection or refusal of entry complies with the Visa Code and the Schengen Borders Code.

In the current situation, the reasoning behind rejection and refusal will often be similar or even identical. That is not problematic per se provided that individuals have the option to invoke personal circumstances (also here, §§ 239, 251; here, §§ 91, 98). States have flexibility in how they organise the procedure, especially for refusal of entry at border crossing points. The Visa Code concentrates on written documentation and does not require a personal interview (here, Article 21(8)). The Schengen Borders Code remains extremely vague, limiting itself to the obligation to state reasons and, indirectly, to hear the applicant (here, Article 14(2); here, Articles 41(2)(a), 52(1)). Such procedural flexibility marks an important contrast to the high level of protection during asylum procedures (here, para 70).

Crucially, EU institutions established abstract standard forms for giving reasons, which resemble a multiple choice test more than a thoroughly substantiated decision (here, Article 14(2), Annex VI; here, Article 32(2), Annex V). Judges interpret these requirements in light of the Charter, albeit without fundamentally reversing the picture. A former standard form was found to be insufficient, since it did not even distinguish between public policy, public health, and international relations threats (here, paras 45–48). The revised standard form remedied that shortcoming. It also extended the section on ‘additional remarks’ to five lines for additional information on the underlying reasons (here, Annex VI;; here, paras 44–51).

These requirements are not difficult to comply with. The political justification provided by the Finnish government, for instance, needs more space than the section on additional remarks. Along similar lines, the Baltic States and Poland may start relying on the international relations exception when rejecting individual applications, once they realise that doing so may offer them additional leeway. Nevertheless, not all state practices will necessarily be legal.

Finland emphasises that all decisions ‘will be based on an individual overall consideration’, as recommended by the Commission. By contrast, Poland appears to rely on an abstract executive regulation, thus generally excluding certain categories irrespective of personal circumstances. The Latvian situation looks similar, although it is less clear whether the new rules prevent the invocation of individual factors. That might prove to be insufficient, precisely because EU legislation does not authorise blanket bans without exceptions. The line between abstract blanket bans and the option to bring forward personal factors may be fine, but it might prove critical.

None of the above becomes relevant when States postpone taking decisions during the visa procedure. The Commission openly embraces this option when it asks Member States to ‘give lower priority’ to standard applications (here, No 16). Closing consulates or reducing staff will result in de facto delays when individuals do not receive an appointment to file an application. The extended time frame of 45 days does not start running in this scenario. Moreover, state authorities do not face sanctions if they do not comply with the deadline (here, paras 24, 36–39). Sitting out an unpleasant situation is an option for consular staff. It is not possible at border crossing points, however. Refusal of entry must be decided comparatively quickly.

7.    Right to Asylum: the Hidden Backdoor

The public statement by Commissioner Johannson was defined by an inbuilt tension. She emphasised the right to seek international protection, while highlighting, at the same time, that Russians seeking to avoid mobilisation cannot usually claim entry (also here, No 9). That tension may take centre stage at border crossing points, where applications for asylum can be filed in accordance with Article 3 Asylum Procedures Directive 2013/32/EU.

By contrast, the Visa Code does not cover those seeking entry for humanitarian reasons for stays longer than 90 days (here, paras 40–49), although Member States remain free to permit entry under national laws. Germany has done so with regard to roughly 500 persons on a purely voluntary and discretionary basis. Public statements that Russian deserters can apply for asylum in Germany do not have immediate consequences, given that individuals will struggle to reach German territory in the first place where they can apply for asylum.

The situation is different in Finland, the Baltic States, and Poland as a result of their land borders with Russia. Moreover, individuals may sooner or later reach Hungary, Croatia, or Greece via Turkey and Serbia after having escaped to Georgia or Kazakhstan first. Once they present themselves at a border crossing point, they can apply for asylum. If they do so, border guards must allow them on the territory. Their application can be processed in border procedures, but they cannot be refused entry (here, paras 222–24).

Crucially, this obligation applies whenever someone expresses the abstract wish to seek protection with any state authority, including border guards (here, paras 86–93). It is not necessary, to use the word ‘asylum’, nor does it matter whether there is a high likelihood of success for deserters or others (here, paras 58–64). Whether an application has been made in this sense, ultimately depends on the factual situation. Doing so renders all the discussions about border closures moot for the simple reason that asylum seekers must be given access to an asylum procedure.

8.    Conclusion: Geopolitics and the Rule of Law

Both the Visa Code and the Schengen Borders Code do not categorically prohibit visa bans and border closure for Russians. In order to comply with EU migration law, Member States must substantiate why they are confronted with a potential public security or international relations threat. They must also allow individuals to invoke personal circumstances. Those who claim that the proportionality test will always stand in the way of refusal of entry or visa rejection ignore the flexibility of the legal framework and the case law.

This flexibility marks an important difference to asylum legislation and the ongoing debate about pushback allegations at the external borders. The Visa Code and the Schengen Borders Code allow national authorities to integrate geopolitical considerations into the legal framework, instead of seeking to circumvent or bypass existing obligations. Having said this, this blogpost is certainly no apologetic ‘anything goes’. EU legislation erects legal hurdles, which the Commission and the Finnish government, in particular, take seriously. It is a different matter whether the administrative practices across the Union do so as well.

The author warmly thanks the Odysseus members Barbara Mikolajczyk from Poland, Elina Pirjatanniemi from Finland, Juris Perkons from Latvia, Achilles Skordas from Greece, Philippe De Bruycker from Belgium, and Elspeth Guild from the UK for the information they provided about the situation in their Member State  or comments on the legal issues involved.

The material used in this blogpost builds upon several chapters of a forthcoming treatise on ‘European Migration Law’, which is scheduled to be published in the Oxford European Union Law Library series in the foreseeable future.