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by Niovi Vavoula, Lecturer at Queen Mary, University of London

On 14 March 2018, the Commission adopted a proposal on the reform of the Visa Code and just three months later, on 22 June 2018, the Council reached its general approach. This contribution aims at providing a concise analysis of the proposed rules whilst taking stock of the current state of play, with emphasis on the legal implications of the intertwining between visa and return policies.

  1. Background

The Visa Code sets out harmonised procedures and conditions for processing Schengen visa applications and in particular issuing visas to nationals originating from ‘blacklisted’ countries. The Code has been amended on numerous occasions. Nevertheless, a comprehensive reform of its rules remains elusive.

Following an evaluation of the Visa Code, in 2014, the Commission attempted to amend the rules in order to enhance facilitations and contribute to tourism, trade, and employment. Interestingly, when in 2001 the first ‘blacklist’ was drafted, such economic interests were not included among the criteria for ‘blacklisting’, which at that time involved risk of irregular immigration, risk of criminality and external relations. Progressively, the promotion of tourism and foreign trade were added to the equation, calling for a more liberal approach. It is in this context of balancing between the openness of the EU, security concerns and the maintenance of foreign relations that the proposal was tabled.

However, the influx of refugees in 2015 coupled with security threats resulted in a stalemate, whereby on the one hand, the Council favoured the establishment of a link between third-countries’ cooperation on readmission and rules on visa facilitation (Council Doc. 8435/16), and on the other hand, the Parliament suggested the establishment of a European humanitarian visa. The latter issue remains particularly thorny marking its own path with the Parliament currently drafting a legislative own-initiative report under Rule 45 of the Rules of Procedure to call upon the Commission to present a separate legislative act on humanitarian visas. However, as regards the former issue, the Commission decided to formally withdraw the 2014 proposal in its Work Programme for 2018 and come up with a revised one in order to take stock of the negotiations whilst reflecting the Council considerations. In June 2017, the European Council called for ‘reassessing visa policy towards third countries, as needed’ and in that respect, in the Commission Communication on the Delivery of the European Agenda on Migration, it was advanced that ‘[some visa-issuing rules (for instance those related to visas with a long period of validity and visa fees) should be reviewed to ensure that they can play a part in our readmission policy’. The dice was cast and the aforementioned delicate balance had to be re-stricken in favour of a restrictive approach.

  1. The envisaged rules

The proposal reforms the Visa Code in three main respects: a) through an increase of the visa fee from 60 to 80 Euros; b) by including rules on issuing multiple-entry visas (MEVs) with a long period of validity; and c) by solidifying a legal link between the visa policy and readmission of irregular migrants. The (lack of) inclusion of rules on judicial review of refusals of visa applications also merits some attention. In addition, new derogating rules on the voluntary setting up of temporary schemes for issuing visas at the external borders faced strong resistance by Member States and were soon removed (in Council Documents 7812/18, 8800/18 and Greece favouring input in 8211/18, not publicly available).

a) Increase in the visa fees

This is the first time that the visa fee will be increased in order to address the problem of financial resources in administering visas. In comparison to the fees imposed by other countries, this rise will still place the EU tariff among the most moderate ones worldwide. A mechanism is also introduced to assess the need to revise the fee every two years (changed to three years by the Council) taking into account ‘objective’ criteria, such as the EU inflation rate.

b) Multiple-entry visas (MEVs)

Another change involves the introduction of rules on issuing MEVs with a long period of validity, which will benefit frequent travelers, especially business people, family members or affluent tourists. The current rules are unclear as regards the grounds for their issuance, the personal scope and the length of validity, thus leading to wide divergence in national practices. Article 24 of the Visa Code will be revised so that their issuance will take place on the basis of objective common criteria, namely, the past lawful use of visas (single or multiple-entry) without being limited to specific travel purposes or categories of applicants. A ‘one-size-fits-all’ approach is introduced, whereby applicants who have lawfully used their previous visas within a certain time span may receive a MEVs with a progressively longer validity period. However, no harmonisation will be achieved, since the rules remain flexible with consulates being allowed to decide their more favourable or more restrictive application, depending upon a series of considerations and local circumstances, such as the existence of trade agreements covering the mobility of business persons (Recital 10).

c) Linking the Visa Code to the readmission of irregular migrants: The expansion of the ‘stick and carrot’ approach

The heart of the proposal lies in formalising the legal link between the visa policy and the return and readmission of irregular migrants to third countries with visa policy effectively repackaged as a leverage tool to extort cooperation with third countries. In practice, after the failure of the negotiations on the 2014 proposal, in June 2017, Coreper led the coordination of a mechanism that would be applied on an ad hoc basis under the so-called ‘toolbox approach’. So far, the latter has been applied only once, in the case of Bangladesh, but it has been submitted that the mere launch of the process proved exceptionally effective in speeding up the negotiations of a return arrangement (Council Document 9484/18).

This arguably non-transparent and loosely described scheme is expanded and formalised in the form of ‘negative incentives’ for third countries. In particular, in cases where cooperation with third countries is not ‘sufficient’, a series of provisions of the Visa Code will be rendered inapplicable in relation either to all nationals of the third country concerned or to certain categories thereof. Markers for assessing the degree of cooperation will be the numbers of return decisions, actual returns and readmission requests accepted by the third country. The Commission would adopt an implementing act, which would penalise those countries either by doubling the visa fee or by suspending certain mobility-friendly rules, namely the waiver of the visa requirements for individuals known for their integrity and reliability, the visa fee waiver in connection to diplomatic and service passports and the forthcoming provisions streamlining the rules on issuing MEVs. A single Member State may also inform the Commission of substantial and persistent practical problems in the cooperation with a third country.

The aforementioned rules have been modified by the Council, as follows (Council Document 9939/1/18, not publicly available):

  1. The Council has reserved for itself the role of adopting the implementing act that will determine the penalties imposed to non-cooperative third countries due to the ‘particularly sensitive nature of such measures’;
  2. It favors a more gradual and flexible approach, whereby the Commission will take steps to improve the level of cooperation of the third country concerned;
  3. This flexible approach is reflected also in the increase of the visa fees which may be either 120 or 160 Euros;
  4. Further indicators for measuring the degree of cooperation have been added: the assistance provided in the identification of irregular migrants and the timely issuance of travel documents; the acceptance of EU travel document or laisser-passer; the acceptance of charter flights and the acceptance of joint return operations.

The intertwining of visa and return policies is by no means a groundbreaking idea; by now, the ‘stick and carrot’ practice of the EU to negotiate visa facilitation agreements with third neighbouring countries in exchange for readmission agreements (e.g. agreements with Russia, Ukraine, Georgia, Armenia, Belarus etc.) is well established. However, the present case differs in that the proposal introduces negative incentives rather than positive ones and a shift towards a punitive and preventive visa policy is noticeable. Maintaining the standard rule will become a reward for cooperating countries offering tangible results and third countries will bear the burden of constantly being monitored as regards their performance. Furthermore, the rules on disobeying third States will be already laid down in law, aimed at preempting and anticipating problems in the cooperation between EU Member States and third States as regards readmission of irregular migrants. Therefore, rather than opting for a targeted approach towards non-cooperative third States on a case-by-case basis, the mere existence of these rules in the Visa Code is expected to have a preventive and deterrent effect, by mobilising third States either to become more active – if their cooperation is deemed insufficient- or, conversely, not to rest on their laurels.

This burden may be further passed over to the nationals of these countries, which will be effectively penalised by having to undergo additional layers of complications, bureaucracies, and hustles, attributed to the practices of their country of origin. Doubling the visa fee may have repercussions as regards the number of visa applicants, as it may be the case that only applicants affluent enough may bear the extra costs of a visa application. Hence, this penalisation may also be seen as a way of separating the wheat (in principle bona fide visa applicants) from the chaff as these sanctions may be implemented to specific categories (e.g. government officials) or to the entire population. However, the flexibility embedded in the rules does not give sufficient legal certainty as to when it may be expected that the entire population of a third country will be targeted and for how long. Emphasis is on prevention, with a series of rules hanging like the sword of Damocles over third countries and their nationals, waiting to be triggered when a third country slips on a banana skin.

The linkage between visa and return policy adds yet another layer into the intricate relations of the EU with third countries, whereby the latter are increasingly put under pressure to take responsibility for mobility originating from their territory. The Visa Code will acquire a new purpose, which was not originally foreseen. Visas were originally conceptualised as foreign relations tools, however, readmission was never part of the equation. The proposal is a testament to the growing understanding of mobility also as an external relations issue and a ‘mutated’ return to the foreign relations roots of visa policy. Lack of sufficient cooperation is hereby understood as a source of worsening foreign relations, with a spillover effect in the visa policy. In this context, all third countries will be constantly monitored and measured against a series of pointers, which is a necessary and welcomed reference in the text. However, it must be noted that the list is not exhaustive, as evidenced by the use of the words ‘in particular’. In addition, there exists the danger that third countries will be overburdened with having to tick a series of boxes under the fear of sanctions against its nationals. A de facto division will thus be created between the ‘good’ and obedient ‘blacklisted’ countries and the ‘bad’ ones. In effect, different classes of visa applicants may also emerge as a result of this approach.

This policy entails a significant risk of losing sight of the reality of the EU return policy, the lack of effectiveness of which is not always to be impinged upon third countries, but may be attributed to a lack of cooperation by irregular migrants or Member States’ own legal or administrative obstacles to return. Furthermore, it may even grow the appetite to the Member States to shift the blame to third countries and disregard their own administrative obstacles merely to delimit the mobility-friendly rules of the Visa Code and increase the much-needed revenues for visa authorities. Another important issue is that the imposition of differentiated rules on MEVs must respect family life at all times. At the same time, a first-class opportunity lies ahead; given that the Commission will have to inquire at least once a year on the cooperation of third countries, monitoring of the situation will shed further light into the readmission process and will increase our understanding and dispel possible misconceptions as regards the reasons behind their problematic effectiveness. Nevertheless, since information on readmission agreements remains scarce, it is also uncertain whether the Commission will be able to deliver in that respect (see Impact Assessment, p. 31).

d) Right to appeal against decisions on visa refusals

The proposal presents an excellent opportunity to incorporate the CJEU judgment in El Hassani on the importance of the right to appeal against refusal of visa applications. In that respect, Recital 12 of the proposal added an almost verbatim reference to the Court’s pronouncements by stating that applicants should have the right to appeal ‘which should, a certain stage of the proceedings, guarantee an effective judicial appeal’. In El Hassani, the Court called for a guarantee of a judicial appeal (para. 42), which would include ‘all the relevant issues’ (para 39). This reference have been removed, with the Member States fearing that a liberal interpretation would open up the Pandora’s Box as regards the depth of the judicial review, which may go beyond the examination of procedural issues to the extent of a full judicial review (Council Documents 8244/18, 8664/18 and 9576/18, not publicly available). The Council has retained the text from 2009 unchanged and any attempt to strengthen and refine the rights of visa applicants through legislation has so far fallen apart.

This also leaves unresolved the problem of determining the Member States for hearing an appeal in cases of representation agreements. In Council Document 8800/18 (p. 22, not publicly available), an explicit reference that the represented Member State would hear such appeals was written off. That would have been a welcomed addition since many cases involve people with close friends and family in the Member State they wish to visit and may be discouraged to have to appeal in another language.

  1. Final remarks

Overall, the proposal marks a punitive turn in the role of visas and introduces a two-tiered divide between bona fide and mala fide third countries. The delicate and mild blackmailing of third countries to force their cooperation on return and readmission involves important disincentives, which may result in disproportionate obstacles in the principally legitimate movement of visa applicants. Furthermore, whereas the increase in the visa fee on its own seems reasonable, placed within the broader context of the proposal, one cannot but question the timing of such increase, which could have been presented years ago. The proposal leaves room for improvement during the negotiations, particularly on reintroducing higher safeguards on the right to appeal and making the negative incentives clearer, perhaps also combined with positive ones, as advocated by France and Germany (Council Document 8526/18, not publicly available). Even so, given that the Visa Code was not originally designed to serve such purpose, the extent to which visa leverage will translate into more efficient cooperation with third countries remains to be seen.