Simplifying Applications For Schengen Visas For Third-Country National Draw Of Piece Of Employment Solid Unit Of Measurement Members Of Eu Citizens: Create The Novel Proposals Popular Off Inwards Enough?

Steve Peers

For many European Union citizens whose identify unit of measurement members are third-country nationals, especially if those identify unit of measurement members are citizens of an Asian, African or Caribbean Area country, costless displace isn’t equally costless equally it is for others. Unless they are travelling betwixt Schengen countries (as explained below), those European Union citizens who want to see to a greater extent than or less other Member State amongst their third-country national identify unit of measurement members may receive got to obtain a visa for their identify unit of measurement members first, which tin terminate complicate their move significantly.

This province of affairs would endure ameliorated somewhat, if the two proposals regarding visas issued today past times the Commission are adopted. One of these proposals would amend the existing rules relating to ‘Schengen visas’, which let for move to all Schengen states for a menses of 3 months (ie the EU’s ‘visa code’). The mo proposal would create a novel ‘touring visa’ for move for upward to ane twelvemonth to Schengen countries. While the proposals receive got of course of teaching non yet been adopted, as well as may endure amended (or non adopted at all) equally they larn through the EU’s legislative process, they are meaning plenty to merit to a greater extent than or less analysis at this early on stage.

In fact, these proposals are complex as well as of import plenty to merit 4 divide posts. This showtime postal service examines the proposed novel rules for third-country national identify unit of measurement members of European Union citizens. The other 3 volition examine: the visa code proposal; the touring visa proposal; as well as the of import number which isn’t addressed inward these proposals: a protection visa for those fleeing persecution or serious harm.

EU costless displace as well as Schengen compared

First of all, it’s necessary to reiterate which countries are covered past times European Union costless displace law, on the ane hand, as well as Schengen on the other.

The costless displace rules, equally start out inward Directive 2004/38 (the ‘citizens’ Directive’) apply to all Member States, inward the context of the citizenship of the EU. They likewise apply to Norway, Republic of Iceland as well as Liechtenstein, since the citizens’ Directive was extended to those countries pursuant to the treaty establishing a European Economic Area (EEA). The European Union likewise has an understanding on costless displace of persons amongst Switzerland, but that treaty does non apply the citizens’ Directive equally such to Switzerland.

The Schengen rules, which abolish internal border checks betwixt the signatories as well as innovate mutual rules on external border command as well as short-term visas, currently apply to 22 Member States, along amongst Norway, Iceland, Principality of Liechtenstein as well as Switzerland (the ‘Schengen associates’).

The Member States non applying the Schengen rules autumn into ii categories. On the ane hand, the Great Britain as well as Republic of Ireland create non apply Schengen at all (except for a number of flanking rules relating to constabulary cooperation). On the other hand, Romania, Bulgaria, Republic of Cyprus as well as Republic of Croatia are obliged to apply all Schengen rules inward principle, as well as create apply to a greater extent than or less of them (such equally the external border rules as well as the mutual listing of States whose nationals create or don’t need a visa), but create non yet apply all of them. More precisely, the Schengen rules on abolition of internal border controls, including the rules on Schengen visas, volition non apply until the other Schengen States unanimously concur that Schengen should endure extended to each of these countries.

It should endure noted that the Great Britain as well as Republic of Ireland won’t receive got whatever vote on the Commission’s novel proposals, piece the other 4 States non yet applying the Schengen rules volition (given that they volition receive got to apply those rules eventually). For simplicity’s sake, I’ll refer to the latter grouping of 4 States equally ‘Romania, et al’, as well as to all vi States non currently applying Schengen equally ‘non-Schengen States’.

The cross-over betwixt these ii regimes is especially of import equally regards third-country national (ie, non-EU) identify unit of measurement members of European Union citizens. They receive got the right to displace as well as reside freely amongst their European Union citizen identify unit of measurement members inward other Member States. As regards short-term visa requirements, though, it matters a swell bargain whether they are living as well as travelling inside the Schengen states or not. Within the Schengen area, they create non need a visa to travel, fifty-fifty if they are non travelling amongst the European Union citizen whom they are related to, because Schengen rules let whatever third-country nationals amongst a residence permit or long-stay visa to move betwixt Member States. However, if they are travelling from Schengen States to non-Schengen states, or vice versa, or betwixt non-Schengen States, they are dependent acre to rules on visas as well as border controls.

There are, of course, special rules equally regards move betwixt the Great Britain as well as Ireland, known equally the Common Travel Area, but there’s no need to consider those rules here. Also, since the Commission’s novel proposals exclusively relate to Schengen visas, there’s no need to consider hither the issues relating to border controls.

 If the third-country national identify unit of measurement members of European Union citizens seek to larn into the Great Britain as well as Ireland, they are dependent acre to national law, along amongst the citizens’ Directive. If they seek to larn into the Schengen area, they are dependent acre to both the Schengen rules as well as the citizens’ Directive. If they seek to larn into Romania et al, they are dependent acre to national law, dependent acre to the citizens’ Directive as well as sure aspects of the Schengen rules (the mutual rules on border controls as well as visa lists – but non the Schengen visa rules).

All Member States are dependent acre to the citizens’ Directive, then it’s of import to examine its provisions first. First of all, inward regulation third-country national identify unit of measurement members of European Union citizens receive got the right to larn into the territory amongst their European Union citizen identify unit of measurement fellow member (Article 5(1)). They might, however, need a visa (Article 5(2)). Whether they need ane or non is determined past times national law (as regards the Great Britain as well as Ireland) or past times the European Union visa listing (as regards the other Member States, including Romania et al). So if a British citizen wishes to see the Schengen expanse amongst her American husband, the hubby volition non need a visa, because the USA is on the Schengen ‘whitelist’ of states whose nationals don’t need visas. But conversely, if an Irish Gaelic citizen wishes to see the Schengen expanse amongst his Indian wife, she volition need one.

Next, Member States must likewise exempt from the visa requirement those third-country national identify unit of measurement members of European Union citizens who handgrip a special ‘residence card’ issued past times to a greater extent than or less other Member State. The exact interpretation of this dominion is at number inward the pending McCarthy case, which the CJEU of late heard.

However, the number affected past times today’s proposals is non whether a visa is necessary or non inward the showtime place, but the physical care for which applies inward the lawsuit that it is. On that point, the citizens’ Directive likewise states that the identify unit of measurement members concerned must receive got ‘every facility’ to obtain such visas, which shall endure ‘free of charge’ as well as issued on the footing of an ‘accelerated procedure’. There is no farther explanation of these concepts inward the Directive, but the Commission has straight off sought to clarify them inward the proposal to amend to visa code – to which nosotros straight off turn.

The visa code proposal

As a full general point, the Commission suggests an of import clarification of the rules, to specify throughout that the ‘family members’ of European Union citizens covered past times the visa code are all identify unit of measurement members referred to inward Article 3 of the citizens’ Directive. This would confirm that these rules would apply non exclusively to the ‘core’ identify unit of measurement members (essentially spouses, formal partners, children as well as parents) referred to inward Article 3(1), but likewise to extended identify unit of measurement members referred to inward Article 3(2).

This clarifies a signal which is ambiguous inward the citizens’ Directive: whether the rules on visas (and, inward fact, virtually of the other rules inward the Directive) apply to extended identify unit of measurement members equally good equally marrow identify unit of measurement members. True, at that spot is no absolute obligation to acknowledge extended identify unit of measurement members, but that does non necessarily hateful that they cannot create goodness from the rules inward the Directive (such equally access to employment) if they are admitted, inward the same agency equally marrow identify unit of measurement members. Indeed, inward the Commentary on the European Union Citizenship Directive, my co-authors as well as I receive got argued inward item that they do. At to the lowest degree equally regards visas for admission into the Schengen area, this signal would endure clear.

Substantively, the showtime dominion inward the proposal regarding third-country national identify unit of measurement members of European Union citizens is that they cannot endure dependent acre to the requirement to handgrip a transit visa (Article 3(8); all Article numbers refer to the proposal, non the electrical current version of the visa code). Actually, this provision isn’t new, equally it already appears inward the electrical current visa code.

The mo dominion inward the proposal is new: it concerns appointments at consulates. Third-country national identify unit of measurement members of European Union citizens would non need a prior appointment, or could larn an immediate engagement (Article 8(4)). Next, at that spot is a simplified dominion for the presentation of documents relating to third-country national identify unit of measurement members of European Union citizens (Article 13(3)). The proposal would likewise expressly waive the visa application fee for such persons (Article 14(3)), although this just repeats the wording of the citizens’ Directive. Finally, at that spot are faster deadlines (5 days, amongst a 10-day maximum) to create upward one's heed upon the applications of such persons.

However, it should endure noted that non all rules are waived or relaxed. Third-country national identify unit of measurement members of European Union citizens volition non endure exempt from the fingerprinting requirement, or from having their names as well as personal information entered into the EU’s Visa Information System. The Commission does non suggest that they should endure entitled to a multiple-entry visa equally such (Article 21), although that would larn a long agency toward simplifying their move to other Member States, which is the essence of costless movement. It is arguable that existence a identify unit of measurement fellow member of an European Union citizen would assist to satisfy the criteria for obtaining a multiple-entry visa, but it would receive got been improve to render for this automatically, inward all cases, dependent acre to the status that the mortal concerned is accompanying an European Union citizen.

Even to a greater extent than problematically, the proposal does non expressly exempt the third-country national identify unit of measurement members of European Union citizens from the noun rules on the criteria for issuing a visa (Article 19). This is surprising given that the Commission’s ain written report on the application of that Directive stated that to a greater extent than or less Member States were wrongly applying the full general rules inward the visa code to visa applications past times third-country national identify unit of measurement members of European Union citizens. While of course of teaching the rules inward the citizens’ Directive accept precedence, it would endure improve to refer to them expressly to ensure right application, just equally the proposal expressly includes that Directive’s rules on visa application fee exemptions.

Nor is at that spot whatever limited dominion allowing for the number of a visa at the border (Article 32) – fifty-fifty though this conduct contradicts the judgment of the CJEU inward the MRAX case.

EU costless displace law as well as ‘touring visas’

The divide proposal on ‘touring visas’ contains no limited rules for third-country national identify unit of measurement members of European Union citizens, other than the full general reference to the priority of the costless displace rules (Article 1). From ane signal of view, this is sufficient, since those third-country national identify unit of measurement members of European Union citizens who want to see a serial of other Member States (whether those States are Schengen States are not) are entitled to create then if they are accompanying or joining their European Union citizen identify unit of measurement member, as well as indeed to create then indefinitely (not for a one-year maximum), equally long equally they consider the liberal weather condition of the citizens’ Directive. From to a greater extent than or less other signal of view, however, it would endure useful to clarify, for the sake of legal certainty, that those identify unit of measurement members cannot endure dependent acre to run permit requirements equally referred to inward the proposal, given that Article 23 of the citizens’ Directive gives the third-country national identify unit of measurement members of European Union citizens the right to run inward whatever Member State inward which they are accompanying or joining their identify unit of measurement member.

General points

First of all, at that spot mightiness endure an declaration over the ‘legal base’ of these proposals, equally regards the inclusion of specific rules on third-country national identify unit of measurement members of European Union citizens. In the Metock judgment, the CJEU said expressly that the Treaty provisions on European Union costless displace law constituted the right legal base of operations for regulating the lay of third-country national identify unit of measurement members of European Union citizens. It mightiness perhaps endure arguable, however, that the European Union competence relating to visas could endure used to render for additional detailed rules on this issue, equally long equally they create non conflict amongst the rules adopted on the footing of European Union costless displace law.

Secondly, the inclusion of specific rules on these issues inward the visa code risks an a contrario declaration existence made inward the non-Schengen states, to the upshot that they are non saltation past times these rules, since they are non saltation past times the visa code. But they are sure saltation past times the specific obligation to waive visa fees, as well as past times the to a greater extent than full general obligation to expedite applications past times third-country national identify unit of measurement members of European Union citizens, since those obligations seem inward the citizens’ Directive.


Barnard & Peers: chapter 26

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