Two Codes To Dominion Them All: The Borders Together With Visa Codes

Steve Peers

In today’s judgment inwards Air Baltic, the Court of Justice of the European Union (CJEU) has taken the adjacent logical pace next its judgment belatedly terminal twelvemonth inwards Koushkaki, where it ruled that the EU’s visa code develop out an exhaustive listing of grounds for refusing a visa application.  Today the Court has confirmed that the same is truthful of the Schengen Borders Code. Moreover, the Court has clarified a number of full general in addition to specific points well-nigh the nature in addition to interpretation of the 2 codes.

Facts in addition to judgment

This representative concerned an Indian citizen who flew from Moscow to Riga. He had a valid multiple-entry Schengen visa, which was attached to a cancelled Indian passport. He also had a minute Indian passport, which was valid but which did non incorporate a visa. The Latvian edge guards thus refused him entry into Latvia, on the grounds that the valid visa had to go attached to the valid passport, non to the cancelled passport.

For practiced measure, the Latvian regime also fined the airline, Air Baltic, for transporting him without the necessary move documents. The airline appealed the fine, in addition to lost at source instance. But an appeal courtroom thus sent questions to the Court of Justice to clarify the legal position.

The CJEU ruled source of all that the cancellation of a passport yesteryear a 3rd province did non hateful that the visa attached to the passport was invalid. This was because entirely a Member State ascendence could annul or revoke a visa, in addition to because the visa code did non let for the annulment of a visa inwards such cases anyway. The Court extended its ruling inwards Koushkaki to confirm that the grounds for annulling a visa were exhaustive; the same must go truthful of the grounds for revoking a visa.

Secondly, the Court ruled that the Schengen Borders Code did non require entry to go refused inwards cases similar these. The unlike linguistic communication versions of that code suggested unlike interpretations, but equally always, the Court seeks a uniform interpretation of European Union police regardless. In this case, the criterion cast to go given to persons who were refused entry at the edge to explicate why they were refused does non furnish for refusal on the grounds that a valid visa was non attached to a valid passport.

Also, the Court pointed out that the sentiment of carve upwards visas in addition to passports was non unknown to European Union law, since the visa code provides that inwards cases where a Member State refuses to recognise a passport equally valid, a visa must go issued equally a carve upwards document. Checking 2 carve upwards documents was non a huge burden for edge guards, in addition to refusing entry only on the grounds that the valid passports in addition to visas were inwards 2 carve upwards documents would infringe the regulation of proportionality.

Finally, the Court ruled that the national regime of Member States produce non receive got whatever residuum powers to turn down entry to third-country nationals on grounds also those listed inwards the Schengen Borders Code. The Court reached this conclusion, yesteryear analogy alongside Koushkaki, because: the criterion cast giving the grounds for refusing entry contains an exhaustive listing of grounds for refusal; the nature of the Schengen organization ‘implies a mutual Definition of the entry conditions’; in addition to this interpretation would back upwards ‘the objective of facilitating legitimate travel’ referred to inwards the preamble to the visa code.

Comments

The Court’s ruling that the Schengen Borders Code provides for consummate harmonisation of the rules on refusal of entry is non actually surprising, especially afterwards the judgment inwards Koushkaki reaching the equivalent determination regarding the visa code. However, it should go noted that inwards today’s judgment, the Court does non repeat its qualification inwards Koushkaki that national regime had broad discretion to interpret the mutual rules inwards question. Furthermore, the Schengen Borders Code is relevant non entirely to those third-country nationals who necessitate visas for entry, but also those who produce not, such equally visitors from the USA, Canada in addition to most of the Western Balkans.

In effect, the Court’s ruling confirms that the Schengen zone is inwards trial the equivalent of the EU’s customs union, equally regards the displace of people. Of course, the customs wedlock in addition to the Schengen zone produce non apply to the same countries, due to opt-outs from Schengen (UK in addition to Ireland), the deferred admission to the Schengen organization (Romania, Bulgaria, Republic of Cyprus in addition to Croatia), in addition to the rules on association alongside each organization (Turkey is business office of the EU’s customs union, patch Norway, Iceland, Principality of Liechtenstein in addition to Switzerland apply the Schengen rules). But the basic concept is the same, alongside the obvious implications equally regards exclusive external competence of the European Union (although a Protocol to the Treaties conserves to a greater extent than or less external competence over borders for Member States), in addition to uniform interpretation of the rules inwards the respective codes.

As to the to a greater extent than detailed aspects of this case, the Court is sure correct to dominion against the pedantry of insisting that where a mortal holds a valid visa and a valid passport, the visa must ever go attached to the passport. The underlying objective to ensure that the mortal concerned meets the weather condition of entry is satisfied regardless of whether the visa is attached to the passport or not. Also, the Court’s ruling that the Borders Code has to go interpreted inwards accordance alongside the regulation of proportionality, in addition to inwards calorie-free of the objective of facilitating legitimate travel, could receive got broader implications inwards other cases.

Finally, the necessary corollary of the judgments inwards Koushkaki in addition to Air Baltic is that a third-country national who meets the weather condition to obtain a visa and/or cross the external borders has the correct to that visa and/or to cross those borders. So these issues are non governed yesteryear national administrative discretion, but yesteryear uniform European Union rules. The strengthening of the dominion of police inwards this plain is really welcome.

Barnard & Peers: chapter 26

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