a strengthened tool for EU immigration control and external relations policies?

Professor
Steve Peers, Royal Holloway
University of London

Photo
credit: Sixflashphoto, via Wikimedia Commons

How and why can short-term visa requirements be re-imposed,
on a fast track basis? For the EU, this issue is decided collectively, on the
basis of legislation that applies to all EU Member States (except Ireland),
plus the Schengen associated countries of Norway, Switzerland, Iceland and
Liechtenstein. A proposal to change those rules to reinforce EU immigration and
asylum policy is moving closer to agreement; and as it does so, both Member
States and the European Parliament seek to use the new law to reinforce EU external
relations objectives more generally too.

Current legal framework

The EU has long had a law harmonising which non-EU
States (and entities not recognised as States by some or all Member States) are
– or are not – subject to visa requirement for their nationals to make
short-term visits (90 days out of every 180 days) to visit the EU (Ireland has
its own visa policy) and Schengen associated countries. The law was first
amended to provide for fast-track reimposition of visa requirements on
immigration and asylum policy grounds in 2013, to assuage Member States
concerned about the impact of dropping visa requirements for most of the Western
Balkans several years beforehand. These rules were amended
in 2017, this time to assuage Member States concerned about dropping visa
requirements for eastern neighbourhood countries (eventually visas were waived
for Moldova, Ukraine and Georgia). Currently they are found in the codified version
of the EU visa list Regulation, adopted in 2018.

At present, the
countries whose nationals are not subject to EU short-term visa
requirements (the ‘white-list’) comprise most non-EU European states (including
the UK), North American and most Latin American countries, some wealthier Asian
countries (such as Israel, the UAE, Japan and South Korea), Australia, New Zealand
and a number of small middle-income islands in the Caribbean and the Indian and
Pacific Oceans. All other countries (the ‘black-list’) are subject to visa
requirements. Member States have some flexibility as regards some categories
of people (such as holders of official passports), ie they can waive or impose
visa requirements for these groups of people even if the non-EU countries as a
whole are on the EU white-list or black-list.

For the countries on the black-list, the EU has agreed
some visa facilitation treaties (usually in return for readmission treaties) which
make it easier for their nationals to obtain visas. It has been willing to
suspend these partly or wholly on political grounds (ie Russia and Belarus). The
EU has also used its internal law (the visa
code) in recent years to make (or threaten to make) visas harder and more
expensive to get, if a country (in the EU’s view) does not cooperate
sufficiently on readmission. A further proposal to restrict EU trade
preferences for developing countries on these grounds has not yet been agreed (in
part because it has been criticised
for potentially breaching WTO law).

But our focus here is on the potential
fast-track reimposition of visa requirements – ie, moving a country from the
black-list to the white-list – in the first place. Under the current law, in
addition to the separate possibility of a fast-track reimposition of visa
requirements if a non-EU country does not waive its own visa requirements for
EU citizens (a power that the EU has never used), visas can be reimposed on a
fast track basis if there is ‘a substantial increase in the number of nationals
of that third country refused entry or found to be staying in the
Member State’s territory without a right to do so’; or ‘a substantial increase in the number of asylum
applications from the nationals of that third country for which the
recognition rate is low’; or ‘a decrease in cooperation on readmission with
that third country, substantiated by adequate data, in particular a
substantial increase in the refusal rate of readmission applications
submitted by the Member State to that third country for its own nationals’
(or nationals of other states who transited through that country, if a
readmission treaty with the EU obliges the country concerned to readmit them);
or ‘an increased risk or imminent threat to the public policy or internal
security of Member States, in particular a substantial increase in
serious criminal offences linked to the nationals of that third
country’.

The preamble
to the Regulation defines some of these concepts further. A ‘substantial
increase’ is more than 50%, although the Commission can use a lower threshold
if it ‘deemed it applicable in the particular case’. A ‘low recognition rate’
for asylum applications is ‘around 3 or 4%’, although the Commission can deem
a higher rate applicable in a particular case. There is no further definition
of ‘serious criminal offences’, or any indications of what might otherwise comprise
‘an increased risk or imminent threat to the
public policy or internal security of Member States’, given that the ‘serious
criminal offences’ ground is only an example of such a risk or threat (‘in
particular’).

The reference period to assess these changes is a two-month period
compared to the same period in the previous year, or compared with the last
two months prior to dropping the visa requirement for a non-EU country. As
for the process, after considering a complaint by a Member State for some
issues, or on its own initiative for others, and holding discussions with the
non-EU country concerned, the Commission can adopt an implementing act (ie subject
to scrutiny by Member States’ representatives) suspending the visa waiver for
some groups of that country’s nationals for nine months, followed (if the
issues still persist) by a delegated act suspending the visa waiver for all nationals
of that country for 18 months – which can be extended for six months if the
Commission makes a legislative proposal (which would need to be agreed by the
Council with a qualified majority of Member States, and the European
Parliament) to make the move to the black-list permanent.

As noted
above, these rules were loosened in 2017, compared to the original 2013
version. The original version of the rules had: set a six-month reference
period (instead of two months, with a seven-year time limit on the rule for
countries moved to the white-list); required a ‘sudden’ increase creating an ‘emergency’
situation, and pressure on the asylum system as regards the ‘low recognition
rate’ criterion’; and provided only for an implementing act reimposing visa
requirements for all nationals of the country concerned for six months –
possibly extended by 12 months if the Commission proposed legislation.

Despite this
loosening of the rules, though, the EU has been reluctant to use them in practice.
In fact, they have only been invoked once, to reimpose visa requirements for
Vanuatu (see the implementing
decision and the delegated act,
later extended
while the legislation
was amended) after that Pacific micro-state introduced a form of ‘investor
citizenship’, that the EU judged made it too easy for wealthy (and arguably dodgy)
people from black-list countries to buy the nationality of the tropical
island so they could visit the EU visa-free. (The question of whether a
Member State – Malta – is breaching EU law by doing the same thing, is due to
be decided
by the CJEU next month). In the EU’s view, the ‘public policy’ ground for
fast-track reimposition of visa requirements applied here.

Proposal
to change the rules

After some
period of generalised grumbling about the need to change the rules to reinforce
the EU’s immigration and asylum policy – in particular to induce neighbouring
countries to align their visa policies with the EU, to make it harder for
nationals of black-list countries to reach the EU’s borders and claim asylum –
the Commission tabled a proposed
amendment to the visa list Regulation in 2023. The Council agreed
its position on this proposed law in March 2024, and the European
Parliament’s civil liberties committee agreed
its position last week. (I’m assuming that this draft
text on the committee’s website is the position that was agreed; I’ll
update, and if necessary correct, this blog post, once that point is clearer).

The
Commission proposal

The
Commission proposal keeps the existing four grounds for fast-track reimposition
of visa requirements, with limited changes. There would have to be a significant
risk to public policy, et al, rather than an increased risk (now expressly
including ‘hybrid threats’, defined in the preamble as including ‘instrumentalisation’
of migrants, ie Belarus shoving them across borders). But there would be new
grounds in addition: investor citizenship (which, as we have seen, is
currently regarded as covered by the ‘public policy’ ground); non-alignment
with visa policy; and non-compliance with commitments made to the EU when a
country was moved to the white-list. The definitions of ‘substantial increase’
are moved from the preamble to the main text, and unchanged except for a
power for the Commission to set them higher or lower than a 50%
increase. For the asylum ground, the low recognition rate is set at 4%, but
again the Commission can set it higher or lower than that.

The
Commission proposal also changes the details of how long visa requirements
can be reintroduced for. An implementing act as regards some categories of
people having to hold visas could apply for 12 months (instead of 9), and
there would be a new power for the Commission to act urgently. A delegated
act applying to all nationals of the country concerned could apply for 24
months, instead of 18. In either case, there would be a power to terminate
the secondary measure in the event of a change in circumstances.

The
Council version

The
Council accepts most of the Commission’s proposal, but wants to make some
changes. Its version would add ‘deficiencies in document security legislation or
procedures’ to the public policy clause, and the preamble would refer to ‘terrorist offences and activities of organised
criminal groups’ as regards public security. There would also be the
possibility of reintroducing a visa requirement on external relations grounds:

a significant and abrupt deterioration in the Union’s external
relations with a third country listed in Annex II, in particular when it
relates to human rights and fundamental freedoms and is deriving from any of
the following: (i) serious human rights violations and abuses; (ii) serious
breaches of international law and standards, including human rights law and
non-compliance with international court decisions and rulings

There would also be a fast-track
possibility as regards ‘any other ground for suspension set out in a
short-stay visa waiver agreement between the Union and a third country listed
in Annex II, limited to the scope of application of such agreement’.

In the Council’s view, a ‘significant
increase’ would be 30%, not 50%; and a low asylum recognition rate would be
20%, not 4% – matching the threshold for fast-tracking asylum applications
under the recently agreed revised EU asylum
procedures law.

The European Parliament

Like the Council, the European
Parliament seeks to introduce a new external relations ground for fast-track
reimposition of visas, although the Parliament’s text is worded differently:

a deterioration in the Union’s external relations with a third
country listed in Annex II caused by: (i) serious breaches by that third
country of the principles set out in the Charter of the United Nations; (ii)
grave violations by that third country of the obligations deriving from
international human rights law or international humanitarian law; (iii)
violations by that third country of bilateral agreements between it and the
Union; (iv) that third country carrying out hostile acts against the Union or
Member States with the aim of destabilising or undermining society or
institutions which are key for the public policy and internal security of the
Union or the Member States; (v) non-compliance or non-alignment by that third
country with relevant Union sanctions.

The preamble of the Parliament’s version states that
the hostile acts ‘could result from foreign interference in political
processes, economic coercion, cyber operations, economic espionage or the
sabotage of critical infrastructure’.

Compared to the Council’s position, the ‘deterioration’
in external relations in the Parliament’s version need not be ‘significant and
abrupt’, and is not solely focussed on human rights – although as the Council’s
text is non-exhaustive (‘in particular’), the Council could encompass other
issues too. In any event, the Parliament’s version mentions ‘serious breaches’
of the UN Charter, instead of violations of international law and non-compliance
with judgments; it also differs by expressly referring to ‘international
humanitarian law’, breaches of treaties with the EU, ‘hostile acts’ and non-compliance
or non-alignment with EU sanctions. (It should be noted that non-EU countries
are not legally obliged to comply or align themselves with EU sanctions;
although there may be some cases where the EU and non-EU countries will be
bound by sanctions because they were adopted by the UN Security Council,
non-compliance with those sanctions would in that case be covered by the reference
to non-compliance with the UN Charter)

Furthermore, the
Parliament’s position would set 40% as the new definition of ‘substantial
increase’, and drop any change in the threshold of low recognition rates for
asylum. The Commission’s power to adopt urgent measures would be limited to
cases of ‘significant risk or imminent
threat to the public policy or internal security of a Member State’; and when
visa obligations are reintroduced, Member States would lose their power to
reintroduce the visa waiver for categories of people, such as holders of official
passports. This last point may be a response to the situation created by the recent
EU decision to partially suspend its visa waiver treaty with Georgia on
human rights grounds, so there is no longer a visa waiver for holders of
official passports; yet arguably Member States such as Hungary still have the
option under the visa list Regulation to retain such waivers. The Parliament’s
version of the law would address such issues.

Comments

Negotiations
between the Parliament and the Council will likely start soon. Their two
versions of the proposal are not profoundly far apart, differing in particular
on: some of the details of a new external relations ground (but not the idea of
such a new ground), as summarised above; the thresholds for ‘substantial
increase’ and low recognition rates for asylum; limiting the new prospect of
adopting a requirement to reimpose visa requirements urgently (but not the idea
of an urgent procedure as such); and removing the power of Member States to
waive visa requirements for official passport holders when visa requirements
are reimposed. On the other hand, both institutions broadly agree on several
aspects of the Commission proposal: the new grounds of investor citizenship, non-alignment
with visa policy and non-compliance with commitments previously made to the EU;
the lengthened periods for reimposing visa requirements via implementing or
delegated acts; and a possible early end to the secondary measures.

It’s tempting to extrapolate
which non-EU countries might be in the Council or Parliament’s mind as regards
the new external relations ground. For instance, the Trump administration’s
designs on Greenland (among other things) could, if put into the form of some
economic pressure or military action, be seen as ‘hostile’; Israel is often accused
of breaching international humanitarian law; and the EU has concerns about the
UK’s compliance with Brexit deals. But the Commission will have a great deal of
discretion using these powers, and is subject to scrutiny by representatives of
Member States if it uses them. And it should be recalled that the Commission has
been reluctant to impose visa requirements on the US in the context of
non-reciprocity as regards some Member States for the EU’s visa waiver for the
US (the European Parliament even sued
the Commission on this point, and lost); the Commission and many Member
States have been at most mildly critical of the Israeli government; and the EU
has shown an established preference to settle disputes with the UK by negotiation,
not escalation.

There may be more enthusiasm for
using new powers relating to non-alignment with EU visa policy – although on
this point it should be noted that this would entail asylum seekers being prevented
from taking a relatively safe journey to the EU border – following a visa-free flight
to Serbia, for instance – and may undertake an unsafe sea journey via payment of
smugglers instead. With enemies like the EU’s interior ministries, the
smuggling gangs don’t need friends.

The existing powers as regards
overstay rates, readmission cooperation and asylum recognition rates might be
more widely used if the thresholds for their use are lowered. (Note that the
European Parliament has already accepted the 20% threshold for asylum recognition,
as regards fast-tracking asylum applications as part of the asylum procedures
law). In each case, though, the Commission might prefer to use the threat of
using the fast-track visa reimposition power to obtain concessions from non-EU
countries, rather than move straight to using such powers. Speaking softly, and
carrying (but rarely using) a big stick, has been the guiding principle of the
EU’s approach to reimposing visa obligations – at least so far. Whether a
bigger stick might be used more often remains to be seen.

Leave a Reply Cancel reply