Law and Rights
- Eu Visa Policy: A Dash For Growth?
Steve Peers Historically, EU visa policy has principally concerned itself with controlling the risk of irregular migration and possible threats to security, balanced against EU foreign policy objectives. But in the last few years that policy has increasingly...
- Migrant Deaths In The Mediterranean: What Can The Eu Do?
Steve Peers The latest tragedies in the Mediterranean add to the enormous and growing death toll of migrants crossing that sea. Today EU ministers will consider the issue as a matter of urgency, and the Commission is due to propose an EU strategy...
- The Cjeu Confirms Short-term Free Movement Rights For Eu Citizens? Third-country Family Members
Steve Peers Today?s important CJEU judgmentin McCarthy answers an important question relating to the application of EU free movement law in the UK: can the UK limit the right of third-country national family members of UK (and other EU) citizens...
- External Processing Of Applications For International Protection In The Eu
Steve Peers Last autumn's huge loss of lives near Lampedusa, when hundreds of migrants drowned in the Mediterranean, was one of the latest and most dramatic death tolls in the recent history of irregular crossing of that sea. It ought to have led...
- Simplifying Applications For Schengen Visas For Third-country National Family Members Of Eu Citizens: Do The New Proposals Go Far Enough?
Steve Peers For many EU citizens whose family members are third-country nationals, particularly if those family members are citizens of an Asian, African or Caribbean country, free movement isn?t as free as it is for others. Unless they are travelling...
Law and Rights
Two Codes to rule them all: the Borders and Visa Codes
Steve Peers
In today?s judgment in Air Baltic, the Court of Justice of the European Union (CJEU) has taken the next logical step following its judgment late last year in Koushkaki, where it ruled that the EU?s visa code set out an exhaustive list of grounds for refusing a visa application. Today the Court has confirmed that the same is true of the Schengen Borders Code. Moreover, the Court has clarified a number of general and specific points about the nature and interpretation of the two codes.
Facts and judgment
This case 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 second Indian passport, which was valid but which did not contain a visa. The Latvian border guards then refused him entry into Latvia, on the grounds that the valid visa had to be attached to the valid passport, not to the cancelled passport.
For good measure, the Latvian authorities also fined the airline, Air Baltic, for transporting him without the necessary travel documents. The airline appealed the fine, and lost at first instance. But an appeal court then sent questions to the Court of Justice to clarify the legal position.
The CJEU ruled first of all that the cancellation of a passport by a third country did not mean that the visa attached to the passport was invalid. This was because only a Member State authority could annul or revoke a visa, and because the visa code did not allow for the annulment of a visa in such cases anyway. The Court extended its ruling in Koushkaki to confirm that the grounds for annulling a visa were exhaustive; the same must be true of the grounds for revoking a visa.
Secondly, the Court ruled that the Schengen Borders Code did not require entry to be refused in cases like these. The different language versions of that code suggested different interpretations, but as always, the Court seeks a uniform interpretation of EU law regardless. In this case, the standard form to be given to persons who were refused entry at the border to explain why they were refused does not provide for refusal on the grounds that a valid visa was not attached to a valid passport.
Also, the Court pointed out that the idea of separate visas and passports was not unknown to EU law, since the visa code provides that in cases where a Member State refuses to recognise a passport as valid, a visa must be issued as a separate document. Checking two separate documents was not a huge burden for border guards, and refusing entry simply on the grounds that the valid passports and visas were in two separate documents would infringe the principle of proportionality.
Finally, the Court ruled that the national authorities of Member States do not have any residual powers to refuse entry to third-country nationals on grounds besides those listed in the Schengen Borders Code. The Court reached this conclusion, by analogy with Koushkaki, because: the standard form giving the grounds for refusing entry contains an exhaustive list of grounds for refusal; the nature of the Schengen system ?implies a common definition of the entry conditions?; and this interpretation would support ?the objective of facilitating legitimate travel? referred to in the preamble to the visa code.
Comments
The Court?s ruling that the Schengen Borders Code provides for complete harmonisation of the rules on refusal of entry is not really surprising, particularly after the judgment in Koushkaki reaching the equivalent conclusion regarding the visa code. However, it should be noted that in today?s judgment, the Court does not repeat its qualification in Koushkakithat national authorities had wide discretion to interpret the common rules in question. Furthermore, the Schengen Borders Code is relevant not only to those third-country nationals who need visas for entry, but also those who do not, such as visitors from the USA, Canada and most of the Western Balkans.
In effect, the Court?s ruling confirms that the Schengen zone is in effect the equivalent of the EU?s customs union, as regards the movement of people. Of course, the customs union and the Schengen zone do not apply to the same countries, due to opt-outs from Schengen (UK and Ireland), the deferred admission to the Schengen system (Romania, Bulgaria, Cyprus and Croatia), and the rules on association with each system (Turkey is part of the EU?s customs union, while Norway, Iceland, Liechtenstein and Switzerland apply the Schengen rules). But the basic concept is the same, with the obvious implications as regards exclusive external competence of the EU (although a Protocol to the Treaties conserves some external competence over borders for Member States), and uniform interpretation of the rules in the respective codes.
As to the more detailed aspects of this case, the Court is surely right to rule against the pedantry of insisting that where a person holds a valid visa and a valid passport, the visa must always be attached to the passport. The underlying objective to ensure that the person concerned meets the conditions 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 be interpreted in accordance with the principle of proportionality, and in light of the objective of facilitating legitimate travel, could have broader implications in other cases.
Finally, the necessary corollary of the judgments in Koushkaki and Air Baltic is that a third-country national who meets the conditions to obtain a visa and/or cross the external borders has the right to that visa and/or to cross those borders. So these issues are not governed by national administrative discretion, but by uniform EU rules. The strengthening of the rule of law in this field is very welcome.
Barnard & Peers: chapter 26
- Eu Visa Policy: A Dash For Growth?
Steve Peers Historically, EU visa policy has principally concerned itself with controlling the risk of irregular migration and possible threats to security, balanced against EU foreign policy objectives. But in the last few years that policy has increasingly...
- Migrant Deaths In The Mediterranean: What Can The Eu Do?
Steve Peers The latest tragedies in the Mediterranean add to the enormous and growing death toll of migrants crossing that sea. Today EU ministers will consider the issue as a matter of urgency, and the Commission is due to propose an EU strategy...
- The Cjeu Confirms Short-term Free Movement Rights For Eu Citizens? Third-country Family Members
Steve Peers Today?s important CJEU judgmentin McCarthy answers an important question relating to the application of EU free movement law in the UK: can the UK limit the right of third-country national family members of UK (and other EU) citizens...
- External Processing Of Applications For International Protection In The Eu
Steve Peers Last autumn's huge loss of lives near Lampedusa, when hundreds of migrants drowned in the Mediterranean, was one of the latest and most dramatic death tolls in the recent history of irregular crossing of that sea. It ought to have led...
- Simplifying Applications For Schengen Visas For Third-country National Family Members Of Eu Citizens: Do The New Proposals Go Far Enough?
Steve Peers For many EU citizens whose family members are third-country nationals, particularly if those family members are citizens of an Asian, African or Caribbean country, free movement isn?t as free as it is for others. Unless they are travelling...