Over the years, the European approach towards immigration has been somewhat fragmented. Considering the different attitudes and policies at play among member states, it is nothing short of a miracle that the free movement of European nationals within the EU was ever achieved. However, this liberal policy still sits in contrast to the thornier management of the movement of non-EU nationals to and within the EU, which affect companies and individuals alike. Every year, millions of third country nationals come into contact with consular representations of the Schengen states to visit one or more of the 25 countries of the common travel area. Over 10 million visas were issued in 2009.
Despite the implementation of the Community Code on Visas in 2009 (Visa Code – Regulation (EC) No 810/2009), which provides a single set of rules across the Schengen area (22 member states and three associated states), practices often still differ from one post to the other.
In March 2010 the European Commission launched a handbook to ensure a harmonised implementation of the Visa Code’s provisions. Although the handbook does not create new legally binding obligations on member states, it brings much-needed guidance on the practical application of the code and answers several recurring questions.
Is a visa needed to travel through the schengen territory?
Most applicants will be unaware that in line with Article 3 of the Visa Code, third country nationals who hold a valid Schengen visa issued by a member state, or a valid visa issued by Canada, Japan, Bulgaria, Cyprus, Romania, Liechtenstein, Ireland, the UK or the US, are exempt from the obligation to hold an airport transit visa. To put this into context, the handbook gives several examples. For instance, a Russian national holding a valid Canadian visa travelling from Moscow via Frankfurt to Bogota would not need to hold an airport transit visa to transit through Germany. Family members of citizens of the EU covered by Directive 2004/38/EC (the 2004 Directive) are also exempt, irrespective of whether they travel alone, to accompany or join the EU citizen.
Which consulate will deal with this visa?
When travelling to several countries across Europe, it is not always clear which consulate should be approached. Article 5 of the Visa Code stipulates that the application for the visa should be dealt with by the consulate of the main destination. The handbook defines this as:
‘The destination where the applicant intends to spend the longest time or where the main purpose of the intended journey is carried out.’
For example, a Moroccan national planning on travelling for holiday purposes to Italy for seven days and then France for four days via Greece, should obtain a visa from the Italian consulate. A Nigerian national who wishes to travel to France for business reasons for three days and then take advantage of being in Europe to visit relatives in Germany for six days, theoretically should approach the French consulate as the main purpose of the trip is business. When it is not possible to establish the main purpose of stay among several purposes of stay, the length of stay should be used as the criterion to determine which member state is competent to issue the visa. If no main destination can be determined, then the consulate of the member state whose external border the applicant intends to cross first must deal with the application.
For multiple entry visas, it is recommended that the application should be dealt with by the state most frequently visited or state of first entry. For example, a Tunisian national regularly visiting family in France, but who also travels to Belgium and Germany for business purposes two to three times a year, should obtain a visa from the French consulate.
Can Schengen visas be applied for while abroad?
Article 6 of the Visa Code provides that, as a general rule, applicants can only apply in their country of usual residence. Applications may, however, be accepted from an individual legally present – but not residing – in the jurisdiction of the consulate where the application is to be submitted, as long as the applicant can explain why they were unable to obtain a visa from the consulate in their place of residence. Based on previous experience, this will be allowed in very exceptional circumstances, such as death or serious illness. The handbook gives several examples. For instance, an Indian professor has travelled to London for six months to attend numerous meetings with scholars and various conferences. While in the UK, their mother who lives in Germany falls seriously ill. The Indian professor should be allowed to apply for a visa at the Germany consulate in the UK because it would indeed be disproportionate to require them to return to India to apply for the visa. A Chinese opera singer on tour due to perform in France after a three-month performance in the US, should be allowed to apply for a visa at the French consulate in the US because it would have been impossible for them to apply while in China given the rule of not being able to apply for a visa earlier than three months before the date of intended entry into the territory of the member state.
why would a visa be refused and when is there a right to appeal?
In line with Article 32(1) and Annex VI of the Visa Code, as a general rule, a visa will be refused when it is found that:
- the travel document submitted is false, counterfeit or forged;
- the applicant has not provided justification of the purpose and conditions of the intended stay;
- no evidence of sufficient means of subsistence both for the duration of the stay and for the return to the country of provenance has been provided;
- the applicant has already stayed for three months during the current six-month period in the territory of member states on the basis of a visa;
- the applicant is a person for whom an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry;
- the applicant is considered to be a threat to public policy, internal security or public health, or to the international relations of any of the member states;
- the applicant has not provided evidence of holding adequate and valid travel medical insurance; or
- there are reasonable doubts as to the authenticity of the supporting documents submitted by the applicant or the veracity of their contents, the reliability of the statements made by the applicant or their intention to leave the territory of the member states before the expiry of the visa applied for.
Particular rules apply for family members of EU and Swiss citizens.
The handbook clearly states that from 4 May 2011, consulates will be required to complete a standard form notifying and motivating refusal of a visa substantiating the reasons for refusal and submitting it to the applicant. Applicants shall have the right to appeal the decision. Appeals will be conducted against the member state that decided the outcome of the application. Applicants will be simultaneously notified of the refusal and the procedure to follow to appeal the decision.
do dependants of an eu national need a visa?
The right of free movement of EU citizens would be rather pointless if it was not extended to family members. The handbook aims to give clear operational instructions on dealing with family members of the EU. Pursuant to Article 5 of the 2004 Directive, member states are to grant family members covered by the Directive every facility to obtain the necessary visas very promptly and free of charge.
To ascertain whether the 2004 Directive applies, the consular post will want to satisfy itself that the following requirements are met.
There is an EU citizen from whom the visa applicant can derive rights
In principle, the directive only applies to EU citizens who travel to a member state other than the member state of their nationality or normal residence. EU citizens travelling to the member state of their own nationality do not usually enjoy the rights granted by the Directive. However, the case law of the European Court of Justice seem to have extended the application of the 2004 Directive to EU citizens who are returning to their country of origin after having exercised their EC Treaty rights of free movement by either residing in another member state or, for instance, providing services in another member state.
The visa applicant is an Article 2(2) family member
Family members are divided into two groups: the ‘core’ members, which include the spouse, registered partner, direct descendants and ascendants, have an automatic right of entry and residence; the ‘extended’ family members, which include non ‘core’ members who are dependants or members of the household of the EU citizen; where serious health grounds strictly require personal care by the EU citizen; or the partner with whom the EU citizen has a durable relationship, duly attested, only has the right to have their entry facilitated in accordance with national legislation transposing the 2004 Directive.
The visa applicant is accompanying or joining the EU citizen
Article 3(1) of the 2004 Directive provides that it only applies to core family members who accompany or join an EU citizen who is moving to or already residing in a member state other than the state they are a national of. A Spanish national residing in Belgium and travelling to France with their Peruvian spouse, or a Portuguese national living in Portugal travelling together with their Tunisian spouse to France, would be typical examples of the ‘accompanying’ scenarios. Examples of family member joining could include a Russian national travelling to join their spouse who is a British national residing in Spain, or a Spanish national residing in Spain relocating to Sweden where their Russian spouse will join them later.
When all these questions are answered in the affirmative, specific rules apply.
These rules include Article 5(2) of the 2004 Directive, which provides that possession of a valid temporary or permanent residence card, as referred to in Article 10 or 20 of the 2004 Directive, exempts third country family members from the visa requirement. Article 10 cards are typically issued to family members of EU citizens who have exercised the EC Treaty right to move and reside freely in another member state. To put this in context, an Algerian national residing in the UK with their French spouse under the auspices of their European Economic Area (EEA) residence permit would normally be exempted. A UK residence card, whether temporary or permanent, issued to the Nigerian spouse of a UK citizen living in the UK, will not be exempted.
Third country family members holding a residence card issued by a member state applying the Schengen acquis in full can also be exempted from the visa requirement under Article 5 of the Schengen Borders Code (Regulation (EC) No 562/2006). For instance, a Russian national married to a German national residing in France under the auspices of residence card issued under Article 10 of the 2004 Directive and wishing to travel to Spain, should be exempt both under the 2004 Directive and the Schengen Borders Code. However, a Russian national married to a German national residing in Germany under the auspices of a residence card issued under German national law will only be exempt under the Schengen Borders Code.
When, despite falling under the 2004 Directive, the applicant is not exempt from obtaining a visa, specific derogations from the general rules of the Visa Code will apply. For instance, there is no visa fee and the visa must be issued on the basis of an accelerated procedure, the applicant has the right to choose the documentary evidence by which to prove that they are covered by the 2004 Directive (ie link to the EU citizen). Documents establishing the purpose of travel and confirming means of subsistence are not strictly required, as long as the applicant can show that they are a beneficiary of the directive.
Applications from family members of EU nationals can only be refused on the following grounds:
- failing to demonstrate that the applicant qualifies under the 2004 Directive;
- the national authorities can demonstrate that the visa applicant is a genuine, present and sufficiently serious threat to public policy, security or health; or
- the national authorities can demonstrate that there was abuse or fraud.
In the latter two grounds, the burden of proof lies with the national authorities. As a general rule, a visa should not be refused merely on the ground that the applicant is a person with an SIS alert (Commission v Spain  and Jipa (European citizenship) ). Article 30 of the 2004 Directive stipulates that the applicant must be notified in writing of the refusal. The refusal must be:
‘Fully reasoned and list all the specific factual and legal grounds on which the decision was taken so that the person concerned may take effective steps to ensure his defence.’ (Roland Rutili v Ministre de l’interieur (workers)  and Sison v Council (law governing the institutions) ).
can dependants of an EU national apply for a visa on arrival?
In principle, when a third country visa national family member accompanying or joining an EU citizen exercising the EC Treaty right arrives at the border of a member state without holding a visa, the member state concerned should give the individual in question every reasonable opportunity to obtain the necessary documents within a reasonable period to demonstrate that they fall under the 2004 Directive before turning them away. If the applicant succeeds in demonstrating their rights and there is no evidence that they pose a risk to public policy, security or health, then a visa should be issued to them without delay at the border. Regrettably, this is not always strictly followed. In the UK, for instance, where Article 10 residence permits take on average six months, individuals with pending applications whose initial six-month visa (EEA family permit) has expired, often find themselves subjected to long questioning when travelling into the UK. This occurs despite them carrying evidence that they are covered by the 2004 Directive, including a certificate of application issued by the UK Border Agency confirming that they have an Article 10 residence card pending.
With the ongoing outsourcing of the visa processing to the private sector, direct access to the decision makers has been reduced considerably. Applicants now have to content themselves with information relayed by facilitators, many of whom have limited knowledge and understanding of the rules. Although it is too early to predict the full effect the handbook will have on the processing of visas, it should at least assist frustrated and confused applicants in navigating the labyrinthine corridors of the Visa Code.