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 between Schengen countries (as explained below), those EU citizens who wish to visit another Member State with their third-country national family members may have to obtain a visa for their family members first, which can complicate their travel significantly.
This situation would be ameliorated somewhat, if the two proposals regarding visas issued today by the Commission are adopted. One of these proposals would amend the existing rules relating to ‘Schengen visas’, which allow for travel to all Schengen states for a period of three months (ie the EU’s ‘visa code’). The second proposal would create a new ‘touring visa’ for travel for up to one year to Schengen countries. While the proposals have of course not yet been adopted, and may be amended (or not adopted at all) as they go through the EU’s legislative process, they are significant enough to merit some analysis at this early stage.
In fact, these proposals are complex and important enough to merit four separate posts. This first post examines the proposed new rules for third-country national family members of EU citizens. The other three will examine: the visa code proposal; the touring visa proposal; and the important issue which isn’t addressed in these proposals: a protection visa for those fleeing persecution or serious harm.
EU free movement and Schengen compared
First of all, it’s necessary to reiterate which countries are covered by EU free movement law, on the one hand, and Schengen on the other.
The free movement rules, as set out in Directive 2004/38 (the ‘citizens’ Directive’) apply to all Member States, in the context of the citizenship of the EU. They also apply to Norway, Iceland and Liechtenstein, since the citizens’ Directive was extended to those countries pursuant to the treaty establishing a European Economic Area (EEA). The EU also has an agreement on free movement of persons with Switzerland, but that treaty does not apply the citizens’ Directive as such to Switzerland.
The Schengen rules, which abolish internal border checks between the signatories and introduce common rules on external border control and short-term visas, currently apply to 22 Member States, along with Norway, Iceland, Liechtenstein and Switzerland (the ‘Schengen associates’).
The Member States not applying the Schengen rules fall into two categories. On the one hand, the UK and Ireland do not apply Schengen at all (except for a number of flanking rules relating to police cooperation). On the other hand, Romania, Bulgaria, Cyprus and Croatia are obliged to apply all Schengen rules in principle, and do apply some of them (such as the external border rules and the common list of States whose nationals do or don’t need a visa), but do not yet apply all of them. More precisely, the Schengen rules on abolition of internal border controls, including the rules on Schengen visas, will not apply until the other Schengen States unanimously agree that Schengen should be extended to each of these countries.
It should be noted that the UK and Ireland won’t have any vote on the Commission’s new proposals, while the other four States not yet applying the Schengen rules will (given that they will have to apply those rules eventually). For simplicity’s sake, I’ll refer to the latter group of four States as ‘Romania, et al’, and to all six States not currently applying Schengen as ‘non-Schengen States’.
The cross-over between these two regimes is particularly important as regards third-country national (ie, non-EU) family members of EU citizens. They have the right to move and reside freely with their EU citizen family members in other Member States. As regards short-term visa requirements, though, it matters a great deal whether they are living and travelling within the Schengen states or not. Within the Schengen area, they do not need a visa to travel, even if they are not travelling with the EU citizen whom they are related to, because Schengen rules allow any third-country nationals with a residence permit or long-stay visa to travel between Member States. However, if they are travelling from Schengen States to non-Schengen states, or vice versa, or between non-Schengen States, they are subject to rules on visas and border controls.
There are, of course, special rules as regards travel between the UK and Ireland, known as the Common Travel Area, but there’s no need to consider those rules here. Also, since the Commission’s new proposals only relate to Schengen visas, there’s no need to consider here the issues relating to border controls.
If the third-country national family members of EU citizens seek to enter the UK and Ireland, they are subject to national law, along with the citizens’ Directive. If they seek to enter the Schengen area, they are subject to both the Schengen rules and the citizens’ Directive. If they seek to enter Romania et al, they are subject to national law, subject to the citizens’ Directive and certain aspects of the Schengen rules (the common rules on border controls and visa lists – but not the Schengen visa rules).
All Member States are subject to the citizens’ Directive, so it’s important to examine its provisions first. First of all, in principle third-country national family members of EU citizens have the right to enter the territory with their EU citizen family member (Article 5(1)). They might, however, need a visa (Article 5(2)). Whether they need one or not is determined by national law (as regards the UK and Ireland) or by the EU visa list (as regards the other Member States, including Romania et al). So if a British citizen wishes to visit the Schengen area with her American husband, the husband will not need a visa, because the USA is on the Schengen ‘whitelist’ of states whose nationals don’t need visas. But conversely, if an Irish citizen wishes to visit the Schengen area with his Indian wife, she will need one.
Next, Member States must also exempt from the visa requirement those third-country national family members of EU citizens who hold a special ‘residence card’ issued by another Member State. The exact interpretation of this rule is at issue in the pending McCarthy case, which the CJEU recently heard.
However, the issue affected by today’s proposals is not whether a visa is necessary or not in the first place, but the process which applies in the event that it is. On that point, the citizens’ Directive also states that the family members concerned must have ‘every facility’ to obtain such visas, which shall be ‘free of charge’ and issued on the basis of an ‘accelerated procedure’. There is no further explanation of these concepts in the Directive, but the Commission has now sought to clarify them in the proposal to amend to visa code – to which we now turn.
The visa code proposal
As a general point, the Commission suggests an important clarification of the rules, to specify throughout that the ‘family members’ of EU citizens covered by the visa code are all family members referred to in Article 3 of the citizens’ Directive. This would confirm that these rules would apply not only to the ‘core’ family members (essentially spouses, formal partners, children and parents) referred to in Article 3(1), but also to extended family members referred to in Article 3(2).
This clarifies a point which is ambiguous in the citizens’ Directive: whether the rules on visas (and, in fact, most of the other rules in the Directive) apply to extended family members as well as core family members. True, there is no absolute obligation to admit extended family members, but that does not necessarily mean that they cannot benefit from the rules in the Directive (such as access to employment) if they are admitted, in the same way as core family members. Indeed, in the Commentary on the EU Citizenship Directive, my co-authors and I have argued in detail that they do. At least as regards visas for admission into the Schengen area, this point would be clear.
Substantively, the first rule in the proposal regarding third-country national family members of EU citizens is that they cannot be subject to the requirement to hold a transit visa (Article 3(8); all Article numbers refer to the proposal, not the current version of the visa code). Actually, this provision isn’t new, as it already appears in the current visa code.
The second rule in the proposal is new: it concerns appointments at consulates. Third-country national family members of EU citizens would not need a prior appointment, or could get an immediate appointment (Article 8(4)). Next, there is a simplified rule for the presentation of documents relating to third-country national family members of EU citizens (Article 13(3)). The proposal would also expressly waive the visa application fee for such persons (Article 14(3)), although this simply repeats the wording of the citizens’ Directive. Finally, there are faster deadlines (5 days, with a 10-day maximum) to decide upon the applications of such persons.
However, it should be noted that not all rules are waived or relaxed. Third-country national family members of EU citizens will not be exempt from the fingerprinting requirement, or from having their names and personal data entered into the EU’s Visa Information System. The Commission does not suggest that they should be entitled to a multiple-entry visa as such (Article 21), although that would go a long way toward simplifying their travel to other Member States, which is the essence of free movement. It is arguable that being a family member of an EU citizen would help to satisfy the criteria for obtaining a multiple-entry visa, but it would have been better to provide for this automatically, in all cases, subject to the condition that the person concerned is accompanying an EU citizen.
Even more problematically, the proposal does not expressly exempt the third-country national family members of EU citizens from the substantive rules on the criteria for issuing a visa (Article 19). This is surprising given that the Commission’s own report on the application of that Directive stated that some Member States were wrongly applying the general rules in the visa code to visa applications by third-country national family members of EU citizens. While of course the rules in the citizens’ Directive take precedence, it would be better to refer to them expressly to ensure correct application, just as the proposal expressly includes that Directive’s rules on visa application fee exemptions.
Nor is there any express rule allowing for the issue of a visa at the border (Article 32) – even though this directly contradicts the judgment of the CJEU in the MRAX case.
EU free movement law and ‘touring visas’
The separate proposal on ‘touring visas’ contains no express rules for third-country national family members of EU citizens, other than the general reference to the priority of the free movement rules (Article 1). From one point of view, this is sufficient, since those third-country national family members of EU citizens who wish to visit a series of other Member States (whether those States are Schengen States are not) are entitled to do so if they are accompanying or joining their EU citizen family member, and indeed to do so indefinitely (not for a one-year maximum), as long as they meet the liberal conditions of the citizens’ Directive. From another point of view, however, it would be useful to clarify, for the sake of legal certainty, that those family members cannot be subject to work permit requirements as referred to in the proposal, given that Article 23 of the citizens’ Directive gives the third-country national family members of EU citizens the right to work in any Member State in which they are accompanying or joining their family member.
General points
First of all, there might be an argument over the ‘legal base’ of these proposals, as regards the inclusion of specific rules on third-country national family members of EU citizens. In the Metock judgment, the CJEU said expressly that the Treaty provisions on EU free movement law constituted the correct legal base for regulating the position of third-country national family members of EU citizens. It might possibly be arguable, however, that the EU competence relating to visas could be used to provide for additional detailed rules on this issue, as long as they do not conflict with the rules adopted on the basis of EU free movement law.
Secondly, the inclusion of specific rules on these issues in the visa code risks an a contrario argument being made in the non-Schengen states, to the effect that they are not bound by these rules, since they are not bound by the visa code. But they are certainly bound by the specific obligation to waive visa fees, and by the more general obligation to expedite applications by third-country national family members of EU citizens, since those obligations appear in the citizens’ Directive.
Barnard & Peers: chapter 26
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