June 3, 2010, “Europe without Barriers” Initiative, supported by the International Renaissance Foundation, presented a translated version of the EU Visa Code with comments at the press-center of Glavred-Media holding.
The publication contains an unofficial translation of the Regulation No. 810/2009 which establishes a Community Code on visa issues (EU Visa Code). Translation was done and accompanied with comments by experts of the “Europe without Barriers” Initiative, with the support of the International Renaissance Foundation.
The EU Visa Code that came into force on April 5, 2010, significantly changes and amends both legal framework of the EU itself and international legal norms that regulate EU relations with the third countries (especially, the Agreement on visa facilitation).
The main changes introduced by the EU Visa Code, compared with the previous legislation and international agreements
Numerous rules and regulations of visa policy unified, while many of which were until recently defined and regulated by national legislation of member countries, which resulted in different visa policies of countries participating in the Schengen area. Obviously, some different visa practices will remain, but at least essential elements of visa policy will move towards unification, which will supposedly ease life for visa applicants.
A standard consular fee (cost of visa) is set at 60 euros (Article 17) and introduction of possible benefits for individual countries or categories of people is stipulated (like the one currently implemented as for Ukraine and a number of other countries, for which the visa fee is 35 Euro).
For the first time, institute of representation is thoroughly regulated – transfer of visa granting function (or at least acceptance of visa applications) from one member-country to another in case of the absence of its consular office in this country (region). This innovation should simplify the requirements for obtaining visas for citizens of small countries where there are no embassies (consulates) of all EU Member States (Article 8) – they will not have to travel for visas to consulates located in other countries. In our region this applies, first of all, to Moldova and the Caucasian countries.
Article 24(2) should attract special interest of the active part of Ukrainian citizens, under which multiple entry visas have to be issued with validity of six months to five years, if the applicant proves the need or justifies the intention of frequent or regular travel, particularly through their own professional or marital status, such as businessmen, officials involved in regular official contacts with institutions of EU Member States and EU institutions, representatives of NGOs travelling for educational practices, participation in seminars, conferences, members of EU citizens’ families, members of families of third countries who legally reside in the EU Member States, seamen.
Some of the categories mentioned here have been overlooked by the Agreement on visa facilitation between the EU and Ukraine, including representatives of NGOs, who now can appeal directly to this article of the Code, requiring the issuance of multiple entry and long term visas.
In addition, peculiarities of the wording of the article provide that the list of categories is not exhaustible (because the list is provided following the phrase “for example”). It is important to prove not even belonging to a certain category, bur rather a need or justify intention for frequent or regular travel.
The most important innovation of this article is the introduction of lower limit for the standard multiple entry visa – 6 months, with the prospect of issuing next visas valid for up to five years. Previously, under the Agreement on visa facilitation, only the upper limit of validity for multiple entry visas was set (for example, “up to 1 year”, “up to 5 years”), which made it possible to issue fictitiously multiple entry visas valid for several weeks. Now issuing of a multiple entry visa for the duration less than 6 months can be considered as a misdeed.
Activities of the intermediaries (external service providers) get legal regulation. Intermediaries operate on the principles of outsourcing, providing additional paid services related to the acceptance of visa applications, checking documents and their delivery to consular authorities (Article 43). Now their activities are legitimate; however, it is set that maximum amount of payments to such intermediaries may not exceed 30 Euros (50% of the standard visa fee – Article 17). In addition, a consulate has to guarantee applicants a possibility of alternative (without intermediaries) access to the consulate.
The list of documents (however, inexhaustible), which may be required from applicants to confirm purpose of visit, financial capacity and intention to leave the EU before the end of the visa, is clarified. In this regard, the Code does not contain progressive changes, because as previously, it is provided that documents may be required to evaluate applicant’s intention to leave the EU before the end of the visa.
Regulation of the grounds for refusal of a visa has two positive innovations. Firstly, consulates now must specify the reason of visa refusal (previously it was not mandatory) and, secondly, should provide access to appeal procedures. However, the Consulate’s right to refuse a visa for purely subjective reasons remains (for instance, if the “intention to leave the territory of the EU Member State after visa expiration” is not fully proved).
In general, one should welcome the intention of the European Union to unify visa procedures of all Schengen area countries, make common requirement for visa applicants.
However, inexhaustible list of documents required to obtain confidential information about applicants will remain the most negative element of the procedure for obtaining Schengen visas. This practice, as well as use of the consulates’ right to refuse a visa based on subjective suspicion regarding the applicant’s reluctance to return home will lead to further problems that will stimulate critical public perception of the visa regime.
Contact information: Iryna Sushko, iryna_sushko@ukr.net , Oleksandr Sushko, sushko@cpcfpu.org.ua.
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Civic Initiative “Europe without Barriers” was created in 2008 on the basis of eponymous all-Ukrainian consortium of NGOs and think-tanks for consolidation of efforts of community activists and experts aimed at eliminating barriers to free movement in Europe.
Web site: www.novisa.org.ua
