EU Immigration and Asylum Law 9781509957323, 9783406779695

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EU Immigration and Asylum Law
 9781509957323, 9783406779695

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Reemers Publishing Services GmbH O:/Beck/978_3_406_77969_5_Thym/3d/02_Roemer_Preface.3d from 11.11.2021 11:28:26 3B2 9.1.580; Page size: 160.00mm  240.00mm

Preface Immigration and asylum policy have become the object of intense political disputes in many Member States and at supranational level. Their legal dimension is increasingly influenced by EU directives and regulations on various aspects of entry, border controls, visas, immigration and asylum – as the policy crisis of 2015/16 demonstrated exemplarily. Legal and political debates at the national and supranational level often revolve around the contents of EU legislation which determines the outcome of court cases throughout the continent and guides national parliaments when adopting domestic rules. After more than 20 years of legislative activities at EU level and more than 200 judgments of the Court of Justice in Luxembourg, it has become difficult to keep an oversight of the diverse instruments adopted on a variety of topics ranging from visa applications in consulates abroad and border controls at sea over the entry and stay of family members, students or intra-corporate transferees to reception conditions and procedural guarantees for asylum seekers. This Commentary pursues the objective of assisting readers to confront the complexity of supranational legislation. The publication of a new directive or regulation in the Official Journal is the beginning of an occasionally cumbersome process of implementation, enforcement and adjudication at the national and supranational level. This Commentary aims to support those involved in different functions and at various levels in interpretating and applying supranational rules: judges at domestic courts, officials working for administrative authorities or national ministries, members of civil society, academics, practicing lawyers or civil servants with an EU institution. To support all these potential readers required the authors to pay attention to both the seemingly technical detail and the grand scheme connecting different instruments. Four thematic introductions, written by the lead editor, are meant to allow newcomers to keep an oversight of a highly complex area of the law, thus recognising the proverbial forest behind the trees. Detailed comments no less than 20 different instruments provide an in-depth analysis of the most important pieces of legislation written by eminent experts from both academia and legal practice from across Europe. In order to provide a comprehensive overview, this book employs the method of a ‘commentary’ in the German tradition explaining the contents and legal context of each legislative instrument article by article. Thus, the chapter on a specific directive or regulation will not usually be read from A to Z like a book. Rather, readers will consult the information on a specific article and will then be re-directed, by means of crossreferences, to related information elsewhere in the Commentary. By way of example, someone interested in the scope and interpretation of the public policy exception in Article 6 Long-Term Residents Directive 2003/109/EC will open the relevant pages on this article and look for the information she requires. Reading the more specific comments, she will be directed to horizontal information on the interpretation of the public policy standard in the introductory chapter on the legal framework for EU immigration policy. They explain how the ECJ case law on different instruments feeds into a more or less consistent whole. However, not all provisions have been subject to court rulings at the national or supranational level. In such cases, the authors of the chapter may present legal argument how the provision should be interpreted in light of the interpretative standards described in the general introduction explaining the constitutional framework. V

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Preface We have bee careful to bring together a rich collection of authors with various backgrounds from across Europe. Some are experienced practitioners with a high expertise in the field they are writing on. Others are senior academics or promising young researchers involved in debates about immigration and asylum. Not all authors contributing to this book will necessarily share the same opinions on specific topics. Therefore, different views cannot be excluded; they are the hallmark of legal debates on controversial topics. We are united by the ambition to provide our readers with reliable and in-depth materials on a complex area. It is a characteristic of immigration and asylum law that its interpretation is the object of legal and political disputes and disagreements. For that reason, reliability is a core features of this Commentary. Each chapter provides a trustworthy overview of the state of the art, including court judgments. Whenever there is room for disagreement, existing opinions in the literature shall be presented, possibly together with a proposal by the author how the question should be resolved. In doing so, the contributors participate in the doctrinal reconstruction of the law in line with the continental tradition of interpretative hermeneutics in areas where no case law exists so far. As a transnational undertaking, it is not the purpose of this Commentary to inform our readers how the Member States implement European rules. Rather, it has the objective of describing the contents of EU legislation, of identifying open questions of interpretation and of providing arguments what a potential answer might be. Given that the EU is a multilingual polity, we have invited authors to include case law by national courts from across Europe and academic writing in different languages. The third edition was delayed as a result of the ongoing reform of asylum policy, which the Commission had kickstarted with several legislative initiatives during 2016. For many years, we had assumed – and hoped – that the EU institutions would agree on a compromise that would help overcome the structural deficits of supranational asylum policy. That did not happen. Similarly, the ‘Pact on Migration and Asylum’, presented by the Commission in September 2021, seems not to have reversed the political stalemate. At the time of writing, discussions within the Council were ongoing at a technical level and the European Parliament was preparing to adopt its position; it remained uncertain whether the package would ever be adopted. Even if that happened, we may expect the contents of the final legislation to differ markedly form the Commission’s proposals in important respects as a result of inter-institutional compromises. We have decided, therefore, to publish the third edition on the basis of secondary legislation as it stood during the spring of 2021. At the same time, failure of policy reform reinvigorates the idea behind the Commentary: to analyse highly complex legislation that raises formidable questions of interpretation when being applied to scenarios the legislature did not necessarily have in mind. We hope that the common methodological concept underlying a Commentary article-by-article will be useful for both practitioners and academics working on domestic or supranational immigration and asylum law. Of course, there may be gaps and omissions. The editors and authors therefore appreciate any suggestion how to improve the general scheme or individual chapters in subsequent editions of this book. They should be directed to Prof. Dr. Daniel Thym University of Konstanz Research Centre Immigration & Asylum Law Universitätsstraße 10, D-78457 Konstanz, Germany [email protected] VI

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Acknowledgments The editors express their gratitude to the researchers and assistants of the University Chair of European and International Law and the Research Centre Immigration & Asylum Law at the University of Konstanz. Professor Kay Hailbronner, who held the university chair until 2010, initiated the idea of the Commentary whose first edition was published in 2010. It has been managed by his successor Professor Daniel Thym ever since the second edition, published in 2016. The editors owe great debt to Sabine Gerber who did an excellent coordination work for the first edition. The second edition saw substantial changes that have been diligently administered by Carolin Beverungen Arévalo, Sigrid Gies and Dr. Tobias Klarmann. Marie-Louise Reuter deserves much appreciation for the skilful, trustworthy and cooperative way in which she managed the manuscripts submitted by the authors for the third edition. This time-consuming project could not have been completed without the invaluable help provided by the student assistants of the university chair. For the third edition they include: Jule Arwinski; Johanna Bottyanfy; Iris Imgrund; and Anna Schilling. All the people mentioned above did a wonderful job in preparing the word files for the commentary and in checking compliance with the style guide. Our contact persons with the publisher, Thomas Klich and Dr. Wilhelm Warth, deserve credit for their reliable and flexible cooperation.

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List of Authors Carolin Arévalo, Lawyer at Agora Cultural and Education Center, Legal Support to the AntiDiscrimination Offices in North Rhine Westphalia, Germany [Chapter 8 Articles 1-5] Hemme Battjes, Prof. Dr., Professor at the VU University Amsterdam/The Netherlands [Chapter 20 Articles 20-42] Jonas Bornemann, LL.M., Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany [Chapter 8] Harald Dörig, Prof. Dr., Judge at the Federal Administrative (Supreme) Court (retired), Leipzig/ Germany, Professor at the University of Jena/Germany [Chapter 20 Articles 1-10] Astrid Epiney, Prof. Dr., Professor at the University of Fribourg/Switzerland, Managing Director of the Institute for European Law, Rector of the University of Fribourg/Switzerland [Chapter 5] Sigrid Gies, Legal Officer at the Bureau of the Provincial Commissioner for Animal Welfare (Baden-Württemberg, Germany), former Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany [Chapter 17] Julia Herzog-Schmidt, Dr., Legal consultant and researcher [Chapter 12] Constantin Hruschka, Dr., Senior Researcher at the Max Planck Institute for Social Law and Social Policy, Munich/Germany and Lecturer at the Universities of Bielefeld/Germany, St. Gallen/Switzerland and Bern/Switzerland [Chapter 23] Sara Iglesias Sánchez, Dr., Référendaire, Court of Justice of the European Union [Chapter 14] Meltem Ineli-Ciger, Dr., Assistant Professor at the Suleyman Demirel University, Isparta/Turkey Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe [Chapter 24] Marcel Kau, Dr., LLM. (Georgetown), Associate Professor at the University of Konstanz/Germany [Chapter 10] Tobias Klarmann, Dr., Research Assistant at the Chair of Constitutional Law, Public International Law and Human Rights Law, University of Tübingen/Germany [Chapter 8 Articles 6-22] Ingo Kraft, Prof. Dr., Presiding Judge at the Federal Administrative (Supreme) Court, Leipzig/ Germany. Professor at the University of Leipzig/Germany [Chapter 20 Articles 11-14] Roman Lehner, Dr., Privatdozent at the University of Göttingen/Germany [Chapter 12, 17] Hendrik Lörges, LL.M., Legal Officer at the German Federal Ministry of the Interior, Berlin/ Germany [Chapter 16] Fabian Lutz, Dr., Senior Legal Expert, European Commission, DG Migration and Home Affairs [Chapter 11 Articles 1-11, 14, 18] Francesco Maiani, Prof. Dr., Professor in European Law at the University of Lausanne/Switzerland [Chapter 23] Sergo Mananashvili, Dr., International Centre for Migration Policy Development (ICMPD) [Chapter 11 Articles 12-13, 15-17, 19-23] Annalisa Meloni, Dr., Senior Lecturer in Law, University of East London/United Kingdom [Chapter 3] Madalina Moraru, Dr., Research Fellow, Centre for Judicial Cooperation, European University Institute, Florence/Italy and Lecturer in European Union Law, Judicial Studies Institute, Masaryk University, Brno/Czech Republic [Chapter 11 Articles 12-13, 15-17, 19-23] Clíodhna Murphy, Dr., Associate Professor, Maynooth University/Ireland [Chapter 15] Sarah Progin-Theuerkauf, Prof. Dr., Professor for EU Law and Migration Law, Co-Director of the Centre for Migration Law, University of Fribourg/Switzerland [Chapter 5]

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List of Authors Bernard Ryan, Prof. Dr., Professor of Migration Law, University of Leicester/United Kingdom [Chapter 4, 6] Florian Schierle, Head of Division at the Federal Ministry of Labour and Social Affairs, Berlin/ Germany [Chapter 13] Achilles Skordas, Prof. Em. Dr., University of Bristol/United Kingdom, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg [Chapter 19] Hugo Storey, Judge at the UK Upper Tribunal Immigration and Asylum Chamber (retired) [Chapter 20 Articles 15-19] Daniel Thym, Prof. Dr., Professor of European and International Law at the University of Konstanz (Germany), Director at the Research Centre Immigration & Asylum Law, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe [Chapter 1, 2, 7, 9, 18] Evangelia (Lilian) Tsourdi, (PhD, Université libre de Bruxelles) Assistant Professor and Dutch Research Council grantee (NWO VENI) at the Faculty of Law and the Maastricht Centre for European Law of the University of Maastricht [Chapter 22] Jens Vedsted-Hansen, Prof. Dr., Professor at Aarhus University/Denmark, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe [Chapter 21] Anja Wiesbrock, Dr., Senior Judicial Adviser at the Research Council of Norway [Chapter 15]

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List of Abbreviations ADD ................................... AFSJ .................................... AG ....................................... AMIF .................................. Asylum and Migration Interoperability Regulation (EU) 2019/ 818 ...................................... Asylum Procedures Directive 2013/32/EU ..... former Asylum Procedures Directive 2005/85/ EC ....................................... Asylum Qualification Directive 2011/95/EU .....

former Asylum Qualification Directive 2004/ 83/EC .................................

Asylum Reception Directive 2013/33/EU ..... former Asylum Reception Directive 2003/9/EC Blue Card Directive 2009/50/EC ....................... Borders and Visa Interoperability Regulation (EU) 2019/ 817 ...................................... BVerfGE ............................ BVerwGE ...........................

addendum Area of Freedom, Security and Justice Advocate General Asylum, Migration and Integration Fund Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the fields of police and judicial cooperation, asylum and migration (OJ 2019 L 135/27) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180/60) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326/13) Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of thirdcountry nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337/9) Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304/12) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180/96) Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31/18) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJ 2009 L 155/17) Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the fields of borders and visa and amending (OJ 2019 L 135/27) Decision of the German Federal Constitutional Court Decision of the German Federal Administrative Court

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List of Abbreviations C .......................................... CAT .................................... CEAS .................................. CEPS ................................... CISA ................................... cf. ......................................... CFI ...................................... CFR ..................................... Citizenship Directive 2004/38/EC .......................

CJEU ................................... CML Rev. .......................... CoE ..................................... COM .................................. Convention Implementing the Schengen Agreement ...................................

CoR ..................................... COREPER ......................... CRC .................................... CUP .................................... doc. ..................................... Dublin II Regulation (EC) No 343/ 2003 .................................... Dublin III Regulation (EU) No 604/ 2013 ....................................

e. g. ...................................... EASO .................................. EASO Regulation (EU) No 439/2010 ..................... EBGT .................................. EC ....................................... ECHR ................................. ECJ ...................................... ECR ..................................... ECRE ..................................

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Commission Documents relating to official instruments for which the Commission has sole responsibility Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Common European Asylum System Centre for European Policy Studies see Convention Implementing the Schengen Agreement confer Court of First Instance of the European Union (until 2009; thereafter: General Court) Charter of Fundamental Rights of the European Union Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77), as amended last by Regulation (EU) No 492/2011 (OJ 2011 L 141/1) Court of Justice of the European Union Common Market Law Review Council of Europe Commission Documents for the other institutions (legislative proposals, communications, reports, etc.) Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders of 19 June 1990 (OJ 2000 L 293/19). Committee of the Regions Committee of Permanent Representatives of the Government of the Member States Convention on the Rights of the Child Cambridge University Press Document Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50/1) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180/31) for example European Asylum Support Office Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office (OJ 2010 L 132/11). European Border Guard Team European Community (-ies) Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) European Court of Justice European Court Reports European Council on Refugees and Exiles

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List of Abbreviations ECtHR ................................ ed/eds ................................. EDPS .................................. EEA ..................................... EEC ..................................... EES ...................................... EES Regulation (EU) 2017/2226 ................

EFTA .................................. EJIL ..................................... EJML .................................. EL Rev. ............................... ELJ ...................................... Employers Sanctions Directive 2009/52/EC .....

EP ........................................ ESC ..................................... et al. .................................... et seq .................................. et seqq ................................ etc. ....................................... ETS ..................................... EU ....................................... EuConst ............................. Eurodac Regulation (EU) No 603/2013 .....................

EUROSTAT ...................... Family Reunification Directive 2003/86/EC ..... Free Movement Directive 2004/38/EC ...............

FRONTEX .........................

European Court of Human Rights editor/editors European Data Protection Supervisor European Economic Area European Economic Community Entry/Exit System Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of thirdcountry nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes (OJ 2017 L 327/28). European Free Trade Association European Journal of International Law European Journal of Migration and Law European Law Review European Law Journal Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ 2009 L 168/24) European Parliament Economic and Social Committee et alii/and others et sequentes/following et sequentes/and the following et cetera European Treaty Series European Union European Constitutional Law Review Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ 2013 L 180/1) Statistical Office of the European Union Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251/12) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77), as amended last by Regulation (EU) No 492/2011 (OJ 2011 L 141/1) European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union

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List of Abbreviations Frontex Regulation (EU) 2019/1896 ..........................

former Frontex Regulation (EC) No 2007/2004 .................... FYROM ............................. GAMM .............................. GATS .................................. GATT ................................. GC ....................................... GC ....................................... GC ....................................... Geneva Convention ........ GLJ ...................................... HRL Rev. ........................... HRC .................................... Human Trafficking Directive 2004/81/EC .....

i.e. ........................................ ibid. ..................................... ICC ..................................... ICC Statute ....................... ICJ ....................................... ICJ Statute ......................... ICT ...................................... ICT Directive 2014/66/ EU .......................................

ICCPR ................................ ICESCR .............................. ICLQ ................................... ICON .................................. ICRC ................................... IJRL ..................................... ILO ...................................... IM Rev. .............................. IMO .................................... IO ........................................ IOM .................................... ISCED ................................ JEMS ................................... JCMS .................................. JRSt. .................................... lit. ........................................ Long-Term Residents Directive 2003/109/EC ...

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Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/ 1624 (OJ 2019 L 295/1) Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349/1) Former Yugoslav Republic of Macedonia Global Approach to Migration and Mobility General Agreement on Trade in Services General Agreement on Tariffs and Trade General Court of the European Union (since 2009) Grand Chamber Geneva Convention See Refugee Convention German Law Journal Human Rights Law Review Human Rights Committee Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (OJ 2004 L 261/19) id est/that is/means ibidem/in the same place/the same International Criminal Court (Rome) Statute of the International Criminal Court International Court of Justice Statute of the International Court of Justice intra-corporate transferee Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of thirdcountry nationals in the framework of an intra-corporate transfer (OJ 2014 L157/1) International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International and Comparative Law Quarterly International Journal of Constitutional Law International Committee of the Red Cross International Journal of Refugee Law International Labour Organization International Migration Review International Maritime Organization International Organization International Organization for Migration International Standard Classification of Education Journal of Ethnic and Migration Studies Journal of Common Market Studies Journal of Refugee Studies litera/letter Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16/44), as amended last by Directive 2011/51/EU (OJ 2011 L 132/1)

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List of Abbreviations MBA ................................... MN ..................................... MoU ................................... NGO ................................... No ....................................... OJ ........................................ OSCE .................................. OUP .................................... p./pp. .................................. para ..................................... paras ................................... Posted Workers Directive 96/71/EC ....................

Refugee Convention ........ Rec. ..................................... former Researchers Directive 2005/71/EC ..... REV .................................... Return Directive 2008/ 115/EC ...............................

SAR Convention .............. Schengen Borders Code Regulation (EU) 2016/ 399 ......................................

former Schengen Borders Code Regulation (EC) No 562/ 2006 .................................... Schengen Implementing Convention ....................... Sea Borders Regulation (EU) No 656/ 2014 ....................................

Seasonal Workers Directive 2014/36/EU ...............

SEC ..................................... sent. ....................................

Master of business administration margin number/note Memorandum of Understanding Non-Governmental Organisation number Official Journal of the European Union Organisation for Security and Cooperation in Europe Oxford University Press page/pages paragraph paragraphs Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18/1), as amended last by Directive (EU) 2018/957 (OJ 2018 L 173/16) Geneva Convention relating to the Status of Refugees of 28 July 1951 as amended by the New York Protocol of 21 January 1967 Recommendation Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJ 2005 L289/15) revised Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348/98) International Convention on Maritime Search and Rescue (1979) Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77/1), as amended last by Regulation (EU) 2019/817 (OJ 2019 L 135/27) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105/1) see Convention Implementing the Schengen Agreement Regulation (EU) No 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2014 L189/93) Directive 2014/36/EU of the European Parliament and of the Council on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers of 26 February 2014 (OJ 2014 L 94/375) Commission Documents which cannot be classified in any of the other series sentence

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List of Abbreviations SIAC ................................... Single Permit Directive 2011/98/EU .......................

SIS ....................................... SIS II Regulation (EC) No 1987/2006 ...................

SIS Border Checks Regulation (EU) 2018/ 1861 ..................................... SIS Return Regulation (EU) 2018/ 1860 .................................... Social Security Coordination Regulation (EC) No 883/2004 .....................

SOLAS Convention ......... Students and Researchers Directive (EU) 2016/ 801 ......................................

former Students Directive 2004/114/EC .............

TEC ..................................... TEC (Nice version) ......... TEC (Maastricht version) .................................... TEC (Amsterdam version) .................................... Temporary Protection Directive 2001/55/EC .....

TEU .................................... TEU (Nice version) ......... TEU (Maastricht version) ....................................

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Special Immigration Appeals Commission Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (OJ 2011 L 343/1) Schengen Information System Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ 2006 L 381/4), with later amendments Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28.11.2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks (OJ 2018 L 312/14) Regulation (EU) 2018/1860 on the use of the Schengen Information System (SIS) for the return of illegally staying third-country nationals (OJ 2018 L 312/1) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security system (Text with relevance for the EEA and for Switzerland) (OJ 2004 L166/ 1), as amended last by Regulation (EU) 2019/1149 (OJ 2019 L186/21) Safety of Life at Sea Convention (1974) Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (OJ 2016 L132/21) Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L375/12) Treaty establishing the European Community EC Treaty (as amended by the Treaty of Nice) EC Treaty (as amended by the Treaty of Maastricht) EC Treaty (as amended by the Treaty of Amsterdam) Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (OJ 2001 L 212/12), as amended last by Commission Decision 2003/690/EC (OJ 2003 L 251/23) Treaty on European Union EU Treaty (as amended by the Treaty of Nice) EU Treaty (as amended by the Treaty of Maastricht)

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List of Abbreviations TEU (Amsterdam version) .................................... TFEU .................................. UDHR ................................ UK ....................................... UN ...................................... UNCLOS ........................... UNHCR ............................. Visa Code Regulation (EC) No 810/ 2009 .................................... VIS ...................................... VIS Regulation (EC) No 767/2008 .....................

Visa List Regulation (EU) 2018/ 1806 ....................................

former Visa List Regulation (EC) No 539/ 2001 ....................................

EU Treaty (as amended by the Treaty of Amsterdam) Treaty on the Functioning of the European Union Universal Declaration of Human Rights United Kingdom United Nations United Nations Convention on the Law of the Sea (1982) United Nations High Commissioner for Refugees Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243/1), as amended last by Regulation (EU) 2019/1155 (OJ 2019 L 188/25) Visa Information System Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ 2008 L 218/60), with later amendments Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2018 L 303/39), as amended last by Regulation (EU) 2019/592 (OJ 2019 L103I/1) Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81/1)

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PART A OVERARCHING THEMES Chapter 1. Constitutional Framework and Principles for Interpretation Select Bibliography (see also the selected bibliographies for the introductory chapters on entry and border controls, asylum and immigration policies): Acosta Arcarazo/Murphy (eds), EU Security and Justice Law (Hart, 2014); Azoulai/de Vries (eds), EU Migration Law (OUP, 2014); Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011); Boeles/den Heijer/Lodder/Wouters, European Migration Law, 2nd edn (Intersentia, 2014); Chetail/De Bruycker/Maiani (eds), Reforming the Common European Asylum System (Bruylant, 2016); Costello, The Human Rights of Migrants and Refugees in European Law (OUP, 2016); Craig, EU Administrative Law, 3rd edn (OUP, 2018); De Bruycker/De Somer/De Brouwer (eds), From Tampere 20 to Tampere 2.0 (EPC, 2019); Groenendijk, ‘Recent Developments in EU Law on Migration: The Legislative Patchwork and the Court’s Approach’, EJML 16 (2014), p. 313–335; Funke, ‘Primärrechtliche Grundlagen’, in: Wollenschläger (ed), Enzyklopädie Europarecht, Band X, 2nd edn (Nomos, 2021), § 16; Guild, Immigration Law in the European Community (Martinus Nijhoff, 2001); Guild/Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff, 2012); Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Icard (ed), Les flux migratoires au sein de l’Union européenne (Bruylant, 2018); Monar, ‘The Area of Freedom, Security and Justice’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 551–585; Majcher, The European Union Returns Directive and its Compatibility with International Human Rights Law (Brill Nijhoff, 2020); Moreno-Lax, Accessing Asylum in Europe (OUP, 2017); Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006); Peers, EU Justice and Home Affairs Law. Vol. 1, 4th edn (OUP, 2016); Peers/Hervey/Kenner/Ward (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014); Reneman, ‘Asylum and Article 47 of the Charter’, in: Crescenzi/Forastiero/ Palmisano (eds), Asylum and the EU Charter of Fundamental Rights (Editoriale Scientifica, 2018), p. 59–78; Thym, ‘Between “Administrative Mindset” and “Constitutional Imagination”. The Role of the Court of Justice in Immigration, Asylum and Border Control Policy’, European Law Review 44 (2019), p. 138–158; Thym, ‘EU Migration Policy and its Constitutional Rationale’, CML Rev. 50 (2013), p. 709–736; Thym, ‘A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases’, EJML 21 (2019), p. 166–193; Thym, Migrationsverwaltungsrecht (Mohr Siebeck, 2010); Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in: Tridimas/Schütze (eds), The Oxford Principles of European Union Law. Vol. I: The European Union Legal Order (OUP, 2018), p. 847–883; Walker (ed), Europe’s Area of Freedom, Security and Justice (Hart, 2004); Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff, 2010). Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Content I. General Remarks............................................................................................. 1. Evolution of the Treaty Regime .............................................................. 2. Objectives for Law-Making ...................................................................... 3. Political Programming............................................................................... II. Overarching Principles .................................................................................. 1. Interpretation of EU Legislation ............................................................. 2. General Principles (including Proportionality) ................................... 3. More Favourable National Provisions ................................................... 4. Application in Domestic Law .................................................................. 5. Procedural Fundamental Rights Guarantees........................................

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Constitutional Framework and Principles for Interpretation III. Territorial Scope (Member State Participation) ...................................... 1. Denmark ....................................................................................................... 2. Ireland (and the United Kingdom) ........................................................ IV. Human Rights and International Law ....................................................... 1. Charter of Fundamental Rights............................................................... 2. European Convention on Human Rights ............................................. 3. Refugee Convention and International Human Rights ..................... 4. Other International Agreements .............................................................

38 40 42 46 47 51 53 56

I. General Remarks 1. Evolution of the Treaty Regime EU immigration and asylum legislation is nowadays adopted on the basis of Articles 77–80 TFEU. These provisions have been firmly embedded into the supranational legal order of the EU Treaties since the entry into force of the Treaty of Lisbon on 1 December 2009. Prior to this date, the situation was different. To a large degree, early EU immigration and asylum law had been dominated by ad hoc inter-governmental cooperation between some or all Member States outside of the supranational Treaty framework. Informal cooperation had existed since the early 1970s1 and was subsequently transformed into binding international treaties such as the original Schengen Agreement of 1985, the Schengen Implementing Convention of 1990, in which the Member States took the initiative and side-lined the supranational institutions (see Thym, Legal Framework for Entry and Border Controls, MN 1), and the Dublin Convention of 1990 (see Thym, Legal Framework for EU Asylum Policy, MN 1). More detailed rules were laid down in the decisions of the Schengen Executive Committee and other bodies established under said Conventions, where national interior ministers adopted multiple implementing decisions, intergovernmental resolutions or similar arrangements (this mode of decision-making was often criticised as intransparent and undemocratic2). These rules later became known as the ‘Schengen Acquis’ and formed the backbone of EU immigration and asylum law, which will be discussed in this volume. While the UK and Ireland remained outside the Schengen framework, most other Member States joined Schengen (see below MN 42). 2 In 1992, the Treaty of Maastricht established a framework for decision-making on justice and home affairs within the newly founded European Union, which retained intergovernmental characteristics. At the time, the EU Treaty only allowed for the adoption of non-binding joint positions or the elaboration of international treaties (not supranational directives and regulations) to be ratified by national parliaments.3 They complemented informal cooperation, which had existed prior to the Treaty of Maastricht on a purely intergovernmental basis.4 Rules on intergovernmental justice and 1

1 Cooperation within the so-called TREVI group, which focused on internal security in response to terrorist attacks and selected asylum matters; see the historic study of Oberloskamp, Codename TREVI (De Gruyter Oldenbourg, 2016); on political debates on the use of supranational EEC competences throughout the 1980s, see Papagianni, Institutional and Policy Dynamics, p. 3–16. 2 See Curtin/Meijers, ‘The Principle of Open Government in Schengen and the European Union’, CML Rev. 32 (1995), p. 391–442; for improvements after the integration into the EU legal order, see Thym, ‘The Schengen Law: A Challenge for Legal Accountability in the European Union’, ELJ 8 (2002), p. 218, 221–233. 3 Cf. Article K.3(2) EU Treaty as amended by the Treaty of Maastricht of 7 February 1992 (OJ 1992 C 191/1); for further comments, see McMahon, ‘Maastricht’s Third Pillar: Load-Bearing or Purely Decorative?’, Legal Issues of European Integration 22 (1995), p. 51–64. 4 See, e.g. on the so-called Ad-hoc group on immigration AHIC and the London Resolutions on asylum of 1992, Denza, The Intergovernmental Pillars of the European Union (OUP, 2002), ch. 3.

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Chp. 1 home affairs in the Maastricht Treaty proved rather inefficient and produced little legally binding output.5 Nevertheless, the informal arrangements provided a bedrock of common standards which the EU institutions could build on once the Treaty of Amsterdam established a more robust Treaty base for migration and asylum law within the supranational EC Treaty.6 To satisfy British, Irish and Danish demands, these states were granted an opt-out (see below MN 38–45). At the same time, the Schengen Acquis was incorporated into the EU framework, thereby giving more substance to the new Treaty bases (see Thym, Legal Framework for Entry and Border Controls, MN 2–3). Since the entry into force of the Treaty of Amsterdam, the EU institutions have been 3 allowed to adopt regular Community instruments, in particular directives and regulations, which can be directly applicable and benefit from primacy over domestic law in cases of conflict, in line with the established principles of the supranational legal order. Nonetheless, the transfer of immigration, asylum and border controls to the supranational ‘first pillar’ remained incomplete, since the Treaties of Amsterdam and Nice continued specific institutional arrangements that diverged from the supranational decision-making method.7 This was deemed necessary in order to take account of the political ‘sensitiveness’ of matters which had hitherto belonged to the core issues of national sovereignty.8 For that reason, the Council acted unanimously on proposals from the Commission or a Member State in most subject areas and the European Parliament was only consulted. Moreover, not all domestic courts could make preliminary references to the Court of Justice.9 The Treaty of Nice, which entered into force in 2003, extended today’s ordinary legislative procedure to some policy fields10 and one year later the Council activated a bridging clause in the EC Treaty rendering more areas subject to qualified-majority voting in the Council and co-decision powers of the European Parliament.11 However, full supranationalisation was brought about only by the entry into force of the Treaty of Lisbon, which aligned immigration and asylum law with the orthodoxy of supranational decision-making. In the age of the Lisbon Treaty we may conclude that the former ‘ghetto’12 has been gentrified; Articles 77–80 TFEU are part and parcel of the supranational integration method.13 The Treaty of Lisbon not only streamlined decision-making procedures; it also 4 consolidated the scope of Union competences through a substantive revision of today’s Articles 77–80 TFEU in line with the proposal of the erstwhile Constitutional Treaty, which never entered into force. The European Convention, which drafted the Constitutional Treaty, was particularly active in the field of justice and home affairs and its 5 See Hailbronner, Immigration and Asylum Law, p. 47–52; Guild, Immigration Law, p. 255–273; and Monar/Morgan (eds), The Third Pillar of the European Union (Peter Lang, 1995). 6 Cf. Articles 61–69 EC Treaty as amended by the Treaty of Amsterdam of 2 October 1997 (OJ 1997 C 340/173); on the negotiating history, see Guild, Immigration Law, p. 295–311. 7 See Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’, CML Rev. 35 (1998), p. 1047–1067; Papagianni, Institutional and Policy Dynamics, p. 25–51; and Labayle, ‘Un espace de liberté, de sécurité et de justice’, Revue trimestrielle de droit européen 33 (1997), p. 813–881. 8 See Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 16–20. 9 See Articles 67, 68 EC Treaty (OJ 1997 C 340/173), which also provided for some qualified-majority voting in the Council after a five-year-period; and Hailbronner, Immigration and Asylum Law, p. 92–103. 10 Cf. Article 67(5) EC Treaty as amended by the Treaty of Nice of 26 February 2001 (OJ 2006 C 321E/ 37) and the Protocol (No 35) on Article 67 (OJ 2006 C 321E/317); for comments see Papagianni, Institutional and Policy Dynamics, p. 88–100. 11 See Decision 2004/927/EC (OJ 2004 L 396/45); and Kuijper, ‘The Evolution of the Third Pillar from Maastricht to the European Constitution: Institutional Aspects’, CML Rev. 41 (2004), p. 609, 613–619. 12 Peers, EU Justice and Home Affairs Law, 1st edn (Longman, 2000), p. 2. 13 See Peers, EU Justice, p. 8–17; and Labayle, ‘La nouvelle architecture de l’espace de liberté, de sécurité et de justice’, in: Kaddous/Dony (eds), D’Amsterdam à Lisbonne (Helbing Lichtenhahn, 2010), p. 3–28.

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conclusions on immigration and asylum retain full relevance, since they were later integrated in the Lisbon Treaty without major changes.14 To understand the meaning of Treaty formulations such as ‘integrated management system for external borders’ (Article 77(2)(d) TFEU), it is helpful to consult the drafting documents of the European Convention.15 The relevance of these debates for the scope of EU competences will be discussed in more detail in the introductions to the different chapters of this commentary dealing with border controls and visas (see Thym, Legal Framework for Entry and Border Controls, MN 7–24), immigration (see Thym, Legal Framework for EU Immigration Policy, MN 9–27) and asylum (see Thym, Legal Framework for EU Asylum Policy, MN 8–36).

2. Objectives for Law-Making Besides the consolidation of Union competences, the Treaty of Lisbon endorsed the self-sufficiency of EU immigration and asylum law in line with the reform steps agreed upon in the debate leading towards the Constitutional Treaty (see above MN 4). EU activity on the basis of Articles 77–80 TFEU is no longer presented as a spillover of the single market in line with the original assumption that the abolition of border controls within the Schengen area necessitated ‘flanking measures’ compensating Member States for the loss of control options at domestic borders (see Thym, Legal Framework for Entry and Border Controls, MN 3). Instead, immigration and asylum law was reaffirmed as a self-sufficient policy field in its own right within the area of freedom, security and justice,16 which Article 3(2) TEU lists among the central objectives of the European project. The concept of the ‘area of freedom, security and justice’ was first introduced first by the Treaty of Amsterdam and was later reinforced by the Treaty of Lisbon (in line with the Constitutional Treaty). It was conceived of as a grand design mirroring earlier projects to realise a single market or economic and monetary union, which were similarly based on a political vision to be realised through lawmaking, for which Treaty changes established new competences subject to streamlined decision-making procedures, thereby pushing the process of European integration into new directions.17 In the case of justice and home affairs, the success of this venture was complicated by the difficulty that it was not immediately clear what exactly the ‘area of freedom, security and justice’ was meant to mean. 6 The conceptual autonomy of the area of freedom, security and justice confirms that EU immigration and asylum law does not replicate the mobility regime for Union citizens. Two basic features define the new Treaty regime and illustrate that the area of freedom, security and justice differs from the historic template of Union citizenship: 5

14 Articles 77–80 TFEU correspond to Articles III-265–268 Treaty establishing a Constitution for Europe of 24 October 2004 (OJ 2004 C 310/1), which never entered into force; for the draft of the European Convention of 18 June 2018 see OJ 2003 C 169/1. 15 For details, see Ladenburger/Verwilghen, ‘Policies Relating to the Area of Freedom, Security and Justice’, in: Amato/Bribosia/de Witte (eds), Genèse et destinée de la Constitution européenne (Bruylant, 2007), p. 743–772; Thym, The Area of Freedom, Security and Justice in the Treaty establishing a Constitution for Europe, WHI Paper 12/2004, http://www.whi-berlin.eu/documents/whi-paper1204.pdf [last accessed 1 June 2021]; Labayle, ‘L’espace de liberté, sécurité et justice dans la Constitution pour l’Europe’, Revue trimestrielle de droit européen 41 (2005), p. 437–472; Weber, ‘Das Europäische Flüchtlings- und Migrationsrecht im Lichte des EU-Verfassungsentwurfs’, in: Pache (ed), Die Europäische Union – Ein Raum der Freiheit, der Sicherheit und des Rechts? (Nomos, 2005), p. 59, 74–89; and den Boer, ‘The European Convention and Its Implications for Justice and Home Affairs Cooperation’, in: Apap (ed), Justice and Home Affairs Law in the EU (Elgar, 2004), p. 121–134. 16 At a textual level, Article 67 TFEU defines the area of freedom, security and justice without reference to the concept of flanking measures (as did Article 61 lit. a EC Treaty-Amsterdam/Nice). 17 See Monar, The Area of Freedom, p. 554–555.

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Chp. 1 firstly, legislation concerning third country nationals is not usually based on individual rights to cross-border movement at constitutional level (see Thym, Legal Framework for EU Immigration Policy, MN 28–36); secondly, justice and home affairs are typified by a collection of diverse objectives laid down in the EU Treaties, which were introduced by the Treaty of Lisbon. The abolition of internal borders is complemented by ‘enhanced measures to combat illegal immigration’18, which , nevertheless, must be in ‘compliance with the principle of non-refoulement.’19 Generally speaking, ‘the efficient management of migration flows’20 is to be accompanied by ‘fair[ness] towards third country nationals.’21 The combination of three broad theoretical concepts, which can have diverse – and potentially contradictory – meanings depending on the context and the ideological predisposition in the notion of ‘area of freedom, security and justice’ reinforces the underlying uncertainty.22 These objectives may be summarised under the heading of ‘migration governance’ – a choice of terminology recognising that the migration control perspective of state authorities should ideally be accommodated with the legitimate interests of migrants.23 Given the multitude of policy objectives whose interaction needs to be adjusted in the legislative process the abstract designation of ‘justice and home affairs’ might be more appropriate than the grand slogan of an ‘area of freedom, security and justice’, which hints at an underlying normative vision that might not exist. The EU legislature benefits from principled discretion when realising the Treaty 7 objectives. The EU institutions are bound to promote the Treaty objectives, even if they do not regularly translate into judiciable yardsticks for secondary legislation24 – mirroring the constitutional status of the overarching aims in Articles 4 and 21 TEU. Academics may criticise the predominance of securitarian approaches focusing on migration control,25 but such criticism remains a conceptual critique with no immediate legal implications as long as it does not fall foul of judiciable constitutional requirements, such as human rights. This principled discretion on the side of the legislature in realising the Treaty objectives is confirmed, within the area of freedom, security and justice, by the inherent contradictions between different objectives: judges are badly placed to decide how to balance the ‘fair treatment’26 of third country nationals and ‘enhanced measures to combat illegal immigration’27 short of human rights standards, which individuals can rely on in courts (see below MN 46–55). Moreover, EU immigration and asylum law is not only bound to promote the objectives laid down in Articles 77–80 TFEU, since it must also contribute to the realisation of general objectives, such as ‘full employment’ (Article 3(1) TEU), which arguably supports 18

Article 79(1) TFEU. Article 78(1) TFEU. 20 Article 79(1) TFEU. 21 Article 67(2) TFEU; similarly, Article 79(1) TFEU; for the meaning of the different Treaty objectives see, again, Monar, The Area of Freedom, p. 552–562; Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Türk (eds), EU Administrative Governance (Elgar, 2006), p. 287, 289–293; and the introductory chapters on entry and border controls, immigration and asylum in this Commentary. 22 See Monar, The Area of Freedom, p. 552–562; and Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 5–10. 23 See Thym, EU Migration Policy, p. 718–723. 24 See Thym, Migrationsverwaltungsrecht, p. 96–99; and Bast, Aufenthaltsrecht, p. 141–144. 25 By way of example, see Guiraudon, ‘European Integration and Migration Policy’, JCMS 38 (2000), p. 251–271; Acosta Arcarazo/Martire, ‘Trapped in the Lobby: Europe’s Revolving Doors and the Other as Xenos’, EL Rev. 39 (2014), p. 362–379. 26 Article 67(2) TFEU. 27 Article 79(1) TFEU; emphasis added. 19

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restrained rules on the access of lesser qualified migrants for as long as unemployment remains ubiquitous among Union citizens.28 The same applies to the objectives of external action, which include, among other things, the eradication of poverty in developing countries.29 7a Among the objectives listed in the EU Treaties, the ‘fair treatment of third country nationals’ (Article 79(1) TFEU; similarly, Article 67(2) TFEU; French: traitement équitable; German: angemessene Behandlung) deserves closer attention, since it takes up a basic notion of social justice. While the formulation sounds grand at first reading, closer inspection advises caution. Firstly, the provision presents itself as a negative comparison with the ‘equal treatment’ of Union citizens, thereby signalling that primary law allows for a lesser degree of protection for third country nationals (see Thym, Legal Framework for EU Immigration Policy, MN 33–36).30 The expression was used first in the conclusions of the Tampere European Council (see below MN 8) that also promised more advanced rights for long-term residents, while employing ‘fair treatment’ as the standard formula for other third country nationals who reside legally.31 Historically, the term ‘fair treatment’ resonates with customary international rules on the treatment of foreigners, more specifically adequate standards for compensation.32 Secondly, the meaning of ‘fairness’ is, like ‘justice’33, notoriously difficult to determine. John Rawls may have built a theory of justice around the concept of ‘fairness’34, which, nonetheless, remains an essentially contested concept. To paraphrase constitutional theorist Jeremy Waldron: there are many of us and we disagree about fairness.35 Thirdly, the concept of fairness may indicate that the Treaties aim at a level of protection that transcends the minimum requirements of fundamental rights.36 Nevertheless, it will be difficult to deduct 28 With regard to third countries, the objective of combating poverty (Article 21(2)(d) TEU) calls for measures to counter the ‘brain drain’ of highly qualified migrants from developing countries. 29 Cf. Article 21(2) TEU, which can be used as a legal argument to prevent ‘brain-drain.’ 30 Similarly on the implicit distinction from Union citizens, see Wilderspin, ‘Article 79 TFEU’, in: Kellerbauer/Klamert/Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019), para 8; Funke, Primärrechtliche Grundlagen, paras 13, 58; Iglesias Sánchez, ‘Constitutional Identity and Integration: EU Citizenship and the Emergence of a Supranational Alienage Law’, GLJ 18 (2017), p. 1797, 1803; and Stern/Tohidipur, ‘Migration von Drittstaatsangehörigen’, in: von Arnauld (ed), Enzyklopädie Europarecht. Band X: Europäische Außenbeziehungen (Nomos, 2014), § 14 para 122. 31 See European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, paras 18, 21; for further comments see Thym, Long-Term Residents Directive 2003/109/EC, Article 1 MN 8. 32 Other language versions demonstrate a direct linguistic similarity with the so-called Hull Doctrine requiring ‘adequate’ compensation in case of expropriation, which similarly aimed at different standards for nationals and foreigners, albeit under reverse circumstances, since the objective was to treat foreigners better than nationals who often received nothing in case of expropriation; I would like to thank Sara Iglesias Sánchez for pointing out the similarity to me; on the background, see Jennings/Watts, Oppenheim’s International Law, 9th edn (OUP, 1992), p. 910–926. 33 Note that the English version employs the normative term ‘justice’ (French: justice), while other language versions use the more technical word ‘law’ (German: Recht; Dutch: recht); be it as it may, there was no common understanding about what the highly abstract term was meant to express; see Monar, The Area of Freedom, p. 560–562. 34 See Rawls, A Theory of Justice (Harvard UP, 1971). 35 Cf. the first phrase of Waldron, Law and Disagreement (Clarendon, 1999), which refers to ‘justice’, not ‘fairness.’ 36 See Thym, Citizens and Foreigners in EU Law, ELJ 22 (2016), p. 296, 306–311; McCormack-George, ‘Equal Treatment of Third-Country Nationals in the European Union: Why Not?’, EJML 21 (2019), p. 53, 65; and Groenendijk, ‘Legal Migration’, in: De Bruycker et al., From Tampere 20, p. 61, 64; in any case, it cannot be understood as an authorisation to establish standards that are lower than the requirements of the Charter, as suggested by Friðriksdóttir, What Happened to Equality? (Brill/Nijhoff, 2017), p. 327.

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Chp. 1 judiciable standards from the abstract notion of fairness beyond the legally binding minimum requirements of human rights law.37 The legislature has a principled discretion when determining what it considers fair and how it relates to other Treaty objectives (see above MN 7).

3. Political Programming

Article 68 TFEU The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice. In the initial stages of EU legislative harmonisation, the area of freedom, security 8 and justice established by the Treaty of Amsterdam was in search of an overarching rationale giving substance to the abstract notion of ‘freedom, security and justice’ (see above MN 6). An attempt to give justice and home affairs a political sense of direction was made by the programmes put forward by the European Council on the occasion of its meetings in Tampere (1999),38 The Hague (2004),39 Stockholm (2009)40 and Ypres (2014)41, which were complemented by policy-specific guidelines, the intergovernmental Pact on Immigration and Asylum of 2008,42 the European Agenda on Migration of 201543 or the ‘New Pact on Migration and Asylum’ of 2020.44 The theoretical underpinning of these programmes was met with criticism due to their lack of conceptual coherence across policy fields,45 but the programmes served important functions from a political perspective. They served as points of reference and provided political backing by heads of state or government for those supporting common action, thus helping to overcome resistance among domestic actors, when the European Council ‘urged’ hesitant interior ministers to ‘speed-up’ legislation.46 Article 68 TFEU, which explicitly mentions the strategic programming 37 Similarly, Funke, Primärrechtliche Grundlagen, para 22; see, however, Kosińska/Mikołajczyk, ‘Does the Right to Migration Security Already Exist?’, EJML 21 (2019), p. 83, 106–109; Herlin-Karnell, The Constitutional Structure of Europe’s Area of ‘Freedom, Security and Justice’ and the Right to Justification (Hart, 2019); and McCormack-George, ‘Equal Treatment of Third Country Nationals in the European Union: Why Not?’, EJML 21 (2019), p. 53, 65. 38 See the European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere; on the basis of the initial ‘Vienna Action Plan’ (OJ 1999 C 19/1). 39 The Hague Programme Strengthening Freedom, Security and Justice in the European Union (OJ 2005 C 53/1). 40 The Stockholm Programme: An Open and Secure Europe Serving and Protecting the Citizens (OJ 2010 C 115/1). 41 European Council, Conclusions of the Meeting on 26/27 June 2014 in Ypres, doc. EUCO 79/14, paras 1–13. 42 See Council doc. 13440/08 of 24 September 2008, which was spearheaded by France, Germany and the United Kingdom and reinvigorated the European debate. It was criticised for its focus on the perspective of interior ministers; cf. O’Dowd, ‘Mutual Recognition in European Immigration Policy’, in: Goudappel/Raulus (eds), The Future of Asylum in the European Union (Springer, 2011), p. 73, 77–78. 43 Commission Communication, COM(2015) 240 of 14 May 2015, which, as a Commission, had not officially been coordinated with the Council or the European Parliament. 44 See Commission Communication, COM(2020) 609 and the accompanying legislative proposals, which, similarly, did not necessarily reflect the Council’s or the Parliament’s view. 45 By way of example, see Monar, The Area of Freedom, p. 556–561. 46 See, e.g., the Seville European Council of 21/22 June 2002, Presidency Conclusions, Council doc. 13463/02 of 24 October 2002, para 37; see also Papagianni, Institutional and Policy Dynamics, p. 215–220.

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function, serves as a reminder of the initial significance of the European Council in the early 2000s.47 8a It remains uncertain whereas the European Council stands ready to continue the political programming or whether the – comparatively meagre – Ypres conclusions effectively marked the endpoint. The five-year cycle was not taken up in 2019, unless one counts the ‘New Strategic Agenda 2019–2024’48 as a replacement, even though it covered diverse policy areas, not only justice and home affairs, and dealt with entry control, immigration and asylum on half a page only. Legally, it can be maintained that these abstract guidelines are sufficient.49 It could even be argued that the ‘strategic guidelines’ need not be enshrined in a single document, but can be issued on a case-by-case basis whenever questions require the attention of heads of state or government.50 Apparently, the Council discussed more detailed draft strategic guidelines during March 2020, but failed to reach an agreement due to the opposition of two Member States.51 It is plausible that parallel debates within the Commission about the ‘New Pact on Migration and Asylum’ complicated an agreement among the Member States, since doing might have required the Council to deal with highly sensitive questions like refugee relocation. 8b Throughout the years, the focus of attention shifted in response to wider political and social developments in Europe and beyond. Such change of direction need not present itself as a disadvantage, since it is the purpose of strategic guidelines to ‘define the general political directions and priorities’52, which can evolve over time.53 While the initial Tampere Programme was full of youthful enthusiasm mirroring the optimism of the period after the end of the Cold War,54 The Hague Programme was dominated by the fight against terrorism and the Stockholm Programme made a deliberate effort, after heated political debates,55 to occupy a middle ground between security and control imperatives and human rights concerns in light of the new provisions of the Treaty of Lisbon.56 By contrast, the Ypres Guidelines were noticeably shorter and comprised only a few paragraphs with little substantive guidance,57 while the Strategic Agenda 2019–2024 covers diverse policy areas and deals with entry control, immigration and asylum on half a page.58 47 Like the other Treaty provisions on the area of freedom, security and justice, Article 68 TFEU was drafted in the early 2000s in the run-up to the erstwhile Constitutional Treaty (see above MN 4). 48 European Council, A New Strategic Agenda 2019–2024, Annex to doc. EUCO 9/19 of 20 June 2019, p. 7. 49 Note that Article 68 TFEU specifies neither the degree of detail nor the five-year time-cycle. 50 Note that the drafting history with its orientation at the historic model of the Tampere Conclusions argues against such an interpretation. 51 See the outcome of the 3756th Council Meeting, Council doc. 6582/20 of 13 March 2020, p. 3. 52 Article 15(1) TEU defining the general function of the European Council. 53 By contrast, Treaty rules on monetary union and the single market have been criticised for enshrining policy preferences in primary law, thereby frustrating calls for a political change of direction; see Scharpf, ‘The European Social Model’, JCMS 40 (2002), p. 645–670; and Grimm, ‘The Democratic Costs of Constitutionalisation. The European Case’, ELJ 21 (2015), p. 460–473. 54 For a generic statement, see Francis Fukuyama, The End of History and the Last Man (Free Press, 1992). 55 See Carrera, ‘The Impact of the Treaty of Lisbon over EU Policies on Migration, Asylum and Borders’, in: Guild/Minderhoud (eds), The First Decade, p. 229, 239–243. 56 For an overview, see Murphy/Acosta Arcarazo, ‘Rethinking Europe’s Freedom, Security and Justice’, in: ibid., EU Security, p. 1, 4–9; Kostakopoulou/Acosta Arcarazo/Munk, ‘EU Migration Law. The Opportunities and Challenges Ahead’, in: Acosta Arcarazo/Murphy, EU Security, p. 129, 133 report that the Council replaced the term ‘fairness’ with ‘well-managed’ in the preparation of the Stockholm Programme (see below MN 8). 57 See De Bruycker, ‘The Missed Opportunity of the “Ypres Guidelines” of the European Council Regarding Immigration and Asylum’, EUI Migration Policy Centre Blog on 29 July 2014. 58 See, again, European Council, A New Strategic Agenda 2019–2024, Annex to doc. EUCO 9/19 of 20 June 2019, p. 7.

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Chp. 1 The political programmes have lost their practical impact. Of course, controversial topics, such as the reform of the rules on asylum jurisdiction, may still be taken up at the highest political level, irrespective of whether they are addressed in medium-term 5 year programmes. From a legal perspective, the guidelines are political in the sense that institutions are 9 free to deviate from the contents in the legislative procedure; it would distort the institutional balance if the strategic guidelines under Article 68 TFEU prevented the Commission, the European Parliament and the Council from finding a different solution in the ordinary legislative procedure.59 An example is the drafting history of the Long-Term Residents Directive, which departed from the political guidance by the European Council in Tampere when it laid down rules that were considerably stricter than the free movement of EU citizens.60 Doctrinally, the political programmes are political in nature and do not commit the other institutions legally, they are, therefore, less relevant than the Treaty objectives introduced by the Treaty of Lisbon, which are binding as a matter of principle, even though the EU institutions have much discretion in deciding how to implement them (see above MN 7). The limited legal weight of the political programmes does not detract from their political significance, if heads of state or government help overcoming political stalemate (see above MN 8). Moreover, earlier programmes cannot be relied upon any longer after the expiration of the period for which they had been adopted. They may serve, however, as a contextual element elucidating the telos and the drafting history of legal instruments adopted at the time (see Thym, Long-Term Residents Directive 2003/109/EC, Article 1 MN 8–11). The loss of significance over demonstrates that the area of freedom, security and justice has reached a state of maturity. Change remains possible, but the various legislative instruments, which are commented upon in this volume, are now at the centre of attention. Abstract political programming has lost its relevance.

II. Overarching Principles 1. Interpretation of EU Legislation Immigration and asylum regulations and directives are interpreted in light of the 10 same principles that apply in other areas of EU law. These methods of statutory interpretation are well known in continental civil law jurisdictions, while experts socialised in common law countries are not always accustomed to them.61 They are described by the ECJ in general terms: ‘In accordance with the settled case-law of the Court, in interpreting a provision of EU law it is necessary to consider its wording, its origin, its context and the objectives pursued by the legislation of which it forms part.’62 Experts with a background in international law should recognise that the ECJ has emphasised for decades that the supranational legal order created a legal system and is not subject, therefore, to the interpretative principles of public international law.63 Closer inspection of ECJ practice demonstrates an emphasis on statutory interpretation 59 Similarly, see Müller-Graff, ‘Article 68 TFEU’, in: Pechstein/Nowak/Häde (eds), Frankfurter Kommentar (Mohr Siebeck, 2017), para 4. 60 See Thym, Long-Term Residents Directive 2003/109/EC, Article 1 MN 9, 11. 61 On the civil law background, see van Gestel/Micklitz, ‘Why Methods Matter in European Legal Scholarship’, ELJ 20 (2014), p. 292–316. 62 ECJ, Hassan, C-647/16, EU:C:2018:368, para 40. 63 Cf. ECJ, Costa v. E.N.E.L, 6/64, EU:C:1964:66; nevertheless, there is a certain parallelism between the interpretative principles of international treaty law and EU practice, in particular concerning the predominance of teleological interpretation prescribed in Articles 31–32 Vienna Convention on the Law

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with many judgments elaborating on the wording or general scheme of secondary legislation over dozens of paragraphs,64 while the earlier tendency for dynamic interpretation, which had defined the ECJ case law on primary law, has a lesser weight in migratory matters.65 Nevertheless, the emphasis on statutory interpretation must be combined with mandatory respect for constitutional requirements, such as human rights or international law (see below MN 46–59) as well as the unwritten general principles of Union law (see below MN 21–27). When interpreting secondary legislation, the institutional practice of the ECJ supports cross-fertilisation between different areas of Union law: there are no specialised chambers dealing with immigration or asylum; judges may decide cases on asylum procedures, tax policy, environmental regulation or consumer protection during the same week.66 The different chapters of this Commentary explore the interpretation of EU immigration and asylum instruments on the basis of the above-mentioned principles, including in situations where there is currently no ECJ case law on a specific question. 11 Dual indeterminacy of the supranational legal order and the political process complicates the operationalisation of the interpretative standards in practice. As a supranational and multilingual order, EU law often lacks the precision of domestic legal systems where certain terms often have a precise doctrinal meaning that has been historically constructed.67 Experts with a background in domestic legal systems mirroring the rich German or Italian tradition will find the ECJ’s approach a rough imitation of complex doctrinal arguments developing theoretically embedded legal concepts beyond a simple resolution of individual cases.68 By contrast, observers with a background in common law may be perplexed by the sincerity of the interpretative exercise. It is not only the ECJ practice which complicates the interpretative exercise. Debates in the Council and between the EU institutions tend to follow the tradition of diplomatic negotiations resulting in open compromise formulae instead of clear guidance.69 Poor drafting and lack of coordination between working parties can further entail that EU immigration and asylum legislation occasionally employs similar terminology and concepts, albeit with separate meanings in different legislative acts.70 In Mengesteab, for instance, the ECJ had to decide whether the initial asylum request with the border police or the official application with migration authorities defined time-limits under the Dublin system. After careful inspection of various methods of interpretation, including preparatory acts, the Court did not hide its apparent frustration when it concluded that the material ‘does not appear to be conclusive.’71 of Treaties; but see de Witte, ‘Retour à “ Costa ” – La primauté de droit communautaire à la lumière du droit international’, Revue trimestrielle de droit européen 20 (1984), p. 425–454. 64 See Thym, Bird’s Eye View, p. 183–184. 65 See Thym, “Administrative Mindset” and “Constitutional Imagination”, p. 148–157. 66 See Thym, Bird’s Eye View, p. 168–169, 175; and Groenendijk, Recent Developments, p. 329. 67 On the relative doctrinal weakness of EU law, see Poiares Maduro, ‘Interpreting European Law’, Eur. J. Legal Stud. 2 (2007), Issue 2, p. 1, 9–10; and von Danwitz, ‘Funktionsbedingungen der Rechtsprechung des Europäischen Gerichtshofs’, Europarecht (2008), p. 769, 780–782. 68 See Itzcovich, ‘The Interpretation of Community Law by the European Court of Justice’, GLJ 10 (2009), p. 537–561; and Bomhoff, ‘Perfectionism in EU Law’, The Cambridge Yearbook of European Legal Studies 12 (2014), p. 75–100. 69 See Sharpston, ‘Transparency and Clear Legal Language in the European Union’, The Cambridge Yearbook of European Legal Studies 12 (2009–2010), p. 409, 411–412. 70 See Hecker, ‘Zur Europäisierung des Ausländerrechts’, Zeitschrift für Ausländerrecht (2011), p. 46, 48–49. 71 ECJ, Mengesteab, C-670/16, EU:C:2017:587, para 100; and Thym, ‘Judicial Maintenance of the Sputtering Dublin System on Asylum Jurisdiction’, CML Rev. 55 (2018), p. 549, 558–560.

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Chp. 1 While the Court of Justice has acquired a certain celebrity for dynamic interpretation, 12 it should be noted that the most notorious examples of dynamic interpretation concerned essential components of the integration project, such as the primacy of Union law over domestic law, the realisation of the single market or the promotion of Union citizenship. By contrast, immigration and asylum law does not necessarily benefit from a similar constitutional predominance, since Treaty rules on the area of freedom, security and justice embrace diverse and occasionally conflicting objectives (see above MN 6–7a). It is convincing, therefore, that the ECJ exhibits more sensitivity towards the choices of the EU legislature in areas where the Treaties award the EU institutions greater leeway. In the case law on regulations and directives on migration, the majority of judgments is based on the wording, general scheme, objectives or other interpretative principles mentioned above – a tendency I described as the ‘administrative mindset’ of judges in Luxembourg.72 The Court’s approach towards secondary legislation is, from a methodological perspective, more conservative than towards Treaty law, even though statutory interpretation need not result in pro-state outcomes.73 The legislature holds the primary responsibility to define the contents of legislation in the ordinary legislative procedure on the basis of Articles 77–80 TFEU. A core aspect of many ECJ rulings on migration is the assumption ‘that, in 12a accordance with the need for a uniform application of EU law and the principle of equality, a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union.’74 By emphasising the autonomous self-sufficiency of supranational rules towards domestic law, judges in Luxembourg defend the effet utile of supranational rules vis-àvis national legal systems (see below MN 16). In the context of migration, it is usually relied upon by those challenging domestic practices, i.e. it is often the position of migrants which is vindicated when the ECJ insists on uniform interpretation.75 The autonomy argument applies to overarching themes, such as the notion of ‘public policy’ (see Thym, Legal Framework for EU Immigration Policy, MN 42a-42d), as well as distinct questions which are specific to individual articles, such as the meaning of ‘unaccompanied minor’ to decide whether the application of family reunification rules depends on the age at the time of the initial asylum application or the subsequent administrative decision (see Bornemann/Arévalo, Family Reunification Directive 2003/ 86/EC, Article 4 MN 21).76 It should be noted that uniform interpretation does not preclude a leeway of the Member States when applying supranational rules whenever autonomous interpretation supports that outcome.77 Moreover, autonomy has an ‘external’ dimension,78 if the meaning of Union law differs from similar concepts under public international law, such as in the case of subsidiary protection (see Thym, Legal See Thym, “Administrative Mindset” and “Constitutional Imagination”, p. 148–157. See Thym, Bird’s Eye View, p. 184–186. 74 ECJ, Belgischer Staat, C-133/19, C-136/19 & C-137/19, EU:C:2020:577, para 30; by contrast, in cases of references to domestic law the ECJ will usually refrain from defining the meaning, see ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 77. 75 See Acosta Arcarazo, ‘Civic Citizenship Reintroduced? ‘, ELJ 21 (2015), p. 200, 213–216. 76 ECJ, A & S, C-550/16, EU:C:2018:248, paras 37–64 opted for the former in the absence of clear statutory prescriptions. 77 By way of example, see ECJ, Bevándorlási és Menekültügyi Hivatal, C-519/18, EU:C:2019:1070, paras 44–45, 55–59; ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 23–27, 33; and ECJ, Saciri et al., C-79/13, EU:C:2014:103, paras 47–51. 78 See Klamert, ‘The Autonomy of the EU (and of EU Law)’, EL Rev. 42 (2017), p. 815, 819–823; and Thym, Bird’s Eye View, p. 177–178. 72 73

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Framework for EU Asylum Policy, MN 21; and Storey, Asylum Qualification Directive 2011/95/EU, Article 15 MN 12–14). 12b While the wording usually serves as a starting point, it will rarely resolve the dispute at hand as a result of poor legislative drafting and the indeterminacy of the supranational legal order, which mostly lacks predefined doctrinal structures in the tradition of civil law jurisdictions (see above MN 11 and below MN 18). Moreover, multilingual character of Union law can complicate the interpretative exercise whenever different language versions support diverging outcomes. According to settled case-law, ‘where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part.’79 Notwithstanding the factual predominance of English and French as the main working languages of the EU institutions and the Court of Justice, which holds its internal délibérés in French, all language versions have the same legal significance.80 The same applies to the literature. Academics and judges should make an effort to build bridges between transnational debates in English and the enduring domestic discussions within the Member States in the respective national languages,81 which the contributions to this commentary aim to integrate into their analysis. Commentators should not mistake the transnational debate in English for the only or main forum for legal debates about EU immigration and asylum law.82 13 Questions of interpretation frequently arise with regard to the drafting history of a directive or regulation. In earlier case law, the Court had generally attributed limited importance to the legislative history.83 Even interpretative declarations of the Member States were considered irrelevant in light of the primary importance of the fundamental freedoms,84 which realise the central Treaty concepts of the single market and Union citizenship (see above MN 12). In the area of freedom, security and justice, the Court takes the drafting history more seriously. Judgments regularly elaborate on ‘the origin’85 of the rule under consideration.86 It is recognised as an argument amongst others; in contrast to public international law, the preparatory work is not just supplementary.87 In practice, digitalisation facilitates consideration of the drafting history when information on the position of various actors is easily accessible through the EUR-Lex portal of the EU institutions;88 preparatory documents of the Council’s working party can be 79 ECJ, Stadt Frankfurt am Main, C-18/19, EU:C:2020:511, para 33 with regard to Article 18 Return Directive. 80 See Article 342 TFEU; and Regulation No 1 determining the languages to be used by the European Economic Community, Official Journal English Special Edition, Ser. I Vol. 1952–1958, p. 59. 81 See Thym, The Limits of Transnational Scholarship on EU Law. A View from Germany, EUI Working Paper LAW 2016/14, p. 2–16, available online at https://papers.ssrn.com/sol3/papers.cfm? abstract_id=2785668 [last accessed 1 June 2021]. 82 Not least as a result of Brexit and since Ireland does not participate in many immigration and asylum law initiatives; see below MN 42–45. 83 See Wendel, ‘Renaissance der historischen Auslegungsmethode?’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/Heidelberg Journal of International Law 68 (2008), p. 803, 807–811. 84 See, in the context of the free movement of EU citizens (not: third country nationals), ECJ, Antonissen, C-292/89, EU:C:1991:80, paras 17–18. 85 ECJ, Hassan, C-647/16, EU:C:2018:368, para 40. 86 By way of example, see ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, para 263; ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 59; ECJ, Hassan, C-647/16, EU:C:2018:368, paras 44–46; ECJ, Mengesteab, C-670/ 16, EU:C:2017:587, para 90; and ECJ, N, C-601/15 PPU, EU:C:2016:84, para 53. 87 Cf. Article 32 Article Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) UNTS Vol. 1155, p. 331. 88 In the ‘procedure’ section, the EUR-Lex portal offers detailed information for each legislative act, which may be identified through the EUR-Lex advanced search form (see http://eur-lex.europa.eu/

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Chp. 1 found via the public register of Council documents,89 at least once negotiations have been concluded.90 This information is particularly useful when addressing questions that have not yet been discussed in ECJ case law – as many chapters to this Commentary illustrate. The newly found prominence of historic interpretation extends to the EU Treaties mutatis mutandi, since the drafting documents of the rules on immigration and asylum in the Treaty of Lisbon and the European Convention preparing the Constitutional Treaty (see above MN 5) are easily accessible online.91 Article 52(7) of the Charter expressly obliges judges at national and European level to give due regard to the official explanations.92 In the field of asylum and immigration, human rights and international legal 14 standards have an enduring influence on the interpretation of EU law. In so far as public international law is concerned, the ECJ maintains that EU law must be interpreted in light of the international legal obligations of the European Union as a matter of principle, although there are some caveats concerning the direct applicability of international law as well as obligations of the Member States to which the EU has not signed up (see below MN 58–59). In practice, the Geneva Convention holds a special position which is confirmed by Article 78(1) TFEU (see Thym, Legal Framework of EU Asylum Law, MN 8, 47). When it comes to human rights, Article 6 TEU leaves no doubt that they must be respected; secondary legislation can be struck down or interpreted in conformity with human rights,93 as the ECJ reaffirmed in a number of cases on immigration and asylum.94 In practice, the European Convention of Human Rights plays a central role, since it informs the interpretation of the EU Charter (see below MN 49). There have been cases, however, where judges in Luxembourg preferred to focus on the general scheme (see above MN 12) instead of embarking on a human rights analysis, especially in situations where the human rights dimension did not directly influence the outcome of the case.95 Moreover, experts on immigration and asylum should recognise that the ECJ pays due regard to other constitutional principles, such as the division of competences between the European Union and the Member States,96 which may entail that the assessment of national laws beyond the scope of EU advanced-search-form.html) or via the subsection on ‘procedure’ of the corresponding preparatory COM document, available through the Commissions’ search form(see https://eur-lex.europa.eu/collection/eulaw/pre-acts.html; both accessed last on 1 June 2021). 89 Available online at https://www.consilium.europa.eu/en/documents-publications/public-register/publicregister-search [last accessed 1 June 2021]; I recommend to search via the document number, e.g. 12026/20. 90 Beforehand, they are often leaked on the Statewatch website, online at www.statewatch.org [last accessed 1 June 2021]. 91 For the European Convention, see http://european-convention.europa.eu; and for the IGC for the Lisbon Treaty, see http://www.consilium.europa.eu/en/documents-publications/intergovernmental-conferences [both accessed last on 1 June 2021]; for further reflection, see Craig, ‘The Detailed Mandate and the Future Methods of Interpretation of the Treaties’, in: Pernice/Tanchev (eds), Ceci n’est pas une Constitution – Constitutionalisation without a Constitution? (Nomos, 2008), p. 86–98. 92 See the Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303/17). 93 Similarly, Groenendijk, Recent Developments, p. 330; and Groß, ‘Europäische Grundrechte als Vorgaben für das Einwanderungs- und Asylrecht’, Kritische Justiz (2001), p. 100–111. 94 Cf., by way of example, ECJ, E, C-635/17, EU:C:2019:192, paras 55; ECJ, Gnandi, C-181/16, EU: C:2018:465, paras 54–56; ECJ, X, Y & Z, C-199/12 & C-200/12, EU:C:2013:720, para 40; and ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 34. 95 Cf., by way of example, the silence on Article 8 ECHR in ECJ, K & B, C-380/17, EU:C:2018:877, paras 51 et seq.; and ECJ, Noorzia, C-338/13, EU:C:2014:2092; or the lack of comments on human dignity or Article 34 of the Charter in ECJ, Saciri et al., C-79/13, EU:C:2014:103; see also Azoulai/de Vries, ‘Introduction’, in: ibid. (eds), EU Migration Law, p. 1, 6–7. 96 See Horsley, ‘Reflections on the Role of the Court of justice as the “Motor” of European Integration’, CML Rev. 50 (2013), p. 931, 941–953; and Thym, ‘Towards “Real” Citizenship?’, in: Adams et al. (eds), Judging Europe’s Judges (Hart, 2013), p. 155–174.

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obligations are left to national constitutions and the ECHR (see below MN 47–48). The ECJ is not a specialised immigration and asylum tribunal, but rather a supreme court with broader constitutional responsibilities. 15 Together with the concept of direct effect, the category of individual rights plays a prominent role.97 Judges recognised that migrants may have individual rights emanating from EU legislation98 and that, in addition, exceptions should be construed narrowly.99 On this basis, the position of migrants can be advanced through a rightsbased approach to statutory interpretation,100 as the case law on the Dublin III Regulation exemplifies (see Hruschka/Maiani, Regulation 604/2013, Article 27 MN 7–8). At the same time, there is an important difference between migratory matters and other areas of Union law where individual rights played a prominent part in limiting state discretion, such as the single market or Union citizenship. In immigration and asylum legislation, individual rights of third country nationals do not usually flow directly from the EU Treaties (see below MN 20).101 Human rights, in particular, do not typically comprise a guarantee to be granted access to the European territory (see Thym, Legal Framework for Entry and Border Controls, MN 32–36). Nevertheless, individual rights in secondary legislation can go beyond the level of protection prescribed by human rights, as the ECJ explicitly recognised in the case of family reunification.102 When deciding on the scope of the statutory rights beyond human rights requirement, the EU legislature determines the conditions and limits set forth in legislative instruments. Judges should generally respect these legislative choices, even though the precise contents can be difficult to determine, as the example of pre-departure language skills illustrated (Bornemann/ Klarmann, Family Reunification Directive 2003/86/EC, Article 7 MN 25–29). The contours of individual rights in EU legislation have to be determined under recourse to the interpretative principles, such as the wording, the telos or the general scheme (see above MN 10–13).103 16 EU law experts are aware that the ECJ frequently activates the principle of effet utile, supporting the domestic application of supranational rules. It was activated by the Court in immigration and asylum law, for instance when it prevented Member States from charging prohibitive fees that might render the realisation of statutory rights of migrants practically ineffective104 or required renewed application of the Dublin III Regulation in case of double irregular secondary movements.105 It is often applied in the form of a prohibition on undermining the objectives of secondary legislation to scrutinise domestic rules which are not covered by specific prescriptions in a directive or regulation (see below MN 21a).106 Examples are language requirements for long-term 97

Generally, see Thorson, Individual Rights in EU Law (Springer, 2016), chs 7–8, 16–26. By way of example, see ECJ, Chakroun, C-578/08, EU:C:2010:117, para 41. 99 By way of example, see ECJ, Arib et al., C-444/17, EU:C:2019:220, para 50. 100 See Bast, Aufenthaltsrecht, p. 101–111; Groenendijk, Recent Developments, p. 329–330; and Boeles, ‘What Rights Have Migrating Third country Nationals?’, in: de Zwaan/Goudappel (eds), Freedom, Security and Justice in the European Union (T.M.C. Asser, 2006), p. 151, 152–162. 101 For further reading, see Thym, “Administrative Mindset” and “Constitutional Imagination”, p. 151–152; and Thym, Constitutional Rationale, p. 718–721. 102 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, paras 59–60. 103 See Eilmansberger, ‘The Relationship between Rights and Remedies in EC Law’, CML Rev. 41 (2004), p. 1199, 1231–1245; Thorson, Individual Rights in EU Law (Springer, 2016); and the dynamic proposal by Warin, Individual Rights under European Union Law (Nomos, 2019). 104 See ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43; and ECJ, Commission v. Netherlands, C-508/ 10, EU:C:2012:243, para 65. 105 See ECJ, Hasan, C-360/16, EU:C:2018:35, paras 71–80. 106 See Thym, ‘Towards a Contextual Conception of Social Integration in EU Immigration Law’, EJML 18 (2016), p. 89, 97–98. 98

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Chp. 1 residents107 or the long list of cases limiting the criminalisation of irregular stay.108 While the effet utile can work to the benefit of migrants, it is not intrinsically linked to this scenario, since it promotes the effectiveness of Union law as an end in itself. The effet utile supports individual rights whenever the latter coincide with broader objectives of the integration process,109 whereas the effet utile will lead interpretation in other directions whenever Union law pursues different objectives. Thus, the ECJ emphasised that the Return Directive 2008/115/EC aims to establish an effective policy of removal and repatriation of illegally staying foreigners.110 Unfortunately, the ECJ can be superfluous when identifying the aims pursued by 17 the EU legislature.111 With regard to the Dublin III Regulation, for instance, it fluctuated between the prevention of secondary movements or ‘forum shopping’ in more restrictive cases112 and swift processing by means of stable asylum jurisdiction in more lenient judgments113 (both objectives should probably be considered to underlie the Regulation in parallel). Similarly, the Family Reunification Directive 2003/86/EC has been generally deemed to promote family reunification,114 while Article 4(5) establishing a minimum age of 21 years was considered to prevent forced marriages (an objective that may conflict with the promotion of family reunification).115 To say, moreover, that the Long-Term Residents Directive 2003/109/EC pursues the objective of promoting the integration of long-term residents may conceal the complexity inherent in the meaning of the seemingly well-defined ‘integration’ objective (see Thym, Legal Framework for EU Immigration Policy, MN 43–47). Judgments on the Long-Term Residents Directive present different visions depending on the outcome of the case (see Thym, Directive 2003/109/EC, Article 1 MN 17a). Likewise, it can be treacherous to rely solely on a particular recital, since closer inspection of the instrument in question in the light of the drafting history (see above MN 13) will often expose that legislative acts pursue diverse and potentially conflicting objectives which reflect the diversity of opinions among various participants in the legislative process in a democratic and pluralistic society.116 In such scenarios, courts should discuss the plurality of objectives openly and address them, where appropriate, in the balancing exercise that underlies the proportionality test (see below MN 26). It is not surprising that the ECJ supports the coherence of the supranational legal 18 order by interpreting similar terms in an identical fashion whenever appropriate. Doctrinal concepts developed for other segments of Union law are being applied to immigration and asylum legislation,117 such as the concept of ‘abuse’, which was first See ECJ, P & S, C-579/13, EU:C:2015:369, paras 44 et seq. See ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, paras 57–59; and ECJ, Sagor, C-430/11, EU: C:2012:777, paras 31–47, which distinguished between different criminal sanctions (not) impeding statutory objectives. 109 For a prominent critique, see Weiler, ‘Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy’, International Journal of Constitutional Law 12 (2014), p. 94–103. 110 See ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, para 59. 111 Generally, see Thym, Bird’s Eye View, p. 186–187. 112 ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, para 79; and ECJ, Mirza, C-695/15 PPU, EU: C:2016:188, para 52. 113 See ECJ, Ghezelbash, C-63/15, EU:C:2016:409, para 52; ECJ, Mengesteab, C-670/16, EU:C:2017:587, paras 54, 73, 96; and ECJ, X & X, C-47/17 & C-48/17, EU:C:2018:900, para 69. 114 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43. 115 ECJ, Noorzia, C-338/13, EU:C:2014:2092, para 16. 116 To pursue diverse and potentially conflicting aims is a hallmark of open democratic discourse, not a pathology. 117 See Groenendijk, Recent Developments, p. 329; and Jesse, ‘The Value of “Integration” in European Law’, ELJ 27 (2011), p. 172–189. 107 108

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developed for economic market regulation (see Thym, Legal Framework for EU Immigration Policy, MN 48–49). As a matter of principle, the ECJ highlights in welcome clarity the objective of interpretative coherence: whenever two instruments use similar terminology, the same definition should be used ‘[w]ith a view to a consistent and uniform application of Union law on asylum and immigration.’118 However, parallel interpretation of similar terminology is no foregone conclusion, since it depends on the context of the statutory rule under consideration. Occasionally, the legislature may expressly define the meaning of a term for the purpose of specific instruments,119 in line with the objective of terminological coherence in legislative drafting.120 Nevertheless, the institutional practice is not always clear-cut. An example of incoherent terminology is the definition of the term ‘third country national’ which Article 2(a) Family Reunification Directive and Article 2(a) Blue Card Directive define as any person who is not a Union citizen, while Article 3(1) Return Directive excludes those enjoying the right of free movement as a family member of Union citizens from the definition of third country nationals for the purposes of the directive.121 In other scenarios, the application of interpretative criteria to the wording, general scheme, objective and drafting history of secondary legislation (see above MN 10–13) may support the conclusion that identical terms have distinct implications in different instruments.122 The best example of the potential and limits of interpretative coordination in the ECJ case law is the ‘public policy’ exception, in relation to which the ECJ recognised that it has a uniform meaning in different segments of Union law as a matter of principle, even though the interpretative exercise may result in legislation-specific outcomes (see Thym, Legal Framework for EU Immigration Policy, MN 42a-42d). It therefore has to be ascertained, in line with general interpretative criteria, whether and, if so, to what extent different legislative acts may be interpreted in parallel. 19 Case law on the Association Agreement between the EEC and Turkey and related Decisions of the Association Council, was often relied on as a harbinger of dynamic interpretation of similar terminology.123 It demonstrates both the potential and the limits of parallel interpretation. The ‘so far as is possible’124 formula employed by the ECJ reflects the wording of the Association Agreement with Turkey which stipulates explicitly that rules on Turkish citizens should be approximated to the economic freedoms in the single market.125 This implied, in turn, that parallel interpretation came to an end where the objectives and the general scheme of Union law and the 118

ECJ, Staatssecretaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9, para 38. Such official definitions can usually be found in the introductory operative articles of the directive or regulation and may be specific to it, i.e. other instruments may prescribe a different meaning. 120 The Joint Practical Guide of the European Parliament, the Council and the Commission for Persons Involved in the Drafting of European Union Legislation, July 2016, Guideline 6.3.1 calls for consistent terminology: ‘Any given term is therefore to be used in a uniform manner to refer to the same thing … This applies not only to the provisions of a single act, including the annexes, but also to the provisions of related acts.’ 121 See Klarmann, Illegalisierte Migration. Die (De-)Konstruktion migrationsspezifischer Illegalität im Unionsrecht (Nomos, 2021), p. 86–88. 122 See, by way of example, the divergent interpretation of the term ‘worker’ and ‘social assistance’ in the context of Union citizenship with regard to the Citizenship Directive 2004/38/EC and the Social Security Coordination Regulation (EU) No 883/2004 reaffirmed by ECJ, Brey, C-140/12, EU:C:2013:565. 123 See Barbou des Places, ‘Droit communautaire de la liberté de circulation et droit des migrations’, in: L’Union européenne: Union de droit, Union des droits. Mélanges en l’honneur de Philippe Manin (Pedone, 2010), p. 341, 344–350; Carrera/Wiesbrock, ‘Whose European Citizenship in the Stockholm Programme?’, EJML 12 (2010), p. 337, 347–349; and Groenendijk, Recent Developments, p. 321–324. 124 ECJ, Bozkurt, C-434/93, EU:C:1995:168, para 20. 125 See the Preamble and Article 12 Agreement Establishing an Association between the European Economic Community and Turkey of 12 September 1963 (OJ 1977 L 361/1). 119

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Chp. 1 Association Agreement diverged, for instance with regard to the notion of ‘public policy’ (see Thym, Legal Framework for EU Immigration Policy, MN 24b, 60). Considerations above demonstrate that it is a general feature of EU immigration and 20 asylum law that the interpretation of specific rules depends on the broader statutory and constitutional context. It is therefore not convincing to maintain the generic argument that the interpretation of secondary legislation on immigration and asylum by the ECJ will support a sort of domino effect that confers equal rights as Union citizens upon third country nationals.126 There is no legal expectation enshrined at Treaty level that third country nationals and Union citizens should have similar rights. EU citizens benefit from individual rights emanating from the Treaty concept of Union citizenship, while third country nationals cannot rely upon legal guarantees of cross-border movement with constitutional status in regular circumstances (see above MN 15). Judges in Luxembourg have repeatedly recognised that ‘a particularly restrictive interpretation’127 of derogations of the rights of Union citizens was required in the light of EU primary law.128 This cannot be extended to the rules on immigration and asylum, which are an integral part of the area of freedom, security and justice in line with the diverse policy objectives laid down in the EU Treaty (see above MN 6–7), which distinguish the new policy field from the historic template of the single market and Union citizenship (see Thym, Legal Framework for EU Immigration Policy, MN 28–36). This different constitutional context for immigration and asylum law supports the search for autonomous solutions for third country nationals in light of the wording, the origin, the general scheme and legislative objectives as well as constitutional prescriptions and general principles of the supranational legal order.

2. General Principles (including Proportionality) The supranational legal order comprises a number of unwritten general principles, 21 which were developed by the Court of Justice on the basis of the legal traditions common to the domestic legal orders of the Member States.129 These general principles were developed by the ECJ over the past few decades and are now applied to immigration and asylum law as an integral part of the EU legal order. As unwritten rules, general principles apply without the need for references to them in secondary legislation. They can be relied upon to interpret measures adopted by the EU institutions and, in exceptional circumstances, they may serve as grounds for challenging the validity of secondary legislation.130 General principles are also binding on Member States when implementing Union law: state authorities and domestic courts must respect the general principles when they adopt decisions or render judgments whose outcome is determined by EU law mirroring the scope of the Charter of Fundamental Rights (see below MN 47–47a). Whenever Member States are not bound by general principles, they apply national 21a standards, including domestic constitutional guarantees. This concerns in particular 126 Such predictions usually rely on the abstract recognition that proportionality applies in both scenarios without considering the constitutional context; see, by way of example, Groenendijk, Recent Developments, p. 330–332; Wiesbrock, ‘Granting Citizenship-related Rights to Third country Nationals’, EJML 14 (2012), p. 63, 76–79; and Carrera, In Search of the Perfect Citizen? (Martinus Nijhoff, 2009), ch. 3. 127 By way of example, see ECJ, Orfanopoulos & Olivieri, C-482/01 & C-493/01, EU:C:2004:262, para 65. 128 See also, Thym, Constitutional Rationale, p. 718–721. 129 For further reading, see Craig, Administrative Law, chs 15–21; and Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007). 130 On the hierarchical superiority of the general principles in situations of judicial review, see ECJ, Audiolux, C-101/08, EU:C:2009:626, para 63.

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questions that are not covered by secondary legislation, such as the status of nondeportable foreigners beyond the peripheral prescriptions in Article 14 Return Directive. In these areas, Union law and general principles do not apply as a matter of principle, even though judges may exceptionally limit state discretion if the latter undermines the effective realisation of the objectives of secondary legislation (see above MN 16). A fine example is the line of judgments limiting the criminalisation of illegal stay by the Member States following the initial El Dridi ruling (see above MN 16). 22 Human rights have traditionally been the most relevant unwritten general principles. Following the entry into force of the Treaty of Lisbon, the legally binding Charter of Fundamental Rights means that human rights are nowadays often discussed separately, as in this chapter (see below MN 47–50). General principles include the primacy and direct effect of Union law in national legal orders, when individuals rely upon EU rules that are clear, precise and unconditional in national courts and when the supranational rules prevail over domestic laws in cases of conflict (see below MN 34). Other principles include legitimate expectations and legal certainty131 or damages Member States may have to pay to individuals for manifestly and gravely disrespecting their obligations under EU law,132 which have not gained much practical relevance for migratory matters so far. General principles relating to the right to defence and judicial protection will be discussed below (see below MN 37–37c). 23 From a conceptual perspective, the general principles guarantee that EU immigration and asylum law is firmly embedded into the rule of law. Traditional notions of migration law and alienage as an exclave of legal protection, which prevailed in some Member States until recently, cannot be maintained.133 Poland, for instance, cannot exclude the jurisdiction of domestic courts in a dispute concerning the denial of a visa.134 The significance of the general principles comes to the fore after the end of the legislative procedure, once domestic courts and the ECJ begin to interpreting Union law. Unexpected legal effects flowing from the interpretation of secondary law in light of general principles are a common phenomenon,135 even though judges in Luxembourg did not continue their earlier celebrity for dynamic interpretation when interpreting immigration and asylum legislation (see above MN 12). In its case, the ECJ adapts the bearing of general principles to the specificities of the area of freedom, security and justice whenever appropriate.136 24 The general principle of proportionality is of great importance and has a dual relevance: it serves as a yardstick for the delimitation of EU competences137 and defines 131

See Craig, Administrative Law, ch. 18; and Wiesbrock, Legal Migration, p. 189–192. Cf. ECJ, Brasserie du pêcheur & Factortame, C-46/93 & C-48/93, EU:C:1996:79 and any textbook on EU law. 133 Cf. Thym, Migrationsverwaltungsrecht, p. 198–211; and Groenendijk, ‘Citizens and Third Country Nationals’, in: Carlier/Guild (eds), L’avenir de la libre circulation des personnes dans l’U. E. (Bruylant, 2006), p. 79, 98–100. 134 See ECJ, El Hassani, C-403/16, EU:C:2017:960, paras 39–41, even though it remained unclear, in light of the more elaborate opinion of AG Bobek, to what extent the verdict rested on the general assumption that states must provide for judicial review in areas where no statutory individual rights exist (see below MN 37c). 135 Similarly, De Bruycker, ‘Legislative Harmonization in European Immigration Policy’, in: Cholewinski et al. (eds), International Migration Law (T.M.C. Asser Press, 2007), p. 329, 343; and Kluth, ‘Reichweite und Folgen der Europäisierung des Ausländer- und Asylrechts’, Zeitschrift für Ausländerrecht (2006), p. 1, 6–7. 136 See Labayle/Bergé, ‘Les principes de l’Espace de liberté, de sécurité et de justice’, Revue trimestrielle de droit européen (2016), p. 589–610; and Herlin-Karnell, ‘Constitutional Principles in the Area of Freedom, Security and Justice’, in: Acosta Arcarazo/Murphy (eds), EU Security and Justice Law (Hart, 2014), p. 38–53. 137 I.e. the definition of the scope of EU powers in line with Article 5(4) TEU. 132

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Chp. 1 the limits of state action affecting individuals.138 It is the second scenario that is especially relevant in the field of immigration and asylum. Generally speaking, any application of the principle of proportionality requires a multi-step test, which may ideally concern four questions: firstly, the state measure affecting individuals must pursue a legitimate aim; secondly, the measure must be suitable for achieving the objective; thirdly, the state action must be necessary to achieve the aim, since there are no less onerous ways available; finally, proportionality sensu stricto is assessed on the basis of a balancing exercise that takes the competing interests into account (although the ECJ sometimes merges the third and fourth criteria).139 This four step test rationalises the application of the principle of proportionality and allows courts and academics to evaluate individual scenarios more easily. It is important to understand that, despite being based on objective standards, any 25 assessment of proportionality depends on the circumstances of the individual case. Closer inspection of the ECJ case law on migratory matters shows that proportionality is a uniform principle whose application is context-specific.140 While judges often leave the EU institutions more leeway when assessing the proportionality of EU legislation, they are sometimes (not: always) stricter with regard to state action.141 Unfortunately, it is difficult to discern a clear pattern as to when and why judges opt for a higher or lower level of scrutiny.142 The abstract criteria of the four-pronged test described above have to be assessed in light of the measure in question and the constitutional context. This dependence on context implies that the degree of judicial scrutiny may depend on the subject area under consideration. There may be good reasons to treat pre-departure language tests as a precondition for family reunification differently from police checks near internal Schengen borders, time limits for accelerated asylum procedures or the suitability of the refugee relocation scheme in light of Treaty objectives.143 The argument in favour of a margin of appreciation by the EU legislature or domestic authorities is particularly strong when assessing questions in relation to which no distinct European position exists144, when courts lack information or expertise and when broader value judgments have to be made.145 An important feature of the ECJ case law is the ‘clear separation of functions between 25a the national courts and the Court of Justice’146 under the preliminary reference procedure. While the ECJ remains responsible for interpreting Union law, any assessment of the facts as a matter for domestic courts. Since the principle of proportionality is in essence about a weighing exercise in light of the specificities of the legal and factual 138 In contrast to the German legal order, from which the ECJ derived the principle of proportionality, its application is not limited to situations of state interference with individual rights; the ECJ tends to apply proportionality as a limit to state power also in situations not covered by individual rights. 139 For details, see Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007), ch. 3. 140 See Thym, Bird’s Eye View, p. 187–192. 141 See Craig, Administrative Law, chs 19–20; and Tridimas, ‘The Principle of Proportionality’, in: ibid. and Schütze (eds.), The Oxford Principles of European Union Law, Vol. I (OUP, 2018), p. 243, 251–262. 142 Cf. Zglinski, ‘The Rise of Deference’, CML Rev. 55 (2018), p. 1341–1385. 143 For these four examples, see ECJ, A, C-9/16, EU:C:2017:483, paras 60–61; ECJ, Samba Diouf, C-69/ 10, EU:C:2011:524, paras 66–68; and ECJ, Slovak Republic & Hungary v. Council, C-643/15 & C-647/15, EU:C:2017:631, paras 206–224. 144 For the ECJ practice in the light of constitutional theory, see Dawson, The Governance of EU Fundamental Rights (CUP, 2017), p. 78–80; and Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, ELJ 17 (2011), p. 80, 85–100. 145 For the differentiated ECJ approach to the principle of equality, see Croon, ‘Comparative Institutional Analysis, the European Court of Justice and the General Principle of Non-Discrimination-orAlternative Tales on Equality’, ELJ 19 (2013), p. 153–173. 146 ECJ, Dumon & Froment, C-235/95, EU:C:1998:365, para 25.

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situation, there are good reasons why the ECJ often leaves the proportionality test to domestic courts. In these cases, it remains the responsibility of national judges to apply supranational standards diligently; deference to domestic courts does not release them from the rule of law. Theoretical considerations invite the ECJ to treat domestic courts as partners and to seek a viable working relationship, since the domestic level is crucial for the effective application of supranational rules on the ground.147 ECJ practice shows that the degree of deference can differ considerably. While judges give detailed instructions in some cases, they limit themselves to abstract principles on other occasions and refrain from substantive guidance on how to apply the principle of proportionality in other judgments.148 Generally, there are good constitutional reasons that judges give domestic courts more leeway when the answer to a question requires an intimate knowledge of the facts, does not concern matters of great practical or conceptual importance for Union law or is intricately linked to the domestic legal context, not least in the field of administrative or judicial procedure.149 26 In the evaluation of specific scenarios, it is necessary to clearly identify both the objective(s) pursued by state measures and individual interest(s) at stake. Without careful identification of the objectives and interests, the balancing exercise in the final proportionality assessment sensu stricto runs the risk of remaining aloof, since it ignores the relative weight of public policy objectives and private interests. It found, for instance, that national rules laying down a maximum period of eight months may be justified for third country nationals, although it violates the EU Treaties for Union citizens, whose special status bears greater weight in the proportionality assessment.150 Unfortunately, the ECJ can be superfluous in the identification of the aim pursued by the EU legislature effet utile(see above MN 17). With regard to the Visa Code Regulation (EC) No 810/2009, judges highlighted the dual and potentially contradictory objective of facilitating legitimate travel and of preventing ‘visa shopping.’151 In such scenarios, judges should discuss the plurality of objectives openly and address them in the balancing exercise. When it comes to fundamental rights, there is often established ECtHR case law, which may serve as guideline for interpreting the Charter (see below MN 50). When statutory rights enshrined in EU legislation go beyond human rights requirements, for instance with regard to family reunification (see above MN 15), they have a greater weight in the weighing exercise. 27 An open question concerns the interaction between statutory rules and the principle of proportionality when legislative rules lay down general standards by requiring, for instance, immigrants to have a certain amount of money, comply with language requirements, meet time limits or demonstrate certain skills. A number of judgments can be read to supplant these general rules with an individualised assessment requiring the legislature or domestic authorities to set aside abstract prescriptions.152 By 147 See the classic account by Alter, ‘The European Court’s Political Power’, Western European Politics 19 (1996), p. 458, 466–471; remember that, without references from domestic courts, few cases would reach the ECJ, which, moreover, would not have enough capacities to handle a major increase of the caseload if it decided all matters independently without deference to domestic courts. 148 See Thym, Bird’s Eye View, p. 189–191; and Tridimas, ‘Constitutional Review of Member State Action. The Virtues and Vices of an Incomplete Jurisdiction’, ICON 9 (2011), p. 737, 739–745. 149 Thym, Bird’s Eye View, p. 191–192. 150 See ECJ, Ordre des barreaux francophones et germanophone et el., C-718/19, EU:C:2021:505, paras 65–72, which also mention procedural and contextual differences. 151 See ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 52–53. 152 By way of example see, on language requirements, ECJ, K & A, C-153/14, EU:C:2015:453, paras 58–60 referring to both the principle of proportionality and Article 17 Family Reunification Directive; on financial means see ECJ, X, C-302/18, EU:C:2019:830, para 39 highlighting the statutory requirement of

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Chp. 1 contrast, other rulings accepted clear-cut conditions or thresholds without requiring domestic authorities to embark on an investigation of whether the individual situation warranted a different treatment.153 Unfortunately, the case law is not straightforward.154 It should be noted, in particular, that human rights do not prevent precise statutory conditions provided that an assessment of the legislation indicates that public policy objectives generally prevail over private interests insofar as the proportionality of the general rules is concerned.

3. More Favourable National Provisions Most directives on immigration and asylum contain an express provision stating that 28 it does not prevent Member States from introducing or retaining more favourable provisions – a discretion which most instruments adopted in recent years qualify to be limited ‘insofar as these [national rules] are compatible with this Directive.155 These provisions in secondary legislation are generally understood to allow Member States to adopt rules in favour of third country nationals whose rights and duties are regulated by the Directive in question,156 although the precise scope remains unclear. Both the new primary law framework of the Treaty of Lisbon and the aforementioned proviso concerning compatibility with the directive in question argue in favour of a cautious approach towards national deviations. It will be demonstrated in this section that, notwithstanding specific prescription in individual directives, Member States cannot deviate from common rules on the basis of generic clauses on more favourable rules whenever the instrument in question opts for full harmonisation. Before the entry into force of the Treaty of Lisbon, the Treaty allowed for the 29 adoption of ‘minimum standards’ only, while rules on immigration, border controls and visas had not been subject to a similar restriction.157 It was often argued at the time that the limitation to ‘minimum standards’ in EU primary law and corresponding provisions in secondary legislation should be understood, in a similar way to international human rights law, as a minimum requirement for domestic legislation, while generally allowing for more generous rules for the benefit of migrants, especially in the field of asylum.158 It is no longer relevant whether this was correct, since the Treaty of Lisbon abandoned the restrictive Treaty base, thereby permitting a higher degree of harmonisation (see above MN 3–4). New legislation on asylum has been adopted allowing for more favourable ‘sufficient’ resources in Article 5(1)(a) Long-Term Residents Directive; and on Union citizens and the loss of nationality see ECJ, Tjebbes et al., C-221/17, EU:C:2019:189, paras 40–42. 153 See, on the loss of long-term residence status, ECJ, Y.Z. et al., C-557/17, EU:C:2019:203, para 73; on Union citizenship and social benefits ECJ, Alimanovic, C-67/14, EU:C:2015:597, paras 59–60; and on the loss of nationality AG Mengozzi, Tjebbes et al., C-221/17, EU:C:2018:572, paras 51–118; similarly, the position of the German Federal Administrative Court (Bundesverwaltungsgericht), judgment of 19 April 2018, 1 C 1.17, ECLI:DE:BVerwG:2018:190418U1C1.17.0, para 61 on the application of the Rottmann judgment; and, generally, of the German Federal Constitutional Court (Bundesverfassungsgericht), decision of 17 December 2013, 1 BvL 6/10, ECLI:DE:BVerfG:2013:ls20131217.1bvl000610, paras 84–85. 154 See Davies, ‘How Citizenship Divides. The New Legal Class of Transnational Europeans’, European Papers 4 (2019), p. 675, 682–685; and Van Eijken, ‘Tjebbes in Wonderland’, EuConst 15 (2019), p. 714, 723–725. 155 By way of example, see Article 5 Asylum Procedure Directive 2013/32/EU. 156 See Peers, EU Justice, p. 450. 157 Contrast the Treaty bases for asylum in Article 63(1)(a)-(c) and 63(2) EC Treaty as amended by the Treaty of Nice (OJ 2006 C 321E/5) with rules for immigration in Article 63(3) and for border controls and visas in Article 62 EC Treaty. 158 Cf. Storey, ‘EU Refugee Qualification Directive: A Brave New World?’, IJRL 20 (2008), p. 1, 16–22; and Lambert, ‘The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law’, ICLQ 55 (2006), p. 161–191.

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national rules only insofar as they are compatible with the relevant directive.159 The interpretation of these rules should acknowledge the broader objective laid down in the EU Treaty to move towards a ‘Common European Asylum System’ as an integral part of the area of freedom, security and justice, which generally aims for more uniformity.160 This constitutional context supports extensive legislative activities (see above MN 5) and argues for a restrictive reading of the clauses on national deviations that compromise uniformity. 30 To understand the relevance of the provisions on more favourable national treatment, the concept of harmonisation is central, since it entails the approximation of national rules in line with the overarching objective of ‘ever closer union,’161 in which differences between Member States are replaced by common standards. Tellingly, regulations on immigration and asylum, such as the Schengen Borders Code, the Dublin III Regulation or the Visa Regulation, contain no provision authorising Member States to adopt more favourable provisions.162 Unlike international human rights law,163 these harmonisation measures do not establish minimum requirements, but lay down pan-European standards that command primacy over domestic rules in cases of conflict. It is well known that the Court of Justice cautiously defends the uniform and effective application of EU law and generally regards national deviations with suspicion.164 For that reason, one should ascertain on a case-by-case basis whether and if so to what extent Member States may deviate from secondary legislation. In cases of doubt, it should be assumed that legislation supports a pan-European standard from which Member States cannot deviate. 31 The Court of Justice establishes on a case-by-case basis whether individual articles result in complete (full) harmonisation, which pre-empts national deviations as a uniform standard. More favourable national rules are allowed in other scenarios as long as they do not compromise the effective and uniform application of the EU rules in question.165 Whether an article grants discretion depends on an interpretation of the provision in light of the wording, the general scheme, the drafting history, the aims and the constitutional context (see above MN 10–18), including the Treaty objective to move towards a common immigration and asylum policy (see above MN 29). In some instances the interpretation of individual articles will be straightforward. The term ‘shall’ designates mandatory rules, while the word ‘may’ indicates a certain level of flexibility awarded to Member States, which are not free, however, to do as they please, since national deviations are only permitted in so far as the article in question allows for leeway. One may conclude by means of interpretation, for example, that Member States 159 See, Article 3 Asylum Qualification Directive 2011/95/EU, Article 5 Asylum Procedure Directive 2013/32/EU and Article 4 Asylum Reception Conditions Directive 2013/33/EU, while the Dublin III Regulation (EU) No 604/2013 contains, like all regulations on immigration and asylum (see below MN 30), no provision on more favourable national treatment. 160 See also Peers, EU Justice, p. 242. 161 Recital 1 of the Treaty on the Functioning of the European Union. 162 In line with Article 288 TFEU, regulations are – unlike directives – meant to be applied directly, thereby establishing a higher degree of harmonisation. 163 Cf. Article 53 ECHR; many immigration and asylum experts have a background in human rights law (not EU law) and therefore tend to underestimate the preference for uniformity in EU law. 164 Cf. de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’, in: Craig/de Búrca (eds), The Evolution of EU Law, 2nd edn (OUP, 2011), p. 323–362. 165 See the debate on the example of consumer protection by Loos, Full harmonisation as a regulatory concept and its consequences for the national legal orders, Centre for the Study of European Contract Law Working Paper Series No 2010/03; the contributions to Stürner (ed), Vollharmonisierung im Europäischen Verbraucherrecht? (Sellier, 2010); and Whittaker, ‘Unfair Terms and Consumer Guarantees’, European Review of Contract Law 5 (2009), p. 223–247.

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Chp. 1 ‘may’ choose between solution A and B, while solution C would violate the directive, since it would involve going beyond the discretion afforded by the instrument in question.166 With regard to the Schengen Borders Code and the Visa Code, the Court found explicitly that the objective of common standards argues against Member States’ discretion.167 In short, the definite scope for possible deviations must be ascertained on a case-by-case basis when interpreting EU legislation.168 The formulation follows different patterns and three clauses on more favourable 32 national provisions can be distinguished: (1) Most directives permit for national deviations only ‘insofar as [they] are compatible with this Directive’169; these provisions require an assessment on a case-by-case basis as to whether specific articles allow for flexibility (see above MN 31). (2) Other directives explicitly lay down that Member States may deviate from specific provisions, which allow for the adoption of more favourable rules as a result.170 (3) Some directives stipulate in more general terms that Member States remain free ‘to adopt or maintain provisions that are more favourable to the persons to whom it applies’ without indicating, like in the first scenario, that domestic rules must comply with the directive.171 The Family Reunification Directive and the Long-Term Residents Directive, neither of which contain the caveat that more favourable domestic rules concern only those ‘to whom [the Directive] applies’, are the most far-reaching instruments. An interpretation of the Family Reunification Directive and the Long-Term 33 Residents Directive shows that the third scenario above does not allow Member States to deviate from mandatory provisions when they adopt implementing legislation. Member States remain free, however, to retain or adopt more favourable domestic rules outside the scope of the directive. They can establish, for instance, a hardship clause for family reunion, which, as a result, does not bring about rights under the Directive (see Arévalo/Bornemann, Directive 2003/86/EC Article 3 MN 19) or retain more generous domestic rules on long-term residence status if the latter can be distinguished from the status prescribed by EU law (see Thym, Directive 2003/109/ EC, Article 13 MN 2, 4). Similarly, the ECJ recognised that Member States can grant complementary status under domestic law to people whose application for international protection has been rejected as long as states do not call into question the effective implementation of the EU legislation, which in practice requires them to draw ‘a clear distinction … between national protection and protection under the directive.’172 More favourable national protection statuses do not bring about rights under the EU asylum acquis, since Member States act within the scope of their retained powers.173 166 Interpretation in the light of the broader context can even indicate that ‘may’ means ‘shall’ or that Member States have only a binary choice (not) to do a certain thing; cf. the opinion of the Council legal service on the Draft Asylum Qualification Directive in Council doc. 14348/02 of 15 November 2002. 167 For visas, see ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 48–50; and for border controls, see ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, paras 65–68. 168 By way of example, see ECJ, Ahmedbekova, C-652/16, EU:C:2018:801, paras 69–74 with regard to Article 3 Asylum Qualification Directive 2011/95/EU. 169 See the new asylum directives mentioned above MN 29; Article 4(3) Return Directive 2008/115/EC; and Article 15 Employer Sanctions Directive 2009/52/EC. 170 Cf. Article 4(2) Blue Card Directive 2009/50/EC; Article 4(2) Seasonal Workers Directive 2014/36/ EU; and Article 4(2) ICT Directive 2014/66/EU. 171 See Article 4(2) Students and Researchers Directive (EU) 2016/801; and Article 13(2) Procedures Directive 2011/98/EU. 172 See ECJ, B., C-57/09 & 101/09, EU:C:2010:661, para 120; and ECJ, Bevándorlási és Menekültügyi Hivatal, C-519/18, EU:C:2019:1070, paras 42–43. 173 Cf. ECJ, M‘Bodj, C-542/13, EU:C:2014:2452, paras 42–46.

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4. Application in Domestic Law The legal effects of directives and regulations follow the general principles of Union law, which apply to border controls, asylum and immigration law like to any other area of the supranational legal order. Regulations such as the Schengen Borders Code or the Dublin III Regulation are by nature directly applicable and are binding on state authorities and domestic courts applying EU immigration and asylum law.174 Regulations can lay down individual rights of or obligations for individuals, which the latter can invoke and must respect irrespective of domestic rules. By contrast, directives must be transposed into national law during the transposition period, whose length is determined by the legislature on a case-by-case basis.175Member States need not ‘copy and paste’ the wording of a directive; national rules and the general legal framework may suffice provided that they ensure respect for EU law and render individual rights visible.176 It is established in ECJ case law that directives can be directly applicable in case of incorrect transposition, if the provision in question is clear, precise and unconditional and if it seeks to confer rights on individuals against the state.177 Moreover, domestic courts are bound to interpret national law, so far as possible, in light of the directive to achieve the result sought by the EU legislature, including in situations when the conditions for direct effect have not been met.178 The requirement for national law to be interpreted in conformity with Union law effectively means that a directive can be indirectly relied upon via domestic rules. 34a The ECJ has regularly taken recourse to general principles to promote their application even before the expiry of the period of transposition of a directive where national rules fall within the scope of EU law. Observance of general principles of Union law cannot be made conditional, in the eyes of the Court, on the expiry of the period allowed for the transposition of a directive.179 Moreover, national courts are obliged to refrain as far as possible from interpreting domestic law in a manner which might seriously compromise the attainment of an objective pursued by a directive from the date when it enters into force, even before the adoption of implementing legislation.180 Finally, there may be scenarios when EU legislation does not deal with an issues, but Member States decide to apply Union law voluntarily to questions it does not cover, such as family reunification of those with subsidiary protection as opposed to refugee status. In these cases, national courts are obliged to respect Union law, including general principles, as if the matter was covered by a directive. Domestic courts can ask the ECJ for guidance.181 34b In contrast to regulations, directives tend to leave more discretion to Member States as to how to regulate certain questions, although the scope of flexibility depends on the interpretation of secondary legislation. Nevertheless, directives can include provisions fully harmonising a specific legal question (see above MN 31). In practice, the distinc34

174

Cf. Article 288(2) TFEU. It can usually be found in the final provisions of each directive. See ECJ, Commission v. Austria, C-194/01, EU:C:2004:248, paras 37–39; and EuGH, Commission v. Germany, 29/84, EU:C:1985:229, para 23. 177 By contrast, the state cannot rely on provisions in a directive, which puts an obligation on individuals; see Craig/de Búrca, EU Law, 6th edn (OUP, 2015), ch. 4; by way of example contrast ECJ, A, C-404/17, EU:C:2018:588, paras 28–31 to ECJ, Torubarov, C-556/17, EU:C:2019:626, paras 91–101, which confirmed the direct applicability of certain provisions of asylum legislation to the benefit of individuals. 178 Cf. ECJ, Pfeiffer, C-397/01-C-403/01, EU:C:2004:584, paras 110–119. 179 Cf. ECJ, Mangold, C-144/04, EU:C:2005:709. 180 See ECJ, Adeneler, C-212/04, EU:C:2006:443, paras 113–123, in part. 123. 181 See ECJ, E, C-635/17, EU:C:2019:192, paras 35–42. 175 176

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Chp. 1 tion between regulations and directives is not always clear-cut. On the one hand, some directives are almost as specific as regulations, laying down detailed rules not leaving Member States legislative discretion, for instance regarding the criteria defining acts and reasons for persecution or exclusion from refugee status under Article 9–12 Asylum Qualification Directive 2011/95/EU. On the other hand, some regulations explicitly call upon Member States to adopt implementing rules, for instance regarding the meaning of ‘risk of absconding’ in Article 2(n) Dublin III Regulation (EU) No 604/2013. Similarly, the switch from directives to regulations in the recent asylum package under the ‘Pact for Migration and Asylum’ of 2020 (see above MN 8) will not result in full harmonisation of asylum legislation single-handedly. EU law concentrates on the legislative harmonisation, while the practical application 35 of supranational rules to individuals is left to the Member States as a matter of principle. This entails that the day-to-day decision-making in immigration and asylum cases is done by national authorities, whose decisions can be challenged in domestic courts which may ask the ECJ to interpret EU rules under the preliminary reference procedure of Article 267 TFEU. Given that immigration and asylum have a tangible practical and operational dimension,182 the EU institutions support the convergence of administrative practices through guidelines on the interpretation of EU law, networks among practitioners and financial support for transnational cooperation.183 Moreover, agencies have gained powers, staff and influence as a linchpin for transnational administrative cooperation. The border’s agency FRONTEX and the future European Asylum Agency (EUAA) will be discussed separately in this volume (see Ryan, Frontex Regulation (EU) 2019/1896). It will be discussed in introductory chapters to border controls and asylum policy to what extent EU primary law allows for the gradual buildup of autonomous decision-making powers at the supranational level (see Thym, Legal Framework for Entry and Border Controls, MN 8, 20a; and Thym, Legal Framework for EU Asylum Policy, MN 27). When deciding individual cases, Member States apply domestic rules on adminis- 36 trative and judicial procedure unless these are supplanted by procedural rules in secondary legislation as leges speciales.184 EU immigration and asylum legislation contains numerous procedural provisions, although many of these clauses remain abstract when stipulating, for instance, that Member States ‘shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy.’185 These provisos require the continued existence of national administrative rules, which must be interpreted in the light of EU law in cases of conflict; national laws fill the gaps of EU immigration and asylum law. This application of domestic procedural guarantees is often referred to as the principle of procedural autonomy.186 The ECJ has repeatedly reaffirmed this principle, while also establishing two limits: when applying national rules, Member States must ensure, firstly, that the rules for EU-related claims are not less favourable than those governing similar 182 See Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Türk (eds), EU Administrative Governance (Elgar, 2006), p. 287, 322; Thym, ‘The “Refugee Crisis” as a Challenge of Legal Design and Institutional Legitimacy’, CML Rev. 53 (2016), p. 1545, 1554–1558; and Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 20–23. 183 See De Bruycker/Tsourdi, ‘Building the Common European Asylum System beyond Legislative Harmonisation’, in: Chetail/De Bruycker/Maiani, Reforming, p. 473–538. 184 See von Danwitz, Europäisches Verwaltungsrecht (Springer, 2008), p. 302–312. 185 Article 46(4) Asylum Procedure Directive 2013/32/EU concerning judicial action against the rejection of an asylum application. 186 See Craig, Administrative Law, ch. 23.

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domestic actions (principle of equivalence) and, secondly, that they do not render the exercise of rights conferred by Union law practically impossible or excessively difficult (principle of effectiveness).187 The principle of effectiveness can play a critical role in limiting the discretion of Member States, although its operationalisation in practice remains inherently difficult to predict.188 By contrast, judges in Luxembourg will often leave the application of the principle of equivalence to domestic courts which know the relevant national law in question.189 36a The ECJ has applied the principle of procedural autonomy to immigration and asylum law, even though the number of judgments elaborating on the principle remains limited. One explanation for this may be the inclination of domestic courts not to refer matters of Union law to judges in Luxembourg unless secondary legislation lays down detailed prescriptions or whenever previous rulings raised specific questions.190 This is often not the case when it comes to procedures. This explains why the judgments on the limits to national procedural autonomy concern selective matters only. Regarding the principle of equivalence, the ECJ often leave its application to domestic courts which have the knowledge necessary to compare national laws in question.191 When doing so, the ECJ does not insist on categorical parallelism. It recognised explicitly that asylum procedures can be subject to stricter procedural requirements than rules for other areas of domestic law; no equal treatment is required when the national procedures in question are not comparable, for instance regarding the suspensive effect of legal remedies.192 It explicitly found that the objective of ‘expeditious’ decision-making argues for stricter time limits for and legal effects of legal remedies in the field of asylum.193 Distinctions within asylum law between different countries of origin do not constitute unjustified unequal treatment.194 36b In the judicial practice, the principle of effectiveness serves as a generic standard to challenge strict domestic rules in the absence of supranational harmonisation.195 More specifically, the principle of effectiveness gained relevance for time limits for remedies against administrative decisions and the legal effects of a failure to comply with procedural obligations by the immigration and asylum authorities (see below MN 37a). Judges held a time limit of 15 days for remedies to be acceptable, while striking down an eight-day rule as a matter of principle (subject to a caveat that it might be acceptable in some scenarios).196 The outcome ultimately depends on the specificities of the case at hand. Strictly calculated deadlines of 10 days for regular appeals and of 5 days for 187

Settled case law ever since ECJ, Rewe-Zentralfinanz, 33/76, EU:C:1976:188, para 5. See, again, Craig, Administrative Law, ch. 23. 189 By way of example, see ECJ, Commissaire général aux réfugiés and aux apatrides, C-651/19, EU: C:2020:681, paras 39–41, 51–52. 190 See Thym, Bird’s Eye View, p. 170–174; and Krommendijk, ‘The Preliminary Reference Dance between the CJEU and Dutch Courts in the Field of Migration’, European Journal of Legal Studies 10 (2018), p. 101–154. 191 By way of example, see ECJ, Commissaire général aux réfugiés and aux apatrides, C-651/19, EU: C:2020:681, paras 39–41, 51–52. 192 See ECJ, Belastingdienst/Toeslagen, C-175/17, EU:C:2018:776, paras 41–46. 193 See ECJ, Commissaire général aux réfugiés and aux apatrides, C-651/19, EU:C:2020:681, para 54. 194 See ECJ, D. & A., C-175/11, EU:C:2013:45, paras 72–73 in light of human rights. 195 See Majcher, Returns Directive, p. 172–183; Reneman, ‘Speedy Asylum Procedures in the EU’, IJRL 25 (2013), p. 717, 730–746; and, by way of example, ECJ, K & B, C-380/17, EU:C:2018:877, paras 56–63. 196 See ECJ, Samba Diouf, C-69/10, EU:C:2011:524, paras 66–68; and ECJ, Bevándorlási és Menekültügyi Hivatal (Tompa), C-564/18, EU:C:2020:218, paras 72–73; moreover, ECJ, Danqua, C-429/15, EU: C:2016:789, paras 41–48 concerned time limits for submitting an asylum application. 188

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Chp. 1 subsequent applications made during detention were accepted, although judges highlighted that national judges had to ascertain whether accompanying procedural rights, such as access to legal assistance, were practically available.197 While effectiveness will work to the benefit of individual claimants in most cases, it is not intrinsically linked to it. For instance, it stands in the way of domestic rules obliging domestic authorities to positively respond to an application for a residence permit for the sole reason that time limits had elapsed; non-compliance with time limits does not absolve the authorities from diligently applying the conditions laid down in secondary legislation.198 Conversely, the ECJ found that domestic rules obliging courts to take their decisions within a certain time frame may violate the principle of effectiveness if this prevents domestic courts from performing their oversight function effectively in light of contextual factors such as the workload, working conditions, or the difficulty of certain cases.199 Additional limitations can result from the fundamental right to an effective remedy, whose interpretation increasingly overlaps with the principle of effectiveness (see below MN 37b). Inspection of the ECJ case law shows that judges found a violation of the effectiveness 36c test in the majority of judgments. Such an outcome is no foregone conclusion, however, and can be rationalised by the practice of domestic courts primarily referring cases where they justifiably expect support from supranational judges to disapply problematic national rules. As a matter of principle, the ECJ recognises that it can be legitimate to curb legal remedies, for instance to guarantee that ‘applications for international protection should be dealt with expeditiously’200. Judges concluded that appeals to a higher court can be limited to matters raised before the lower court, even though this may result in certain aspects being excluded from legal oversight at second instance.201 They also confirmed, in the context of asylum, that the principle of legal certainty can outweigh the effectiveness test. Doing so, the ECJ had recourse to a line of judgments on other segments of the supranational legal order to confirm that administrative decisions and court rulings for which time limits for remedies or appeals have elapsed need not be automatically reversed even though they were based on an incorrect interpretation of Union law.202 Effectiveness is an essential tool to correct overly restrictive national rules but no all purpose tool.

5. Procedural Fundamental Rights Guarantees National rules on administrative and judicial procedure must comply with statu- 37 tory rules in EU legislation and the limits to the principle of procedural autonomy (see above MN 35–36c). Additional guarantees can be derived from the Charter of Fundamental Rights, which binds Member States whenever they are implementing Union law (see below MN 47–48). Procedural guarantees in the Charter can complement the principle of effectiveness as a limitation of state discretion in areas that are 197 See ECJ, Commissaire général aux réfugiés and aux apatrides, C-651/19, EU:C:2020:681, paras 54–64 with additional comments on the special situation of an applicant residing abroad; and ECJ, T.H.C., C-755/19, EU:C:2021:108, paras 26–44. 198 See ECJ, Belgische Staat, C-706/18, EU:C:2019:993, paras 26, 34–36; and ECJ, Diallo, C-246/17, EU: C:2018:499, paras 44–49. 199 See ECJ, Bevándorlási és Menekültügyi Hivatal, C-406/18, EU:C:2020:216, paras 26–34. 200 ECJ, Commissaire général aux réfugiés and aux apatrides, C-651/19, EU:C:2020:681, para 54. 201 ECJ, Bensada Benallal, C-161/15, EU:C:2016:175, paras 27–28 read in conjunction with the opinion of Advocate General Mengozzi, para 42 for the principle of effectiveness; additional limitations may flow from the principle of equivalence. 202 See ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, paras 185–187.

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not directly subject to supranational harmonisation (see above MN 36b).203 Procedural guarantees in the Charter deserve closer attention, since they transcend obligations of the Member States under general human rights law. Articles 41 and 47 of the Charter provide a higher level of protection than Articles 6 and 13 ECHR, which do not usually apply to immigration and asylum law and do not necessarily require a judicial remedy (see Thym, Legal Framework for EU Asylum Policy, MN 61). 37a The fundamental right to good administration in Articles 41 of the Charter is an innovative novelty that does not exist in many other human rights documents. While the provision directly binds the institutions and agencies of the Union only, the ECJ recognised that it can similarly be applied within domestic legal orders as an unwritten general principle of Union law in line with Article 6(3) TEU.204 Practical relevance depends on the state of affairs in domestic legal orders: Member States with sophisticated procedural statutory or constitutional guarantees will be less affected than countries with less developed administrative safeguards. In practice, the right to be heard under Article 42(2)(a) of the Charter205 and the obligation to give reasons in Article 42(2)(c) of the Charter have gained relevance, even though the ECJ refrains from laying down extensive requirements. It found, for instance, that the standard form for rejecting visa applications meets the obligation to state reasons, although the predefined answers are highly abstract (and are given in an official language of the Union only).206 In applying the right to be heard, which forms an integral part of the rights of the defence,207 judges do not necessarily follow the interpretation most beneficial to individuals. In a number of rulings, the ECJ sought to balance the right to be heard with countervailing public policy objectives,208 thus avoiding an outcome in which a violation of rights of the defence necessarily results in an annulment of the ensuing administrative or judicial decision.209 Unfortunately it is difficult to distil clear patterns from the case law, which fluctuates between irrelevance, substitution by court hearings and referral to the administrative authority. Generally speaking, judges are stricter when it comes to personal interviews in asylum proceedings, since secondary legislation specifies the implications of the right to be heard in great detail.210 Judges are also less strict under the Return Directive, which does not establish detailed hearing require203

See ECJ, El Hassani, C-403/16, EU:C:2017:960, paras 33–34. See ECJ, HN, C-604/12, EU:C:2014:302, paras 49–51; and ECJ, Mukarubega, C-166/13, EU: C:2014:2336, paras 42–45; for further comments, see Hofman/Mihaescu, ‘The Relation between the Charter’s Fundamental Rights and the Unwritten General Principles of EU Law’, EuConst 9 (2013), p. 73–101. 205 Note that the scope ratione materiae of the provision is – unlike Article 47 of the Charter (see below MN 37c) – not limited to scenarios where individual statutory rights are at stake. 206 With regard to the less specific predecessor rule of Article 32 in conjunction with Annex VI of the revised Regulation (EC) No 810/2009, see ECJ, Minister van Buitenlandse Zaken, C-225/19 & C-226/19, EU:C:2020:951, paras 33–47, which did not concern the question of translation and found that additional remarks can be entered in the form. 207 See ECJ, M, C-560/14, EU:C:2017:101, para 25. 208 Remember that fundamental rights can be limited under Article 52(1) of the Charter; on the judicial practice, see ECJ, Sacko, C-348/16, EU:C:2017:591, paras 37–38. 209 See Sadowski, ‘A Safe Harbour or a Sinking Ship?’, European Journal of Legal Studies 11 (2019), p. 29, 52–53; Diekmann, Menschenrechtliche Grenzen des Rückführungsverfahrens in Europa (Nomos, 2016), p. 142–143; and De Bruycker/Mananashvili, ‘Audi alteram partem in Immigration Detention Procedures’, CML Rev. 52 (2015), p. 569, 582–587. 210 See ECJ, Addis, C-517/17, EU:C:2020:579, paras 64–71; and the more generous conclusion of ECJ, M, C-560/14, EU:C:2017:101, paras 32–33 on the predecessor instrument; more flexibility is given in the reverse scenario where a judicial decision is delivered without a second hearing in light of the detailed information in the administrative file; see ECJ, Sacko, C-348/16, EU:C:2017:591, paras 33–40, 45–48. 204

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Chp. 1 ments and where the absence of a hearing does not generally result in the illegality of the ensuing administrative decision.211 The right to an effective judicial remedy in Article 47 of the Charter plays a central 37b role, since it is often relied upon to challenge restrictive national provisos.212 Article 47 of the Charter must be interpreted in light of Articles 6 and 13 ECHR as a matter of principle213 – with the notable exception that the Charter, unlike Article 6 ECHR, extends to core area of immigration and asylum law (see above MN 37). This entails that independent internal administrative review structures do not usually meet the requirements of judicial independence in accordance with Article 47 of the Charter, although they are sufficient under Article 13 ECHR.214 The ECJ found that Article 13(1) Return Directive has to be interpreted in light of the Charter (see Mananashvili/Moraru, Directive 2008/115/EC, Article 13 MN 11–12). The provision has gained practical relevance in the field of asylum procedure in particular, where it increasingly supplants the principle of effectiveness as a limitation of national procedural autonomy.215 The contents of the right to an effective remedy must be analysed carefully in line with the complex supranational and international case law of the ECJ and the ECtHR.216 A good example that the case law does not always result in clear-cut answers are judgment on time limits (see above MN 36b). Moreover, it can be difficult for the ECJ and the ECtHR to develop uniform standards in light of the profound discrepancies between national procedural practices.217 Appeals against asylum decisions are an area in which some harmonisation was achieved in a serious of judgments interpreting Article 46(3) Asylum Procedures Directive (see Vedsted-Hansen, Directive 2013/32/EU, Article 46 MN 3a-4b), which did not distinguish neatly between statutory and constitutional requirements, thereby making it difficult to determine to what extent they can be applied to other areas of immigration law.218 The right to an effective remedy applies to ‘[e]veryone whose rights and freedoms 37c guaranteed by the law of the Union are violated’219 in the same way as Article 13 ECHR presupposes an arguable claim that another human right was violated.220 We know for certain that individual rights to which Article 47(1) of the Charter applies need not be fundamental rights but embrace statutory guarantees enshrined in secondary legislation, 211 See ECJ, Mukarubega, C-166/13, EU:C:2014:2336, paras 46–53; and ECJ, G. & R., C-383/13 PPU, EU:C:2013:533, paras 32–40; see also ECJ, Boudjlida, C-249/13, EU:C:2014:2431, paras 55–56; and Ilareva, Valeria: The Right to be Heard. The Underestimated Condition for Effective Returns and Human Rights Consideration, in: Madalina Moraru/Galina Cornelisse/Philippe De Bruycker (Hrsg.), Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union (Hart, 2020), p. 351–368. 212 See Bast, ‘Of General Principles and Trojan Horses’, GLJ 11 (2010), p. 1006, 1020–1023; and Acosta Arcarazo/Geddes, ‘The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy’, JCMSt. 51 (2013), p. 179–193. 213 See ECJ, Toma & Biroul Executorului Judecătoresc Horaţiu-Vasile Cruduleci, C-205/15, EU: C:2016:499, para 40. 214 Contrast ECtHR, judgment of 26 October 2000 [GC], No. 30210/96, Kudła v. Poland, para 157 to ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/ 19 PPU, EU:C:2020:367, paras 1258–135. 215 On the often indeterminate interaction, see Reneman, Article 47 of the Charter, p. 60–64. 216 For a holistic analysis before the promulgation of most judgments mentioned hereinafter, see Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014). 217 See Reneman, Article 47 of the Charter, p. 77–78; and von Danwitz, Europäisches Verwaltungsrecht (Springer, 2008), p. 11–140. 218 This applies in particular to the need for a comprehensive ex nunc assessment by national courts and their power to replace administrative decisions; see Reneman, Article 47 of the Charter, p. 67–73. 219 Article 47(1) of the Charter. 220 See ECtHR, judgment of 28 February 2008 [GC], No 37201/06, Saadi v. Italy, para 125 on Article 13 ECHR; and ECtHR, judgment of 14 September 2016 [GC], No 56665/09, Károly Nagy v. Hungary, paras 61–62 on Article 6 ECHR.

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such as the right to appeal of those refused entry at the external borders (see Epiney/ Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Article 13 MN 4–5). That distinction becomes relevant if the EU legislature decides to limit rights of appeal on the occasion of a legislative amendment, such as the revision of the Dublin III Regulation.221 If the application of Article 47 of the Charter presupposes the existence of an individual right, the abrogation of statutory guarantees can result in a parallel termination or limitation of the right to appeal, at least for as long as statutory guarantees are not simultaneously covered by a fundamental right. The wording of the Charter supports that interpretation,222 since it does not apply, unlike Article 42(2)(a) of the Charter on the administrative right to be heard,223 to any measure which might negatively affect someone, irrespective of whether the interest concerned corresponded to a statutory individual right.224 Whether secondary legislation establishes an individual right has to be decided on the basis of general principles of Union law, which are not crystal clear (see above MN 15). 37d Time is often a matter of great practical importance in border control, asylum and return procedures, in particular when individuals seek to remain on the territory of the Member States. An ‘effective remedy’ does not generally require automatic suspensive effect, including a right to remain on the territory during judicial proceedings. It is established case law that the frequently-cited ‘automatic suspensive effect’-requirement applies only if there is a a real risk of an irreversible human rights violation, in particular of Article 3 ECHR225 (not, however, for private and family life226). In doctrinal terms, automatic suspensive effect requires a domestic court to be able to issue a suspension order; states have a certain leeway how to organise the procedure provided that the result complies with human rights.227 The ECJ has explicitly endorsed this view. Article 47 of the Charter brings about a right to remain on the territory during court proceedings only if there is a danger of refoulement,228 in particular a 221 See See Article 33 of the Proposal for an Asylum and Migration Management Regulation, COM (2020) 610 of 23 September 2020; and Article 28 of the Proposal for a Dublin IV Regulation, COM(2016) 270 of 4 May 2016, which was repealed in 2020. 222 See AG Bobek, El Hassani, C-403/16, EU:C:2017:659, paras 74–84 emphasising that Article 47(1) of the Charter presupposes a ‘right’, not an ‘interest’; similarly, the established case law on Article 19(4) of the German Constitution, the Grundgesetz, which uses similar terminology and has traditionally been perceived to presuppose the existence on an individual right, whose scope is determined by the legislature unless fundamental rights prescribe otherwise. 223 See General Court, BRF & SHB Comercio e Industria de Alimentos v. Commission, T-429/18, EU: T:2020:322, para 83; and ECJ, Foshan Shunde Yongjian Housewares & Hardware v. Council , C-141/08 P, EU:C:2009:598, para 74. 224 Contra den Heijer, ‘Remedies in the Dublin Regulation: Ghezelbash and Karim’, CML Rev. 54 (2017), p. 859, 869–870, who suggested to interpret Article 47 of the Charter in line with ECJ, M.M., C-277/11, EU:C:2012:2479, paras 83–87, even though that judgment concerned Article 42(2)(a). 225 See the summary of general principles in ECtHR, judgment of 12 December 2016, No 16483/12 [GC], Khlaifia et al. v. Italy, paras 276–277; and ECtHR, judgment of 21 January 2011, No 30696/09 [GC], M.S.S. v. Belgium and Greece, paras 289–293. 226 See ECtHR, judgment of 13 December 2012 [GC], No 22689/07, De Souza Ribeiro v. France, paras 82–83. 227 ECtHR, judgment of 5 February 2002, No 51564/99, Čonka v. Belgium, para 79: ‘may prevent the execution of measures’; and ECJ, CPAS de Liège, C-233/19, EU:C:2020:757, paras 49–53; German lawyers, in particular, are advised not to confuse the ECtHR’s reference to ‘automatic suspensive effect’ with suspensive effect under the German administrative court procedure, since the ECtHR, ibid., requires either a judicial interim measure or the restoration of suspensive effect under German doctrine; see Thym, ‘Menschenrechtliche Feinjustierung des Dublin-Systems zur Asylzuständigkeitsabgrenzung’, Zeitschrift für Ausländerrecht (2011), p. 368, 374–376. 228 See ECJ, Gnandi, C-181/16, EU:C:2018:465, paras 54–56; ECJ, CPAS de Liège, C-233/19, EU: C:2020:757, paras 61–66; ECJ, Tall, C-239/14, EU:C:2015:824, paras 56–58; and ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 44–53.

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Chp. 1 real risk of inhumane or degrading treatment (see Thym, Legal Framework for EU Asylum Policy, MN 55–63). Automatic suspensive effect, where applicable, concerns the first instance of judicial review only; insofar as domestic law foresees a second instance, suspensive effect is no longer mandatory, even if a potential violation of non-refoulement obligations is at stake.229 The abstract requirement, in ECtHR case law, that remedies ‘must be available in 37e practice as well as in law’230 can have repercussions for diverse aspects, for instance regarding access to legal assistance or interpretation services. A good example is the situation in hotspots, which are often situated in the geographic periphery where legal assistance can be difficult or virtually impossible to obtain. Articles 20–23 Asylum Procedures Directive 2013/32/EU contains far-reaching statutory guarantees in this respect, while Article 13(3) Return Directive 2008/115/EC refers to the ‘possibility’ to obtain legal assistance without obliging state to make them factually available. There is complex human rights case law on conditions under which legal assistance is mandatory, possibly even free of charge in extreme cases, although judges do not recognise a generic and unconditional guarantee.231 Experts of migration law should recognise that it would have far-reaching practical implications beyond the scope of EU migration law to find otherwise. It is settled ECJ case law that preparatory acts or intermediate procedural decisions need not usually be subject to an independent legal remedy provided that domestic courts can review the legality of these preparatory or intermediate decisions indirectly at a subsequent stage, in particular in the context of legal challenges against the final outcome.232 The ECJ has applied data protection guarantees under Articles 7 and 8 of the 37 f Charter and Article 8 ECHR to migration control instruments, thereby indicating that the proliferation of databases in the fields of entry, visa, border control ad asylum policies (see Thym, Legal Framework for Entry and Border Controls, MN 10, 17b) is subject to fundamental rights requirements, which, generally, judges in Luxembourg have interpreted dynamically in the field of data protection. Applying the Charter to migration control instruments, the ECJ sought to balance countervailing interests, thereby signalling the double determination to insist, on the one hand, on compliance with fundamental rights, while recognising, on the other hand, that databases can support effective migration management.233 Notwithstanding scarce judicial practice, data protection presents us with a rich area for legal analyses, which experts of immigration and asylum law often ignore. It comprises complex rules on the scope of data being stored, access by public authorities depending on the objective pursued or time limits for data retention.234 In practice, human rights are often superseded by statutory guarantees in the General Data Protection Regulation (EU) 2016/679 and 229 See ECJ, Belastingdienst/Toeslagen, C-175/17, EU:C:2018:776, paras 22–24 paras 22–24, which also highlighted in paras 32–36 that Article 47 CFR does not require a second instance. 230 ECtHR, M.S.S. v. Belgium & Greece (Fn. 100), para 290. 231 See ECJ, DEB, C-279/09, EU:C:2010:811, paras 37–52; and ECJ, Boudjlida, C-249/13, EU: C:2014:2431, paras 64–70; for further reading, see Majcher, Izabella: The European Union Returns Directive and its Compatibility with International Human Rights Law. Analysis of Return Decision, Entry Ban, Detention, and Removal (Brill Nijhoff, 2020), S. 168–172; and Diekmann, Maren-Kathrin: Menschenrechtliche Grenzen des Rückführungsverfahrens in Europa (Nomos, 2016), p. 195–200. 232 See ECJ, Samba Diouf, C-69/10, EU:C:2011:524, paras 54–55; in line with ECJ, Safalero, C-13/01, EU:C:2003:447, paras 54–56. 233 See ECJ, A et al., C-70/18, EU:C:2019:823, paras 52 et seq.; and ECJ, U, C-101/13, EU:C:2014:2249, para 41. 234 See Majcher, Returns Directive, ch. 7; Vavoula, ‘The “Puzzle” of EU Large-Scale Information Systems for Third-Country Nationals. Surveillance of Movement and Its Challenges for Privacy and Personal Data Protection’, EL Rev. 45 (2020), p. 348–372; Brouwer, Digital Borders and Real Rights

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complex rules in the legislative instruments setting up the Schengen Information System, Eurodac, the Visa Information System, the future Entry/Exit System, or the European Travel Information and Authorisation System.

III. Territorial Scope (Member State Participation) Mirroring the asymmetrical composition of the intergovernmental Schengen Agreement, EU immigration and asylum law contains country-specific opt-outs. More specifically, we need to distinguish different opt-out arrangements for Denmark and Ireland (as well as the United Kingdom before Brexit), which were fortified by procedural twists and a novel degree of selectivity in the Treaty of Lisbon. Unfortunately, the country-specific opt-outs do not follow a uniform rationale and are defined by enhanced degree of complexity. There are differences between the rules governing Denmark and Ireland (and the United Kingdom). Moreover, we are faced with two sets of rules for each of these countries: firstly, measures building upon the Schengen acquis laid down in the Schengen Protocol235 and, secondly, measures building the area of freedom, security and justice that do not form part of the Schengen acquis.236 These separate areas of legislation are governed by separate protocols, which lay down distinct and special procedures.237 Altogether, we therefore need to distinguish four distinct optout arrangements for the Ireland and Denmark and for measures (not) building upon the Schengen acquis.238 39 In practice, the recitals of secondary legislation indicate whether Ireland and Denmark are bound by the relevant instrument and whether it is considered to build upon the Schengen acquis. Usually, the information is contained in the last recitals. The overall picture emanating from these diverse arrangements is complex and can be difficult to monitor. In order to facilitate orientation, the introductions to the different parts of this volume include a list of all measures commented upon with an indication of whether they apply to Ireland or Denmark (and the United Kingdom before Brexit). Corresponding overviews can be found in the sections on border controls and visas (see Thym, Legal Framework for Entry and Border Controls, MN 5), immigration (see Thym, Legal Framework for EU Immigration Policy, MN 5) and asylum (see Thym, Legal Framework for EU Asylum Policy, MN 7). 39a It is a recurrent feature of EU decision-making that the choice of legal basis is politically contested whenever enhanced powers of the European Parliament or qualified majority voting in the Council apply to one possible legal basis only. In line with settled case law, the relevant legal basis has to be determined in light of the 38

(Martinus Nijhoff, 2008), p. 127 et seq.; and Heussner, Informationssysteme im Europäischen Verwaltungsverbund (Mohr Siebeck, 2007), p. 190 et seq. 235 See today’s Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union (OJ 2008 C 115/290) and its predecessor (OJ 1997 C 340/93); for how to define which measures build upon the Schengen acquis, see ECJ, United Kingdom v. Council, C-77/05, EU:C:2007:803, paras 54–68. 236 See today’s Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice (OJ 2008 C 115/295), which builds upon previous versions (OJ 1997 C 340/295; and OJ 2006 C 321 E/198); and today’s Protocol (No 22) on the Position of Denmark (OJ 2008 C 115/299), which replaces the original Protocol (OJ 1997 C 340/299). 237 Allegedly, two different working groups preparing the Amsterdam Treaty designed the rules and forgot to align their substance; later IGCs drafting the Treaty of Nice, the erstwhile Constitutional Treaty and the Treaty of Lisbon retained their distinct outline; cf. Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration’, CML Rev. 37 (2000), p. 345, 352. 238 The presentation in this section builds on Thym, Supranational Differentiation, p. 860–867.

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Chp. 1 predominant purpose and contents of the measure in question; in cases of doubt, the centre of gravity serves as the decisive factor.239 This raised the question in how far the non-participation of a Member State in decisions adopted on a specific legal basis (such as Articles 77–80 TFEU) can influence the determination. Judges answered the question to the negative: the application of the contents and purpose test is not affected by the opt-outs.240 Similarly, dual legal bases cannot be relied upon when decision-making procedures in the Council differ as a result of country-specific optouts; whenever the object and purpose test concludes that a measure similarly concerns migration and another topic, not subject to the opt-outs, two separate legal acts have to be adopted.241 Whenever the centre of gravity lies beyond the area of freedom, security and justice, Ireland and Denmark automatically participate in a measure if the centre of gravity is found not to concern border controls, visas, immigration or asylum policy. Thus, corollary rules on migration in broader trade or development cooperation agreements are adopted on the basis of Articles 206–210 TFEU (see Thym, Legal Framework for Entry and Border Controls, MN 15) in the same way as social security coordination for third country nationals can be based on single market rules or association policies whenever there is a sufficient nexus to these areas (see Thym, Legal Framework for EU Immigration Policy, MN 17).

1. Denmark Denmark did not object to the abolition of internal border controls and had 40 subscribed to the intergovernmental Schengen Conventions prior to the Treaty of Amsterdam. It nonetheless asked for an opt-out, since the supranationalisation of justice and home affairs called into question caveats on these matters that had served as justifications for the Danish government in its campaign for a ‘yes’ vote in the second referendum on the Treaty of Maastricht.242 However, the Danish government did not want to leave the Schengen zone and therefore negotiated a ‘political opt-in’ and ‘legal opt-out’243, which maintained its status as a member of the Schengen group, while guaranteeing that the supranational integration method would not apply; the opt-out is based on ‘methodology rather than ideology.’244 As a result, Denmark cannot at present – unlike Ireland – opt into supranational decision-making on a caseby-case basis. It could, however, terminate or modify the opt-out by means of a simple declaration the activation of which has been made politically conditional upon another referendum.245 In late 2015, the government called – and lost – such a

239

See ECJ, Commission v. Council, C-411/06, EU:C:2009:518, paras 45–46. See ECJ, Commission v. Council, C-137/12, EU:C:2013:675, paras 43–44; and ECJ, C-81/13, United Kingdom v. Council, EU:C:2014:2449, para 37. 241 See generally ECJ, Titandioxid, C-300/89, EU:C:1991:244, paras 17–18; and for the opt-outs ECJ, Opinion 1/15, Draft Agreement between Canada and the EU, EU:C:2017:592, paras 105–118; and EuGH, Istanbul Convention, Opinion 1/19, EU:C:2021:#, paras 302–337. 242 The Protocol on the Position of Denmark enshrined in firm Treaty rules the compromise at the 1992 European Council in Edinburgh, the legal status of which had remained precarious; cf. Howarth, ‘The Compromise on Denmark and the Treaty on European Union’, CML Rev. 31 (1994), p. 765–805. 243 Den Boer, ‘Justice and Home Affairs Cooperation in the Treaty on European Union’, Maastricht Journal of European and Comparative Law 4 (1997), p. 310, 311. 244 Hedemann-Robinson, ‘The Area of Freedom, Security and Justice with Regard to the UK, Ireland and Denmark’, in: O’Keeffe/Twomey (eds), Legal Issues of the Maastricht Treaty (Chancery Law, 1994), p. 189, 297. 245 Article 7 of the Protocol No 22 on Denmark allows for its renunciation at any time, also in part. Moreover, Article 8 allows for the substitution by a flexible British-style solution. 240

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referendum to switch to the more flexible Irish position, which also resulted in the departure from Europol.246 41 In line with its original compromise to participate in Schengen, while opposing supranationalisation, Denmark retains, with regard to measures building upon the Schengen acquis,247 the right to ‘decide within a period of 6 months … whether it will implement this decision in its national law.’ If it decides to do so, this creates ‘an obligation under international law between Denmark and other Member States.’248 Denmark is bound by measures building upon the Schengen acquis on the basis of public international law.249 The experience in recent years does not indicate any major political disputes or legal difficulties which were directly related to the opt-out.250 One reason for this comparatively trouble-free performance may be the similarity between the Danish position and the situation of the neighbouring countries Norway and Iceland, which are both associated with the Schengen acquis on the basis of an international association agreement (see Thym, Legal Framework for Entry and Border Controls, MN 29). Mirroring the Schengen Protocol, Denmark has associated itself with the Dublin II Regulation (EC) No 343/2003 on asylum jurisdiction through the conclusion of international agreements between Denmark and the Community/Union.251 The indirect participating via international agreements creates an excessive complexity, which is also legally problematic, since the ECJ decided with a view to Gibraltar that low-threshold intergovernmental cooperation can be illegal if it evades formal participation under the opt-out protocols.252 Politically, the EU institutions might have been motivated to accommodate the Danish desire to participate given that the government had tried unsuccessfully to switch to a flexible opt-out.

2. Ireland (and the United Kingdom) 42

The Irish position can only be understood against the background of decades of political debates about the role of the United Kingdom within the European Union, since the UK had always – unlike Denmark – objected to the political project of borderfree travel. Consecutive British governments had maintained that the geographical position of the British Isles, the traditional absence of domestic identification requirements (such as ID cards) and the symbolism of Schengen cooperation as a means for closer European integration warned against British participation.253 Nonetheless, the 246 53.1 % voted against, 46.9 % in favour of the government proposal; see https://en.wikipedia.org/wiki/ 2015_Danish_European_Union_opt-out_referendum [last accessed 1 June 2021]. 247 By contrast, initiatives which are not part of the Schengen acquis are subject to a strict opt-out. 248 Article 4(1) Protocol No 22 on Denmark; if Denmark decides against participation, the other Member States may, under Article 4(2), ‘consider appropriate measures to be taken’, which may justify the reintroduction of border controls in extreme scenarios; see Thym, Ungleichzeitigkeit und Europäisches Verfassungsrecht (Nomos, 2004), p. 110–114, available online at http://www.ungleichzeitigkeit.de [last accessed 1 June 2021]. 249 The Protocol refrains from defining of international law; in essence, general principles of Union law, such as direct and supreme effect, and the ECJ’s jurisdiction do not apply. 250 In 2011, the Danish government announced plans to reintroduce limited border controls at the insistence of the populist peoples’ party. The project was abandoned when the general elections in 2012 brought a centre-left government into power. 251 See the Council Decision 2006/188/EC (OJ 2006 L 66/37) approving the agreement; a similar agreement has not been concluded so far for the Dublin III Regulation (EU) No 604/2013; for Europol the Agreement on Operational and Strategic Cooperation between the Kingdom of Denmark and Europol of 29 April 2017 in line with Implementing Decision (EU) 2017/290 (OJ 2017 L 42/17) defined Denmark to be a third state (!) for the purposes of the Europol Decision. 252 See ECJ, Spain v. European Parliament & Council (Eurosur), C-44/14, EU:C:2015:554, paras 30–42. 253 See Wiener, ‘Forging Flexibility – The British ‘No’ to Schengen’, EJML 1 (1999), p. 441, 456–459 and the evidence in House of Lords Select Committee on the European Communities, Schengen and the United Kingdom’s Border Controls, 7th Report, Session 1998/99.

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Chp. 1 Labour government under Tony Blair’s leadership was willing to consent, at the final stages of the intergovernmental conference for the Amsterdam Treaty, to the integration of the Schengen acquis into the EU framework under the condition that Britain retained a special status with a flexible opt-out with an option to sign up to individual projects. Ireland was factually obliged to follow its neighbour, since it wanted to maintain the Common Travel Area providing for passport-free travel in the British Isles, including Northern Ireland.254 As in the case of monetary union, the asymmetry of the Schengen law was characterised by an inherent pragmatism: the opt-out was a compromise to secure the unanimity necessary for Treaty change which was necessary to integrate the Schengen Agreement into the EU framework.255 Upon closer inspection, the British/Irish opt-out is the most prolific expression of the 43 à la carte logic of principled freedom.256 Firstly, Ireland (and Britain) retain the right, during the legislative process, to ‘notify … that they wish to take part’ in the adoption of a proposal.257 On this basis, Ireland (and the United Kingdom) decided to participate in the legislative procedure ex ante for many (not all) measures on immigration and asylum (see above MN 39). Such opt-in was a one-way street towards closer integration, until the Lisbon Treaty granted Britain and Ireland the option of unilateral withdrawal (see below MN 45). Secondly, they retain the option of ex post accession. Ireland (and Britain) ‘may at any time request to take part in some or all of the provisions’ that define the original Schengen acquis or which have been adopted in other segments in the area of freedom, security and justice.258 Both countries joined important areas of the original Schengen cooperation, in particular the Schengen Information System, albeit without subscribing to the abolition of border controls.259 The combined effect of ex ante and ex post participation was quite constructive. Ireland’s freedom of choice is not absolute. The Schengen Protocol limits participa- 44 tion to proposals and initiatives ‘which are capable of autonomous application.’260 This meant, in the eyes of the Council, that two British requests for participation in the borders agency Frontex and a regulation on security features in travel documents had to be rejected, since both were intractably linked to aspects of the Schengen acquis, in particular to border controls, which the United Kingdom had refused to endorse.261 The ECJ confirmed this standpoint in two judgments which demonstrated a certain willingness on the side of the Court to ensure that the opt-outs do not undermine the uniform and coherent application of Schengen law.262 Since the Lisbon Treaty leaves the relevant provisions intact, this case law remains relevant: Ireland may not sign up to 254 See Fahey, ‘Swimming in a Sea of Law’, CML Rev. 47 (2010), p. 673, 679–682 and the Declaration (No 56) of Ireland (OJ 2008 C 306/268). Ireland has later occasionally pursued a more restrictive approach and opted out of some initiatives despite of British participation. 255 See Thym, Supranational Differentiation, p. 852–855. 256 See Thym, Supranational Differentiation, p. 851–852. 257 Article 3(1) Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice (OJ 2008 C 115/295); similarly for Schengen-related instruments, see Article 5(1) Protocol (No 19) on the Schengen acquis (OJ 2008 C 115/290). 258 See Article 4 Schengen Protocol and Article 4 Protocol No 21. 259 See, on the UK, Decision 2000/365 (OJ 2000 L 131/43) and, on Ireland, Decision 2002/192 (OJ 2002 L 64/20); for non-Schengen measures see Decision 2009/26/EC (OJ 2009 L 10/22), Decision 2009/350/EC (OJ 2009 L 108/53) and Decision 2009/451/EC (OJ 2009 L 149/73). 260 Advocate General Verica Trstenjak, United Kingdom v. Council, C-77/05, EU:C:2007:419, para 107. 261 Legally, both disputes concerned the delimitation of Articles 4–5 Schengen Protocol and the (more flexible) rules of Protocol No 21 (n 237); see ECJ, United Kingdom v. Council, C-77/05, EU:C:2007:803; and ECJ, United Kingdom v. Council, C-137/05, EU:C:2007:805. 262 See Fletcher, ‘Schengen, the European Court of Justice and Flexibility under the Lisbon Treaty’, EuConst 5 (2009), p. 71, 83–88.

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measures building on the Schengen acquis if they require the application of the broader legislative or operative context.263 45 During the intergovernmental conference drafting the Lisbon Treaty, the British government demanded and obtained further flexibility.264 London insisted upon the right to opt out of amendments of instruments in whose adoption it had earlier decided to participate.265 Again, Ireland followed the example of its neighbour. By means of a simple declaration, it may withdraw itself from an ongoing legislative process, although it is bound by the instrument the other Member States want to modify – an option Britain chose to use for the revision of the Asylum Qualification Directive.266 From the perspective of legal certainty, it is regrettable that Ireland will continue to be bound by previous rules, even if these rules are repealed with regard to all other Member States as a result of the amendment.267 If the Irish excluded themselves from amendments, the Council could vote against continued participation in related instruments if such ‘rump’ legislation cannot be applied effectively.268 The example of Frontex demonstrates that the ECJ may support the Council in cases of conflict (see above MN 44). 45a As a result of Brexit, the UK stopped being bound on 1 January 2021 when the transitional period under the Withdrawal Agreement came to an end. As a result, Brexit had a paradoxical effect in the field of migration: even though the desire to ‘take back control’ played a prominent role in the debate prior to the Brexit referendum,269 withdrawal may complicate British policy towards third country nationals. While it had benefited from a flexible opt-in option as a Member State and decided to participate in the Schengen Information System or the Dublin II and III Regulation, it cannot do so any longer. Instead, it may have to pay a political ‘price’ to convince Brussels to join existing initiatives on the basis of an international agreement.270 This was confirmed during negotiations on the Trade and Cooperation Agreement during which the EU rejected the British proposal of a readmission agreement that could have served as a partial replacement for the Dublin III Regulation.271 Nevertheless, the British government changed domestic regulations to allow the rejection of asylum claims on the basis of a safe third country provision, which includes EU countries under the condition that they are willing to take-back a 263 See Wilderspin, ‘Article 77 TFEU’, in: Kellerbauer/Klamert/Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019), paras 9–10; and Piris, The Lisbon Treaty (CUP, 2010), p. 199. 264 See No 19 lit. l of the IGC Mandate, Council doc. 11177/07 of 26 June 2007; on the allegedly tough negotiations see Ladenburger, ‘Police and Criminal Law in the Treaty of Lisbon,’ EuConst 4 (2008), p. 20, 28. 265 See Article 5(2)–(5) Schengen Protocol and Article 4a Protocol No 21. 266 Contrast Recital 50 of the Asylum Qualification Directive 2011/95/EU to Recital 38 of the former Asylum Qualification Directive 2004/83/EC. 267 Legally, the repeal of the earlier measure through new legislation does not extend to the United Kingdom, since the latter is not bound by the amendment; cf. by way of example, Article 40(1) of the Asylum Qualification Directive 2011/95/EU; see also House of Lords Select Committee on European Union, 7th Report of the Session 2008–09, paras 15–20 and Peers, EU Justice, p. 29–33. 268 See Article 5(3) Schengen Protocol and Article 4a(2) Protocol No 21. 269 See Curtice, ‘Why Leave Won the UK’s EU Referendum’, Journal of Common Market Studies Special Edition 55 (2017), p. 19, 21–23, 28–29. 270 See Thym/Wendel, ‘Immigration after Brexit. Ironies and Challenges’, in: Pernice/Guerra Martins (eds), Brexit and the Future of EU Politics. A Constitutional Law Perspective (Nomos, 2019), p. 185; and Thym, ‘The Irony of Brexit for Immigration Control’, EULawAnalysis of 20 October 2017, available at http://eulawanalysis.blogspot.com/2017/10/the-irony-of-brexit-for-immigration.html [last accessed 1 June 2021]. 271 See Hulme, ‘Analysis of the United Kingdom’s Proposal for a UK-EU Readmission Agreement’, EULawAnalysis of 20 August 2020, available at http://eulawanalysis.blogspot.com/2020/08/analysis-ofunited-kingdoms-proposal.html [last accessed 1 June 2021].

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Chp. 1 person and without the need for a meaningful link with the country concerned.272 It also indicated its political intention to negotiate bilateral readmission agreements ‘with the most concerned Member States.’273 With regards to the status of British nationals residing in the EU and Union citizens living in UK, we have to distinguish between the acquired rights of those who moved to the other country before the end of the transitional period under the Withdrawal Agreement and the limited guarantees for those entering after 1 January 2021 on the basis of the new Trade and Cooperation Agreement (see Thym, Legal Framework for EU Immigration Policy, MN 61). Moreover, bilateral agreements or political arrangements on other questions, such as border control cooperation, continue to apply and may be extended in the coming years. They exist in particular between France, Ireland and the United Kingdom.

IV. Human Rights and International Law EU legislation is based on the general commitment in Article 6 TEU to recognise 46 the rights, liberties and principles laid down in the Charter of Fundamental Rights (see below MN 47–50), the European Convention of Human Rights (see below MN 51–52) and the unwritten general principles of Union law, which may include international human rights (see below MN 53–55). It is beyond doubt that legislation in the field of immigration and asylum must comply with the human rights standards put forward in the Charter and related documents. By contrast, the weight of international treaties concluded with third states requires careful analysis, since the ECJ traditionally attaches great importance to the autonomy of the EU legal order vis-à-vis the international legal environment (see below MN 56–60). The substantive reach of the human rights case law will be taken up in the introductory chapters to the different policy fields with regard to access to the territory extraterritorial activities and detention (see Thym, Legal Framework for Entry and Border Controls, MN 32–46), non-refoulement and the right to asylum (see Thym, Legal Framework for EU Asylum Law, MN 55–63) as well as equal treatment, private and family life and the rights of the child (see Thym, Legal Framework for EU Immigration Law, MN 37–42, 53–55). Procedural guarantees and data protection have been discussed above (see MN 37–37 f).

1. Charter of Fundamental Rights The entry into force of the Treaty of Lisbon rendered the Charter of Fundamental 47 Rights legally binding; the rights and principles therein ‘shall have the same legal value as the Treaties’274. Respect of the Charter is mandatory for the EU legislature and can be enforced in actions for annulment before the Court of Justice irrespective of whether the recitals of EU legislation invoke the Charter expressly.275 Moreover, directives and regulations have to be interpreted in accordance with the Charter as far as possible in cases of potential conflict (see above MN 14). Aside from the EU institutions, Member 272 See ‘UK to Deny Asylum to Refugees Passing through “Safe” Third Country’, The Guardian of 10 December 2020, available at https://www.theguardian.com/uk-news/2020/dec/10/uk-to-deny-asylumto-refugees-passing-through-safe-third-country [last accessed 1 June 2021]. 273 See the Joint Political Declaration on Asylum and Returns (OJ 2020 L 444/1477). 274 Article 6(1) TEU. 275 See Article 258(2) TFEU; alternatively, domestic courts can send preliminary references under Article 267 TFEU, which are mandatory also for courts of first instance when they consider EU secondary law to be invalid; cf. ECJ, Foto Frost, 314/85, EU:C:1987:452.

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States are bound by the Charter but ‘only when they are implementing Union law.’276 In its Åkerberg Fransson judgment, the ECJ maintained that Member States are bound ‘within the scope of European Union law.’277 The Charter is, so to say, the ‘shadow’ of Union law; just as an object defines the contours of its shadow, the scope of EU law determines that of the Charter.278 Despite that seemingly clear-cut starting-point, the precise meaning of Article 51 of the Charter has been (and still is) subject to debates in judicial and academic circles. 47a ECJ judgments indicate that Member States are bound by the Charter whenever state action responds to an obligation under EU law. Thus, domestic rules transposing a directive or administrative activities applying supranational rules can be assessed in light of the Charter.279 By contrast, the Charter does not apply, whenever EU legislation does not regulate subject areas or categories of persons. One may activate national constitutions or the ECHR instead, but the ECJ does not hold jurisdiction on these instruments.280 Any domestic application of the Charter requires, therefore, careful analysis of whether the factual circumstances of the dispute and the domestic rules in question are covered by EU legislation on immigration and asylum ratione materiae, personae, temporis and loci. This means, by way of example, that the Charter applies to the living conditions of those with subsidiary protection status as far as Articles 20–35 Asylum Qualification Directive 2011/95/EU regulate their status, while the same subject areas cannot be analysed in light of the Charter for those awarded complementary humanitarian protection under domestic law outside the scope of EU legislation.281 Similarly, the Charter applies only to those border control activities for which the Schengen Borders Code or related instruments lay down obligations that the national border police has to respect.282 The Charter serves as a yardstick for the criteria for the selection of who gets funding, while the projects as such are not subject to supranational human rights.283 Notwithstanding these caveats, it is well established that the exercise of national implementing discretion can be judged in the light of the Charter in cases when Member States have different options how to achieve the objective prescribed in a directive or regulation.284 By contrast, the activation of an optional clause not to apply secondary legislation to specific scenarios cannot – in contrast to implementing discretion – be assessed in light of the Charter.285 The same applies to domestic rules transcending minimum harmonisation in secondary legislation 276

Article 51(1) TFEU. ECJ, Åkerberg Fransson, C-617/10, EU:C:2013:280, para 19; for further comments, see Thym, ‘Separation versus Fusion’, EuConst 9 (2013), p. 391–419. 278 See Lenaerts/Gutiérrez-Fons, ‘The Place of the Charter in the EU Constitutional Edifice’, in: Peers/ Hervey/Kenner/Ward, The EU Charter, p. 1559, 1568. 279 For typologies, see Pirker, ‘Mapping the Scope of Application of EU Fundamental Rights’, European Papers 3 (2018), p. 133–156; Fontanelli, ‘Implementation of EU Law through Domestic Measures after Fransson’, EL Rev. 39 (2014), p. 682, 689–697; and Thym, ‘Blaupausenfallen bei der Abgrenzung von Grundgesetz und Grundrechtecharta’, Die Öffentliche Verwaltung (2014), p. 941, 948–950. 280 ECJ, Åkerberg Fransson, C-617/10, EU:C:2013:280, para 44 rejected an autonomous interpretation of the ECHR in areas not covered by Union law and the EU Charter. 281 See ECJ, M‘Bodj, C-542/13, EU:C:2014:2452, paras 42–46; and ECJ, Ajdini, C-312/12, EU: C:2013:103, para 25. 282 See ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–42. 283 See Ladenburger, ‘Session on Protection of Fundamental Rights Post-Lisbon’, in: Laffranque (ed), The Protection of Fundamental Rights Post-Lisbon, Reports of the XXV FIDE Congress, Vol. 1 (Tartu UP, 2012), p. 165–167; and ECJ, Soukupová, C-401/11, EU:C:2013:223, paras 28–31. 284 For the former Dublin II Regulation (EC) No 343/2003, see ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, paras 65–68; and for the Family Reunification Directive 2003/86/EC, see ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, paras 22–23, 104–105. 285 See ECJ, Land Oberösterreich, C-94/20, EU:C:2021:477, paras 45–58. 277

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Chp. 1 or abstract competences in Articles 77–80 TFEU before the adoption of secondary legislation: these situations do not bring about an application of the Charter.286 Domestic procedural rules must respect the Charter when they are applied to substantive EU rules (see above MN 37–37c). When interpreting the Charter, the meaning of specific guarantees can often be 48 identified under recourse to the ECHR and corresponding case law of the ECtHR, since Article 52(3) of the Charter calls for a parallel interpretation of both instruments whenever it contains rights which are corresponding to guarantees in the ECHR.287 For our purposes, parallel interpretation concerns primarily the prohibition of torture and inhuman or degrading treatment (Article 3 ECHR, Article 4 Charter),288 human rights-based nonrefoulement obligations (Article 3 ECHR, Article 19(2) Charter),289 the respect for private and family life (Article 8 ECHR, Article 7 Charter),290 the prohibition of collective expulsions (Article 4 Additional Protocol No 4 to the ECHR, Article 19(1) Charter)291 and equal treatment (Article 14 ECHR, Article 21 Charter)292. While protection against unlawful detention (Article 5 ECHR, Article 6 Charter)293 is defined by a principled coherence, judges in Luxembourg have occasionally emphasised the autonomy of Union law, thereby indicating potential differences (see Thym, Legal Framework for Entry and Border Controls, MN 44–45). A higher level of protection is enshrined in Articles 18, 24 and 47 of the Charter. Notwithstanding occasional disagreement, it is standard practice for EU judges in Luxembourg to refer to the case law of the human rights court in Strasbourg, even though the EU has not yet acceded formally to the ECHR (see below MN 51). When interpreting the Charter, the official explanations agreed upon at the time of 49 negotiations are to be given due regard (see above MN 13). As is the case with most human rights, guarantees in the Charter are not absolute; interferences can be justified if they pursue a legitimate aim in a proportionate manner.294 When it comes to the contents, the Charter contains both individual rights and abstract ‘principles’, in particular in Title IV on solidarity, which require implementation by means of either Union or domestic legislation.295 Principles can be applied by courts only in conjunction with implementing measures, although the precise degree of legal obligations remains uncertain.296 In practice, principles concern primarily the social rights enshrined in Articles 27 to 38 of the Charter. 286 See ECJ, TSN & AKT, C-609/17 & C-610/17, EU:C:2019:981, paras 46–52; and ECJ, Julian Hernández et al., C-198/13, EU:C:2014:2055, para 36. 287 See Article 52(3) of the Charter. 288 On parallel interpretation, see ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, paras 86–88, 109–114, which simultaneously clarified that the Charter does not contain a higher level of protection than the ECHR. 289 ECJ, Tall, C-239/14, EU:C:2015:824, paras 53–54 confirmed that Article 19(2) of the Charter represents a codification of case law of the ECtHR on Article 3 ECHR. 290 On parallelism, see ECJ, McB., C-400/10 PPU, EU:C:2010:582, para 53. 291 Although the ECJ has not yet affirmed the parallelism, it ensues from Article 52(7) of the Charter in conjunction with the Explanations relating to the Charter (OJ 2007 C 303/17), p. 24; the autonomy of the Charter ensures that even Member States that have not ratified Supplementary Protocol No 4, such as Greece, are bound to observe Article 19(1) of the Charter. 292 See ECJ, X, Y & Z, C-199/12–C-201/12, EU:C:2013:720, para 54. 293 On the need for coherence, see ECJ, N, C-601/15 PPU, EU:C:2016:84, paras 44–47; and ECJ, K, C-18/16, EU:C:2017:680, para 32, 50–52, which also emphasised the autonomy of Union law and advanced cautious differentiation, which need not necessarily mean a higher level of protection. 294 A generic provision on the justification of restrictions can be found in Article 52(1) of the Charter. 295 See Article 52(5) of the Charter, which leaves open which provisions guarantee individual rights or contain only ‘principles’. 296 Cf. Article 52(5) of the Charter, which excludes, as a result, that individual rights can be deduced directly from principles; for further comments, see Jääskinen, ‘Fundamental Social Rights in the Charter’, in: Peers/Hervey/Kenner/Ward, The EU Charter, p. 1703–1714.

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The relevance of individual guarantees will be discussed in the thematic introductions to the different chapters of this Commentary. Relevant provisions include procedural guarantees for administrative proceedings and judicial review, including data protection (see above MN 37–37 f). With regard to border controls and visas, the extraterritorial application and the relative liberty of public authorities in regulating access by migrants to EU territory, search and rescue and rules on detention are pertinent (see Thym, Legal Framework for Entry and Border Controls, MN 32–46). In the context of legal migration, the guarantee of private and family life and the rights of the child in Articles 7 and 24 of the Charter (see Thym, Legal Framework for EU Immigration Policy, MN 52–58), the provisions on equal treatment (see ibid., MN 37–42) as well as limited guarantees on the labour market and intra-European mobility deserve closer attention (see ibid., MN 34–35), whereas the right to asylum and non-refoulment obligations in Articles 4 and 18 of the Charter are crucial for asylum law, since they reaffirm guarantees under the ECHR (see Thym, Legal Framework for EU Asylum Policy, MN 55–63). Moreover, other provisions may have an indirect effect, including human dignity297 or the social rights and principles (see above MN 49).298 Few ECJ judgments have explored this potential so far, but judges in Luxembourg might do so.299

2. European Convention on Human Rights 51

In its human rights case law, the ECJ has traditionally afforded special significance to the European Convention of Human Rights (ECHR), although the EU is not an official state party to the Convention. Article 6(2) TEU allows for the formal accession of the EU to the ECHR and a draft accession agreement had been negotiated before it was blocked by the ECJ due to concerns about the autonomy of the supranational order.300 Remarkably, asylum law was one of the issues of concern for judges in Luxembourg,301 since the human rights court in Strasbourg had challenged the principle of mutual respect, which, in the eyes of the ECJ, underlies cooperation in the area of freedom, security and justice, including the Dublin III Regulation (see Hruschka/Maiani, Regulation (EU) No 604/2013 Article 3 MN 7–16). Political negotiations about a revision of the accession agreement were ongoing at the time of writing. It should be noted, however, that the formal accession of the EU to the ECHR would primarily have procedural consequences. For instance, individuals could seize the ECtHR, after having exhausted local remedies before EU courts, against an alleged human rights violation which can be attributed to Frontex.302 Accession would not, by contrast, would not change the constitutional status of the ECHR under EU law,303 which, even after accession, would retain a formal rank below primary law, like other international treaties concluded by the EU (see below MN 55). This implies that the position of the ECJ prevails in a rare case of conflict with

297 See the prohibition of certain interrogation techniques to determine whether an asylum seekers is gay or lesbian by ECJ, A, B & C, C-148/13–C-150/13, EU:C:2014:2406, paras 65–66; and ECJ, F, C-473/ 16, EU:C:2018:36, paras 27–53; in both cases the reference to Art. 1 of the Charter remained abstract as one argument amongst others. 298 See ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 92; and the far-reaching proposal by Inglese, ‘The Right to Healthcare in the Common European Asylum System’, EJML 20 (2018), p. 135–156. 299 For a rich analysis see Sánchez Iglesias, ‘The Constitutional Status of Foreigners and EU Citizens’, in: Thym (ed), Questioning EU Citizenship (Bloomsbury/Hart, 2017), p. 243–266. 300 See ECJ, Accession to the ECHR, Opinion 2/13, EU:C:2014:2454. 301 See ECJ, ibid., paras 192–195. 302 At present, the ECtHR would deny jurisdiction, in line with ECtHR, judgment of 30 June 2005 [GC], No 45036/98, Bosphorus Airways v. Ireland, paras 149–158. 303 See ECJ, ibid., paras 189–190.

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Chp. 1 the ECtHR, while the principled orientation of the Charter at the ECHR guarantees widespread convergence in regular circumstances (see above MN 48). Unlike many international agreements, such as the Refugee Convention, the ECHR 51a establishes a mandatory court system providing for authoritative interpretation and enabling anyone to seek redress against an alleged violation of fundamental rights before the European Court of Human Rights (ECtHR). People who are not familiar with EU law should make an effort not to confuse the ECtHR in Strasbourg with the ECJ in Luxembourg. While the latter can apply supranational EU legislation to the 27 Member States of the European Union, the former is responsible for applying the ECHR to the 47 members of the Council of Europe. While the ECJ is usually consulted indirectly via domestic courts sending preliminary references to Luxembourg, the ECtHR can be seized directly by individuals (not only nationals) who have exhausted local remedies.304 Over the past two decades, a great number of applicants have seized the ECtHR in immigration and asylum matters, thereby stretching the ECtHR’s institutional resources.305 One way of responding to the immense workload is to actively engage domestic courts.306 Judges in Strasbourg have made a deliberate effort in recent years to lay down clear standards that can guide the effectively application of the ECHR by domestic courts.307 Judgments of the Grand Chamber are particularly relevant in this respect. Many rulings distinguish between abstract ‘general principles’ and the ‘application to the present case’, thereby allowing readers from academia or practice to identify the standards that can be generalised. The case law will be discussed in the introductory chapters on the subject area for 52 which it is most relevant. Article 1 ECHR and to a lesser extent Article 5 ECHR are central to the debate on extraterritorial jurisdiction and corresponding guarantees to enter EU territory (see Thym, Legal Framework for Entry and Border Controls, MN 32–45). Private and family life under Article 8 ECHR and equal treatment under Article 14 ECHR are particularly important for those residing in the EU already (see Thym, Legal Framework for EU Immigration Policy, MN 37–42, 52–58). The prohibition of inhuman and degrading treatment as well as the guarantee of an effective remedy in line with Articles 3 and 13 ECHR inform the analysis of asylum law (see Thym, Legal Framework for EU Asylum Policy, MN 56–60).

3. Refugee Convention and International Human Rights Article 78(1) TFEU mandates that the EU asylum acquis complies with the Refugee 53 Convention and the 1967 Protocol relating to the status of refugees and other relevant treaties. This obligation has been put into effect by the ECJ, which reaffirmed, in a number of judgments, that the EU asylum acquis must be interpreted taking into account the Geneva Convention (see Thym, Legal Framework for EU Asylum Policy, MN 47–54). From a legal perspective, this obligation to respect the Geneva Convention and the 1967 Protocol flows from EU primary law, since the EU has not formally acceded to the Refugee Convention or assumed the functions of Member States by means of functional succession (as it had previously done with regard to the GATT Agreement).308 As a result, 304

Articles 1 and 34 ECHR do not distinguish between nationals and foreigners. See the former President Wildhaber, ‘Ein Überdenken des Zustands und der Zukunft des Europäischen Gerichtshofs für Menschenrechte’, Europäische Grundrechte-Zeitschrift (2009), p. 541–553; and, more generally, Greer, The European Convention on Human Rights (CUP, 2006), chs 2–3. 306 The so-called ‘principle of subsidiarity’ was reinforced by the Protocol Nos 14–16 to the ECHR (CETS Nos 204, 213, 214). 307 See Gerards, General Principles of the European Convention on Human Rights (CUP, 2019), ch. 2. 308 See ECJ, Qurbani, C-481/13, EU:C:2014:2101, paras 22–29. 305

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the ECJ holds no autonomous jurisdiction to interpret the Refugee Convention; it only does so in conjunction with secondary Union law, in particular the Asylum Qualification Directive 2011/95/EU. Recital 23 of the Directive states explicitly that its provisions should ‘guide the competent national bodies of Member States in the application of the Geneva Convention.’ 54 International human rights treaties are not directly binding upon the European Union, since it has not acceded to them under international law. They can however be relied upon indirectly as a source of inspiration for the interpretation of the unwritten general principles of Union law that complement the human rights in the Charter.309 On this basis, the ECJ recognised explicitly that the International Covenant on Civil and Political Rights (ICCPR) can be relied upon in order to identify the contents of EU human rights,310 although judicial practice has remained sketchy, partly because ICPR guarantees usually fall short of the ECtHR jurisprudence.311 In line with established ECJ case law, other international agreements can be considered legally binding if they have been ratified by all Member States. This means that the UN Convention on the Rights of the Child312 and the European Social Charter313, as well as the UN314 and the European315 conventions against torture316 can be relied upon in order to identify unwritten principles of European Union law. When applying these conventions we have to ensure that potential reservation or interpretative declarations of the Member States, which are particularly widespread in the case of the European Social Charter, are respected; EU law cannot be used to bypass these caveats. A particular case is the UN Convention on the Rights of Persons with Disabilities, which was ratified by the EU as a state party.317 54a Treaty bodies established under international human rights instruments are, unlike the ECJ or the ECtHR, no international courts with the power to authoritatively decide individual cases or to lay down the authentic interpretation of human rights treaties. It was explicitly recognised by the ECJ that the ‘opinions’ or ‘views’ of international treaty bodies, such as the Human Rights Committee, are not usually legally binding.318 However, that does not render them irrelevant. Their position presents one view among many in which direction human rights law can develop. They have gained visibility within the European debate in recent years.319 309 Cf. Article 6(3) TEU, although the provision does not list international human rights treaties explicitly; for further reflection, see Rosas, ‘The Charter and Universal Human Rights Instruments’, in: Peers/Hervey/Kenner/Ward, The EU Charter, p. 1685–1702. 310 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, para 37. 311 See Fitzpatrick, ‘The Human Rights of Migrants’, in: Aleinikoff/Chetail (eds), Migration and International Legal Norms (T.M.C. Asser, 2003), p. 169, 171–178. 312 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, para 37. 313 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, para 39; the European Social Charter has a certain impact in the field of family reunion, see Hailbronner/Arévalo, Directive 2003/86/ EC Article 3; generally, see O’Cinnéide, ‘Migrant Rights under the European Social Charter’, in: Costello/ Freedland (eds), Migrants at Work (OUP, 2014), p. 282–302. 314 See the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, UNTS Vol. 1465, p. 85; for ratifications, see http:// indicators.ohchr.org [last accessed 1 July 2020]. 315 See the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 26 November 1987, CETS No 126; for ratifications, see http://conventions.coe.int [last accessed 1 June 2021]. 316 Their relevance for the general principles of EU law has not been recognised explicitly by the ECJ yet. 317 UNTS Vol. 2515, p. 3; by way of example, see ECJ, Z., C-363/12, EU:C:2014:159, paras 73–90. 318 See ECJ, Grant, C-249/96, EU:C:1998:63, para 46; for further reading, see Tomuschat, Human Rights, 3rd edn (OUP, 2014), chs 6–8. 319 See Çalı/Costello/Cunningham, ‘Hard Protection through Soft Courts?’, German Law Journal 21 (2020), p. 355–384.

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Chp. 1 By contrast, the European Union is not bound by international human rights treaties 55 that have not been ratified by all Member States (see above MN 54).320 This implies that the UN Convention on Migrant Workers321 has no legal effect in the EU legal order, since it has not been ratified by a single EU Member State.322 The same applies to most Conventions of the International Labour Organisation, most of which have not been ratified by all EU Member States and which cannot be relied upon as a legal yardstick for judicial review in the field of EU immigration and asylum law as a result.323 Finally, most international treaties concluded within the framework of the Council of Europe with a potential impact upon migration law obtained only a limited number of ratifications (see below MN 59) – with the notable exception of the European Convention of Human Rights and the European Social Charter, which form the bedrock of Europe’s regional human rights obligations thus far (see MN 51, 54).

4. Other International Agreements With regard to international treaties on other themes than human rights, one should 56 distinguish between treaties between the EU and third states (or international organisations) and treaties of the Member States (see below MN 58). In so far as international agreements concluded by the European Union are concerned, it should be remembered that the ECJ has categorically upheld that the EU Treaties have established an autonomous supranational legal order distinct from public international law ever since the seminal Costa/E.N.E.L. judgment.324 It maintains, on this basis, that the legal effects of international agreements in the EU legal order are determined by the latter. It is settled case law that international agreements concluded by the EU institutions ‘form an integral part of [Union] law’325 and can benefit, as a result, from the same effects as regular EU law within the domestic legal orders of the Member States, including primacy over national law in cases of conflict.326 The ECJ assumes, moreover, that international agreements can be relied upon to challenge the validity of EU legislation.327 Provisions of international agreements concluded by the EU have a hierarchical status above secondary legislation but below the EU Treaties. Not even resolutions of the UN Security Council may claim a higher normative rank than EU primary law,328 nor can the European Convention on Human Rights and corresponding ECtHR case law (see above MN 51). The practical relevance of international agreements concluded by the EU is compro- 57 mised significantly by settled ECJ case law rendering the effects mentioned above subject 320 Cf. argumentum e contrario ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, para 37; as well as Article 53 of the Charter, although it could be argued that the non-ratification by one or two Member States does not prevent the ECJ from having recourse to the agreement as a source of inspiration. 321 See the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, UNTS vol. 2220, p. 3; for ratifications, see http://indicators.ohchr.org [last accessed 1 June 2021]; for further comments, see Cholewinski, Migration and Human Rights. The United Nations Convention on Migrant Workers’ Rights (CUP, 2009); and Desmond, ‘The Triangle that Could Square the Circle?’, EJML 17 (2015), p. 39–69. 322 Cf. the list of ratifications at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4 [last accessed 1 June 2021]. 323 For an overview of the ILO instruments, see Wiesbrock, Legal Migration, p. 247–252. 324 Cf. ECJ, Costa v. E.N.E.L, 6/64, EU:C:1964:66. 325 ECJ, Haegemann II, 181/73, EU:C:1974:41, para 5. 326 On the conditions for direct applicability and primacy, see below MN 57. 327 See, generally, ECJ, IATA & ELFAA, C-344/04, EU:C:2006:10, para 34; and, for visa policy, ECJ, Soysal & Savatli, C-228/06, EU:C:2009:101, paras 58–61. 328 Cf. ECJ, Kadi & Al Baraak v. Council & Commission, C-402/05 & C-415/05 P, EU:C:2008:461, in part. paras 305–309.

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Constitutional Framework and Principles for Interpretation

to direct applicability. Provisions in international treaties that are not directly applicable cannot be relied upon by individuals or national courts to challenge the validity of secondary Union legislation or domestic rules.329 In the absence of direct applicability, the ECJ also excludes indirect effects, such as consistent interpretation.330 In assessing whether international treaties can be directly applied, the ECJ highlights their international legal character and the corresponding applicability of the Vienna Convention on the Law of Treaties in the context of interpretation of agreements concluded by the EU,331 which may deviate from the interpretative standards for supranational EU law (see above MN 10–20). While the ECJ has traditionally been rather strict towards international agreements of global reach, such as world trade law or the Convention on the Law of the Sea, it is more generous when it comes to association agreements.332 Among the association agreements, the Ankara Agreement between the EEC and Turkey has become particularly relevant (see above MN 19; and Thym, Legal Framework for EU Immigration Policy, MN 60), while the agreements with the UK contain explicit clauses to what extent they can be relied upon in national courts (see Thym, Legal Framework for EU Immigration Policy, MN 61). Interpretation in light of public international law implies, moreover, that even provisions with an identical wording may have a different meaning than equivalent rules in EU legal instruments.333 58 International agreements concluded by Member States (not the European Union) are not binding on the EU institutions under public international law. While international human rights instruments ratified by all Member States can be invoked indirectly (see above MN 54), other agreements concluded by Member States cannot be relied upon in the EU legal order, even if they have been ratified by all Member States: the ECJ maintains that such agreements can only be invoked if they reflect customary international law and are directly applicable334 – a double condition that is rarely met. In so far as these agreements were concluded prior to EU accession (or the conferral of corresponding competences to the EU level), they may benefit from the safeguard clause in Article 351 TFEU, which provides that the EU Treaties and secondary legislation do not prevent Member States from fulfilling their obligations under pre-existing agreements with third states.335 This safeguard for earlier agreements is static, i. e. Member States loose the capacity to amend them.336 In practice, respect for existing obligations is often guaranteed through explicit safeguard clauses in EU secondary legislation stating that Member States remain free to retain more favourable national provisions in line with international agreements (see above MN 32–33). From a legal point of view, these provisions are declaratory in nature in so far as they relate to pre-existing agreements concluded prior to accession to the European Union that are covered by Article 351 TFEU. 59 Insofar as safeguard clauses in secondary legislation refer to existing agreements, the latter have to be ratified before the adoption of EU measure in question. They can concern bilateral treaties on commerce and navigation, which never gained much 329

See ECJ, Z., C-363/12, EU:C:2014:159, paras 84–86. See Thym, ‘Foreign Affairs’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 309, 320–323. 331 See ECJ, Walz, C-63/09, EU:C:2010:251, para 23. 332 See Thym, ‘Foreign Affairs’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 309, 322–323. 333 This was established first by ECJ, Polydor, 270/80, EU:C:1982:43, paras 14–21; and has been reaffirmed for immigration-related agreements by ECJ, Demirkan, C-221/11, EU:C:2013:583, paras 44–61. 334 Cf. ECJ, Intertanko, C-308/06, EU:C:2008:312, paras 48–52. 335 For more comments, see Koutrakos, EU International Relations Law, 2nd edn (Hart, 2015), ch. 9. 336 See ibid. and ECJ, Commission v. Austria, C-205/06, EU:C:2009:118. 330

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Chp. 1 influence in most domestic legal orders.337 More important are multilateral agreements within the framework of the Council of Europe, which – like the bilateral treaties on commerce and navigation – confer reciprocal rights only upon the nationals of state parties and did not gain much practical influence either.338 When discussing these agreements, it is necessary to assess existing ratifications on a case-by-case basis: the European Convention on the Legal Status of Migrant Workers of 1977 was ratified by eleven state parties, including six EU Member States and five third states339 and the European Social Charter is binding upon most Member States and many third states.340 The European Convention on Social and Medical Assistance of 1953 applies to several Member States as well as Norway, Iceland, the United Kingdom and Turkey341 and the European Convention on Establishment of 1955 was ratified by nine EU Member States as well as Norway, Iceland, the United Kingdom and Turkey.342 Given that the nationals of Norway and Iceland hold extensive rights under the EEA Agreement, the practical relevance of these conventions is extremely limited at present; they relate in particular to Turkish nationals residing legally in Member States to which the conventions apply. 337 See Paulus, ‘Treaties of Friendship, Commerce and Navigation’, in: The Max Planck Encyclopedia of Public International Law, OUP: online edition, http://www.mpepil.com, last updated March 2011, paras 9–13; and Randelzhofer, Der Einfluss des Völker- und Europarechts auf das deutsche Ausländerrecht (De Gruyter, 1980), p. 32–40. 338 See Oellers-Frahm, ‘The Contribution of the Council of Europe to the Legal Position of Aliens’, in: Frowein/Stein (eds), Die Rechtsstellung von Ausländern nach staatlichem Recht und Völkerrecht, Vol. 2 (Springer, 1987), p. 1725–1773; and Groenendijk, ‘Long-Term Immigrants and the Council of Europe’, EJML 1 (1999), p. 275, 286–288. 339 Convention of 24 November 1977, CETS No 93, entry into force on 1 May 1983; it has been ratified by France, Italy, the Netherlands, Portugal, Spain and Sweden – as well as the third states Albania, Moldova, Norway, Turkey and Ukraine; see https://www.coe.int/en/web/conventions/full-list [last accessed on 1 June 2021]. 340 Convention of 18 October 1961, CETS No 35, entry into force on 26 February 1965; see ibid. 341 Convention of 11 December 1953, CETS No 14, entry into force on 1 July 1954, which has been ratified by the third states mentioned above as well as Belgian, Denmark, Estonia, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Spain and Sweden; see ibid. 342 Convention of 13 December 1955, CETS No 19, entry into force on 23 February 1965, which has been ratified by the third states mentioned above as well as Belgium, Denmark, Germany, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Austria and Sweden; see ibid.

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PART B SECONDARY LEGISLATION ON ENTRY AND BORDER CONTROLS Chapter 2. Legal Framework for Entry and Border Controls Select Bibliography: Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011); Carrera/den Hertog/Panizzon/Kostakopoulou (eds), EU External Migration Policies in an Era of Global Mobilities. Intersecting Policy Universes (Brill, 2019); den Heijer, Europe and Extraterritorial Asylum (Hart, 2012); Dubout, ‘Les enjeux constitutionnels du pouvoir de substitution de l’agence Frontex’, Revue trimestrielle de droit européen (2017), p. 457–476; Fernández Rojo, EU Migration Agencies. The Operation and Cooperation of Frontex, EASO and Europol (Elgar, 2020); Fink, Frontex and Human Rights (OUP, 2018); Foblets/Leboeuf (eds), Humanitarian Admission to Europe. The Law between Promises and Constraints (Nomos/Hart, 2020); Funke, ‘Primärrechtliche Grundlagen’, in: Wollenschläger (ed), Enzyklopädie Europarecht, Band X, 2nd edn (Nomos, 2021), § 16; García Andrade, ‘EU External Competences in the Field of Migration’, CML Rev. 55 (2018), p. 157–200; Goodwin-Gill/McAdam, The Refugee in International Law, 3rd edn (OUP, 2007); Groenendijk/Guild/Minderhoud (eds), In Search of Europe’s Borders (Kluwer, 2003); Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Ippolito/Borzoni/Casolari (eds), Bilateral Relations in the Mediterranean. Prospects for Migration Issues (Elgar, 2020); Lehner, ‘Rechtliche Möglichkeiten zur Schaffung einer EU-Asylbehörde’, in: ibid./Wapler (eds), Die herausgeforderte Rechtsordnung (BWV, 2018), p. 183–221; Maes/Foblets/De Bruycker/Vanheule/Wouters (eds), External Dimensions of EU Migration and Asylum Law and Policy (Bruylant, 2011); Mancano, The European Union and Deprivation of Liberty (Hart, 2019); Martenczuk/ van Thiel (eds), Justice, Liberty, Security: New Challenges for EU External Relations (VUB Press, 2008); Meloni, Visa Policy within the European Union Structure (Springer, 2005); Moreno-Lax, Accessing Asylum in Europe (OUP, 2017); Mungianu, Frontex and Non-Refoulement (CUP, 2016); Müller-Graff, ‘Article 67–80 TFEU’ in: Pechstein/Nowak/Häde (eds), Frankfurter Kommentar (Mohr Siebeck, 2017); Muzak, ‘Articles 77–80 TFEU’, in: Mayer/Stöger (eds), Kommentar zu EUV und AEUV (Maunz, looseleaf: 141th edn, 2012); Paoli, ‘France and the Origins of Schengen. An Interpretation’, in: Calandri/Paoli/ Varsori (eds), Peoples and Borders. Seventy Years of Migration in Europe, from Europe, to Europe [1945–2015] (Nomos, 2017), p. 255–280; Pastore, ‘Visas, Borders, Immigration’, in: Walker (ed), Europe’s Area of Freedom, Security and Justice (OUP, 2004), p. 89–143; Peers, EU Justice and Home Affairs Law. Vol. 1, 4th edn (OUP, 2016); Progin-Theuerkauf, ‘Artikel 77 AEUV’, in: von der Groeben/Schwarze/Hatje (eds), Europäisches Unionsrecht, Vol. 2, 7th edn (Nomos, 2015); Ripoll Servent/Trauner (eds), The Routledge Handbook of Justice and Home Affairs Research (Routledge, 2018); Siebold, ZwischenGrenzen. Die Geschichte des Schengen-Raums aus deutschen, französischen und polnischen Perspektiven (Ferdinand Schöningh, 2013); Thym, Migrationsverwaltungsrecht (Mohr Siebeck, 2010); Thym, ‘The End of Human Rights Dynamism? Judgments of the ECtHR on “Hot Returns” and Humanitarian Visas as a Focal Point of Contemporary European Asylum Law and Policy’, IJRL 32 (2020), p. 569–596; Weiß, ‘Articles 77–80 TFEU’, in: Streinz (ed), EUV/AEUV. Kommentar, 3rd edn (C.H. Beck, 2018); Wilderspin, ‘Articles 77–80 TFEU’, in: Kellerbauer/Klamert/Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019), p. 802–851; Zaiotti, Culture of Border Controls. Schengen and the Evolution of European Frontiers (University of Chicago Press, 2011). Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Content I. General Remarks............................................................................................. 1. Evolution of the Schengen Acquis.......................................................... 2. Territorial Scope (Member State Participation) .................................. II. Treaty Guidance under Article 77 TFEU .................................................. 1. Efficient Border Monitoring (Article 77(1) TFEU) ............................

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Chp. 2

Legal Framework for Entry and Border Controls 2. Scope of EU Competences (Article 77(2) TFEU) ............................... 7 a) Visas ......................................................................................................... 9 b) External Border Controls .................................................................... 16 c) Intra-European Free Movement ........................................................ 18 d) Integrated Border Management System .......................................... 19 e) Absence of Internal Border Controls ............................................... 22 3. Travel Documents (Article 77(3) TFEU) .............................................. 24 4. Geographical Demarcation of Borders (Article 77(4) TFEU) .......... 24a III. Overarching Principles .................................................................................. 24b 1. Maintenance of Law and Order (Article 72 TFEU) ........................... 25 2. External Relations....................................................................................... 28 IV. Human Rights and International Law ....................................................... 31 1. (No) Right to Enter the European Union............................................. 32 2. Extraterritorial Reach................................................................................. 38 3. Search and Rescue ...................................................................................... 42 4. Detention ...................................................................................................... 44

I. General Remarks 1. Evolution of the Schengen Acquis 1

In the 1970s, political actors discussed how to reinvigorate the European project. Heads of state or government considered a ‘Passport Union’, which anticipated core tenets of the later Schengen cooperation and which was meant to symbolise the political ambition to move towards a ‘People’s Europe’ and a ‘European Union.’1 At a summit in May 1984, the French President and the German Chancellor, François Mitterrand and Helmut Kohl, took up the idea and lanced the project of a border-free zone among a core group of Member States.2 Attempts to realise the project within the European Economic Community failed because of the reticence of the UK, scepticism towards some Member States and suspicion of the EU institutions, which favoured open borders over effective home affairs cooperation3 – in line with the objective of establishing an internal market as an ‘area without internal frontiers’4, which conceived of border controls as a ‘constant and concrete reminder to the ordinary citizen that the construction of a real European Community is far from complete.’5 France, Germany and the Benelux countries, which had abolished border controls amongst themselves 25 years earlier, signed a political commitment on the gradual abolition of checks at their common borders in 1985 in the idyllic town of Schengen on the Moselle river where the borders of France, Germany and Luxembourg meet.6 The latter paved the way for the ‘Convention Implementing the Schengen Agreement’ (CISA) of 1990 with detailed rules on the abolition of border 1 See the Commission Communication, A Passport Union. Implementation of Point 10 of the Final Communiqué Issued at the European Summit Held in Paris on 19 and 10 December 1974, COM(75) 322 of 2 July 1975 = Bulletin of the European Communities, Supplement 7/75. 2 The decision was taken at the highest political level without the involvement of ministries; see the archive-based studies of Paoli, France, p. 260–266; and Siebold, ZwischenGrenzen, p. 40–59. 3 For a fascinating survey of the debate among the Schengen countries and the supranational institutions during the 1980s, see Zaiotti, Culture of Border Controls, chs 4–6; Italy, in particular, had been excluded initially, because it was deemed an unreliable partner in home affairs by some national governments at the time; see Paoli, France, p. 263–265. 4 Article 26(2) TFEU. 5 Commission White Paper, Completing the Internal Market, COM(85) 310, para 47. 6 The Agreement on the Gradual Abolition of Checks at their Common Borders of 14 June 1985 (OJ 2000 L 239/13) between the Benelux countries, France and Germany was an agreement of political intent to abolish border controls in the future by means of a second treaty.

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Chp. 2 controls and corresponding flanking measures.7 The remaining Member States, with the exception of Ireland and the United Kingdom, later acceded to the Schengen Implementing Convention on the basis of international accession treaties during the 1990s.8 On this basis, intra-European border controls were gradually abandoned. Until today, we must distinguish between the applicability of the Schengen acquis and the effective abolition of border controls after accession following an evaluation procedure and an unanimous decision to put the common rules into effect.9 Thus, what had started off as an exclusive project among some Member States gradually turned into a pan-European vision of high symbolic importance.10 EU Member States with the exception of the UK and Ireland had signed up to the travel area at the time of the Treaty of Amsterdam which integrated the Schengen acquis into the framework of the European Union. Legally, the incorporated Schengen acquis was (and continues to be) construed as a 2 specific form of enhanced cooperation whose establishment has already been authorised and which comprises all Member States with the exception of Ireland (as well as the United Kingdom before Brexit)11, along with rather complex rules on the association of Denmark and the status of Ireland in relation to the new rules (see below MN 5). The Schengen Protocol attached to the Treaty of Amsterdam also contained principles and procedures for the definition of the body of rules that make up the Schengen acquis and the allocation of legal bases in the EU Treaties for all Schengen-related instruments.12 At the time of the Treaty of Amsterdam, the European Union thus absorbed the Schengen rulebook, which supplanted the largely unsuccessful intergovernmental justice and home affairs cooperation before and after the Treaty of Maastricht.13 Insofar as the amendment of existing rules are concerned, the Schengen Protocol reaffirmed unambiguously that all ‘proposals and initiatives … shall be subject to the 7 Convention Implementing the Schengen Agreement of 14 June 1985 of 19 June 1990 (OJ 2000 L 293/ 19); on the contents, see O’Keeffe, ‘The Schengen Convention’, Y.E.L. 11 (1991), p. 185–219. 8 Agreements on accession were signed with regard to: Italy on 27 November 1990 (BGBl. = [German] Federal Law Gazette 1993 II 1902), entry into force on 1 July 1997 (BGBl. 1997 II 1530); Spain and Portugal on 25 June 1991 (BGBl. 1993 II 1902), entry into force on 1 March 1994 (BGBl. 1996 II 242); Greece on 6 November 1992 (BGBl. 1996 II 2542) and Austria on 28 April 1995 (BGBl. 1997 II 966), which both entered into force on 1 July 1997 (BGBl. 1998 II 1968); Denmark, Finland and Sweden on 19 December 1996 (OJ 2000 L 239/97), which was never ratified and entered into force as an integral part of the Treaty of Amsterdam (see below MN 2). 9 On gradual implementation, see the Joint Declaration Article 139(2), Final Act of the Schengen Implementing Convention, ibid.; within the EU framework, corresponding rules were laid down in Article 3(2) Act of Accession 2003 (OJ 2003 L 236/33), Article 4(2) Act of Accession 2005 (OJ 2005 L 157/203) and Article 4(2) Act of Accession 2012 (OJ 2012 L 112/21); border controls were abandoned in 1995, 1997, 1999, 2000, 2007, 2008, and 2013; on the legal dimension of accession, see Wilderspin, Article 77 TFEU, MN 3; on the political debate during the 1990s and 2000s, see Siebold, ZwischenGrenzen, p. 70–90. 10 On the ambiguous effects of differentiated integration between unity-building and disintegration see Thym, ‘Legal Solution vs. Discursive Othering: The (Dis)Integrative Effects of Supranational Differentiation’, DCU Brexit Institute – Working paper No 7/2018, available online at https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3235289 [last accessed 1 June 2021]. 11 See Article 1 of the present Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union (OJ 2008 C 115/290) and the predecessor (OJ 1997 C 340/93); new Member States will participate in the Schengen area in accordance with Article 7 ibid. 12 The integration was performed by Decision 435/99/EC (OJ 1999 L 176/1) and Decision 436/99/EC (ibid. 17); for constitutional implications, see Thym, ‘The Schengen Law’, ELJ 8 (2002), p. 218–245; for the complex legal and political debate surrounding the integration, see Zaiotti, Culture of Border Controls, ch. 7. 13 For an overview, see Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), chs 1, 3; and O’Keeffe, ‘The New Draft External Frontiers Convention and the Draft Visa Regulation’, in: Monar/Morgan (eds), The Third Pillar of the European Union (Peter Lang, 1995), p. 135–149.

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Legal Framework for Entry and Border Controls

relevant provisions of the Treaties.’14 Many rules of erstwhile international treaties have been replaced by new legislative instruments on the basis of the legislative procedure, thus illustrating that the Schengen law has become regular European law. Today’s Schengen Borders Code Regulation (EU) 2016/399 and the Visa Code Regulation (EC) No 810/2009, which are commented upon in this volume, are the most prominent expression of the supranationalised Schengen law. 3 Whereas to many citizens ‘Schengen’ simply means they do not need a passport when crossing borders in continental Europe, the so-called flanking measures compensating national authorities for the loss of control options at domestic borders through panEuropean cooperation on issues such as visas, police cooperation, criminal matters and immigration, presented the focal point of policy debates.15 First agreed upon by interior ministers of the five original Schengen participants, these flanking measures soon developed a momentum of their own and constitute, to this day, the backbone of justice and home affairs cooperation in the European Union. This process has been described (and criticised) as ‘securisation’ by some authors, since the agenda of interior ministers dominated early debates,16 although deliberations became more balanced after the gradual extension of qualified majority voting in the Council and co-decision powers of the European Parliament (see Thym, Constitutional Framework, MN 3–4).17 While the ECJ had originally emphasised the inherent link between the flanking measures and the abolition of internal border controls,18 the Treaty of Lisbon reaffirmed the conceptual autonomy of the area of freedom, security and justice as a policy field in its own right. EU activities are no longer presented as a spillover of the single market, but pursue self-sufficient objectives whose demarcation remains the prerogative of the EU legislature (see Thym, Constitutional Framework, MN 5–9). 3a Ever since the 1980s, the relationship between free travel and external control measures had been discussed controversially and complicated the initial success of the Schengen area, whose core features had been agreed before the fall of the Iron Curtain at a time of little migration from third states to Western Europe.19 After years of comparatively little disputes after the millennium,20 migratory movements hampered the Schengen cooperation during the 2010s. There were spats between France and Italy following a surge of irregular entries from Tunisia during the Arab spring as well as between Denmark and Germany, which attracted much media attention during 2011.21 Terrorist attacks and the migration and refugee policy crisis during 2015/16 resulted in a proliferation of internal border controls, which continued for ever longer 14 Article 5 Schengen Protocol, ibid.; for details, see Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’, CML Rev. 35 (1998), p. 1047, 1059–1065; and Corrado, ‘L’Intégration de Schengen dans l’Union Européenne’, Revue du Marché Commun (1999), p. 342–349. 15 See Zaiotti, Culture of Border Controls, ch. 5; and Siebold, ZwischenGrenzen, ch. 3. 16 See Guiraudon, ‘European Integration and Migration Policy’, JCMSt. 38 (2000), p. 251–271. 17 See Acosta Arcarazo/Geddes, ‘The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy’, JCMSt. 51 (2013), p. 179–193; Ette, ‘Europe’s Core Member States’, in: Ripoll Servent/Trauner, Routledge Handbook, p. 229, 230–235; and Oosterom-Staples, ‘Has Europeanization Silenced Criticism on Intergovernmental External Border Cooperation?’, in: Guild/Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff, 2012), p. 95–125. 18 Cf. ECJ, Wijsenbeek, C-378/97, EU:C:1999:439, para 40 rejecting the direct applicability of Article 26 TFEU. 19 See Siebold, ZwischenGrenzen, p. 50–69; Paoli, France, p. 270–275; and Bigo, ‘Criminalisation of “Migrants”’, in: Bogusz et al. (eds), Irregular Migration and Human Rights (Martinus Nijhoff, 2004), p. 61, 73–80. 20 At the time, there were comparably few internal controls for short periods only, see the Commission Report on the Application of Title III (Internal Borders), COM(2010) 554 of 13 October 2010. 21 See the EP Plenary Debate, Migration flows and asylum and their impact on Schengen (2011/2689 (RSP)) of 10 May 2011; and Jørgensen/Sørensen, ‘Internal Border Controls in the European Union:

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Chp. 2 periods on different legal bases and did not always comply with the wording and spirit of the Schengen rules.22 The original idea of supporting the emergence of a European identity through the abolition of internal border controls (see above MN 1) threatened to turn itself against the European project, when national governments used internal border controls to convey a sense of closure and protection.23 During early 2020, the Schengen system experienced a dramatic phase during the COVID-19 pandemic, when most Member States reinstated internal border controls and restricted free movement dramatically.24 At the time of writing, it appeared as if the crisis had subsided after a few months with most Member States discontinuing border controls and travel restrictions and confirming their commitment to the Schengen area. A result of the crises during the 2010s was a political determination to reinforce 4 controls at the external borders.25 This move towards external closure reasserted that the Schengen cooperation and the formation of an ‘area of freedom, security and justice’ can be presented, conceptually, as an expression of the territorial dimension of the integration project with the European Union assuming selected state-like features, at least at a symbolic level.26 Judges in Luxembourg moved in this direction semantically when they spoke, in judgments on Union citizenship, of the ‘territory of the Union as a whole’27 or, simply, of the ‘territory of the European Union.’28 Such ideas can even be traced back to dark episodes of European history, when Nazi academics, for instance, conceived the idea of a European ‘Großraum’ (greater area).29 Nevertheless, it should be recognised that the term ‘area’ does not have a fixed meaning in the EU context: it was used repeatedly for the description of projects, such as the European Economic Area or the European Higher Education Area, whose contours remained uncertain.30 Linguistically, the English term ‘area’ has more Recent Challenges and Reforms’, EL Rev. 37 (2012), p. 249, 249–250; on the ensuing political reform, see Cornelisse, ‘What’s Wrong with Schengen?’, CML Rev. 51 (2014), p. 741, 757–762. 22 Cf. De Somer, ‘Schengen and Internal Border Controls’, in: De Bruycker/ibid./De Brouwer (eds), From Tampere 20 to Tampere 2.0 (EPC, 2019), p. 119, 120–122; and Guild et al., Internal Border Controls in the Schengen Area: Is Schengen Crisis-Proof?, EP doc. PE 571.356, June 2016, p. 38–56. 23 On the corresponding ‘symbolic’ significance of borders, see Brown, Walled States, Waning Sovereignty (Zone Books, 2010), ch. 4; and De Genova, ‘Spectacles of Migrant “Illegality”’, Journal of Ethnic and Racial Studies 43 (2013), p. 1180, 1082–1086. 24 For national practices, see Carrera/Chun Luk, ‘Love thy neighbour?’, CEPS Paper in Liberty and Security No 2020–04, April 2020, p. 2–13; for a legal assessment, see Thym/Bornemann, ‘Schengen and Free Movement Law During the First Phase of the Covid-19 Pandemic: Of Symbolism, Law and Politics’, European Papers 5 (2020), 1143–1170. 25 See Pascouau, ‘Quel avenir pour Schengen?’, in: Auvret-Finck/Millet-Devalle (eds), Crise des Réfugiés, Crise de l’Union Européenne? (Pedone, 2017), p. 261, 267–271. 26 See Bast, ‘Völker- und unionsrechtliche Anstöße zur Entterritorialisierung des Rechts’, Veröffentlichungen der Vereinigung Deutscher Staatsrechtslehrer 76 (2017), p. 277, 285–289; and Lindahl, ‘Finding a Place for Freedom, Security and Justice’, EL Rev. 29 (2004), p. 461–484; and on the limitations Coutts, ‘Citizenship, Territory and COVID-19’, in: Kostakopoulou/Thym (eds), Research Handbook on European Union Citizenship Law and Policy (Elgar, 2022), section I (forthcoming). 27 ECJ, McCarthy, C-434/09, EU:C:2011:277, para 66. 28 ECJ, Dereci et al., C-256/11, EU:C:2011:734, para 50; for discrepancies in the case law, see Nic Shuibhne, ‘The “Territory of the Union” in EU Citizenship Law’, Yearbook of European Law 38 (2019), p. 267–319; and for a more positive outlook, see Azoulai, ‘Transfiguring European Citizenship’, in: Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (CUP, 2017), p. 178, 184–187. 29 See Joerges, ‘Europe a Großraum? Shifting Legal Conceptualisations of the Integration Project’, in: ibid./Singh Ghaleigh (eds), Darker Legacies of Law in Europe (Hart, 2003), p. 167–191; and Weber, ‘Formen Europas. Rechtsdeutung, Sinnfrage und Narrativ im Rechtsdiskurs um die Gestalt der Europäischen Union’, Der Staat 55 (2016), p. 151, 159–161. 30 Monar, ‘The Area of Freedom, Security and Justice’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 551, 556–557 shows that the term ‘area’ was meant originally to avoid the term ‘policy’ at the time of the Treaty of Amsterdam, which in eurospeak

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territorial connotations than the French ‘espace’, which other Roman languages use as well, while the German ‘Raum’ can cover both the more territorial ‘area’ and the boundless ‘space’.31 The so-called ‘spatial turn’ in the social sciences did not influence the use of language and was not taken up by legal academia beyond the debate on territorialisation mentioned above.32 Moreover, the federalising pull of the Schengen acquis remains incomplete: the asymmetric (non-)participation of some Member States limits the identificatory potential;33 EU agencies are comparatively weak and the Schengen rules continue to be applied primarily by distinct national authorities (see below MN 8); Article 77(4) TFEU reaffirms the national demarcation of state borders (see below MN 24a). In contrast to classic examples of state building, the supranationalisation of external border control policies did not coincide with an extensive identificatory, bureaucratic and military internal territorialisation.34 Limited internal penetration of the Schengen area does not, however, effect the momentum of external closure, which is often described as ‘fortress Europe’ – a term that had originally been applied to the element of external economic closure inherent in the single market programme, while it is used for border control and migration policies nowadays.35

2. Territorial Scope (Member State Participation) 5

Measures on border controls and visas are subject to country-specific opt-outs for Ireland and Denmark as well as the United Kingdom before Brexit. The abstract rules guiding these arrangements have been described in the introductory chapter (see Thym, Constitutional Framework, MN 38–45). It was demonstrated that the overall picture is rather complex and it can be difficult to discern in specific scenarios, since the countryspecific opt-outs for Ireland and Denmark do not follow a uniform pattern. There are differences between the rules for Denmark on the one side and those for Ireland (and the United Kingdom) on the other side. Moreover, the above-mentioned countries rely on two different sets of rules: measures building upon the Schengen acquis and other instruments. In practice, the last recitals of most instruments indicate whether Ireland and Denmark are bound. In order to facilitate orientation, the list of the measures below indicates which Member States participate in the instruments commented upon in this volume and whether they are considered to be building upon the Schengen acquis.36 Neither the Withdrawal Agreement nor the negotiating guidelines for future agreements may imply a higher density of cooperation (today’s designation as a ‘policy’ was introduced by the Treaty of Lisbon). 31 Other Germanic languages fluctuate between open-endedness and the English ‘area’, which nevertheless need not necessarily be understood territorial, since it can designate subjects of activity as well; Slavic languages were not yet among the official languages when the term became widely used from 1999 onwards; see also Schwarz, Grundlinien der Anerkennung im Raums der Freiheit, der Sicherheit und des Rechts (Mohr Siebeck, 2016), p. 217–222. 32 See Funke, Primärrechtliche Grundlagen, para 7. 33 See Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in: Tridimas/Schütze (eds), The Oxford Principles of European Union Law, Vol. I (OUP, 2018), p. 847, 880–881. 34 Cf. the contrasting accounts of Rokkan, State Formation, Nation-Building, and Mass Politics in Europe (OUP, 1999), p. 97–107; and Jönsson/Tägil/Törnqvist, Organizing European Space (Sage, 2000). 35 See Aho, ‘Fortress Europe. Will the EU isolate itself from North America and Asia’, Columbia Journal of World Business 29 (1994), p. 32–39, who also reminds us that the term had a historic precedent, namely the Nazi vocabulary to describe the fortification of the French coast against an Allied invasion; see Schmitz-Berning, ‘Festung Europa’, in: ibid., Vokabular des Nationalsozialismus (De Gruyter, 2007), p. 232–233. 36 For a list of other instruments, including the measures of the original Schengen acquis integrated into the EU Framework in 1999 (see above MN 2–3), see Thym, Ungleichzeitigkeit und Europäisches Verfassungsrecht (Nomos 2004), p. 119–130, available online at http://www.ungleichzeitigkeit.de [last accessed 1 June 2021].

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Chp. 2 indicate that the United Kingdom will associate itself with the harmonisation of border control and visa policies, including the Schengen Information System, on the basis of international treaties (see Thym, Constitutional Framework, MN 45a). Ireland

Denmark37

United Kingdom (before Brexit)

Schengen?38

Visa Code Regulation (EC) No 810/2009

no

no (int. law)

no

yes

Sea Borders Regulation (EU) No 656/2014

no

no (int. law)

no

yes

Schengen Borders Code Regulation (EU) 2016/399

no

no (int. law)

no

yes

Frontex Regulation (EU) 2019/1896

no

no (int. law)

no

yes

Instrument

Participation in border control and visa policy instruments commented upon in this volume.

II. Treaty Guidance under Article 77 TFEU Article 77 TFEU 1. The Union shall develop a policy with a view to: (a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders; (b) carrying out checks on persons and efficient monitoring of the crossing of external borders; (c) the gradual introduction of an integrated management system for external borders. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning: (a) the common policy on visas and other short-stay residence permits; (b) the checks to which persons crossing external borders are subject; (c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period; (d) any measure necessary for the gradual establishment of an integrated management system for external borders; (e) the absence of any controls on persons, whatever their nationality, when crossing internal borders. 3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may 37 Note that Denmark can bound by measures building upon the Schengen acquis as a matter of public international law, if it declares its intention to do so in line with the rules of the Schengen Protocol described by Thym, Constitutional Framework, MN 41. 38 Does the measure build upon the Schengen acquis? If yes, it is subject to the opt-out arrangements in the Schengen Protocol described by Thym, Constitutional Framework, MN 41, 44.

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adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament. 4. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.

1. Efficient Border Monitoring (Article 77(1) TFEU) 6

The Treaty objective for entry and border controls in Article 77(1) TFEU emphasises that the EU’s activities are meant to support internal free movement (part A) through the ‘efficient monitoring’ of the external borders (part B) on the basis of ‘an integrated management system’ (part C). The Treaty obliges the legislature to aim at ‘efficient’39 external border controls as an end in itself as an integral part of the area of freedom, security and justice, which is no longer linked to the single market (see above MN 3). In a similar way as other Treaty objectives, Article 77(1) TFEU is legally binding at an abstract level that does not translate into judiciable standards for the review of EU legislation or national implementing measures in regular circumstances (see Thym, Constitutional Framework, MN 5–7).40 To highlight the objective of an ‘integrated border management system’ accentuates the role of Frontex (see below MN 19–21). Twofold instructions for border controls and visas in a single article show that the EU Treaty accepts a multilevel entry control concept that comprises activities at the territorial borders in the same way as it encompasses extraterritorial control activities, which can contribute to primary law’s output-oriented efficiency objective. These can include the high seas (see below MN 17a, 38–41) and cooperation with third states (see below MN 20b, 28–30) as well as visas, which are handed out by the consulates of the Member States in third states as a classic example of externalisation in the form of a ‘border abroad.’41 The broad Treaty objective can inform a generous interpretation of the more specific legal bases in Article 79(2) TFEU, which expressly relates to the purposes of paragraph 1.42

2. Scope of EU Competences (Article 77(2) TFEU) 7

As a shared competence, legislation on entry and border controls must comply with the principles of subsidiarity and proportionality (see Thym, Legal Framework for EU Immigration Policy, MN 9). Nevertheless, the Treaty objective of efficient border monitoring (see above MN 6) stipulates a certain generosity when applying the principles of subsidiarity and proportionality. Since most Member States cannot usually control their territorial borders in the Schengen area, the principle of subsidiarity will rarely stand in the way of common action. EU action adds value by doing something that Member States alone cannot any longer achieve effectively; external border controls are carried out ‘in the interests … of all Member States which have abolished internal border controls.’43 The term ‘measure’ in the introductory part of Article 77(2) TFEU 39 While the English language version employs the process-oriented term ‘efficient’ (not the outcomeoriented word ‘effective’), other language versions, which are equally valid, use the term ‘effective’ or wording that can mean both; cf. the German ‘wirksam’, the French ‘efficace’ or the Spanish ‘eficaz.’ 40 See also Müller-Graff, ‘Der Raum der Freiheit, der Sicherheit und des Rechts in der Lissabonner Reform’, Europarecht Special Issue No 1/2009, p. 105, 111–112; and Weiß, Article 77 TFEU, para 4. 41 Guild, ‘The Border Abroad’, in: Groenendijk et al. (eds), In Search, p. 87–104. 42 See von Bogdandy/Bast, ‘The Federal Order of Competences’, in: ibid. (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 271, 288. 43 ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 65 referring to Recital 6 of the former Schengen Borders Code Regulation (EC) No 562/2006.

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Chp. 2 indicates, in line with established EU terminology, that directives, regulations and decisions can be adopted; they can provide for legislative harmonisation, administrative cooperation, financial support or other activities.44 The term ‘measure’ can also cover the administrative involvement of EU agencies (see below MN 8). Recommendations without binding force can be adopted in line with Article 288(5) TFEU in the same way as informal ‘soft law’ instruments, such as non-binding guidelines or communications, which unlike recommendations, do not constitute a legal act with non-binding force,45 rather an informal opinion or policy paper.46 EU legislation on entry and border controls can embrace rules on administrative 8 procedure and judicial protection which supplant, as leges speciales, the principle of national procedural autonomy (see Thym, Constitutional Framework, MN 34–37 f). Given that entry and border control policies have a tangible procedural dimension, corresponding EU rules are generally permissible, although one should bear in mind that the diversity of national administrative and judicial systems calls for a certain flexibility on the side of the Member States in line with the principle of subsidiarity.47 In accordance with the EU’s constitutional structure, the supranational level concentrates on legislative harmonisation and administrative support, while decisions affecting individuals are taken by domestic authorities.48 That does not generally exclude, however, the involvement of supranational agents in domestic decision-making and may even cover the direct application of EU law towards individuals by supranational authorities. To what extent primary law allows for the involvement of federal agents has to be assessed on the basis of the relevant provisions in the EU Treaties in line with the means of interpretation.49 This general rule extends to Article 77(2) TFEU keeping in mind that the ECJ interpreted the term ‘measure’ to cover administrative action at the supranational level, at least when Member States do not fulfil certain functions in a satisfactory manner.50 It is also possible to support transnational cooperation among domestic authorities with or without the involvement of federal agents on the basis of Article 77 TFEU – as Article 74 TFEU confirms declaratorily. The so-called ‘Meroni doctrine’ will not usually prevent the involvement of Frontex or other supranational agents in border control and visa policies, since the application of detailed secondary legislation to individuals does not usually involve an autonomous policy design; it would comply, therefore, with the criteria set out in recent ECJ case law developing the original Meroni judgment.51 The examples of Frontex (see below MN 20) and visa

44 By way of example, see Regulation (EU) No 515/2014 of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external borders and visa (OJ 2014 L 150/ 143). 45 The ECJ can be consulted on the interpretation and validity of non-binding recommendations on the basis of Article 288(5) TFEU; see ECJ, Belgium v. Commission, C-16/16 P, EU:C:2018:79. 46 They have found more general acceptance in recent years, not least during the Covid-19 pandemic, mirroring their function in other areas of EU law; see Scott, ‘In Legal Limbo. Post-Legislative Guidance as a Challenge for European Administrative Law’, CML Rev. 48 (2011), p. 329–355. 47 See Article 67(1) TFEU; and Schütze, ‘From Rome to Lisbon: “Executive Federalism” in the (New) European Union’, CML Rev. 47 (2010), p. 1385, 1410–1415. 48 See Article 291(1), (2) TFEU; and Articles 4(2), 5(1), 19(1)(2) TEU. 49 See Article 2(6) TFEU; for further reflection, see Lehner, Rechtliche Möglichkeiten, p. 190–196. 50 See ECJ, United Kingdom v. Council & European Parliament (EMSA), C-270/12, EU:C:2014:18, paras 97–115; for further reading, see Dubout, Les enjeux constitutionnels, p. 463–464; and Lehner, Rechtliche Möglichkeiten, p. 190–196. 51 See ECJ, United Kingdom v. Council & European Parliament (EMSA), C-270/12, EU:C:2014:18, paras 44–52; for further comments, see Dubout, Les enjeux constitutionnels, p. 469–473; Bergström, ‘Shaping the New System for Delegation of Powers to EU Agencies’, CML Rev. 52 (2015), p. 219, 235–242; and Coman-Kund, European Union Agencies as Global Actors (Routledge, 2018), p. 204–206.

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policy (see below MN 11) illustrate that it is possible for Member States to cooperate extensively below the threshold of a federal administration. a) Visas. Certain aspects of visa policy have been subject to a supranational competence ever since the introduction of Article 100a EC Treaty as amended by the Treaty of Maastricht, which was replaced by more extensive provisions on visas in the Treaties of Amsterdam and Nice later.52 The complexity of previous Treaty provisions entailed a number of intricate questions of legal interpretation most of which became moot because of the simplification and completion of EU competences in the Treaty of Lisbon.53 It is inherent in the proviso of a ‘common policy’ that Article 77(2)(a) TFEU allows for a comprehensive policy approach towards short-term residence permits and does not limit itself to the codification of pre-existing competences under the Treaties of Amsterdam and Nice. This entails, more specifically, that the EU legislature holds an unequivocal competence for the harmonisation of rules on airport transit visas, although the holders of such visas do not usually cross the external Schengen borders for immigration purposes, since they remain within the transit area of international airports.54 10 Article 77(2)(a) TFEU covers rules on both visa requirements and procedure. The EU legislature benefits from a principled discretion when determining countries whose nationals require a visa for entry into the Schengen zone. Visa requirements can have different rationales that are legitimate from a legal point of view mirroring Article 1 of the Visa List Regulation (EU) 2018/1806: the legislature can pursue, among other things, strategic foreign policy considerations (Article 21(3) TEU) or be guided by migration policy objectives, such as the prevention of illegal migration (Article 79(1) TFEU).55 We cannot expect the ECJ or the ECtHR to find countryspecific visa requirements to be incompatible with the fundamental right to equality or to constitute illegal discrimination on grounds of race in regular circumstances (see Thym, Legal Framework for EU Immigration Policy, MN 40–40a).56 In particular, nationality-based distinctions and reciprocal contractual arrangements have been found to be compatible with human rights.57 10a The objective of efficient border monitoring (see above MN 6–7) supports a broad reading of Article 77(2)(a) TFEU which embraces detailed procedural prescriptions, such as the use of biometric identifiers, application fees or security features that can help to prevent abuse.58 The provision does not generally exclude secondary legislation authorising Member States to cooperate with external service providers or commercial intermediaries when processing visa applications in third states (see Meloni, Visa Code Regulation (EC) No 810/2009, Article 45). It also covers the Visa Information System which supports effective cooperation among the Member States considering the broad meaning of the term ‘measure’ (see above MN 8); additional recourse to Article 74 TFEU may be required only for independent supranational databases reaching beyond 9

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See Meloni, Visa Policy, p. 43–120; and Pastore, Visas, Borders, Immigration, p. 89–107. Today’s Article 77(2)(a) TFEU is the result of a conscious choice, during the European Convention drafting the erstwhile Constitutional Treaty, to simplify and complement existing provisions; see the Final Report of Working Group X, doc. CONV 426/02 of 2 December 2002. 54 This was contested under previous versions of the EU Treaties; see also, Peers, EU Justice, p. 174; and Weiß, Article 77 TFEU, para 19. 55 On the corresponding practice, see Meloni, Visa Policy, p. 100–107. 56 See also den Heijer, ‘Visas and Non-Discrimination’, EJML 20 (2018), p. 470, 474–479. 57 See ECtHR, judgment of 16 March 2010 [GC], No 42184/05, Carson et al. v. the United Kingdom, para 88 on an agreement on social security coordination. 58 See ECJ, Schwarz, C-291/12, EU:C:2013:670, paras 15–19. 53

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Chp. 2 the transnational connection of national systems.59 Of course, EU legislation has to comply with human rights, including guarantees for data protection in the European Convention and the EU Charter (see Thym, Constitutional Framework, MN 37–37 f). If access to these databases is granted to Europol or domestic authorities in specific pieces of secondary legislation, Articles 87 or 88 TFEU may be used as a legal basis, not the immigration-related provision of Article 77 TFEU. It follows from constitutional considerations that national consulates will regularly 11 process visa applications. Nevertheless, Article 77(2)(a) TFEU allows for the adoption of a wide range of measures through which the EU can support the effective application of common rules or transnational cooperation among Member States (see above MN 8). The principle of subsidiarity will not usually stand in the way of such measures which contribute to the overall objective of efficient border monitoring (see above MN 7). On this basis, an enhanced degree of practical cooperation can be achieved, for instance through the joint accommodation of consulates from in a single building, representation arrangements or the so-called local Schengen-cooperation.60 Such enhanced transnational cooperation can achieve widespread practical convergence, but stays short of the threshold of federal EU consulates from a constitutional perspective in which EU officials would decide individual visa applications for the Schengen area as a whole.61 In the absence of any textual indication to the contrary (see above MN 8), it is to be assumed that neither Article 77 TFEU nor the proviso for the External Action Service62 provides a sufficient legal basis for a move in this direction: EU consulates would require a formal Treaty change under Article 48 TFEU. Article 77(2)(a) TFEU does not confine itself, in contrast to previous versions, to visas 12 for intended stays of no more than three months63 employing the open formulation ‘short-stay’ instead. The interpretation of the term ‘short-stay’ should be oriented at the historic example of the Schengen visa for three months, while acknowledging that today’s primary law grants more flexibility. The EU legislature could lay down, for instance, a time limit of five months.64 In any case, the general scheme of Treaty rules demonstrates that, read in conjunction, the provisos for ‘short-stay’ permits in Article 77(2)(a) TFEU and ‘long-term’ permits in Article 79(2)(a) TFEU allow for the seamless regulation of immigration statuses (see Thym, Legal Framework for EU Immigration Policy, MN 11). Rules on economic migration, are always covered by Article 79 TFEU as lex specialis irrespective of whether admission for purposes of employment concern longer or shorter stays, such as in the case of the Seasonal Workers Directive 2014/36/EU.65 It is generally 59 Storage of personal data at EU level may be considered the demarcation line; see Peers, EU Justice, p. 81; and Bast, Aufenthaltsrecht, p. 157–158; in practice, the European Parliament will prefer Article 77(2)(a) TFEU, since it allows – unlike Article 74 TFEU – for co-decision, while the Council decides by majority in both cases; in case of a dual legal basis, the legislation would be subject to co-decision. 60 Cf. Articles 8, 37–48 Visa Code Regulation (EC) No 810/2009. 61 See Laas, Die Entstehung eines europäischen Migrationsverwaltungsraumes (Nomos, 2008), p. 139–144. 62 Article 27(2) TEU contains no indication that joint visa application centres with EU officials acting on behalf of the Member States are covered by the legal basis for the European External Action Service, which, as an integral part of the Common Foreign and Security Policy, must be interpreted in line with Article 40 TEU not to undermine supranational policies, such as immigration and asylum. 63 Cf. Article 63(2) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173). 64 Similarly, see Weiß, Article 77 TFEU, para 7; Peers, EU Justice, p. 173, 99–100; Muzak, Article 77 TFEU, para 14; and Müller-Graff, Article 77 TFEU, para 12; before the entry into force of the Lisbon Treaty, the Commission had proposed a six-month definition which caused political debates; cf. COM (2001) 388 (later repealed in accordance with OJ 2006 C 64/3). 65 This conclusion ensures the application of the opening clauses in Article 79(4), (5) TFEU, builds on the historic model of short-stay Schengen visas for touristic and other non-commercial purposes and reflects the usual meaning of the term ‘immigration’ in Article 79 TFEU, which resonates with access to

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irrelevant for the delimitation of Articles 77 and 79 TFEU whether a permit is handed out by a consulate in a third state as a ‘visa’ or granted by domestic immigration authorities as a ‘permit.’66 Similarly, Article 77(2)(a) TFEU does not cover permits or visas for intended longer stays, such as humanitarian visas for refugees, which the ECJ found not to be covered by the provisions of the Visa Code Regulation (EC) No 810/2009 on short-stays.67 This does not exclude, however, that Article 78(2)(d) TFEU is activated as a legal basis (see Thym, Legal Framework for EU Asylum Policy, MN 26). 13 Article 77(2)(a) TFEU concerns abstract rules on visas, including the rejection of an application for reasons of public policy or security (see Meloni, Regulation (EC) No 810/ 2009 Article 32 MN 3). By contrast, the denial of entry to individuals on foreign policy grounds on the basis of Resolutions of the UN Security Council or autonomous sanctions agreed upon by the EU institutions, does not come within the reach of Article 77 TFEU, since there is a lex specialis for restrictive measures against individuals and third states in Article 215 TFEU and corresponding Treaty rules on the Common Foreign and Security Policy.68 Such foreign policy decisions apply to all Member States, including Ireland and Denmark (see above MN 5); they must be respected when applying the Visa Code Regulation or respective national rules in Ireland or Denmark. 14 It is settled case law that the EU acquires an exclusive external treaty-making power whenever international treaties may affect common rules or alter their scope (see below MN 28a). As a result, the EU has acquired an exclusive external competence for international treaties ever since the adoption of today’s Visa List Regulation (EU) 2018/ 1806 insofar as short-stay visas are concerned.69 Member States cannot conclude any longer, without an express authorisation by the EU legislature,70 international agreements with third states on visa exemptions.71 Existing agreements continue to apply, but can no longer be amended (see Thym, Constitutional Framework, MN 58). This entails that the occasionally protracted, diplomatic negotiations with third states on reciprocal visa waivers have become an exclusive EU competence for the Schengen area, including with the United States which rejected to treat all Member States equally for a long time.72 the labour market (see Thym, Legal Framework for EU Immigration Policy, MN 7 and the legal base mentioned in the introductory paragraph of the Seasonal Workers Directive 2014/36/EU); in practice, the distinction has little relevance, since the ordinary legislative procedure applies to Articles 77 and 79 TFEU; see also Weiß, Article 77 TFEU, para 28; Muzak, Article 77 TFEU, para 33; and Bast, Aufenthaltsrecht, p. 152–154. 66 Article 77(2)(a) and 79(2)(a) TFEU cover both ‘visas’ and ‘permits’; both provisions are to be distinguished on the basis of the length of stay. 67 While ECJ, X & X, C-638/16 PPU, EU:C:2017:173, paras 40–44 concerned the interpretation of secondary legislation, it can be read as an implicit statement that Article 77 TFEU does not apply; similarly, see Wilderspin, Article 77 TFEU, MN 41; for a critical assessment Sarolea, ‘Is Access to Asylum the Same as Access to Justice?’, in: Foblets/Leboeuf, Humanitarian Admission, p. 115, 128–132. 68 Peers, EU Justice, p. 84 does not really explain why he wants to apply Article 77 TFEU instead; corollary rules on entry bans, for instance Article 26 pf the SIS II Regulation (EC) No 1987/2006, can be included in legislation covered by Article 77 TFEU in line with ECJ case law on the delimitation of competences on the basis of the main content and purpose of the legislation in question. 69 Note that the EU’s exclusive external competence is limited ratione materiae to those types of visas which have been harmonised at the EU level in line with general principles guiding the delineation of the EU’s external competences. 70 Cf. Article 2(1) TFEU. 71 See García Andrade, External Competences, p. 165–169; and Martenczuk, ‘Visa Policy and EU External Relations’, in: ibid./van Thiel (eds), External Relations, p. 36, 44–45; and Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen Acquis’, CML Rev. 37 (2000), p. 345, 365. 72 On the corresponding mechanism see Article 7 of the Visa List Regulation (EU) 2018/1806; on political difficulties, see the contributions to Bigo/Carrera/Guild (eds), Foreigners, Refugees or Minorities? Rethinking People in the Context of Border Controls and Visas (Ashgate, 2013).

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Chp. 2 Whenever the negotiations lead towards the joint conclusion of readmission and visa facilitation agreements, Article 79(3) TFEU must be activated as a complementary legal basis (see Thym, Legal Framework for EU Immigration Policy, MN 22–23). The EU institutions retain a principled discretion, like in the case of unilateral visa requirements (see above MN 10), whether and, if so, under which conditions a visa waiver shall be granted. They can insist on reciprocal exemptions or embrace strategic foreign policy considerations in line with the Common Foreign and Security Policy; country-specific visa requirements will not usually violate fundamental rights (see above MN 10). In line with the general principles guiding the delineation of the EU’s external 15 competences, corollary rules on migration in bi- or multilateral trade agreements, such as the General Agreement on Trade in Services (GATS), are covered by the exclusive Union competence for the Common Commercial Policy under Articles 206–207 TFEU,73 even though it should be noted that corresponding rules have not gained much significance in practice (see below MN 28b). The situation is similar for corollary rules on migration in contractual relations in the field of development cooperation with a centre of gravity in developments matters and association agreements with countries outside Europe, which will be covered by Articles 206–210 or 217 TFEU, and have not gained much practical significance in recent years (see below MN 28b). Potential mobility partnerships, which are – unlike the recent practice – legally binding, with rules on visa waivers and legal migration would have to be based on Articles 77 and 79 TFEU jointly (see Thym, Legal Framework for EU Immigration Policy, MN 23). Whenever international treaties concluded by the EU command visa free access, they have precedence over secondary Union legislation in cases of conflict (see Thym, Constitutional Framework, MN 56–57). b) External Border Controls. The original Schengen Implementing Convention 16 contained detailed rules on external border controls which, as so-called flanking measures, were meant to compensate states for the loss of control over their internal borders (see above MN 3). An interpretation of the term ‘external border’ in the light of the historic context reveals that it refers to the Member States participating in the Schengen cooperation (see above MN 5) – not the geographic scope of Union law in accordance with Articles 52 TEU and 355 TFEU.74 This entails that, for the purposes of entry control, a flight between France and Ireland crosses an ‘external border’ with regard to which Article 77(2)(b) TFEU allows for the adoption of common control standards (see Epiney/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Articles 6–14). The EU legislature benefits from a principled discretion when deciding upon the 17 intensity and the nature of border control standards. The term ‘border control’ is broad enough to cover classic activities of border policy personnel as well as border surveillance with airborne or land-based technical equipment or databases (see below MN 17b). The legislature can prescribe, like in the case of visas (see above MN 10), detailed procedural and substantive guidelines. Of course, EU rules must comply with fundamental rights, which apply to domestic control activities in accordance with ECJ case law when Member States are implementing Union law (see Thym, Constitutional Framework, MN 47–48).75 In practice, the Charter will rarely result in a human right to 73 See Martenczuk, ‘Visa Policy and EU External Relations’, in: ibid./van Thiel (eds), External Relations, p. 36, 48–49. 74 Similarly, Muzak, Article 77 TFEU, para 38; and Weiß, Article 77 TFEU, para 20. 75 According to ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–42 it has to be assessed on a case-bycase basis whether national border control activities are to be considered an implementation of Union law, i.e. they are not automatically subject to the Charter.

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be admitted to the EU territory with the potential exception of refugees (see below MN 33–37). More stringent requirements exist for Union citizens and their third country nationals family members that command precedence over the border control regulations in cases of conflict, since they emanate from the fundamental freedoms enshrined at Treaty level (see Thym, Legal Framework for EU Immigration Policy, MN 31).76 Differential control requirements for other status groups are permissible for as long as all Union citizens, including Irish and Danish nationals, are treated equally irrespective of nationality at the external Schengen borders.77 17a The wording of the Treaties does not specify the geographic location of border controls, which the legislature need not restrict, as a result, to the immediate environment of the borderline. Legislation on the basis of Article 77(2)(b) TFEU can extend to the contiguous zone or the high seas or prescribe border surveillance a few kilometres away from the land border whenever this appears adequate for border control purposes – in line with the output-oriented objective of ‘efficient’ border controls (see above MN 6).78 It need not be limited to third states neighbouring the European Union provided there is a substantive nexus to migratory movements to the Member States, which the Frontex Regulation does not prescribe any longer (see Ryan, Regulation (EU) 2019/1896, Article 74 MN 2). If need be, additional legal bases can be activated, such as Article 77(2)(c) TFEU on return or Article 78(2)(g) TFEU on cooperation with third states ‘for the purpose of managing inflows of people applying for asylum’ (see Thym, Legal Framework for EU Asylum Policy, MN 34).79 This flexible interpretation of the term ‘border controls’ entails that maritime control activities in the Mediterranean, the Atlantic or the Black Sea can contribute de facto to search and rescue operations on the high seas beyond the territorial waters of the Member States, even though it should be noted that the Treaties do not give the EU institutions an autonomous competence to harmonise search and rescue standards or to set up supranational search and rescue operations as an end in itself (on Frontex see below MN 20b). For as long as the control element remains the predominant object and contents (see Thym, Constitutional Framework, MN 39a), Article 77(2)(b) TFEU can serve as a legal basis for corollary rules on safety at sea, search and rescue as well as disembarkation laid down in the Sea Borders Regulation (EU) No 656/2014.80 17b Article 77(2)(b) TFEU allows for the harmonisation of procedural standards as well as data collection, including the creation and operation of databases in light of the broad meaning of the term ‘measure’ in EU constitutional law (see above MN 8), even though one might possibly use Article 74 TFEU as an additional legal basis (see above MN 10a). Recourse to a different Treaty provision, such as judicial and police cooperation in criminal matters, will only be necessary whenever domestic authorities are given access to databases which have been set up for border control purposes. Over the past years, we have seen a proliferation of databases for border control purposes in addition 76 Specifically for border controls, see ECJ, Ryanair Designated Activity Company, C-754/18, EU: C:2020:478, para 40 and the opinion of the Advocate General the Court referred to; ECJ, Commission v. Spain, C-503/03, EU:C:2006:74; and ECJ, MRAX, C-459/99, EU:C:2002:461. 77 In accordance with Article 18 TFEU, nationals of the Member States with an opt out (see above MN 5) must be treated equally when entering the Schengen area, i. e. they can use the control line for EU citizens; see Thym, Ungleichzeitigkeit und Europäisches Verfassungsrecht (Nomos, 2004), p. 254–258, available online at http://www.ungleichzeitigkeit.de [last accessed 1 June 2021]; see also ECJ, Ryanair Designated Activity Company, C-754/18, EU:C:2020:478, paras 41–47. 78 Similarly, see Wilderspin, Article 77 TFEU, MN 18. 79 Council Decision (EU) 2018/1031 (OJ 2018 L 185/6). 80 Article 352 TFEU could possibly be activated for legislative harmonisation or operative measures on search and rescue, even though it remains questionable whether there is a sufficient link to an EU objective beyond the abstract promotion of human rights and respect for international law.

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Chp. 2 to the traditional Schengen Information System (SIS), such as the European Border Surveillance System (Eurosur), the Entry/Exit System (EES) or the European Travel Information and Authorisation System (ETIAS), which also serves criminal purposes. These multiple databases are managed by the European Union Agency for the Operational Management of Large-Scale IT Systems (EU-LISA) and have been rendered more and more interoperable.81 Of course, the legislation and the operation of databases must comply with human rights, which have been applied by the ECJ to migration control instruments (see Thym, Constitutional Framework, MN 37 f). c) Intra-European Free Movement. The original Schengen Agreements and today’s 18 EU immigration policy are defined by a regulatory asymmetry: despite the abolition of internal border controls, rules on the entry and residence are not fully harmonised; residence permits for third country nationals are often confined to the territory of one Member State.82 Foreigners residing legally in a Member State do not have, as a result, a generic right to visit other Member States.83 Article 77(2)(c) TFEU addresses this gap and allows the EU legislature to regulate ‘travel within the Union for a short period.’ Such rules on temporary free travel within the Schengen area complement the common visa policy, which, in contrast to Article 77(2)(c) TFEU, concerns third country nationals living outside of the Schengen area.84 The corresponding legislation replacing earlier provisions of the Schengen Implementing Convention was adopted a few months after the entry into force of the Treaty of Lisbon, which had established an unequivocal legal basis for such measures.85 While Article 77 TFEU covers short-term travel (see above MN 12), Article 79 TFEU must be activated for legislation on longer stays in another Member State (see Thym, Legal Framework for EU Immigration Policy, MN 18). d) Integrated Border Management System. It was a deliberate decision to introduce 19 a specific legal basis for the gradual establishment of an ‘integrated border management system’ in Article 77(2)(d) TFEU complementing rules on standards and procedures for border controls (see above MN 16–17).86 The amendment reflects the will of the High Contracting Parties to develop joint administrative capacities, thereby moving beyond legislative harmonisation.87 The concept of ‘integrated border management’ (IBM) was being discussed in the political debate when the European Convention drafted the erstwhile Constitutional Treaty, which later became

81 See the SIS II Regulation (EC) No 1987/2006 (OJ 2006 L 381/4), the Eurosur Regulation (EU) No 1052/2013 (OJ 2013 L 295/11), the ETIAS Regulation (EU) 2018/1240 (OJ 2018 L 236/1), the EULISA Regulation (EU) 2018/1726 (OJ 2018 L 295/99) and the Interoperability Regulation (EU) 2019/817 (OJ 2019 L 135/27). 82 This applies both to residence permits for which no EU harmonisation exists and for rights to reside in accordance with the EU immigration directives, since the latter do not embrace a generic right to free movement within the EU; see Thym, Legal Framework for EU Immigration Policy, MN 18. 83 Similarly, see Funke, Primärrechtliche Grundlagen, para 30. 84 Residence in Ireland (or the UK before Brexit) counts as an extra-Schengen residence for the purposes of Article 77 TFEU, while Denmark is bound by the rules as a matter of public international law (see above MN 5); third country nationals living in Ireland (not: Denmark) must, therefore, apply for a Schengen visa to visit France, since they are covered by Article 77(2)(a) TFEU, not part C. 85 See Regulation (EU) No 265/2010 (OJ 2010 L 85/1). 86 By contrast, Article 62(2)(a) EC Treaty as amended by the Treaty of Amsterdam of 2 October 1997 (OJ 1997 C 340/173) contained only a generic provision for control standards and procedures. 87 Cf. the political debate in the European Convention that led to the new provision summarised in the Final Report of Working Group X, doc. CONV 426/02 of 2 December 2002; and Ladenburger/Verwilghen, ‘Policies Relating to the Area of Freedom, Security and Justice’, in: Amato/Bribosia/de Witte (eds), Genèse et destinée de la Constitution européenne (Bruylant, 2007), p. 743, 763.

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the Lisbon Treaty,88 even though there was no uniform understanding of what IBM meant and entailed.89 It encompassed the structural cooperation among different policy areas (e.g. security, migration, customs) as well as the institutional integration of domestic border guards. Both the drafting history and the general scheme of the Treaties indicate that Article 77(2)(d) TFEU was meant to be primarily about institutional integration revolving around the borders’ agency Frontex.90 Both the specific wording and the drafting history argue against a direct comparison with the legal bases for Europol and Eurojust.91 20 The abstract reference to an integrated border management ‘system’ allows for diverse legislative, operational and financial instruments to support domestic border guards, Frontex and their mutual cooperation. Thus, Article 77(2)(d) TFEU can cover the purchase of technical equipment, training activities, joint operations, statutory rules on civil or criminal liability and much more; many of these instruments have expanded considerably since the migration and asylum policy crisis of 2015/16.92 The borders’ agency Frontex , which has seen repeated adjustments over the past years which led to a substantial increase in powers and capacities (see Ryan, Frontex Regulation (EU) 2019/ 1896, Art. 1), realises most of the instruments mentioned above. While it was a common feature of the early forms of cooperation to be confined to enhanced transnational cooperation below the threshold of autonomous decision-making at the European level,93 it can be argued that – unlike the provision on visas (see above MN 11) – Article 77(2)(d) TFEU authorises a deeper degree of integration.94 20a The ambitious reference to ‘any measure necessary for the gradual establishment’ (French: toute mesure nécessaire pour l’établissement progressif; German: schrittweise … eingeführt werden soll) may not reflect a precise vision among those drafting the new provision about what an ‘integrated border management system’ entails. Even though the vision of a potential ‘border corps’ were on the table during the drafting process,95 such abstract calls did not necessarily imply the creation of a truly federal bureaucracy.96 88 Cf. the title and the contents of Commission Communication, COM(2002) 233 as well as the action plan in Council doc. 10019/02 of 13 June 2002, p. 11 et seq.; Monar, ‘Die Vertragsreformen von Lissabon in den Bereichen Inneres und Justiz’, Integration 31 (2008), p. 379, 385 shows how the political debate at the time influenced the thinking in the European Convention – in a comparable way as in the case of the European Defence Agency, which Article 45 TEU codified in parallel to ongoing political discussions. 89 See Moreno-Lax, Accessing Asylum, p. 28–40. 90 Frontex and so-called rapid border intervention teams defined the debate in the European Convention, including an abstract reference to the possibility of a future ‘European border corps’; see Monar, ‘Die Vertragsreformen von Lissabon in den Bereichen Inneres und Justiz’, Integration 31 (2008), p. 379, 385 and below MN 20a; it does not convince, therefore, to conceive of the IBM concept primarily in terms of cooperation across policy fields; contra Mungianu, Frontex, p. 22–24. 91 Contra Rijpma, ‘Frontex and the European System of Border Guards’, in: Fletcher/Herlin-Karnell/ Matera (eds), The European Union as an Area of Freedom, Security and Justice (Routledge, 2018), p. 217, 236–237. 92 See Berthelet, ‘Les conséquences des crises migratoires de 2011 et de 2015, une solidarité européenne encore très imparfaite’, Cahiers de droit européen 54 (2018), p. 395, 399–406. 93 See Schöndorf-Haubold, ‘Europäisches Sicherheitsverwaltungsrecht’, in: Terhechte (ed), Verwaltungsrecht der Europäischen Union (Nomos, 2011), § 35 paras 85–97; Thym, Migrationsverwaltungsrecht, p. 347–352; and Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Türk (eds), EU Administrative Governance (Elgar, 2006), p. 287, 322. 94 Similarly, see Peers, EU Justice, p. 86; Müller-Graff, Article 77 TFEU, para 26; and Weber, ‘Migration im Vertrag von Lissabon’, Zeitschrift für Ausländerrecht (2008), p. 55, 56. 95 See, again, the Final Report of Working Group X, doc. CONV 426/02 of 2 December 2002, p. 17; and the explanation to the initial proposal of today’s Article 77(2)(d) TFEU by the Convention Presidium in doc. CONV 614/03 of 14 March 2003, p. 19. 96 Cf. the synthesis report of the plenary meeting of the European Convention on 3 and 4 April 2003 in doc. CONV 677/03 of 9 April 2003, p. 5–6.

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Chp. 2 Against this background, one could argue that the general preference of the EU Treaties for the indirect application of supranational rules by the Member States (see above MN 8) prevents the EU institutions from giving Frontex extensive administrative decision-making powers, also considering that Article 4(2) TEU and Article 72 TFEU confirm the primary responsibility of the Member States for the maintenance of law and order.97 It seems to me, however, that the open formulation used in the Treaties supports more flexibility, not least since the ECJ has interpreted more restrictive provisions to allow for decisions by supranational agencies in situations of urgency in full compliance with the so-called ‘Meroni doctrine’ (see above MN 8). Frontex can be given autonomous decision-making powers in selected areas provided that the supranational agency does not generally replace national administrations. That applies in particularly in scenarios which are related to the constitutional prescription of solidarity in relation to which Article 80 TFEU mandates a generous reading of other Treaty competences.98 Only the move towards a genuine federal border guard substituting national units would require a Treaty change.99 Below that threshold there is room for further integration going beyond the current Frontex Regulation.100 This leaves room for the further development of Frontex by overcoming the binary distinction between direct and indirect implementation. Of course, enhanced powers must be accompanied by appropriate accountability mechanisms, which the legislative framework for Frontex has not developed yet.101 The output-oriented Treaty objective of ‘efficient monitoring of the crossing of 20b external borders’ (see above MN 6) and the open reference to an ‘integrated border management system’ (see above MN 19) indicate that border control activities need not be confined to the immediate border area; they can extend to control activities on the high seas (see above MN 17a) and extend to cooperation with third states (see below MN 30). Nevertheless, the use of the term ‘border’ should not be interpreted openendedly to situations in which the geographic and substantive connection to the external borders of the Schengen area is vague at best. Thus, support for third states in returning third country nationals to their home country (or another third state) cannot usually be covered by Article 77(2)(d) TFEU, unless there is a specific nexus with the external Schengen border. That does not preclude, however, the activation of the legal basis to fight illegal immigration in Article 79(2)(c) TFEU (see Thym, Legal Framework for EU Immigration Policy, MN 20). It has been explained already that Article 77 TFEU does not authorise the EU institutions to set up autonomous search and rescue operations, even though Frontex and national border guards can contribute

97

See ter Steeg, Das Einwanderungskonzept der EU (Nomos, 2006), p. 416 et seq. See also Ramboll/EurAsylum, Study on the Feasibility and legal and practical implications of establish-ing a mechanism for the joint processing of asylum applications on the territory of the EU, HOME/2011/ERFX/FW/04 of 13 February 2013, p. 75. 99 Even if one defends that position, the novel supervision and intervention power of Frontex concerned could still appear as being constitutionally problematic in light of Article 4(2) TEU and Article 72 TFEU, insofar as Frontex can act against the will of the Member State concerned; see Dubout, Les enjeux constitutionnels, p. 465–466; and Rijpma, The Proposal for a European Border and Coast Guard: evolution or revolution in external border management?, Study for the European Parliament, PE 556.934, March 2016, p. 18. 100 De Bruycker ‘The European Border and Coast Guard. A New Model Built on an Old Logic’, European Papers 1 (2016), p. 559, 562–564, 569 criticised the Frontex Regulation (EU) 2016/1624 for employing the ambitious term ‘European Border and Coast Guard’ despite the high degree of control of the Member States. 101 See Fink, Frontex, ch. 3–4; and Groß, ‘Defizite des Grundrechtsschutzes bei FRONTEX-Einsätzen’, Zeitschrift für Ausländerrecht (2020), p. 51–58. 98

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to better search and rescue in the Mediterranean and elsewhere in the context of border control operations (see above MN 17a).102 21 In line with the classification of Article 77 TFEU as a shared competence, the Member States retain the option to cooperate bilaterally in order to support the effective functioning of the multilevel border control system. Protocol (No 23) on External Relations of the Member States with regard to the Crossing of External Borders mandates, in this respect, that Article 77 TFEU ‘shall be without prejudice to the competences of Member States to negotiate or conclude agreements with third countries…’103 This entails that the EU does not possess, in contrast to other areas (see above MN 14), an exclusive competence for agreements concerning border controls with third states. It certainly has the power to conclude such agreements, but cannot prevent Member States from doing the same, since Protocol (No 23) pre-empts the emergence of an exclusive external competence104 – provided that supranational legislation can pre-empt operative activities of the Member States at all if the latter do not, as an expression of the jurisdiction to enforce, interfere with the Union’s legislative prescriptions.105 Protocol (No 23) stipulates, moreover, that agreements of the Member States must ‘respect Union law and other relevant international agreements’, i. e. the Commission could start infringement proceedings whenever they fall foul of EU law, including human rights (see below MN 36). The latter caveat may be particularly relevant in situations where Member States cooperate with third states that serve as transit countries for asylum seekers (see below MN 28–30). 22

e) Absence of Internal Border Controls. The abolition of internal border controls was the historic starting point of justice and home affairs cooperation (see above MN 1). Given that Article 26 TFEU does not mandate in itself the abolition of internal border controls as a self-executing obligation under primary law,106 today’s Article 77(1)(a) TFEU lays down an original and explicit obligation to border free travel.107 Corresponding rules can be adopted in accordance with Article 77(2)(e) TFEU, which serves as the legal basis for the relevant aspects of the Schengen Borders Code Regulation (EU) 2016/399, including provisions for the phased abolition of border controls towards new Member States after accession (see above MN 1). The term ‘internal border’ should be understood as the counterpart of the ‘external border’ and remains limited, therefore, to borders between the Schengen countries (see above MN 16). The abolition of border controls concerns administrative control procedure only and does not establish a universal right to cross the internal borders, in particular with regard to third country nationals; rules governing the right of third country nationals to cross internal borders can be adopted by the EU legislature and, whenever there are no supranational standards, by the Member States 102 103

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TEU.

104 For a constructive comparison with an earlier debate about trade in services, see De Baere, ‘The Basics of EU External Relations Law’, in: Maes et al., External Dimensions, p. 121, 170–171; similarly as here, see Hailbronner, Immigration, p. 65–66; Pastore, Visas, p. 103–104; Muzak, Article 77 TFEU, para 6; Peers, EU Justice, p. 162; García Andrade, External Competences, p. 168; Cremona, ‘EU External Action in the JHA Domain. A Legal Perspective’, in: ibid./Monar/Poli (eds), The External Dimension of the European Union’s Area of Freedom, Security and Justice (Lang, 2011), p. 77, 105–107; and Weiß, Article 77 TFEU, para 25. 105 See García Andrade, External Competences, p. 168–169. 106 Cf. ECJ, Wijsenbeek, C-378/97, EU:C:1999:439, para 40. 107 From a legal perspective, the abolition of the Schengen area would require, therefore, a formal Treaty change under Article 48 TEU.

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Chp. 2 (see above MN 18). At the border between some Member States, corresponding migration control activities towards third country nationals are widespread.108 It is inherent in the objective to ‘develop a policy’ (Article 77(1) TFEU) and 23 the primary responsibility of the Member States for the maintenance of law and order under Article 72 TFEU (see below MN 25–27) that the abolition of internal border controls can be subject to caveats to be decided upon during the legislative process, in particular the temporary reintroduction of internal border controls. Corresponding rules limiting the discretion of the Member States and establishing a supranational oversight procedure can be found in the Schengen Borders Code (see Epiney/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Articles 30–35). It has been mentioned above that Member States have reinstated internal border controls repeatedly during the 2010s and were not always in full compliance with the wording and spirit of the Schengen Borders Code (see above MN 3a). While the Commission and national courts could ask the ECJ to review the legality of internal border controls, there has been no judgment to this date.109 By contrast, we have amply case law confirming and limiting the room of manoeuvre for Member States to proceed with internal checks within the territory,110 which one can criticise for being too generous in its implicit understanding of the term and concept of ‘controls’, whose absence at the internal borders Article 77(2)(c) TFEU prescribes in regular circumstances.111

3. Travel Documents (Article 77(3) TFEU) Article 77(3) TFEU is not directly related to the EU visa policy, since it concerns 24 Union citizens and not third country nationals. The provision was originally meant to be integrated into the Treaty chapter on Union citizenship, but was referred to the area of freedom, security and justice at a later stage of the drafting process for reasons that are not immediately clear.112 Uncertainty about the added-value of the provision was amplified by the parallel introduction of Article 21(2) TFEU, which uses comparable wording but does not require unanimity in the Council. Article 77(3) TFEU shall only apply, in line with the express wording, when other legal bases do not provide for supranational measures. If it is correct that the rules on external border controls can embrace far-reaching prescriptions, such as security features for passports (see above MN 17)113 and that Article 21(2) TFEU covers free movement of Union citizens and their family members,114 Article 77(3) TFEU retains a limited scope. It could be activated, for instance, to formalise the existing resolutions of representatives of the Member States’ governments on a uniform pattern for EU passports or on security 108 For a socio-legal study of the situation at the Franco-Spanish border, see Barbero, ‘The European Union Never got Rid of its Internal Controls’, EJML 20 (2018), p. 1–27. 109 ECJ, Melki & Abdeli, C-188/10 & C-189/10, EU:C:2010:363 can be read to have implicitly confirmed that rules in the Borders Code on the temporary reintroduction are compatible with Article 77(2)(e) TFEU. 110 See ECJ, Melki & Abdeli, C-188/10 & C-189/10, EU:C:2010:363, paras 63–75; and ECJ, A, C-9/16, EU:C:2017:483, paras 38 et seq. 111 See Wilderspin, Article 77 TFEU, MN 18–30. 112 Cf. Article III-125(2) Treaty establishing a Constitution for Europe of 24 October 2004 (OJ 2004 C 310/1), which never entered into force; the provision was later referred to the justice and home affairs chapter by the mandate for the Intergovernmental Conference preparing the Treaty of Lisbon in accordance with the annex to Council doc. 11177/07 of 23 June 2007, No 19(d). 113 Cf. Regulation (EC) No 2004/2252 (OJ 2004 L 385/1) with later amendments; and Peers, EU Justice, p. 81–82; for a different view, see Müller-Graff, Article 77 TFEU, para 6. 114 See Regulation (EU) 2019/1157 (OJ 2019 L 188/67).

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features for ID cards, for which no binding secondary legislation exists so far.115 It was not activated when the ‘EU Digital COVID Certificate’ was introduced in 2021 to facilitate movement for those vaccinated or tested during the final phase of the COVID19 pandemic.116 Deference to other legal bases and the special legislative procedure, which requires unanimity among Member States and foresees the consultation of the European Parliament only, explains why the institutions prefer not to use Article 77(3) TFEU in practice.

4. Geographical Demarcation of Borders (Article 77(4) TFEU) 24a

The provision was introduced by the Treaty of Lisbon in reaction to a debate in the European Convention drafting the Constitutional Treaty on the lingering dispute between Spain and the United Kingdom over the status of Gibraltar.117 It confirms that the EU cannot legislate on the reach of state territory. Rather, the geographic scope of the Schengen area follows domestic and international rules in line with Article 52 TEU and Article 355 TFEU. While the provision does not give us a direct statement about the constitutional character of the European project, it can be read, in the eyes of the German Constitutional Court, as a confirmation that the EU ‘does not have comprehensive territorial authority replacing that of the [Member States]’, even though the area of freedom, security and justice ‘reduces territorial sovereignty as an element of the state territory’118, in line with the symbolic and conceptual significance of the Schengen cooperation (see above MN 4).

III. Overarching Principles 24b

The Treaty rules on the area of freedom, security and justice contain provisions with a horizontal character, which are described in the introductory chapter on the policy field to which they are most relevant. Thus, Article 72 TFEU on the maintenance of law and order and external competences for cooperation with third states are described in the context of entry and border controls (see below MN 25–30), while Article 80 TFEU on solidarity is an integral part of the asylum chapter (see Thym, Legal Framework for EU Asylum Policy, MN 41–44). General principles of interpretation, proportionality, statutory provisions on more favourable domestic rules and requirements of primary law for domestic implementation are discussed in the general introduction (see Thym, Constitutional Framework, MN 10–37). Comments on the distinction between Union citizens and third country nationals, the meaning of the ‘public policy’ exception in secondary legislation and the principle of abuse can be found in the immigration chapter (see Thym, Legal Framework for EU Immigration Policy, MN 33–49).

115 The Resolution of the representatives of the Governments of the Member States meeting within the Council of 23 June 1981 (OJ 1981 C 241/1), with later amendments, which is not legally binding as a matter of EU law at present. 116 Regulation (EU) 2021/953 (OJ 2021 L 211/1). was based on Article 21(2) TFEU. 117 See Labayle, ‘L’espace de liberté, sécurité et justice dans la Constitution pour l’Europe’, Revue trimestrielle de droit européen 41 (2005), p. 437, 453. 118 Federal Constitutional Court (Bundesverfassungsgericht), judgment of 30 June 2009, 2 BvE 2/08 et al., Treaty of Lisbon, paras 402–403.

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Chp. 2 1. Maintenance of Law and Order (Article 72 TFEU)

Article 72 TFEU This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. The exact meaning of the proviso in Article 72 TFEU is subject to some controversy 25 that can be traced back to the predecessor provisions in the Treaties of Maastricht and Amsterdam,119 while an earlier provision limiting judicial oversight by the ECJ was discontinued by the Treaty of Lisbon.120 In the debate about Article 72 TFEU, two different proposals of interpretation can be distinguished. Some commentators maintained that the caveat in today’s Article 72 TFEU should be construed in parallel to the public policy exception to the fundamental freedoms,121 i.e. as a justification for noncompliance with EU legislation whenever the maintenance of law and order was at stake.122 Other commentators conceived the provision primarily as a statement about competences, which does not generally exclude EU action with regard to the maintenance of law and order, but can serve as an interpretative guideline for the scope of supranational competences based on other Treaty articles, thereby reinforcing the principles of subsidiarity and proportionality.123 An intermediate position argued that Article 72 TFEU cannot usually justify disrespect for secondary legislation, even though it requires the EU legislature to leave Member States breathing space when it comes to the maintenance of law and order and the safeguarding of internal security, for instance via the temporary reintroduction of internal border controls (see above MN 23) or the rejection of visas on public policy grounds (see above MN 13). Article 72 TFEU informs the interpretation of these provisions and may even result in a possible annulment of legislation that does not respect Article 72 TFEU sufficiently,124 for instance by overtly restricting internal border controls.125 ‘According to settled case-law,’126 the ECJ supports the intermediate position in regular 26 circumstances, even though it accepts that the provision may justify disrespect for 119 See Article K.2 EU Treaty as amended by the Treaty of Maastricht of 7 February 1992 (OJ 1992 C 191/1) and the Amsterdam version of Articles 64(1) and 68(2) EC Treaty (OJ 1997 C 340/173). 120 Cf. the previous Article 64(2) EC Treaty, ibid. 121 See, for the free movement of goods, Article 36 TFEU; and, for workers, Article 45(3) TFEU. 122 See Battjes, European Asylum Law and International Law (Martinus Nijhoff, 2006), p. 157; Weiß, Article 72 TFEU, para 2; Rossi, ‘Article 72 TFEU’, in: Calliess/Ruffert (eds), EUV/AEUV-Kommentar, 5th edn (C.H. Beck, 2015), paras 5–8; Feik, ‘Article 72 TFEU’, in: Mayer/Stöger (eds), Kommentar zu EUV und AEUV (Maunz, looseleaf: 175th edn, 2014), para 2; ter Steeg, Das Einwanderungskonzept der EU (Nomos, 2006), p. 150–158; and Thun-Hohenstein, Der Vertrag von Amsterdam: die neue Verfassung der EU (Manz, 1997), p. 31. 123 See Peers, EU Justice, p. 84–85; Müller-Graff, Article 72 TFEU, paras 2, 4; Mungianu, Frontex, p. 156; and Breitenmoser/Weyeneth, ‘Article 72 TFEU’, in: von der Groeben/Schwarze/Hatje (eds), Europäisches Unionsrecht. EUV, AEUV, GRC, Vol. 2, 7th edn (Nomos, 2015), para 5. 124 The option of annulment was mentioned by AG Pikamäe, Commission v. Hungary, C-808/18, EU: C:2020:493, para 105. 125 In contrast to the second opinion, this position does not aim at a general limitation of the scope of EU competences, but aims, rather, at a specific design of EU legislation; see Hailbronner/Thym, ‘Grenzenloses Asylrecht? Die Flüchtlingskrise als Problem europäischer Rechtsintegration’, Juristenzeitung (2016), p. 753, 761–763; Bornemann, ‘Mitgliedstaatliche Gestaltungsspielräume im Schengener Grenzkodex’, Integration 41 (2018), p. 194, 195–196, 200–201; Hailbronner, Immigration, p. 102; and the second edition of this chapter. 126 ECJ, Stadt Frankfurt am Main, C-18/19, EU:C:2020:511, para 28.

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secondary legislation in exceptional scenarios. The Court’s Grand Chamber explicitly recognised that the provision can be compared with the derogations to the fundamental freedoms, as well as in situations of war, under Articles 36, 45, 52, 65, 346 and 347 TFEU, ‘which deal with exceptional and clearly defined cases.’127 Judges found that Article 72 TFEU must be interpreted strictly and that it does not generally authorise Member States to disrespect supranational rules.128 When invoking the provision, Member States must prove that it is necessary to disrespect secondary legislation in a specific scenario; they are not free to determine unilaterally whether to do so and are subject to the control by the Court of Justice.129 Insofar as the exception does not apply, Article 72 TFEU does not hinder the application of secondary legislation, since it does not generally define the areas of state activity mentioned therein as an exclusive area of responsibility of the Member States.130 This generic recognition of an option to derogate from otherwise mandatory rules of EU law has not yet found to be justified in a single case. 26a The meaning of the terms ‘maintenance of law and order’ and ‘safeguarding of internal security’ is not immediately clear, since it does not follow established EU terminology. It should be noted, however, that other language versions, such as the French (ordre public) and the German (öffentliche Ordnung), emulate the reference to ‘public policy’ in other derogations. This indicates that the provision should be given a similar or at least identical meaning, referring to a fundamental interest of society (see Thym, Legal Framework for EU Immigration Policy, MN 42–42c).131 Even though the notion of ‘internal security’ should usually be limited to internal events, there may be exceptional scenarios when internal and external events coincide, also considering that entry control, border, asylum and immigration policies are conceptually like to international events; there is no clear-cut distinction between Article 72 TFEU and Article 347 TFEU. Both provisions specify the bearing of Article 4(2) TEU for the subject areas covered. 26b An activation of Article 72 TFEU was discussed heatedly in Germany and Austria during the migration and refugee policy crisis of 2015/16 as a potential justification for the non-acceptance of asylum applications at the internal Schengen borders.132 The issue was never resolved and the Jafari judgment cannot be read as statement to the contrary, since no Member States had maintained at the time, neither in its administrative practice nor before the Court, that the crisis required an activation of Article 72 TFEU.133 In early 2020, the provision was discussed, together with the sister 127 ECJ, Commission v. Poland, the Czech Republic & Hungary, C-715/17, C-718/17 & C-719/17, EU: C:2020:257, para 143; note that the explicit recognition of the parallelism to other derogation clauses departed from the more restrictive proposal of Advocate General Sharpston, ibid., EU:C:2019:917, paras 208–221. 128 See ECJ, ibid., paras 144–145. 129 See ECJ, ibid., paras 146–147; the emphasis on the need for justification can be read as an implicit rejection of the opinion of Advocate General Jacobs, Commission v. Greece, C-120/94, EU:C:1995:109, paras 50–51 on Article 347 TFEU, which had emphasised the necessarily subjective character of the application of the norm; the final judgment did not address the question for procedural reasons; cf. ECJ, ibid., EU:C:1994:275. 130 The argument of the Swedish government to the contrary, in line with the first potential interpretation mentioned in MN 25, was rejected by ECJ, Stadt Frankfurt am Main, C-18/19, EU:C:2020:511, paras 22–30. 131 See ECJ, Bouchereau, 30/77, EU:C:1977:172, paras 33–35. 132 Authors writing in English are often unaware of the debate which followed the opposite rationale of the discussion whether the Dublin III Regulation was compatible with Article 80 TFEU; see Thym, ‘Judicial Maintenance of the Sputtering Dublin System on Asylum Jurisdiction: Jafari, A.S., Mengesteab and Shiri’, CML Rev. 55 (2018), p. 549, 556–558; among the authors defending an activation of Article 72 TFEU, see Obwexer, Gutachten für die österreichische Bundesregierung, 2016; see also Wissenschaftliche Dienste des Deutschen Bundestags, Obergrenzen für Asylsuchende und Bürgerkriegsflüchtlinge im Lichte des EU-Rechts, PE 6–3000 – 153/15 of 16 December 2015, p. 36–42. 133 Cf. ECJ, Jafari, C-646/16, EU:C:2017:586, paras 93–96.

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Chp. 2 guarantee in Article 347 TFEU on a ‘serious international tension constituting a threat of war’, as a potential justification for the closure of the Greek border towards Turkey and the temporary suspension of domestic asylum laws.134 The Gree government's argument about an ‘hybrid aggression’ emanating from the Turkish decision to allow – and encourage – foreigners to leave the country was taken up subsequently, by Lithuania and Poland when the Belarussian dictator threatened to ‘flood’ Europe with migrants in response to economic sanctions. The underlying argument of a ‘hybrid attack’ by means of politically incentivised migratory movements was politically sanctioned at the highest political level by the European Council and the Commission President, although the persuasiveness and potential legal effects of such arguments for specific policy scenarios remained uncertain at the time of writing. Be it as it may, the provision provides Member States with legal ammunition to justify restrictive practices, although such attempts will rarely succeed. Moreover, it was – unsuccessfully – invoked by Hungary in infringements proceedings the Commission had brought against draconian domestic asylum legislation.135 Recourse to the derogation will be limited to exceptional scenarios. An activation of 27 the provision presupposes that the arguments put forward in favour of derogation cannot be adequately addressed on the basis of statutory rules. In practice, specific provisions in secondary legislation will supplant Article 72 TFEU in regular circumstances, even though an activation of the derogation close remains possible in exceptional scenarios. Along these lines, the ECJ found statutory rules on the reintroduction of internal border controls, the public policy exception in the relocation decisions, exemptions from the asylum border procedure to realise the requirements of Article 72 TFEU.136 Advocates General supported the same view on the rejection of family reunification and student visas.137 In applying specific provisions of secondary legislation, the latter can be interpreted in light of Article 72 TFEU in line with the intermediate position presented above.138 Moreover, the EU institutions can agree on new measures to alleviate the concerns of the Member States, including provisional support in cases of sudden inflow of third country nationals on the basis of Article 78(3) TFEU (see Thym, Legal Framework for EU Asylum Policy, MN 36).139 An activation of Article 72 TFEU does not constitute a state of emergency, which 27a rejects the application of legal principles to safe the legal order from collapse. The Court of Justice has made clear, rather, that any recourse to the derogation is subject to judicial review. Similarly, the duty of loyal cooperation under Article 4 TEU requires Member States to coordinate among themselves and with the EU institutions in order to alleviate the concerns whenever possible, including through the adoption of specific 134 See Skordas, ‘The Twenty-Day Greek-Turkish Border Crisis: Geopolitics of Migration and Asylum Law’ (Part I & II), EU Immigration and Asylum Law Blog of 5 and 8 May 2020. 135 See ECJ, Commission vs. Hungary, C-808/18, EU:C:2020:1029, paras 212–226 in line with AG Pikamäe, ibid., EU:C:2020:493, paras 98–108. 136 On border controls see ECJ, Adil, C-278/12, EU:C:2012:508, para 66; on relocation ECJ, Commission v. Poland, the Czech Republic and Hungary, C-715/17, C-718/17 & C-719/17, EU:C:2020:257, paras 148–153; and on border procedures ECJ, Commission vs. Hungary, C-808/18, EU:C:2020:1029, para 222–224. 137 See Advocate General Kokott, European Parliament v. Council, C-540/03, EU:C:2005:517, paras 34–42; and Advocate General Szpunar, Fahimian, C-544/15, EU:C:2016:908, para 71. 138 See, mutatis mutandi, the Court’s position on Article 4(2) TEU, whose meaning may be replicated and specified for justice and home affairs in Article 72 TFEU, by ECJ, Ministrstvo za obrambo, C-742/19, EU:C:2021:597, paras 35–45. 139 The horizontal character of Article 72 TFEU argues against the conceptualisation of Article 78(3) TFEU as a lex specialis; contra Hilpold, ‘Quotenregelungen zur Bewältigung des Flüchtlingsproblems – ein rechtlich gangbarer Weg?’, Migralex (2016), p. 58, 63–65.

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supranational measures. If that is not possible, derogations must be limited in time and substance to comply with the requirements of the principle of proportionality. They have to respect, moreover, basic principles of the supranational legal order, including fundamental rights and the prohibition of refoulement, which are not subject to an emergency caveat.140 The safeguard clause does not allow for an exit from the constitutional framework of the EU, but is integrated into the latter as an exceptional flexibility measure.

2. External Relations In its strategic guidelines for legislative and operational planning(see Thym, Constitutional Framework, MN 8–9), the European Council has repeatedly called upon the EU institutions to reinforce cooperation with third states. The short Strategic Agenda 2019–2024 lists cooperation with countries of origin and transit as a top priority.141 Earlier initiatives had adopted a more holistic outlook in the Global Approach to Migration and Mobility of 2005/11 or the New Partnership Framework of 2016, which continue to inform the design and implementation of more specific policy proposals.142 They influence cooperation in the fields of visas (see above MN 14, 15), border controls (see below MN 30, 30a), readmission and legal migration (see Thym, Legal Framework for EU Immigration Policy, MN 22–22a) as well as asylum (see Thym, Legal Framework for EU Asylum Policy, MN 26, 33–35). 28a Competences for cooperation with third states and international organisations embrace all aspects of border control, visa, asylum and immigration policies, since the EU benefits from an implied shared external competence in all areas covered by internal competences irrespective of whether Articles 77–80 TFEU say so explicitly.143 The residual implied shared power turns into an exclusive external competence for international agreements after the adoption of secondary legislation insofar as an international treaty may affect internal rules or alter their scope.144 These shared and exclusive implied powers go further than express competences, which the EU Treaties lay down for readmission agreements (see Thym, Legal Framework for EU Immigration Policy, MN 22) and cooperation with third states in the field of asylum (see Thym, Legal Framework for EU Asylum Policy, MN 33–35). Do not misunderstand such express powers as an implicit statement that the EU cannot cooperate with third states or international organisations in other domains. While it remains a political choice whether to activate shared powers, the use of exclusive competences is mandatory, i.e. Member States are constitutionally prohibited from acting autonomously without an authorisation by the EU institutions.145 It is irrelevant whether an international agreement is in open conflict with Union law, since thematic overlap is sufficient to 28

140 See Hailbronner/Thym, ‘Grenzenloses Asylrecht? Die Flüchtlingskrise als Problem europäischer Rechtsintegration’, Juristenzeitung (2016), p. 753, 762–763; and ECRE, Derogating from EU Asylum Law in the Name of ‘Emergencies’, Legal Note No 6/2020, p. 6–7. 141 See European Council, A New Strategic Agenda 2019–2024, Annex to doc. EUCO 9/19 of 20 June 2019, p. 7. 142 See García Andrade/Martín/Mananashvili, EU Cooperation with Third Countries in the Field of Migration, Study requested by the European Parliament Directorate General for Internal Policies, October 2015, p. 22–69; and Thym, ‘Towards International Migration Governance?’, in: Van Vooren et al. (ed), The Legal Dimension of Global Governance: What Role for the EU? (OUP, 2013), p. 289–305. 143 While the existence of shared implied external competences independent of the adoption of secondary legislation had been subject to debate for many years, it was confirmed to originate in Article 216(1) TFEU by ECJ, Germany v. Council, C-600/14, EU:C:2017:935, paras 45–52. 144 See Article 3(2) TFEU. 145 See Article 2(1) TFEU.

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Chp. 2 bring about an exclusive external competence.146 Similarly, minor gaps in the regulatory reach of secondary legislation do not prevent the emergence of an exclusive external competence insofar as Union law has ‘largely covered’ a field.147 By way of example, a fundamental revision of the Refugee Convention would be covered by an exclusive Union competence nowadays, since its contents largely coincides with the provisions of the Qualification Directive 2011/95/EU. The scope and character of Union powers for specific dimensions of border control, visa, immigration and asylum policies will be described in the relevant sections of the introductory chapters on entry and border controls, asylum and immigration to this Commentary. In accordance with settled case law, the demarcation of different legal bases follows 28b the aim and contents of the measure in question; whenever there are multiple aims and components, the centre of gravity prevails over incidental aspects.148 This entails that corollary rules on migration in bi- or multilateral trade agreements, such as the General Agreement on Trade in Services (GATS), are covered by the exclusive Union competence for the Common Commercial Policy under Articles 206–207 TFEU.149 In the case of the GATS, the Annex on Movement of Natural Persons states expressly that it shall not prevent states from applying measures regulating the entry and stay of natural persons, including visa requirements.150 As a result, neither the GATS nor bilateral trade agreements have gained much significance for migration law in practice151 – in contrast to the status of posted workers from third countries under the EU’s internal market rules (see Thym, Legal Framework for EU Immigration Policy, MN 31a). Similarly, corollary rules on migration in contractual relations on development cooperation are covered by Articles 206–210 TFEU,152 while broader association agreements are based on Article 217 TFEU, for instance with neighbouring countries. Again, provisions on migration in development cooperation agreements have a limited scope.153 The relevance of association agreements depends on the political context; generally speaking, there are little rules on migration with states outside the European continent.154 It can be argued that the control-oriented externalisation projects, which are primarily pursued in the self-interest of the European Union, are not sustained by the competence on development cooperation, since the linkage is too vague155 – unlike 146

See ECJ, Accession of Third States to the Hague Convention, Opinion 1/13, EU:C:2014:2303, paras 69–74. Settled case law on the basis of ECJ, Lugano Convention, Opinion 1/03, EU:C:2006:81, para 126. 148 See ECJ, Commission v. Council (ECOWAS), C-91/05, EU:C:2008:288, para 73. 149 See ECJ, Opinion 2/15, EU-Singapore FTA, EU:C:2017:376, paras 40 et seq., 217. 150 See OJ 1994 L 336/205; and Charnovitz, ‘Trade Law Norms on International Migration’, in: Aleinikoff/Chetail (eds), Migration and International Legal Norms (T.M.C. Asser, 2003), p. 241–255. 151 See Tans, Service Provision and Migration (Brill/Nijhoff, 2017); Jacobsson, ‘Liberalisation of Service Mobility in the EU’s International Trade Agreements’, EJML 15 (2013), p. 245–261; and Dony, ‘Espace de liberté, de sécurité et de justice et politique commerciale commune’, in: Flaesch-Mougin/Rossi (eds), La dimension extérieure de l’espace de liberté, de sécurité et de justice de l’Union européenne après le Traité de Lisbonne (Bruylant, 2013), p. 533, 535–542. 152 This was explicitly confirmed for ancillary rules on illegal migration by ECJ, Commission v. Council, C-377/12, EU:C:2014:1903, paras 58–59. 153 On the African, Caribbean and Pacific (ACP) countries, see Devisscher, ‘Legal Migration in the Relationship between the European Union and ACP Countries’, EJML 13 (2011), p. 53–94; and Van Criekinge, ‘Integration of Migration Issues in EPAs’, in: Faber/Orbie (eds), Beyond Market Access for Economic Development (Routledge, 2009), p. 173–195. 154 See the contributions to Thym/Zoeteweij-Turhan (eds), Rights of Third-Country Nationals under EU Association Agreements. Degrees of Free Movement and Citizenship (Brill Nijhoff, 2015); and Korneev/ Van Elsuwege, ‘The Eastern Partnership Countries and Russia. A Migration-Driven Cooperation Agenda with the European Union’, in: Ripoll Servent/Trauner, Routledge Handbook, p. 298–309. 155 See Gatti, ‘The Gendarmes of Europe. Southern Mediterranean States and the EU’s Partnership Framework on Migration’, in: Ippolito et al., Bilateral Relations, p. 140, 149–150. 147

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in the case of border management projects to counter terrorism as a precondition for security without which economic development rarely succeeds.156 Even if we concluded that development cooperation cannot be used as a legal basis, practical consequences would be limited, since EU institutions could activate alternative or complementary legal bases instead. Article 78(2)(g) TFEU and Article 79(2)(c) TFEU, in particular, establish shared powers that can be used for cooperation with third countries (see Thym, Legal Framework for EU Immigration Policy, MN 20–23). In the field of border controls, there can be an overlap with security and defence policy when police or military missions contribute to wider migration control objectives.157 Note that a legal basis beyond Articles 77–80 TFEU means that Ireland and Denmark will participate automatically, since their opt-outs are limited to the area of freedom, security and justice (see Thym, Constitutional Framework, MN 39a). 28c The internal decision-making procedure for international agreements follows Article 218 TFEU that provides for the consent of the European Parliament to all agreements on matters relating to entry and border controls, immigration and asylum.158 The Council votes by a qualified majority, i.e. Member States do not have a veto. It should be noted, however, that the need for parliamentary approval implies a lesser degree of influence than for internal legislation for the simple reason that Parliament is left with a binary choice to either approve or to reject the agreement, which the Commission negotiated in close consultation with the Council;159 MEPs can try, however, to influence negotiations indirectly.160 The ECJ can be consulted on the compatibility of a future agreement with the EU Treaties.161 After ratification, judges in Luxembourg can interpret agreements, which take precedence over secondary legislation and domestic laws if they are found to be directly applicable (see Thym, Constitutional Framework, MN 56–57). 29 We can observe the proliferation of informal cooperation frameworks in the field of external migration governance, including operational procedures on return, mobility partnerships or other bi- or plurilateral measures (see Thym, Legal Framework for EU Immigration Policy, MN 22–22a) as well as regarding border controls (see below MN 30a) and legal migration (see Thym, Legal Framework for EU Immigration Policy, MN 62).162 While such arrangements are – as gentlemen’s agreements – not legally binding, they commit the Union politically and can be effective in terms of influencing 156 ECJ, European Parliament v. Commission, C-403/05, EU:C:2007:624, paras 56–60 recognised the overlap but found the funding instrument not to justify the delivery of funds nonetheless, thus effectively calling for a legislative amendment. 157 Again, the delineation follows the centre of gravity of the mission in question, in relation to which the use of military equipment or personnel argues in favour of CFSP/CSDP; on the overlap in practice see Dura, ‘The EU in the Central Mediterranean. Impact and Implications of the Comprehensive Approach’, EJML 20 (2018), p. 205–222; and Koutrakos, ‘The Nexus between CFSP/CSDP and the Area of Freedom, Security and Justice’, in: Blockmans/ibid. (eds), Research Handbook on the EU’s Common Foreign and Security Policy (Elgar, 2018), p. 296, 302–307. 158 In line with Article 218(6)(a)(v) TFEU, the European Parliament must give its consent whenever the ordinary legislative procedure applies internally, like for Articles 77–79 TFEU. 159 On negotiations, see Article 218(3), (4), (10) TFEU. 160 See Eckes, ‘External Relations Law. How the Outside Shapes the Inside’, in: Acosta Arcarazo/ Murphy (eds), EU Security and Justice Law (Hart, 2014), p. 186, 190–193; and Thym, ‘Parliamentary Involvement in European International Relations’, in: Cremona/de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Hart, 2008), p. 201, 204–205. 161 See Article 218(11) TFEU. 162 Generally on the (dis)advantages of informal cooperation, see García Andrade, ‘The Role of the European Parliament in the Adoption of Non-Legally Binding Agreements with Third Countries’, in: Juan Santos Vara/Rodríguez Sánchez-Tabernero (eds), The Democratisation of EU International Relations through EU Law (Routledge, 2018), p. 115–132.

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Chp. 2 the behaviour of the parties. From a constitutional perspective, informal cooperation frameworks have to emanate from an external competence and are negotiated by the Commission with the consent of the Council (not the European Parliament), which retain the authority to determine the EU’s position politically.163 They are, as nonbinding arrangements, not published in the Official Journal but can often – though not necessarily – be access online. In the case of the EU-Turkey Statement of March 2016, the ECJ found, controversially, that it was the Member States (not the EU institutions) which consented to the pact and that legal challenges in Luxembourg were inadmissible;164 in other cases it can remain similarly unclear who the author of an informal arrangement is.165 Whenever the EU institutions adopt non-binging cooperation frameworks, the ECJ may have competence, in exceptional cases where legal effects are produced nonetheless, to review the legality of information action in line with established case law.166 Note that the implementation of informal cooperation frameworks will often be subject to legally binding internal legislation, such as the Return Directive for the Visa Code Regulation; in accordance with general rules, domestic courts and the ECJ can review the legality of corresponding state practices. In the field of border controls, the European Union has agreed to the far-reaching 30 association of Norway, Iceland and Switzerland (as well as Liechtenstein) with the Schengen acquis, including the abolition of internal border controls.167 This legal construction implies that the participation of these countries in the Schengen law rests upon international agreements concluded by the EU institutions,168 not upon EU membership. During the negotiations, the EU institutions insisted on an obligation of the associated countries to apply any future EU legislation building upon the Schengen acquis, even if it is adopted after the entry into force of the agreement.169 Their ministers cannot participate in the deliberations of new instruments at Council level, although the so-called ‘Mixed Committee’ provides a forum for an exchange of views.170 163 This was decided on the basis of Articles 16–17 TEU – not Article 218 TFEU, which applies to legally binding treaties only – by ECJ, Council v. Commission, C-660/13, EU:C:2016:616, paras 36 et seq.; for a proposal to require parliamentary consent by means of an analogous application of Article 218(6) TFEU, see García Andrade, ‘The Duty of Cooperation in the External Dimension of the EU Migration Policy’, in: Carrera et al. (eds), EU External Migration Policies in an Era of Global Mobilities (Brill, 2019), p. 299, 317. 164 See ECJ, NF et al. v. European Council, C-208/17 C-210/17 P, EU:C:2018:705, para 16. 165 See Molinari, ‘The EU and its Perilous Journey through the Migration Crisis: Informalisation of the EU Return Policy and Rule of Law Concerns’, EL Rev. 44 (2019), p. 824, 837–839. 166 See Santos Vara, ‘Soft International Agreements on Migration Cooperation with Third Countries’, in: Carrera/ibid./Strik (eds), Constitutionalising the External Dimension of EU Migration Policies in Times of Crisis (Elgar, 2019), p. 21, 33–35. 167 In the case of Norway and Iceland, Protocol (No 19) on the Schengen acquis (OJ 2008 C 115/290) provides for a specific legal basis that obliges the EU institutions to agree to an agreement; see Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen Acquis’, CML Rev. 37 (2000), p. 345, 350. 168 See the Agreement concluded by the Council with Norway and Iceland (OJ 1999 L 176/36), which entered into force on 26 June 2000 (OJ 2000 L 149/36); and the Agreement between the EU, the EC and the Swiss Confederation (OJ 2008 L 53/52), which entered into force on 1 March 2008 (OJ 2008 L 53/18) together with the Protocol No 1 on the accession of Liechtenstein, which entered into force on 19 December 2011 (OJ 2011 L 333/27); for further comments, see Filliez, ‘Schengen/Dublin’, in: Martenczuk/van Thiel (eds), External Relations, p. 145–186. 169 Cf. Article 2(3) of the said agreements, ibid.; failure to comply with the obligation can result in the termination of the agreement unless a political solution is found. 170 See Articles 3–7 of the Agreement with Switzerland, ibid., and Articles 3–8 of the Agreement with Norway and Iceland, ibid.; for the institutional practice, see Wichmann, ‘The Participation of the Schengen Associates: Inside or Outside?’, EFA Rev. 11 (2006), p. 87–107.

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Since association agreements establish international legal obligations, domestic courts from the associated countries cannot refer questions of interpretation to the ECJ, although they are obliged to follow its case law as a matter of principle.171 It was decided that Gibraltar should join the Schengen area on the basis of a bilateral agreement to be negotiated during 2021, which is apparently meant to foresee individual decision-making powers of Frontex (see Ryan, Frontex Regulation (EU) 2019/1896, Article 1 MN 17). 30a In addition to association agreements, there are various forms cooperation on entry and border controls with third states, in particular those in the immediate neighbourhood. Over the years, there have been various examples of international cooperation, mostly below the threshold of legally binding commitments (see above MN 29).172 These supranational initiatives are often complemented by bilateral arrangements of the Member States, such as the highly controversial cooperation between Italy and Libya173 or the arrangements between Poland and Ukraine.174 A specific phenomenon are working arrangements or status of mission agreements FRONTEX has signed with third states in recent years (see Ryan, Frontex Regulation (EU) 2019/1896, Article 73). Such border control initiatives are often integrated into the wider reorientation of European immigration and asylum policy at the externalisation of migration control (see Thym, Legal Framework for EU Asylum Policy, MN 5).

IV. Human Rights and International Law 31

EU migration law is firmly embedded in the constitutional framework of the EU Treaties, including human rights. From a doctrinal perspective, the rights and principles enshrined in the Charter of Fundamental Rights serve as the primary yardstick for the judicial review of EU legislation, both where its validity is at stake or where it is interpreted in conformity with human rights. While the EU institutions must respect the Charter in all their activities, the Member States are bound only when implementing Union law (see Thym, Constitutional Framework, MN 47–48). With regard to specific legal questions, the interpretation of the EU Charter by the ECJ typically follows the case law of the ECtHR on the ECHR, although the ECJ is not formally obliged to follow the Strasbourg court in all scenarios (see Thym, Constitutional Framework, MN 51). In contrast to international human rights law and the Geneva Convention, international agreements of the Member States to which the EU has not formally acceded do not generally form part of the EU legal order (see Thym, Constitutional Framework, MN 58–59). On the basis of these general principles, this section focuses on the human rights dimension of EU instruments on entry and border controls discussed in this chapter. Other chapters elaborate on human rights requirements for immigration policy, including private and family life, the rights of the child and equal treatment (see Thym, Legal Framework for EU Immigration Policy, 171 See Articles 8–9 of the Agreement with Switzerland, ibid., and Articles 10–11 of the Agreement with Norway and Iceland, ibid. 172 See the contributions to Ippolito et al., Bilateral Relations; and Martin (ed), La gestion des frontières extérieures de l’Union européenne (Pedone, 2011). 173 See Gloninger, ‘From Humanitarian Rescue to Border Security’, EJML 21 (2019), p. 459, 475–480; on the previous practice, see Marchetti, ‘Expanded Borders: Policies and Practices of Preventive Refoulement in Italy,’ in: Geiger/Pécoud (eds), The Politics of International Migration Management (Palgrave Macmillan, 2010), p. 160–183. 174 See Kaca, ‘EU Ukraine Cooperation in Justice and Home Affairs’, in: Snyder/Thym (eds), Europe – A Continent of Immigration? Legal Challenges in the Construction of European Migration Policy (Bruylant, 2011), p. 197–223.

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Chp. 2 MN 37–42, 52–58), as well as asylum policy, in particular the prohibition of nonrefoulement and corresponding procedural obligations (see Thym, Legal Framework for EU Asylum Policy, MN 47–63a). Moreover, procedural guarantees beyond the confines of asylum policy, including data protection, are discussed in the general introduction (see Thym, Constitutional Framework, MN 37–37e).

1. (No) Right to Enter the European Union As starting point of its case law, the ECtHR maintains to this date that the contracting 32 states enjoy ‘as a matter of well-established international law and subject to their treaty obligations [the right] to control the entry, residence and expulsion of aliens.’175 This assertion of state sovereignty over the entry and stay of foreigners, which has been criticised as the ‘Strasbourg reversal’ in academic writing,176 reiterates the classic position of public international law that emerged during the 19th century: states retain discretion when authorising the entry and stay of foreigners.177 The dynamic evolution of the human rights case law considerably curtailed this classic position, thereby overcoming the traditional limitation of human rights to guarantees within states that were not originally intended to restructure cross-border situations.178 Similarly, migration-related questions had originally been left outside the scope of the European Convention.179 State control over the entry and stay of foreigners is subject to limitations on human 33 rights grounds. We may distinguish two sets of obligations: firstly, Article 3 ECHR serves as the central guarantee against mistreatment in countries of origin or transit (see Thym, Legal Framework for EU Asylum Policy, MN 55–63); secondly, migrants can bring forward a claim under Article 8 ECHR against European countries they are living in to protect their private or family life irrespective of the situation in countries of origin (see Thym, Legal Framework for EU Immigration Law, MN 53–55). In short: refugees are protected against refoulement under Article 3 ECHR, whereas Article 8 ECHR is based upon legitimate ties migrants developed during the period of residence in Europe. With regard to entry controls at the external border, Article 3 ECHR serves as the central yardstick (see below MN 34–35), since Article 8 ECHR can give rise to a primary right to be admitted for purposes of family reunion only in exceptional circumstances (see Thym, Legal Framework for EU Immigration Law, MN 51), which is supplanted by extensive statutory guarantees in secondary legislation. These constitutional principles can be extended to the EU Charter, since Articles 4 and 7 CFR have to be interpreted in line with the ECtHR case law.180 175 This standard formula was first used in ECtHR, Judgment of 28 May 1985, Nos 9214/80, 9473/81 & 9474/81, Abdulaziz, Cabakes & Balkandali v. the United Kingdom, para 67; reconfirmed by ECtHR, judgment of 13 February 2020 [GC], Nos 8675/15 & 8697/15, N.D. & N.T. v. Spain, para 167; see also Saroléa, Droits de l’homme et migrations (Bruylant, 2006), p. 331–335. 176 See Dembour, When Humans Become Migrants (OUP, 2015), ch. 4. 177 See Hailbronner/Gogolin, ‘Aliens’, in: Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, online edition, paras 14–22, available at http://www.mpepil.com [last accessed 1 June 2021]; and Jennings/Watts, Oppenheim’s International Law, Vol. II, 9th edn (OUP, 2008), chs 6 & 9; on different traditions before the heyday of the nation state, see Chetail, International Migration Law (OUP, 2019), ch. 2. 178 See Moyn, The Last Utopia. Human Rights in History (Harvard UP, 2010). 179 The travaux préparatoires show that the issue of asylum was discussed but not regulated, also with a view to on-going discussion on the 1951 Refugee Convention, while legal migration was considered to fall within the domaine réservée of state sovereignty, which only carefully drafted international norms – such as Articles 2 and 4 Additional Protocol No 4 to the ECHR – would selectively limit; see Uibopou, ‘Der Schutz des Flüchtlings im Rahmen des Europarats’, Archiv des Völkerrechts 21 (1983), p. 60, 61–64. 180 On the parallel interpretation of Article 8 ECHR and Article 7 of the Charter, see ECJ, McB., C-400/ 10 PPU, EU:C:2010:582, para 53; correspondingly on Article 3 ECHR and Article 4 of the Charter, see ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, paras 86–88.

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In relation to refugees, the mandatory respect for the Refugee Convention and human rights (see above MN 31) requires Member States to respect these obligations when implementing EU policies. In line with Article 51 CFR, it has to be assessed on a case-bycase basis whether national border control activities are to be considered an implementation of Union law to which EU fundamental rights standards apply (see Thym, Constitutional Framework, MN 47–48).181 Express provisions in EU legislation on the necessary respect for refugee law and human rights, such as Article 3(b) Schengen Borders Code Regulation (EU) 2016/399,182 confirm that entry and border control policies must be compatible with human rights and refugee law. These human rights guarantees are nowadays considered, by most observers, to include a prohibition, on the side of the states, to not reject those fleeing persecution at the border,183 even though the scope of these obligations remains unclear, especially with regard to extraterritorial state activities (see below MN 38–41) and concerning non-admission at the border (see below MN 35). 35 In the context of entry control, it is important to distinguish between non-refoulement obligations and access to an asylum procedure. While the former (non-refoulement) prohibits the return to unsafe territories, the latter (access to an asylum procedure) is usually understood to embrace access to basic procedural safeguards, a provisional right to stay during status determination and, in case of recognition, a set of socioeconomic rights. It remains contested to what extent the ECtHR case law on the prohibition of collective expulsions and the right to asylum in Article 18 of the Charter embrace a generic guarantee to be temporarily admitted to EU territory, especially in situations where people do not face a real risk of inhumane or degrading treatment (see Thym, Legal Framework for EU Asylum Policy, MN 55–63). In practical terms, most of these questions are supplanted by statutory guarantees in the Asylum Procedures Directive. 35a The distinction between non-refoulement and the right to asylum is particularly relevant for those who are not covered by the EU asylum directives ratione loci, in particular those who are confronted with European border guards on the occasion of extraterritorial control activities (see below MN 39). As long as non-refoulement obligations are met, applicants could be returned to a third state, or a certain part thereof, provided that they would not be confronted with a well-founded fear of persecution or inhumane or degrading treatment under the criteria set out in international human rights and refugee law (see Thym, Legal Framework for EU Asylum Policy, MN 56–59a). These principles apply to search and rescue operations mutatis mutandi (see below MN 42–43). Against this background, it would be possible, from a constitutional perspective, for the EU legislature to provide for the relocation of asylum seekers to transit zones, disembarkation platforms or safe third countries on the basis of agreements providing for credible guarantees for fair treatment,184 if necessary by supporting third states or international organisations in guaranteeing an adequate treatment through financial or administrative support.185 Taking up previous debates, the EU Treaties establish a supranational competence to set up asylum reception centres outside the EU territory (see Thym, Legal Framework for EU Asylum Policy, MN 35). 34

181

By way of example, see ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–41. Even without an express provision respect would be mandatory, since EU legislation has to comply with primary law, see Thym, Constitutional Framework, MN 14. 183 See Goodwin-Gill/McAdam, Refugee, p. 206–208; and Kälin/Caroni/Heim, in: Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. A Commentary (OUP, 2011), Article 33, para 1 MN 105–109. 184 On the relevance of diplomatic assurances within the context of Article 3 ECHR, see Thym, Legal Framework for EU Asylum Policy, MN 57. 185 For further comments, see Thym, Expert Opinion on the Reform of the Common European Asylum System, January 2017, available online at http://ssrn.com/abstract=3163014 [last accessed 1 June 2021]. 182

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Chp. 2 With regard to other categories of foreigners than refugee and family members, 36 international human rights law confirms the principled freedom of states to control their borders and to regulate the entry and stay of foreigners.186 Only nationals must not be arbitrarily deprived of the human right to enter their ‘own country’187, which the Human Rights Committee extended to certain categories of long-term residents.188 Neither contractual obligations nor customary international law have so far brought about an authoritative basis for a generic human right to enter other states in situations others than those related to family unity and refugee protection.189 More recent attempts to invigorate the right to leave any country under Article 2(2) of the Additional Protocol No. 4 to the ECHR have not been fruitful so far;190 the ECtHR has rejected an activation of the provision for interception at sea.191 In short: there is no generic human right to enter foreign states, while those residing in another country benefit from civil, economic, social and cultural rights,192 including those with illegal residence status.193 EU legislation can provide for more far-reaching individual rights in situations where 37 human rights do not contain such guarantee. Corresponding statutory rights of migrants to be admitted to the EU territory have been recognised by the ECJ in various instances, in particular with regard to uniform visas under the Schengen Visa Code (see Meloni, Regulation (EC) No 810/2009, Article 32 MN 3) and for more specific guarantees for family reunification and for students.194 In so far as these statutory guarantees go beyond human rights requirements, the demarcation of the precise scope remains the prerogative of the EU legislature whose position judges have to identify under recourse to general interpretative standards (see Thym, Constitutional Framework, MN 15). In accordance with Article 47 of the Charter (see Thym, ibid., MN 37–37b), EU legislation also provides for a right to appeal against the refusal of entry at the external borders or the rejection of an application for a uniform visa (see Meloni, Regulation (EC) No 810/2009, Article 32 MN 5), although applicants do not have the right to enter the EU territory provisionally pending the outcome of their appeal against rejection at the border (see Epiney/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Article 13 MN 4–5). 186

Lauterpacht, Oppenheim’s International Law. Vol. I, 8th edn (Longham, 1955), p. 675–676. Article 12(4) ICCPR; similarly, Article 3(2) Additional Protocol No 4 to the ECHR; the Charter of Fundamental Rights does not take up the guarantee, which may exist nonetheless as an unwritten general principle of Union law in line with Article 6(3) TEU. 188 See Human Rights Committee, General Comment No 27, Doc. CCPR/C/21/Rev.1/Add.9 of 2 November 1999, para 20; for a more cautious position, see Human Rights Committee, Communication No 538/1993, Stewart v. Canada, doc. CCPR/C/58/D/538/1993 of 16 December 1996. 189 See Perruchoud, ‘State Sovereignty and Freedom of Movement’, in: Opeskin et al. (eds), Foundations of International Migration Law (CUP, 2012), p. 123, 129–136; Martin, ‘The Authority and Responsibility of States’, in: Aleinikoff/Chetail (eds), Migration and International Legal Norms (T.M.C. Asser, 2003), p. 31–46; and the prospective considerations by den Heijer, Extraterritorial Asylum, p. 142–160. 190 See the dynamic proposals by Stoyanova, ‘The Right to Leave Any Country and the Interplay between Jurisdiction and Proportionality in Human Rights Law’, IJRL (2020), p. 403–439; and Markard, ‘The Right to Leave by Sea. Legal Limits on EU Migration Control by Third Countries’, EJIL 27 (2016), p. 591–616. 191 See ECtHR, decision of 11 January 2001, No 39473/98, Xhavara et al. vs. Italy & Albania, para 3. 192 See Weissbrodt, The Human Rights of Non-citizens (OUP, 2008); and Ryan/Mantouvalou, ‘The Labour and Social Rights of Migrants in International Law’, in: Rubio-Marín (ed), Human Rights and Immigration (OUP, 2014), p. 177–211. 193 See Carlier, ‘Quelles Europes et quel(s) droit(s) pour quels migrants irréguliers?’, in: Leclerc (ed), Europe(s), droit(s) et migrants irréguliers (Bruylant, 2012), p. XIII–XXVI. 194 For a statement of principle, see ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, paras 59–60. 187

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2. Extraterritorial Reach The borders agency FRONTEX has become a symbol for the attempt, on the side of the European Union, to promote the Treaty objective to ensure the ‘efficient monitoring of the crossing of external borders’ (see above MN 6). It participates in extraterritorial activities that critics denounce as an attempt to bypass obligations under human rights and refugee law by preventing potential refugees from reaching the territorial borders of the European Union (see above MN 4; and Thym, Legal Framework for EU Asylum Policy, MN 5). While it is beyond doubt that extraterritorial border controls and support for third states must comply with the established principles of the law of the sea concerning safety and rescue of life (see below MN 42–43), it remains unclear to what extent human rights and/or refugee law prescribe certain actions. What is certain is that Article 1 ECHR obliges state parties to secure the human rights ‘to everyone within their jurisdiction’ – a condition that is not limited to the state territory as such in accordance with settled case law. In a number of judgments concerning extraterritorial military activities, judges in Strasbourg held that a state’s ‘jurisdictional competence is primarily territorial’ and that extraterritorial activities amount to an exercise of jurisdiction only in ‘exceptional circumstances.’195 These instances can include situations of effective control of an area as a consequence of military action as well as factual authority over an individual abroad, for instance as a result of arrest (including kidnapping) or ‘on board aircraft and vessels.’196 39 On the basis of these principles, the ECtHR concluded, in the Hirsi judgment, that Italian border guards held jurisdiction over migrants on board of a coastguard vessel,197 thus triggering the application of the double prohibition of refoulement and collective expulsion (see Thym, Legal Framework for EU Asylum Policy, MN 57–63). It remains an open question whether the ECtHR’s statement about migrants on board ships ‘registered in, or flying the flag of, that State’198 entails that other forms of de facto control cannot be qualified as an exercise of jurisdiction, particularly in situations when border control officers are not in physical contact with migrants on private vessels. That question is far from academic given the pre-dominance of private vessels and the coast guard of neighbouring states, notably from Libya and Morocco, for search and rescue in the Mediterranean. In a case about delayed rescue operations, the Human Rights Committee found that the jurisdictional link was sufficient ‘in the particular circumstances of the case.’199 It remains to be seen whether the ECtHR follows the example and whether the same conclusion might even be reached in scenarios involving the Libyan coast guard.200 38

195 Reaffirmed by ECtHR, decision of 5 May 2020 [GC], No 3599/18, M. N. and others v. Belgium, paras 98, 102 summarising earlier judgments. 196 See, again, the summary of earlier case law by ECtHR, judgment of 23 February 2012 [GC], No 27765/09, Hirsi Jamaa et al. v. Italy, paras 73–75. 197 See the application of the principles described above by ECtHR, judgment of 23 February 2012 [GC], No 27765/09, Hirsi Jamaa et al. v. Italy, paras 76–82. 198 ECtHR, judgment of 23 February 2012 [GC], No 27765/09, Hirsi Jamaa et al. v. Italy, para 75. 199 See Human Rights Committee, Views of 27 January 2021, No. 3042/2017, A.S. et al. v. Italy, section 7.4-7.8 with regard to the jurisdictional yardstick under Article 2(1) ICCPR; similarly, den Heijer, ‘Reflections on Refoulement and Collective Expulsion in the Hirsi Case’, IJRL 25 (2013), p. 265, 273–274; Moreno-Lax, ‘Hirsi Jamaa and Others v. Italy’, Human Rights Law Review 12 (2012), p. 574, 580–582; and Solomon, ‘Migrant Boats on the High Seas and Their Interception through Psychologically Coercive Measures’, Netherlands Quarterly of Human Rights 37 (2019), 36–49. 200 See the application No. 21660/18, S.S. et al. v. Italy (pending).

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Chp. 2 In a judgment of principle, the Grand Chamber of the ECtHR concluded that the 39a rejection of an application for a humanitarian visa in an embassy abroad cannot be considered an exercise of state jurisdiction. To be sure, it may find an exercise of jurisdiction by consular agents in ‘exceptional circumstances’, for instance when nationals seek diplomatic protection or family members seek an entry visa.201 However, the involvement of domestic authorities or the risk of inhumane or degrading treatment in themselves were not considered sufficient to justify such an exception.202 In a statement of principle, the Grand Chamber emphasised the generic character of the verdict: ‘The Court considers that to find otherwise would amount to enshrining a near‐ universal application of the Convention … and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment… The individual in question could create a jurisdictional link by submitting an application and thus give rise, in certain scenarios, to an obligation under Article 3 which would not otherwise exist.’203 The judgment came as a disappointment for those who had promoted different forms of joint or functional jurisdiction to overcome the territorial underpinning of established jurisdictional control standards.204 Apparently, judges at the Court in Strasbourg are not willing to embark upon extensive extraterritorial scrutiny. Contrary to the ECHR, the Refugee Convention does not contain an explicit 40 provision on territorial scope. The prohibition of refoulement was originally meant, by state parties, to apply within the territory, although there is growing support to extend its reach to rejection at the border and – notwithstanding the position of the US Supreme Court – extraterritorial de facto control over persons or territory (mirroring the ECtHR case law).205 Similarly, proposal have been put forward to use the doctrinal concept of positive obligations to limit state discretion further, possibly on the basis of other multilateral human rights instruments not subject to the jurisdictional benchmark.206 When it comes to legal practice, however, the position of the European Court of Human Rights and its ‘primarily territorial’ notion of jurisdiction remain crucial. It entails that visa requirements and carrier sanctions cannot be held liable for violations of non-refoulement obligations (see Meloni, Regulation (EC) No 810/2009, Article 1 MN 11). Important uncertainties exist when it comes to the territorial scope of the Charter 41 of Fundamental Rights. On the one hand, it can be argued that it emulates the jurisdictional threshold of Article 1 ECHR in instances of extraterritorial state action, or that at least some guarantees, such as the prohibition of refoulement or the right to asylum (see Thym, Legal Framework for EU Asylum Policy, MN 55-60a), should be interpreted in line with the legal material they were meant to reinforce.207 On the other hand, the open formulation in Article 51(1) about the Charter being ‘addressed to the 201

See ECtHR, decision of 5 May 2020 [GC], No 3599/18, M. N. and others v. Belgium, paras 101–106. See ECtHR, decision of 5 May 2020 [GC], No 3599/18, M. N. and others v. Belgium, paras 110–123. 203 ECtHR, decision of 5 May 2020 [GC], No 3599/18, M. N. and others v. Belgium, paras 124; references omitted. 204 For further comments, see Thym, End of Human Rights Dynamism?, p. 584–588. 205 See the arguments put forward and the summary of the state practice by Goodwin-Gill/McAdam, Refugee, p. 244–256; Gammeltoft-Hansen, ‘Extraterritorial Migration Control and the Reach of Human Rights’, in: Chetail/Baulez (eds), Research Handbook on International Law and Migration (Elgar, 2014), p. 113, 116–126; and den Heijer, Extraterritorial Asylum, p. 120–132. 206 See Spijkerboer, ‘Stretching the Limits’, in: Maes et al., External Dimensions, p. 387, 394–402; and, for the International Covenant on Economic, Social and Cultural Rights, Pijnenburg, At the Frontiers of State Responsibility. Socio-Economic Rights and Cooperation on Migration (Intersentia, 2021). 207 See Article 52(3), (4) CFR; Law, ‘Humanitarian Admission and the Charter of Fundamental Rights’, in: Foblets/Leboeuf, Humanitarian Admission, p. 77, 97–109; and Herdegen, ‘Grundrechte der Euro202

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institutions’ and applying to the Member States ‘when implementing Union law’ could be read as an implicit statement about extraterritorial scope, also considering that the Court of Justice has previously found secondary legislation to reach beyond the external borders.208 Arguably, one reason for the convoluted reasoning in the X & X judgment on humanitarian visas may have been a desire to evade a definite statement on these matters. For the time being, the scope of the Charter remains obscure.

3. Search and Rescue The obligation to safe life at sea is firmly embedded in international law, including in Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS), which the European Union has ratified.209 Regulatory standards were laid down by the IMO Maritime Safety Committee on the basis of the International Convention on Maritime Search and Rescue (SAR Convention),210 which specified and supplemented the general obligation to save life at sea with interstate coordination requirements and a definition of the concept of ‘distress’ or the meaning of a ‘place of safety’.211 A place of safety, where disembarkation may take place, is generally understood nowadays to require basic physical security and the fulfilment of basic human needs, including compliance with the prohibition of refoulement.212 In line with settled ECJ case law, contractual obligations of the Member States are not generally integrated into the EU legal order (see Thym, Constitutional Framework, MN 58). Nevertheless, the technical requirements mentioned above can be said to specify the obligation under Article 98 UNCLOS, which the EU must respect. Moreover, the EU institutions are bound by human rights requirements informing the meaning of ‘safety’ under the international law of the sea. 42a To apply international legal standards remains a practical and legal challenge. Firstly, it can be difficult to define the bearing of ‘safety’ in-between the law of the sea and human rights law (see Thym, Legal Framework for EU Asylum Policy, MN 56-58) and to determine whether the situation in a specific country meets these requirements. Similar problems persist with regard to the meaning of ‘distress’ and its application to the factual situation on the ground, for instance for the conditions under which rubber boats are in distress.213 Secondly, the obligation to safe life at sea does not imply a general obligation to authorise disembarkation in a specific country, for instance on grounds of geographic proximity or the flag state. Instead, international law requires 42

päischen Union’, in: Isensee/Kirchhof (ed), Handbuch des Staatsrechts, Vol. X, 3rd edn (C.F. Müller, 2012), § 211 MN 44–45. 208 See Costello/Moreno-Lax, ‘The Extraterritorial Application of the EU Charter of Fundamental Rights’, in: Peers et al. (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 1657–1684. 209 See UNCLOS of 10 December 1982 (OJ 1998 L 179/3). 210 See International Convention on Maritime Search and Rescue (SAR) of 27 April 1979, UNTS Vol. 1405, p. 118, which is binding on most Member States. 211 See Guidelines on the Treatment of Persons Rescued at Sea, Resolution MSC.167(78) of 20 May 2004, para 6.12–18. 212 See the revised Annex to the SAR Convention as amended by Resolution MSC.70(69) of 20 May 1998, which entered into force on 1 January 2000; and Resolution MSC.155(78) of 20 May 2004, which entered into force on 1 July 2006; they can be found online at https://www.imo.org/en/KnowledgeCentre/ IndexofIMOResolutions/Pages/MSC.aspx [last accessed 1 June 2021]. 213 For further comments, see Moreno-Lax, ‘Seeking Asylum in the Mediterranean’, IJRL 23 (2011), p. 174, 186–199; Papastavridis, ‘Rescuing Migrants at Sea and the Law of International Responsibility’, in: Gammeltoft-Hansen/Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation (Routledge, 2017), p. 161, 163–168; and Scovazzi, ‘Human Rights and Immigration at Sea’, in: Rubio-Marín (ed), Human Rights and Immigration (OUP, 2014), p. 212, 225–237.

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Chp. 2 states to cooperate in finding a ‘place of safety’ – an obligation of conduct, not of result.214 Private vessels cannot force states to open their ports, unless in situations of humanitarian urgency.215 The linkage between international legal obligations and EU rules on entry and border 43 controls are far from straightforward. When it comes to competences, the EU institutions lack a generic power to harmonise rules on search and rescue, which can only be dealt with indirectly, in the context of statutory prescriptions for border controls (see above MN 17a). The same applies to Frontex, which has no freestanding competence to set up search and rescue operations (see above MN 20b). The Sea Borders Regulation has been criticised for not laying down clear-cut criteria specifying the meaning of basic concepts of international law or filling existing lacunae, such as a coordinated mechanism for disembarkation (see Ryan, Regulation (EU) 656/2014, Article 1 MN 3–4).216 Moreover, Member States have repeatedly been accused of hindering effective of search and rescue by not opening their ports, thus using the abstract definitions and regulatory lacunae in the international legal framework to advance the securitarian control agenda.217

4. Detention As a matter of principle, it is beyond doubt that the right to liberty is firmly 44 embedded in the EU legal order and can be invoked by third country nationals to challenge detention. Constitutional standards for detention emanate from Article 5 ECHR and Article 6 of the Charter, which should usually be interpreted in parallel (see Thym, Constitutional Framework, MN 48), even though judges in Luxembourg have occasionally emphasised the autonomy of Union law.218 A first area of potential differences concerns the concept of detention, for which the ECtHR requires a certain level of intensity, which short periods of non-admission, for instance at airports, do not necessarily satisfy.219 The Grand Chamber concluded that asylum seekers in a Hungarian transit zone had not been detained, since they could have left towards Serbia.220 By contrast, the ECJ came to a different conclusion without specifying whether that result concerned general human rights requirements or stricter statutory standards.221 A second area of potential differences concerns justification requirements for detention, since the EU Charter does not emulate detailed prescriptions in 214 See van Berckel Smit, ‘Taking Onboard the Issue of Disembarkation’, EJML 22 (2020), p. 492–517; and Trevisanut, ‘Search and Rescue Operations in the Mediterranean. Factor of Cooperation or Conflict?’, The International Journal of Marine and Coastal Law 25 (2010), p. 524–543. 215 See Talmon, ‘Private Seenotrettung und das Völkerrecht’, Juristenzeitung (2019), p. 802, 805–807. 216 See den Heijer, ‘Frontex and the Shifting Approaches to Boat Migration in the European Union. A Legal Analysis’, in: Zaiotti (ed), Externalizing Migration Management (Routledge, 2016), p. 53, 54–66; and Koka/Veshi, ‘Irregular Migration by Sea. Interception and Rescue Interventions in Light of International Law and the EU Sea Borders Regulation’, EJML 21 (2019), p. 26, 43–48. 217 Generally, see Mann, ‘Maritime Legal Black Holes. Migration and Rightlessness in International Law’, European Journal of International Law 29 (2018), p. 347–372. 218 See ECJ, N, C-601/15 PPU, EU:C:2016:84, paras 44–47; and ECJ, K, C-18/16, EU:C:2017:680, paras 32, 50–52, which recognised the need for coherence, while emphasising the autonomy of Union law. 219 For general principles guiding the case law, see ECtHR, judgment of 21 November 2019 [GC], No 47287/15, Ilias & Ahmed v. Hungary, paras 211–218; and ECtHR, judgment of 25 June 1996, No 19776/92, Amuur v. France, paras 38–49 distinguishing between mere ‘restrictions’ and more extensive ‘deprivations’ of liberty with only the latter amounting to ‘detention.’ 220 See ECtHR, judgment of 21 November 2019 [GC], No 47287/15, Ilias & Ahmed v. Hungary, paras 219–249. 221 See ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, paras 216–225; generally, on the lack of attention, on the part of the ECJ, to the human rights framework in the field of detention, see Molnár, ‘The Place and Role of

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Article 5(1)(a)-(f) ECHR.222 It is not immediately clear whether the claim to autonomy, which permeates ECJ judgments on the justification of detention, results in higher or lower standards in comparison to the ECtHR case law; the outcome may differ depending on the legal questions involved.223 44a The principles described above extend to Article 9(1) ICCPR, in relation to which the Human Rights Committee has accepted the initial detention of asylum seekers, while insisting, like the ECtHR (see below MN 46), that detention does not become permanent.224 Non-binding recommendations put forward by the Executive Committee and by UNHCR plead for stricter requirements,225 but they are based primarily on human rights law and cannot, therefore, go beyond the above-mentioned case law. 45 In line with settled ECtHR case law, we must distinguish the detention of asylum seekers and other migrants in the context of entry controls from human rights requirements applicable to domestic deprivations of liberty of third country nationals who had previously entered a Member States, including detention for return purposes. In a judgment of principle, the Grand Chamber reaffirmed that the more generous criteria for entry controls pursuant to first limb of Article 5(1)(f) ECHR also apply when someone files an application for asylum at the border: ‘the first limb of Article 5 para 1(f) permits the detention of an asylum-seeker or other immigrant prior to the State’s grant of authorisation to enter.’226 In these cases, the ECtHR does not require a proportionality assessment to be carried out, but applies a more generous arbitrariness yardstick, including the option of judicial review by courts,227 even though it can be difficult to discern practical differences between the necessary proportionality and arbitrariness assessment. 45a It is not immediately clear whether and, if so, to what extent the ECJ projects the position of the ECtHR on the interpretation of Article 6 CFR. In a series of judgments on entry cases, it emphasised the need for a proportionality assessment without specifying whether that result rested on statutory prescriptions in Articles 8–9 Reception Conditions Directive 2013/33/EU or concerned fundamental rights as International Human Rights Law in the EU Return Directive and in the Related CJEU Case-Law’, in: Carrera/den Hertog/Panizzon/Kostakopoulou, EU External Migration Policies, p. 105, 113–116. 222 See Mancano, Deprivation of Liberty, p. 181–182. 223 For an assessment of the first cases, see Monina, ‘”Judging” the Grounds for Detention of Asylum Seekers. Discrepancies between EU Law and the ECHR’, in: Crescenzi/Forastiero/Palmisano (eds), Asylum and the EU Charter of Fundamental Rights (Editoriale Scientifica, 2018), p. 151, 156–161; Carlier/Lebœuf, ‘Droit européen des migrations’, Journal de droit européen (2018), p. 98, 99–101; and De Coninck, ‘Rétention de demandeurs d’asile dans l’Union européenne et instruments parallèles de protection des droits fondamentaux’, Cahiers de droit européen 52 (2017), p. 83, 101–103, 107–111. 224 See Human Rights Committee, views of 26 July 2013, No 2094/2011, M.M.M. et al. v. Australia, Doc. CCPR/C/108/D/2094/2011, No 9.3+4 for detention lasting several years. 225 Cf. ExCom Conclusion No 44 (XXXVII), Detention of Refugees and Asylum-Seekers (1986), para b which states that detention may be resorted to only on grounds prescribed by law to verify identity and in the context of unlawful entry; and the generous interpretation by UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012, paras 22–28, 34 et seq., which the ECtHR had implicitly rejected in the Saadi case. 226 ECtHR, judgment of 29 January 2008, No 13229/03, Saadi v. the United Kingdom, paras 64–67 referring to ExCom Conclusion No 44 (XXXVII): Detention of Refugees and Asylum-Seekers (1986); the general principles of the ECtHR case law were summarised in ECtHR, judgment of 22 September 2015, No 62116/12, Nabil et al. v. Hungary, paras 26–35; the condemnation of Italy for holding asylum seekers in detention on Lampedusa by ECtHR, judgment of 12 December 2016 [GC], No 16483/12, Khlaifia et al. v. Italy, paras 88–108 does not contradict this finding, since the ECtHR sanctioned the absence of a legal basis in domestic law. 227 See ECtHR, judgment of 29 January 2008, No 13229/03, Saadi v. the United Kingdom, paras 67–75; for details, see Bossuyt, Strasbourg et les demandeurs d’asile (Bruylant, 2010), p. 153–158; and, for a critical view, Cornelisse, Immigration Detention and Human Rights (Martinus Nijhoff, 2010), p. 275–310; and Costello, The Human Rights of Migrants and Refugees in European Law (OUP, 2015), p. 285–293.

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Chp. 2 such.228 Doctrinally, the question is not straightforward to answer as well.229 If later developments confirmed the potential need for a proportionality assessment in entry cases under the Charter, the legislature was obliged to respect that prescription when changing rules on the detention of asylum seekers at hotspots or in transit centres at the external borders.230 In line with settled case law, the proportionality or arbitrariness standard (see above 46 MN 45–45a) obliges states to avoid lengthy detention, in particular when procedures for ascertaining entry conditions or terminating irregular stay are blocked; detention must not be a permanent.231 It is not immediately clear, however, to what extent the human rightsbased proportionality test requires states to consider alternatives to detention in each individual case, mirroring statutory obligations in Article 8 Reception Conditions Directive and Article 15 Return Directive (see Tsourdi, Directive 2013/33/EU, Article 8 MN 9–13, 33; and Mananashvili/Moraru, Directive 2018/115/EU, Article 15 MN 39–49).232 In any case, states are obliged to differentiate between different categories of people, mirroring the individualised outlook of any proportionality assessment (see Thym, Constitutional Framework, MN 24–26). The deprivation of liberty of third country nationals who have been expelled after a criminal conviction is a different matter than the detention of asylum seekers.233 Vulnerable groups require special treatment, even though the ECtHR confirmed that families with (young) children or unaccompanied minors can be detained as a matter of principle.234 With regard to the detention of asylum seekers and children, the international legal practice promotes the ‘last resort’235 yardstick, which indicates a particularly strict proportionality assessment. 228 See ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, paras 249–266; and ECJ, N, C-601/15 PPU, EU:C:2016:84, paras 47, 54–57, 60 in scenarios concerning the first limb of Art. 5(1)(f) ECHR, in relation to which ECtHR, judgment of 23 July 2013, No 42337/12, Suso Musa v. Malta, para 96 and the case law cited therein limited itself to an arbitrariness test; the ECJ did not mention or discuss the divergence. 229 While Article 52(3) CFR argues for an incorporation of the requirements of the ECtHR case law into the interpretation of the Charter, Article 52(1) CFR can be read to require a proportionality assessment in all scenarios, including where the ECtHR does not require such. 230 On the debate, which intensified in late 2020, see Cornelisse, ‘Territory, Procedures and Rights. Border Procedures in European Asylum Law’, Refugee Survey Quarterly 35 (2016), p. 74–90. 231 In this sense, see ECJ, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, para 264; ECtHR, judgment of 10 April 2018, No 75157/14, Bistieva et al. v. Poland; ECtHR, judgment of 24 June 2008, Nos 29787/03 & 29810/03, Riad & Idiab v. Belgium, para 68; and ECtHR, judgment of 25 June 1996, No 19776/92, Amuur v. France, para 43; see also den Heijer, Europe and Extraterritorial Asylum (Hart, 2012), p. 274–279. 232 Even if one supported this conclusion for the regular proportionality assessment, it would not necessarily apply to entry cases in line of the more generous ECtHR case law; see above MN 45–45a; ECtHR, judgment of 26 March 2020, No 23685/14, Bilalova and others v. Russia, paras 78–81 considered the question of alternatives as one element amongst others. 233 Generally, on different categories in secondary legislation, Mancano, Deprivation of Liberty, chs 9–11; on the concept and effects of ‘administrative’ detention for non-punitive purposes, see Leerkes/ Broeders, ‘Deportable and Not So Deportable’, in: Anderson/Gibney/Paoletti (eds), The Social, Political and Historical Contours of Deportation (Springer, 2013), p. 79–104. 234 In accordance the ECtHR, the legality of the detention of asylum seekers will take the circumstances of the individual case and the conditions at the detention centre into account; cf. ECtHR, judgment of 26 March 2020, No 23685/14, Bilalova and others v. Russia, paras 45–46; and ECtHR, judgment of 19 January 2010, No 41442/07, Muskhadzhiyeva et al. v. Belgium, paras 55–63. 235 Cf. Recital No 20 and Article 11(2) Reception Conditions Directive 2013/33/EU; Article 17(1) Return Directive 2008/115/EC; the UNHCR Guidelines, ibid., Nos 28 and 51; Article 37 Convention on the Rights of the Child; ECtHR, judgment of 19 November 2012, Nos 39472/07 & 39474/07, Popov v. France, paras 119, 141; Committee of Ministers of the Council of Europe: Twenty Guidelines on Forced Return, 4 May 2005, Guidelines 6 and 11; by contrast, the non-binding Global Compact for Safe, Orderly and Regular Migration, UNGV-Res. 73/195 of 19 December 2018, No 29 uses the formula indiscriminately, not only for specific groups.

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Chapter 3. Visa Code Regulation (EC) No 810/2009 Select Bibliography: Carrera/et al, ‘EU-Morocco Cooperation on Readmission, Borders and Protection: A model to follow?’, CEPS Paper in Liberty and Security in Europe No 87 (2016), available at: https://www.ceps. eu/wp-content/uploads/2016/01/EU-Morocco Cooperation Liberty and Security in Europe.pdf [last accessed 1 April 2021]; Czaika/de Haas, ‘The Effect of Visas on Migration Processes’, IM Rev. 51 (2017), p. 893–926; den Heijer, ‘Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights’, EJML 10 (2008), p. 277–314; den Heijer, Europe and Extraterritorial Asylum (Hart, 2012); Fundamental Rights Agency, Fundamental rights: challenges and achievements in 2012, Annual Report 2012; Fundamental Rights Agency, Fundamental rights: challenges and achievements in 2013, Annual Report 2013; Goodwin-Gill/McAdam, The Refugee in International Law, 3rd Edition (OUP, 2007); Groenendijk/Guild, ‘Visa Policy of Member States and the EU towards Turkish Nationals after Soysal’, Economic Development Foundation Publications, No 232 (2010), available at: http://cmr.jur.ru.nl/cmr/docs/Soysal. Report.pdf [last accessed 06 April 2021]; Hathaway, The Rights of Refugees under International Law (CUP, 2005); Jensen, ‘Humanitarian Visas: Option or Obligations?’, CEPS Paper in Liberty and Security in Europe No 68 (2014), available at: http://www.ceps.eu/book/humanitarian-visas-option-or-obligation [last accessed 06 April 2021]; Lauterpacht/Bethlehem, ‘The scope and content of the principle of non-refoulement’, in: Feller/Türk/Nicholson (eds), Refugee Protection in International Law (CUP, 2003), p. 87–177; Meloni, Visa Policy within the European Union Structure (Springer, 2006); Meloni, ‘The Community Code on Visas: Harmonization at last?’, EL Rev 34 (2009), p. 671–695; Meloni, ‘EU visa policy: What kind of solidarity?’ Maastricht Journal of European and Comparative Law 24 (2017) p. 646–666; Migration Law Clinic, University of Amsterdam, Access to Legal Remedies under the Visa Code in the Case of Representation Agreements (2018), available at: https://migrationlawclinic.files.wordpress.com/2018/06/2018-03-29-expert-opinion-mlc. pdf [last accessed 6 April 2021]; Moreno-Lax, Accessing Asylum in Europe (OUP, 2017); Noll, ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’, IJRL 17 (2005) p. 542–573; Peers, ‘The Visa Code’, in: Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law (Text and Commentary), 2nd revised edn, Vol. 1: Visas and Border Controls (Brill Nijhoff, 2012); Sanchez-Barrueco, ‘Business as usual? Mapping outsourcing practices in Schengen visa processing’, JEMS 44 (2018) p. 382–400; Thym, ‘A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases’, EJML 21 (2019), p. 166–193; Tittel-Mosser, Implementing EU Mobility Partnerships. Putting Soft Law into Practice (Routledge, 2020). Note that the literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the author(s) and a short title only.

Consolidated text: Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) Official Journal L 243, 15.9.2009, p. 1–58; as amended by Commission Regulation (EU) No 977/2011, Official Journal L 258, 4.10.2011, p. 9–11; Regulation (EU) No 154/2012, Official Journal L 58, 29.2.2012, p. 3–4; Regulation (EU) No 610/2013, Official Journal L 182, 29.6.2013, p. 1–18; Regulation (EU) 2016/399, Official Journal L 77, 23.3.2016, p. 1–52; Regulation (EU) 2019/1155, Official Journal L 188, 12.7.2019, p. 25–54; and as corrected by Official Journal L 284, 12.11.2018, p. 38–38 and Official Journal L 20, 24.1.2020, p. 25–25; the legislative text that follows does not yet include the amendments brought about by Regulation (EU) 2021/1134 amending Regulations (EC) No 767/2008 for the purpose of reforming the Visa Information System (OJ 2021 L 248/11). THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 62(2)(a) and (b)(ii) thereof, 84

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Art. 1

Having regard to the proposal from the Commission, Acting in accordance with the procedure laid down in Article 251 of the Treaty(1), Whereas: […] HAVE ADOPTED THIS REGULATION:

TITLE I GENERAL PROVISIONS Article 1 Objective and scope 1. This Regulation establishes the procedures and conditions for issuing visas for intended stays on the territory of the Member States not exceeding 90 days in any 180-day period. 2. The provisions of this Regulation shall apply to any third-country national who must be in possession of a visa when crossing the external borders of the Member States pursuant to Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement(2) without prejudice to: (a) the rights of free movement enjoyed by third-country nationals who are family members of citizens of the Union; (b) the equivalent rights enjoyed by third-country nationals and their family members, who, under agreements between the Community and its Member States, on the one hand, and these third countries, on the other, enjoy rights of free movement equivalent to those of Union citizens and members of their families. 3. This Regulation also lists the third countries whose nationals are required to hold an airport transit visa by way of exception from the principle of free transit laid down in Annex 9 to the Chicago Convention on International Civil Aviation, and establishes the procedures and conditions for issuing visas for the purpose of transit through the international transit areas of Member States’ airports. 4. When applying this Regulation, Member States shall act in full compliance with Union law, including the Charter of Fundamental Rights of the European Union. In accordance with the general principles of Union law, decisions on applications under this Regulation shall be taken on an individual basis. Content I. Drafting history and subject-matter ........................................................... II. Amendments.................................................................................................... 1. Abandoned elements from the 2014 recast proposal......................... 2. New elements introduced by amending Regulation (EU) 2019/1155 .....................................................................................................

mn. 1 5 6 8

(1) Opinion of the European Parliament of 2 April 2009 (not yet published in the Official Journal) and Council Decision of 25 June 2009. (2) OJ L 81, 21.3.2001, p. 1.

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Chp. 3 Art. 1

Visa Code Regulation (EC) No 810/2009

III. Territorial application .................................................................................... IV. Scope .................................................................................................................. 1. Length of stay .............................................................................................. 2. Third country nationals covered by the Visa List Regulation (EU) 2018/1806 ..................................................................................................... 3. Third country nationals covered by the Free Movement Directive 2004/38/EC................................................................................................... 4. Third country nationals covered by Visa Facilitation Agreements 5. List of nationalities subject to airport transit visas............................. 6. Compliance with EU law and the CFR .................................................

9 10 10 13 15 16 18 19

I. Drafting history and subject-matter Article 1 establishes the objective and scope of the Visa Code. Accordingly, the Visa Code establishes the procedures and conditions for issuing visas for intended stays (including transit) in the Member States not exceeding 90 days in any 180-day period. These short-stay visas are commonly known as Schengen visas. Article 1 states that the Visa Code applies to any third country national who under the Visa List Regulation (EU) 2018/1806 requires a visa to cross the external borders of the Member States. However, the scope of application of the Visa Code is not as straightforward as this provision suggests. In fact, Article 1(2)(a) and (b) acknowledges the existence of different rules for certain categories of third country nationals including family members of EU nationals who are covered by the Free Movement Directive 2004/38/ EC. Moreover, different rules apply to certain third country nationals by virtue of visa facilitation agreements between their state of nationality and the EU. Furthermore, the Schengen Borders Code Regulation (EU) 2016/399 includes rules on visa requirements in relation to the crossing of the external border by third country nationals who are holders of residence permits issued by the Member States. The Visa List Regulation (EU) 2018/1806 and the Visa Code do not include these specific rules but may contain only general references to some of them. The result is a rather fragmented and complex picture not conducive to legal certainty. The Visa Code also establishes the list of third countries whose nationals are required to hold airport transit visas and the procedures and conditions for issuing such visas. 2 The Visa Code was adopted in 2009 but cooperation on visa policy between the Member States of the EU has a long history dating back to the 1980s when it took place intergovernmentally within the two parallel frameworks of the ‘Trevi’ Group and the 1985 Schengen Agreement. In the latter context, cooperation on visa policy was clearly anchored to the objective of abolishing internal frontier controls on the movement of persons, as a compensatory measure. That cooperation continued in the 1990s within the framework of the 1990 Schengen Implementing Convention, to which all Member States acceded by 1996 except for the United Kingdom and Ireland. The Schengen Implementing Convention established, inter alia, the rules on a ‘uniform’ visa, i. e. a visa valid for the territories of all Member States, and on the conditions and procedures for the issuing of such visas by the Member States. The Schengen Executive Committee, set up under the Convention, adopted a number of decisions establishing detailed rules on visa issuing and eventually the Common Consular Instructions which collated such decisions and the relevant Convention articles in one document addressed to the Member States’ consular authorities. The Common Consular Instructions were pub1

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lished for the first time in 1999. They can be considered the precursor to the Visa Code, except their legal nature was unclear.1 In parallel to these developments, the Treaty of Maastricht, agreed in 1992, 3 introduced Article 100c EC conferring competence to the European Community to adopt the list of countries whose nationals required a visa to cross the external borders of the Member States and a uniform format for visas.2 The procedures and conditions for issuing uniform visas, on the other hand, became the subject of intergovernmental cooperation under the newly established Third Pillar of the European Union. However, no progress was achieved on this front.3 Under the Third Pillar, Joint Action 96/ 197/JHA on airport transit visas was adopted listing the nationalities requiring airport transit visas.4 This gave rise to inter-institutional conflict regarding the division of competence for visa policy between the Community and the Third Pillar.5 Eventually the Treaty of Amsterdam agreed in 1997 established Community competence for visa, asylum and immigration policies with a view to the progressive establishment of the ‘area of freedom, security and justice’, provided for the incorporation of the Schengen acquis into the EU legal order and accommodated the special positions of the United Kingdom, Ireland and Denmark through protocols attached to the Treaties.6 It introduced four legal bases for visa policy including Article 62(2)(b)(ii) EC on the conditions and procedures for issuing visas which envisaged, after a five-year transitional period, i. e. after May 2004, the application of the co-decision procedure for the adoption of these measures. The Treaty of Lisbon, in line with its aim to reaffirm the autonomy of the area of freedom, security and justice and fully extend the supranational legal method to the fields of border controls, asylum and immigration (see Thym, Constitutional Framework, MN 3; and Legal Framework for Entry and Border Controls, MN 3), streamlined the legal basis for visa policy in one single article providing for the adoption, in accordance with the ordinary legislative procedure, of measures concerning ‘a common policy on visas and other short-stay residence permits’ (Article 77(2)(a) TFEU). The Visa Code was adopted in July 2009 after more than two years of negotiations 4 under the provisions of the Treaty of Amsterdam, specifically Article 62(2)(b)(ii) TEC on the procedures and conditions for issuing visas and Article 62(2)(a)(c) TEC on standards and procedures for carrying out checks at the external borders. It entered into force on 5 April 2010 except for the provisions on rights of appeal for visa refusal decisions which entered into force on 5 April 2011, as provided by Article 58. The Visa Code was adopted to consolidate and develop the acquis on visa issuing and in response to the European Council’s call ‘for further development of the common visa policy as part of a multi-layer system aimed at facilitating legitimate travel and tackling illegal immigration through further harmonisation of national legislation and handling practices at local consular missions’ (see Recital 3). The Visa Code replaced provisions on 1 Article 56 of the Visa Code repealed the Common Consular Instructions (SCH/Com-ex (99) 13) and Annex XIII provided a correlation table. See also ECJ, Commission v. Council, C-257/01, EU:C:2005:25. For the history of cooperation on visas, see Meloni, Visa Policy, p. 43 et seqq. 2 Regulation (EC) No 2317/95 (OJ 1995 L 234/1) on the visa list was adopted in 1995 and soon replaced by Regulation (EC) No 574/1999 (OJ 1999 L 72/2) following ECJ, Parliament v. Council, C-392/ 95, EU:C:1997:289. Regulation (EC) No 1683/95 (OJ 1995 L 164/1) on the visa format was also adopted in 1995. 3 The proposed Draft External Frontier Convention was never adopted. See Meloni, Visa Policy, p. 75 et seqq. 4 OJ 1996 L 63/8. 5 See ECJ, Commission v. Council, C-170/96, EU:C:1998:219. 6 See Meloni, Visa Policy, p. 85 et seqq.

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visa issuing which were previously scattered in various instruments, some of which of unclear legal nature, such as articles of the Schengen Implementing Convention, the Common Consular Instructions, Schengen Executive Committee Decisions, the Joint Action on Airport Transit Visas and various EC Regulations (see Article 56). It clarified the content and legally binding nature of some of the pre-existing rules on visa issuing with a view to achieving further harmonization of the Member States’ practices to ensure the equal treatment of applicants and avoid visa shopping. It introduced a long awaited system of procedural guarantees for visa applicants in the form of a right of appeal against visa refusal decisions and an accompanying right to be notified of the reasons for visa refusal (see below Article 32 MN 7–9). It also introduced rules on biometric data collection from visa applicants relating to the newly established Visa Identification System (VIS) (see below Article 13).7 Operational instructions have been adopted under Article 51 of the Visa Code in the form of two Visa Handbooks respectively on processing visa applications,8 and on visa sections and local Schengen cooperation,9 which are non-legally binding. Notwithstanding the significant simplification brought about by the Visa Code, visa issuing remains a complex matter as the Visa Code interlocks with an increasing number of legal instruments.10 To fully comprehend the Visa Code it is therefore necessary to constantly reposition it within the wider context of the EU’s fast-developing external border control system and area of freedom, security and justice. Furthermore, while the original objective of the Visa Code to provide harmonization of the Member States’ visa issuing practices continues to be to some extent elusive,11 the further development of the Code is pulled by different ambitions, for it to reflect a wide range of EU interests and policy objectives and for it to effectively prioritise security.

II. Amendments 5

Attempts to reform the Visa Code began in 2014 with a Commission proposal to recast the Code following an evaluation of its implementation.12 The 2014 recast proposal focused on the introduction of visa facilitations to foster travel and on a harmonised implementation of the common rules. However, no agreement could be reached between the European Parliament and the Council, which found themselves at opposite poles during the negotiations in relation to both the Commission proposal and their own amendments. The Commission eventually withdrew the proposal in 2018 in light of the emergence, since 2014, of greater security and migratory challenges which 7

See Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Identification System (VIS). Commission Decision, C(2010) 1620 final, as amended. 9 Commission Decision, C(2020) 1764 final. 10 These include the Visa List Regulation (EU) 2018/1806; the Schengen Borders Code Regulation (EU) 2016/399; Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks; Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS); the Free Movement Directive 2004/38/EC; the Return Directive 2008/115/EC; Regulation (EU) 2017/2226 (OJ 2017 L 327/20) establishing an Entry/Exit System (EES); Regulation (EU) 2019/817 (OJ 2019 L135/27) on interoperability between EU information systems in the field of borders and visa; and visa facilitation agreements between the EU and third countries, available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/ visa-policy/index_en.htm [last accessed 12 January 2021]. 11 Commission Report, COM(2020) 779 final, p. 8. 12 Commission Proposal, COM(2014) 164 final; Commission Staff Working Document, SWD(2014) 101 final. Prior to this, the Visa Code was substantially amended twice: by Regulation (EU) No 154/2012 (OJ 2012 L 58/3) on exceptions to airport transit visa requirements, and by Regulation (EU) No 610/2013 (OJ 2013 L 182/1) on the length of stay under a visa. 8

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made its approach redundant. In 2018 the Commission introduced a new proposal for a regulation to amend the Visa Code, taking into account the results of the negotiations on the 2014 recast proposal and new elements advanced in the 2017 Commission Communication on the Delivery of the European Agenda on Migration relating to the role that visa policy could play in supporting readmission goals.13 The proposal was adopted in 2019 as amending Regulation 2019/1155.14

1. Abandoned elements from the 2014 recast proposal The most innovative provisions of the 2014 recast proposal were abandoned by 6 amending Regulation (EU) 2019/1155. These included a set of visa facilitations for third country nationals who are close relatives of EU nationals, effectively incorporating the visa-issuing rules of the Free Movement Directive 2004/38/EC in the Visa Code and broadening such rules to cover also extended family members and close relatives of EU nationals outside the scope of the Directive.15 This was meant to address the confusion resulting from the dispersion of visa rules in different legal instruments and also to achieve the equal treatment of EU citizens, in relation to visa facilitations for their third country national family members, irrespective of the exercise of free movement rights. This element of the 2014 recast proposal encountered opposition in the Council stemming from concerns over illegal immigration.16 Moreover, visa facilitations for third country nationals who are close relatives of EU nationals (as well as visa facilitations for close relatives of third country nationals legally residing in the EU, which were also included in the 2014 recast proposal) are generally included in visa facilitation agreements concluded by the EU with third countries in exchange for the conclusion of readmission agreements, and as such provide EU leverage for readmission purposes.17 In fact, amending Regulation (EU) 2019/1155 removed the reference to family members of citizens of the Union and of third-country nationals legally residing in the Member States from Article 24 of the Visa Code on multiple-entry visas, despite opposition from the European Parliament. According to Recital 11 of the amending Regulation this is justified on the ground that multiple-entry visas ‘should not be limited to specific travel purposes or categories of applicants’, although the Recital goes on to state that ‘Member States should have particular regard for persons travelling for the purpose of exercising their profession …’. A further abandoned element of the 2014 proposal, which appeared, in a more 7 restricted version, also in the 2018 proposal, related to the possibility for Member States to set up specific temporary schemes to issue visas at the external border to promote tourism.18 Finally, the Commission had included in the 2014 proposal mandatory consular representation between the Member States in order to ensure consular coverage, which found support from the European Parliament but was rejected by the Council as unacceptable.19 Member States were concerned that it would put a disproportionate burden on Member States with large consular networks.20 The approach 13

Commission Proposal, COM(2018) 252 final. Regulation (EU) 2019/1155 (OJ 2019 L 188/25) amending the Visa Code. 15 Draft Articles 8(3)-(4), 13(3), 14(3)(f)-(g) and 20(3)-(4), Commission Proposal, COM(2014) 164 final. 16 Council doc. 6093/15 of 13 February 2015, p. 3–4. 17 See, for example, Articles 4–5 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). 18 Draft Article 33, Commission Proposal, COM(2014) 164 final; draft Article 36a, Commission Proposal, COM(2018) 252 final. 19 Draft Articles 5(2) and 38(3), Commission Proposal, COM(2014) 164 final; Council doc. 15130/15 of 13 January 2016, p. 12. 20 Commission Staff Working Document, SWD(2018) 77 final, p. 8. 14

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taken by amending Regulation 2019/1155 is instead to recognise the Member States’ widespread practice of relying on external service providers (see Articles 8(10), 40(3) and 43), which was envisaged only as a last resort measure in the original Visa Code.

2. New elements introduced by amending Regulation (EU) 2019/1155 8

Consistently with the Visa List Regulation (EU) 2018/1816, amending Regulation EU 2019/1155 acknowledges, in its Recitals, the relevance of visa policy for several different EU objectives and policy fields and the need for consistency. In particular, it mandates the achievement of a better balance between migration and security concerns, economic considerations and general external relations. Whether the Visa Code, following amendment, achieves such a balance remains questionable. Among the several changes introduced, the Visa Code now contains provisions to adapt its application (as concerns the visa fee, visa processing times, required documentary evidence from visa applicants and multiple-entry visas) depending on whether the country of nationality of the visa applicant cooperates with the Member States on readmission (see Article 25a). Departing from the original proposal, envisaging only the possibility of punitive measures against visa applicants from third countries deemed uncooperative, the Visa Code includes both negative and positive conditionality, in the form of the possibility of facilitations in case of cooperative countries, as a result of insistence from the European Parliament and a Franco-German initiative.21 Using visa policy as leverage for readmission vis-à-vis third countries is a longstanding objective of the EU which also features in the New Pact on Migration and Asylum,22 and these provisions bring the Visa Code in line with the Visa List Regulation (EU) 2018/1806 which contains a suspension mechanism.23 A further significant change following amendment of the Visa Code is the introduction of rules on the mandatory issuing of multiple-entry visas with a long validity according to a ‘cascade’ system, with certain safeguards (see Article 24). Similar rules were already contained in the 2014 recast proposal. Their objective is to lessen the administrative burden on consulates, facilitate bona fide regular travel and establish a harmonised approach. Although the original Visa Code contained provisions on the mandatory issuing of multiple-entry visas, their formulation was unclear, with the result that Member States’ practices varied widely.24 Further changes to the Visa Code include an increase in the visa fee and the possibility of electronic visa applications.

III. Territorial application 9

The Visa Code does not apply to Ireland (and formerly the United Kingdom) by virtue of Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union attached to the Treaties. Any participation, which is unlikely, would be subject to a unanimous decision of the Council in accordance with Article 4 of the Protocol.25 The Visa Code applies to Denmark under international law in accordance with Protocol (No 22) on the position of Denmark attached to the Treaties. It also applies to Iceland, Norway, Switzerland and Liechtenstein by virtue of agreements between the EU and these countries on their association with the implementation, 21

Council doc. 8526/1/18 Rev 1 of 4 May 2018. Commission Communication, COM(2020) 609 final, p. 21 and 24. 23 Article 8 Visa List Regulation (EU) 2018/1806. 24 Commission Staff Working Document, SWD(2018) 77 final, p. 13 and 18. 25 See ECJ, United Kingdom v. Council, C-77/05, EU:C:2007:803. 22

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application and development of the Schengen acquis (see Recitals 32, 34 and 35). The Regulation will be applicable to Cyprus, Romania, Bulgaria and Croatia only once the Council so decides unanimously after consultation of the European Parliament in accordance with the Acts of Accession of these Member States to the EU. Thus, the term ‘Member State’ in the Visa Code refers to those Member States applying the Schengen acquis in full and the associated states and the term ‘territory of the Member States’ refer to the territory of these Member States.26

IV. Scope 1. Length of stay The Visa Code covers visas for intended stays (including transit) in the Member 10 States ‘not exceeding 90 days in any 180-day period’.27 The validity of the visa is a distinct concept from the length of stay, with multiple-entry visas having a period of validity of up to 5 years (see Article 24 MN 1 and 3–4). The Visa Code contains provisions which make it possible in exceptional circumstances for a visa holder to obtain an extension of the length of her stay (and/or validity of her visa), or for a visa applicant to obtain a limited territorial validity visa when she had already stayed in the Schengen territory for 90 days in a 180-day period (see Article 33 and Article 25(1)(b)). While formerly the legal basis for the Visa Code, former Article 62(2)(a)(b) TEC, related to ‘visas for intended stay of no more than three months’, the current legal basis, Article 77(2)(a) TFEU, offers more flexibility by referring to ‘visas and other short-stay residence permits’ (see Thym, Legal Framework for Entry and Border Controls, MN 12). Indeed, the Commission proposed a ‘touring visa’ in 2014 covering a stay in two or more Member States for a period lasting longer than 90 days but not exceeding 1 year, provided that the visa holder did not intend to stay in the same Member State for longer than 90 days.28 However, the proposal was withdrawn in 2018 in light of opposition from some Member States which doubted its necessity and legal basis and feared possible abuse.29 Currently, visas for entry and residence for periods exceeding 90 days fall outside the scope of the Visa Code, with one exception that will be considered below. While there are no general EU rules on conditions of entry and residence for stays longer than 90 days, there are a number of sectorial directives (see Part C Immigration). In the case of X and X, concerning the applicability of the CFR to applications for 11 limited territorial validity visas under the Visa Code lodged by a Syrian family at the Belgian embassy in Beirut for the purpose of entering Belgium to claim asylum, the ECJ stated that such visa applications fall outside the scope of the Visa Code since the Visa Code solely concerns visas issued for intended stays not exceeding 90 days.30 Furthermore, given that the EU legislature has not adopted any measures on long-stay visas and 26

See, for example, ECJ, Vethanayagam, C-680/17, EU:C:2019:627, paras 15 and 60. The term ‘90 days in any 180 days’ was introduced by an amendment following the ECJ judgment in Bot. Prior to this, the length of the permitted stay was defined as ‘not exceeding three months in any six months period’. See ECJ, Bot, C-241/05, EU:C:2006:634, paras 33 and 42; Regulation (EU) No 610/2013 (OJ 2013 L 182/1) amending the Visa Code; Commission Proposal, COM(2014) 163 final. Cf. local border traffic permits under Regulation (EC) No 1931/2006 (OJ 2007 L 29/3) on local border traffic, for which the 3 month limit relates only to uninterrupted stays as per ECJ, Shomodi, C-254/11, EU: C:2013:182. 28 Commission Proposal, COM(2014) 163 final. 29 Commission Staff Working Document, SWD(2018) 77 final, p. 8. 30 ECJ, X and X, C-638/16 PPU, EU:C:2017:173. 27

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residence permits on humanitarian grounds under Article 79(2)(a) TFEU, the Court concluded that the visa applications at issue currently fall solely within the scope of national law, to the effect that the CFR is inapplicable.31 Following the judgement, the European Parliament withdrew its amendment for the inclusion of provisions on humanitarian visas in the Visa Code in connection with the 2014 recast proposal. Similarly, state practice, which was to issue limited territorial validity visas in certain circumstances for stays longer than 90 days, including for family reunification and to allow the submission of asylum claims in specific cases, has been discontinued, with national long-stay visas being issued instead.32 12 However, there appears to be a case where the Visa Code applies at least partly to intended stays exceeding 90 days. This relates to visas issued to third country nationals who are family members of EU nationals falling within the scope of the Free Movement Directive 2004/38/EC. Independently of how long a third country national falling within this category intends to stay in the relevant Member State, under the Directive, she may only be required to hold an entry visa in accordance with the Visa List Regulation (EU) 2018/1806. Accordingly, the Visa Handbook instructs consular authorities that third country nationals covered by the Free Movement Directive 2004/38/EC are not required to prove an intention to leave the territory of the Member States before the expiry of the visa when they apply for a short-stay visa.33 This position follows from the judgments of the ECJ in Commission v. Spain and MRAX.34 In Commission v. Spain, in particular, the ECJ clarified that ‘entry visa’ in the former Free Movement Directives35 meant a shortstay visa in accordance with the former Visa List Regulation (EC) No 539/2001 and not a long-stay visa as argued by the Spanish government. The Court accepted the Commission’s argument that a different interpretation would result in subjecting third country nationals within the scope of the former Free Movement Directives to immigration procedures before entry into a Member State which would constitute a breach of the provisions of the Directives and undermine their objective of eliminating obstacles to the exercise of fundamental freedoms guaranteed by the Treaties. The same interpretation has not been extended by the Member States and the Commission to the Family Reunification Directive 2003/86/EC with regard to visas for family reunification issued to family members of third country nationals legally residing in the Member States, which pursues a different objective than the Free Movement Directive 2004/38/EC (see Thym, Constitutional Framework, MN 6).36 The term ‘visas’ in Article 13 of the Family Reunification Directive 2003/86/EC is interpreted by the Member States and the Commission as longstay visas. Guidance on the application of the Directive issued by the Commission states that ‘since the purpose of stay of family reunification is long term, the visa issued should not be a short-stay visa’.37 A Member State is however obliged, once the application for 31 ECJ, X and X, C-638/16 PPU, EU:C:2017:173, para 44 Cf. decisions on long-stay visas or residence permits falling under the sectorial directives (see Part C Immigration), as per, for example, ECJ, Konsul Rzeczypospolitej Polskiej w N., C-949/19, EU:C:2021:186, paras 34–35 and 40–44. 32 See ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 50–51. 33 Commission Decision, C(2010) 1620 final, as amended, Part III, para 4.5. 34 ECJ, Commission v. Spain, C-157/03, EU:C:2005:225; ECJ, MRAX, C-459/99, EU:C:2002:461, para 56. 35 Former Directive 68/360/EEC (OJ 1968 L 257/13) on movement for workers; former Directive 73/ 148/EEC (OJ 1973 L 172/14) on movement for nationals of the Member States with regard to establishment; former Directive 90/365/EEC (OJ 1990 L 180/28) on the right of residence. 36 On the scope for analogous interpretation see, Thym, ‘EU Migration Policy and its Constitutional Rationale: A Cosmopolitan Outlook’, CMLR 50 (2013), p. 709–736; Wiesbrock, ‘Granting Citizenshiprelated Rights to Third-Country Nationals: An Alternative to the Full Extension of European Union Citizenship?’, EJML 14 (2012), p. 63–94. 37 Commission Communication, COM(2014) 210 final, p. 19.

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family reunification has been accepted, to grant family members ‘every facility for obtaining the requisite visas’.

2. Third country nationals covered by the Visa List Regulation (EU) 2018/1806 The Visa Code applies to third country nationals who under the Visa List Regulation 13 (EU) 2018/1806 require a visa to cross the external borders of the Member States. The Visa List Regulation (EU) 2018/1806 lists the nationalities requiring short-stay visas (the black list) and those which are visa exempt (the white list), and provides for some mandatory and discretionary exceptions/exemptions. However, the legal position is not as straightforward as the provisions appear. For example, while the Visa List Regulation (EU) 2018/1806 lists Turkey among the countries whose nationals require a visa to cross the external borders of the Member States, some Turkish nationals do not require visas to enter some Member States. In Soysal and Savatli, the ECJ found that, by virtue of the ‘stand still’ clause in the 1970 Additional Protocol to the 1963 Association Agreement between the EEC and Turkey, Turkish nationals residing in Turkey and travelling to a Member State to provide services on behalf of an undertaking established in Turkey cannot be required to have a visa to enter the territory of that Member State if the Member State in question did not require such a visa at the time of the entry into force, with regard to that Member State, of the Additional Protocol. This is so as EU international treaties have pre-eminence over EU secondary legislation.38 Commission proposals to include a reference to the Soysal and Savatli judgment in the former Visa List Regulation (EC) No 539/2001 were however unsuccessful. In the subsequent case of Demirkan, the ECJ found that the freedom to provide services in the Association Agreement between the EEC and Turkey cannot be interpreted as encompassing a freedom to receive services.39 It is also to be noted that while third country nationals in possession of a residence 14 permit or a long-stay visa issued by a Member State are not exempt from the visa requirement under the Visa List Regulation (EU) 2018/1806, under the Schengen Borders Code Regulation (EU) 2016/399 they are not required to hold a visa when crossing the external border, since the two documents are considered as equivalent.40 In 2005 the Commission remarked that internal security and intelligence communities had identified the lack of efficient control over this category of third country nationals as a shortcoming.41 Consequently, the scope of the VIS has recently been extended to include data on long-stay visa and residence permit applicants and holders.42 With regard to third country nationals who are family members of EU nationals covered by the Free Movement Directive 2004/38/EC, Article 5(2) of the Directive provides that 38 ECJ, Soysal and Savatli, C-228/06, EU:C:2009:101, para 59. For an analysis of the practical effect of the judgment see Groenendijk/Guild, Visa Policy; Commission Guidelines, C(2009) 7376 final. 39 ECJ, Demirkan, C-221/11, EU:C:2013:583. 40 Article 6(1)(b) Schengen Borders Code Regulation (EU) 2016/399. See also ECJ, Kqiku, C-139/08, EU:C:2009:230; Regulation (EC) No 265/2010 (OJ 2010 L 85/1) on free movement for holders of longstay visas; Regulation (EC) No 693/2003 (OJ 2003 L 99/8) on a Facilitated Transit Document (FTD) and Facilitated Rail Transit Document (FRTD) providing that these documents have the same value as (transit) visas for the purpose of crossing the external border. Cf. local border traffic permits under Regulation (EC) No 1931/2006 (OJ 2007 L 29/3) on local border traffic, whose holders benefit from a visa exemption under the Visa List Regulation (EU) 2018/1806. 41 Commission Communication, COM(2005) 597 final, para 4.7. 42 Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/ 2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System.

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they must be exempt from the visa requirement when in possession of the residence card envisaged by Article 10 of the Directive.43

3. Third country nationals covered by the Free Movement Directive 2004/38/EC 15

Article 1(2) states that the Visa Code applies without prejudice to the free movement rights of third country nationals who are family members of EU citizens covered by the Free Movement Directive 2004/38/EC, and of EEA and Swiss nationals. Under the Free Movement Directive 2004/38/EC, when visas are applicable to family members of EU citizens, in accordance with the Visa List Regulation (EU) 2018/1806 or, in the case of Ireland (and formerly the United Kingdom), national law, Member States shall grant them ‘every facility to obtain the necessary visas’ which ‘shall be issued free of charge as soon as possible and on the basis of an accelerated procedure’.44 In the light of the objective of the Directive, the ECJ has interpreted these provisions to the effect that family members may be entitled to be issued with a visa at the external border (see Article 35 MN 2) and may not be refused a visa or entry by a Member State on the sole ground of a SIS alert issued by another Member State (see Article 32 MN 4 and 8).45 They are also entitled under the Directive to enhanced procedural guarantees (see Article 32 MN 9).46 It is worth noting that apart from the general reference in Article 1(2)(a) and specific references in Article 3(5)(d) on exemption from airport transit visas and in the visa application form contained in Annex 1, the Visa Code does not contain provisions reflecting the Member States’ obligations under the Free Movement Directive 2004/38/EC or clarifying explicitly the relationship between the rules in the Code and the rules applicable under the Directive. Thus, for example, the provisions on the visa fee in the Code do not include among the categories exempted from the visa fee family members of EU citizens covered by the Directive (see Article 16 MN 2). The two instruments have been kept separate because of their different legal bases.47 In practical terms, the difference in legal basis means that the Directive is applicable to Ireland (and formerly the United Kingdom), while the Visa Code is not.48 Conversely, the Visa Handbook, which is non-legally binding, contains a whole part devoted to third country nationals covered by the Directive.49

4. Third country nationals covered by Visa Facilitation Agreements 16

Recital 26 of the Visa Code provides that visa facilitation agreements between the EU and third countries may derogate from the Visa Code. As a matter of EU law, EU international agreements may have pre-eminence over EU secondary legislation, 43

See for example ECJ, McCarthy and Others, C-202/13, EU:C:2014:2450. Article 5(2) Free Movement Directive 2004/38/EC. 45 Respectively, ECJ, MRAX, C-459/99, EU:C:2002:461, paras 60–61; ECJ, Commission v. Spain, C-503/ 03, EU:C:2006:74, paras 41 and 53. 46 Articles 30–33 Free Movement Directive 2004/38/EC. 47 In particular, as explained above, attempts by the Commission to include in the Visa Code the rules under the Directive were unsuccessful. See Commission Proposal, COM(2014) 164 final, draft Articles 8 (4), 13(3), 14(3)(g) and 20(3)-(4); Council doc. 6093/15 of 13 February 2015, p. 4. 48 On the other hand, the Free Movement Directive 2004/38/EC applies to Lichtenstein, Iceland and Norway by virtue of the EEA Agreement (OJ 1994 L 1/3) and has been interpreted consistently with ECJ case law by the EFTA Court notwithstanding the different principles underpinning the EEA Agreement and the EU Treaties, see, for example, EFTA Court, Campbell v. The Norwegian Government, E-4/19, Judgment of 13 May 2020. Switzerland, on the other hand, is not bound by the Directive but has concluded with the EU an Agreement on Free Movement of Persons (OJ 2002 L 114/6). 49 Commission Decision, C(2010) 1620 final, as amended, Part III. 44

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particularly if they have direct effect.50 Secondary legislation must accordingly, as far as possible, be interpreted consistently with those agreements.51 The EU has concluded visa facilitation agreements with a number of third countries, in some cases as a first step towards visa-free treatment.52 These standard agreements provide that they are applicable insofar as there is no visa-free treatment, so the agreements with Moldova and Ukraine, which recently obtained visa-free status, for example, are still in force. The EU’s approach has been to conclude these agreements in exchange for the conclusion of readmission agreements. Accordingly, they contain a reference to irregular immigration, security and readmission in their preamble, a clause whereby their entry into force follows the entry into force of the relevant readmission agreement and a suspension clause.53 Visa facilitation agreements provide for visa facilitations, on a reciprocal basis, for 17 citizens of the relevant third country and for EU citizens travelling for specific purposes and falling within specific categories including close relatives, business people, journalists, students, representatives of civil society organizations, people travelling for medical reasons etc. (although some third countries, such as Armenia, exempt EU citizens from visa requirements altogether). The visa facilitations relate to supporting document requirements, multiple-entry visas and visa fees. Some facilitations, such as those relating to the length of the issuing procedure, apply to all nationals independently of the purpose of travel.54 Visa facilitation agreements also provide for visa exemption for holders of diplomatic passports and, with regard to the amended Visa Facilitation Agreements between the EU and Ukraine and Moldova respectively, for holders of biometric service passports.55 They exclude from their scope matters such as recognition of travel documents, visa refusal, proof of sufficient means of subsistence, refusal of entry and expulsion matters.56 It is worth noting that visa facilitation agreements also contain provisions in relation to the territorial validity of visas which are broadly formulated. Article 11 of the EU-Armenia Visa Facilitation Agreement, for example, provides that, subject to national security and the rules on limited territorial validity visas, ‘citizens of Armenian shall be entitled to travel within the territory of the Member States on equal basis with citizens of the Union’.57 This suggests that it may be difficult to apply to them territorial travel restrictions when these are not also applicable to EU citizens. This can be contrasted with the definition of uniform visa in the Visa Code as ‘a visa valid for the entire territory of the Member States’ and with Article 19(1) of the Schengen Implementing Convention which states that aliens who hold uniform visas ‘may move freely within the territories of all the Contracting Parties … provided that they fulfil the entry conditions’ in the Schengen Borders Code Regulation (EU) 2016/399. Visa facilitation agreements concluded by the EU do not apply to Ireland (and formerly the United Kingdom), Denmark, Lichtenstein, Switzerland, Iceland and Norway. Bilateral agreements have been concluded

50

See for example ECJ, Intertanko and Others, C-308/06, EU:C:2008:312, paras 42–43. See for example ECJ, Commission v. Germany, C-61/94, EU:C:1996:313, para 52. 52 A list can be found on: https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/ visa-policy_en [last accessed 06 April 2021]. 53 See for examples Articles 2, 14(2) and 14 (5) EU-Belarus Visa Facilitation Agreement (OJ 2020 L 180/3). 54 See, for example, Articles 5–9 of the EU-Belarus Visa Facilitation Agreement (OJ 2020 L 180/3). 55 See for example Article 1, Agreement amending the EC-Moldova Visa Facilitation Agreement (OJ 2013 L 168/3). 56 See for example Article 2 of the EU-Belarus Visa Facilitation Agreement (OJ 2020 L 180/3). 57 EU-Armenia Visa Facilitation Agreement (OJ 2013 L 289/2). 51

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between some of these countries and the third countries concerned.58 It seems the case that Ireland (and formerly the United Kingdom) would not be able to opt into EU visa facilitation agreements directly without firstly opting into the EU internal harmonization measures by virtue of the AETR doctrine.59

5. List of nationalities subject to airport transit visas 18

The Visa Code also covers the list of third countries whose nationals require airport transit visas to transit through the international transit areas of Member States’ airports and the conditions and procedures for issuing such visas. The inclusion of this list in the Visa Code, rather than in the Visa List Regulation (EU) No 2018/1806, can be traced back to the ECJ judgment in Commission v. Council on airport transit visas where the ECJ excluded the possibility that such a list could be covered by former Article 100c TEC (see above Article 1 MN 3).60

6. Compliance with EU law and the CFR Article 1(4) of the Visa Code was introduced by amending Regulation (EU) 2019/ 1155 on the insistence of the European Parliament. It underlines that the Member States when implementing the Visa Code must act in conformity with EU law and the CFR. The European Parliament insisted on including also a reference to relevant international law, but this did not ultimately find its way into the final text of the amending Regulation.61 Although the Schengen associated states are not bound by the CFR, the ECJ has emphasized that they are party to the ECHR and that Schengen acquis association agreements provide that Schengen cooperation is based on the principle of respect for human rights.62 It remains true that there may be inconsistencies in the level of protection offered by the ECHR and the CFR. An example relates to the right to an effective remedy, in view that Article 6 ECHR is not applicable in immigration cases.63 Further references to fundamental rights instruments, including the ECHR and the CRC, are found specifically in Article 13 in relation to the collection of biometric identifiers from visa applicants. Furthermore, Article 43(9) reiterates the Member States’ responsibility for compliance with data protection rules in the context of cooperation with external service providers. Article 1(4) also reiterates that, in accordance with the general principles of EU law, decisions on visa applications must be taken on an individual basis. This provision reflects the nature of the right to a visa that is established in the Visa Code and related procedural safeguards under EU law including in relation to the principle of good administration and the exercise of the right to an effective remedy under Article 47 CFR (see Article 32).64 20 Article 1(4) is different from the corresponding articles in the Schengen Borders Code Regulation (EU) 2016/399. Article 3 of the Schengen Borders Code (EU) 2016/399 reiterates that the Code applies without prejudice to the rights of refugees and persons requesting international protection. In the same way, Article 4 of the Schengen Borders 19

58 For the list, see the Visa Handbook, Commission Decision, C(2010) 1620 final, as amended, Part I, para 5. 59 ECJ, Commission v. Council, 22/70, EU:C:1971:32. 60 ECJ, Commission v. Council, C-170/96, EU:C:1998:219. 61 Recital 26, on the other hand, provides that the Visa Code respects fundamental rights and observes the principles recognised in particular by the ECHR and the CFR. 62 ECJ, Vethanayagam, C-680/17, EU:C:2019:627, paras 78–88. 63 On this, see Migration Law Clinic, Access to Legal Remedies, para 6.3. 64 See for example ECJ, PI, C‐230/18, EU:C:2019:383, para 57.

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Code Regulation (EU) 2016/399 restates that when applying the Code, Member States must act in full compliance with relevant Union law, including the CFR, relevant international law, including the Geneva Convention, obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. The difference between the articles of the Visa Code and the Schengen Borders Code Regulation (EU) 2016/399 reflect the fact that while it is generally accepted by the Member States that the obligation of non-refoulement under Article 33(1) Geneva Convention applies in relation to asylum-seekers who have reached their borders, there is no general acceptance that such an obligation can be triggered in relation to visa issuing abroad, which is the very reason why visa requirements have proliferated as interdiction measures. This position finds further reflection in Article 3(2) of the Asylum Procedures Directive 2013/32/EU which states that the Directive ‘shall not apply to requests for diplomatic or territorial asylum submitted to representations of the Member States’. Further, in M. N. and Others v. Belgium, the ECtHR found that the lodging of humanitarian visa applications in a Belgian embassy did not bring the visa applicants within the jurisdiction of Belgium for the purpose of Article 1 ECHR (see below Article 25 MN 5).65

Article 2 Definitions For the purpose of this Regulation the following definitions shall apply: 1. ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty; 2. ‘visa’ means an authorisation issued by a Member State with a view to: (a) an intended stay on the territory of the Member States not exceeding 90 days in any 180-day period; or (b) transit through the international transit areas of airports of the Member States; 3. ‘uniform visa’ means a visa valid for the entire territory of the Member States; 4. ‘visa with limited territorial validity’ means a visa valid for the territory of one or more Member States but not all Member States; 5. ‘airport transit visa’ means a visa valid for transit through the international transit areas of one or more airports of the Member States; 6. ‘visa sticker’ means the uniform format for visas as defined by Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas(2); 7. ‘recognised travel document’ means a travel document recognised by one or more Member States for the purpose of crossing the external borders and affixing a visa pursuant to Decision No 1105/2011/EU of the European Parliament and of the Council(3); 8. ‘separate sheet for affixing a visa’ means the uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form as defined by Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms 65

ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 110–126. OJ L 164, 14.7.1995, p. 1. (3) Decision No 1105/2011/EU of the European Parliament and of the Council of 25 October 2011 on the list of travel documents which entitle the holder to cross the external borders and which may be endorsed with a visa and on setting up a mechanism for establishing this list (OJ L 287, 4.11.2011, p. 9). (2)

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for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form(4); 9. ‘consulate’ means a Member State’s diplomatic mission or a Member State’s consular post authorised to issue visas and headed by a career consular officer as defined by the Vienna Convention on Consular Relations of 24 April 1963; 10. ‘application’ means an application for a visa; 11. ‘commercial intermediary’ means a private administrative agency, transport company or travel agency (tour operator or retailer); 12. ‘seafarer’ means any person who is employed, engaged or works in any capacity on board a ship in maritime navigation or a ship navigating in international inland waters; 13. ‘electronic signature’ means an electronic signature as defined in point (10) of Article 3 of Regulation (EU) No 910/2014 of the European Parliament and of the Council(5).

I. Types of visas 1

After defining the term ‘visa’, Article 2 defines the three different types of visas envisaged by the Visa Code. When a visa applicant fulfils the conditions in Article 32 of the Visa Code, she will be issued with a ‘uniform visa’ which under Article 2 means a visa ‘valid for the entire territory of the Member States’. In this context, Article 19(1) of the Schengen Implementing Convention provides that aliens who hold uniform visas ‘may move freely within the territories of all the Contracting Parties … provided that they fulfil the entry conditions’ in the Schengen Borders Code Regulation (EU) 2016/399. However, a uniform visa does not exactly allow its holder to enter the Schengen area from any Member State and move freely within it in all cases. A uniform visa is issued for an authorised stay on the basis of information provided by the visa applicant and verified by national authorities. Deviations from the authorised stay in terms of travel itinerary are accepted by national authorities if justified.66 However, if they lead to very clear evidence that the visa was obtained fraudulently, the visa may be annulled in accordance with Article 34 and the Returns Directive 2008/115/EC becomes applicable (see Article 34 MN 1). The second type of visa established by the Visa Code is ‘a visa with limited territorial validity’ which is defined as a visa ‘valid for the territory of one or more Member States but not all Member States’. This type of visa is issued under Article 25. Finally, the Visa Code covers ‘airport transit visas’ which are visas valid for transit through the international transit areas of one or more airports of the Member States’ and which are issued in accordance with Articles 3 and 26 of the Visa Code.

(4)

OJ L 53, 23.2.2002, p. 4. Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73). 66 Multiple-entry visas offer a certain degree of flexibility. Thus, the Visa Handbook provides that ‘travelling for the purpose of tourism on a valid multiple-entry visa applied for the purpose of business cannot be considered abuse and neither can travelling to other Member States than the issuing Member State, if the visa was first used in accordance with the intention and main destination as stated at the time of application’, Commission Decision, C(2010) 1620 final, as amended, Part II.6.1. The situation is more problematic in the case of single-entry visas. (5)

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TITLE II AIRPORT TRANSIT VISA Article 3 Third-country nationals required to hold an airport transit visa 1. Nationals of the third countries listed in Annex IV shall be required to hold an airport transit visa when passing through the international transit areas of airports situated on the territory of the Member States. 2. In urgent cases of mass influx of illegal immigrants, individual Member States may require nationals of third countries other than those referred to in paragraph 1 to hold an airport transit visa when passing through the international transit areas of airports situated on their territory. Member States shall notify the Commission of such decisions before their entry into force and of withdrawals of such an airport transit visa requirement. 3. Within the framework of the Committee referred to in Article 52(1), those notifications shall be reviewed on an annual basis for the purpose of transferring the third country concerned to the list set out in Annex IV. 4. If the third country is not transferred to the list set out in Annex IV, the Member State concerned may maintain, provided that the conditions in paragraph 2 are met, or withdraw the airport transit visa requirement. 5. The following categories of persons shall be exempt from the requirement to hold an airport transit visa provided for in paragraphs 1 and 2: (a) holders of a valid uniform visa, national long-stay visa or residence permit issued by a Member State; (b) third-country nationals holding a valid residence permit issued by a Member State which does not take part in the adoption of this Regulation or by a Member State which does not yet apply the provisions of the Schengen acquis in full, or third-country nationals holding one of the valid residence permits listed in Annex V issued by Andorra, Canada, Japan, San Marino or the United States of America guaranteeing the holder’s unconditional readmission, or holding a valid residence permit for one or more of the overseas countries and territories of the Kingdom of the Netherlands (Aruba, Curaçao, Sint Maarten, Bonaire, Sint Eustatius and Saba); (c) third-country nationals holding a valid visa for a Member State which does not take part in the adoption of this Regulation, or for a Member State which does not yet apply the provisions of the Schengen acquis in full, or for Canada, Japan or the United States of America, or holders of a valid visa for one or more of the overseas countries and territories of the Kingdom of the Netherlands (Aruba, Curaçao, Sint Maarten, Bonaire, Sint Eustatius and Saba), when travelling to the issuing country or to any other third country, or when, having used the visa, returning from the issuing country; (d) family members of citizens of the Union as referred to in Article 1(2)(a); (e) holders of diplomatic passports; (f) flight crew members who are nationals of a contracting Party to the Chicago Convention on International Civil Aviation.

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I. Scope and drafting history............................................................................ II. Procedure and conditions for unilateral imposition of airport transit visas by the Member States and additions to the common list ........... III. Categories exempted from airport transit visas .......................................

mn. 1 2 3

I. Scope and drafting history 1

Article 3(1) establishes an obligation for nationals of third countries listed in Annex IV of the Regulation to hold airport transit visas when passing through the international transit areas of the Member States’ airports. The Annex contains a list of 12 countries including Afghanistan, Bangladesh, Democratic Republic of Congo, Eritrea, Ethiopia, Ghana, Iran, Iraq, Nigeria, Pakistan, Somalia and Sri Lanka. This provision replaced Joint Action 96/197/JHA on Airport Transit Visas which was adopted under the old Third Pillar of the Maastricht Treaty (see above Article 1 MN 3).67

II. Procedure and conditions for unilateral imposition of airport transit visas by the Member States and additions to the common list 2

Article 3(2), (3) and (4) establishes that individual Member States may impose airport transit visas on nationals of third countries other than those in the common list ‘in urgent cases of mass influx of illegal immigrants’. According to Peers, this is prima facie a high threshold, taking also into account that the Member States’ power should be construed narrowly, and national decisions on imposing airport transit visas could be challenged on the basis that such a criterion is not met.68 The Article also establishes the procedure that Member States must follow when they decide to unilaterally introduce airport transit visas in terms of notifications to the Commission, and the possibility of adding the third countries concerned to the common list following an annual review of the notifications. The Visa Code is silent in relation to the factors that such review should take into account apart from a general reference to combating illegal immigration in Recital 5. Currently, there are approximately 35 third countries whose nationals are subject to airport transit visas by one or more Member States. With its 2014 recast proposal, the Commission attempted to introduce more stringent conditions for unilateral action by the Member States including criteria resembling those used in the suspension mechanism of the Visa List Regulation (EU) 2018/1806 and time limitations.69 However, these proposals were unsuccessful and were excluded from the Commission 2018 proposal leading to amending Regulation (EU) 2019/1155 which introduced no change.

67 The Joint Action was repealed by the Visa Code. The legal basis of the Joint Action was terminated and re-enacted in a significantly different form by all Member States. As such, and in the absence of any evidence of an intention to the contrary, it could be argued that the Joint Action, no longer binds Ireland (and formerly the United Kingdom). 68 Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law, p. 251, 255–256. 69 Draft Article 3(3), Commission Proposal, COM(2014) 164 final.

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III. Categories exempted from airport transit visas Article 3(5) stipulates the categories of third country nationals who are exempted 3 from airport transit visas. Article 3(5)(b) and (c), introduced through an amendment,70 makes provision for airport transit visa exemption for, inter alia, holders of visas or residence permits issued by Ireland (and formerly the United Kingdom) or by those Member States which are not yet applying the Regulation, namely Cyprus, Romania, Bulgaria and Croatia (see above Article 1 MN 9). Amending Regulation (EU) 2019/1155 has added holders of residence permits or visas for one of the overseas countries and territories of the Kingdom of the Netherlands. Commission proposals to further include holders of service, official or special passports were unsuccessful.71

TITLE III PROCEDURES AND CONDITIONS FOR ISSUING VISAS CHAPTER I Authorities taking part in the procedures relating to applications Article 4 Authorities competent for taking part in the procedures relating to applications 1. Applications shall be examined and decided on by consulates. 1a. By way of derogation from paragraph 1, Member States may decide that applications are examined and decided on by central authorities. Member States shall ensure that those authorities have sufficient knowledge of local circumstances of the country where the application is lodged in order to assess the migratory and security risk, as well as sufficient knowledge of the language to analyse documents, and that consulates are involved, where necessary, to conduct additional examination and interviews. 2. By way of derogation from paragraph 1, applications may be examined and decided on at the external borders of the Member States by the authorities responsible for checks on persons, in accordance with Articles 35 and 36. 3. In the non-European overseas territories of Member States, applications may be examined and decided on by the authorities designated by the Member State concerned. 4. A Member State may require the involvement of authorities other than the ones designated in paragraphs 1 and 2 in the examination of and decision on applications. 5. A Member State may require to be consulted or informed by another Member State in accordance with Articles 22 and 31. Article 4(1) establishes the general rule that applications should be examined and 1 decided by consulates. Article 4(1a) was inserted by amending Regulation (EU) 2019/ 1155 and establishes that by way of derogation, it is also possible for central authorities 70 71

Regulation (EU) No 154/2012 (OJ 2012 L 58/3). Draft Article 3(8), Commission Proposal, COM(2014) 164 final.

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to decide and examine applications, provided certain safeguards are in place (see also Article 38 MN 1). This provision reflects the fact that in some Member States central authorities are responsible for refusing visas and may further reflect practices of centralising the provision of certain consular services.72 Article 4(2) provides that by way of derogation applications may be examined and decided by borders authorities in accordance with Article 35 on issuing visas at the external borders and Article 36 on issuing visas to seafarers in transit at the external border. Article 4(5) refers to the priorconsultation (see Article 22) and ex-post notification (see Article 31) procedures.

Article 5 Member State competent for examining and deciding on an application 1. The Member State competent for examining and deciding on an application for a uniform visa shall be: (a) the Member State whose territory constitutes the sole destination of the visit(s); (b) if the visit includes more than one destination, or if several separate visits are to be carried out within a period of two months, the Member State whose territory constitutes the main destination of the visit(s) in terms of the length of stay, counted in days, or the purpose of stay; or (c) if no main destination can be determined, the Member State whose external border the applicant intends to cross in order to enter the territory of the Member States. 2. The Member State competent for examining and deciding on an application for a uniform visa for the purpose of transit shall be: (a) in the case of transit through only one Member State, the Member State concerned; or (b) in the case of transit through several Member States, the Member State whose external border the applicant intends to cross to start the transit. 3. The Member State competent for examining and deciding on an application for an airport transit visa shall be: (a) in the case of a single airport transit, the Member State on whose territory the transit airport is situated; or (b) in the case of double or multiple airport transit, the Member State on whose territory the first transit airport is situated. 4. Member States shall cooperate to prevent a situation in which an application cannot be examined and decided on because the Member State that is competent in accordance with paragraphs 1 to 3 is neither present nor represented in the third country where the applicant lodges the application in accordance with Article 6. Content mn. I. Criteria to determine the Member State responsible for processing a visa application ........................................................................ II. Consular coverage and proposals for mandatory representation ........

72

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On this trend, see Commission Staff Working Document, SWD(2018) 77 final, p. 72.

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I. Criteria to determine the Member State responsible for processing a visa application Article 5(1), (2) and (3) establishes the rules to determine which one of the Member 1 State is responsible for examining and deciding on a given visa application. Different rules are provided depending on whether the purpose of the visa is for stay, transit or airport transit. If the visa applicant intends to visit (or transit) through only one Member State, only that Member State will be competent to process her visa application. If a visa applicant intends to visit more than one Member State, the competent Member State will be the one of main destination. Main destination is defined in terms of length of stay or purpose of the visit. Amending Regulation (EU) 2019/1155 inserted the provision that the length of stay is to be counted in days with a view to addressing the problem of visa shopping. According to the Commission, in certain cases visa applicants adapt their travel itinerary, even as a matter of hours, in order to be able to lodge their visa application with the consulate considered the most ‘accessible’ in terms of visa issuing practices and geographical proximity.73 While the Commission proposed to remove the purpose of the journey as a criterion to determine the Member State of main destination and leave only the length of stay, with a view to enhancing clarity, the Council decided for its retention.74 Article 5(1)(b) is a new provision introduced by amending Regulation (EU) 2019/1155, according to which the Member State of main destination will also be responsible for processing the visa application of travellers who are to carry out several unconnected visits to different Member States within a period of two months. The purpose of this provision is to facilitate travel and address a possible unwillingness by consulates to issue multipleentry visas.75 When the Member State of main destination of the visit cannot be determined (and in cases of transit or airport transit through more than one Member State), the Member State competent to examine and decide on the visa application will be the Member State of first entry. It is worth noting that the competent Member State may be represented by another Member State under a representation agreement whereby the visa application is examined and decided by the latter Member State on behalf of the competent Member State (see Article 8).

II. Consular coverage and proposals for mandatory representation Article 5(4) provides that the Member States ‘shall cooperate’ to prevent a situation 2 where an application cannot be examined and decided because the competent Member State is neither present nor represented in the country where the application is to be lodged. In this context, it is to be noted that under Article 6 the general rule is that a visa applicant has no choice but to apply for a visa at the consulate of the competent Member State in whose jurisdiction she legally resides. In this light, the Visa Code envisages two ways to ensure appropriate consular coverage by the Member States: consular representation and cooperation with an external service provider, i.e. outsourcing (see Article 8). In relation to representation, however, Article 8(5) and (6), 73

Commission Staff Working Document, SWD(2014) 101, p. 5. Commission Proposal, COM(2018) 252 final, p. 7; draft Article 5(1)(b), Commission Proposal, COM (2014) 164 final. 75 Commission Proposal, COM(2018) 252 final, p. 7; draft Article 5(1)(b), Commission Proposal, COM (2014) 164 final. 74

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consistently with the wording of Article 5(4), envisages only soft obligations by stating that Member States which have no consular presence in a third country or region/area ‘shall endeavour’ to conclude representation arrangements with Member States that have consulates there. For this reason, the Commission proposed in its 2014 recast proposal to change the rules for determining the Member State competent to process a visa application to the effect that in certain circumstances visa applicants could lodge their application at the consulate of any Member State.76 While the 2014 proposal was eventually abandoned, the European Parliament unsuccessfully attempted to introduce these provisions via amendments to the 2018 Commission proposal leading to amending Regulation 2019/1155. The Member States’ position is that the principle of mandatory representation is unacceptable and that consular coverage should be achieved by bilateral arrangements. Some Member States also expressed concerns about the lack of clarity on how to determine responsibility for examining asylum applications from holders of visas issued through the proposed mandatory representation system.77 Under Article 12(2) Dublin III Regulation (EU) No 604/2013 when an applicant for international protection has a visa, the Member State that issued the visa is responsible for examining her application for international protection, unless the visa is issued on behalf of another Member State under a representation arrangement under Article 8 of the Visa Code, whereby the represented Member State will be responsible.

Article 6 Consular territorial competence 1. An application shall be examined and decided on by the consulate of the competent Member State in whose jurisdiction the applicant legally resides. 2. A consulate of the competent Member State shall examine and decide on an application lodged by a third-country national legally present but not residing in its jurisdiction, if the applicant has provided justification for lodging the application at that consulate. 1

Article 6 establishes the general rule that it is the consulate, of the competent Member State (see Article 5 MN 1), in the country of residence of the applicant which shall examine and decide on the visa application. This is so as such consulate is considered to be the best placed to examine any risk of irregular migration. Article 6 provides for some flexibility by stating that a consulate of the competent Member State in a country where the visa applicant is legally present may examine and decide on an application if the applicant provides justification for lodging her application with that consulate. This gives the possibility, for example, to visitors to Ireland and the United Kingdom, to apply for a uniform visa there if they want to extend their visit to one or more Member States. Under Article 18, if the consulate is not competent, it shall, without delay, return the application form and any documents submitted, reimburse the visa fee, and indicate which consulate is competent.

76 Commission Staff Working Document, SWD(2014) 101 final, p. 5, 30–34; draft Article 5(2), Commission Proposal, COM(2014) 164 final. 77 Council doc. 12046/14 of 25 July 2014, p. 10.

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Chp. 3

Article 7 Competence to issue visas to third-country nationals legally present within the territory of a Member State Third-country nationals who are legally present in the territory of a Member State and who are required to hold a visa to enter the territory of one or more other Member States shall apply for a visa at the consulate of the Member State that is competent in accordance with Article 5(1) or (2). Article 7 covers the rare case where a third country national is legally present in a 1 Member State which takes part in the Schengen acquis without a document entitling her to free circulation (e. g. a person whose asylum application is being examined). Such a person, if required to hold a visa in order to travel to a different Member State under the Visa List Regulation (EU) 2018/1806, is entitled to apply at the consulate of the competent Member State in the Member State where she is legally present. In the case of third country nationals within the scope of the Free Movement Directive 2004/38/EC, this is possible irrespectively of whether they are legally or irregularly present.78

Article 8 Representation arrangements 1. A Member State may agree to represent another Member State that is competent in accordance with Article 5 for the purpose of examining and deciding on applications on behalf of that Member State. A Member State may also represent another Member State in a limited manner solely for the collection of applications and the enrolment of biometric identifiers. 3. Where the representation is limited in accordance with the second sentence of paragraph 1, the collection and the transmission of data to the represented Member State shall be carried out in compliance with the relevant data protection and security rules. 4. A bilateral arrangement shall be established between the representing Member State and the represented Member State. That arrangement: (a) shall specify the duration of the representation, if only temporary, and the procedures for its termination; (b) may, in particular where the represented Member State has a consulate in the third country concerned, provide for the provision of premises, staff and payments by the represented Member State. 5. Member States lacking their own consulate in a third country shall endeavour to conclude representation arrangements with Member States that have consulates in that country. 6. With a view to ensuring that a poor transport infrastructure or long distances in a specific region or geographical area does not require a disproportionate effort on the part of applicants to have access to a consulate, Member States lacking their own consulate in that region or area shall endeavour to conclude representation arrangements with Member States that have consulates in that region or area.

78

See for example ECJ, Metock, C-127/08, EU:C:2008:449, para 67.

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Chp. 3 Art. 8

Visa Code Regulation (EC) No 810/2009

7. The represented Member State shall notify the Commission of the representation arrangements or the termination of those arrangements at the latest 20 calendar days before they enter into force or are terminated, except in cases of force majeure. 8. The consulate of the representing Member State shall, at the same time as the notification referred to in paragraph 7 takes place, inform both the consulates of other Member States and the Union delegation in the jurisdiction concerned about the representation arrangements or the termination of such arrangements. 9. If the consulate of the representing Member State decides to cooperate with an external service provider in accordance with Article 43, or with accredited commercial intermediaries as provided for in Article 45, such cooperation shall include applications covered by representation arrangements. The central authorities of the represented Member State shall be informed in advance of the terms of such cooperation. 10. If a Member State is neither present nor represented in the third country where the applicant is to lodge the application, that Member State shall endeavour to cooperate with an external service provider, in accordance with Article 43, in that third country. 11. Where a consulate of a Member State in a given location experiences a prolonged technical force majeure, that Member State shall seek temporary representation by another Member State in that location for all or some categories of applicants. Content I. Drafting history ............................................................................................... II. Representation and limited territorial validity (LTV) visas .................. III. Representation and appeal rights ................................................................

mn. 1 3 4

I. Drafting history 1

Article 8 establishes rules on representation. Representation arrangements between the Member States are contemplated by the Visa Code as a way to ensure consular coverage, alongside cooperation by the Member States with external service providers, envisaged in Article 8(10) (see Article 5 MN 2, Article 40 and Article 43). Consular coverage by the Member States decreased by 24 % between 2014 and 2018, with an increase in representation arrangements of 3 %. However, the so called ‘blank spots’ where a Member State offers no visa service decreased from 900 in 2014 to 750 in 2018. This is predominantly the result of an exponential growth in cooperation between Member States and external service providers, which increased by 840 % from 2014 to 2018 in terms of locations covered.79 Reflecting the Member States’ widespread practice of outsourcing, amending Regulation (EU) 2019/1155 has inserted new Article 8(10) whereby Member States shall endeavour to cooperate with an external service provider in third countries where they are neither present nor represented by another Member State. Article 40(3) has also been amended to delete the reference to cooperation with an external service provider ‘as a last resort’ measure. At the same time, Article 17(5) has been amended to remove the Member States’ obligation to maintain the possibility for applicants to lodge applications directly at their consulates when they are cooperating

79

106

Commission Staff Working Document, SWD(2018) 77 final, p. 8.

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Art. 8

Chp. 3

with an external service provider. This possibility is now at Member States’ discretion (see Article 17 MN 1–2). With regard to representation agreements, Article 8 has also undergone important 2 changes following amending Regulation (EU) 2019/1155. Before the amendments, the general rule under Article 8 was that final decisions refusing a visa were to be taken by the represented Member State. Only by way of derogation, could a representation arrangement authorise the representing Member State to refuse visas on behalf of the represented Member State. Accordingly, in cases where the representing Member State contemplated a negative decision on a visa application it would refer the application to the represented Member State for a decision. The Commission already proposed to remove this requirement in its 2014 recast proposal on the ground that it rendered ‘the system inefficient’ and was ‘inconsistent with a common visa policy’.80 Article 8 now provides that, unless the representation arrangements is limited to collection of applications and biometrics, the representing Member State will be fully responsible for the processing of visa applications on behalf of the represented Member States, and thus will also refuse visas on behalf of the represented Member State. The possibility of prior consultation of the represented Member State for certain categories of third country nationals has also been removed.81

II. Representation and limited territorial validity (LTV) visas The former general rule whereby, in the context of representation arrangements, final 3 decisions refusing a visa were to be taken by the represented Member State was important for individuals. It allowed the represented Member State, in cases where the visa applicant did not fulfil the conditions for a uniform visa in Article 32(1), to consider granting an LTV visa instead on ‘humanitarian grounds, for reasons of national interest or because of international obligations’ under Article 25(1). On the other hand, it is difficult to see how the representing Member State when refusing a uniform visa on behalf of the represented Member State could be in a position to evaluate whether an LTV visa should be issued on behalf of the representing Member State. This is particularly so given that the principle of mutual recognition under the Visa Code, implemented through instruments such as the SIS and the prior consultation procedure, focuses on excluding third country nationals. Indeed, some representation agreements expressly state that the representing state is not authorised to issue LTV visas under Article 25(1). However, reflecting that LTV visas are often accessed through special channels, some representation arrangements also provide that in exceptional cases when the represented Member State is interested in issuing an LTV visa under Article 25(1) it may authorised the representing Member State to that effect.82 While it may be difficult to argue that the Visa Code establishes a right to an LTV visa under 80

Commission Staff Working Document, SWD(2014) 101 final, p. 31. Proposals to this effect firstly appeared in the 2014 recast proposal, Commission Proposal, COM (2014) 164 final. 82 See for example the reciprocal representation arrangements between the Czech Republic and Switzerland and between the Czech Republic and Lithuania (2015), available at: https://www.mzv.cz/ jnp/en/information_for_aliens/short_stay_visa/representation_in_issuance_of_the/representation_arrangements_for_schengen.html [last accessed 6 April 2021]; Implementing Arrangement to the Agreement between the Government of the Republic of Estonia and the Government of the Republic of Hungary on the mutual representation by their diplomatic and consular missions in processing visas and collecting biometric data, of 21 November 2007, available at: https://vm.ee/sites/default/files/content-editors/legal/ ungari_rakenduslepingu_terviktekst.pdf [last accessed 6 April 2021]. 81

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Visa Code Regulation (EC) No 810/2009

Article 25, which representation arrangements may undermine, it remains the case that representation arrangements may have the effect of restricting the Member States’ discretion under the Visa Code to exceptionally issue LTV visas under Article 25.

III. Representation and appeal rights 4

In Vethanayagam, the ECJ, had to decide which Member State had jurisdiction to hear appeals against decisions refusing a visa taken by the representing Member State on behalf of the represented Member State, and whether the consular representation system was consistent with the fundamental right of effective judicial protection in Article 47 CFR. The Court found that when the representing Member State is authorised to refuse a visa on behalf of the represented Member State under a representation agreement, the representing Member State is considered to take the final decision on the visa application for the purpose of appeals under Article 32(2) of the Visa Code.83 The Court found this system consistent with Article 47 CFR since the representing Member State is bound to uphold a right to an effective remedy under Article 47 CFR in the context of appeals under the Visa Code. According to the Court, this remains the case for Schengen associated states which although not bound by the CFR are bound by the ECHR and required, by Schengen acquis association agreements, to respect the rights of the Convention. The Court did however not address the issue that Article 6 ECHR does not apply in immigration cases. Furthermore, as judicial review of visa refusal decisions concerns not only questions of law but also questions of fact,84 commentators have doubted whether the courts of the representing Member State have sufficient insight into the situation in the represented Member State to be able to provide effective legal protection. Moreover, the system may exacerbate the geographical, linguistic and other barriers that visa applicants face when exercising their rights of appeal, particularly as it may have the effect of practically barring visa applicants from relying on their sponsors’ assistance.85

CHAPTER II Application Article 9 Practical modalities for lodging an application 1. Applications shall be lodged no more than six months, and for seafarers in the performance of their duties no more than nine months, before the start of the intended visit, and, as a rule, no later than 15 calendar days before the start of the intended visit. In justified individual cases of urgency, the consulate or the central authorities may allow the lodging of applications later than 15 calendar days before the start of the intended visit. 2. Applicants may be required to obtain an appointment for the lodging of an application. The appointment shall, as a rule, take place within a period of two weeks from the date when the appointment was requested. 83

ECJ, Vethanayagam, C-680/17, EU:C:2019:627, paras 72–73. ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, paras 48–49. 85 For a full analysis see Migration Law Clinic, Access to Legal Remedies. 84

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Chp. 3

Art. 9

3. In justified cases of urgency, the consulate may allow applicants to lodge their applications either without appointment, or an appointment shall be given immediately. 4. Without prejudice to Article 13, applications may be lodged: (a) by the applicant; (b) by an accredited commercial intermediary; (c) by a professional, cultural, sports or educational association or institution on behalf of its members. 5. An applicant shall not be required to appear in person at more than one location in order to lodge an application. Content I. Timeframe for lodging a visa application ................................................. II. The requirement to obtain an appointment............................................. III. Who can lodge an application on behalf of the applicant and the one-stop principle ...........................................................................................

mn. 2 3 4

Article 9 establishes some of the requirements relating to the practical submission of 1 the visa application. Fulfilment of some of these requirements, such as the timeframe for lodging a visa application, is necessary in principle for the application to be considered admissible under Article 19, without prejudice to overriding instruments such as the Free Movement Directive 2004/38/EC.

I. Timeframe for lodging a visa application Following amending Regulation (EU) 2019/1155, the timeframe for submitting a visa 2 application has been extended, to provide more flexibility to visa applicants, and further defined.86 Applications can be lodged up to six months before the intended stay (formerly three months), with special provisions applicable to seafarers. Furthermore, a rule has been introduced whereby applications must in principle not be submitted later than 15 days before the start of the intended visit, reflecting the current maximum processing time of 15 days in Article 23. On the insistence of the European Parliament, the possibility of an exception to the latter rule has been introduced for ‘justified individual cases of urgency’, but with no reference to ‘professional grounds’ or ‘humanitarian reasons’ as the European Parliament would have preferred. This exception is in line with Article 19(4) which states that by way of derogation Member States can treat applications submitted outside the timeframe envisaged by Article 9 as admissible on humanitarian grounds, for reasons of national interest or because of international obligations.

II. The requirement to obtain an appointment As a crowd control measure, Article 9(2) provides that applicants may be required to 3 obtain an appointment for lodging an application which shall ‘as a rule’ take place within two weeks from the day of request. There have been cases where Member States experienced difficulties in adhering to this time limit, which in the past led the 86 These changes were already envisaged in the 2014 Commission recast proposal, see draft Article 8(1), Commission Proposal, COM(2014) 164 final.

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Chp. 3 Art. 9

Visa Code Regulation (EC) No 810/2009

Commission to informally investigate thirteen Member States for violation of the rule.87 ‘In justified cases of urgency’, which is left undefined in the Article, the Member States ‘may’ allow applicants to lodge their applications without appointment or an appointment shall be given immediately.88 Some Member States have established fast-track procedures for justified cases of urgency and for certain categories of applicants such as business persons or seafarers,89 but Commission proposals to reformulate this provision to substitute Member States’ discretion with a legal requirement have been unsuccessful.90 The requirement to obtain an appointment is not applicable to third country national who are family members of EU citizens covered by the Free Movement Directive 2004/38/EC as Article 5(2) of the Directive provides that the Member States shall grant them ‘every facility to obtain the necessary visas’ which ‘shall be issued as soon as possible and on the basis of an accelerated procedure’. It is to be noted that visa facilitation agreements between the EU and third countries may also include rules regarding the requirement to obtain an appointment.91

III. Who can lodge an application on behalf of the applicant and the one-stop principle 4

Article 9(4) identifies who is entitled to lodge applications. Following amending Regulation (EU) 2019/1155, it provides that professional, cultural, sports or educational associations or institutions may lodge visa applications on behalf of their members. Member States’ cooperation with commercial intermediaries for the lodging of applications is regulated by Article 45 and involves an accreditation and monitoring system. On the other hand, the Visa Code does not define the associations or institutions envisaged by Article 9(4)(c) in any detail.92 Although commercial intermediaries and associations/institutions may submit applications on behalf of visa applicants, this is without prejudice to Article 13 whereby visa applicants will be required to appear in person for the collection of their biometric identifiers. Unlike external service providers and honorary consuls, commercial intermediaries are not authorised to collect biometric identifiers on behalf of the Member States (Article 45(1)). Amending Regulation (EU) 2019/1155 has also removed the reference to Articles 42 (honorary consuls) and 43 (external service providers) from Article 9 to clearly differentiate between external service providers and honorary consuls, on the one hand, which act on behalf of the Member States in collecting applications, and the entities listed in Article 9(4), on the other hand, which act on behalf of the visa applicant. Furthermore, it has inserted the so-called one-stop principle in Article 9, which was previously contained in Article 40(4), whereby an applicant cannot be required to appear in person at more than one location to lodge an application. Accordingly, an applicant cannot be required, for example, to attend an external service provider to submit her application and a consulate to have her 87 See, for example, Council doc. 13589/20 of 2 December 2020, p. 3; Commission Staff Working Document, SWD(2014) 101 final, p. 8. 88 Some guidance on ‘justified cases of urgency’ is provided in the Visa Handbook, Commission Decision, C(2010) 1620 final, as amended, Part II para 3.2.1. 89 Visa Handbook, Commission Decision, C(2010) 1620 final, as amended, Part II para 3.2.3. See also below Article 43 MN 2 on external service providers’ VIP services. 90 Draft Article 8(5), Commission Proposal, COM(2014) 164 final. 91 Some visa facilitation agreements provide similar rules as the Visa Code. See, for example, Article 7(3) EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). 92 Cf. Annex XI on the issuing of visas to members of the Olympic family and provisions in some visa facilitation agreements such as Article 4 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49).

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Art. 10

Chp. 3

biometric identifiers taken. In the past, the Commission investigated informally one Member State which followed such a practice.

Article 10 General rules for lodging an application 1. Applicants shall appear in person when lodging an application for the collection of fingerprints, in accordance with Article 13(2) and (3) and point (b) of Article 13(7). Without prejudice to the first sentence of this paragraph and to Article 45, applicants may lodge their applications electronically, where available. 3. When lodging the application, the applicant shall: (a) present an application form in accordance with Article 11; (b) present a travel document in accordance with Article 12; (c) present a photograph in accordance with the standards set out in Regulation (EC) No 1683/95 or, where the VIS is operational pursuant to Article 48 of the VIS Regulation, in accordance with the standards set out in Article 13 of this Regulation; (d) allow the collection of his fingerprints in accordance with Article 13, where applicable; (e) pay the visa fee in accordance with Article 16; (f) provide supporting documents in accordance with Article 14 and Annex II; (g) where applicable, produce proof of possession of adequate and valid travel medical insurance in accordance with Article 15. Article 10, like Article 9, lists the requirements that an applicant has to satisfy when 1 lodging a visa application in terms of presenting an application form, a travel document, a photograph, allowing the collection of her fingerprints, paying the visa fee, providing supporting documents, and producing proof of possession of travel medical insurance. Each of these requirements is further defined in the Visa Code. Fulfilment of these requirements (except for the provision of supporting documents and proof of travel medical insurance) will be necessary in principle for the admissibility of the visa application in accordance with Article 19. In the context of reforming the VIS, in view of establishing interoperability of databases,93 Article 10 has recently been amended to the effect that the applicant should also allow for her facial image to be taken live at the time of the application.94

I. No requirement to appear in person (except for collection of biometrics) and e-visas Amending Regulation (EU) 2019/1155 has removed from Article 10(1) the general 2 requirement for applicants to appear in person at the premises of the consulate or an external service provider when lodging an application. According to the Commission, 93 Regulation (EU) 2019/817 (OJ 2019 L 135/27) on interoperability between information systems in the field of borders and visas. 94 Article 2(1)(b) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System.

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Chp. 3 Art. 11

Visa Code Regulation (EC) No 810/2009

following a public consultation, the requirement was time consuming and costly for applicants, and it did not provide any added value in terms of the detection of irregular migrants, in a situation where decision-making on visas is increasingly a paper procedure involving no or little contact between consular authorities and applicants.95 Furthermore, under Article 21(8) it is open to national authorities to carry out an interview with a visa applicant and request further documents in justified cases. Accordingly, applicants are now required to appear in person, at the consulate or the external service provider, only for the collection of their biometric identifiers in accordance with Article 13. Amending Regulation (EU) 2019/1155 has also inserted a reference in Article 10(1) to the possibility of lodging visa applications electronically where available. This was at the insistence of the European Parliament and reflects the fact that e-visas are already provided by some Member States. E-visas are considered cost-efficient and a procedural facilitation for both applicants and consulates. However, states tend to limit their use for citizens of selected countries due to security concerns and other reasons.96 The European Parliament was unsuccessful in its attempt to insert an obligation for the Commission to present an e-visa proposal by 2025, and in practice harmonization may be a long-time off, with some Member States preferring to wait until the Entry/Exit System (EES)97 and the European Travel Information and Authorisation System (ETIAS)98 are in place.99

Article 11 Application form 1. Each applicant shall submit a manually or electronically completed application form, as set out in Annex I. The application form shall be signed. It may be signed manually or, where electronic signature is recognised by the Member State competent for examining and deciding on an application, electronically. Persons included in the applicant’s travel document shall submit a separate application form. Minors shall submit an application form signed by a person exercising permanent or temporary parental authority or legal guardianship. 1a. Where the applicant signs the application form electronically, the electronic signature shall be a qualified electronic signature, within the meaning of point (12) of Article 3 of Regulation (EU) No 910/2014. 1b. The content of the electronic version of the application form, if applicable, shall be as set out in Annex I. 2. Consulates shall make the application form widely available and easily accessible to applicants free of charge. 3. The form shall, as a minimum, be available in the following languages: (a) the official language(s) of the Member State for which a visa is requested or of the representing Member State; and (b) the official language(s) of the host country. In addition to the language(s) referred to in point (a), the form may be made available in any other official language(s) of the institutions of the Union. 95 Commission Staff Working Document, SWD(2014) 101 final, p. 9. See also draft Article 9, Commission Proposal, COM(2014) 164 final. 96 Commission Staff Working Document, SWD(2018) 77 final, p. 81. 97 Regulation (EU) 2017/226 (OJ 2017 L 327/20) establishing an Entry/Exit System (EES). 98 Regulation (EU) 2018/1240 (OJ 2018 L 236/1) establishing a European Travel Information and Authorisation System (ETIAS). 99 Commission Staff Working Document, SWD(2018) 77 final, p. 50.

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Art. 12

Chp. 3

4. If the official language(s) of the host country is/are not integrated into the form, a translation into that/those language(s) shall be made available separately to applicants. 5. A translation of the application form into the official language(s) of the host country shall be produced under local Schengen cooperation provided for in Article 48. 6. The consulate shall inform applicants of the language(s) which may be used when filling in the application form.

Article 12 Travel document The applicant shall present a valid travel document satisfying the following criteria: (a) its validity shall extend at least three months after the intended date of departure from the territory of the Member States or, in the case of several visits, after the last intended date of departure from the territory of the Member States. However, in a justified case of emergency, this obligation may be waived; (b) it shall contain at least two blank pages; (c) it shall have been issued within the previous 10 years.

I. Definition of valid travel document for purposes of application admissibility and examination Article 12 clarifies requirements relating to the travel document that a visa applicant 1 must present when lodging an application under Article 10(3) and which is necessary in principle for the application to be admissible under Article 19. Article 12 does not provide a definition of a ‘valid travel document’ but establishes requirements including in relation to the length of validity of the document, which is relevant for return purposes, and the minimum number of blank pages, which are required for affixing the visa and stamping the passport. According to the Visa Handbook, Article 12 is not concerned with the genuineness of the travel document. The Visa Handbook instructs consular authorities that when they detect a forged travel document at the moment of the submission of the visa application they should consider the application as admissible and refuse the visa, whereby the refusal will be recorded in the VIS. In this context, both Article 32(1) on visa refusal and related Article 21(3) on verification of entry conditions include presentation of a false, counterfeit or forged travel document, respectively, as a reason for, or a check to be carried out in relation to, refusing a visa. It is unclear whether the term ‘valid travel document’ in Article 12 should be 2 interpreted as requiring that the travel document is a ‘recognised travel document’, which is defined in Article 2(7) as ‘a travel document recognised by one or more Member States for the purpose of crossing the external borders and affixing visas’. The list of such travel documents is drawn pursuant to Decision 1105/2011/EU.100 The Visa Handbook seems to adopt this position as it contemplates the inadmissibility of the visa application in cases where the travel document is not recognised by any of the Member

100 OJ 2011 L 287/9. This has replaced the Schengen manual of documents to which a visa may be affixed, SCH/Com-ex (98)56 (OJ 2000 L 239/207).

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Chp. 3 Art. 13

Visa Code Regulation (EC) No 810/2009

States.101 The temporal validity and recognised status of the travel document will also be considered during the examination of the visa application under Article 21, since Article 21(1) refers to Article 6(1) of the Schengen Borders Code Regulation (EU) 2016/399 which establishes as an entry condition ‘possession of a valid travel document entitling the holder to cross the border’ and provides rules in relation to the temporal validity of the document. Moreover, such an examination will make it possible to decide whether a limited territorial validity visa has to be issued, in accordance with Article 25(1) or (3). However, under Article 21(3)(a) the emphasis of the examination is on the authenticity of the travel document, since that is the only reason in relation to the travel document which requires visa refusal under Article 32 (see Article 25 MN 1).102 The list of recognised travel documents is now incorporated in the VIS to enable automatic verification.103

Article 13 Biometric identifiers 1. Member States shall collect biometric identifiers of the applicant comprising a photograph of him and his 10 fingerprints in accordance with the safeguards laid down in the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms, in the Charter of Fundamental Rights of the European Union and in the United Nations Convention on the Rights of the Child. 2. At the time of submission of the first application, the applicant shall be required to appear in person. At that time, the following biometric identifiers of the applicant shall be collected: – a photograph, scanned or taken at the time of application, and – his 10 fingerprints taken flat and collected digitally. 3. Where fingerprints collected from the applicant as part of an earlier application were entered in the VIS for the first time less than 59 months before the date of the new application, they shall be copied to the subsequent application. However, where there is reasonable doubt regarding the identity of the applicant, the consulate shall collect fingerprints within the period specified in the first subparagraph. Furthermore, if at the time when the application is lodged, it cannot be immediately confirmed that the fingerprints were collected within the period specified in the first subparagraph, the applicant may request that they be collected. 4. In accordance with Article 9(5) of the VIS Regulation, the photograph attached to each application shall be entered in the VIS. The applicant shall not be required to appear in person for this purpose. The technical requirements for the photograph shall be in accordance with the international standards as set out in the International Civil Aviation Organization (ICAO) document 9303 Part 1, 6th edition. 5. Fingerprints shall be taken in accordance with ICAO standards and Commission Decision 2006/648/EC of 22 September 2006 laying down the technical specifi101

Commission Decision, C(2010) 1620 final, as amended, Part II, para 3.1.4. ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 35. 103 Article 1(6) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. 102

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cations on the standards for biometric features related to the development of the Visa Information System(6). 6. The biometric identifiers shall be collected by qualified and duly authorised staff of the authorities competent in accordance with Article 4(1), (2) and (3). Under the supervision of the consulates, the biometric identifiers may also be collected by qualified and duly authorised staff of an honorary consul as referred to in Article 42 or of an external service provider as referred to in Article 43. The Member State(s) concerned shall, where there is any doubt, provide for the possibility of verifying at the consulate fingerprints which have been taken by the external service provider. 7. The following applicants shall be exempt from the requirement to give fingerprints: (a) children under the age of 12; (b) persons for whom fingerprinting is physically impossible. If the fingerprinting of fewer than 10 fingers is possible, the maximum number of fingerprints shall be taken. However, should the impossibility be temporary, the applicant shall be required to give the fingerprints at the following application. The authorities competent in accordance with Article 4(1), (2) and (3) shall be entitled to ask for further clarification of the grounds for the temporary impossibility. Member States shall ensure that appropriate procedures guaranteeing the dignity of the applicant are in place in the event of there being difficulties in enrolling; (c) heads of State or government and members of a national government with accompanying spouses, and the members of their official delegation when they are invited by Member States’ governments or by international organisations for an official purpose; (d) sovereigns and other senior members of a royal family, when they are invited by Member States’ governments or by international organisations for an official purpose. 8. In the cases referred to in paragraph 7, the entry ‘not applicable’ shall be introduced in the VIS in accordance with Article 8(5) of the VIS Regulation. Content I. Exemptions....................................................................................................... II. Biometric identifiers and Articles 7 and 8 CFR.......................................

mn. 2 3

Article 13 relates to the requirement that a visa applicant has to satisfy, under 1 Article 10, in relation to the collection of her biometric identifiers, fulfilment of which is in principle necessary for the visa application to be considered admissible under Article 19. Once the application is considered admissible, the consulate or central authorities, will create an application file in the VIS containing the biometric identifiers of the applicant and other information relating to the application in accordance with Article 19(2). Through this application file, authorities will carry out searches in the VIS (and through the VIS) in view of verifying, in accordance with Article 21, whether the applicant fulfils the entry conditions of the Schengen Borders Code Regulation (EU) 2016/399. The application file is generally retained for five years.104 In the context of reforming the VIS, several important changes have recently been introduced. In relation

(6) 104

OJ L 267, 27.9.2006, p. 41. Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS), Article 23.

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to Article 13 specifically, an amendment has been introduced to provide for the collection of collect the facial image of the applicant taken live at the time of the application.105

I. Exemptions 2

It is worth noting that third country national family members of EU citizens covered by the Free Movement Directive 2004/38/EC are not included among the categories exempted from the requirement to have their biometric identifiers collected and stored in the VIS. Nevertheless, the operation of the VIS is without prejudice to the Free Movement Directive 2004/38/EC.106 In the context of reforming the VIS, following a number of studies between 2013 and 2017 on the correlation between age and fingerprint quality, Article 13 has recently been amended to exempt persons over the age of 75 from the obligation to provide fingerprints and to lower the fingerprinting age from the current 12 to 6 years, which is also seen as a contribution to facilitating the fight against the trafficking of children. This is a laudable objective but the extent to which it is solidly supported by data, and thus pursued in a proportionate way, is questionable.107 A new exempted category has also been introduced, namely persons who are required to appear as witness before international courts in the Member States and who would be put in serious danger if they had to appear in person to lodge the visa application.108

II. Biometric identifiers and Articles 7 and 8 CFR 3

Biometric identifiers must be collected, stored and used in accordance with the ECHR, the CFR and the CRC. Detailed rules on the use of the VIS by visa authorities are contained in the VIS Regulation which also establishes the rights and remedies available to individuals.109 In the context of establishing interoperability between information systems in the area of freedom, security and justice, the VIS has been significantly reformed recently.110 While the legality of both the Visa Code, in relation 105 Furthermore, carriers’ access to a restricted ‘OK/NOT OK’ version of the VIS (a ‘carrier gateway’) has also been introduced. See Article 1(3) and (44) and Article 4 Regulation 2021/1134 (OJ 2021 L 248/ 11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. 106 Recital 53 and Article 1(11) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. 107 According to data published by the Commission, 22 % of all victims of trafficking in 2017 and 2018 were children, of which 74 % were EU citizens, see European Commission, Fact Page on Trafficking in Human Beings (October 2020), available at: https://ec.europa.eu/anti-trafficking/sites/default/files/third_progress_report_factsheet.pdf [last accessed 5 May 2021]. 108 Article 2(2)(c) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. 109 Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS), Chapters II and VI. 110 Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/ 2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System.

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to the collection of biometrics and other information belonging to visa applicants, and the VIS Regulation,111 in relation to the storing and use of such biometrics and information, has not been challenged, there have been challenges, under Articles 7 and 8 CFR, on respect for private and family life and on protection of personal data, to other EU measures providing for the collection and storing of personal data which may be relevant in this context. In the case of Schwarz, the German Administrative Court, Gelsenkirchen, made a preliminary reference to the ECJ concerning the validity of the EU passports Regulation under Articles 7 and 8 CFR on the basis that the Regulation obliges individuals applying for a passport to provide fingerprints which are stored in that passport.112 The ECJ held that although the taking and storing of fingerprints in passports constitutes an infringement of the rights to respect for private life and the protection of personal data, those measures are justified by the aim of protecting against any fraudulent use of passports with a view to pursuing the general interest objective of preventing illegal entry into the EU. The Court found that there was no evidence suggesting that the measures in question did not respect the essence of the fundamental rights at issue, and that the measures were appropriate and did not go beyond what was necessary to achieve their general objective. The Court however noted that the EU passports Regulation explicitly limited the use of fingerprints to verify the authenticity of a passport and the identity of its holder. It also did not provide for the storage of fingerprints except within the passport itself. This also meant that it could not be interpreted as providing a legal basis for the centralised storage of data collected or for the use of such data for purposes other than the prevention of illegal entry in the EU.113 The scope of the VIS, on the other hand, is broader as data are stored centrally and 4 law enforcement authorities have access to it.114 Following the ECJ judgment in Digital Rights Ireland on the validity of the Data Retention Directive,115 it is clear that the VIS, as an instrument which envisages ‘mass data collection, storage of the data of a very large number of unsuspected persons and access and use of such data by law enforcement authorities’, is subject to the requirement of a high level of protection of personal data.116 In its judgment, the Court has clarified that these kind of measures will be assessed strictly with regard to their proportionality and necessity and their legality will require the existence of adequate safeguards.117 In this respect, the reform of the VIS, within the context of establishing interoperability between information systems, creates further challenges. Among the most significant changes introduced is a substantial extension of the personal scope of the VIS which would come to include data on longstay visa and residence permit applicants and holders (see Article 1 MN 14), further undermining the proportionality of the system from the perspective of the rights to respect for private life and the protection of personal data.118 Interoperability, in the 111

Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS). Regulation (EC) No 2252/2004 (OJ 2004 L 385/1) on passports issued by Member States. 113 ECJ, Schwarz, C-291/12, EU:C:2013:670. 114 See Council Decision 2008/633/JHA (OJ 2008 L 218/129). 115 Former Directive 2006/24/EC (OJ 2006 L 105/54) on data retention; ECJ, Digital Rights Ireland, C-293/12, EU:C:2014:238. 116 Council doc. 9009/14 of 5 May 2014, para 20, p. 8. 117 ECJ, Digital Rights Ireland, C-293/12, EU:C:2014:238, paras 56–66. See also ECJ, Tele2 Sverige, C-203/15, EU:C:2016:970, paras 102, 105–110. 118 Article 1(2)(b). Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. The Commission estimates that the number of people whose data will be stored in the different interoperable IT systems is approximately 218 million, see Commission Staff Working Document, SWD(2017) 473, p. 8. 112

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form of the VIS automatically querying other databases in the field of justice and home affairs (and vice versa), is also problematic in relation to limiting access rights and the purpose limitation principle. Furthermore, supported by statistics extracted from the VIS and the EES and information from Member States, the system would devise watchlists and specific risk indicators against which to screen applicants which are based on potentially discriminatory categories.119

Article 14 Supporting documents 1. When applying for a uniform visa, the applicant shall present: (a) documents indicating the purpose of the journey; (b) documents in relation to accommodation, or proof of sufficient means to cover his accommodation; (c) documents indicating that the applicant possesses sufficient means of subsistence both for the duration of the intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or that he is in a position to acquire such means lawfully, in accordance with Article 5(1)(c) and (3) of the Schengen Borders Code; (d) information enabling an assessment of the applicant’s intention to leave the territory of the Member States before the expiry of the visa applied for. 2. When applying for an airport transit visa, the applicant shall present: (a) documents in relation to the onward journey to the final destination after the intended airport transit; (b) information enabling an assessment of the applicant’s intention not to enter the territory of the Member States. 3. A non-exhaustive list of supporting documents which may be requested from the applicant in order to verify the fulfilment of the conditions listed in paragraphs 1 and 2 is set out in Annex II. 4. Member States may require applicants to present proof of sponsorship or of private accommodation, or of both, by completing a form drawn up by each Member State. That form shall indicate in particular: (a) whether its purpose is proof of sponsorship or of private accommodation, or of both; (b) whether the sponsor or inviting person is an individual, a company or an organisation; (c) the identity and contact details of the sponsor or inviting person; (d) the identity data (name and surname, date of birth, place of birth and nationality) of the applicant(s); (e) the address of the accommodation; (f) the length and purpose of the stay; 119 Article 1(11) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. See for example Article 63 Regulation (EU) 2017/226 (OJ 2017 L 327/20) establishing an Entry/Exit System (EES). For an analysis, see Vavoula, ‘The “Puzzle” of EU Large-Scale Information Systems for Third-Country Nationals: Surveillance of Movement and Its Challenges for Privacy and Personal Data Protection’, EL Rev. 45 (2020), p. 348–372.

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(g) possible family ties with the sponsor or inviting person; (h) the information required pursuant to Article 37(1) of the VIS Regulation. In addition to the Member State’s official language(s), the form shall be drawn up in at least one other official language of the institutions of the Union. A specimen of the form shall be sent to the Commission. 5. Consulates shall, within local Schengen cooperation, assess the implementation of the conditions laid down in paragraph 1, to take account of local circumstances, and of migratory and security risks. 5a. Where necessary in order to take account of local circumstances as referred to in Article 48, the Commission shall by means of implementing acts adopt a harmonised list of supporting documents to be used in each jurisdiction. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 52(2). 6. The requirements of paragraph 1 of this Article may be waived in the case of an applicant known to the consulate or the central authorities for his integrity and reliability, in particular as regards the lawful use of previous visas, if there is no doubt that he will fulfil the requirements of Article 6(1) of Regulation (EU) 2016/ 399 of the European Parliament and of the Council(7) at the time of the crossing of the external borders of the Member States. Content I. Harmonization of supporting documents................................................. II. Proof of sponsorship and/or private accommodation ........................... III. Discretionary waivers and obligations under the Free movement Directive 2004/38/EC .....................................................................................

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Following from the requirement in Article 10(3)(f), Article 14(1) and (2) provides 1 that an applicant for a uniform visa shall present supporting documents.120 These are documents relating to the purpose of the journey, accommodation during the stay, sufficient means of subsistence and intention to leave the territory of the Member States before the expiry of the visa. Unlike most of the other requirements listed in Article 10, presentation of supporting documents is not a condition for the admissibility of the application under Article 19. Supporting documents corroborate the information which is provided by the applicant in the application form envisaged by Article 10(3)(a) and Article 11 and are important in the examination of the visa application by national authorities under Article 21.

I. Harmonization of supporting documents There is no formal substantive harmonization of the supporting documents that a visa 2 applicant must present. This position is justified in terms of the difficulties in drawing up detailed rules in a situation where there is great diversity of individual circumstances and local conditions worldwide. Lack of harmonization can however cause uncertainty, unequal treatment of applicants and visa shopping. To attenuate this, the Visa Code (7) Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the Rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 77, 23.3.2016, p. 1). 120 Visa facilitations agreements may contain provisions on this matter. See, for example, Article 4 EUAzerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53).

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contains in Annex II a non-exhaustive list of supporting documents which may be required by consulates. Attempts by the Commission to make this list exhaustive have been unsuccessful.121 The Visa Handbook also provides for detailed guidelines.122 Most importantly, Article 14(5) and (5a) contemplates the gradual adoption by the Commission, following ground work within the context of local Schengen cooperation, of legally binding implementing acts establishing harmonized lists of supporting documents to be used in each jurisdiction. Up to 2014, progress on this front was assessed as limited by the Commission, reporting among the reasons ‘reluctance on the part of Member States at local level, seemingly unaware of the legal obligation to carry out this assessment’ and ‘lack of awareness by consulates of certain Member States regarding application of a common visa policy’.123 However, since 2014, there has been a steady progress in the Commission’s adoption of implementing acts, although monitoring in the context of the Schengen evaluation mechanism still reveals, as a recurring deficiency, divergences in the practical implementation of the harmonised lists.124

II. Proof of sponsorship and/or private accommodation 3

Under Article 14(4), the Member States may also require applicants to present proof of sponsorship or of private accommodation, or both, by completing a form which must meet a number of minimum requirements. Practices among the Member States may vary in this respect, and it appears that some Member States have used the forms explicitly to impose the financial risks of an extended stay on the signee of the form, or commit the signee to cover costs of a possible overstay. Also, while the information provided in the form is inserted in the VIS, many Member States did not inform the signee of this as required.125

III. Discretionary waivers and obligations under the Free movement Directive 2004/38/EC 4

Under Article 14(6), the consulate or central authorities may waive requirements in relation to supporting documents in the case of an applicant known to them for her ‘integrity and reliability’. There is no detailed definition of this term apart from a reference to the lawful use of previous visas. In the context of the issuing of multipleentry visas under Article 24(2), on the other hand, the same term is defined by reference to further factors. As a result of the subjectivity of this notion, the provision has been of little practical benefit to individuals and has not been conducive to a harmonised approach. Accordingly, the Commission in 2014 proposed the introduction of the notion of ‘VIS registered regular traveller’ who would be exempted from presenting

121

Commission Proposal, COM(2014) 164 final, draft Article 51(2). Commission Decision, C(2010) 1620 final, as amended, Part II, para 5. 123 Commission Staff Working Document, SWD(2014) 101 final, p. 12–13. The list of implementing decisions is published on: http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/borders-andvisas/visa-policy/index_en.htm [last accessed 20 April 2021]. 124 Commission Staff Working Document, SWD(2018) 77 final, p. 72; Commission Report, COM (2020) 779 final, p. 8–9. 125 Article 37 Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS); Commission Staff Working Document, SWD(2014) 101 final, p. 14. 122

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certain supporting documents.126 This was however rejected by the Member States which opposed any ‘automaticity’ in issuing visas to this category.127 Under the conditionality mechanism in Article 25a, Article 14(6) will not be applicable to applicants or category of applicants who are nationals of a third country that is considered not to be cooperating sufficiently on readmission. Consistently with the general approach in the Visa Code (Article 1 MN 15), Article 14 is silent on the position in relation to third country nationals who are covered by the Free Movement Directive 2004/38/EC. The Visa Handbook clarifies that they may only be required to present documents establishing that they are beneficiaries of the Directive.128

Article 15 Travel medical insurance 1. Applicants for a uniform visa for one or two entries shall prove that they are in possession of adequate and valid travel medical insurance to cover any expenses which might arise in connection with repatriation for medical reasons, urgent medical attention and/or emergency hospital treatment or death, during their stay (s) on the territory of the Member States. 2. Applicants for a multiple-entry visa shall prove that they are in possession of adequate and valid travel medical insurance covering the period of their first intended visit. In addition, such applicants shall sign the statement, set out in the application form, declaring that they are aware of the need to be in possession of travel medical insurance for subsequent stays. 3. The insurance shall be valid throughout the territory of the Member States and cover the entire period of the person’s intended stay or transit. The minimum coverage shall be EUR 30 000 . When a visa with limited territorial validity covering the territory of more than one Member State is issued, the insurance cover shall be valid at least in the Member States concerned. 4. Applicants shall, in principle, take out insurance in their country of residence. Where this is not possible, they shall seek to obtain insurance in any other country. When another person takes out insurance in the name of the applicant, the conditions set out in paragraph 3 shall apply. 5. When assessing whether the insurance cover is adequate, consulates shall ascertain whether claims against the insurance company would be recoverable in a Member State. 6. The insurance requirement may be considered to have been met where it is established that an adequate level of insurance may be presumed in the light of the applicant’s professional situation. The exemption from presenting proof of travel medical insurance may concern particular professional groups, such as seafarers, who are already covered by travel medical insurance as a result of their professional activities. 7. Holders of diplomatic passports shall be exempt from the requirement to hold travel medical insurance. 126

Draft Article 13 Commission Proposal, COM(2014) 164 final. Council doc. 6093/15 of 13 February 2015, p. 3. 128 Commission Decision, C(2010) 1620 final, as amended, Part III, para 3.6. 127

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Visa Code Regulation (EC) No 810/2009

Following from Article 10(3)(g), Article 15 regulates the visa applicant’s obligation to prove possession of adequate and valid travel medical insurance. Unlike most of the requirements listed in Article 10, proof of possession of travel medical insurance is not a condition for the admissibility of the application under Article 19. It is however a condition for granting a uniform visa under Article 32 and it will be considered during the examination of the visa application under Article 21. The requirement of travel medical insurance was introduced for visa applicants in October 2004 on the initiative of Greece. In 2014 the Commission, supported by the European Parliament, unsuccessfully proposed to remove this requirement because it considered it disproportionate and because it is not an entry condition under the Schengen Borders Code Regulation (EU) 2016/399. According to the Commission, possession of travel medical insurance is therefore not verified at the border with the effect that a visa holder may cancel the travel medical insurance once the visa is obtained.129 Indeed, the practice of not checking travel medical insurance at the border is arguably in line with the legislative framework. Article 7(1) of the Schengen Borders Code Regulation (EU) 2016/399 establishes a proportionality requirement for border controls.130 Furthermore, although proof of possession of travel medical insurance is a condition for issuing a uniform visa under Article 32, revocation of the visa is mandatory under Article 34 only for the issuing Member State and ‘where it becomes evident’ that the conditions for issuing the visa are no longer met.

Article 16 Visa fee 1. Applicants shall pay a visa fee of EUR 80. 2. Children from the age of six years and below the age of 12 years shall pay a visa fee of EUR 40. 2a. A visa fee of EUR 120 or EUR 160 shall apply if an implementing decision is adopted by the Council under point (b) of Article 25a(5). This provision shall not apply to children below the age of 12 years. 4. The visa fee shall be waived for applicants belonging to one of the following categories: (a) children under six years; (b) school pupils, students, postgraduate students and accompanying teachers who undertake stays for the purpose of study or educational training; (c) researchers, as defined in point (2) of Article 3 of Directive (EU) 2016/801 of the European Parliament and of the Council(8), travelling for the purpose of carrying out scientific research or participating in a scientific seminar or conference; (d) representatives of non-profit organisations aged 25 years or less participating in seminars, conferences, sports, cultural or educational events organised by nonprofit organisations. 129 Commission Staff Working Document, SWD(2014) 101 final, p. 15. Some Member States expressed opposition ‘because of large numbers of medical bills left unpaid by third country nationals in the Member States’, see Council doc. 6093/15 of 13 February 2015, p. 3. 130 See ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, paras 8 and 55. (8) Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (OJ L 132, 21.5.2016, p. 21).

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5. The visa fee may be waived for: (a) children from the age of six years and below the age of 18 years; (b) holders of diplomatic and service passports; (c) participants in seminars, conferences, sports, cultural or educational events organised by non-profit organisations, aged 25 years or less. 6. In individual cases, the amount of the visa fee to be charged may be waived or reduced when to do so serves to promote cultural or sporting interests, interests in the field of foreign policy, development policy and other areas of vital public interest, or for humanitarian reasons or because of international obligations. 7. The visa fee shall be charged in euro, in the national currency of the third country or in the currency usually used in the third country where the application is lodged, and shall not be refundable except in the cases referred to in Articles 18(2) and 19(3). When charged in a currency other than the euro, the amount of the visa fee charged in that currency shall be determined and regularly reviewed in application of the euro foreign exchange reference rate set by the European Central Bank. The amount charged may be rounded up and it shall be ensured under local Schengen cooperation that similar fees are charged. 8. The applicant shall be given a receipt for the visa fee paid. 9. The Commission shall assess the need to revise the amount of the visa fees set out in paragraphs 1, 2 and 2a of this Article every three years, taking into account objective criteria, such as the general Union-wide inflation rate as published by Eurostat, and the weighted average of the salaries of Member States’ civil servants. On the basis of those assessments, the Commission shall adopt, where appropriate, delegated acts in accordance with Article 51a concerning the amendment of this Regulation as regards the amount of the visa fees. Content I. Amount of the visa fee .................................................................................. II. Waivers..............................................................................................................

mn. 2 3

Following from Article 10(3)(e), Article 16 establishes rules on the collection of the 1 visa fee. Collection of the visa fee is in principle a condition for the admissibility of the visa application under Article 19, without prejudice to the Free Movement Directive 2004/38/EC and visa facilitation agreements between the EU and third countries.

I. Amount of the visa fee Following amending Regulation 2019/1155, the visa fee has increased from EUR 60 to 2 EUR 80, and from EUR 35 to EUR 40 for children aged 6 to 11. This is to ensure that the visa fee covers the administrative costs of issuing a visa as far as possible, particularly in a situation where there have been significant cuts to the financial resources available to consulates. It is believed that, given the visa fees applied by third countries which are comparable to the EU, the increase should not lead to a reduction of travel.131 Amending Regulation (EU) 2019/1155 has also introduced in Article 16(9) a power for the Commission to revise the amount of the visa fee using the procedure in Article 51a. The lack of such specific procedure was identified as the reason why the visa fee had not been raised 131

Commission Staff Working Document, SWD(2018) 77 final, p. 12 and 34.

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since 2006.132 Article 16(2a) provides that the visa fee can be increased to EUR 120 or 160 in relation to specific nationalities or categories of individuals from a specific third country as a result of a Council implementing decision adopted under the conditionality mechanism in Article 25a. This would be a last resort measure against a non-cooperative third country when more lenient measures are ineffective. In relation to countries with which the EU has visa facilitation agreements, it would be necessary for the EU to invoke the suspension clause in the agreement before being able to implement such punitive measures (see Article 1 MN 16). The conditionality mechanism in Article 25a also creates the possibility for the Council, in case a third country is considered cooperative in the field of readmission, to adopt an implementing decision to reduce the visa fee for nationals of that country to EUR 60. Article 16 is without prejudice to visa facilitation agreements which provide for a visa fee of EUR 35 and the Free Movement Directive 2004/38/EC by virtue of which no visa fee is applicable to third country nationals who are family members of EU citizens falling within the scope of the Directive.133

II. Waivers 3

Article 16(4) lists the categories for which the visa fee shall be waived. The European Parliament unsuccessfully attempted to raise the age of children exempted from the visa fee from 6 to 12 years. This would have created consistency between the Visa Code and visa facilitation agreements and possibly impacted on EU leverage (see Article 1 MN 6).134 In relation to the category of representatives of non-profit organizations, it is to be noted that under the Visa Handbook, national authorities are instructed that the non-profit organisation must be ‘officially registered’ as such. Similarly, in relation to representatives of civil society organizations, for which there is a full waiver of the visa fee under visa facilitation agreements, visa facilitation agreements provide that a ‘certificate on establishment of such organization from the relevant register issued by a state authority’ must be provided. This has the effect of excluding human rights NGOs from countries that proscribe them, such as Russia,135 from benefiting from the waiver and it is hardly in line with the EU Guidelines on Human Rights Defenders as amended in 2008.136 It is to be noted that visa facilitation agreements provide visa fee waivers for further categories of individuals including close relatives of nationals of the contracting parties, children under the age of 12, pensioners, journalists, persons with disabilities, persons in urgent need of medical treatments, etc.137 Article 16 also provides for discretionary visa fee waivers in relation to specific categories of individuals. In this context, with the last amendment of the Visa Code, the European Parliament was successful in raising the age of children who could benefit from the waiver from 12 to 18 years. It was, on the other hand, unsuccessful in including applicants for limited territorial validity visas as a further category. However, under Article 19(4), it is possible for the competent consulate, as a derogation from the general rule, to consider an application for which the visa fee has not been collected as admissible on humanitarian grounds, for reasons of national interest or because of 132

Commission Staff Working Document, SWD(2018) 77 final, p. 17. See for example Article 6 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). 134 The Commission in its 2014 recast proposal also unsuccessfully attempted to extend the categories entitled to a visa fee waiver, see draft Article 14(3), Commission Proposal, COM(2014) 164 final; Council doc. 6093/15 of 13 February 2015, p. 3. 135 Lipman, ‘At the Turning Point of Repression. Why there are more and more “undesirable elements” in Russia’, Russian Politics and Law 54 (2016), p. 341, 344–347. 136 Council doc. 16332/2/08 REV 2 of 10 June 2009, para 14. 137 See for example Article 6 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). 133

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Chp. 3

Art. 17

international obligations. Furthermore, Article 16(6) provides a less defined case when the Member States may waive the visa fee.

Article 17 Service fee 1. A service fee may be charged by an external service provider referred to in Article 43. The service fee shall be proportionate to the costs incurred by the external service provider while performing one or more of the tasks referred to in Article 43(6). 2. The service fee shall be specified in the legal instrument referred to in Article 43(2). 4. The service fee shall not exceed half of the amount of the visa fee set out in Article 16(1), irrespective of the possible reductions in or exemptions from the visa fee as provided for in Article 16(2), (4), (5) and (6). 4a. By way of derogation from paragraph 4, the service fee shall, in principle, not exceed 80 EUR in third countries where the competent Member State has no consulate for the purpose of collecting applications and is not represented by another Member State. 4b. In exceptional circumstances where the amount referred to in paragraph 4a is not sufficient to provide a full service, a higher service fee of up to a maximum of 120 EUR may be charged. In such a case, the Member State concerned shall notify the Commission of its intention to allow for a higher service fee to be charged, at the latest three months before the start of its implementation. The notification shall specify the grounds for the determination of the level of the service fee, in particular the detailed costs leading to the determination of a higher amount. 5. The Member State concerned may maintain the possibility for all applicants to lodge their applications directly at its consulates or at the consulate of a Member State with which it has a representation arrangement, in accordance with Article 8. Content I. Amount of the service fee............................................................................. II. Direct access to consulates and limited territorial validity (LTV) visas ....................................................................................................................

mn. 1 2

I. Amount of the service fee In accordance with Articles 8(10), 40(3) and Articles 43, a Member State can 1 cooperate with an external service provider to provide information to and collect applications from visa applicants on its behalf. Such cooperation is widespread (see Article 43 MN 1). Article 17 accordingly establishes rules with regard to the service fee that external service providers can charge visa applicants. Amending Regulation (EU) 2019/1155 has introduced some derogations to the general rule that the service fee should not exceed half of the amount of the visa fee, with the effect that the service fee can reach EUR 80 and in exceptional circumstances EUR 120.138 In theory, a visa applicant could avoid the service fee by not relying on the services of the external 138 Under visa facilitation agreements, the service charge cannot exceed EUR 30, with the Member States and the relevant third country obliged to maintain the possibility for all applicants to lodge their

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Chp. 3 Art. 18

Visa Code Regulation (EC) No 810/2009

service provider and lodging her application directly at the competent consulate. In this context, amending Regulation (EU) 2019/1155 has introduced important changes. It has removed the obligation in Article 17(5) for the Member States to maintain the possibility for all applicants to lodge their applications directly at their consulates, and replaced it with a discretion. Prior to this amendment, there had been numerous complaints to the Commission about Member States’ violation of this rule.139 With regard to third country nationals who are family members of EU citizens covered by the Free Movement Directive 2004/38/EC, visas must be issued free of charge and the Member States remain obliged to grant direct access to their consulates.

II. Direct access to consulates and limited territorial validity (LTV) visas 2

The removal of the Member States’ obligation to maintain direct access to consulates has also been criticized on the ground that in practice it makes it more difficult for applicants to apply for LTV visas and for the Member States to exercise their discretion, as a derogation from the general rules, to consider visa applications that are inadmissible as admissible under Article 19(4) and to grant LTV visas exceptionally to applicants that do not fulfil the conditions for a uniform visa (see Article 25 MN 1–2).140 This is linked to the practice of some external service providers to refuse to collect and transmit to consulates visa applications which are considered incomplete, thus precluding such applications from reaching and being considered by consulates (see Article 43 MN 2).141

CHAPTER III Examination of and decision on an application Article 18 Verification of consular competence 1. When an application has been lodged, the consulate shall verify whether it is competent to examine and decide on it in accordance with the provisions of Articles 5 and 6. 2. If the consulate is not competent, it shall, without delay, return the application form and any documents submitted by the applicant, reimburse the visa fee, and indicate which consulate is competent.

Article 19 Admissibility 1. The competent consulate or the central authorities of the competent Member State shall verify whether: – the application has been lodged within the period referred to in Article 9(1), – the application contains the items referred to in Article 10(3)(a) to (c), applications directly at their consulates, see, for example, Article 6(3) of the EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). 139 Commission Staff Working Document, SWD(2014) 101 final, p. 34. 140 See Jensen, Humanitarian Visas, p. 26. 141 See, for example, Commission Staff Working Document, SWD(2014) 101 final, p. 34.

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Chp. 3

Art. 19

– the biometric data of the applicant have been collected, and – the visa fee has been collected. 2. Where the competent consulate or the central authorities of the competent Member State find that the conditions referred to in paragraph 1 have been fulfilled, the application shall be admissible and the consulate or the central authorities shall: – follow the procedures described in Article 8 of the VIS Regulation, and – further examine the application. Data shall be entered in the VIS only by duly authorised consular staff in accordance with Article 6(1), Article 7 and points (5) and (6) of Article 9 of the VIS Regulation. 3. Where the competent consulate or the central authorities of the competent Member State find that the conditions referred to in paragraph 1 have not been fulfilled, the application shall be inadmissible and the consulate or central authorities shall without delay: – return the application form and any documents submitted by the applicant, – destroy the collected biometric data, – reimburse the visa fee, and – not examine the application. 4. By way of derogation from paragraph 3, an application that does not meet the requirements set out in paragraph 1 may be considered admissible on humanitarian grounds, for reasons of national interest or because of international obligations. Content I. The notion of admissibility........................................................................... II. The right of appeal ......................................................................................... III. Derogations from admissibility requirements and limited territorial validity (LTV) visas ........................................................................................

mn. 1 2 3

I. The notion of admissibility Article 19(1) provides the conditions for a visa application to be considered admis- 1 sible for examination. These conditions reflect the general rules and modalities for lodging an application in Articles 9 and 10, except as regards supporting documents and proof of travel medical insurance which are not required for admissibility but must be included with the application and will be considered at the examination stage (see Article 14 MN 1 and Article 15 MN 1). The notion of admissibility of an application was introduced to distinguish between rejections of incomplete applications, which are not supposed to be recorded in the VIS, and formal refusals, which are recorded in the VIS. However, there seems to be confusion on how the notion is to be applied in practice.142 Some consulates treat applications lacking supporting documents as incomplete/inadmissible while others count them as formal refusals and record them in the VIS. In this context, it was suggested to include presentation of supporting documents among the admissibility criteria, but there are differences between the Member States as to which documents they require from applicants (see Article 14 MN 2).143 Once the 142 See, for example, Zampagni, ‘Unpacking the Schengen Visa Regime. A Study on Bureaucrats and Discretion in an Italian Consulate’, Journal of Borderlands Studies 31 (2016), p. 251, 259. 143 Commission Staff Working Document, SWD(2014) 101 final, p. 18; Commission Staff Working Document, SWD(2018) 77 final, p. 72; Commission Report, COM(2020) 779 final, p. 9.

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Chp. 3 Art. 19

Visa Code Regulation (EC) No 810/2009

application is admissible, an application file is created in the VIS and the application is examined in accordance with Articles 21 and 22.

II. The right of appeal 2

The right of appeal and the right to be notified of the reasons for visa refusal decisions envisaged by Article 32(2) and (3) do not expressly apply to inadmissible applications. The Commission has consistently held that the possibility of appeal in these cases would bring no added value as decisions have no legal effects or impact on future applications. In its very first proposal for a Visa Code, the Commission excluded the right of appeal expressly for inadmissible applications. However, this position is questionable, particularly in light of the confusion surrounding the practical application of admissibility (see MN 1). The position has been criticized and has caused some problems for some Member States.144 As the Standing Committee of experts on international immigration, refugee and criminal law observes, ‘The reasons for declaring an application non-admissible may touch on important material issues. If a person is for an excusable reason not able to produce the additional information or documentation…or if the request for such information or documentation is unreasonable or arbitrary, this person may never be able to repair the deficiency of his visa application if he cannot invoke the impartial opinion of an independent judge’.145

III. Derogations from admissibility requirements and limited territorial validity (LTV) visas 3

Article 19(4) establishes, by way of derogation, that an application that does not meet the general admissibility requirements ‘may’ be considered admissible ‘on humanitarian grounds, for reasons of national interest or because of international obligations’. The reference to international obligations has been introduced by amending Regulation (EU) 2019/1155 on the insistence of the European Parliament, and results in consistency between Article 19(4) and Article 25(1)(a) on the issuing of LTV visas. Article 19 (4) can act as a conduit for the application of Article 25(1)(a) which provides that LTV visas ‘shall be issued exceptionally’ to applicants who do not fulfil the entry conditions in the Schengen Borders Code Regulation (EU) 2016/399, and hence the conditions for a uniform visa in Article 32(1)(a), when the Member State concerned ‘considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’.146 These provisions mirror Article 6(5)(c) of the Schengen Borders Code Regulation (EU) 2016/399 which states that third country nationals who do not fulfil one or more of the entry conditions may be authorized by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligations. Article 19(4) provides only for a discretion to treat an inadmissible application as admissible, while Article 25(1) is more ambiguous in its formulation in terms of the degree of discretion that it provides (see Article 25 MN 5).

144

See Meloni, The Community Code, p. 692. Standing Committee of experts on international migration, refugee and criminal law, ‘Note on the draft proposal for a Regulation establishing a Community Code on Visas’, 8 February 2007, para b.1. 146 See Jensen, Humanitarian Visas, p. 18. 145

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Art. 21

Chp. 3

Article 20 Stamp indicating that an application is admissible 1. When an application is admissible, the competent consulate shall stamp the applicant’s travel document. The stamp shall be as set out in the model in Annex III and shall be affixed in accordance with the provisions of that Annex. 2. Diplomatic, service/official and special passports shall not be stamped. 3. The provisions of this Article shall apply to the consulates of the Member States until the date when the VIS becomes fully operational in all regions, in accordance with Article 48 of the VIS Regulation.

Article 21 Verification of entry conditions and risk assessment 1. In the examination of an application for a uniform visa, it shall be ascertained whether the applicant fulfils the entry conditions set out in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code, and particular consideration shall be given to assessing whether the applicant presents a risk of illegal immigration or a risk to the security of the Member States and whether the applicant intends to leave the territory of the Member States before the expiry of the visa applied for. 2. In respect of each application, the VIS shall be consulted in accordance with Articles 8(2) and 15 of the VIS Regulation. Member States shall ensure that full use is made of all search criteria pursuant to Article 15 of the VIS Regulation in order to avoid false rejections and identifications. 3. While checking whether the applicant fulfils the entry conditions, the consulate or the central authorities shall verify: (a) that the travel document presented is not false, counterfeit or forged; (b) the applicant’s justification for the purpose and conditions of the intended stay, and that he has sufficient means of subsistence, both for the duration of the intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or is in a position to acquire such means lawfully; (c) whether the applicant is a person for whom an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry; (d) that the applicant is not considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds; (e) that the applicant is in possession of adequate and valid travel medical insurance, where applicable, covering the period of the intended stay, or, if a multiple-entry visa is applied for, the period of the first intended visit. 4. The consulate or the central authorities shall, where applicable, verify the length of previous and intended stays in order to verify that the applicant has not exceeded the maximum duration of authorised stay in the territory of the Member States, irrespective of possible stays authorised under a national long-stay visa or a residence permit.

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Chp. 3 Art. 21

Visa Code Regulation (EC) No 810/2009

5. The means of subsistence for the intended stay shall be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of days stayed, on the basis of the reference amounts set by the Member States in accordance with Article 34(1)(c) of the Schengen Borders Code. Proof of sponsorship and/or private accommodation may also constitute evidence of sufficient means of subsistence. 6. In the examination of an application for an airport transit visa, the consulate or the central authorities shall in particular verify: (a) that the travel document presented is not false, counterfeit or forged; (b) the points of departure and destination of the third-country national concerned and the coherence of the intended itinerary and airport transit; (c) proof of the onward journey to the final destination. 7. The examination of an application shall be based notably on the authenticity and reliability of the documents submitted and on the veracity and reliability of the statements made by the applicant. 8. During the examination of an application, consulates or the central authorities may in justified cases carry out an interview with the applicant and request additional documents. 9. A previous visa refusal shall not lead to an automatic refusal of a new application. A new application shall be assessed on the basis of all available information. Content I. General scope................................................................................................... II. The reformed VIS ........................................................................................... III. The possibility of an interview ....................................................................

mn. 1 2 3

I. General scope 1

Once an application is considered admissible in accordance with Article 19, it is examined in accordance with Articles 21 and 22 with a view to establishing whether the applicant fulfils the entry conditions set out in the Schengen Borders Code Regulation (EU) 2016/399 and adopting a decision to either issue a uniform visa (Article 24), a limited territorial validity visa (Article 25) or refuse a visa (Article 32). The ECJ clarified the purpose of Article 21 and its relationship with Article 32(1) on refusal of a visa in its judgment in Koushkaki (see below Article 32 MN 6). According to the ECJ: ‘…the purpose of Article 21 of the Visa Code is to determine general rules for the verification of entry conditions and risk assessment during the examination of an application for a uniform visa. Thus, Article 21(1) sets out the factors which must be verified or which particular consideration must be given before any decision on an application for a uniform visa is taken, without thereby drawing up a precise list of the conditions for the issue of such a visa. The other paragraphs of that article, for their part, set out the methods which the competent authorities of the Member State concerned must use to verify the entry conditions and perform the risk assessment, depending on the situation with which they are faced. On the other hand, it is clear that Article 32(1) of the Visa Code establishes a list of grounds on which an application for a uniform visa must be rejected. 130

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Art. 21

Chp. 3

It follows from the foregoing that, while Article 21(1) of the Visa Code requires the competent authorities to verify or assess certain factors, Article 32(1) of that code determines the conclusions which must be drawn from the result of that verification and that assessment, in the light of the grounds for refusal listed in the latter article’.147 It is therefore apparent that Article 21 is not intended to establish the conditions for issuing a visa but rather sets out the various checks and assessments that need to be carried out by the competent national authorities to establish that the grounds for visa refusal under Article 32 do not arise. Thus, the relationship between Articles 21 and 32 of the Visa Code is similar to the relationship between Articles 8 and 6 of the Schengen Borders Code Regulation (EU) 2016/399 as clarified by the ECJ in Air Baltic Corporation.148 The ECJ, furthermore, stressed the complexity of assessing the individual position of a visa applicant for the purpose of determining whether there is a ground for visa refusal under Article 32(1) which finds reflection in Article 21 conferring a wide discretion on the Member States’ authorities in the examination of visa applications.149 This wide discretion has implications for the scope of the judicial review required in the context of the appeal provided for in Article 32(3) of the Visa Code (see Article 32 MN 6–8). In the case of third country nationals who are family members of EU citizens exercising the right of free movement, the grounds for exclusion under the Free Movement Directive 2004/38/EC are very narrow and this will be reflected in the verifications that will be carried out during the examination of their applications (see Article 1 MN 15 and Article 14 MN 4).

II. The reformed VIS As part of the examination of the visa application, Article 21(2) provides that, in 2 respect of each application, the VIS, which is interoperable with the EES,150 is to be consulted for the purpose of checking any previous applications (the visa history of the applicant) and examining the application. In this context, Article 21(9) states that a previous visa refusal, which will be revealed by the VIS, shall not lead to an automatic refusal of a new application. Interoperability between EU information systems in the field of justice and home affairs affects the operation of the VIS in the context of Article 21. For the purpose of carrying out the verifications of the entry conditions in Article 21(1), the authenticity of the travel document as per Article 21(3)(a), the existence of alerts in the SIS and national databases as per Article 21(3)(c) and (d), and compliance with the maximum duration of the authorised stay under Article 21(4), authorities will take into account the result of verifications of hits resulting from a query launched by the VIS, using the European Search Portal, in the EU and Interpol information systems. Furthermore, authorities will also take into account watchlists and hits against specific risk indicators (see Article 13 MN 4).151 Currently, the Visa Handbook provides for consulates to ‘define “profiles” of applicants presenting a 147

ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 27–28, 31–32. ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para. 45. 149 ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 56–63; El Hassani, C‐403/16, EU:C:2017:960, para 36. 150 Article 8 Regulation (EU) 2017/2226 (OJ 2017 L 327/20) establishing an Entry/Exit System (EES); Articles 17a-19a Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS). 151 Article 2(3) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System. 148

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Chp. 3 Art. 22

Visa Code Regulation (EC) No 810/2009

specific risk’, according to local conditions and circumstances relating to political instability, high level of unemployment and wide-spread poverty and/or based on the stability of the applicant’s socio-economic situation (see also Article 48 MN 1).152 Under Article 39(3) consular authorities must, however, respect the principle of non-discrimination.

III. The possibility of an interview 3

Article 21(8) states that ‘in justified cases’, which, according to the Visa Handbook, includes cases when the examination of the visa application ‘does not allow for taking a final decision’,153 consulates or central authorities ‘may’ carry out an interview with the applicant and request additional documents, including remotely according to Recital 20 of amending Regulation (EU) 2019/1155. Under the Visa Code and as clarified by the ECJ in Koushkaki,154 it is the visa applicant’s responsibility to provide the relevant supporting documents to demonstrate that she meets the entry conditions of the Schengen Borders Code Regulation (EU) 2016/399. Article 21(8) establishes a discretion, not an obligation, for the consulate to request additional documents. However, some national courts have upheld challenges to visa refusal decisions by consulates based on lack of reliable information regarding the purpose and conditions of the stay. The Austrian High Administrative Court held in two cases that in the circumstances of the cases not granting the applicant the right to be heard before the visa was refused under the Regulation constituted a violation of procedural rules.155

Article 22 Prior consultation of central authorities of other Member States 1. On the grounds of a threat to public policy, internal security, international relations or public health, a Member State may require the central authorities of other Member States to consult its central authorities during the examination of applications lodged by nationals of specific third countries or specific categories of such nationals. Such consultation shall not apply to applications for airport transit visas. 2. The central authorities consulted shall reply definitively as soon as possible, but not later than seven calendar days after being consulted. The absence of a reply within that deadline shall mean that they have no grounds for objecting to the issuing of the visa. 3. Member States shall notify the Commission of the introduction or withdrawal of the requirement for prior consultation, as a rule, at the latest 25 calendar days before it becomes applicable. That information shall also be given under local Schengen cooperation in the jurisdiction concerned. 4. The Commission shall inform Member States of such notifications. 152

Commission Decision, C(2010) 1620 final, as amended, Part II, para 6.13. Commission Decision, C(2010) 1620 final, as amended, Part II, para 6.11. 154 ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 71–72. 155 See the Austrian High Administrative Court (Verwaltungsgerichtshof), 2011/21/0232, cited in Fundamental Rights Agency, Annual Report 2012, p. 93. See also Austrian High Administrative Court (Verwaltungsgerichtshof), 2010/21/0344, available at: http://www.ris.bka.gv.at/Vwgh/ [last accessed 31 March 2021]. 153

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Art. 22

Chp. 3

Content I. General scope................................................................................................... II. Appeals against visa refusal following prior consultation .....................

mn. 1 2

I. General scope As part of the visa application examination, central authorities may be required to 1 consult the central authorities of other Member States in accordance with Article 22. These provisions on prior consultation were carried over from the Common Consular Instructions (see above Article 1 MN 2) with the difference that Article 22 has shortened the deadline for a reply to a consultation to seven calendar days and that the list of the nationalities subject to prior consultation has been made public, although the identity of the Member States requiring such consultation is not.156 Prior consultation is currently required in relation to nationals of approximately 40 countries. In some cases, it relates only to holders of certain official passports or to specific categories of individuals identified by age and gender,157 with consular authorities bound nevertheless to respect the principle of non-discrimination while performing their tasks.158 The Commission reported in 2014 that the hit rate of such consultation was extremely low and that it was rare for visas to be refused as a result of prior consultation.159 Amending Regulation (EU) 2019/1155 has introduced a reference in Article 22(1) to ‘a threat to public policy, internal security, international relations or public health’ as the grounds for requiring prior consultation. This further clarifies that the purpose of prior consultation is to verify that the visa applicant ‘is not considered to be a threat to public policy, internal security or public health … or to the international relations of any of the Member States …’, which is a ground for visa refusal under Article 32(1)(a) (vi). However, in case of objections made by a Member State under prior consultation to the issuing of a uniform visa or in case of urgency precluding prior consultation from being carried out, the Member State examining the visa application can issue a limited territorial validity visa in accordance with Article 25(1). This is however generally excluded in cases of representation (see Article 8 MN 3). Prior consultation is carried out in accordance with the VIS Regulation, through the VISMail communication network.160

II. Appeals against visa refusal following prior consultation As mentioned above, prior consultation is a mutual recognition tool, which assists in 2 verifying that a visa applicant ‘is not considered to be a threat to public policy, internal security or public health … or to the international relations of any of the Member 156 Annex 16 to the Visa Code Handbook, available at: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/borders-and-visas/visa-policy/docs/prior_consultation_en.pdf [last accessed 13 April 2021]. 157 Commission Staff Working Document, SWD(2014) 101 final, p. 20. 158 See Article 39(3); Article 21 CFR and, for example, ECJ, Mangold, C-144/04, EU:C:205:709. 159 Commission Staff Working Document, SWD(2014) 101 final, p. 20. 160 Article 1(16) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System.

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Chp. 3 Art. 22

Visa Code Regulation (EC) No 810/2009

States…’, which is a ground for visa refusal under Article 32(1)(a)(vi). In this context, the Visa Handbook provides that the consulted Member State should ‘signal the precise reason for the negative reply’ to the consultation, listing the possible reasons as: ‘security’, ‘health’, and ‘international relations’, which are however not further defined. In the case of an objection by the consulted Member State based on one of these grounds, the consulting Member State will refuse the uniform visa, but may exceptionally decide to grant a limited territorial validity visa under Article 25(1). The visa refusal decision is communicated to the applicant via the standard form for notification and motivation of visa refusal annexed to the Visa Code. This form allows national authorities to tick-off pre-defined statements of reasons and is therefore highly problematic from the point of view of the right of appeal against a visa refusal decision in Article 32(2). Under the form, the Member State refusing the visa following an objection raised by another Member State during prior consultation will tick as the reason for the refusal that the visa applicant is a threat to either public policy/internal security, public health or the international relations of one or more Member States, without being expressly required to provide any further information. In this context, as Peers points out, it is difficult to see how the Member State refusing the visa, following prior consultation, can satisfy the obligation to give reasons for the visa refusal decision required by Article 32(2). 3 This issue was considered by the ECJ in the joined cases of R.N.N.S. and K.A.161 In the case, visa applicants were refused visas following objections raised during prior consultation. The applicants were notified of the visa refusal decisions via the standard form where the reason ticked was ‘one or more Member State(s) consider you to be a threat to public policy, internal security, public health … or the international relations of one or more of the Member States’. No information was provided with regard to which Member State objected to the issuing of the visas and why, with the Visa Code not expressly requiring it, and the applicants were not aware of the existence of any decisions concerning them in relation to public policy, internal security, public health or the international relations of any of the Member States. Under the national law of the Member State that adopted the visa refusal decision, it was not possible for the visa applicant to challenge the decision as to its substance, with the expectation that the applicant would bring proceedings before the courts of the Member State that raised the objection instead, but whose identity and reasons remained undisclosed. In this context, the visa applicants argued that they were deprived of effective judicial protection. 4 As a starting point, the ECJ clarified that EU (i.e. mutually recognised) exclusion decisions must be justified to be in conformity with the general principle of good administration and the right to an effective remedy in Article 47 CFR. Although the Court distinguished between, on the one hand, the final decision refusing a visa, whose legality will be examined by the courts of the Member State which adopted that decision in accordance with Article 32(3), and, on the other hand, the objection to the issuing of a visa raised by another Member State in the context of prior consultation, whose merits are to be reviewed by the courts of that Member State,162 it clarified the requirements imposed by the right of appeal in Article 32(3) of the Visa Code interpreted in light of Article 47 CFR. In accordance with Article 47 CFR, the visa applicant ‘must be able to ascertain the reasons upon which the decision taken in relation to him or her is based, …‘so as to make it possible for him or her to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court with jurisdiction, and in order to put the latter fully in a 161 162

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Art. 23

Chp. 3

position in which it may carry out the review of the lawfulness of the national decision in question’.163 This translates into an obligation for the national authorities adopting the visa refusal decision to indicate, in the section of the standard form entitled ‘Remarks’, the identity of the Member State that objected to the issuing of the visa, the specific ground for refusal based on that objection, and the essence of the reasons for the objection.164 Furthermore, the authorities of the Member State responsible for the visa refusal decision must indicate which authority of the Member State that raised the objection to the issuing of the visa the visa applicant can contact to ascertain the remedies available.165 With regard to the scope of the review under Article 32(3) of the Visa Code, which extends to ascertaining whether the decision is based on a sufficiently solid factual basis,166 the national courts of the Member State responsible for adopting the visa refusal decision must be able to check whether the applicant was correctly identified as the subject of the objection at issue, and that procedural guarantees, such as the obligation to state reasons, were respected.167 The Court went, however, a step further, attending to the issue of the difficulties involved in challenging two different decisions in two different Member States. It stated that, without prejudice to the principle of national procedural autonomy, ‘it is for the Member State which adopts a final decision refusing a visa to establish procedural rules which help to ensure that the rights of defence and the right to an effective remedy of visa applicants are guaranteed, such as a request for information to the competent authorities of the Member States that objected to the issuing of a visa, the possibility for those authorities to intervene in the appeal procedure under Article 32(3) of the Visa Code or any other mechanism ensuring that the appeal brought by those applicants cannot be dismissed definitively without their having had the practical possibility of exercising their rights’.168

Article 23 Decision on the application 1. Applications shall be decided on within 15 calendar days of the date of the lodging of an application which is admissible in accordance with Article 19. 2. That period may be extended up to a maximum of 45 calendar days in individual cases, notably when further scrutiny of the application is needed. 2a. Applications shall be decided on without delay in justified individual cases of urgency. 4. Unless the application has been withdrawn, a decision shall be taken to: (a) issue a uniform visa in accordance with Article 24; (b) issue a visa with limited territorial validity in accordance with Article 25; (ba) issue an airport transit visa in accordance with Article 26; or (c) refuse a visa in accordance with Article 32. The fact that fingerprinting is physically impossible, in accordance with Article 13 (7)(b), shall not influence the issuing or refusal of a visa.

163

ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 43. ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 46. 165 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 52. 166 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, paras 48–49; ECJ, Fahimian, C‐544/15, EU:C:2017:255, paras 45–46. 167 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 51. 168 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 54. 164

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Chp. 3 Art. 23

Visa Code Regulation (EC) No 810/2009 Content

I. Time limits ....................................................................................................... II. Possible decisions and the right of appeal ................................................

mn. 1 2

I. Time limits 1

Article 23(1) establishes a general time limit of 15 days for national authorities to reach a decision on a visa application once it is considered admissible under Article 19. The Commission and the European Parliament have so far been unsuccessful in their attempts to introduce a shorter time limit. According to the Commission, most decisions are taken in 5 days and some Member States use short decision making times as a deliberate means of attracting travellers, causing visa shopping.169 By virtue of the conditionality mechanism in Article 25a, introduced to further strengthen the legal link between visa policy and cooperation on readmission by third countries, the application of the 15 day time limit can be temporarily suspended in relation to applicants or categories of applicants who are nationals of countries which are considered as uncooperative in the field of readmission, in accordance with a Council implementing decision adopted under Article 25a(5)(a). The conditionality mechanism in Article 25a also creates the possibility for the Council, in the case a third country is considered cooperative in the field of readmission, to adopt an implementing decision to reduce the time limit for decisions to 10 days. Article 23(2), providing for an extension of the time limit, is relevant in cases subject to prior consultation in accordance with Article 22. Article 23(2a), on expediting ‘justified individual cases of urgency’, has been introduced by amending Regulation (EU) 2019/1155. It is vague and accordingly its practical significance for individuals may be limited. Article 23 is without prejudice to visa facilitation agreements between the EU and third countries which normally provide for a shorter time limit to decide on applications.170 It is also without prejudice to the Free Movement Directive 2008/34/EC, with Article 5(2) of the Directive providing that visas to third country nationals family members must be issued ‘as soon as possible and on the basis of an accelerated procedure’.

II. Possible decisions and the right of appeal 2

Article 23(4) envisages four possible decisions on a visa application. The use of the word ‘or’ seems to suggest that if a visa applicant applies for a uniform visa but is issued with an LTV visa instead, there is no decision refusing a uniform visa and therefore no right of appeal. Peers points out however that: ‘… in light of the obvious differences between LTV and uniform visas, the better view is that refusing an application for a uniform visa and issuing an LTV visa instead amounts to a refusal of the original application for the purpose of the [Visa] Code. This means that the obligation to notify the refusal and the reasons for it, and the right to appeal, are still applicable’.171

169

Commission Proposal, COM(2018) 252 final, p. 10. See for example Article 7 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). 171 Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law, p. 251, 261, footnote 97. 170

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Art. 24

Chp. 3

CHAPTER IV Issuing of the visa Article 24 Issuing of a uniform visa 1. The period of validity of a visa and the length of the authorised stay shall be based on the examination conducted in accordance with Article 21. A visa may be issued for one, two or multiple entries. The period of validity shall not exceed five years. Without prejudice to point (a) of Article 12, the period of validity of a visa for one entry shall include a ‘period of grace’ of 15 calendar days. Member States may decide not to grant such a period of grace for reasons of public policy or because of the international relations of any of the Member States. 2. Provided that the applicant fulfils the entry conditions set out in point (a) and points (c) to (e) of Article 6(1) of Regulation (EU) 2016/399, multiple-entry visas with a long validity shall be issued for the following validity periods, unless the validity of the visa would exceed that of the travel document: (a) for a validity period of one year, provided that the applicant has obtained and lawfully used three visas within the previous two years; (b) for a validity period of two years, provided that the applicant has obtained and lawfully used a previous multiple-entry visa valid for one year within the previous two years; (c) for a validity period of five years, provided that the applicant has obtained and lawfully used a previous multiple-entry visa valid for two years within the previous three years. Airport transit visas and visas with limited territorial validity issued in accordance with Article 25(1) shall not be taken into account for the issuing of multiple-entry visas. 2a. By way of derogation from paragraph 2, the validity period of the visa issued may be shortened in individual cases where there is reasonable doubt that the entry conditions will be met for the entire period. 2b. By way of derogation from paragraph 2, consulates shall, within local Schengen cooperation, assess whether the rules on the issuing of the multiple-entry visas set out in paragraph 2 need to be adapted to take account of local circumstances, and of migratory and security risks, in view of the adoption of more favourable or more restrictive rules in accordance with paragraph 2 d. 2c. Without prejudice to paragraph 2, a multiple-entry visa valid for up to five years may be issued to applicants who prove the need or justify their intention to travel frequently or regularly, provided that they prove their integrity and reliability, in particular the lawful use of previous visas, their economic situation in the country of origin and their genuine intention to leave the territory of the Member States before the expiry of the visa for which they have applied. 2d. Where necessary, on the basis of the assessment referred to in paragraph 2b of this Article, the Commission shall, by means of implementing acts, adopt the rules regarding the conditions for the issuing of multiple-entry visas laid down in paragraph 2 of this Article, to be applied in each jurisdiction in order to take account of local circumstances, of the migratory and security risks, and of the Union’s overall relations with the third country in question. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 52(2). Meloni

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Chp. 3 Art. 24

Visa Code Regulation (EC) No 810/2009

3. The data set out in Article 10(1) of the VIS Regulation shall be entered into the VIS when a decision on issuing such a visa has been taken. Content I. Length of the authorised stay and period of validity of the visa ......... II. Overstay ............................................................................................................ III. Multiple-entry visas........................................................................................

mn. 1 2 3

I. Length of the authorised stay and period of validity of the visa 1

When, following the examination of the visa application in accordance with Article 21, and, where applicable, Article 22, the decision is taken to issue a uniform visa, as envisaged in Article 23(4)(a), Article 24 regulates the period of validity of the visa and the length of the authorised stay. As seen above (see Article 1 MN 10–12), the length of stay cannot exceed 90 days in any 180-day period, with Article 33 providing for the possibility of an extension in limited unforeseen circumstances.172 This is a maximum limit and in practice the authorised length of stay (and validity of the visa) in any given case will reflect the purpose of the journey and the applicant’s profile as revealed by the visa application examination so that it can be significantly shorter than 90 days. In the case of single-entry uniform visas, in particular, the length of the authorised stay and the validity of the visa will strictly reflect the purpose of the visit. The period of validity of the visa is a separate concept from the length of stay. The validity of a single-entry visa will reflect the length of the authorised stay plus a 15 day ‘period of grace’, which is meant to give the visa holder some flexibility in case minor changes to her travel plan become necessary, but it is open to the Member States not to grant the 15 days for reasons of public policy or because of the international relations of any of the Member States. Visas allowing for multiple entries, on the other hand, will have a period of validity of one, two or five years. The percentage of multiple-entry visas in relation to the total number of uniform visas issued by the Member States has steadily grown to 60 %, with most multiple-entry visas issued under the provisions of visa facilitation agreements.173 So far, there have been wide variations among the Member States as to the percentage of multiple-entry visas issued, and a tendency to issue multiple-entry visas with a period of validity not exceeding one year.174

II. Overstay 2

In case an individual overstays the authorised stay in her visa, the Return Directive 2008/115/EC becomes applicable. According to the Return Handbook, when a significant overstay is detected during exit controls, a Member State may, subject to a case-bycase assessment and the principle of proportionality, launch a return decision and, in 172 An extension is granted where the visa holder is within the territory of the Member States, but it is also possible for consulates to issue a new visa to an applicant who has already used a visa for a stay of 90 days within the relevant 180 day period under Article 25(1)(b). 173 See for example Article 5 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). 174 Commission Report, COM(2020) 779 final, p. 8; Staff Working Document, SWD(2018) 77 final, p. 14. The Commission publishes annual statistics but there is no specific data on the exact length of validity of the multiple-entry visas issued, see https://ec.europa.eu/home-affairs/what-we-do/policies/ borders-and-visas/visa-policy_en#stats [last accessed 5 May 2021].

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certain circumstances, an entry ban procedure. According to the Handbook, it is possible for a Member State to launch the procedure once knowledge of the overstay is acquired and complete it ‘in absentia’ if national law so allows provided that the national procedure complies with the right to be heard and the right to a fair trial, including the right to a hearing. The issuing of an entry ban in these circumstances is however a narrow discretion which is subject to the principles mentioned above and which should be exercised in accordance with the general objective of promoting voluntary departure.175 Entry bans will be recorded in the SIS, but even in cases where no action is taken by national authorities, overstays and deviations from the authorised stay, in terms of the Member State from where the individual leaves the EU, will be captured by the EES.176 In light of the interoperability between the EES and the VIS, this information will become the ‘visa history’ of the individual which is examined by national authorities on the occasion of new visa applications.177

III. Multiple-entry visas Article 24(2) provides for the mandatory issuing of multiple-entry visas with a long 3 validity according to a ‘cascade’ system, with some safeguards, which are subject to a narrow interpretation (Article 24(2a)), and the possibility of adapting the rules in each jurisdiction to take into account local circumstances (Article 24(2b) and (2d)). These new rules are among the most significant amendments introduced by Regulation (EU) 2019/1155. The Commission had supported their introduction since its 2014 recast proposal with a view to lessening the administrative burden on consulates by reducing the number of applications to be processed, facilitating bona fide regular travel and preventing visa-shopping as it results from the lack of a uniform approach to the issuing of multiple-entry visas. Multiple-entry visas may contribute to reduce the effect that visa policy has of decreasing the outflows of migrants,178 contrary to the perception of consulates that visas with a long validity increase migratory risk.179 Prior to these amendments, the Visa Code already contained provisions on the mandatory issuing of multiple-entry visas but these were considered largely ineffective by the Commission as a result of their unclear formulation.180 The old provisions are nevertheless preserved in Article 24(2c) and provide cases of possible eligibility for multiple-entry visas in addition to those established by Article 24(2). Some changes have however been introduced. In particular, Article 24(2c) no longer establishes an obligation to issue multiple-entry visas but rather a discretion. This and the imprecise formulation of the provision means that it will continue to be of little practical benefit to individuals and not conducive to a harmonised approach. Moreover, Article 24(2c) no longer refers to family members of EU citizens, family members of third country nationals legally 175

Commission Recommendation, C(2017) 6505 final, paras 5.1 and 11.3–4. Under Article 12 Regulation (EU) 2017/226 (OJ 2017 L 327/20) establishing an entry/exit system (EES), the EES automatically generates a list of overstayers (persons for whom there is no exit data following the date of expiry of their authorised stay) available to the competent national authorities to enable them to adopt appropriate measures, with the data retained for 5 years. See also Article 16 of the EES Regulation on information included in the EES individual file. 177 Article 8 Regulation (EU) 2017/2226 (OJ 2017 L 327/20) establishing an Entry/Exit System (EES); Articles 17a-19a Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS). 178 For an analysis of the effect of visa policy on migratory flows, see Czaika/de Haas, The Effect of Visas. 179 Commission Staff Working Document, SWD(2018) 77 final, p. 14. 180 Commission Staff Working Document, SWD(2018) 77 final, p. 13 and 18. 176

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Chp. 3 Art. 25

Visa Code Regulation (EC) No 810/2009

residing in the Member States, representatives of civil society organizations, etc. as specific categories of third country nationals that should benefit from multiple-entry visas, which had been the only clear aspect of the provision. As mentioned above (see Article 1 MN 6), this has been justified on the ground that multiple-entry visas ‘should not be limited to specific travel purposes or categories of applicants’, although Member States are expected to ‘have particular regard for persons travelling for the purpose of exercising their profession such as business people, seafarers, artists and athletes’.181 Visa facilitation agreements between the EU and third countries cover the specific categories previously included in Article 24(2c), as well as additional categories, providing, inter alia, for more generous rules on multiple-entry visas than the Visa Code.182 4 By virtue of the conditionality mechanism in Article 25a, introduced to further strengthen the legal link between visa policy and cooperation on readmission by third countries, the application of Article 24(2) and (2c) can be temporarily suspended in relation to applicants or categories of applicants who are nationals of countries which are considered as uncooperative in the field of readmission, in accordance with a Council implementing decision adopted under Article 25a(5)(a). The conditionality mechanism in Article 25a also creates the possibility for the Council, in the case a third country is considered as cooperating sufficiently in the field of readmission, to adopt an implementing decision whereby applicants or categories of applicants who are nationals of that country will benefit from an increase in the period of validity of multiple-entry visas under Article 24(2).

Article 25 Issuing of a visa with limited territorial validity 1. A visa with limited territorial validity shall be issued exceptionally, in the following cases: (a) when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations, (i) to derogate from the principle that the entry conditions laid down in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code must be fulfilled; (ii) to issue a visa despite an objection by the Member State consulted in accordance with Article 22 to the issuing of a uniform visa; or (iii) to issue a visa for reasons of urgency, although the prior consultation in accordance with Article 22 has not been carried out; or (b) when for reasons deemed justified by the consulate, a new visa is issued for a stay during the same 180-day period to an applicant who, over this 180-day period, has already used a uniform visa or a visa with limited territorial validity allowing for a stay of 90 days. 2. A visa with limited territorial validity shall be valid for the territory of the issuing Member State. It may exceptionally be valid for the territory of more than one Member State, subject to the consent of each such Member State. 3. If the applicant holds a travel document that is not recognised by one or more, but not all Member States, a visa valid for the territory of the Member States 181 182

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Art. 25

Chp. 3

recognising the travel document shall be issued. If the issuing Member State does not recognise the applicant’s travel document, the visa issued shall only be valid for that Member State. 4. When a visa with limited territorial validity has been issued in the cases described in paragraph 1(a), the central authorities of the issuing Member State shall circulate the relevant information to the central authorities of the other Member States without delay, by means of the procedure referred to in Article 16(3) of the VIS Regulation. 5. The data set out in Article 10(1) of the VIS Regulation shall be entered into the VIS when a decision on issuing such a visa has been taken. Content I. II. III. IV.

Scope .................................................................................................................. Rights of appeal............................................................................................... Does Article 25 establish an obligation to issue LTV visas?................. Statistics on LTV visas...................................................................................

mn. 1 4 5 6

I. Scope As seen above, once the examination of the visa application under Article 21, and 1 where applicable Article 22, is completed, Article 23 envisages four possible decisions, including the issuing of a limited territorial validity (LTV) visa under Article 25, defined in Article 2 as ‘a visa valid for the territory of one or more Member States but not all Member States’. One question that arises is whether Article 25(1), in light of the use of the term ‘shall’, has the effect of precluding the Member States from issuing uniform visas in all the cases that it lists. As Peers points out, such an interpretation is possible only if the cases listed in Article 25(1) correspond to the grounds for visa refusal in Article 32(1), since the ECJ has clarified, in Koushkaki, that the grounds for refusing a visa in Article 32(1) are exhaustive to the effect that no further grounds can be added.183 This interpretation is supported by the reference in Article 32(1) to Article 25(1). Accordingly, the purpose of Article 25(1) appears to be to establish derogations from Article 32(1). Article 25(1)(a)(i) provides for the issuing of an LTV visa when the entry conditions in Article 6 of the Schengen Borders Code Regulation (EU) 2016/399 are not fulfilled, with such entry conditions corresponding to the grounds for visa refusal under Article 32(1). Article 6(1)(a) of the Schengen Borders Code Regulation (EU) 2016/399 establishes, however, additional requirements in relation to the temporal validity of the travel document which are not mentioned in Article 32(1), but which are set out in Article 12 and constitute conditions for the admissibility of the visa application under Article 19. In this context, the situation is unclear in relation to the case of an application that is inadmissible, because the visa applicant’s travel document does not meet the temporal validity requirements in Article 12, but is nevertheless considered admissible under Article 19(4) on humanitarian grounds, for reasons of national interest or because of international obligations.184 The Visa Code is not clear as to whether a uniform visa or an LTV visa should be issued in these circumstances. The uncertainty results from the fact that the only ground for refusing a uniform visa in 183 Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum, p. 251, 261. ECJ, Koushkaki, C-84/12, EU:C:2013:862. 184 As regards entry in such circumstances, see Article 6(5)(c) of the Schengen Borders Code Regulation (EU) 2016/399.

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Chp. 3 Art. 25

Visa Code Regulation (EC) No 810/2009

relation to the applicant’s travel document which is mentioned in Article 32 relates to the document’s genuineness, as emphasized by the ECJ in Air Baltic Corporation.185 Indeed, although Article 21, on verification of entry conditions, provides that it shall be ascertained whether the applicant fulfils the entry conditions set out in Article 6 of the Schengen Borders Code Regulation (EU) 2016/399, the Article only specifically refers, in relation to the travel document of the visa applicant, to an examination of its genuineness. On the other hand, Article 24, on determining the period of validity of a uniform visa and the length of the authorised stay in any given case, refers to the obligation for the visa applicant to satisfy all entry conditions in the Schengen Borders Code Regulation (EU) 2016/399, including those in Article 6(1)(a) in order to be issued with a multiple-entry visa. In the same way, Article 35, on the issuing of visas at the border, establishes that visas may be issued at the border provided, inter alia, that the applicant fulfils the entry conditions in Article 6 of the Schengen Borders Code Regulation (EU) 2016/399. 2 Article 25(1)(a)(ii) cover cases where a visa would be refused under Article 32(i)(a) (vi) on the ground that the visa applicant is considered a threat to a fundamental interest of a Member State. This is so as the purpose of prior consultation under Article 22 is to establish that a visa applicant is not considered to be a threat to public policy, internal security or public health or to the international relations of any Member State (see Article 22 MN 1). In this context, Article 25(1)(a)(iii) is more problematic as it covers circumstances where prior consultation is not carried out because of urgency so that, strictly speaking, the visa applicant cannot be considered a threat to a Member State as required by Article 32(i)(a)(vi). In this context, it needs to be clarified that, consistently with the interpretation of the purpose of Article 21 by the ECJ in Koushkaki (see Article 21 MN 1), prior consultation under Article 22 is a means to establish whether a ground for visa refusal exists and not, in itself, a condition for issuing a uniform visa. However, in order to avoid a situation where Article 22 is devoid of meaning and given that the Visa Code pursues, inter alia, security objectives and, for this purpose, leaves to the Member States a wide discretion in assessing whether a third country national poses a threat,186 it could be argued that Article 32(i)(a)(vi) requires that for a uniform visa to be issued prior consultation, when required, is carried out. In this context, Article 25(1)(a)(iii) provides some flexibility by stating that, when prior consultation is not possible, an LTV visa is to be issued providing the relevant conditions are met. Article 25(1)(b) covers visa refusal, under Article 32(1)(a)(iv), in the case of a visa applicant who has already stayed for 90 days in a given 180-day period. Although the general purpose of Article 25(1) is to establish derogations from Article 32(1), Article 25(1) does not expressly provide for the issuing of an LTV visa in the case when a uniform visa is refused, in accordance with Article 32(1)(a)(vii), because the visa applicant does not provide proof of holding travel medical insurance. This is the result of the fact that Article 25(1)(a)(1) refers to the entry conditions in the Schengen Borders Code Regulation (EU) 2016/399, which do not include travel medical insurance, rather than the conditions for refusing a visa in Article 32 (see MN 1). The situation is the same for LTV visas issued at the border under Article 35(4). On the other hand, travel medical insurance may be waived in case of (uniform) visas issued at the border under Article 35(2). Furthermore, Article 15(3) establishes travel medical insurance requirements specifically in relation to LTV visas covering the territory of more than one Member State. 185 186

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LTV visas issued under Article 25(1) are normally valid for the territory of the issuing 3 Member State only. Article 25(4) and 5 provides for data relating to LTV visas to be entered into the VIS and for information to be exchanged through the VISMail communication network in accordance with Article 10(da) and Article 16(3) of the VIS Regulation.187 Article 25(3) provides rules for the issuing of LTV visas in cases where a travel document is not recognised by one or more Member States. Article 2(7) defines ‘recognised travel document’, and the list of such documents is drawn pursuant to Decision 1105/2011/EU (see Article 12 MN 2). The list is incorporated in the VIS to enable automatic verification.188 Recital 30 of the Visa Code clarifies that the conditions governing the issue of visas do not affect the rules currently governing recognition of the validity of travel documents.

II. Rights of appeal On the basis of Article 23, it is unclear whether an applicant who is refused a uniform 4 visa and issued instead with an LTV visa can appeal against the uniform visa refusal in accordance with Article 32(3) (see above Article 23 MN 2). With regard to refusal of an LTV visa, the Regulation does not expressly provide for a right of appeal as in cases of uniform visa refusal, annulment and revocation. The significance of this omission, from the perspective of Article 47 CFR, is linked to the question of whether Article 25(1) establishes an obligation for the Member States to issue LTV visas when the relevant conditions are satisfied and a consequent right to an LTV visa.

III. Does Article 25 establish an obligation to issue LTV visas? It has been argued that the reasoning of the ECJ in Koushkaki (see below Article 32 5 MN 6) can be applied by analogy to Article 25(1), particularly in light of the use of the term ‘shall’, to the effect that applicants who satisfy the relevant conditions for the issuing of LTV visas in Article 25(1) are entitled to such visas.189 The purpose of Article 25(1) appears to be to regulate derogations by the Member States from Article 32(1) and the term ‘exceptionally’, in this context, may be taken to refer to the obligation to approach derogations narrowly. Subject to the requirement of a narrow approach, the conditions for issuing an LTV visa in Article 25(1) are vaguely formulated and appear to leave a high degree of discretion to the Member States, by providing that LTV visas shall be issued ‘when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. The result is that it would be extremely difficult for an individual to challenge a decision to refuse an LTV visa, particularly when no procedural shortcomings are evident. However, as Peers points out, the situation is different when international obligations are involved as ‘arguably, the binding nature of the relevant international obligations, … override[s] the discretion 187

Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS). See Article 1(6) and (11) Regulation 2021/1134 (OJ 2021 L 248/11) amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 and repealing Council Decisions 2004/512/EC and 2008/ 633/JHA, for the purpose of reforming the Visa Information System. 189 Peers, ‘External processing of applications for international protection in the EU’, EU Law Analysis Blog of 24 April 2014, available at: http://eulawanalysis.blogspot.co.uk/2014/04/last-autumns-huge-lossof-lives-near.html [last accessed 06 April 2021]; Jensen, Humanitarian Visas, p. 16–17; ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 47–55. 188

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suggested by the words “considers it necessary”’.190 In this context, it is recognised that while states are free to control the entry and residence of aliens into their territory as part of their sovereignty, state sovereignty in this area is not absolute. Principles of general international law and obligations arising out of treaties limit state discretion as to entry, transit, residence and expulsion of aliens.191 Before the judgements of the ECtHR in M. N. and Others v. Belgium and the ECJ in X and X (see Article 1 MN 11), in the context of the use of visas as an interdiction measure, a question which emerged with particular force was whether the prohibition of refoulement in instruments such as the Geneva Convention, the ECHR and the CFR was applicable to such extraterritorial settings as the issuing of visas, in which case LTV visas could be used by the Member States to fulfil such obligations.192 In M. N. and Others v. Belgium, the ECtHR was called to clarify whether Belgium was in breach of Article 3 ECHR by refusing humanitarian visas to a family from Syria who intended to enter Belgium to claim asylum. The ECtHR found that in the circumstances of the case Belgium did not exercise jurisdiction over the visa applicants within the meaning of Article 1 ECHR and could therefore not be held liable for acts or omissions allegedly constituting a breach of the Convention. The Court reiterated that jurisdiction within the meaning of Article 1 ECHR is primarily territorial. While jurisdiction may exceptionally be exercised extraterritorially, that requires a finding that the state has in the circumstances of the case exercised a certain degree of authority or control over the individuals concerned.193 This was found by the Court not to be so in relation to the visa refusal decision in the case.194 Furthermore, the Court found that there was no other ‘jurisdictional link’ between the applicants and Belgium as it could have resulted if the applicants had pre-existing ties of family or private life with Belgium.195 In such a situation, the general impression is that LTV visas are generally accessible by individuals only through special channels controlled by the Member States (see Article 8 MN 3).

IV. Statistics on LTV visas 6

No comprehensive statistics are available on the number of LTV visas issued for the period since the Visa Code entered into force. Generally, the number of LTV visas 190 Peers, ‘External processing of applications for international protection in the EU’, EU Law Analysis Blog of 24 April 2014, available at: http://eulawanalysis.blogspot.co.uk/2014/04/last-autumns-huge-lossof-lives-near.html [last accessed 06 April 2021]; Jensen, Humanitarian Visas, p. 20. 191 For an overview of the international obligations in the context of visas, see Meloni, Visa Policy, p. 7–24. 192 This question has been considered in great depth by scholars. See for example Noll, Seeking Asylum; Goodwin-Gill/McAdam, The Refugee, p. 244–252; Lauterpacht/Bethlehem, in Feller/Türk/Nicholson (eds), Refugee Protection, p. 109–128; Hathaway, The Rights of Refugees, p. 160–171; den Heijer, Europe and Extraterritorial Asylum, p. 120–141; Moreno Lax, ‘Must EU Borders have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers’ Sanctions with EU Member States’ Obligations to Provide International Protection’, EJML 10 (2008), p. 315–364; Moreno Lax, Accessing Asylum, p. 247–394. On national courts’ attitudes to the extraterritorial application of the Geneva Convention, see the US Supreme Court, Sale v. Haitian Center Council, Judgment of 21 June 1993, (1993) 113 S.Ct 2549, paras 181–182; UK House of Lords, R (European Roma Rights Centre) v. Immigration Officer at Prague Airport, Judgment of 9 December 2004, [2004] UKHL 55, paras 17,64,70. On domestic cases relating to visa/entry refusal interfering with ECHR’s rights see, for example, UK Court of Appeal, Judgment of 30 April 2002, R v. Secretary of State for the Home Department, ex parte Louis Farrakhan [2002] EWCA Civ 606, para 55; UK Supreme Court, Judgment of 12 November 2014, R (Lord Carlile of Berriew) v. Secretary of State for the Home Department [2014] UKSC 60; and UK Supreme Court, Judgment of 26 February 2021, R (Begum) v. Secretary of State for the Home Department [2021] UKSC 7. 193 ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 98–108. 194 ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 118–119. 195 ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 109 and 115.

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issued by the Member States is very low, with 0.76 % visa applicants receiving LTV visa in 2019.196 LTV visas are issued primarily to bypass the prior consultation procedure in Article 22.197 However, before the ECJ judgment in X and X (Article 1 MN 11), some Member States also used to issue LTV visas to family members who did not meet the legal requirements for family reunion and to asylum seekers in certain circumstances,198 with 16 Member States having available Schengen visas for such humanitarian purposes.199

Article 25a Cooperation on readmission 1. Depending on the level of cooperation of a third country with Member States on the readmission of irregular migrants, assessed on the basis of relevant and objective data, Article 14(6), Article 16(1), point (b) of Article 16(5), Article 23(1), and Article 24(2) and (2c) shall not apply to applicants or categories of applicants who are nationals of a third country that is considered not to be cooperating sufficiently, in accordance with this Article. 2. The Commission shall regularly assess, at least once a year, third countries’ cooperation with regard to readmission, taking account, in particular, of the following indicators: (a) the number of return decisions issued to persons from the third country in question, illegally staying on the territory of the Member States; (b) the number of actual forced returns of persons issued with return decisions as a percentage of the number of return decisions issued to nationals of the third country in question including, where appropriate, on the basis of Union or bilateral readmission agreements, the number of third country nationals who have transited through the territory of the third country in question; (c) the number of readmission requests per Member State accepted by the third country as a percentage of the number of such requests submitted to it; (d) the level of practical cooperation with regard to return in the different stages of the return procedure, such as: (i) assistance provided in the identification of persons illegally staying on the territory of the Member States and in the timely issuance of travel documents; (ii) acceptance of the European travel document for the return of illegally staying third-country nationals or laissez-passer; (iii) acceptance of the readmission of persons who are to be legally returned to their country; (iv) acceptance of return flights and operations. Such an assessment shall be based on the use of reliable data provided by Member States, as well as by Union institutions, bodies, offices and agencies. The Commission shall regularly, at least once a year, report its assessment to the Council.

196 Available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/visa-policy/index_en.htm [last accessed 06 April 2021]. 197 Commission Staff Working Document, SWD(2014) 101 final, p. 24; Meloni, The Community Code, p. 684. 198 See ECtHR, Judgment of 5 May 2020, No 3599/18, M. N. and Others v. Belgium, paras 50–51. 199 Jensen, Humanitarian Visas, p. 6.

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3. A Member State may also notify the Commission if it is confronted with substantial and persisting practical problems in the cooperation with a third country in the readmission of irregular migrants on the basis of the same indicators as those listed in paragraph 2. The Commission shall immediately inform the European Parliament and the Council of the notification. 4. The Commission shall examine any notification made pursuant to paragraph 3 within a period of one month. The Commission shall inform the European Parliament and the Council of the results of its examination. 5. Where, on the basis of the analysis referred to in paragraphs 2 and 4, and taking into account the steps taken by the Commission to improve the level of cooperation of the third country concerned in the field of readmission and the Union’s overall relations with that third country, including in the field of migration, the Commission considers that a country is not cooperating sufficiently and that action is therefore needed, or where, within 12 months, a simple majority of Member States have notified the Commission in accordance with paragraph 3, the Commission, while continuing its efforts to improve the cooperation with the third country concerned, shall submit a proposal to the Council to adopt: (a) an implementing decision temporarily suspending the application of any one or more of Article 14(6), point (b) of Article 16(5), Article 23(1), or Article 24(2) and (2c), to all nationals of the third country concerned or to certain categories thereof; (b) where, following an assessment by the Commission, the measures applied in accordance with the implementing decision referred to in point (a) of this paragraph are considered ineffective, an implementing decision applying, on a gradual basis, one of the visa fees set out in Article 16(2a) to all nationals of the third country concerned or to certain categories thereof. 6. The Commission shall continuously assess and report on the basis of the indicators set out in paragraph 2 whether substantial and sustained improvement in the cooperation with the third country concerned on readmission of irregular migrants can be established and, taking also account of the Union’s overall relations with that third country, may submit a proposal to the Council to repeal or amend the implementing decisions referred to in paragraph 5. 7. At the latest six months after the entry into force of the implementing decisions referred to in paragraph 5, the Commission shall report to the European Parliament and to the Council on progress achieved in that third country’s cooperation on readmission. 8. Where, on the basis of the analysis referred to in paragraph 2 and taking account of the Union’s overall relations with the third country concerned, especially in cooperation in the field of readmission, the Commission considers that the third country concerned is cooperating sufficiently, it may submit a proposal to the Council to adopt an implementing decision concerning applicants or categories of applicants who are nationals of that third country and who apply for a visa on the territory of that third country, providing for one or more of the following: (a) reduction of the visa fee referred to in Article 16(1) to EUR 60; (b) reduction of the time within which decisions on an application referred to in Article 23(1) are to be made to 10 days; (c) increase in the period of validity of multiple-entry visas under Article 24(2). That implementing decision shall apply for a maximum of one year. It may be renewed.

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I. Drafting history and objectives Article 25a provides a ‘legal link’ between visa policy and readmission by establishing 1 a mechanism through which visa procedures may be adapted, though a Council’s decision, in response to the level of cooperation by third countries in the field of readmission. The idea of using visa policy to exert pressure on third countries to cooperate on migration management, effectively externalising migration control to some extent, has been around for a long time at EU level.200 Some of the Member States themselves have experienced such pressure from third countries including the United States and Canada.201 Evidently, conditionality is inherent in the EU visa policy at a very basic level in light of the criteria for adopting the ‘black’ and ‘white’ lists under the Visa List Regulation (EU) 2018/1806. However, over time, the EU has attempted to develop conditionality in the field of visa policy into more articulate forms. Thus, it has concluded several visa facilitation agreements with third countries in exchange for the conclusion of readmission agreements, has established visa liberalization roadmaps, action plans and ‘visa dialogues’ with several third countries, and has adopted the suspension mechanism in Article 8 of the Visa List Regulation (EU) 2018/1806, which has contributed to pave the way politically for visa free status for countries such as Ukraine and Moldova.202 With the objective of achieving an effective common policy on return acquiring 2 increasing prominence,203 and the necessity to secure readmission by third countries for this purpose,204 the EU has been considering further ways to exert pressure on third countries to cooperate on readmission, through measures in the field of visa policy and other policy fields.205 In May 2017 the Council adopted the so called ‘visa policy toolbox’. This was a mechanism led by COREPER to coordinate the Member States’ discretion under the Visa Code so that it would be used in a way to incentivise third countries to cooperate on readmission. Accordingly, it established some indicators to measure cooperation, which were very similar to those in Article 25a, and a set of measures that the Member States would take incrementally in relation to non-cooperative third countries, starting with suspending the visa waiver or visa fee waiver for holders of diplomatic passports, and continuing with measures of general application such as reducing the opening hours of the visa sections of consulates or closing them altogether, including external service providers, increasing the number of supporting documents required or varying the length of validity of multiple-entry visas.206 It is unclear to what extent the ‘visa policy toolbox’ was a response to the unwillingness of some third countries to conclude readmission agreements with the EU in exchange for visa facilitation agreements. Progress in negotiations with countries in the southern 200

Meloni, Visa Policy, p. 179–183. Commission Communication, COM(2017) 227 final, p. 4; Meloni, EU Visa Policy, p. 657–661. 202 Meloni, EU Visa Policy, p. 654–657; on the wider context of mobility partnerships and the subsequent Mobility Partnership Framework, see Tittel-Mosser, Implementing EU Mobility. 203 Commission Communication, COM(2020) 609 final, para 2.5. 204 See Commission Communication, COM(2020) 609 final, para 6.5; Commission Communication, COM(2021) 56 final. 205 See draft Article 7 proposal for an Asylum and Migration Management Regulation, COM(2020) 610 final, whereby the assessment under Article 25a could also contribute to the process of identifying incentives in policy areas beyond visas to improve cooperation on readmission. 206 See Council doc. 9097/17 of 12 May 2017; Council doc. 9097/1/17 REV 1 of 19 May 2017, available at: https://www.statewatch.org/media/documents/news/2017/jul/eu-council-diplomstic-visas-redmin-9097rev-1-17.pdf [last accessed 1 April 2021]. 201

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neighbourhood, such as Morocco, Tunisia and Jordan, has been limited, as these countries consider that readmission agreements are not in their interest and that the visa facilitations offered by the EU are not substantial enough to justify concessions in this area.207 The ‘visa policy toolbox’ was used only once against a third country in September 2017. Arguably, it is doubtful whether the mechanism was compatible with the Visa Code, but also whether it was capable of bringing about effective coordination of the Member States’ practices. 3 In the context of the Commission 2014 recast proposal, the Council proposed to give the ‘visa policy toolbox’ a legal basis in the Visa Code. Subsequently, amending Regulation (EU) 2019/1155 introduced Article 25a, with some variations from the original proposal following a Franco-German initiative.208 Article 25a establishes a central role for the Council. Accordingly, it is the Council rather than the Commission that will adopt the relevant implementing decisions, in accordance with Article 291(2) TFEU, on account of the sensitive political nature of the measures in question and their horizontal implications for the Member States and the Union, particularly in terms of external relations and the functioning of the Schengen area.209 Similarly, under Article 25a(5), a simple majority of the Member States may trigger a Commission proposal for a Council implementing decision. A second change from the original proposal, which was also supported by the European Parliament, is the possibility of introducing visa facilitations for nationals of third countries which are considered cooperative under Article 25a(8). Article 25a(2) establishes indicators to assess the level of cooperation in readmission by third countries. These are very similar to the indicators that were envisaged by the ‘visa policy toolbox’. The EU’s overall relations with the third country, including in the field of migration, will also be taken into account under Article 25a(5). However, these indicators are very vague. Unlike in the case of the indicators used in the suspension mechanism of the Visa List Regulation (EU) 2018/1806, there are no numerical benchmarks, including for the quantitative indicators.210 It is also unclear how the data are to be collected. Furthermore, as the Commission itself has stated, in relation to the quantitative indicators, ‘those figures have to be taken with some caution as they do not reflect exclusively the willingness of third countries to cooperate on returns’. They also reflect the obstacles that the Member States encounter in carrying out returns as they result from their legal and administrative frameworks, which the Commission means to tackle in its proposals aimed at closing the ‘gaps between asylum and return procedures’.211 4 As was the case under the ‘visa policy toolbox’, Article 25a envisages the adoption of restrictive measures against nationals or categories of nationals of the third country deemed uncooperative incrementally, starting with the suspension of one or more visa facilitations in relation to supporting documents, visa fee waiver for diplomatic passports, time limits to decide on applications and multiple-entry visas, and continuing, if necessary, with a gradual increase of the visa fee. As the Commission has stated there is however ‘no hard evidence on how visa leverage can translate into better cooperation of third countries on readmission’.212 On the other hand, the use of the mechanism can have a negative impact on the EU’s image and external relations, as well as penalising 207 Commission Staff Working Document, SWD(2018) 77 final, p. 38. For an in-depth analysis see Carrera et al., EU-Morocco Cooperation. On ‘reversed conditionality’ in the case of Morocco, see also Tittel-Mosser, Implementing EU Mobility, p. 65–66, 83, 169–185. 208 Council doc. 8526/1/18 REV 1 of 4 May 2018. 209 Recital 4, Regulation (EU) 2019/1155 (OJ 2019 L 188/25). 210 See Article 8(2) and Recitals 23–24 Visa List Regulation (EU) 2018/1806. 211 Proposal for a recast return directive, COM(2018) 634 final, and amended proposal for an asylum procedures regulation, COM(2020) 611 final. 212 Commission Staff Working Document, SWD(2018) 77 final, p. 31.

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individuals. In this context, it is believed that the negative incentives will have a deterrent effect and will thus be applied in a limited number of cases.213 Moreover, the EU aims to coordinate more effectively positive and negative incentives in additional policy areas, such as development cooperation, trade, investments and education, particularly within the context of the existing partnerships – a move which has given rise to some concerns relating to the effect of diverting policy objectives.214 The Commission presented its first systematic assessment of cooperation with third countries on readmission in February 2021, focusing on 39 visa-bound countries, selected on the basis of over 1,000 return decisions issued by Member States to their nationals in 2018. The assessment considers return data provided by Member States and Eurostat for 2019 and information extracted from Member States through a questionnaire on cooperation including the ‘bureaucratic obstacles’ that Member States face in relation to identification procedures, the issuing of travel documents, acceptance of returns by charter flights, refusals of non-voluntary returnees, etc. In this context, where applicable, the report assesses the effectiveness of EU readmission agreements, bilateral readmission arrangements, Readmission Case Management Systems (RCMSs), which are electronic platforms funded by the EU in third countries to assist with identification, including by comparing biometric data, and from which travel documents can be printed directly, and European Return and Migration Liaison Officers (EURLOs).215 As a result of this first assessment, the Commission has identified over 13 countries with which cooperation is poor, and in relation to which a series of steps will be taken in accordance with Article 25a.216 Following the Commission report, the Presidency invited the Member States to debate the establishment of a list of non-cooperative third countries. In this context, some Member States had wished for clearer conclusions from the Commission on which third countries assessed should be considered as not cooperating sufficiently. In fact, different Member States have proposed different criteria to determine which third countries should be further examined, including relevance for frontline Member States, significance of case load, non-cooperation on forced returns, and past failed attempts to improve cooperation. The Presidency also invited the Member States to agree on a deadline for the period during which the Commission should attempt to improve the level of cooperation of the third countries on the list, which Article 25a does not provide for.217

Article 26 Issuing of an airport transit visa 1. An airport transit visa shall be valid for transiting through the international transit areas of the airports situated on the territory of Member States. 2. Without prejudice to Article 12(a), the period of validity of the visa shall include an additional ‘period of grace’ of 15 days.

213

Commission Staff Working Document, SWD(2018) 77 final, p. 38. See draft Article 7 proposed Asylum and Migration Management Regulation, COM (2020)610 final; Commission Communication, COM(2020) 609 final, para 6.5; Commission Staff Working Document, SWD(2018) 77 final, p. 26; Commission Communication, COM(2016) 385 final. 215 Commission Report, COM(2021) 55 final, available at: https://www.statewatch.org/media/2297/eucom-readmission-report-on-cooperation-restricted-com-2021-55-final.pdf [last accessed 13 April 2021]. 216 Commission Communication, COM(2021) 56 final, p. 10. 217 Council doc. 6583/21 of 5 March 2021, available at: https://www.statewatch.org/media/2298/eucouncil-readmission-assessment-presidency-discussion-paper-6583-21.pdf [last accessed 13 April 2021]. 214

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Member States may decide not to grant such a period of grace for reasons of public policy or because of the international relations of any of the Member States. 3. Without prejudice to Article 12(a), multiple airport transit visas may be issued with a period of validity of a maximum six months. 4. The following criteria in particular are relevant for taking the decision to issue multiple airport transit visas: (a) the applicant’s need to transit frequently and/or regularly; and (b) the integrity and reliability of the applicant, in particular the lawful use of previous uniform visas, visas with limited territorial validity or airport transit visas, his economic situation in his country of origin and his genuine intention to pursue his onward journey. 5. If the applicant is required to hold an airport transit visa in accordance with the provisions of Article 3(2), the airport transit visa shall be valid only for transiting through the international transit areas of the airports situated on the territory of the Member State(s) concerned. 6. The data set out in Article 10(1) of the VIS Regulation shall be entered into the VIS when a decision on issuing such a visa has been taken.

Article 27 Filling in the visa sticker […]

Article 28 Invalidation of a completed visa sticker […]

Article 29 Affixing a visa sticker […]

Article 30 Rights derived from an issued visa Mere possession of a uniform visa or a visa with limited territorial validity shall not confer an automatic right of entry. 1

Article 30 clarifies that a uniform or LTV visa does not entitle the holder to a right of entry. Thus, a visa holder can be sent back at the border if border authorities find that entry conditions are not fulfilled. Border controls however must be proportionate to the objectives pursued under Article 7(1) and Recital 7 of the Schengen Borders Code Regulation (EU) 2016/399.218 Moreover, under Article 34(4) failure to produce 218

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See ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 55.

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one or more supporting documents at the border shall not automatically lead to a decision to annul or revoke a visa.

Article 31 Information of central authorities of other Member States 1. A Member State may require that its central authorities be informed of visas issued by other Member States to nationals of specific third countries or to specific categories of such nationals, except in the case of airport transit visas. 2. Member States shall notify the Commission of the introduction or withdrawal of the requirement for such information at the latest 25 calendar days before it becomes applicable. That information shall also be given under local Schengen cooperation in the jurisdiction concerned. 3. The Commission shall inform Member States of such notifications. Article 31 establishes the ‘ex-post notification’ procedure. Under this procedure 1 individual Member States may require to be informed about visas issued to nationals of specific third countries or to specific categories of such nationals. This procedure can therefore be seen as an alternative to the prior consultation procedure under Article 22, where Member States are consulted before a visa is issued. It was expected that the ex-post notification procedure would eventually supplant the prior consultation procedure, but this has not happened. Currently, there are 65 third countries on the ex-post notification list, involving exchange of information on an extremely high number of visas.219 The Commission points out that, while the consequences of expost notification are not settled by the Visa Code (unlike for prior consultation), it appears that following ex-post notification some Member States tend to annul or revoke visas issued by other Member States.220 Article 16 of the VIS Regulation (EC) No 767/2008 has recently been amended to provide for the use of VISMail to transmit information under this procedure.221

Article 32 Refusal of a visa 1. Without prejudice to Article 25(1), a visa shall be refused: (a) if the applicant: (i) presents a travel document which is false, counterfeit or forged; (ii) does not provide justification for the purpose and conditions of the intended stay; (iia) does not provide justification for the purpose and conditions of the intended airport transit; (iii) does not provide proof of sufficient means of subsistence, both for the duration of the intended stay and for the return to his country of origin or

219 The list is available at: https://ec.europa.eu/home-affairs/sites/default/files/e-library/documents/ policies/borders-and-visas/visa-policy/docs/201712_ex_post_information_en.pdf [last accessed 13 April 2021]. 220 Commission Staff Working Document, SWD(2014) 101 final, p. 21. 221 Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS).

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residence, or for the transit to a third country into which he is certain to be admitted, or is not in a position to acquire such means lawfully; (iv) has already stayed for 90 days during the current 180-day period on the territory of the Member States on the basis of a uniform visa or a visa with limited territorial validity; (v) is a person for whom an alert has been issued in the SIS for the purpose of refusing entry; (vi) is considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where an alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds; or (vii) does not provide proof of holding adequate and valid travel medical insurance, where applicable; or (b) if 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 his intention to leave the territory of the Member States before the expiry of the visa applied for. 2. A decision on refusal and the reasons on which it is based shall be notified to the applicant by means of the standard form set out in Annex VI in the language of the Member State that has taken the final decision on the application and another official language of the institutions of the Union. 3. Applicants who have been refused a visa shall have the right to appeal. Appeals shall be conducted against the Member State that has taken the final decision on the application and in accordance with the national law of that Member State. Member States shall provide applicants with information regarding the procedure to be followed in the event of an appeal, as specified in Annex VI. 5. Information on a refused visa shall be entered into the VIS in accordance with Article 12 of the VIS Regulation. Content I. Grounds for visa refusal ................................................................................ 1. Derogations under Article 25(1) and human rights obligations ..... 2. Differences between the grounds for visa refusal and the entry conditions under the Schengen Borders Code..................................... 3. SIS alerts and public policy and internal security as grounds for exclusion ....................................................................................................... II. The right to a visa and discretion in the factual assessment................ III. Notification of visa refusal and the right of appeal ................................

1

mn. 2 2 3 4 6 7

Once a visa application is considered admissible under Article 19, it will be examined in accordance with Article 21, and Article 22 when applicable, in view of reaching one of the decisions listed in Article 23(4). Article 32 regulates the decision to refuse the visa.

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I. Grounds for visa refusal 1. Derogations under Article 25(1) and human rights obligations Article 32(1) lists the grounds under which uniform visa ‘shall’ be refused by the 2 competent authorities of the Member States (see Article 35 in relation to refusing visas at the external border). Article 32(1) is without prejudice to Article 25(1) whereby limited territorial validity visas can be issued by the Member States exceptionally in certain situations (see Article 25 MN 1–2). In the light of the ECJ judgement in X and X v. Belgium (see Article 1 MN 11) and the ECtHR judgement in M. N. and Others v. Belgium (see Article 25 MN 5) in particular, the circumstances where human rights obligations require a Member State to issue a visa to an individual appear very limited.222

2. Differences between the grounds for visa refusal and the entry conditions under the Schengen Borders Code While the grounds for refusing a visa in Article 32(1) echo the entry conditions listed 3 in Article 6(1) of the Schengen Borders Code Regulation (EU) 2016/399, there is no reference in Article 32(1) to possession of a ‘valid travel document’, as envisaged by Article 6(1) of the Schengen Borders Code Regulation (EU) 2016/399, but rather Article 32(1)(a)(i) focuses exclusively on the genuineness of the travel document.223 Possession of a valid travel document, which is defined in Article 12, is treated by the Visa Code as one of the conditions for the visa application to be considered admissible in the first place under Article 19 (see Article 25 MN 1). Furthermore, the Visa Code includes lack of proof of holding travel medical insurance as a ground for visa refusal. However, proof of holding travel medical insurance is not a requirement for entry under the Schengen Borders Code Regulation (EU) 2016/399 and, according to the Commission, it is not checked at the external border (see Article 15 MN 1 and Article 25 MN 2).

3. SIS alerts and public policy and internal security as grounds for exclusion Article 32(1)(a)(v) and (vi) establishes two grounds for visa refusal which are 4 particularly relevant for the implementation of the principle of mutual recognition of the Member States’ decisions to exclude third country nationals from their territories based on public policy and internal security. Article 32(1)(a)(v) requires visa refusal when an applicant is the subject of a SIS alert for refusing entry. Under Article 24 of the Regulation on the use of the SIS in border checks,224 the Member States are required to enter alerts in the SIS for the purpose of refusing entry to a third country national in two situations. The first situation is when a national decision to refuse entry has been taken, following an individual assessment, on the ground that the presence of the third country national on the national territory poses a threat to public policy, public security or national security. This situation arises in three sets of circumstances: where a third country national has been convicted of an offence carrying a penalty of deprivation of liberty of at least one year; where there are serious grounds for believing that she has 222 See also ECtHR, Judgment of 2 February 2010, No 964/07, Dalea v. France, where a claim that exclusion from the Member States resulting from a SIS alert constituted an interference with private life was considered inadmissible, with the ECtHR further remarking that in the area of entry regulation, States have a broad margin of appreciation in taking measures to secure protection against arbitrariness. 223 ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 35. 224 Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks.

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committed a serious criminal offence or clear indications of an intention to do so; and finally, under Article 24(2)(c), where a third country national has circumvented, or attempted to, Union or national law relating to entry and stay. The second situation where a Member State is required to enter an alert in the SIS, under Article 24(1)(b) of the Regulation on the use of the SIS in border checks,225 is when an entry ban has been issued to a third country national in accordance with the Return Directive 2008/115/ EC.226 Furthermore, under Article 25 of the Regulation on the use of the SIS in border checks, alerts in the SIS must also be entered by the Member State holding the Presidency of the Council to give effect to entry/visa sanctions adopted under the Common Foreign and Security Policy.227 While the grounds for entering SIS alerts appear vague and very broad, such alerts and the underlying decisions must observe fundamental rights, be based on an individual assessment, comply with the principle of proportionality and satisfy procedural safeguards including the right to be given reasons for the decision and the right to be heard which may be subject to limitations (see below MN 8).228 5 Article 32(1)(a)(vi) appears to cover cases which are outside the scope of Article 32(1) (a)(v) and it is implemented through the prior consultation procedure in Article 22 (and the ex-post notification procedure in Article 31). The meaning of ‘a threat to public policy’ or ‘internal security’ as a ground to exclude third country nationals under various EU instruments regulating entry and stay in the Member States has gradually been clarified by the ECJ.229 According to the Court, although the Member States essentially remain free to determine their public policy and internal security needs, in the European context, such needs cannot be determined unilaterally.230 On the other hand, the Court has provided no uniform interpretation of these concepts under the various EU instruments, but rather has construed them under each instrument taking into account the wording of the relevant provisions, the context, the objectives of the instrument and the degree to which the instrument concerns the fundamental rights of third country nationals.231 Within the contexts of the Return Directive 2008/115/EC, the former Asylum Qualification Directive 2004/83/EC and the Asylum Reception Conditions Directive 2013/33/EU, ‘a threat to public policy’ or ‘internal security’ have been interpreted by the ECJ by analogy with similar provisions in the Free Movement 225

Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks. The relationship between Article 24(2)(c) and Article 24(1)(b) of Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks, is unclear. Arguably, the former is meant to cover cases outside the scope of the Return Directive 2008/115/EC by virtue of Article 2(2) of the Directive or because there is no ‘illegal stay’. This could be the case, for example, when the third country national is not within the Member State’s territory. Indeed, the Visa Handbook II for the administrative management of visa processing and local Schengen cooperation recommends the use of the SIS, as opposed to reliance on ‘local’ visa bans, when a Member State wishes to prevent the issuing of a visa to a given third country national, Commission Implementing Decision, C(2020) 1764 final para 1.2. Under Article 3 Regulation (EU) 2018/1860 (OJ 2018 L 312/1) on the use of the SIS for returns, return decisions are also generally recorded in the SIS. 227 Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks. In this context, see the EU global human rights sanctions regime, particularly Article 2 of Council Decision (CFSP) 2020/ 1999 (OJ 2020 L 410/I/13) on restrictive measures against serious human rights violations. 228 See, in particular, Articles 21 and 24(1)(a) Regulation (EU) 2018/1861 (OJ 2018 L 312/14) on SIS in the field of border checks; Recital 6 Return Directive 2008/115/EC; ECJ, Boudjlida, C-249/13, EU: C:2014:2431, paras 40 and 43; ECJ, G & R, C-383/13, EU:C:2013:533, paras 33 and 38. 229 See, for example, Thym, A Bird’s Eye, p. 179–183. 230 See, for example, ECJ, Zh. and O., C-554/13, EU:C:2015:377, para 48. 231 See, for example, ECJ, Zh. and O., C-554/13, EU:C:2015:377, paras 42, 47–48; ECJ, T., C-373/13, EU: C:2015:413, para 58; ECJ, N., C-601/15 PPU, EU:C:2016:84, para 49; ECJ, E.P., C-380/18, EU: C:2019:1071, para 31. 226

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Directive 2004/38/EC.232 Accordingly, these concepts are interpreted narrowly, requiring an individual assessment and conformity with the principle of proportionality. A Member State is therefore obliged to carry out a case-by-case assessment and establish whether the third country national’s personal conduct poses a genuine, present risk and sufficiently serious threat affecting one of the fundamental interests of society. Thus, ‘the fact that a third-country national is suspected, or has been criminally convicted of an act punishable as a criminal offence under national law cannot, in itself, justify a finding that that national poses a risk to public policy’.233 On the other hand, in the context of exclusion of a third country national under the Schengen Borders Code Regulation (EU) 2016/399 and the former Students Directive 2004/114/EC, the concepts of a threat to public policy or internal security have been interpreted more broadly by the ECJ. Thus, it is possible for national authorities, under the Directive, to refuse a visa to an applicant when she is considered a potential threat to public security following an assessment taking into account not only her personal conduct but also other elements, such as her profession.234 Similarly, national authorities, under the Schengen Borders Code Regulation (EU) 2016/399, can justify exclusion of a third country national on public policy grounds when she is suspected of having committed a criminal offence. This is subject however to the principle of proportionality whereby the offence of which the third country national is suspected must be sufficiently serious and the evidence on the basis of which she is suspected must be consistent, objective and specific.235 As the ECJ stated, the wide discretion that is accorded to the Member States in the factual assessment of the case means that the judicial review of the assessment is limited to the absence of manifest error, and compliance with procedural safeguards (see below MN 8).236

II. The right to a visa and discretion in the factual assessment In Koushkaki, the ECJ held that the grounds for refusing a uniform visa in Article 32(1) 6 are exhaustive to the effect that if none of them applies to a visa applicant she will be entitled to a uniform visa.237 The Court reached the same conclusion in relation to rights of entry under the Schengen Borders Code Regulation (EU) 2016/399 and the former Student Directive 2004/114/EC.238 Given that the wording of Article 32(1) is inconclusive, the Court based its finding on the context of the provision and the objectives of the Visa Code. In relation to the context of the provision, the Court considered that the grounds for visa refusal listed both in the standard form for notifying applicants of visa refusal in Annex IV and in the VIS application file, are the same as those in Article 32(1). 232 See respectively ECJ, Zh. and O., C-554/13, EU:C:2015:377; ECJ, E, C-240/17, EU:C:2018:8; ECJ, T., C-373/13, EU:C:2015:413; ECJ, N., C-601/15 PPU, EU:C:2016:84; ECJ, Gaydarov, C-430/10, EU: C:2011:749. 233 See, for example, ECJ, Zh. and O., C-554/13, EU:C:2015:377, para 50. 234 ECJ, Fahimian, C-544/15, EU:C:2017:255, para 40. 235 ECJ, E.P., C-380/18, EU:C:2019:1071, paras 46–49. In this context, the Court referred, in para 37, both to Article 21 of the Visa Code which accords a wide discretion to national authorities in the examination of a visa application, and in para 41, to Article 24(2) of Regulation No 1987/2006 (OJ 2006 L 381/1) on the SIS II envisaging a SIS alert in cases where there are serious grounds for believing that a third country national has committed a serious criminal offence. 236 ECJ, Fahimian, C-544/15, EU:C:2017:255, para 46. 237 ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 55. 238 Respectively, ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 62; ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, para 27.

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Furthermore, Article 34 allows revocation or annulment of a uniform visa by a Member State other than the Member State that issued the visa, presupposing that the conditions for issuing a uniform visa are harmonised. The Court also emphasised that the objectives of the Visa Code, including establishing the conditions for issuing uniform visas, facilitating legitimate travel, preventing visa shopping and avoiding the unequal treatment of visa applicants, would be undermined if the grounds for visa refusal were not exhaustive.239 However, although national authorities cannot refuse a visa to an applicant unless one of the grounds for refusal listed in Article 32(1) is applicable,240 the Court stressed that the assessment of the individual position of a visa applicant, with a view to determining whether there is a ground for visa refusal, entails ‘complex evaluations based, inter alia, on the personality of that applicant, his integration in the country where he resides, the political, social and the economic situation of that country and the potential threat posed by the entry of that applicant to public policy, internal security, public health or the international relations of any of the Member States’.241 Accordingly, the competent authorities have a wide discretion in this respect as apparent from the wording of Articles 21(1) and 32(1) ‘which oblige those authorities to “[assess] whether the applicant presents a risk of illegal immigration” and to give “particular consideration” to certain aspects of his situation and to determine whether there are “reasonable doubts” as regards certain factors’.242 This wide discretion means that judicial review of the visa refusal decision is limited to the absence of manifest error, as far as the assessment is concerned, and compliance with procedural requirements.

III. Notification of visa refusal and the right of appeal 7

The right of appeal against decisions to refuse a visa and the relating right to be notified of the grounds for such decisions in Article 32(2) and (3) were among the most significant innovations originally introduced by the Visa Code.243 They extend to annulment and revocation decisions under Article 34(6) and (7) but not expressly to decisions holding a visa application inadmissible (see Article 19 MN 2), decisions refusing the extension of a visa under Article 33 and decisions refusing an LTV visa (see Article 25 MN 4). By virtue of Article 58, these provisions became effective one year after the entry into force of the Visa Code as several Member States needed a transitional period to introduce the necessary domestic changes. Reflecting the principle of national procedural autonomy, Article 32(3) provides that the right of appeal is to be exercised in accordance with national law. National arrangements are however subject to the principles of equivalence and effectiveness and, given that the Visa Code establishes an individual right to a visa when the relevant conditions are fulfilled, to Article 47 CFR on the right to an effective remedy and a fair trial.244 Since Article 47 CFR establishes that everyone is entitled to a hearing by an independent and impartial tribunal, the ECJ has held that Article 32(3) requires that the proceedings applicable in cases of visa refusal must, at a certain stage, guarantee a judicial appeal.245 The ECJ has 239

ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 34–55. ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 55. 241 ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 56. 242 ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 61. 243 Meloni, The Community Code, p. 690–695. 244 See ECJ, El-Hassani, C-403/16, EU:C:2017:960, para 35–38. On judicial protection as a general principle of EU law see ECJ, Panayotova and Others, C-327/02, EU:C:2004:718. 245 ECJ, El-Hassani, C-403/16, EU:C:2017:960; ECJ, Commission v. Slovak Republic, C-614/18, EU: C:2019:142. In 2013, the Commission initiated formal infringement proceedings against five Member 240

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also confirmed that the personal scope of the right of appeal is not a matter for national law, as it is expressly determined by Article 32(3). Accordingly, only applicants who are refused a visa have a right of appeal.246 Sponsors do not have a right of appeal, although the Visa Code does not preclude national law from authorising the sponsor to intervene in the appeal procedure or allowing the visa applicant to appoint a third party to represent her in court proceedings.247 The ECJ has also confirmed that appeals are conducted against the Member State that has taken the final decision on the application. In cases involving representation, this mean the representing Member State (see Article 8 MN 4).248 With regard to the scope of the review under Article 32(3) of the Visa Code, while it 8 extends to ascertaining whether the decision has a factual basis, given the wide discretion accorded to the Member States in assessing whether an applicant fulfils the conditions for a uniform visa, it is limited to the absence of manifest error. However, the scope of the review also concerns compliance with procedural guarantees, including the obligation to state the reasons for the decision.249 In this respect, the national authorities are required to give a statement of reasons which is sufficient to enable the national court to ascertain whether the factual and legal elements necessary for the exercise of power are fulfilled, and enable the applicant, as well as to defend her rights, ‘to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court with jurisdiction’.250 In this context, Recital 15 of amending Regulation (EU) 2019/1155 provides that the notification of the refusal should include detailed information on the reasons for the decision and on the appeal procedure. It also provides that during the appeal procedure, the applicant should be given access to all relevant information on her case, in accordance with national law.251 Article 37(3), as amended, provides that visa applicants’ files are to be kept at least until the end of the appeal procedure. The information on reasons may however be limited where national law provides for restrictions to the right to information to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.252 In such circumstances, whether denial of access to information may constitute an infringement of the rights of the defence and the right to effective judicial protection will depend on the specific circumstances of the case, including the nature of the act in question, the context of its adoption and the legal rules governing

States which did not provide access to a judicial body or had problematic short deadlines or very high fees to lodge an appeal, see Fundamental Rights Agency, Annual Report 2013, p. 70; Fundamental Rights Agency, Annual Report 2012, p. 91–92. 246 In this context, see also ECJ, Mohamad Zakaria, C-23/12, EU:C:2013:24, para 40 (see Article 39 MN 1). 247 ECJ, Vethanayagam, C-680/17, EU:C:2019:627, paras 46–56. 248 ECJ, Vethanayagam, C-680/17, EU:C:2019:627. 249 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, paras 48–51; ECJ, Fahimian, C‐544/15, EU:C:2017:255, paras 45–46. 250 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, para 43. 251 See also ECJ, YS and Others, C-141/12, EU:C:2014:2081, paras 48 and 57–59. 252 See, for example, Article 12 Return Directive 2008/115/EC; Article 52(2) Regulation (EU) 2018/1861 (2018 L 312/14) on SIS in the field of border checks; and generally Article 23 Regulation (EU) 2016/679 (OJ 2016 L 119/1) on general data protection. The SIS II Supervision Coordination Group reported that the majority of countries do not provide reasons of refusal of SIS access requests, see SIS II Supervision Coordination Group, Report on the exercise of the rights of the data subject in the Schengen Information System (SIS), October 2014, p. 9. See also Commission Report, COM(2020) 779 final, p. 14, where the effective exercise of data subject rights in relation to the SIS and VIS was found constrained by the lack of proper information.

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the matter.253 The court with jurisdiction of review, when necessary, may be able to apply techniques which accommodate legitimate security considerations, on the one hand, and, on the other hand, ‘the need to sufficiently guarantee to an individual respect for his procedural rights’, and to ensure that non-disclosure is limited to what is strictly necessary.254 Appeal rights may be particularly difficult to exercise in practice in cases of representation between Member States (see Article 8 MN 4), and when the visa refusal decision by a Member State is the result of a prior decision to exclude the visa applicant adopted by another Member State, as in cases of prior consultation (see Article 22 MN 2–4) and SIS alerts.255 In this context, the ECJ has clarified some procedural requirements that the Member State formally responsible for refusing the visa must fulfil in order to safeguard the applicant’s rights of defence and to an effective remedy (see Article 22 MN 4).256 9 Visa refusal decisions are communicated to visa applicants via the standard form for notifying and motivating visa refusal decisions in Annex VI. This form consists of a list of pre-defined statements for visa refusal which can be ticked off by national authorities plus an ‘additional remarks’ section and a section to provide information on how the decision can be appealed. The form has been amended by Regulation (EU) 2019/115 so that the reasons for visa refusal, which are now 17, reflects more closely the grounds for refusal in Article 32(1). It remains however doubtful whether these standardised statements are sufficient to form an appeal claim or enable the visa applicant to effectively address the reasons for visa refusal in a fresh visa application. With regard to the use of the (now amended) statement in the standard form stating that ‘your intention to leave the territory of the Member States before the expiry of the visa could not be ascertained’, the Highest Administrative Court in Austria, for example, has in three cases insisted that consulates must explain the concrete reasons for doubting that an applicant intends to return so as to allow applicants to submit counter-evidence and benefit from an effective remedy.257 In the case of third country nationals who are family members of EU nationals covered by the Free Movement Directive 2008/34/EC, national authorities have an obligation to provide a fully reasoned refusal listing all specific factual and legal grounds.258 The requirements applicable to visa refusal decisions resulting from prior consultation have also been clarified by the ECJ (see Article 22 MN 4).259

253

ECJ, Commission and Others v. Kadi, C-584/10P, EU:C:2013:518, para 102. ECJ, Commission and Others v. Kadi, C-584/10P, EU:C:2013:518, para 125; ECJ, ZZ, C-300/11, EU: C:2013:363, paras 57 and 69. 255 In this context, Article 54 Regulation (EU) 2018/1861 (OJ 2018 L 312/14) on the SIS in the field of border checks, and Article 38 Regulation (EC) No 767/2008 (OJ 2008 L 218/60) on the Visa Information System (VIS) provide that a request for access to information may be submitted in any Member States. However, in relation to a SIS alert, it may be necessary for an individual to appeal the underlying decision for the data entry. 256 Furthermore, a SIS alert issued by a Member State against a third country national falling within the scope of the Free Movement Directive 2004/38/EC cannot per se justify the exclusion of such third country national by another Member State, see ECJ, Commission v. Spain, C-503/03, EU:C:2006:74, paras 41 and 53. With regard to prior consultation, see ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU: C:2020:951, para 54. 257 Austria, Verwaltungsgerichtshof, Decision of 16 May 2013, 2012/21/0158; Decision of 2 August 2013, 2013/21/0057; Decision of 2 August 2013, 2013/21/0064, cited in Fundamental Rights Agency, Annual Report 2013, p. 70. 258 Article 30 Free Movement Directive 2004/38/EC; see Visa Handbook, Commission Decision, C (2010) 1620 final, as amended, Part III, para 3.9. 259 ECJ, R.N.N.S. and K.A., C-225 and 226/19, EU:C:2020:951, paras 46 and 52. 254

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CHAPTER V Modification of an issued visa Article 33 Extension 1. The period of validity and/or the duration of stay of an issued visa shall be extended where the competent authority of a Member State considers that a visa holder has provided proof of force majeure or humanitarian reasons preventing him from leaving the territory of the Member States before the expiry of the period of validity of or the duration of stay authorised by the visa. Such an extension shall be granted free of charge. 2. The period of validity and/or the duration of stay of an issued visa may be extended if the visa holder provides proof of serious personal reasons justifying the extension of the period of validity or the duration of stay. A fee of EUR 30 shall be charged for such an extension. 3. Unless otherwise decided by the authority extending the visa, the territorial validity of the extended visa shall remain the same as that of the original visa. 4. The authority competent to extend the visa shall be that of the Member State on whose territory the third-country national is present at the moment of applying for an extension. 5. Member States shall notify to the Commission the authorities competent for extending visas. 6. Extension of visas shall take the form of a visa sticker. 7. Information on an extended visa shall be entered into the VIS in accordance with Article 14 of the VIS Regulation. Content I. Scope .................................................................................................................. 1. Extension beyond the maximum 90 days ............................................. 2. Mandatory and discretionary extensions .............................................. 3. Change of status under EU law ..............................................................

mn. 1 2 3 4

I. Scope Article 33 provides rules whereby national authorities ‘shall’ or ‘may’ in certain circum- 1 stances extend the period of validity of a visa and/or the length of the authorised stay. Article 33 applies to situations where a visa holder is within the territory of a Member State. The authorities competent to extend the visa are the authorities of the Member State on whose territory the visa holder is present. Under Article 33(3), generally, the territorial validity of the extended visa will remain the same as that of the original visa, with the Visa Handbook envisaging the possibility of limiting it but not of extending it.260 The provision also implies that the rules on extension apply also to limited territorial validity visas. Apart from fulfilling the conditions in Article 33(1), the visa holder will still have to fulfil the conditions for a visa in Article 32 or Article 25 for an extension. In line with proportion260

Commission Decision, C(2010) 1620 final, as amended, Part V, para 1.5.

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ality, the Visa Handbook presupposes that this is the case by instructing consulates to verify specifically only the conditions relating to sufficient means of subsistence, proof of travel medical insurance and the temporal validity of the travel document, and expressly excluding a repeat of the prior consultation procedure.261

1. Extension beyond the maximum 90 days 2

It is unclear whether Article 33 allows an extension having the effect of prolonging the stay of the visa holder beyond the maximum 90 days in the relevant 180-day period (see Article 1 MN 10–12). The Visa Handbook does not exclude such a possibility by stating that ‘generally, the extension of a visa should not result in a total stay going beyond 90 days in any 180-day period’.262 Furthermore, Article 25(1)(b) provides for the issuing of a limited territorial validity visa, exceptionally, to a visa applicant who has already stayed in the Schengen territory for 90 days during the relevant 180-day period. Third country nationals who do not require Schengen visas under the Visa List Regulation (EU) 2018/1806 are also able to extend their stay beyond the 90-day period in a specific Member State when there is a visa-waiver agreement between that Member State and their country of nationality.263

2. Mandatory and discretionary extensions 3

Under Article 33(1), an extension of the visa is mandatory and free of charge in cases where a visa holder cannot leave the Schengen territory because of force majeure or humanitarian reasons. These terms are defined in the Visa Handbook as covering cases of ‘last minute change of flight schedule by airline’ or ‘sudden serious illness of the person concerned…or sudden serious illness or death of a close relative living in a Member State’.264 On the basis of the judgment of the ECJ in Koushkaki (see above Article 32 MN 6),265 it could be argued that a visa holder has a right to an extension of her visa when these conditions are fulfilled, although Article 33 does not expressly confer a right of appeal against a decision refusing an extension, unlike Article 34 in cases of annulment and revocation of the visa. The Visa Handbook also clarifies that while under visa facilitation agreements between the EU and third countries it is mandatory to extend visas only in cases of force majeure, third country nationals covered by these agreements can benefit from the more generous provisions in the Visa Code.266

3. Change of status under EU law 4

The sectorial directives establishing rules on conditions of entry and residence for stay exceeding 90 days for certain categories of third country nationals (see Part C Immigration), provide that an application for admission shall, as a general rule, be submitted when the third country national is residing outside the territory of the relevant Member State or is already residing in that Member State. By way of derogation, a Member State may however accept applications from third country nationals who are legally present in its 261

Commission Decision, C(2010) 1620 final, as amended, Part V, paras 1.8 and 1.4. Commission Decision, C(2010) 1620 final, as amended, Part V, para 1.6. 263 Article 20(2) Schengen Implementing Convention (as amended). For a list of the agreements see: https://www.etiasvisa.com/etias-news/eu-bilateral-visa-waiver-agreements [last accessed 10 April 2021]. 264 Commission Decision, C(2010) 1620 final, as amended, Part V, para 1.1. 265 ECJ, Koushkaki, C-84/12, EU:C:2013:862. 266 Commission Decision, C(2010) 1620 final, as amended, Part V, para 1.1. 262

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territory.267 This suggests that only in limited circumstances Schengen visa holders in the territory of a Member State will be allowed to effectively change their status by applying for admission under one of the directives. However, a 2014 Commission Communication on the implementation of the Blue Card Directive 2009/50/EC reported that, with the exclusion of eight Member States, Member States applied the derogation allowing applications when the applicant does not have a valid residence permit but is legally present in the territory of the Member States.268 Accordingly, the Commission proposal for a new Blue Card Directive provided that applications shall be considered ‘either when the third country national concerned is residing outside the territory of the Member State … or when he or she is already legally present in the territory of that Member State’. However, following negotiations between the institutions, the Council agreed a draft compromise package which reverts back to the original wording of the provision.269

Article 34 Annulment and revocation 1. A visa shall be annulled where it becomes evident that the conditions for issuing it were not met at the time when it was issued, in particular if there are serious grounds for believing that the visa was fraudulently obtained. A visa shall in principle be annulled by the competent authorities of the Member State which issued it. A visa may be annulled by the competent authorities of another Member State, in which case the authorities of the Member State that issued the visa shall be informed of such annulment. 2. A visa shall be revoked where it becomes evident that the conditions for issuing it are no longer met. A visa shall in principle be revoked by the competent authorities of the Member State which issued it. A visa may be revoked by the competent authorities of another Member State, in which case the authorities of the Member State that issued the visa shall be informed of such revocation. 3. A visa may be revoked at the request of the visa holder. The competent authorities of the Member States that issued the visa shall be informed of such revocation. 4. Failure of the visa holder to produce, at the border, one or more of the supporting documents referred to in Article 14(3), shall not automatically lead to a decision to annul or revoke the visa. 5. If a visa is annulled or revoked, a stamp stating ‘ANNULLED’ or ‘REVOKED’ shall be affixed to it and the optically variable feature of the visa sticker, the security feature ‘latent image effect’ as well as the term ‘visa’ shall be invalidated by being crossed out. 6. A decision on annulment or revocation of a visa and the reasons on which it is based shall be notified to the applicant by means of the standard form set out in Annex VI. 7. A visa holder whose visa has been annulled or revoked shall have the right to appeal, unless the visa was revoked at his request in accordance with paragraph 3. 267 See Article 7(4) Students and Researchers Directive (EU) 2016/801; Article 10(3) Blue Card Directive 2009/50/EC; Article 5(3) Family Reunification Directive 2003/86/EC; Article 4(1) Single Permit Directive 2011/98/EU. 268 Commission Communication, COM(2014) 287 final, p. 9. 269 Commission Proposal, COM(2016) 378 final, draft Article 9; Council doc. 9042/21 of 21 May 2021, draft Article 10.

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Appeals shall be conducted against the Member State that has taken the decision on the annulment or revocation and in accordance with the national law of that Member State. Member States shall provide applicants with information regarding the procedure to be followed in the event of an appeal, as specified in Annex VI. 8. Information on an annulled or a revoked visa shall be entered into the VIS in accordance with Article 13 of the VIS Regulation. Under Article 34(1) of the Visa Code, a visa is to be annulled where there are ‘serious grounds for believing that the visa was fraudulently obtained’. Unjustified deviations from the authorised stay in terms of travel itinerary (see Article 2 MN 1 and Article 24 MN 2) or the taking up of unauthorised employment could constitute such grounds. However, under Article 34(4) failure to produce one or more supporting documents at the border shall not automatically lead to a decision to annul or revoke a visa. Moreover, a high threshold has been applied by some national courts to the effect that a mere ‘initial suspicion’ that the visa had been fraudulently obtained was treated as insufficient to reach the required degree of probability of ‘serious grounds’ for visa annulment.270 Following annulment of the visa, the Returns Directive 2008/115/EC may become applicable,271 with the possibility of an entry ban accompanying a return decision. On the other hand, annulment or revocation of a visa is not a precondition for the visa holder’s stay to be treated as illegal for the purpose of criminal proceedings for assisting illegal immigration. In the case of Vo, the ECJ clarified that the Visa Code does not preclude criminal prosecution for assisting illegal immigration in a situation where the visas obtained fraudulently by those smuggled had not been annulled.272 2 Annulment is mandatory for the Member State that issued the visa and discretionary for other Member States, with an obligation to inform the Member State that issued the visa in case of annulment. In Air Baltic Corporation, the ECJ clarified that the grounds for annulling or revoking a visa under Article 34 are the same as those for visa refusal under Article 32 (and Article 35 in case of visas issued at the border) and are accordingly exhaustive, as clarified by the Court in Koushkaki.273 In Air Baltic Corporation, the Court clarified that the fact that the visa was affixed on a passport which had been cancelled by the issuing authority of a third country did not make the visa automatically invalid, and could not constitute a ground for annulling or revoking the visa under Article 34. As the Court indicated, the only ground for annulling a visa which directly concerns the travel document is, pursuant to Article 32(1)(a)(i), the situation in which the travel document presented at the time when the visa was issued was false, counterfeit or forged.274 Article 34(6) and (7) provides for an individual right to be notified of the reasons for visa annulment or revocation and for a right of appeal against such decisions (see above Article 32 MN 7–9). 1

270 Germany, Higher Administrative Court of Saxony, 3rd Senate, 3 B 151/12t, OVG Saxony, cited in Fundamental Rights Agency, Annual Report 2012, p. 94. 271 Under Article 2(2)(a) of the Directive, Member States may decide not to apply the Directive in cases of refusal of entry at the border. 272 ECJ, Vo, C-83/12 PPU, EU:C:2012:202. 273 ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155; ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 42–43. 274 ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 35.

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CHAPTER VI Visas issued at the external borders Article 35 Visas applied for at the external border 1. In exceptional cases, visas may be issued at border crossing points if the following conditions are satisfied: (a) the applicant fulfils the conditions laid down in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code; (b) the applicant has not been in a position to apply for a visa in advance and submits, if required, supporting documents substantiating unforeseeable and imperative reasons for entry; and (c) the applicant’s return to his country of origin or residence or transit through States other than Member States fully implementing the Schengen acquis is assessed as certain. 2. Where a visa is applied for at the external border, the requirement that the applicant be in possession of travel medical insurance may be waived when such travel medical insurance is not available at that border crossing point or for humanitarian reasons. 3. A visa issued at the external border shall be a uniform visa, entitling the holder to stay for a maximum duration of 15 days, depending on the purpose and conditions of the intended stay. In the case of transit, the length of the authorised stay shall correspond to the time necessary for the purpose of the transit. 4. Where the conditions laid down in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code are not fulfilled, the authorities responsible for issuing the visa at the border may issue a visa with limited territorial validity, in accordance with Article 25(1)(a) of this Regulation, for the territory of the issuing Member State only. 5. A third-country national falling within a category of persons for whom prior consultation is required in accordance with Article 22 shall, in principle, not be issued a visa at the external border. However, a visa with limited territorial validity for the territory of the issuing Member State may be issued at the external border for such persons in exceptional cases, in accordance with Article 25(1)(a). 6. In addition to the reasons for refusing a visa as provided for in Article 32(1) a visa shall be refused at the border crossing point if the conditions referred to in paragraph 1(b) of this Article are not met. 7. The provisions on justification and notification of refusals and the right of appeal set out in Article 32(3) and Annex VI shall apply. Article 35 is drafted so as to establish a general obligation for the Member States 1 to refuse uniform visas at the external border when Article 35(6) applies, and a discretion to issue such visas under Article 35(1). Article 35(1) establishes the conditions that an applicant must satisfy to be issued with a uniform visa at the border. The terms ‘may’ and ‘in exceptional cases’, however, suggest that the Member States retain discretion to issue uniform visas when these conditions are fulfilled. Furthermore, the condition in Article 35(1)(b) is vague, while the term ‘unforeseeable and imperative reasons’ seems to establish a high threshold. Still, applicants who are Meloni

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refused a visa at the external border have a right to be notified of the reasons for the decision and a right of appeal under Article 35(7). On the other hand, the term ‘shall’ in Article 35(6) establishes an obligation for the Member States to refuse visas at the border for the reasons listed in Article 32(1) or when the condition in Article 35(1) (b) is not fulfilled by the applicant. However, by virtue of Article 35(2) the requirement, in Article 32(1), that an applicant must be in possession of travel medical insurance may be waived when travel medical insurance is not available at that border crossing point or for humanitarian reasons. Article 35(4) and (5) provides for the possibility for the Member States to issue limited territorial validity visas at the border in accordance with Article 25(1)(a) (but not Article 25(1)(b)) to applicants who do not fulfil the entry conditions in Article 6(1) of the Schengen Borders Code Regulation (EU) 2016/399 (see Article 25 MN 1–2). However, with regard to applicants who are subject to prior consultation in particular, although the issuing of limited territorial validity visas remains exceptionally possible in accordance with Article 25(1)(a), the general rule is that they should not be issued with a visa at the external border. Non-refoulment obligations will also be applicable in relation to third country nationals at the EU external border. 2 Third country nationals who are family members of EU citizens covered by the Free Movement Directive 2004/38/EC and who are subject to the visa obligation under the Visa List Regulation (EU) 2018/1806 will in certain circumstances be able to obtain the visa at the external border. In MRAX, the ECJ held that a third country national who is the spouse of an EU citizen falling within the scope of the Free Movement Directive 2008/34/EC cannot be sent back at the border on the sole ground that he lacks the necessary visa ‘where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health …’.275 Both in its 2014 recast proposal and in its 2018 proposal for amending the Visa Code, the Commission tried to introduce provisions for specific schemes enabling Member States to issue visas at the external borders with a view to promoting short-term tourism. However, these proposals were not supported by the Council.276 In 2018 the Member States issued 66,000 uniform visas at the external border, with the Netherlands issuing most (14,000), mostly to seafarers in transit under Article 36, and Malta and Sweden issuing none.277

Article 36 Visas issued to seafarers in transit at the external border […]

275

ECJ, MRAX, C-459/99, EU:C:2002:461, para 62. Draft Article 33, Commission Proposals, COM(2014) 164 final, and draft Article 36a, Commission Proposal, COM(2018) 252 final. 277 Statistics are available at: https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/ visa-policy_en [last accessed 5 May 2021]. 276

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TITLE IV ADMINISTRATIVE MANAGEMENT AND ORGANISATION Article 37 Organisation of visa sections 1. Member States shall be responsible for organising the visa sections of their consulates. In order to prevent any decline in the level of vigilance and to protect staff from being exposed to pressure at local level, rotation schemes for staff dealing directly with applicants shall be set up, where appropriate. Particular attention shall be paid to clear work structures and a distinct allocation/division of responsibilities in relation to the taking of final decisions on applications. Access to consultation of the VIS and the SIS and other confidential information shall be restricted to a limited number of duly authorised staff. Appropriate measures shall be taken to prevent unauthorised access to such databases. 2. The storage and handling of visa stickers shall be subject to adequate security measures to avoid fraud or loss. Each consulate shall keep an account of its stock of visa stickers and register how each visa sticker has been used. Any significant loss of blank visa stickers shall be reported to the Commission. 3. Consulates or central authorities shall keep archives of applications in paper or electronic format. Each individual file shall contain the relevant information allowing for a reconstruction, if need be, of the background for the decision taken on the application. Individual application files shall be kept for a minimum of one year from the date of the decision on the application as referred to in Article 23(1) or, in the case of appeal, until the end of the appeal procedure, whichever is the longest. If applicable, the individual electronic application files shall be kept for the period of validity of the issued visa.

Article 38 Resources for examining applications and monitoring visa procedures 1. Member States shall deploy appropriate staff in sufficient numbers in consulates to carry out the tasks relating to the examination of applications, in such a way as to ensure a reasonable and harmonised quality of service to the public. 1a. Member States shall ensure that the entire visa procedure in consulates, including the lodging and handling of applications, the printing of visa stickers and the practical cooperation with external service providers, is monitored by expatriate staff to ensure the integrity of all stages of the procedure. 2. Premises shall meet appropriate functional requirements of adequacy and allow for appropriate security measures. 3. Member States’ central authorities shall provide adequate training to both expatriate staff and locally employed staff and shall be responsible for providing them with complete, precise and up-to-date information on the relevant Union and national law.

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3a. Where applications are examined and decided on by central authorities as referred to in Article 4(1a), the Member States shall provide specific training to ensure that the staff of those central authorities have sufficient and updated country-specific knowledge of local socio-economic circumstances, and complete, precise and up-to-date information on relevant Union and national law. 3b. Member States shall also ensure that consulates have sufficient and adequately trained staff for assisting the central authorities in examining and deciding on applications, notably by participating in local Schengen cooperation meetings, exchanging information with other consulates and local authorities, gathering relevant information locally on migratory risk and fraudulent practices, and conducting interviews and additional examinations. 4. Member States’ central authorities shall ensure frequent and adequate monitoring of the conduct of examination of applications and take corrective measures when deviations from the provisions of this Regulation are detected. 5. Member States shall ensure that a procedure is in place which allows applicants to submit complaints regarding: (a) the conduct of staff at consulates and, where applicable, of the external service providers; or (b) the application process. Consulates or central authorities shall keep a record of complaints and the followup given. Member States shall make information on the procedure provided for in this paragraph available to the public. 1

Article 37 reiterates that the Member States are responsible for organising the visa sections of their consulates. Nevertheless, Articles 37 and 38 contain some obligations for the Member States intended to ensure the quality of the visa service to the public and the integrity of the visa issuing procedure, which have been challenged by lack of resources. Article 38(1a) was introduced by amending Regulation (EU) 2019/1155 and provides an obligation for the Member States to deploy expatriate staff to monitor the visa procedure in consulates, including the practical cooperation with external service providers, to ensure the integrity of the visa issuing procedure. Article 38(3a) and (3b) has also been newly introduced, and responds to concerns that the examination of applications may not be sufficiently thorough in case of centralised decision-making.278 Generally, understaffing and lack of appropriate training have been highlighted as recurring deficiencies by Schengen evaluation reports and Local Schengen Cooperation reports, with concerns in relation to the quality and integrity of the visa examination process.279 Article 38(5) introduces a new obligation for the Member States to have in place a complaint procedure in relation to the conduct of staff at consulates and of external service providers, and in relation to the application process. In a public consultation launched by the Commission in 2013, a third of the 1,084 respondents, representing 17 nationalities, rated consular staff as not friendly. Most respondents found that external service providers were poorly informed and that they refused to accept applications for multiple-entry visas.280 In a subsequent public consultation launched by the Commission in November 2017, involving 1929 respondents from a broad range of nationalities, 23 % of the respondents thought that the visa procedure 278

Commission Report, COM(2020) 779 final, p. 9. Commission Staff Working Document, SWD(2018) 77 final, p. 12–13; Council doc. 13589/20 of 2 December 2020; Commission Report, COM(2020) 779 final, p. 9. 280 see Fundamental Rights Agency, Annual Report 2013, p. 70. 279

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had become worse in recent years, with some remarking that the process was humiliating. The length of the procedure was rated as the most difficult part of the visa application procedure by 26 % of respondents, followed by the total cost of the procedure including the visa fee (24 %) and the requirement to apply in person (24 %).281 The Commission has also received many complaints about the long waiting times for obtaining a visa especially during peak times, which are identified as resulting from consulates lacking sufficient financial and human resources, particularly following cuts and a decrease in consular coverage of 24 % between 2014 and 2018.

Article 39 Conduct of staff 1. Member States’ consulates shall ensure that applicants are received courteously. 2. Consular and central authorities’ staff shall, in the performance of their duties, fully respect human dignity. Any measures taken shall be proportionate to the objectives pursued by such measures. 3. While performing their tasks, consular and central authorities’ staff shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 39 establishes an obligation for staff to receive visa applicants courteously and 1 respect human dignity and the principle of non-discrimination, a fundamental norm of the EU legal order (see Article 21 MN 2).282 When the Member States rely on external service providers under Article 43, they are under an obligation to ensure that they also respect these provisions. Under Article 38(5) the Member States have an obligation to have in place a complaint procedure in relation to the conduct of staff at consulates and of external service providers, and in relation to the application process (see above Article 38 MN 1). Furthermore, interpreting Article 39 by analogy with similar provisions in the Schengen Borders Code Regulation (EU) 2016/399, it is apparent from ECJ case law that, while the right of appeal in Article 32 relates exclusively to decisions refusing a visa and does not extend to infringements committed in the procedure leading to the adoption of a decision authorising entry, it is for Member States to provide in their domestic legal system for the appropriate legal remedies to ensure the protection of persons claiming the rights derived from Article 39 in compliance with Article 47 CFR.283

Article 40 Consular organisation and cooperation 1. Each Member State shall be responsible for organising the procedures relating to applications. 2. Member States shall: (a) equip their consulates and authorities responsible for issuing visas at the borders with the requisite material for the collection of biometric identifiers, as well as the offices of their honorary consuls, where they make use of them, to collect biometric identifiers in accordance with Article 42; 281

Commission Staff Working Document, SWD(2018) 77 final, p. 58–59. Articles 1 and 21 CFR. 283 ECJ, Mohamad Zakaria, C-23/12, EU:C:2013:24, para 40. 282

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(b) cooperate with one or more other Member States under representation arrangements or any other form of consular cooperation. 3. A Member State may also cooperate with an external service provider in accordance with Article 43. 4. Member States shall notify to the Commission their consular organisation and cooperation in each consular location. 5. In the event of termination of cooperation with other Member States, Member States shall strive to assure the continuity of full service. 1

Article 40 reiterates that each Member State is responsible for organising the procedures relating to applications. Article 40(2)(b) mandates Member States to cooperate with one or more Member States under representation arrangements or ‘any other form of consular cooperation’, unlike Article 8, regulating representation, which only establishes soft obligations (see Article 5 MN 2). Under Article 8, representation may concern the whole process of examining and deciding on applications, or may be limited to the collection of applications and biometric identifiers. Following amending Regulation (EU) 2019/1155, the term ‘any other form of consular cooperation’ has replaced the reference to co-location and common application centres, and Article 41, which specifically covered these two forms of cooperation, has been deleted. These forms of cooperation proved not to be feasible and were hardly used by the Member States which consider representation under Article 8 and cooperation with external service providers under Article 43 as the cheapest and easiest forms of cooperation.284 Indeed, Article 40 also establishes the possibility for Member States to cooperate with external service providers under Article 43. As a result of amending Regulation (EU) 2019/1155, such cooperation is not any longer treated by Article 40 as ‘a last resort’ measure.

Article 42 Recourse to honorary consuls […]

Article 43 Cooperation with external service providers 1. Member States shall endeavour to cooperate with an external service provider together with one or more Member States, without prejudice to public procurement and competition rules. 2. Cooperation with an external service provider shall be based on a legal instrument that shall comply with the requirements set out in Annex X. 4. The examination of applications, interviews (where appropriate), the decision on applications and the printing and affixing of visa stickers shall be carried out only by the consulate. 5. External service providers shall not have access to the VIS under any circumstances. Access to the VIS shall be reserved exclusively to duly authorised staff of consulates or of the central authorities. 284 Commission Proposal, COM(2018) 252 final, p. 13; Commission Staff Working Document, SWD (2014) 101 final, p. 32.

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6. An external service provider may be entrusted with the performance of one or more of the following tasks: (a) providing general information on visa requirements, in accordance with points (a) to (c) of Article 47(1), and application forms; (b) informing the applicant of the required supporting documents, on the basis of a checklist; (c) collecting data and applications (including collection of biometric identifiers) and transmitting the application to the consulate or the central authorities; (d) collecting the visa fee; (e) managing the appointments for the applicant, where applicable, at the consulate or at the premises of an external service provider; (f) collecting the travel documents, including a refusal notification if applicable, from the consulate or the central authorities and returning them to the applicant. 7. When selecting an external service provider, the Member State concerned shall assess the reliability and solvency of the organisation or company and ensure that there is no conflict of interests. The assessment shall include, as appropriate, scrutiny of the necessary licences, commercial registration, statutes and bank contracts. 8. The Member State(s) concerned shall ensure that the external service provider selected complies with the terms and conditions assigned to it in the legal instrument referred to in paragraph 2. 9. Member States shall be responsible for compliance with the rules on the protection of personal data and ensure that the external service provider is subject to monitoring by the data protection supervisory authorities pursuant to Article 51(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council(9). 10. The Member State(s) concerned shall provide training to the external service provider, corresponding to the knowledge needed to offer an appropriate service and sufficient information to applicants. 11. The Member State(s) concerned shall closely monitor the implementation of the legal instrument referred to in paragraph 2, including: (a) the general information on the criteria, conditions and procedures for applying for a visa, as set out in points (a) to (c) of Article 47(1), and the content of the application forms provided by the external service provider to applicants; (b) all the technical and organisational security measures required to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the cooperation involves the transmission of files and data to the consulate or the central authorities of the Member State(s) concerned, and all other unlawful forms of processing personal data; (c) the collection and transmission of biometric identifiers; (d) the measures taken to ensure compliance with data protection provisions. To this end, the consulate(s) or the central authorities of the Member State(s) concerned shall, on a regular basis and at least every nine months, carry out spot checks on the premises of the external service provider. Member States may agree to share the burden of this regular monitoring.

(9) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

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Chp. 3 Art. 43

Visa Code Regulation (EC) No 810/2009

11a. By 1 February each year, Member States shall report to the Commission on their cooperation with, and monitoring, as referred to in point C of Annex X, of external service providers worldwide. 12. In the event of termination of cooperation with an external service provider, Member States shall ensure the continuity of full service. 13. Member States shall provide the Commission with a copy of the legal instrument referred to in paragraph 2. Article 43(1), following from Article 8(10) and Article 40(3), provides that Member States shall endeavour to cooperate with an external service provider. Such cooperation is considered indispensable by the Member States for visa processing and has grown exponentially between 2014 and 2018, with an increase of 840 % in the locations covered by external service providers, which in 2018 amounted to 1263.285 Under Article 43(2), cooperation between a Member State and an external service provider must be based on a legal agreement that fulfils the requirements set in Annex 10 relating to the activities to be performed by the external service provider, data protection, staff selection, training and conduct, as well as monitoring and inspection of the external service provider’s activities by the Member States. Article 44(7) to (11) further establishes rules in relation to the selection, training and monitoring of the external service provider by the Member State. A report under the Schengen evaluation mechanism in 2020 identified however as a recurring deficiency that the monitoring of external service providers ‘was not always adequate and contracts and practices did not always comply with legal requirements’,286 and a consensus has emerged in favour of strengthening the applicable legal framework.287 2 Article 43(6) establishes which activities can be entrusted to external service providers, including providing information to the public and collecting applications and biometrics from visa applicants. Article 43(4) and (5) reiterates that the examination of applications, interviews, the decision on applications and access to the VIS are solely for consulates or central authorities. Similarly, external service providers must not become aware of the results of applications that they deal with. However, the impact that external service providers have on visa issuing remains controversial.288 There have been, for example, many complaints of poorly informed external service provides, and of external service providers refusing to accept applications for multiple-entry visas or applications which were considered incomplete.289 This is a serious problem as it constitutes an interference with the Member States’ sole responsibility to assess visa applications and impedes the exercise of Member States’ discretion under Article 19(4) on admissibility of applications, Article 24(2c) on multiple-entry visas and Article 25(1) on limited territorial validity visas. For applicants, the situation is exacerbated by the fact that the obligation whereby the Member States had to grant direct access to consulates to visa applicants when cooperating with external service providers has been removed from the Visa Code (see Article 17 MN 2). In this context, a relating problem faced by applicants is that the service fee charged by the external service provider can make the visa application considerably more expensive. Furthermore, the legal agreement between the external service provider and the Member State may allow for the provision of additional services 1

285

Commission Staff Working Document, SWD(2018) 77 final, p. 8, 50 and 71. Commission Report, COM(2020) 779 final, p. 9. 287 Commission Staff Working Document, SWD(2018) 77 final, p. 50, 74 and 88. 288 Sanchez-Barrueco, Business as usual; Infantino, Outsourcing Border Control: Politics and Practice of Contracted Visa Policy in Morocco (Palgrave Macmillan, 2016). 289 Commission Report, SWD(2020) 327, p. 9; Commission Staff Working Document, SWD(2014) 101 final, p. 34; Fundamental Rights Agency, Annual Report 2013, p. 70. 286

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Art. 47

Chp. 3

by the external service provider for additional fees, including assistance with filling the application, courier services and VIP services.290 When this is the case, the Member State is under an obligation to instruct the service provider to clearly inform applicants that such additional services are optional, but some applicants will still consider them as indispensable. In this context, following a Schengen evaluation report, the Council recommended to a Member State, for example, ‘to ensure that payments for premium services do not allow the applicant to obtain an appointment at the external service provider any earlier than applicants who do not pay for optional services’.291 A further problem linked to outsourcing relates to data security.292 There are categories of applicants, such as human rights defenders, who are particularly reluctant to entrust their personal data to external services providers, and, on occasions, external service providers have been responsible for serious breaches of data security.293

Article 44 Encryption and secure transfer of data […]

Article 45 Member States’ cooperation with commercial intermediaries […]

Article 46 Compilation of statistics294 […]

Article 47 Information to the general public […] 290 Visa Code Handbook II, Commission Implementing Decision, C(2020) 1764 final, para 5.3; see also Sanchez-Barrueco, Business as usual, p. 394–395. On aggressive selling of optional services in relation to UK visas by Visa Facilitation Service (VFS), see The Independent, ‘How Home Office makes millions a week from outsourcing visas to Dubai-based firm accused of exploitation’, 19 August 2019, available at: https://www.independent.co.uk/news/uk/home-news/home-office-vfs-visas-profit-subcontracted-contractoutsourcing-premium-services-exploited-a9056446.html [last accessed 14 April 2021]. 291 Council doc. 13589/20 of 2 December 2020, p. 8. 292 See, for example, Sanchez-Burrueco, Business as usual, p. 396–397, on possible conflict of interests affecting sensitive information and accountability; Moreno-Lax, Accessing Asylum, p. 113. 293 See, for example, the Guardian, ‘Users’ data compromised after technical glitch at Home Office contractor’, 17 July 2015, available at: https://www.theguardian.com/technology/2015/jul/17/users-datacompromised-after-technical-glitch-at-home-office-contractor [last accessed 11 April 2021]; Costelloe Baker, ‘Report of the Independent Investigation: Breach of data security in VFS online UK visa application facility, operated through VFS website in India, Nigeria and Russia’, 16 July 2007, available at: https://www. statewatch.org/media/documents/news/2007/jul/uk-visa-security-report.pdf [last accessed 11 April 2021]. 294 Article 46 has been deleted by Reg 2021/1134.

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Chp. 3 Art. 48

Visa Code Regulation (EC) No 810/2009

TITLE V LOCAL SCHENGEN COOPERATION Article 48 Local Schengen cooperation between Member States’ consulates 1. Consulates and the Union delegations shall cooperate within each jurisdiction to ensure a harmonised application of the common visa policy taking into account local circumstances. To that end, in accordance with Article 5(3) of Council Decision 2010/427/EU(10), the Commission shall issue instructions to Union delegations to carry out the relevant coordination tasks provided for in this Article. Where applications lodged in the jurisdiction concerned are examined and decided on by central authorities as referred to in Article 4(1a), Member States shall ensure the active involvement of those central authorities in local Schengen cooperation. The staff contributing to local Schengen cooperation shall be adequately trained and involved in the examination of applications in the jurisdiction concerned. 1a. Member States and the Commission shall, in particular, cooperate in order to: (a) prepare a harmonised list of supporting documents to be submitted by applicants, taking into account Article 14; (b) prepare a local implementation of Article 24(2) regarding the issuing of multiple-entry visas; (c) ensure a common translation of the application form, where relevant; (d) establish the list of travel documents issued by the host country and update it regularly; (e) draw up a common information sheet containing the information referred to in Article 47(1); (f) monitor, where relevant, the implementation of Article 25a(5) and (6). 3. Member States under local Schengen cooperation shall exchange the following information: (a) quarterly statistics on uniform visas, visas with limited territorial validity, and airport transit visas applied for, issued, and refused; (b) information with regard to the assessment of migratory and security risks, in particular on: (i) the socio-economic structure of the host country; (ii) sources of information at local level, including social security, health insurance, fiscal registers and entry-exit registrations; (iii) the use of false, counterfeit or forged documents; (iv) irregular immigration routes; (v) trends in fraudulent behaviour; (vi) trends in refusals; (c) information on cooperation with external service providers and with transport companies; (d) information on insurance companies providing adequate travel medical insurance, including verification of the type of coverage and possible excess amount. (10) Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service (OJ L 201, 3.8.2010, p. 30).

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Art. 48

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4. Local Schengen cooperation meetings to deal specifically with operational issues in relation to the application of the common visa policy shall be organised regularly among Member States and the Commission. These meetings shall be convened within the jurisdiction by the Commission, unless otherwise agreed at the request of the Commission. Single-topic meetings may be organised and sub-groups set up to study specific issues within local Schengen cooperation. 5. Summary reports of local Schengen cooperation meetings shall be drawn up systematically and circulated locally. The Commission may delegate the drawing up of the reports to a Member State. The consulates of each Member State shall forward the reports to their central authorities. 6. Representatives of the consulates of Member States not applying the Community acquis in relation to visas, or of third countries, may on an ad hoc basis be invited to participate in meetings for the exchange of information on issues relating to visas. 7. An annual report shall be drawn up within each jurisdiction by 31 December each year. On the basis of those reports, the Commission shall draw up an annual report on the state of local Schengen cooperation to be submitted to the European Parliament and to the Council. Local Schengen Cooperation (LSC) developed during the 1990s as a marginal and 1 voluntary intergovernmental mechanism coordinated by the Presidency of the Council to become, under the Visa Code, increasingly structured under the coordination of the Commission via Union delegations.295 The objective of LSC is to achieve a harmonised practical application of the provisions in the Visa Code taking into account local circumstances. Thus, Article 48(1a) lists the items to be produced by way of cooperation. The list of supporting documents for each jurisdiction (see Article 14 MN 2) and the local adaptation of the rules on the issuing of multiple-entry visas (see Article 24 MN 3), in particular, are to be formally adopted by the Commission through an implementing decision following a positive opinion by the Visa Committee (Article 52(2)). LSC further envisages exchange of information in relation to the matters listed in Article 48(3).296 While the Visa Handbook provides that ‘as a part of local Schengen cooperation, consulates should define “profiles” of applicants presenting a specific risk, according to local conditions and circumstances which also takes account of the general situation in the country of residence’,297 the Visa Handbook II advises against the establishment of arbitrary ‘alert or warning’ lists, following exchange of information, which could be problematic from the point of view of non-discrimination and data protection requirements, recommending consultation of the national data protection authority. The Visa Handbook II also instructs consulates to refrain from introducing local visa bans, recommending the use of the SIS instead.298

295 Fernandez, ‘Towards a EU Consular Policy’, in: Batora/Spence (eds), The European External Action Service – European Diplomacy Post Westphalia (Palgrave, 2015), p. 356. 296 Information is also to be exchanged under Article 22(3) on prior consultation and Article 31(2) on ex-post notification. 297 Commission Implementing Decision, C(2010) 1620 final, as amended, C(2014) 2727 final Part II, para 6.13. 298 See Commission Implementing Decision, C(2020) 1764 final, Part II, para 1.2.

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Chp. 3 Art. 49

Visa Code Regulation (EC) No 810/2009

TITLE VI FINAL PROVISIONS Article 49 Arrangements in relation to the Olympic Games and Paralympic Games […]

Article 51 Instructions on the practical application of this Regulation The Commission shall by means of implementing acts adopt the operational instructions on the practical application of the provisions of this Regulation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 52(2). 1

Under this provision, the Commission has adopted the Handbook for the processing of visa applications and the modification of issued visas (Visa Code Handbook I) and the Handbook for the administrative management of visa processing and local Schengen cooperation (Visa Code Handbook II) which are non-legally binding.299

Article 51a Exercise of the delegation […]

Article 52 Committee procedure 1. The Commission shall be assisted by a committee (the ‘Visa Committee’). That committee shall be a committee within the meaning of Regulation (EU) No 182/ 2011 of the European Parliament and of the Council(12). 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. Where the Committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply. 1

Article 52 has been amended by Regulation (EU) 2019/1155 to take into account the adoption of Regulation (EU) No 182/2011 on mechanisms for control by Member 299 Respectively, Commission Implementing Decision, C(2010) 1620 final, as amended, and Commission Implementing Decision, C(2020) 1764 final. (12) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

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ANNEX II

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States of the Commission’s exercise of implementing powers (committee procedure), following the introduction of Article 291 TFEU. It provides for the application of the ‘examination procedure’ for the adoption of Commission implementing acts envisaged by the Visa Code to establish the list of supporting documents for each jurisdiction (Article 14(5a)), the local adaptation of the rules on issuing multiple-entry visas (Article 24(2d)), the rules on filling in the visa sticker (Article 27(1)), the rules on affixing a visa sticker (Article 29(1a)), the operational instructions for issuing visas at the border to seafarers (Article 35(2a)) and the operational instruction under Article 51.

Article 53 Notification […]

Article 54 Amendments to Regulation (EC) No 767/2008 […]

Article 56 Repeals […]

Article 57 Monitoring and evaluation […]

Article 58 Entry into force […]

ANNEX I Harmonised application form […]

ANNEX II Non-exhaustive list of supporting documents […] Meloni

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Chp. 3 ANNEX III

Visa Code Regulation (EC) No 810/2009

ANNEX III UNIFORM FORMAT AND USE OF THE STAMP INDICATING THAT A VISA APPLICATION IS ADMISSIBLE […]

ANNEX IV Common list of third countries listed in Annex I to Regulation (EC) No 539/2001, whose nationals are required to be in possession of an airport transit visa when passing through the international transit area of airports situated on the territory of the Member States […]

ANNEX V LIST OF RESIDENCE PERMITS ENTITLING THE HOLDER TO TRANSIT THROUGH THE AIRPORTS OF MEMBER STATES WITHOUT BEING REQUIRED TO HOLD AN AIRPORT TRANSIT VISA […]

ANNEX VI STANDARD FORM FOR NOTIFYING REASONS FOR REFUSAL, ANNULMENT OR REVOCATION OF A VISA REFUSAL/ANNULMENT/REVOCATION OF VISA

(19)

Ms/Mr …, □

The … embassy/consulate-general/consulate/[other competent authority] in … [on behalf of (name of represented Member State)]; [Other competent authority] of …; The authorities responsible for checks on persons at …

□ □

has/have □ □ □

examined your application; examined your visa, number: …, issued: … [date/month/year]. The visa has been re□ The visa has □ The visa has been refused been annulled voked

(19)

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No logo is required for Norway, Iceland, Liechtenstein and Switzerland.

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ANNEX VI

Chp. 3

This decision is based on the following reason(s): □ □

1. 2.

a false/counterfeit/forged travel document was presented justification for the purpose and conditions of the intended stay was not provided 3. □ you have not provided proof of sufficient means of subsistence, for the duration of the intended stay or for the return to the country of origin or residence, or for the transit to a third country into which you are certain to be admitted 4. □ you have not provided proof that you are in a position to lawfully acquire sufficient means of subsistence, for the duration of the intended stay or for the return to the country of origin or residence, or for the transit to a third country into which you are certain to be admitted 5. □ you have already stayed for 90 days during the current 180-day period on the territory of the Member States on the basis of a uniform visa or a visa with limited territorial validity 6. □ an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry by … (indication of Member State) 7. □ one or more Member States consider you to be a threat to public policy or internal security 8. □ one or more Member States consider you to be a threat to public health as defined in point (21) of Article 2 of Regulation (EU) No 2016/399 (Schengen Borders Code) 9. □ one or more Member States consider you to be a threat to their international relations 10. □ the information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable 11. □ there are reasonable doubts as to the reliability of the statements made as regards … (please specify) 12. □ there are reasonable doubts as to the reliability, as to the authenticity of the supporting documents submitted or as to the veracity of their contents 13. □ there are reasonable doubts as to your intention to leave the territory of the Member States before the expiry of the visa 14. □ sufficient proof that you have not been in a position to apply for a visa in advance, justifying application for a visa at the border, was not provided 15. □ justification for the purpose and conditions of the intended airport transit was not provided 16. □ you have not provided proof of possession of adequate and valid travel medical insurance 17. □ revocation of the visa was requested by the visa holder(20). Additional remarks: … … … (20)

Revocation of a visa based on this reason is not subject to the right of appeal.

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Chp. 3 ANNEX X

Visa Code Regulation (EC) No 810/2009

… … You may appeal against the decision to refuse/annul/revoke a visa. The rules on appeal against decisions on refusal/annulment/revocation of a visa are set out in (reference to national law): … Competent authority with which an appeal may be lodged (contact details): … Information on the procedure to follow can be found at (contact details): … An appeal must be lodged within (indication of time-limit): … Date and stamp of embassy/consulate-general/consulate/of the authorities responsible for checks on persons/of other competent authorities: Signature of person concerned(21): …

ANNEX X LIST OF MINIMUM REQUIREMENTS TO BE INCLUDED IN THE LEGAL INSTRUMENT IN THE CASE OF COOPERATION WITH EXTERNAL SERVICE PROVIDERS […]

ANNEX XI SPECIFIC PROCEDURES AND CONDITIONS FACILITATING THE ISSUING OF VISAS TO MEMBERS OF THE OLYMPIC FAMILY PARTICIPATING IN THE OLYMPIC GAMES AND PARALYMPIC GAMES […]

ANNEX XII ANNUAL STATISTICS ON UNIFORM VISAS, VISAS WITH LIMITED TERRITORIAL VALIDITY AND AIRPORT TRANSIT VISAS300 […]

ANNEX XIII CORRELATION TABLE […] (21) 300

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If required by national law. Annex XII has been deleted by Reg 2021/1134.

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Chapter 4. Sea Borders Regulation (EU) No 656/2014 Select Bibliography: Barnes, ‘The International Law of the Sea and Migration Control’, in: Ryan/ Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Brill, 2010), p. 103–150; Coppens, ‘Interception of Migrant Boats at Sea’, in: Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill, 2016), p. 197–221; Cusumano/Gombeer, ‘In Deep Waters: The Legal, Humanitarian and Political Implications of Closing Italian Ports to Migrant Rescuers’, Mediterranean Politics 25 (2020), p. 245–253; Den Heijer, Europe and Extraterritorial Asylum (Hart, 2012); Den Heijer, ‘Reflections on Refoulement and Collective Expulsion in the Hirsi Case’, IJRL 25 (2013), p. 265–290; Den Heijer, ‘Frontex and the Shifting Approaches to Boat Migration in the European Union. A Legal Analysis’, in: Zaiotti (ed), Externalizing Migration Management: Europe, North America and the Spread of ‘Remote Control’ Practices (Routledge, 2016), p. 53–71; Fink, Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’ under the ECHR and EU Public Liability Law (OUP, 2018); Giuffré, ‘Access to Asylum at Sea? Non-refoulement and a Comprehensive Approach to Extraterritorial Human Rights Obligations’, in: Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill, 2016); Gombeer/Fink, ‘Non-Governmental Organisations and Search and Rescue at Sea’, Maritime Safety and Security Law Journal 4 (2018), p. 1–25; Klepp, ‘A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea: A Legal Anthropological Perspective on the Humanitarian Law of the Sea,’ IJRL 23 (2011), p. 538–557; Markard, ‘A Hole of Unclear Dimensions: Reading ND and NT v. Spain’, EU Immigration and Asylum Law Blog of 1 April 2020, available at: https://eumigrationlawblog.eu/a-hole-of-unclear-dimensions-reading-nd-and-nt-v-spain/ [last accessed 6 May 2021]; Moreno-Lax, ‘The EU Regime on Interdiction, Search and Rescue, and Disembarkation: The Frontex Guidelines for Intervention at Sea’, International Journal of Marine and Coastal Law 25 (2010), p. 621–635; Moreno-Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’, Human Rights Law Review 12 (2012), p. 574–598; Moreno-Lax, ‘The Architecture of Functional Jurisdiction: Unpacking Contactless Control – On Public Powers, S.S. and Others v. Italy: and the “Operational Model”’, German Law Journal 21 (2020), p. 385–416; Papanicolopulu, International Law and the Protection of People at Sea (OUP, 2018); Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Hart, 2014); Papastavridis, ‘The European Convention of Human Rights and Migration at Sea: Reading the “Jurisdictional Threshold” of the Convention Under the Law of the Sea Paradigm’, German Law Journal 21 (2020), p. 417–435; Ryan, ‘Extraterritorial Immigration Control: What Role for Legal Guarantees?’, in: Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Brill, 2010), p. 3–38; Ryan, ‘The Migration Crisis and the European Union Border Regime’, in: Cremona/Scott (eds), EU Law Beyond EU Borders: The Extraterritorial Reach of EU Law (OUP, 2019); Scovazzi, ‘Human Rights and Immigration at Sea’, in: Rubio-Marín (ed), Human Rights and Immigration (OUP, 2014), p. 212–260; Thym, ‘The End of Human Rights Dynamism? Judgments of the ECtHR on ‘Hot Returns’ and Humanitarian Visas as a Focal Point of Contemporary European Asylum Law and Policy’, IJRL 33 (2021); Trevisanut, ‘Search and Rescue Operations in the Mediterranean: Factor of Cooperation or Conflict?’, International Journal of Marine and Coastal Law 25 (2010), p. 523–542; Trevisanut, ‘Is there a right to be rescued at sea? A constructive view’ Questions of International Law 4 (2014), p. 3–15. Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Ryan

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Chp. 4 Art. 1

Sea Borders Regulation (EU) No 656/2014

Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union Official Journal L 189, 27/06/2014, p. 93–107 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular point (d) of Article 77(2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Acting in accordance with the ordinary legislative procedure(1), Whereas: […] HAVE ADOPTED THIS REGULATION:

CHAPTER I GENERAL PROVISIONS Article 1 Scope This Regulation shall apply to border surveillance operations carried out by Member States at their external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. Content I. General Remarks............................................................................................. II. Legislative history............................................................................................ III. Textual analysis ...............................................................................................

mn. 1 5 9

I. General Remarks 1

Regulation (EU) 656/2014, known as the Sea Borders Regulation, sets out a legal framework for Member States, and vessels under their command, when engaged in the surveillance of the Schengen external sea border within operations co-ordinated by (1) Position of the European Parliament of 16 April 2014 (OJ C 443 22.12.2017 p. 931) and decision of the Council of 13 May 2014.

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Art. 1

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Frontex. Its provisions cover the interception of vessels for border surveillance purposes, and associated search and rescue operations. The background to its adoption was sustained patterns of irregular migration by sea, evident since around 2000, towards southern EU states.1 These migration patterns have moreover continued, at times with increased intensity, since 2014. In the Western Mediterranean and the Atlantic, irregular migration by sea has 2 involved departures from Morocco, Senegal and Mauritius and elsewhere towards Spanish territory, to which Spain has responded through bilateral co-operation arrangements with those states, aimed at the prevention of departures.2 Since 2006, Frontex has provided support on sea migration routes from West Africa to Canary Islands (Operation Hera), and from North Africa towards Spanish Mediterranean coasts (Operation Indalo). In the Central Mediterranean, the primary focus has been on sea routes from Libya 3 and Tunisia towards Lampedusa and other Italian coasts, and Malta.3 From 2007, Frontex supported Italy in border surveillance through Operations Hermes and Aeneas. Separately, Italy operated an interception-and-return arrangement with Libya in 2009 and 2010, which was effectively declared contrary to the ECHR in Hirsi Jamaa in 2012 (see below, MN 4c). After a tragedy involving the death of an estimated 368 persons off Lampedusa on 3 October 2013, Italy introduced an extensive search and rescue operation, known as Mare Nostrum, but in October 2014, both it and the earlier Frontex missions were replaced by Frontex’s Operation Triton, focused on border surveillance off Italian coasts.4 In 2015, two further tragedies off Libya, which together saw the loss of an estimated 1200 persons, led to the deployment of an EU naval mission to disrupt migrant smuggling in international waters off Libya (EUNAVFOR Med, which operated until 2020). As these initiatives saw the arrival of over 100,000 rescued persons a year in Italy, from 2017 its Government changed tack, supporting rescue by the Libyan Coast Guard, and closing its ports to persons rescued by NGO vessels.5 Throughout, Malta has stayed outside of Frontex co-operation, in part because it refuses to accept that responsibility for a search and rescue zone, or the co-ordination of a rescue, should lead to an obligation to allow disembarkation of those rescued.6 In the Eastern Mediterranean, the primary routes of irregular migration by sea have 4 been from Turkey to Greece’s Aegean islands. Since 2006, Frontex has supported Greece in border surveillance in this area through Operation Poseidon. Here, the peak of the migration/refugee crisis saw the arrival of more than 1 million persons in total in 2015 1 On the history, see Ryan, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges, p. 31–35; Fargues/Bonfanti, When the best option is a leaky boat: Why migrants risk their lives crossing the Mediterranean and what Europe is doing (Migration Policy Centre, European University Institute, 2014). 2 García Andrade, ‘Extraterritorial strategies to tackle irregular immigration by sea: A Spanish perspective’, in: Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Brill, 2010), p. 318–333. 3 Di Pascale, ‘Italy and Unauthorized Migration: Between State Sovereignty and Human Rights Obligations’, in: Rubio-Marín (ed), Human Rights and Immigration (OUP, 2014), p. 303–305. 4 In 2018, Frontex replaced Operation Triton with Operation Themis, with a broader law enforcement mission: information available at: https://frontex.europa.eu/we-support/main-operations/operation-themis-italy-/ [last accessed 6 May 2021]. 5 Palm, ‘The Italy-Libya Memorandum of Understanding: The baseline of a policy approach aimed at closing all doors to Europe?’, EU Immigration and Asylum Law Blog of 13 September 2017, available at: https://eumigrationlawblog.eu/the-italy-libya-memorandum-of-understanding-the-baseline-of-a-policyapproach-aimed-at-closing-all-doors-to-europe/ [last accessed 6 May 2021]; Ryan, in Cremona/Scott (eds), EU Law Beyond EU Borders, p. 206–210; Cusumano/Gombeer, In Deep Waters, p. 245–253. 6 Klepp, A Double Bind, p. 549–550; Trevisanut, Search and Rescue Operations in the Mediterranean, p. 531.

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Chp. 4 Art. 1

Sea Borders Regulation (EU) No 656/2014

and 2016. That led the EU to enter into an arrangement in 2016 with Turkey, to secure its co-operation in preventing irregular departures by sea and the readmission of asylum applicants, in exchange for support for refugees in Turkey, including some resettlement to the EU.7 Border measures in this region have attracted particular controversy, with allegations of migrants being returned to sea from Greek islands, and pushbacks by the Greek coast guard.8 Evidence of the latter in the context of Operation Poseidon during 2020 prompted a critical report by a Frontex working group, and an investigation by the European Parliament’s LIBE Committee.9 4a A more recent development has seen the introduction of maritime surveillance mission in the Black Sea, a part of a Frontex operation called ‘Focal Points’.10 This mission is in support of border surveillance by Bulgaria and Romania, and focuses on irregular sea routes from Turkey and Ukraine. 4b Member States are bound by the international law of the sea during border surveillance operations. According to recital 8 to the Regulation, the sources of such obligations include the United Nations Convention on the Law of the Sea (‘UNCLOS’), the International Convention for the Safety of Life at Sea 1974 (‘SOLAS’), the International Convention on Maritime Search and Rescue (‘SAR Convention’), the UN Migrant Smuggling Protocol, the Refugee Convention, the ECHR, the ICCPR and the UN Convention against Torture (‘CAT’). These instruments are discussed where relevant in this chapter. 4c Developments concerning irregular sea crossings, interception and rescue at the EU’s external borders have led to repeated litigation concerning the applicability of international human rights instruments on the high seas. In 2008 and 2011, the UN Committee Against Torture found Spain responsible under the CAT for the treatment of persons intercepted and/or rescued in operations at sea, once there was effective control over those persons.11 In Hirsi Jamaa in 2012, the ECtHR held that a contracting state has ‘jurisdiction’ over individuals when a state vessel either intercepts or rescues them on the high seas, as it thereby acquires de jure and de facto control over them.12 The outcome in Hirsi Jamaa was a finding that return of individuals to Libya violated the prohibition in Article 3 ECHR upon inhuman and degrading treatment and punishment, the protection against collective expulsion in Article 4 Protocol 4 ECHR, and the associated right to an effective remedy in Article 13 ECHR.13 The UN Human Rights Committee too has held that the ICCPR has extraterritorial application in relation to interception and rescue at sea. Its General Comment 36 on the right to life (2018) states that Article 6 ICCPR covers ‘persons located outside any territory effectively controlled 7 Alpes/Tunaboylu/van Liempt, Human Rights Violations by Design: EU-Turkey Statement Prioritises Returns from Greece Over Access to Asylum (Migration Policy Centre, 2017); Ryan, in Cremona/Scott (eds), EU Law Beyond EU Borders, p. 222–226. 8 See Cortinovis, Pushbacks and lack of accountability at the Greek-Turkish borders (CEPS, 2021). 9 Fundamental Rights and Legal Operational Aspects of Operations in the Aegean Sea: Final Report of the Frontex Management Board Working Group (Frontex, 1 March 2021); Frontex: MEPs to investigate alleged violations of fundamental rights (European Parliament, 23 February 2021). 10 Frontex, Annual Report on the Implementation of Regulation (EU) 656/2014 (27 August 2020), p. 10. 11 UN Committee Against Torture, Decision of 21 November 2008, Communication No 323/2007, JHA v. Spain (rescue and detention) and Decision of 25 November 2011, Communication No 368/2008, Sonko v. Spain (interception, leading to loss of life). 12 ECtHR, Judgment of 23 February 2012 (GC), No 27765/09, Hirsi Jamaa and others v. Italy. See Den Heijer, Reflections, p. 265; Moreno-Lax, Hirsi Jamaa, p. 574–598, Scovazzi, in Rubio-Marín (ed), Human Rights and Immigration, p. 252–257. 13 On the implications of the ECHR for applications for asylum at sea, in the light of Hirsi, see Giuffré, in Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea, p. 262–272.

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by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner’. That position was applied in the Committee’s conclusions in 2020 on complaints against Malta and Italy arising out of the 2013 Lampedusa tragedy.14 (On the implications of the right to life for search and rescue, see further below, Article 9 MN 2a.) The full reach of European states’ obligations under international human rights, in respect of guarantees against expulsion and the right to life, remains uncertain, however.15

II. Legislative history The EU institutional process which led eventually to the Sea Borders Regulation 5 (EU) 656/2014 began with the publication of a Commission staff working document in 2007 of international law instruments relating to irregular migration by sea.16 That was followed by a call by the European Council in June 2009 for ‘clear rules of engagement’ for Frontex operations at sea.17 The first legislative result was Council Decision 2010/252/EU on sea border 6 surveillance in the context of Frontex operations, which set out binding rules in relation to interceptions, and ‘guidelines’ in relation to rescue.18 Decision 2010/252 was adopted using the comitology procedure, relying upon a power in the former Schengen Borders Code Regulation (EC) No 562/2006 to adopt ‘additional rules’ concerning border surveillance.19 Although the Decision lacked the support of the European Parliament, there was not the absolute majority necessary to veto it.20 Instead, the European Parliament challenged the legality of reliance upon Article 12(5) before the Court of Justice.21 The legal action succeeded, with the Court concluding that the rules concerning interception and rescue required political choices, and were not merely ‘additional’ within the meaning of the legislation.22 The ruling maintained the effects of Decision 2010/252 for a reasonable time until the entry into force of new rules.

14 Human Rights Committee, General Comment 36 on Article 6 ICCPR on the right to life, UN doc. CCPR/C/GC/36 (2018), para 63; Decision concerning Communication 3043/2017, AS and others v. Malta, UN doc. CCPR/C/128/D/3043/2017 (2020); Decision concerning Communication 3042/2017, AS and others v. Italy, UN doc. CCPR/C/130/D/3042/2017 (2020). 15 At the time of writing, SS and others v. Italy (Application No 21660/18) is before the ECtHR. It concerns a chaotic rescue operation off the coast of Libya in November 2017, which involved (among other actors) the Italian MRCC, an NGO vessel and a Libyan coast guard ship. The sinking of the vessel and the rescue operation together led to the deaths of at least 20 persons, while some 47 survivors were returned to Libya: see Forensic Oceanography, ‘Mare Clausum – Italy and the EU’s undeclared operation to stem migration across the Mediterranean’, May 2018, available at: https://content.forensic-architecture. org/ [last accessed 6 May 2021]. This litigation is likely to clarify the extent to which a European state has ‘jurisdiction’ under the ECHR through participation in the co-ordination of a rescue at sea and/or when it relies upon a third state’s authorities to effect interception or rescue. For an analysis of the jurisdictional issues raised by the application, see Moreno-Lax, The Architecture of Functional Jurisdiction. 16 Commission Staff Working Document, Study on the International Law Instruments in Relation to Illegal Immigration by Sea, SEC(2007) 691. 17 Brussels European Council, Presidency Conclusions (18/19 June 2009), para 37. 18 OJ 2010 L 111/20. See Moreno-Lax, The EU Regime. 19 Former Schengen Borders Code Regulation (EC) No 562/2006, Article 12(5). In the current legislation, the equivalent provision for ‘additional measures’ is in Schengen Borders Code Regulation (EU) 2016/399, Article 13(5). 20 See Den Heijer, in Zaiotti (ed), Externalizing Migration Management, p. 56. 21 See Chamon, ‘How the concept of essential elements of a legislative act continues to elude the Court: Parliament v. Council’, CML Rev. 50 (2013), p. 849–860. 22 ECJ, Parliament v. Council, C-355/10, EU:C:2012:516, para 78.

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The effect of the successful challenge to Decision 2010/252 was that any follow-up EU measure on interception and rescue had to be based upon Treaty legislative powers. The eventual Sea Borders Regulation was adopted under Article 77(2)(d) TFEU concerning ‘the gradual establishment of an integrated management system for external borders’. That is also one of the legal bases relied upon for Frontex legislation (author’s chapter on Frontex Regulation (EU) 2019/1896, Article 1 MN 13). 8 The content of the eventual Sea Borders Regulation differs from Decision 2010/252 in several respects. Because of 2011 amendments to the Frontex Regulation requiring Frontex operations to respect international obligations on search and rescue (author’s chapter on the Frontex Regulation (EU) 2019/1896, Article 3 MN 2) , the Commission proposed a Regulation which was binding in respect of both interception and rescue.23 The Commission proposal also took account of the implications of Hirsi Jamaa (above, Article 1 MN 4c) for both types of scenario.24 In the Council of Ministers, there was resistance by Mediterranean Member States to the obligatory provisions relating to rescue, as a result of which those were amended (see below, Article 9 MN 3 and 4). The European Parliament’s intervention led in particular to amendments concerning the principle of safety at sea (Article 3) and guarantees of non-refoulement (Article 4) in the compromise text.25 8a Since the Sea Borders Regulation was adopted, major reforms to Frontex legislation in 2016 and 2019 saw a substantial expansion of the Agency’s role in relation to external border control, and more extensive provision for fundamental rights (author’s chapter on Frontex Regulation (EU) No 2019/1896, Article 1 MN 11). The changes made in 2016 and 2019 have left the Sea Borders Regulation out of step with the Frontex legislation in a number of respects.26 A straightforward solution to these discrepancies would be to incorporate the principles of this Regulation into the main Frontex legislation, so that it may be updated at the same time. 7

III. Textual analysis The Sea Borders Regulation applies only to operations concerned with border surveillance. The Commission’s proposal indicated that, within the Regulation, this concept was ‘not limited to the detection of attempts at irregular border crossing’, and also included interception measures and ‘arrangements intended to address situations such as search and rescue that may arise during a sea operation’.27 That more extensive conception of ‘border surveillance’ does not cover operations whose sole or primary purpose is search and rescue, which also appear to fall outside Frontex’s remit (see chapter on Frontex Regulation (EU) 2019/1896, Article 3 MN 2). 10 Article 1 of the Regulation indicates that its scope only covers Member State activities in the context of Frontex operations. It follows that the principles in the Regulation do not apply where a host Member State engages in sea operations in parallel with, but autonomously from, a Frontex operation. (An example is the alleged practices of pushbacks by the Greek coast guard during 2020, above, MN 4.) The 9

23

Commission Proposal, COM(2013) 197, p. 5. Ibid., p. 4. 25 See below, Article 3 MN 2, and Article 4 MNs 4, 8b and 10 and associated footnotes. 26 For examples, see below, Article 1 MN 11 and 12, Article 2 MN 3, and Article 4 MN 11 and 19. 27 Commission Proposal, COM(2013) 197, pp. 4–5. 24

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Regulation is also silent as to any obligations of Member States in respect of persons rescued at sea by commercial vessels, or by vessels operated by non-governmental organisations.28 Frontex has argued that ‘it is difficult to justify’ why its operations are subject to ‘different and stricter obligations’.29 An alternative response would be to seek to extend the reach of EU regulation to other cases involving Schengen Member States (whether as flag state or coastal state). The application of the Sea Borders Regulation to Frontex may be thought to follow 11 from the references to this Regulation within the Frontex Regulation.30 To date, Frontex’s role in respect of sea border surveillance has been to make other states’ vessels and aerial surveillance assets (and related personnel) available to host Member States. Accordingly, the Sea Borders Regulation has been relevant to Frontex solely in its capacity as organiser of sea border surveillance. Frontex does have the power to own and to lease equipment, and its budget has increased in part to enable it to use those powers.31 Were it to deploy its own assets in sea border surveillance in support of a host Member State, the principles in the Regulation would have quite different implications for it, and would need to be adapted accordingly. A limitation to the scope of the Sea Borders Regulation is that it does not address the 12 possible involvement of third countries in sea border surveillance which is organised or supported by Frontex. That reflected the legal position as it stood at the time, when the governing legislation provided for Frontex to facilitate Member States’ co-operation with third countries, and made no reference to sea border surveillance in that context.32 In contrast, the current Frontex Regulation permits Frontex itself to provide technical and operational assistance to third countries, and specifically refers to border surveillance operations at sea, including the possibility of search and rescue activities arising from it.33 For coherence, the Sea Borders Regulation ought to be adapted to take account of third country involvement – e.g., by specifying mandatory provisions to be included in operational plans agreed with them.34

28 On the international law issues posed by NGO activity, see Gombeer/Fink, Non-Governmental Organisations and Search and Rescue at Sea. 29 Frontex, Annual Report on the Implementation of Regulation (EU) 656/2014 (27 August 2020), p. 11. 30 See Frontex Regulation (EU) 2019/1896, recital 21 and Articles 3(1)(b), 10(1)(i), 36(2)(e), 38(1) and 38(2). The application of the Regulation to Frontex is also assumed in a note by the European Commission, ‘The nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations at the Union’s external sea borders’ (3 March 2021), annexed to the March 2021 Final Report of the Frontex Management Board Working Group (1 March 2021). 31 Provision is made for Frontex’s to acquire or lease equipment in Frontex Regulation (EU) 2019/1896, Article 63. On its expanded budget for equipment, see Gkliati, ‘The next phase of the European Border and Coast Guard: towards operational effectiveness’, EU Law Analysis Blog of 8 October 2018, available at: http://eulawanalysis.blogspot.com/2018/10/the-next-phase-of-european-border-and.html [last accessed 6 May 2021]. 32 See former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 14. 33 See Frontex Regulation (EU) 2019/1896, Article 73. For express links between sea border surveillance and co-operation with third countries, including references to the Sea Borders Regulation, see Frontex Regulation (EU) 2019/1896, Articles 10(1)(i) and 36(2)(e). 34 Frontex has called attention to the absence of provision in the Sea Borders Regulation for a third country acting as the host state of an operation: Annual Report on the Implementation of Regulation (EU) 656/2014 (27 August 2020), p. 11.

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Sea Borders Regulation (EU) No 656/2014

Article 2 Definitions For the purposes of this Regulation the following definitions shall apply: (1) ‘Agency’ means the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union established by Regulation (EC) No 2007/2004; (2) ‘sea operation’ means a joint operation, pilot project or rapid intervention carried out by Member States for the surveillance of their external sea borders under the coordination of the Agency; (3) ‘host Member State’ means a Member State in which a sea operation takes place or from which it is launched; (4) ‘participating Member State’ means a Member State which participates in a sea operation by providing technical equipment, border guards deployed as part of the European Border Guard Teams or other relevant staff but which is not a host Member State; (5) ‘participating unit’ means a maritime, land or aerial unit under the responsibility of the host Member State or of a participating Member State that takes part in a sea operation; (6) ‘International Coordination Centre’ means the coordination structure established within the host Member State for the coordination of a sea operation; (7) ‘National Coordination Centre’ means the national coordination centre established for the purposes of the European Border Surveillance System (Eurosur) in accordance with Regulation (EU) No 1052/2013; (8) ‘operational plan’ means the operational plan referred to in Article 3a and Article 8e of Regulation (EC) No 2007/2004; (9) ‘vessel’ means any type of water craft, including boats, dinghies, floating platforms, non-displacement craft and seaplanes, used or capable of being used at sea; (10) ‘stateless vessel’ means a vessel without nationality or assimilated to a vessel without nationality when the vessel has not been granted by any State the right to fly its flag or when it sails under the flags of two or more States, using them according to convenience; (11) ‘Protocol against the Smuggling of Migrants’ means the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime signed in Palermo, Italy in December 2000; (12) ‘place of safety’ means a location where rescue operations are considered to terminate and where the survivors’ safety of life is not threatened, where their basic human needs can be met and from which transportation arrangements can be made for the survivors’ next destination or final destination, taking into account the protection of their fundamental rights in compliance with the principle of nonrefoulement; (13) ‘Rescue Coordination Centre’ means a unit responsible for promoting efficient organisation of search and rescue services and for coordinating the conduct of search and rescue operations within a search and rescue region as defined in the International Convention on Maritime Search and Rescue;

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(14) ‘contiguous zone’ means a zone contiguous to the territorial sea as defined in Article 33 of the United Nations Convention on the Law of the Sea, where formally proclaimed; (15) ‘coastal Member State’ means a Member State in whose territorial sea or contiguous zone an interception takes place. The definition of ‘sea operation’ in Article 2(2) shows that the Regulation is only concerned with border surveillance operations. Frontex practice suggests that its operations at sea are very likely to take the form of ‘joint operations’ under Frontex Regulation (EU) 2019/1896 (see above, Article 1 MN 2–4a). The definition of ‘host Member State’ in Article 2(3) firstly covers states ‘in which’ a sea operation takes place, which presumably refers to operations which take place within the state’s territorial sea. The definition also covers the Member State ‘from which’ an operation is ‘launched’, which presumably refers to operations outside the host state’s territory. A similar definition, covering all types of Frontex operation, appears in Frontex Regulation (EU) 2019/1896, Article 2(20). The concept of a ‘participating Member State’, as defined in Article 2(4), refers to Member States other than the host state which contribute assets or personnel to a sea operation. A similar definition, covering all types of Frontex operation, appears in Frontex Regulation (EU) 2019/1896, Article 2(22). Article 2(4) is however outmoded, by comparison with the 2019 Regulation, in two respects. One is its reference to ‘a European Border Guard Team’, as the corresponding term in the Frontex Regulation (EU) 2019/1896 is now the ‘European Border and Coast Guard standing corps’. The other is the reference to ‘other relevant staff’ in Article 2(4), which has no counterpart in Article 2(22) of the Frontex Regulation (EU) 2019/1896, which contemplates personnel being provided by member States exclusively through the standing corps.35 The definition of a ‘participating unit’ in Article 2(5) covers Member State maritime, land or aerial units that participate in sea operations. Although the Regulation is primarily of relevance to participating vessels at sea, the obligations concerning detection (Article 5) and search and rescue (Article 9) are also relevant to aerial and landbased assets. The phrasing of Article 2(5), which implies that only Member State assets participate in Frontex operations, must be considered at odds with the provision for the acquisition and leasing of technical equipment by Frontex (above, Article 1 MN 11). Article 2 distinguishes between three types of coordination centre. The ‘International Coordination Centre’ referred to in Article 2(6) is established within the host state in order to issue directions within a Frontex sea operation. The ‘National Coordination Centre’ referred to in Article 2(7) is the Member State structure for liaising with Frontex and other Member States within the Eurosur network (Frontex Regulation (EU) 2019/1896, Article 21). The ‘Rescue Coordination Centre’ referred to in Article 2(13) is the core of a state’s system for co-ordination of search and rescue operations, which are likely to be within a search and rescue zone designated for the purposes of the SAR Convention. The concept of ‘vessel’ in Article 2(9) is defined in a broad manner, to include ‘any type of water craft … used or capable of being used at sea.’ This definition may be read with Article 3(d) of the Migrant Smuggling Protocol, according to which ‘“vessel” shall mean any type of water craft … used or capable of being used as a means of transportation on water.’ 35 See too recital 39 to the Frontex Regulation (EU) 2019/1896: ‘Where the crew deployed with the technical equipment of a Member State originates in that Member State, it should count as part of that Member State’s contribution to the standing corps.’

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Sea Borders Regulation (EU) No 656/2014

The concept of ‘stateless vessel’ in Article 2(10) covers (a) vessels that cannot claim the flag of any state, as they have not been registered by any state, and (b) vessels that claim the nationality of two or more States, using them according to convenience. The inclusion of the second category is in line with UNCLOS Article 92(2). A stateless vessel will not benefit from the protection of a flag state, something which will be relevant if it is suspected of being involved in irregular migration on the high seas (see further below, Article 7 MN 13). A ‘place of safety’, as defined in Article 2(12), is the place where a rescue operation terminates. It is necessary that the survivors’ safety of life not be threatened in that place, that their basic human needs can be met, and that transportation can be arranged to their next destination. These elements are drawn from paragraph 6.12 of the IMO’s ‘Guidelines on the Treatment of Persons Rescued at Sea’, adopted in 2004.36 The definition of a place of safety includes the following vague formula: ‘taking into account the protection of their fundamental rights in compliance with the principle of nonrefoulement. (On the concept of non-refoulement within the Regulation, see below, Article 4 MN 1–5.) The concept of a ‘coastal Member State’ in Article 2(15) covers any Member State in whose territorial sea or contiguous zone an interception takes place. It therefore covers the host state, other Member States participating in an operation, and other Member States that have authorised an interception under Articles 6 and 8 (below). The Regulation does not contain a definition of the term ‘Member State’. It may be presumed from recitals 21–26 to the Regulation that these are only the states bound by the Schengen acquis – i. e. the EU Member States other than Ireland, and the four associated states (Iceland, Liechtenstein, Norway and Switzerland). The Frontex Regulation does not treat Ireland as a ‘Member State’, but it appears that neither is it to be classed as a third country (author’s chapter on Frontex Regulation (EU) 2019/1896, Article 1 MN 16). By implication, the same is true of the Sea Borders Regulation. Ireland’s participation in a Frontex sea operation therefore requires authorisation by the Frontex management board (Frontex Regulation (EU) 2019/1896, Article 100(5)).

CHAPTER II GENERAL RULES Article 3 Safety at sea Measures taken for the purpose of a sea operation shall be conducted in a way that, in all instances, ensures the safety of the persons intercepted or rescued, the safety of the participating units or that of third parties. 1

Article 3 sets out a general principle of safety at sea during measures taken within a Frontex sea operation. Article 3 is linked to international law obligations to ensure the safety of life at sea, set out in three instruments listed in recital 8 to the Regulation: the SOLAS Convention (see its Annex, Chapter V), the SAR Convention (the whole text) 36 IMO Resolution MSC. 167(78), adopted on 20 May 2004, discussed by Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 142–143. On the link to the Regulation, see Commission Proposal, COM(2013) 197, p. 6.

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and UNCLOS (see its Article 98). The principle in Article 3 covers persons rescued or intercepted, participating units, and third parties. Unlike the international law instruments referred to, It is not limited to the preservation of life, and may therefore extend to prevention of serious injury to persons, and to the prevention of loss and damage to vessels. The principle of safety in Article 3 is phrased in strict terms. The Commission 2 proposal in 2013 had provided that operational measures should not put safety ‘at risk’.37 The Parliament proposed the alternative formulation which appears in Article 3, that operational measures should ‘in all instances, ensure’ safety.38 The text of Article 3 of the Sea Borders Regulation must be considered deficient in its 3 protection of the right to life, which is guaranteed by Article 2 ECHR, Article 2 CFR and Article 6 ICCPR. The relevance of this right to states’ search and rescue operations at sea is shown by Human Rights Committee’s General Comment 36 on the right to life (2018) and by its decisions in 2020 concerning Malta and Italy arising out of the 2013 Lampedusa tragedy (see above, Article 1 MN 4c). The deficiency in Article 3 is that it covers only persons who have been or who are in the course of being ‘intercepted or rescued’, and so fails to cater for breaches of the right to life due to inaction or delay on the part of participating States and their vessels. (See further below, Article 9 MN 2a.)

Article 4 Protection of fundamental rights and the principle of non-refoulement 1. No person shall, in contravention of the principle of non-refoulement, be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is a serious risk that he or she would be subjected to the death penalty, torture, persecution or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement. 2. When considering the possibility of disembarkation in a third country, in the context of planning a sea operation, the host Member State, in coordination with participating Member States and the Agency, shall take into account the general situation in that third country. The assessment of the general situation in a third country shall be based on information derived from a broad range of sources, which may include other Member States, Union bodies, offices and agencies, and relevant international organisations and it may take into account the existence of agreements and projects on migration and asylum carried out in accordance with Union law and through Union funds. That assessment shall be part of the operational plan, shall be provided to the participating units and shall be updated as necessary. Intercepted or rescued persons shall not be disembarked, forced to enter, conducted to or otherwise handed over to the authorities of a third country when the host Member State or the participating Member States are aware or ought to be aware that that third country engages in practices as described in paragraph 1. 37 38

Commission Proposal, COM(2013) 197, Article 3. European Parliament report A7-0461/2013 of 18 December 2013, Amendment 22.

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3. During a sea operation, before the intercepted or rescued persons are disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a third country and taking into account the assessment of the general situation in that third country in accordance with paragraph 2, the participating units shall, without prejudice to Article 3, use all means to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand or may reasonably be presumed to understand and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement. For those purposes, further details shall be provided for in the operational plan including, when necessary, the availability of shore-based medical staff, interpreters, legal advisers and other relevant experts of the host and participating Member States. Each participating unit shall include at least one person with basic first aid training. The report referred to in Article 13 shall, based on information that shall be provided by the host and participating Member States, include further details on cases of disembarkation in third countries and how each element of the procedures laid down in the first subparagraph of this paragraph was applied by the participating units to ensure compliance with the principle of non-refoulement. 4. Throughout a sea operation, the participating units shall address the special needs of children, including unaccompanied minors, victims of trafficking in human beings, persons in need of urgent medical assistance, disabled persons, persons in need of international protection and other persons in a particularly vulnerable situation. 5. Any exchange with third countries of personal data obtained during a sea operation for the purposes of this Regulation shall be strictly limited to what is absolutely necessary and shall be carried out in accordance with Directive 95/46/EC of the European Parliament and of the Council(16), Council Framework Decision 2008/977/JHA(17) and relevant national provisions on data protection. The exchange with third countries of personal data regarding intercepted or rescued persons obtained during a sea operation shall be prohibited where there is a serious risk of contravention of the principle of non-refoulement. 6. Participating units shall, in the performance of their duties, fully respect human dignity. 7. This Article shall apply to all measures taken by Member States or the Agency in accordance with this Regulation. 8. Border guards and other staff participating in a sea operation shall be trained with regard to relevant provisions of fundamental rights, refugee law and the international legal regime of search and rescue in accordance with the second paragraph of Article 5 of Regulation (EC) No 2007/2004.

(16) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). (17) Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ L 350, 30.12.2008, p. 60).

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Content I. II. III. IV. V. VI.

mn. Article 4(1): The non-refoulement principle............................................. 1 When does Article 4 apply?.......................................................................... 8 Country information...................................................................................... 9 Processing individuals.................................................................................... 12 To whom does Article 4 apply?................................................................... 17 Training............................................................................................................. 19

I. Article 4(1): The non-refoulement principle Article 4(1) sets out a general requirement of respect for the principle of nonrefoulement. This principle is set out in similar terms in recital 12 to the Regulation, with the preface that ‘This Regulation should be applied in full compliance with the principle of non-refoulement as defined in the Charter and as interpreted by the caselaw of the Court and of the European Court of Human Rights.’ A non-refoulement guarantee applicable to all Frontex activity, expressed in near-identical terms to Article 4(1), is contained Frontex Regulation (EU) 2019/1896, Article 80(2).39 Article 4(1) is primarily concerned with risks to a person within a state to which they may potentially be sent, by way of disembarkation or another form of transfer. Firstly, Article 4(1) refers to serious risks of treatment prohibited by two European fundamental rights norms – the death penalty (Article 2 ECHR and Article 2 CFR) and torture and other inhuman or degrading treatment or punishment (Article 3 ECHR and Article 4 CFR). Secondly, the list of in-state risks covered by Article 4(1) refers in a general sense to ‘persecution’. This is unusual in international law relating to asylum, where the norm is that the term persecution appears as part of the refugee definition, and not as a separate fundamental rights-based ground of protection. It may be read as covering all threats of serious fundamental rights violations, given that Article 9 of the Qualification Directive defines the term ‘act of persecution’ to mean acts which are ‘sufficiently serious by [their] nature or repetition as to constitute a severe violation of basic human rights’ or else are ‘an accumulation of various measures, including violations of human rights which [are] sufficiently severe as to affect an individual in a similar manner.’40 If that is correct, the principles in the case-law of the ECtHR are relevant, including its findings that Article 2 ECHR prohibits expulsion to a country where there is a real threat to life,41 and that expulsion is prohibited to places where there is a real risk of a ‘flagrant’ breach of a right other than Articles 2 and 3 ECHR.42 A fundamental rights-based reading of ‘persecution’ may also extend to protection against expulsion to places where armed conflict is ongoing, as defined by Article 15(c) of the Asylum Qualification Directive 2011/95/EU.43 Thirdly, the in-state risks covered by Article 4(1) include those contemplated by the prohibition on refoulement in Article 33(1) of the Refugee Convention – i. e. a threat 39 There are minor differences of phrasing between the two provisions, but these do not appear to affect the legal substance. 40 Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337/9). 41 See e. g. ECtHR, Judgment of 1 March 2005, No 39642/03, Headley v. The United Kingdom. 42 See e. g. ECtHR, Judgment of 17 January 2012, No 8139/09, Othman v. The United Kingdom (Article 6 ECHR). 43 Article 3 ECHR may anyway apply in these situations: see ECtHR, Judgment of 28 June 2011, Nos 8319/07 and 11449/07, Sufi and Elmi v. The United Kingdom, para 226.

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to ‘life or freedom’ on grounds of race, religion, nationality, membership of a particular social group or political opinion.44 One difference is that here the ground of ‘sexual orientation’ has been added to the list.45 If the conventional approach to interpretation of the Refugee Convention were followed, a threat to ‘life or freedom’ should anyway be equated with a risk of ‘persecution’ (above, MN 3).46 5 Article 4(1) is also concerned with the possibility of a serious risk of expulsion, removal or extradition from the state in which a person is disembarked, or to which they are transferred. In that context. the phrase ‘non-refoulement’ is to be interpreted to include all the risks listed in Article 4(1), including those deriving from fundamental rights standards and from refugee law. 6 A key fundamental right which is missing from Article 4(1) is the prohibition on collective expulsion, set out in both Article 19(1) CFR and Article 4 of ECHR Protocol 4. The prohibition on collective expulsion is though covered by recital 19 of the Sea Borders Regulation, which includes ‘protection against removal and expulsion’ – i.e., Article 19 CFR – among the fundamental rights which Member States and Frontex are to respect when applying the Regulation.47 Article 19(1) CFR is also directly binding upon Frontex, and indirectly so upon Member States participating in its operations, because ‘protection against removal and expulsion’ is among the fundamental rights in the CFR which the Frontex Regulation is stated to ‘respect’ (see Frontex Regulation (EU) 2019/1896, recital 103). The significance of this question flows from the ECHR finding in Hirsi Jamaa that the prohibition on collective expulsion in Article 4 of ECHR Protocol 4 applied to migrants intercepted or rescued at sea, who therefore had a right to individual consideration of an expulsion or transfer, separately from a claim to protection against refoulement.48 7 In ND and NT v. Spain in 2020, the ECtHR established an exception whereby a collective expulsion – i.e. one without an individual procedure – could be allowed in a situation of mass border crossing. The preconditions were that ‘the conduct of persons who cross a land border in an unauthorised manner, deliberately take advantage of their large numbers and use force, is such as to create a clearly disruptive situation which is difficult to control and endangers public safety’ and that ‘the respondent State provided genuine and effective access to means of legal entry, in particular border procedures.’49 The ND and NT v. Spain exception does not appear readily applicable to interceptions at sea, where force is rarely used by the persons concerned, and an alternative ‘border’ procedure may be unavailable.50 44 In respect of what are here termed ‘in-country risks’, the Commission proposal only referred to the death penalty, and to torture or other inhuman or degrading treatment or punishment, which is in line with Article 19(2) CFR. That would have limited protection to fundamental rights guarantees contained in Articles 2(2) and Article 4, Protocol 13 ECHR and Article 3 ECHR. The addition of text based on the refugee definition to in-country risks was proposed in European Parliament report A7-0461/2013 of 18 December 2013), Amendment 23. 45 The addition originated in European Parliament report A7-0461/2013 of 18 December 2013, Amendment 23. 46 See Hathaway and Foster, The Law of Refugee Status, 2nd edn (CUP, 2014), p. 184 n. 12. 47 That is potentially especially significant in the case of the four Council of Europe states which are not parties to ECHR Protocol 4: Greece, Switzerland, Turkey and the United Kingdom. 48 See Den Heijer, Reflections, p. 280–285 and Moreno-Lax, Hirsi Jamaa, p. 586–589. 49 ECtHR, Judgment of 13 February 2020 (GC), Nos 8675/15 and 8697/15, ND and NT v. Spain, para 201. For a critique of the uncertain scope of the exception, see Thym, The End of Human Rights Dynamism?. 50 Markard, A Hole of Unclear Dimensions; Commission note of 3 March 2021, ‘The nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations at the Union’s external sea borders’.

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Art. 4

Chp. 4

II. When does Article 4 apply? The non-refoulement principle in Article 4(1) applies without differentiation to persons who have been intercepted, and to those who have been rescued, at sea. This is implicit in the statement in Article 4(1) that ‘no person’ shall face refoulement, and is explicit in the references to ‘intercepted or rescued person’ in Article 4(2), twice in Article 4(3), and in Article 4(5). The inclusion of both categories, without distinction, is in line with the decision in Hirsi Jamaa, where the ECtHR reasoned that, once a person was within the jurisdiction of a contracting state’s vessel, the obligations of the state did not depend upon how an operation was characterised.51 The non-refoulement principle in Article 4(1) firstly applies when the person concerned would potentially be ‘disembarked in’ a given state. While the place of disembarkation is addressed in Article 10 (below), the concept of disembarkation is not defined in the Regulation. Firstly, this will undoubtedly occur when the persons concerned have first been taken on board a unit participating in a Frontex operation. Secondly, it could cover a scenario where the persons concerned remain on board a vessel which had been intercepted, but one or more participating units take effective control of that vessel, leading it to disembark those on board in a given location.52 A third possibility which may be considered is that, within the Frontex operation, assistance is given to another state’s vessel, which takes the persons concerned on board, and disembarks them on its territory.53 Beyond situations of disembarkation, Article 4(1) covers all cases in which a person is made to go to a particular country, by being ‘forced to enter’ it, ‘conducted to’ it, or ‘otherwise handed over to the authorities’ of that country.54 The phrase ‘conducted to … a country’ arguably covers all scenarios at sea whereby a participating unit induces an intercepted vessel to return to the territorial waters of a given state. That could arise inter alia through a participating vessel’s towing the intercepted vessel, or blocking its course, or threatening the use of force unless it complies with an instruction to change course.55 The phrase ‘handed over to the authorities’ does not in terms require that a transfer takes place on the other state’s territory. Article 4(1) refers to possible disembarkation in, or other transfer to, ‘a country’, without qualification. The ‘a country’ formulation arguably covers both Schengen states 51 ECtHR, Judgment of 23 February 2012 (GC), No 27765/09, Hirsi Jamaa and others v. Italy, paras 79 and 134. 52 See ECtHR, Judgment of 29 March 2010 (GC), No 3394/03, Medvedyev v. France, para 66–67, where the arrest of a vessel and its crew on the high seas led to their being within France’s jurisdiction for the purposes of the ECHR. 53 See the observations of the Frontex Fundamental Rights Officer in Frontex, Annual Report on the Implementation of Regulation (EU) 656/2014 (27 August 2020), p. 12–13. 54 Various formulations concerning cases other than disembarkation were put forward in the legislative process: see Council doc. 5831/14 of 4 February 2014, p. 28. The Commission proposal referred only ‘handing over’; both the European Parliament and the Council of Ministers proposed the addition of ‘forced to enter’; and, the European Parliament alone proposed adding ‘conducted towards’. It should be noted that ‘conducted towards’ is broader than ‘conducted to’, in that it involves a direction of travel, rather than a destination. 55 For apparent examples of practices of this kind at the Greek-Turkish maritime border, see the Final Report of the Frontex Management Board Working Group (Frontex, 1 March 2021). There is little doubt that such practices in themselves bring a vessel within a state’s jurisdiction for the purposes of the ECHR. See for example the assumption of jurisdiction in ECtHR, Judgment of 11 January 2001, Xhavara and others v. Italy and Albania, No 39473/98, para 1; ECtHR, Judgment of 3 February 2009, Women on Waves and others v. Portugal, No 31276/05, para 43, discussed in Papanicolopulu, International Law and the Protection of People at Sea, p. 151.

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and third countries.56 The inclusion of Schengen states is significant, because of the jurisprudence in relation to Dublin transfers showing that they may not be free of the types of fundamental rights breaches that should preclude expulsion or other types of return.57 A possible objection to this interpretation is that the term ‘third countries’ is used in Article 4(2), in relation to the assessment of a country (below, MN 9–11), and in Article 4(3), in relation to the procedures to be followed by the participating vessel (below, MN 12 and 13). Differences between the scope of Article 4(1) and other parts of Article 4 are logically possible, however. 8d It follows from the place of Article 4(1) within the Regulation that its guarantee against non-refoulement applies to all operations covered by the Regulation, including interceptions and rescues which take place extraterritorially. It is now clearly established that the CAT, the ECHR and the ICCPR apply to a state’s actions on the high seas where there is control over a person (see above, Article 1 MN 4c). All three instruments imply fundamental rights-based guarantees against non-refoulement, as does the CFR.58 In contrast, there is less certainty that the guarantee against nonrefoulement in the Refugee Convention, and by extension the right of asylum in Article 18 CFR, apply extraterritorially.59 The implication of Article 4(1) of the Regulation is that both fundamental rights-based and the international refugee law-based guarantees against non-refoulement have extraterritorial effect, where a Member State acts within a Frontex operation at sea.

III. Country information The first paragraph of Article 4(2), which concerns potential disembarkation – but not other types of transfer – requires a general assessment of the fundamental rights risks referred to in Article 4(1) in the planning of sea operations. This general assessment should be ‘coordinated’ with the participating states and the Frontex executive director, should be provided for in the operational plan, and should be updated as necessary. This provision is now out-of-step with the Frontex Regulation, which places the onus of drawing up the operational plan upon the Frontex executive director, with the agreement of the host Member State (author’s chapter on Frontex Regulation (EU) 2019/1896, Article 38 MN 1). 10 The second paragraph of Article 4(2) sets out the information upon which the general assessment should be based. There is an obligation to rely upon ‘a broad range of sources’, which may include information from other Member States, EU bodies, and international organisations. The requirement to rely upon a broad range of information originated in a proposal by the Parliament.60 Its proposal would however have made it obligatory to rely upon Member State, EU and other international sources; it named the UNHCR in the list; and, it included relevant NGOs as a potential source. The silence of the Regulation in relation to NGOs is at odds with the Hirsi Jamaa ruling, in which the ECtHR recognised the relevance of ‘reports from independent international human rights protection associations’ to decisions on country conditions.61 9

56

It also includes the special case of Ireland: see above, Article 2 MN 11. See ECtHR, Judgment of 21 January 2011 (GC), No 30696/09, MSS v. Belgium and Greece; ECtHR, Judgment 4 November 2014 (GC), No 29217/12, Tarakhel v. Switzerland ; ECJ, NS and ME, C-411/10 and C-493/10, EU:C:2011:865. 58 Article 3 CAT, Articles 2 and 3 ECHR, Articles 6 and 7 ICCPR, Articles 2 and 4 CFR. 59 On the Refugee Convention, see Den Heijer, Europe and Extraterritorial Asylum, p. 122–132. 60 European Parliament report A7-0461/2013 of 18 December 2013, Amendment 24. 61 ECtHR, Judgment of 23 February 2012 (GC), No 27765/09, Hirsi Jamaa and others v. Italy, para 118. 57

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Art. 4

Chp. 4

The third paragraph of Article 4(2) prohibits both disembarkation and other types of 11 transfer when the host Member State or another participating Member State is ‘aware or ought to be aware’ that the third country in question engages in practices covered by Article 4(1).62 This provision is in line with the finding in Hirsi Jamaa that the Italian authorities ‘knew or should have known’ about the treatment irregular migrants would face if returned to Libya.63 It goes further than the provision for the general assessment in placing a duty upon the host state and participating states. The failure to refer to the ‘awareness’ of the Agency itself must now be considered out-dated, given its central role in the planning of sea operations (above, MN 9).

IV. Processing individuals The first paragraph of Article 4(3) places obligations upon participating units with respect to the processing of persons who have been intercepted or rescued, if those persons are to be disembarked in, or otherwise transferred to, a third country. In such a situation, a participating unit must firstly endeavour to identify the persons concerned, and to assess their personal circumstances. Secondly, it must inform them of their planned destination in ‘a way that those persons understand or may reasonably be presumed to understand’.64 Thirdly, it must give them the opportunity to object to the proposed destination, on the grounds that their disembarkation would violate the principle of non-refoulement. There is an inconsistency between the obligation to provide information as to the ‘destination’, whereas objection is contemplated only in relation to the ‘place of disembarkation’. In order to ensure full respect for the principle of non-refoulement, if the country of disembarkation and the planned destination differ, information ought to be given in relation to both, and it ought also to be possible to object to the final destination. The second paragraph of Article 4(3) requires that further details concerning onboard procedures be provided in the operational plan. It states that ‘when necessary’ provision should be made for the ‘availability’ of shore-based medical staff, interpreters, legal advisers and other ‘relevant experts’. The text is ambiguous as to whether the necessity for these persons is to be assessed relative to the operation as a whole (a narrower interpretation), or with reference to the particular individuals facing disembarkation or transfer (a broader interpretation). The Regulation does not specify the consequences of an objection to the place of disembarkation or intended destination. Who takes the initial decision whether to proceed, and on what basis? Can the disembarkation be suspended in an individual case, pending an administrative decision by an on-shore authority? Are there to be on-shore legal remedies, with suspensory effect, if a decision to proceed is taken?65 Arguably, all these matters ought to be addressed in the legislation and the operational plan. The list in Article 4(4) of categories of person with special needs that should be addressed is similar to a more general provision in Article 80(3) of the Frontex Regulation (chapter on Frontex Regulation (EU) 2019/1896, Article 80 MN 3). A related provision is Article 4(6) of the Sea Borders Regulation, which requires participating 62 The text of Article 4(2) refers to ‘participating Member States’ in the plural, but that is assumed here to refer to them separately. 63 ECtHR, Judgment of 23 February 2012 (GC), No 27765/09, Hirsi Jamaa and others v. Italy, para 131. 64 On the limitations to this formulation, see Den Heijer, in Zaiotti (ed), Externalizing Migration Management, p. 61–62. 65 See Den Heijer, in Zaiotti (ed), Externalizing Migration Management, p. 62.

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units to ‘fully respect human dignity’. That is also stated for members of Frontex teams in Article 43(4) of Frontex Regulation (EU) 2019/1896. These principles must be thought to apply both during the conduct of an operation, and in decision-making concerning potential locations for disembarkation, or other types of transfer. 16 Article 4(5) concerns the exchange of personal data with third countries. Its first paragraph states that such exchange is only to take place if ‘absolutely necessary’, and only if it is in compliance with EU and national law on the subject. The purposes for which data exchange may validly take place are not stated, e.g., as to whether such a transfer may occur solely for the purpose of confirming or establishing a person’s identity. The second paragraph of Article 4(5) provides that personal data relating to persons who have been intercepted or rescued should not be exchanged with a third country if there is a ‘serious risk’ of violation of the principle of non-refoulement.

V. To whom does Article 4 apply? The guarantees contained in Article 4 are stated to apply to all measures taken by Member States in accordance with the Regulation (Article 4(7)). The binding effect of Article 4 in respect of a host Member State must however be considered incomplete, as it will not be applicable where it engages in sea operations in parallel with a Frontex operation (see above, Article 1 MN 10). A different issue is posed by a breach of Article 4 guarantees by a participating unit from another state, as it will typically be acting partly at the host state’s request, but under the immediate command of the participating unit’s home state. In that case, it is arguable that both states are directly responsible for any violations of fundamental rights obligation as a matter of EU law.66 18 Article 4(7) also provides that Article 4 guarantees apply to Frontex itself, in its capacity as the organiser of sea joint operations involving sea border surveillance. That result is also achieved by is the general guarantee of respect for fundamental rights by the Agency in the Frontex Regulation (author’s chapter on Frontex Regulation (EU) 2019/1896, Article 80 MN 1). 17

VI. Training 19

Article 4(8) of the Sea Borders Regulation states that border guards and other staff participating in sea operations ‘shall be trained’ in relevant provisions of fundamental rights, refugee law and the international legal regime of search and rescue. It does not however state whether the obligation to provide training lies upon the Member States or upon Frontex. Article 4(8) may though be read together with the more extensive provision for training of members of Frontex teams in Frontex Regulation (EU) 2019/1896, Article 55(2) and (4). That specifies that the Agency is to ensure that, prior to their initial deployment, all members of its teams ‘have received adequate training in relevant Union and international law, including on fundamental rights [and] access to international protection’, and including ‘search and rescue’ for those who are to participate in sea operations.67 66 See the analysis in Fink, Frontex and Human Rights, especially at p. 270–271 and 312–313. Fink argues that the position would be different under the ECHR, where only the participating state would be directly responsible for the actions of its vessel: ibid., p. 126 and 176–177. 67 Because of its references to ‘border guards’ and ‘other staff’, and the lack of clarity as to whether the Agency or the Member State is responsible for training, Article 4(5) must be considered out of date by comparison with Article 55 of Frontex Regulation (EU) 2019/1896.

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Art. 5

Chp. 4

CHAPTER III SPECIFIC RULES Article 5 Detection 1. Upon detection, the participating units shall approach a vessel suspected of carrying persons circumventing or intending to circumvent checks at border crossing points or of being engaged in the smuggling of migrants by sea in order to observe its identity and nationality and, pending further measures, shall survey that vessel at a prudent distance taking all due precautions. The participating units shall collect and immediately report information about that vessel to the International Coordination Centre, including, where possible, information about the situation of persons on board, in particular whether there is an imminent risk to their lives or whether there are persons in urgent need of medical assistance. The International Coordination Centre shall transmit that information to the National Coordination Centre of the host Member State. 2. Where a vessel is about to enter or it has entered the territorial sea or the contiguous zone of a Member State that is not participating in the sea operation, the participating units shall collect and report information about that vessel to the International Coordination Centre, which shall transmit that information to the National Coordination Centre of the Member State concerned. 3. The participating units shall collect and report information about any vessel suspected of being engaged in illegal activities at sea, which are outside the scope of the sea operation, to the International Coordination Centre, which shall transmit that information to the National Coordination Centre of the Member State concerned. Article 5 is concerned with the preliminary step of detection within a sea operation. 1 The essential purpose of the provisions for detection in Article 5 is to provide a basis for interception of a vessel for border surveillance reasons (see below, Articles 6–8). Where a vessel is detected for the purposes of Article 5, the participating units are to approach it, in order to observe its identity and nationality, and to survey it at a distance. Relevant information should be passed on to the International Co-ordination Centre responsible for the operation, which is based within the host state. Under Article 5(1), detection firstly concerns vessels ‘suspected of carrying persons 2 circumventing or intending to circumvent checks at border crossing points’. The Schengen Borders Code Regulation (EU) 2016/399 is relevant in interpreting this phrase, as it defines a ‘border crossing point’ as ‘any crossing-point authorised by the competent authorities for the crossing of external borders’ (see its Article 2(8)). For this case of detection, it is not necessary that there be any suspicion of material benefit to the organisers of the vessel’s journey. That is consistent with the Facilitation Directive (EC) 2002/90, which requires Member States to provide for ‘appropriate sanctions’ in respect of persons who assist another person to enter the territory of a Member State in breach of its immigration laws, which does not make material benefit as a precondition to such sanctions.68 68 Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence (OJ 2002 L 328/17), Article 1(1)(a). Member States have a discretion not to impose sanctions where ‘the aim of the behaviour is to provide humanitarian assistance to the person concerned’: see Article 1(2) of the same instrument. For criticism of the absence of a requirement of material benefit, see Carrera et al, Fit for

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Under Article 5(1), ‘detection’ secondly covers vessels suspected of being engaged in the smuggling of migrants by sea. In that case, the definition of ‘smuggling’ in the Migrant Smuggling Protocol is relevant. It requires both a material benefit to the smuggler (its Article 3(a)), and the involvement of a criminal organisation (its Article 4). 4 It is an open question whether Article 5 provides for participating units to approach vessels operated by humanitarian NGOs engaged in rescue missions. The situation will not be migrant smuggling in the sense of the Protocol, as neither material benefit to the NGO, nor criminal organisation, will be present.69 In order to bring such vessels within Article 5, it is therefore necessary that the disembarkation of rescued persons in a place of safety involves those persons and/or the vessel’s crew in ‘circumventing or intending to circumvent’ border checks. As against that, one might argue that the humanitarian activities of rescue and disembarkation are distinct in nature from evasion of border checks. 5 There is no express limitation in Article 5 upon the state whose checks at border crossing points are at risk of being circumvented, or towards which suspected migrant smuggling is taking place. In particular, there is no requirement that it be a Schengen state – i. e. ‘detection’ could in theory relate to vessels suspected of involvement in irregular sea migration towards a third country. Where the state in question is a Schengen state, it need not be a participant in the Frontex operation. 6 Article 5 does not expressly provide for a vessel which has been detected to be approached because of a potential situation of distress. Instead, where a vessel is detected for border surveillance reasons, the information to be passed on to the International Co-ordination Centre is to include ‘information about the situation of persons on board, in particular whether there is an imminent risk to their lives.’ Specific provision for obligations concerning search and rescue is made in Article 9 (discussed below). 3

Article 6 Interception in the territorial sea 1. In the territorial sea of the host Member State or a neighbouring participating Member State, that State shall authorise the participating units to take one or more of the following measures where there are reasonable grounds to suspect that a vessel may be carrying persons intending to circumvent checks at border crossing points or is engaged in the smuggling of migrants by sea: (a) requesting information and documentation on ownership, registration and elements relating to the voyage of the vessel, and on the identity, nationality and other relevant data on persons on board, including whether there are persons in urgent need of medical assistance, and making persons on board aware that they may not be authorised to cross the border; (b) stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on board and informing them that persons directing the vessel may face penalties for facilitating the voyage.

purpose? The Facilitation Directive and the criminalisation of humanitarian assistance to irregular migrants (European Parliament, 2016). 69 In respect of NGOs and the Migrant Smuggling Protocol, see Coppens, in Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea, p. 203.

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Art. 6

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2. If evidence confirming that suspicion is found, that host Member State or neighbouring participating Member State may authorise the participating units to take one or more of the following measures: (a) seizing the vessel and apprehending persons on board; (b) ordering the vessel to alter its course outside of or towards a destination other than the territorial sea or the contiguous zone, including escorting the vessel or steaming nearby until it is confirmed that the vessel is keeping to that given course; (c) conducting the vessel or persons on board to the coastal Member State in accordance with the operational plan. 3. Any measure taken in accordance with paragraph 1 or 2 shall be proportionate and shall not exceed what is necessary to achieve the objectives of this Article. 4. For the purposes of paragraphs 1 and 2, the host Member State shall instruct the participating unit appropriately through the International Coordination Centre. The participating unit shall inform the host Member State, through the International Coordination Centre, whenever the master of the vessel requests that a diplomatic agent or a consular officer of the flag State be notified. 5. Where there are reasonable grounds to suspect that a stateless vessel is carrying persons intending to circumvent the checks at border crossing points or is engaged in the smuggling of migrants by sea, the host Member State or the neighbouring participating Member State in whose territorial sea that stateless vessel is intercepted shall authorise one or more of the measures laid down in paragraph 1 and may authorise one or more of the measures laid down in paragraph 2. The host Member State shall instruct the participating unit appropriately through the International Coordination Centre. 6. Any operational activities in the territorial sea of a Member State that is not participating in the sea operation shall be conducted in accordance with the authorisation of that Member State. The host Member State shall instruct the participating unit through the International Coordination Centre based on the course of action authorised by that Member State. Content I. International law background ...................................................................... II. Interception Measures.................................................................................... III. Coastal State Authorisation ..........................................................................

mn. 1 2 7

I. International law background Article 6 is concerned with the interception of vessels in the territorial sea of the 1 Member States – i. e. the waters up to twelve nautical miles from their coasts (UNCLOS, Article 3). The international law of the sea guarantees a right of innocent passage through the territorial sea to vessels flying a flag (UCNLOS, Article 17). A coastal state is permitted to take measures regulating the right of innocent passage, inter alia in order to prevent the breach of its immigration laws (UNCLOS, Article 21(1)(h)).70 Under the Regulation, interception measures are permitted in the territorial sea where there are reasonable grounds to suspect that a vessel is carrying persons intending to circumvent checks at border crossing points, or that it is involved in migrant smuggling (see above, 70

See Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 120–126.

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Article 5 MN 2–4). In the case of ‘circumvention’, it is not expressly stated that the border checks must be those of the state in question. That limitation does though follow from the terms of Article 21(1)(h) of UNCLOS.

II. Interception Measures The Regulation provides for interception to be authorised in two stages. The first stage of interception is addressed by Article 6(1), which provides that a participating unit ‘shall’ be authorised to take ‘one or more’ of the following measures: (a) to request information and documentation on the vessel, its journey and the persons on board, and make the persons on board aware that they may not be authorised to enter the state in question; and, (b) to stop, board and search the vessel and the persons on board, question the persons on board, and inform them that those directing the vessel may face penalties for facilitating the voyage. 3 Where evidence is found confirming the suspicion of circumvention or of migrant smuggling, the second stage of interception is governed by Article 6(2). It permits the participating unit: (a) to seize the vessel and ‘apprehend[]’ the persons on board; (b) to order the vessel to alter its course, away from the territorial sea and contiguous zone, and to escort the vessel, or to steam nearby, until it is confirmed that that course is being kept; and, (c) to conduct the vessel or persons to the host state or another participating state, ‘in accordance with the operational plan’. 4 The fact that the territorial sea has been reached in itself brings the persons on the vessel within the jurisdiction of the coastal state. They are therefore protected against refoulement by virtue of ECHR principles, the Refugee Convention, and the corresponding provisions of the CFR, reinforced by Article 4 of the Regulation (above). That is confirmed by Article 3(1) to the Asylum Procedures Directive 2013/32/EU, which states that it applies inter alia to applications for international protection made in the ‘territorial waters’ of a state.71 The ECHR and CFR prohibitions on collective expulsion also apply in such a situation (see above, Article 4 MN 6–7). If legal guarantees against refoulement and collective expulsion are not to be undermined, the participating unit ought to permit the persons on board the intercepted vessel to indicate that they wish to claim international protection, or that they should not be expelled for some other reason.72 Where such an indication is given, the possibility of an application to the coastal state ought to be ensured. 5 Where persons intercepted in the territorial sea have not claimed international protection, or that they should not be expelled for some other reason, Article 13 of the Schengen Borders Code Regulation (EU) 2016/399 provides that the procedures set out in the Return Directive 2008/115/EC are applicable.73 The latter permits the 2

71 Asylum Procedures Directive 2013/32/EU (OJ 2013 L 180/60). No express reference to the territorial sea had appeared in the former Asylum Procedures Directive 2005/85/EC (OJ 2005 L 326/13). A reference to the ‘territorial waters’ was also included in the Asylum Reception Directive 2013/33/EU (OJ 2013 L 180/96), Article 3(1), having not appeared in the former Asylum Reception Directive 2003/9/EC (OJ 2003 L 31/18). 72 The effective ness of the opportunity to access international protection is among the questions that has been raised in respect of the Greek coast guard’s operations in 2020 at the maritime border with Turkey: see the March 2021 Final Report of the Frontex Management Board Working Group (1 March 2021), p. 4. 73 See the analysis in Commission note of 3 March 2021, ‘The nature and extent of Frontex’s obligations in the context of its implementation of joint maritime operations at the Union’s external sea borders’, p. 4–5.

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disapplication of its generally applicable rules in the case of a person intercepted in connection with an irregular crossing of the external sea border.74 If the Directive is disapplied in that case, a Member State must nevertheless respect the ‘principle of non-refoulement’.75 It must also ensure treatment and protection which is ‘at least as favourable’ as that provided for in the Directive concerning the following: the use of coercive measures, the possibility to postpone removal because of a person’s physical state or mental capacity, provision of emergency health care and making special provision available for vulnerable persons during such a postponement, and the conditions of detention.76 As they arise within territorial waters, the interception measures provided for in 6 Article 6 may apply to all vessels. In the case of vessels with a flag, the master of the vessel concerned may request that the flag state’s diplomatic or consular services be notified (Article 6(4)). Article 6(5) provides expressly for the interception of stateless vessels.

III. Coastal State Authorisation Article 6 interception is conditional upon authorisation by the coastal state concerned. One scenario is that a vessel is intercepted within the territorial sea of the host state or of another participating state. In that case, the host or participating state is obliged (‘shall’) to give authorisation to the participating unit to take the first-stage measures referred to in Article 6(1). In the case of the second-stage interception measures covered by Article 6(2), the host or participating state may give its authorisation. Article 6(6) concerns the possibility of interception measures in the territorial waters of a Member State that is not participating in the operation. In that case, any operations are to be conducted in accordance with that state’s authorisation, which is presumably optional in all circumstances. While no reference is made within Article 6(6) to the interception measures provided for in Articles 6(1) and 6(2), for coherence, it may be assumed that those measures are permitted in such a situation. Within Article 6, the adjective ‘neighbouring’ is used to qualify the participating states other than the host state who may give authorisation. This qualification is probably unnecessary, as it is likely that any participating state whose territorial waters will be affected by a given operation will be considered ‘neighbouring’. That conclusion is reinforced by the lack of provision within Article 6 for interception in the territorial waters of non-neighbouring, but participating, states. A lacuna in Article 6 is the lack of provision for coastal states which are third countries to authorise interception.77 This is at odds with the provisions of the current Frontex Regulation, which permit Frontex to offer technical and operational assistance to third countries, on the basis of operational plans agreed with them (see above, Article 1 MN 12).

74 Return Directive 2008/115/EC, Article 2(2)(a) and Epiney/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Article 13 MN 2. 75 Return Directive 2008/115/EC, Article 4(4)(b). 76 Return Directive 2008/115/EC, Article 4(4)(a), which refers to its Articles 8(4), 8(5), 9(2)(a), 14(1)(b) and (d), 16 and 17. 77 For a similar observation, see Den Heijer, in Zaiotti (ed), Externalizing Migration Management, p. 62–63.

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Article 7 Interception on the high seas 1. On the high seas, where there are reasonable grounds to suspect that a vessel is engaged in the smuggling of migrants by sea, the participating units shall take one or more of the following measures, subject to the authorisation of the flag State, in accordance with the Protocol against the Smuggling of Migrants, and where relevant, national and international law: (a) requesting information and documentation on ownership, registration and elements relating to the voyage of the vessel, and on the identity, nationality and other relevant data on persons on board, including whether there are persons in urgent need of medical assistance; (b) stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on board and informing them that persons directing the vessel may face penalties for facilitating the voyage. 2. If evidence confirming that suspicion is found, the participating units may take one or more of the following measures, subject to the authorisation of the flag State, in accordance with the Protocol against the Smuggling of Migrants, and where relevant, national and international law: (a) seizing the vessel and apprehending persons on board; (b) warning and ordering the vessel not to enter the territorial sea or the contiguous zone, and, where necessary, requesting the vessel to alter its course towards a destination other than the territorial sea or the contiguous zone; (c) conducting the vessel or persons on board to a third country or otherwise handing over the vessel or persons on board to the authorities of a third country; (d) conducting the vessel or persons on board to the host Member State or to a neighbouring participating Member State. 3. Any measure taken in accordance with paragraph 1 or 2 shall be proportionate and shall not exceed what is necessary to achieve the objectives of this Article. 4. For the purposes of paragraphs 1 and 2, the host Member State shall instruct the participating unit appropriately through the International Coordination Centre. 5. Where the vessel is flying the flag or displays the marks of registry of the host Member State or of a participating Member State, that Member State may, after confirming the nationality of the vessel, authorise one or more of the measures laid down in paragraphs 1 and 2. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre. 6. Where the vessel is flying the flag or displays the marks of registry of a Member State that is not participating in the sea operation or of a third country, the host Member State or a participating Member State, depending on whose participating unit has intercepted that vessel, shall notify the flag State, shall request confirmation of registry and, if nationality is confirmed, shall request that the flag State take action to suppress the use of its vessel for smuggling of migrants. If the flag State is unwilling or unable to do so either directly or with the assistance of the Member State to whom the participating unit belongs, that Member State shall request authorisation from the flag State to take any of the measures laid down in paragraphs 1 and 2. The host Member State or the participating Member State shall inform the International Coordination Centre of any communication with the flag State and of the intended actions or measures authorised by the flag State. The host 202

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Member State shall then instruct the participating unit appropriately through the International Coordination Centre. 7. Where, though flying a foreign flag or refusing to show its flag, there are reasonable grounds to suspect that the vessel is, in reality, of the same nationality as a participating unit, that participating unit shall verify the vessel’s right to fly its flag. To that end, it may approach the suspect vessel. If suspicion remains, it shall proceed to a further examination on board the vessel, which shall be carried out with all possible consideration. 8. Where, though flying a foreign flag or refusing to show its flag, there are reasonable grounds to suspect that the vessel is, in reality, of the nationality of the host Member State or a participating Member State, the participating unit shall verify the vessel’s right to fly its flag. 9. Where, in the cases referred to in paragraph 7 or 8, the suspicions regarding the nationality of the vessel prove to be founded, that host Member State or that participating Member State may authorise one or more of the measures laid down in paragraphs 1 and 2. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre. 10. Pending or in the absence of authorisation of the flag State, the vessel shall be surveyed at a prudent distance. No other measures shall be taken without the express authorisation of the flag State, except those necessary to relieve imminent danger to the lives of persons or those measures which derive from relevant bilateral or multilateral agreements. 11. Where there are reasonable grounds to suspect that a stateless vessel is engaged in the smuggling of migrants by sea, the participating unit may board and search the vessel with a view to verifying its statelessness. If evidence confirming that suspicion is found, the participating unit shall inform the host Member State which may take, directly or with the assistance of the Member State to whom the participating unit belongs, further appropriate measures as laid down in paragraphs 1 and 2 in accordance with national and international law. 12. A Member State whose participating unit has taken any measure in accordance with paragraph 1 shall promptly inform the flag State of the outcome of that measure. 13. The national official representing the host Member State or a participating Member State at the International Coordination Centre shall be responsible for facilitating communications with the relevant authorities of that Member State in seeking authorisation to verify the right of a vessel to fly its flag or to take any of the measures laid down in paragraphs 1 and 2. 14. Where the grounds to suspect that a vessel is engaged in the smuggling of migrants on the high seas prove to be unfounded or where the participating unit does not have jurisdiction to act, but there remains a reasonable suspicion that the vessel is carrying persons intending to reach the border of a Member State and to circumvent checks at border crossing points, that vessel shall continue to be monitored. The International Coordination Centre shall communicate information about that vessel to the National Coordination Centre of the Member States towards which it is directed. Content I. International law background ...................................................................... II. Interception measures.................................................................................... III. Flag state authorisation..................................................................................

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I. International law background Article 7 addresses the legal position concerning interception measures on the high seas – i. e., outside of any state’s territorial waters (see Article 6) or contiguous zone (see Article 8). On the high seas, the core international law principle is freedom of navigation, in accordance with Article 87 UNCLOS. Correspondingly, the presumption is that the flag state has exclusive jurisdiction over a vessel flying its flag (Article 92 UNCLOS). Article 110 UNCLOS limits the right of states other than the flag state to board and search a vessel (the ‘right of visit’) to cases of reasonable suspicion of the following: (a) engagement in piracy, (b) engagement in the slave trade; (c) engagement in unauthorised broadcasting (provided the intercepting vessel’s state has jurisdiction); (d) being without nationality; or, (e) concealing the fact that it is of the same nationality as the intercepting vessel. A state may also consent to another state’s right of visit to vessels flying its flag, either by treaty, or in an ad hoc manner.78 Jurisdiction to take enforcement measures in respect of a vessel which has been visited requires a separate justification in international and domestic law.79 2 No reference is made in Article 110 UNCLOS to any rights to take action in respect of a vessel on the high seas which is suspected of being involved in migrant smuggling.80 In the case of vessels with a nationality, an international law basis for both the right to visit and for subsequent enforcement measures is instead provided by Article 8 of the Migrant Smuggling Protocol.81 It permits a contracting state’s to request authorisation from the flag state to board and to search (i.e. to visit) a vessel suspected of being engaged in the smuggling of migrants. If evidence is found that the vessel is engaged in the smuggling of migrants, the flag state may give authorisation to take ‘appropriate measures’. While the flag state is under an obligation to respond ‘expeditiously’ to any requests, it is not obliged to give its consent either to boarding and searching, or to enforcement measures. 2a Since 2015, an exception has been made by the UN Security Council in respect of interception measures concerning vessels with a nationality on the high seas off Libya. Firstly, as regards the right to visit, it has authorised States and regional organisations ‘to inspect … vessels that they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking from Libya’, provided they ‘make good faith efforts to obtain the consent of the vessel’s flag State’.82 The key innovation in this provision is that that the flag state’s consent is not actually required.83 Secondly, as regards enforcement, the UN Security Council has authorised Member States and regional organisations to seize 1

78 The possibility of permission by treaty is provided for by Article 110 UNCLOS. In relation to ad hoc consent, see Papastavridis, The Interception of Vessels on the High Seas, p. 63–64, who relies upon the principle in Article 20 of the International Law Commission’s ‘Draft Articles on State Responsibility’ (2001), that ‘consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State.’ 79 Papastavridis, The Interception of Vessels on the High Seas, p. 80–81. 80 See Scovazzi, in Rubio-Marín (ed), Human Rights and Immigration, p. 216–217. 81 Ibid., p. 217–220. 82 UN Security Council Resolution 2240/2015, 9 October 2015, para 7. The authority to inspect has been granted for 12 months at a time, and has been renewed annually, most recently by UN Security Council Resolution 2546/2020, 2 October 2020. 83 Coppens, in Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea, p. 211.

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such vessels, once inspected, if it is confirmed that they are being used for migrant smuggling or human trafficking from Libya.84 The position of stateless vessels is distinct. As we have seen (above, MN 1), 3 Article 110 UNCLOS permits a right to visit a vessel to check whether it is without nationality. There is disagreement among scholars as to whether international law permits enforcement measures, such as seizure of a vessel, if it is found to be engaging in some form of illicit activity. As enforcement measures are not expressly provided for in Article 110 UNCLOS, some writers treat the case of stateless vessels as a lacuna which has not been fully addressed by international law.85 As against that, Article 8(7) of the Migrant Smuggling Protocol provides that a State ‘shall take appropriate measures in accordance with relevant domestic and international law’ where a stateless vessel is found to be engaged in the smuggling of migrants.86 It must be considered anomalous that stateless vessels could be exempt from the legal regime under the Migrant Smuggling Protocol, given that it covers a large majority of the world’s states.87 Support for that reading is provided by the UN Security Council resolution of 9 October 2015 concerning irregular migration from by sea from Libya, in which it called upon ‘Member States acting nationally or through regional organisations that are engaged in the fight against migrant smuggling and human trafficking to inspect, as permitted under international law, on the high seas off the coast of Libya, any unflagged vessels that they have reasonable grounds to believe have been, are being, or imminently will be used by organised criminal enterprises for migrant smuggling or human trafficking from Libya, including inflatable boats, rafts and dinghies.’88 It is significant that the Security Council did not adopt a specific authorisation to enable inspection (i.e., the right to visit), or the related seizure of vessels, in the case of ‘unflagged’ vessels, as had done for vessels with a nationality (above, MN 2a). From the words ‘as permitted under international law’ it considered it unnecessary to do so, as such powers already existed in the case of stateless vessels.89 The international law background explains why Articles 7(1) and 7(2) of the Regula- 4 tion provide that interception measures on the high seas must be ‘in accordance with’ the Migrant Smuggling Protocol and national and international law. It also explains why Article 7 of the Regulation provides for interception solely in cases of suspected smuggling of migrants by sea, and not also (as in Article 6) in other cases of suspicion of an intention to circumvent checks at border crossing points. If an intention to circumvent alone is suspected, Article 7(14) provides for a vessel to be monitored, and for information to be passed on to the Schengen state towards which it is directed (which need not be a state involved in the operation).

84 UN Security Council Resolution 2240/2015, 9 October 2015, para 8. The authority to seize vessels has also been granted for 12 months at a time, and renewed annually, most recently by UN Security Council Resolution 2546/2020, 2 October 2020. 85 See Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009), p. 16–18; Papastavridis, The Interception of Vessels on the High Seas, p. 264–267; Scovazzi, in RubioMarín (ed), Human Rights and Immigration, p. 219 86 See Coppens, in Moreno-Lax/Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea, p. 214. 87 As of April 2021, there were 150 parties to the MSP, including the EU. States which are not parties include Guinea-Bissau, Iceland, Ireland, Israel and Morocco. 88 UN Security Council Resolution 2240 (2015), 9 October 2015, para 5. 89 In support of the lawfulness of action in respect of stateless vessels of the high seas, see Papanicolopulu, International Law and the Protection of People at Sea, p. 134–137.

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II. Interception measures Article 7(1) applies where there are ‘reasonable grounds to suspect’ that a vessel is engaged in smuggling of migrants by sea. This threshold for intervention is based upon a similar phrasing in Article 8(1) of the Migrant Smuggling Protocol. When that requirement is met, Article 7(1) permits a similar set of interception measures to those set out in Article 6(1) (above, Article 6 MN 2–3): (a) requests for information and documentation on the vessel, its journey and the persons on board, and (b) stopping, boarding and searching the vessel and the persons on board, questioning the persons on board, and informing them that those directing the vessel may face penalties for facilitating the voyage. Boarding and searching are also provided for in Article 8(2) of the Migrant Smuggling Protocol, albeit in more general terms. As under Article 6(4), the host state of the operation is to issue instructions to the participating unit via the International Co-ordination Centre (Article 7(4)). 6 If evidence confirming a suspicion of smuggling is found, Article 7(2) sets out a list of further interception measures that may be taken, similar to that in Article 6(2), above. The participating unit may do the following: (a) seize the vessel and ‘apprehend[]’ the persons on board; (b) warn and order the vessel not to enter the territorial sea or contiguous zone, and ‘where necessary’ request it to alter its course towards another destination; (c) conduct the vessel or persons on board to a third country, or otherwise transfer them to the authorities of a third country; and, (d) conduct the vessel or persons on board to the host Member State or another participating Member State.90 In this second stage of interception, Article 7(2) provides a more detailed list than in Article 8(2) of the Migrant Smuggling Protocol, which refers simply to the taking of ‘appropriate measures’ with respect to a vessel and persons on board. 7 A significant aspect of these provisions is the power given by Article 7(2)(c) to conduct persons or a vessel to a third country. As that implies ‘effective control’ over the persons concerned, in all these cases, the non-refoulement guarantees in Article 4 of the Regulation (above, Article 4 MN 1–5) will be applicable, as will be ECHR and CFR guarantees against collective expulsion (above, Article 4 MN 6 and 7).91 5

III. Flag state authorisation Where a vessel intercepted on the high seas is flying the flag or displaying the marks of registry of the host Member State or another participating Member State, Article 7(5) provides that, after confirming the vessel’s nationality, that state may authorise one or more of the interception measures listed in Articles 7(1) and (2). The absence from the Regulation of an obligation to authorise such measures must be considered surprising, not least because of the terms of Article 8 of the Migrant Smuggling Protocol (see above, MN 2). 10 Where the vessel is flying the flag or displaying the marks of registry of another state – i. e., a non-participant Schengen state or a third country – Article 7(6) provides that the state of the participating unit (not the host state) shall request the presumed state of nationality to confirm the vessel’s nationality. Where its nationality is con9

The qualification ‘neighbouring’ has been disregarded: see above, Article 6 MN 9. As regards control over a vessel, ECtHR, Judgment of 29 March 2010 (GC), No 3394/03, Medvedyev v. France, discussed in the context of border control operations in Moreno-Lax, Hirsi Jamaa, p. 202–203. 90 91

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firmed, the participating unit’s state shall request the flag state to take action to suppress the use of the vessel for migrant smuggling. Where that request does not lead to action by the flag state, it is further provided that the participating unit’s state shall request the flag state’s authorisation to take the interception measures provided for in Articles 7(1) and (2). The provisions of Article 7(6) are broadly in line with Article 8(2) of the Migrant Smuggling Protocol, which permits requests to the flag state for authorisation to take interception measures. Another scenario is that a vessel is flying a foreign flag, or is refusing to display its 11 flag, but there are ‘reasonable grounds’ to suspect that it has the nationality either of the participating unit (Article 7(7)), or of the host state or of another participating state (Article 7(8)). In such a case, the participating unit is to verify the vessel’s right to fly its flag. If the suspicions as to nationality prove well-founded, the flag state may authorise one or more of the interception measures listed in Articles 7(1) and (2) (Article 7(9)). Article 7 is silent as to the legal position where the flag state is not a party to the 12 Migrant Smuggling Protocol, but authorises interception measures. In such a case, it is arguable that the ad hoc consent of the flag state to the interception makes it lawful in international law (see above, MN 1). If a vessel is a stateless, freedom of navigation on the high seas is not protected by 13 any state. As we have seen, there is a right of visit in such circumstances under Article 110 UNCLOS (above, MN 1), but further enforcement measures depend upon the provision for ‘appropriate measures’ in Article 8(7) of the Migrant Smuggling Protocol (above, MN 2). Article 7(11) of the Regulation may be seen as a development of the Protocol on this point. It provides that, where there are ‘reasonable grounds’ for suspecting that the vessel is stateless, a participating unit may board and search the vessel in order to verify its nationality. If evidence confirming the suspicion of statelessness is found, the host state of the operation may either take or authorise the interception measures provided for in Articles 7(1) and (2).

Article 8 Interception in the contiguous zone 1. In the contiguous zone of the host Member State or of a neighbouring participating Member State, the measures laid down in paragraphs 1 and 2 of Article 6 shall be taken in accordance with those paragraphs and with paragraphs 3 and 4 thereof. Any authorisation referred to in Article 6(1) and (2) may only be given for measures that are necessary to prevent the infringement of relevant laws and regulations within that Member State’s territory or territorial sea. 2. The measures laid down in Article 6(1) and (2) shall not be taken in the contiguous zone of a Member State that is not participating in the sea operation without the authorisation of that Member State. The International Coordination Centre shall be informed of any communication with that Member State and of the subsequent course of action authorised by that Member State. If that Member State does not give its authorisation and where there are reasonable grounds to suspect that the vessel is carrying persons intending to reach the border of a Member State, Article 7(14) shall apply. 3. Where a stateless vessel is transiting the contiguous zone, Article 7(11) shall apply.

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Article 8 is concerned with interception in a Member State’s contiguous zone. This is an area outside the territorial waters which extends up to 24 nautical miles from the coast (Article 33(2) UNCLOS). Within it, a state may exercise such control as is necessary both to ‘prevent’ and to ‘punish’ the infringement, in its territory and territorial sea, of its ‘customs, fiscal, immigration or sanitary laws and regulations’ (Article 33(1) UNCLOS).92 Article 8(1) extends the provision for interception measures within the territorial sea (above, Article 6 MN 2 and 3) to the contiguous zone of the host state and of other participating states.93 It refers both to circumvention of border control and migrant smuggling. It does not however go as far as UNCLOS, in that a Member State may authorise interception measures only if necessary to prevent infringement of its laws and regulations, and not also for the punishment of infringements. The possibility to authorise interception measures under Article 8(1) is limited to ‘relevant’ laws and regulations. In the context of this Regulation, and having regard to the text of the Frontex Regulation, that term probably refers only to laws and regulations concerned with immigration and border control and cross-border crime.94 Under Article 8(1), the ‘relevant’ laws must moreover be those of that Member State – i. e. it is not possible to authorise interception in the contiguous zone to prevent the breach of another state’s laws. If coercive measures are used, the principle of safety in Article 3 (above) is relevant. Where coercive measures are taken against a vessel, the legal guarantees concerning refoulement and collective expulsion are those that apply on the high seas (see above, Article 7 MN 7). Unlike in the case of interception in the territorial waters, the EU asylum acquis does not apply (see above, Article 6 MN 4). Article 8(2) permits interception measures in the contiguous zone of a non-participating Member State, if it gives authorisation. The permitted interception measures are expressly stated to be those in Articles 6(1) and (2). Where a non-participating Member State does not give its authorisation for interception measures, the monitoring provisions on the high seas apply (see above, Article 7 MN 4). There is no provision for interception in the contiguous zone of a third country, in parallel with the Regulation’s silence concerning interception in a third country’s territorial waters (above, Article 6 MN 10). Where suspected stateless vessels are detected in a Member State’s contiguous zone, Article 8(3) provides for the application of Article 7(11) (see above, Article 7 MN 13). Accordingly, such vessels may be boarded and searched to verify their lack of nationality, and, if that is confirmed, the host state may decide on ‘appropriate measures’.

Article 9 Search and rescue situations 1. Member States shall observe their obligation to render assistance to any vessel or person in distress at sea and, during a sea operation, they shall ensure that their participating units comply with that obligation, in accordance with international law and respect for fundamental rights. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.

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For a discussion, see Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 126–127. The qualification ‘neighbouring’ has been disregarded: see above, Article 6 MN 9. 94 In relation to cross-border crime, see in particular Articles 1, 3(h) and 10(q) of Frontex Regulation (EU) 2019/1896. 93

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2. For the purpose of dealing with search and rescue situations that may occur during a sea operation, the operational plan shall contain, in accordance with relevant international law, including that on search and rescue, at least the following provisions: (a) When, in the course of a sea operation, the participating units have reason to believe that they are facing a phase of uncertainty, alert or distress as regards a vessel or any person on board, they shall promptly transmit all available information to the Rescue Coordination Centre responsible for the search and rescue region in which the situation occurs and they shall place themselves at the disposal of that Rescue Coordination Centre. (b) The participating units shall inform the International Coordination Centre as soon as possible of any contact with the Rescue Coordination Centre and of the course of action taken by them. (c) A vessel or the persons on board shall be considered to be in a phase of uncertainty in particular: (i) when a person has been reported as missing or a vessel is overdue; or (ii) when a person or a vessel has failed to make an expected position or safety report. (d) A vessel or the persons on board shall be considered to be in a phase of alert in particular: (i) when, following a phase of uncertainty, attempts to establish contact with a person or a vessel have failed and inquiries addressed to other appropriate sources have been unsuccessful; or (ii) when information has been received indicating that the operating efficiency of a vessel is impaired, but not to the extent that a distress situation is likely. (e) A vessel or the persons on board shall be considered to be in a phase of distress in particular: (i) when positive information is received that a person or a vessel is in danger and in need of immediate assistance; or (ii) when, following a phase of alert, further unsuccessful attempts to establish contact with a person or a vessel and more widespread unsuccessful inquiries point to the probability that a distress situation exists; or (iii) when information is received which indicates that the operating efficiency of a vessel has been impaired to the extent that a distress situation is likely. (f) Participating units shall, for the purpose of considering whether the vessel is in a phase of uncertainty, alert or distress, take into account and transmit all relevant information and observations to the responsible Rescue Coordination Centre including on: (i) the existence of a request for assistance, although such a request shall not be the sole factor for determining the existence of a distress situation; (ii) the seaworthiness of the vessel and the likelihood that the vessel will not reach its final destination; (iii) the number of persons on board in relation to the type and condition of the vessel; (iv) the availability of necessary supplies such as fuel, water and food to reach a shore; (v) the presence of qualified crew and command of the vessel; (vi) the availability and capability of safety, navigation and communication equipment; (vii) the presence of persons on board in urgent need of medical assistance; Ryan

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(viii) the presence of deceased persons on board; (ix) the presence of pregnant women or of children on board; (x) the weather and sea conditions, including weather and marine forecasts. (g) While awaiting instructions from the Rescue Coordination Centre, participating units shall take all appropriate measures to ensure the safety of the persons concerned. (h) Where a vessel is considered to be in a situation of uncertainty, alert or distress but the persons on board refuse to accept assistance, the participating unit shall inform the responsible Rescue Coordination Centre and follow its instructions. The participating unit shall continue to fulfil a duty of care by surveying the vessel and by taking any measure necessary for the safety of the persons concerned, while avoiding to take any action that might aggravate the situation or increase the chances of injury or loss of life. (i) Where the Rescue Coordination Centre of a third country responsible for the search and rescue region does not respond to the information transmitted by the participating unit, the latter shall contact the Rescue Coordination Centre of the host Member State unless that participating unit considers that another internationally recognised Rescue Coordination Centre is better able to assume coordination of the search and rescue situation. The operational plan may contain details adapted to the circumstances of the sea operation concerned. 3. Where the search and rescue situation has been concluded, the participating unit shall, in consultation with the International Coordination Centre, resume the sea operation. Content I. International law background ...................................................................... II. Textual analysis ...............................................................................................

mn. 1 3

I. International law background 1

Article 9 is concerned with rescue, and aims to ensure that vessels involved in Frontex sea operations provide assistance to persons in distress at sea. The background is the international law obligation upon states to require that vessels flying their flag provide such assistance.95 The most prominent statement is in Article 98(1) UNCLOS, according to which: ‘Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him …’

2

The premise of Article 9 is that Member States and their assets are engaged in border control operations, during which a search and rescue situation arises. As such, it is not concerned with the separate duty upon coastal states to make adequate provision for search and rescue, set out in the SOLAS Convention 95 In addition to Article 98 UNCLOS (discussed in the text), see SOLAS Convention, Chapter V, Regulation 33 (duty on masters) and SAR Convention, Annex, para 2.1.10 (duty on states).

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(Chapter V, Regulation 7) and Article 98(2) of UNCLOS, and taken forward by the SAR Convention (see its Annex, Chapter 2). These obligations deriving from the international law of the sea are reinforced by 2a guarantees of the right to life in international human rights law.96 The Human Rights Committee’s General Comment 36 on Article 6 ICCPR (2018) provides that States are ‘required to respect and protect the lives of … those individuals who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea.’97 In 2020, the Committee applied that principle in its conclusions on complaints against Malta and Italy arising out of the 2013 Lampedusa tragedy (above, Article 1 MN 1). In respect of Malta, it found that the events took place within its jurisdiction because they occurred within its SAR zone, and because its authorities undertook responsibility for co-ordination of rescue efforts in the particular case.98 In respect of Italy, the Committee found that the events took place within its jurisdiction because of the involvement of its SAR co-ordination centre, and the proximity of an Italian naval vessel, and went on to conclude that delays on the part of the Italian authorities amounted to a violation of Article 6.99 The reach of right to life guarantees remain to be determined: a broader view is that states are subject to a ‘due diligence’ standard whenever they are aware of a situation of distress, while a more cautious approach would require the physical presence of a state’s assets at the rescue scene.100

II. Textual analysis Under the first sentence of Article 9(1), Member States are to render assistance to 3 vessels and persons in distress at seas, and are to ensure that their participating units comply with that obligation during Frontex sea operations. This sentence shows significant changes from the version proposed by the Commission. Within the Council of Ministers, six Mediterranean Member States argued that the EU had no competence in respect of search and rescue obligations, which derived from international law, and that it was preferable for search and rescue to be addressed within Frontex operational plans.101 Although the Council Presidency disagreed as regards competence102, the objections did lead to changes in the text agreed by the Council of Ministers, many of which were then retained in the final text of the legislation.103 Among those is the first sentence of Article 9(1), where the Commission approach of placing duties directly upon participating units was replaced by two references to a

96

For a discussion, see generally Trevisanut, Is there a right to be rescued at sea?. UN doc. CCPR/C/GC/36 (30 October 2018), para 63. 98 Human Rights Committee, decision of 13 March 2020 concerning Communication 3043/2017, AS and others v. Malta, UN doc. CCPR/C/128/D/3043/2017. The application was however found inadmissible for non-exhaustion of domestic remedies. 99 Human Rights Committee, views adopted on 4 November 2020 concerning Communication 3042/ 2017, AS and others v. Italy, UN doc. CCPR/C/130/D/3042/2017. 100 See, respectively, Trevisanut, Is there a right to be rescued at sea?, p. 11–14; and Papastavridis, The European Convention on Human Rights and Migration at Sea, p. 433–434. 101 The six states were Cyprus, France, Greece, Italy, Malta and Spain. Their objections were set out in Council doc. 14612/13 of 10 October 2013. 102 See Council doc. 14753/13 of 17 October 2013. 103 The three institutions’ proposed versions of Article 9, and the compromise outcome, are set out in Council doc. 5831/14 of 4 February 2014, p. 56–63. 97

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3a

4

5

6

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Member State’s ‘obligation’, while the phrase ‘in accordance with international law and in respect of fundamental rights’ was added.104 The second sentence of Article 9(1) provides that the obligation to assist is to apply irrespective of the nationality or status of a person, or of ‘the circumstances’ in which they are found. This reproduces a statement in paragraph 2.1.10 of the Annex to the SAR Convention. It implies in particular that assistance is to be fully extended to migrants who are engaged in irregular journeys. To give effect to the general obligation, Article 9(2) sets out various matters concerning the response of a participating unit that are to be provided for in the operational plan. The use of the operational plan in this way was a result of the objections by six Mediterranean Member States to the original Commission proposal (above, MN 3), which would have placed obligations directly upon the participating unit.105 The list of matters to be covered in the operational plan includes an obligation upon a participating unit to promptly transmit all available information to the Rescue Coordination Centre (RCC) for the SAR zone in question, and to place itself at the disposal of that RCC (Article 9(2)(a)). If the RCC is in a third country, and does not respond, the participating unit is to contact the RCC of the operation’s host state, unless another internationally recognised RCC is better placed to co-ordinate a search and rescue (Article 9(2)(i)). The obligation to provide information to the relevant RCC, set out in the operational plan, will arise when a participating unit has ‘reason to believe’ that they are faced with a situation of uncertainty, alert or distress, as regards any vessel or person on board (Article 9(2)(a)). Definitions of phases of ‘uncertainty’, ‘alert’ and ‘distress’ are provided (Article 9(2)(c), (d) and (e)) which are taken verbatim from para 4.4 of the Annex to the SAR Convention.106 The operational plan should also place obligations upon the participating unit without instructions of the RCC. While awaiting instructions from the RCC, participating units should take all appropriate measures to ensure the safety of the persons concerned (Article 9(2)(g)). If a vessel is considered to be in a situation of uncertainty, alert or distress, but the persons on board refuse assistance, the participating unit is to inform and take instructions from the RCC, and also to survey the vessel and to take any measure necessary for the safety of the persons concerned (Article 9(2)(h)).

Article 10 Disembarkation 1. The operational plan shall contain, in accordance with international law and respect for fundamental rights, at least the following modalities for the disembarkation of the persons intercepted or rescued in a sea operation: (a) in the case of interception in the territorial sea or the contiguous zone as laid down in Article 6(1), (2) or (6) or in Article 8(1) or (2), disembarkation shall take place in the coastal Member State, without prejudice to point (b) of Article 6(2);

104 Compare the proposed Article 9(1) in Commission Proposal, COM(2013) 197 with the final text of Article 9(1) set out above. 105 Compare the proposed Article 9(2) in Commission Proposal, COM(2013) 197 with the final text of Article 9(2) set out above. 106 On the link to the SAR Convention, see Commission Proposal, COM(2013) 197, p. 6.

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(b) in the case of interception on the high seas as laid down in Article 7, disembarkation may take place in the third country from which the vessel is assumed to have departed. If that is not possible, disembarkation shall take place in the host Member State; (c) in the case of search and rescue situations as laid down in Article 9 and without prejudice to the responsibility of the Rescue Coordination Centre, the host Member State and the participating Member States shall cooperate with the responsible Rescue Coordination Centre to identify a place of safety and, when the responsible Rescue Coordination Centre designates such a place of safety, they shall ensure that disembarkation of the rescued persons is carried out rapidly and effectively. If it is not possible to arrange for the participating unit to be released of its obligation referred to in Article 9(1) as soon as reasonably practicable, taking into account the safety of the rescued persons and that of the participating unit itself, it shall be authorised to disembark the rescued persons in the host Member State. Those modalities for disembarkation shall not have the effect of imposing obligations on Member States not participating in the sea operation unless they expressly provide authorisation for measures to be taken in their territorial sea or contiguous zone in accordance with Article 6(6) or Article 8(2). The operational plan may contain details adapted to the circumstances of the sea operation concerned. 2. The participating units shall inform the International Coordination Centre of the presence of any persons within the meaning of Article 4, and the International Coordination Centre shall transmit that information to the competent national authorities of the country where disembarkation takes place. The operational plan shall contain the contact details of those competent national authorities, which shall take appropriate follow-up measures. Content I. International law background ...................................................................... II. Textual analysis ...............................................................................................

mn. 1 3

I. International law background Article 10 is concerned with disembarkation after interception or rescue. Its main 1 purpose is to identify the default state for disembarkation in different circumstances, and to ensure provision for that in the operational plan. An interception is by definition initiated by a state’s vessel, and the international law 2 assumption is that the state in question should already have made provision for disembarkation. In a rescue scenario, in contrast, any states or vessels involved have responded to a humanitarian need, and provision for disembarkation cannot be assumed. In a rescue situation, depending on the circumstances, options for disembarkation might include the closest coastal state, the next port of call of the rescuing vessel, the home state of the rescuing vessel, and the state of the search and rescue region.107 Amendments to the SOLAS and SAR Conventions agreed in 2004, which came into force in 2006, place ‘primary responsibility’ upon the SAR region state to ensure disembarkation to a place of safety, but without expressly obliging that state to itself 107 See generally Goodwin-Gill/McAdam, The Refugee in International Law, 3rd edn (OUP, 2007), p. 277–284.

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allow disembarkation.108 In international law, a definitive default solution for disembarkation therefore remains lacking.109

II. Textual analysis In the case of interception in a Member State’s territorial sea or contiguous zone, disembarkation is to take place in that state (Article 10(1)(a)). This applies both to participating and non-participating Member States. This provision is without prejudice to the possibility of the vessel’s being ordered to alter its course away from the territorial sea or contiguous zone (see above, Article 6 MN 3). 4 In the case of interception on the high seas, disembarkation may either take place in the third state from which the vessel is assumed to have departed, or – if that is not possible – in the host Member State of the operation (Article 10(1)(b)). Article 10 does not contemplate disembarkation in any other state – i. e. neither another third country nor another Schengen state. 5 In the case of rescue, the starting-point is similar to the 2004 amendments to the SOLAS and SAR Conventions. Accordingly, responsibility to identify a place of safety lies with the Rescue Coordination Centre (Article 10(1)(c)). The host Member State and participating Member States have a duty to co-operate with the Rescue Coordination Centre in identifying a place of safety, and also in implementing the disembarkation when it is arranged. There are no restrictions on the state of disembarkation, other than the general limitations linked to non-refoulement (above, Article 4 MN 1–5). Crucially, Article 10(1) goes on to provide a default position in the event that no state of disembarkation can at first be found. If the participating unit in question is not released from its obligation to assist ‘as soon as reasonably practicable’, disembarkation in the host Member State shall be authorised. (Note that the amendments to the SOLAS and SAR Conventions adopted in 2004 did not specify this default solution.)110 3

Article 11 Amendment to Regulation (EC) No 2007/2004 This provision, dealing with an amendment to the Frontex Regulation, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

108 Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 138–142; Scovazzi, in Rubio-Marín (ed), Human Rights and Immigration, p. 230–231. Malta has not accepted these amendments: see Klepp, A Double Bind, p. 549–550; Trevisanut, Search and Rescue Operations in the Mediterranean, p. 531. 109 The closest to such a default position was a recommendation of the IMO’s Facilitation Committee in 2009 that disembarkation should take in the SAR region state, if no timely alternative was available elsewhere: see ‘Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea’ (FAL.3/Circ.194, 22 January 2009), discussed in Trevisanut, Search and Rescue Operations in the Mediterranean, p. 530. 110 See now SOLAS Convention, Chapter V, Regulation 33.1.1, SAR Convention, Annex, para 3.1.9.

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Article 12 Solidarity mechanisms This provision, dealing with solidarity mechanisms in situations of pressure, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 13 Report This provision, dealing with a Frontex obligation to produce an annual report, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

CHAPTER IV FINAL PROVISIONS Article 14 Effects of Decision 2010/252/EU This provision, dealing with the cessation of the effect of Decision 2010/252/EU, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 15 Entry into force This provision, dealing with the entry into force of the Regulation, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

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Chapter 5. Schengen Borders Code Regulation (EU) 2016/399 Select Bibliography: Brouwer, Digital borders and real rights: effective remedies for third-country nationals in the Schengen information system, Immigration and Asylum Law and Policy in Europe, Vol. 15 (Brill Nijhoff, 2008); Cornelisse, ‘What’s wrong with Schengen? Border Disputes and the Nature of Integration in the Area without Internal Borders’, CML Rev. 51 (2014), p. 741–770; Groenendijk/ Guild/Minderhoud (eds), In Search of Europe’s Borders (Kluwer, 2003); Montaldo, ‘The COVID-19 Emergency and the Reintroduction of Internal Border Controls in the Schengen Area: Never Let a Serious Crisis Go to Waste’, European Papers 5 (2020), p. 523–531; Pascouau, ‘The Schengen Governance Package, The subtle balance between Community method and intergovernmental approach’, European Policy Center Discussion Paper, 12 December 2013; Peers, ‘Key Legislative Developments on Migration in the European Union’, EJML (2006), p. 321–356; Peers, ‘The Future of the Schengen System’, Swedish Institute for European Policy Studies, Report No 6 (2013); Progin-Theuerkauf/Zoeteweij-Turhan/Turhan, ‘Chapter 9: Smart Borders and Data Protection’, in: Tzanou (ed), Personal Data Protection and Legal Developments in the European Union (IGI Global, 2020), p. 169–201; Progin-Theuerkauf, ‘Schutz der und Zusammenarbeit an den Aussengrenzen’, in: Wollenschläger (ed), Enzyklopädie Europarecht, Vol. 10, 2nd edn (Nomos, 2020); Progin-Theuerkauf, ‘The EU Return Directive – Retour à la “case départ”?’, suigeneris (2019), p. 32–48; Thym/Bornemann, ‘Schengen and Free Movement Law during the first phase of the COVID-19 pandemic: Of symbolism, law and politics’, European Papers 5 (2020), p. 1143–1170. Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Consolidated text: Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (codification) Official Journal L 77, 23.3.2016, p. 1–52; as amended by Regulation (EU) 2016/1624, Official Journal L 251, 16.9.2016, p. 1–76; Regulation (EU) 2017/458, Official Journal L 74, 18.3.2017, p. 1–7; Regulation (EU) 2019/817, Official Journal L 135, 22.5.2019, p. 27–84 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 77(2)(b) and (e) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national Parliaments, Acting in accordance with the ordinary legislative procedure(1), Whereas: […] HAVE ADOPTED THIS REGULATION:

(1) Position of the European Parliament of 2 February 2016 (not yet published in the Official Journal) and decision of the Council of 29 February 2016.

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TITLE I GENERAL PROVISIONS Article 1 Subject matter and principles This Regulation provides for the absence of border control of persons crossing the internal borders between the Member States of the Union. It lays down rules governing border control of persons crossing the external borders of the Member States of the Union. Content mn. I. General remarks .............................................................................................. 1 1. Introduction and purpose of the regulation......................................... 1 2. Territorial scope of the Regulation......................................................... 7 3. Refugees, asylum-seekers and other persons in need of international protection ............................................................................ 12 4. Judicial protection ...................................................................................... 19 II. Drafting history of Regulation 2016/399 ................................................... 21

I. General remarks 1. Introduction and purpose of the regulation Regulation (EU) 2016/3991 (hereinafter: the Schengen Borders Code) provides for 1 the absence of border controls at ‘internal borders’2 and establishes common rules and standards to be applied by the Member States when controlling persons crossing the external borders of the Schengen area (Article 1). The aim of external border controls is to help combat illegal immigration and trafficking in human beings and to protect the security of the Schengen area. Border checks carried out by one Member State at its external borders are executed on behalf of all the other Member (resp. Schengen) States, since controls at internal borders are abolished. Internal border controls may only be re-introduced exceptionally and temporarily in the event of a serious threat to the public policy or internal security in a Member State or the whole Schengen area (Articles 25–35). In that sense, the provisions on external and internal border controls are interdependent. Regulation (EU) 2016/399 entered into force on 12 April 20163 and is a development 2 of the Schengen acquis. It was adopted on the basis of Article 77(2)(b) and (e) TFEU (formerly Article 62(1) and (2)(a) EC Treaty) and repealed Regulation (EC) 562/20064, 1 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (codification), OJ 2016 L 77/1. 2 See the definition in Article 2 (1) of Regulation 2016/399. 3 Article 45 of Regulation 2016/399 foresees the entry into force on the twentieth day following that of its publication in the Official Journal. 4 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105/1), last amended by Regulation (EU) No 1051/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 295/1).

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which for the first time combined in one single instrument the existing rules of the acquis on border controls. Before 2006, these rules were found in the Convention implementing the Schengen Agreement (CISA), the Common Manual and a number of decisions of the Schengen Executive Committee. Regulation (EC) 562/2006 itself had been amended not less than six times5 between 2006 and 2013. Regulation (EU) 2016/ 399 codified these changes, without however modifying the content of the regulation. 3 Regulation 2016/399 is part of the European Union’s policy of external border control and management. Other important instruments in that field include: – The provisions of the CISA on border controls that are still applicable (i.e. that have not been repealed, cf. below MN 20–25); – the Practical Handbook for Border Guards (Schengen Handbook);6 – the regulation on the European Border and Coast Guard ‘FRONTEX’;7 The responsibility for the implementation of the rules laid down in Regulation 2016/ 399 lies with the Member States. Nevertheless, in order to coordinate and strengthen cooperation between the Member States, in particular with regard to Title II of Regulation 2016/399,8 FRONTEX, originally called the “European agency for the management of operational cooperation at the external borders”, was established in 2004.9 It has its seat in Warsaw, Poland.10 FRONTEX became operational on 3 October 2005.11 It was turned into the European Border and Coast Guard in 2016.12 In 2019, its mandate was again enlarged and is currently governed by Regulation (EU) 2019/ 1896, which also integrated the provisions on the European Border Surveillance System EUROSUR (and thus repealed the former EUROSUR Regulation13) – the rules on local border traffic;14 and – the regime on carrier sanctions.15 5 Regulation (EC) No 296/2008 of the European Parliament and of the Council of 11 March 2008 (OJ 2008 L 97/60); Regulation (EC) No 81/2009 of the European Parliament and of the Council of 14 January 2009 (OJ 2009 L 35/56); Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 (OJ 2009 L 243/1); Regulation (EU) No 265/2010 of the European Parliament and of the Council of 25 March 2010 (OJ 2010 L 85/1); Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013 L 182/1); Regulation (EU) No 1051/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 295/1). See also Treaty concerning the accession of the Republic of Croatia to the European Union (OJ 2012 L 112/10). 6 Commission Recommendation, C(2019) 7131 final. 7 Regulation (EU) 2019/1896 of 13 November 2019 on the European Border and Coast Guard (OJ 2019 L 295/1); completed by Regulation (EU) No 656/2014 of 15 May 2014 (Sea Borders Regulation). 8 See Article 16 and 17 Regulation 2016/399. 9 Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349/1). 10 See Article 93(5) of Regulation (EU) 2019/1896. 11 See in more detail the commentaries by Ryan on the Frontex Regulation (EU) 2019/1896 and on the Sea Borders Regulation (EU) 656/2014, in this volume. 12 Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ 2016 L 251/1). 13 Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur) (OJ 2013 L 295/11). 14 Regulation (EC) No 1931/2006/EC of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention (OJ 2006 L 405/1); Corrigendum in OJ 2007 L 29/3. 15 Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985 (OJ 2001 L 187/45); Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data

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The control of external borders and especially the combating of illegal immigration is 4 furthermore also one of the most important goals of the European Union’s visa policy.16 These two areas of law, their secondary instruments and in particular the corresponding databases are closely interwoven and should not be considered separately: The Schengen Information System is a vital instrument being used during the examination of visa applications. The Visa Information System (hereinafter: VIS)17, which became operational in 5 October 2011, goes beyond the SIS and also stores biometric data and data relating to visa applications that cannot be entered into the SIS for lack of a legal basis. According to Article 2(c) and (d) VIS Regulation, the VIS shall not only facilitate the visa application procedure as such, but also facilitate checks at external border crossing points and the fight against fraud. The authorities at the external borders have access to the VIS for the checks that are to be conducted according to Article 6 in conjunction with Article 8 Regulation 2016/399 (Article 18 VIS Regulation). Harmonized rules and procedural guarantees also apply to third-country nationals 6 who are found to be unlawfully staying in the Schengen area – because they do not or no longer fulfil the criteria for entry into the Schengen area as set out in Article 6 Regulation 2016/399 and do not have any other right for entry, stay or residence in any Schengen state: The Return Directive 2008/115/EC18 obliges the Schengen States to issue a return decision against such individuals. If these third-country nationals do not depart voluntarily, they may be removed. An entry ban for the Schengen area has to be issued, and Member States may decide to register these bans in the SIS.

2. Territorial scope of the Regulation The Schengen Borders Code is fully applicable to all the ‘old’ Member States with 7 the exception of the non-European territories of France and the Netherlands.19 The United Kingdom and Ireland never opted in to the Schengen Borders Code. Since 2020 (effectively since the expiry of the transition period in 2021), the United Kingdom is no longer an EU Member State, and therefore has no perspective of joining the Schengen area, except if a new bilateral agreement is negotiated. In December 2020, Gibraltar has decided to join the Schengen area for a temporary period of up to four years. Denmark does in general not participate in the adoption of measures based on 8 Part III Title V TFEU (Article 1, 2 of Protocol No 22 on the Position of Denmark). (OJ 2004 L 61/24). On carrier sanctions see for example Rodenhäuser, ‘Another Brick in the Wall: Carrier Sanctions and the Privatization of Immigration Control’, IJRL 26 (2014), p. 223–247; Karanja, Transparency and Proportionality in the SIS and Border Control Cooperation (Brill Nijhoff, 2008), p. 369 et seqq. 16 See Thym, Legal Framework for Entry and Border Controls, MN 9–15; Lehner, ‘§ 28 Gemeinsame Visapolitik’, in: Wollenschläger (ed), Europäischer Freizügigkeitsraum – Unionsbürgerschaft und Migrationsrecht (Nomos, 2021), p. 1019 et seqq. On the interaction of these areas see also Cholewinski, in Groenendijk/Guild/Minderhoud (eds), In Search of Europe’s Borders, p. 105, 127 et seq. 17 Council Decision of 8 June 2004 establishing the Visa Information System (VIS) (OJ 2004 L 213/5); Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ 2008 L 218/60), last amended by Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 (OJ 2019 L 135/27). 18 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals; for an analysis see Lutz/Mananashvili/Moraru, Return Directive 2008/115/EC, in this volume; Progin-Theuerkauf, The EU Return Directive, p. 32–48. 19 Recital 21 of Regulation 562/2006.

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According to Article 4 of the protocol, Denmark can, however, decide within a period of six months to implement such measures in national law, which it has done with respect to Regulation 2016/399. Such a decision results in an obligation under international law between Denmark and the other Member States bound by the Schengen acquis (Article 4(1) second sentence Protocol on the Position of Denmark). Despite the fact that Regulation 2016/399 is therefore not directly applicable, and the general rules on judicial protection do not apply, it is nevertheless expected that the rulings of the European Court of Justice on the interpretation of this regulation will be taken into account by Denmark.20 9 The ‘new’ Member States have been bound by the entire Schengen acquis and its further developments from the date of their accession to the Union. In order to become ‘full’ Schengen states applying all the Schengen rules (including the ones on the abolition of internal border controls), the Council had resp. has to take a unanimous decision in this regard (Article 2(2) Schengen Protocol).21 Romania, Bulgaria, Cyprus and Croatia are not yet full Schengen States, and even though they already apply the rules on external borders control, controls at internal borders are still being maintained.22 10 Regulation 2016/399 is applicable to the Spanish exclaves of Ceuta and Melilla only as far as the declaration of Spain in the Final Act to the Agreement on the Accession of the Kingdom of Spain to the Schengen Implementation Convention23 does not provide otherwise (Article 41 Regulation 2016/399).24 According to that declaration,25 the controls between Ceuta and Melilla and the customs area of the European Union are to be maintained, thereby weakening the rules set out in Article 20, 21 Regulation 2016/399 concerning the admissibility of controls at internal borders and within a Member State. As far as this declaration does not provide special rules, Regulation 2016/399 is also applicable to these territories. 11 By reason of their association agreements to the Schengen acquis the non-EUMember States Iceland and Norway26 as well as Switzerland27 and the Principality of Liechtenstein28 are bound by and fully applying the Schengen Borders Code Regulation.

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On the position of Denmark see also above Thym, Constitutional Framework, MN 40–41. See already the common declaration to Article 139 of the Schengen Implementation Convention. The Council takes such a decision after having evaluated if the requirements for the correct application of the Schengen acquis are met in the Member State in question. Of particular importance are in this regard the correct implementation of external borders control as well as of the accompanying measures, for example in the area of data protection. See on this particularity of the Schengen acquis for example Peers, EU Justice and Home Affairs Law. Vol. 1, 4th edn (OUP, 2016), p. 88–90. 22 The list of ‘full’ Schengen States is found in the Schengen Handbook, Part One, 1. 23 OJ 2000 L 239/69. 24 See also recital 21, and already Article 138 of the Schengen Implementation Convention. 25 OJ 2000 L 239/73. 26 Agreement with Iceland and Norway of 17 May 1999 concerning the latters’ association with the implementation, application and development of the Schengen acquis (OJ 1999 L 176/35). 27 Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ 2008 L 53/52). 28 Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ 2011 L 160/39). 21

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3. Refugees, asylum-seekers and other persons in need of international protection The consequences of strict external border controls can be particularly harsh on persons seeking international protection: Persons fleeing from persecution, from a serious threat to their life or physical and mental integrity or from an armed conflict will typically not fulfil the conditions for entry into the Schengen area29 as they will in a lot of cases not even be in the possession of valid travel documents and even more rarely be able to provide all the required supporting documents. If third-country nationals reach an external border of a Member State, they must be granted the possibility to seek international protection in the European Union and their application must be examined to ensure that they are in no case returned to a country where they are at risk of being persecuted or where their life or freedom is at risk (prohibition of refoulement, which is considered a rule of ius cogens).30 Regulation 2016/399 takes these protection obligations into account in several provisions:31 – Recital (36) and Article 3(b) clearly state that the provisions of Regulation 2016/399 should be applied in accordance with the Member States’ obligations as regards the rights of refugees and persons requesting international protection, in particular as regards non-refoulement. – The imposition of penalties for unauthorised crossing of the external borders in Article 5(3) is without prejudice to Article 31 of the 1951 Geneva Refugee Convention which prohibits such criminal penalties for refugees on the sole account of their illegal entry or presence on the territory of a Schengen state provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence. – Article 6(5)(c) provides for possible derogations from the entry conditions of Article 6(1) among other reasons on grounds of international obligations or for humanitarian reasons. – Article 7(1) stresses the importance of border guards respecting human dignity in the performance of their duties, in particular when vulnerable persons – e. g. traumatised persons, unaccompanied minors or victims of human trafficking – are involved. – Article 14(1) establishes that the application of special provisions concerning the right to asylum and international protection remain unaffected by the principle that entry should be refused if the entry conditions of Article 6 are not fulfilled. Point 12 of Part Two, Section 1 of the Schengen Handbook states very clearly that all applications for international protection at the border must be examined, and that any behaviour or expression of fear of the person of suffering serious harm if returned to his or her country of origin must be considered as an application for international protection. The applications must be examined either in special border procedures or regular asylum procedures within the territory. It is questionable whether a general right of entry has to be granted to persons seeking international protection, if the conditions of Article 6 Regulation 2016/399 are not fulfilled, but the entry would be the only way 29

See below the comments on Article 6. See in more detail and with further references Epiney/Waldmann/Egbuna-Joss/Oeschger, ‘Maximen und Verfahren im regulären und beschleunigten Asylverfahren’, in: UNHCR/SFH (eds), Schweizer Asylrecht, EU-Standards und internationales Flüchtlingsrecht – Eine Vergleichsstudie (Stämpfli, 2009), p. 199–300, 203 et seqq. 31 See also point 12 of Part Two, Section 1 of the Schengen Handbook. 30

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for persons seeking international protection to ask for that protection according to the relevant European Union rules, especially the Qualification Directive32. As far as the Asylum Qualification Directive 2011/95/EU is concerned, it only provides for the conditions under which asylum or international protection has to be granted; it does not contain any provision on the question of entry into the European Union’s territory. The Asylum Procedures Directive 2013/32/EU33 clearly states that its provisions apply to ‘all applications for asylum made in the territory, including at the border or in the transit zones of the Member States’ (Article 3(1) Asylum Procedures Directive 2013/32/EU, emphasis added). According to Article 43 Asylum Procedures Directive, Member States are authorized to adopt special provisions applicable to border procedures in accordance with the principles and guarantees set out in Chapter II of Asylum Procedures Directive 2013/32/EU (Article 43(1)). According to Article 43(2), Member States must ensure that a decision on the application is taken within four weeks, or otherwise the person must be granted a right of entry into the territory and the application must then be examined in observation of all the procedural standards set out in the Asylum Procedures Directive 2013/32/EU. Article 43(3) provides for an exception to the latter rule in case of a large influx of people. The Member States may then still apply the border procedures, as long as the persons seeking international protection are accommodated in the proximity to the border or transit zone. 16 If persons seeking international protection are intercepted at sea outside of EU territory and therefore not able to reach the external border as defined in Article 2(2) Regulation 2016/399, Member States are nonetheless bound by international human rights law. The ECtHR has made clear that States must grant at least a provisional right of entry, for the purpose of assessing whether a person will run a risk of violation of Article 3 ECHR in case of return. The fact that they are still in international waters does not change anything. Persons are to be regarded as being within the ‘jurisdiction’ of a State within the meaning of Article 1 ECHR and thereby benefitting from the substantive guarantees of the Convention, if that State exercises ‘continuous and exclusive de jure and de facto control’34 over them, irrespective of the fact that this control might be exercised on a vessel outside their territory (see Thym, Legal Framework for Entry and Border Controls, MN 38–41)35. 17 The jurisprudence of the ECJ on this issue remains somewhat unclear. In ANAFE36, the Court had to answer the question whether persons who had been issued temporary residence cards while the decision on their application for asylum was pending in one Member State, were allowed to re-enter the Schengen area after they had left the territory of the Member State examining their request. The ECJ held that such persons cannot cross the external borders on the strength of their temporary residence documents alone. The border authorities must refuse them entry (Article 14 Regulation 2016/399) unless they are covered by an exception laid down in Article 6(4) Regulation 2016/399. 32 Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337/9). 33 Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180/60). 34 ECtHR, Judgment of 23 February 2012, No 27765/09, Hirsi Jamaa and Others v. Italy [GC], para 81; ECtHR, Judgment of 29 March 2010, No 3394/03, Medvedyev and Others v. France [GC], para 67. 35 On the (possibly) extraterritorial scope of the Schengen Borders Code see in detail den Heijer, Europe and Extraterritorial Asylum (Hart, 2012), p. 165, 193–199. 36 ECJ, ANAFE, C-606/10, EU:C:2012:348, paras 39–41.

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Article 6(4)(c) expressively authorises Member States to grant entry on humanitarian grounds, grounds of national interest or because of international obligations even to a person who does not fulfil all the entry conditions in Article 6(1). Even though the Court also stressed that the Schengen Borders Code is without prejudice to the rights of refugees and persons requesting international protection, in particular as regards non-refoulement (Article 3(b) Regulation 2016/399), it did not give a clear answer on the issue whether Member States are allowed to refuse asylum seekers entry at their borders or must grant them a right of entry37. The conclusion must be drawn that neither the provisions of the Schengen Borders 18 Code nor of the Asylum Procedures Directive 2013/32/EU can be interpreted in the sense of a ‘right of entry’ in order to request international protection. However, the non-refoulement principle nevertheless demands that national authorities at the external borders – or, under the conditions discussed above, even outside EU territory – must ensure that all applications for international protection are examined, either by sending the person to the Member State responsible for the application according to the criteria set out in the Dublin III Regulation (EU) No 604/201338 or by examining the application themselves in special border procedures or regular procedures within the territory, after having granted a right of entry for that purpose. Once the person entered into the territory of a Member State – notwithstanding the exception in Article 43(3) Asylum Procedures Directive –, Article 9(1) Asylum Procedures Directive 2013/32/EU applies and grants the person a right to remain during the examination of his or her application.

4. Judicial protection Before the Treaty of Lisbon entered into force on 1 December 2009, judicial 19 protection used to be restricted for the areas of law covered by Title IV EC Treaty which of course also included the rules of the Schengen Borders Code. According to Article 68(1) EC Treaty, only the highest national courts were bound to request a preliminary ruling of the European Court of Justice if questions on the interpretation or on the validity of European Union acts were raised. Consequently, lower national courts did not have the right or the possibility to request an interpretation of the applicable EU law. Fortunately, the Treaty of Lisbon improved the judicial protection in this area. The 20 Treaty on the Functioning of the European Union (TFEU) does not contain any provision similar to Article 68 EC Treaty and the general rules on the jurisdiction of the ECJ therefore now also apply to Part III Title V TFEU (‘Area of Freedom, Security and Justice’). The exceptions mentioned in Article 276 TFEU do not include the area of border controls.

II. Drafting history of Regulation 2016/399 The abolition of checks at internal borders and the transfer of those checks to the 21 external borders was the main subject and purpose of the Schengen Convention of 1985 37

See Cornelisse, What’s wrong with Schengen?, p. 766. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180/31). 38

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(Article 17) and the Convention implementing the Schengen Agreement of 1990 (hereinafter: CISA, Title II, Article 2–8). Article 2(1) CISA provided for the abolition of controls at internal borders, whereas Article 2(2) left the possibility of Member States to reinstate border controls for public policy or national security reasons unaffected. The rules on the crossing of the external borders were found in Articles 3–8 CISA. Article 5 CISA being a key provision listed the conditions on which third country nationals could be granted entry into the territories of the participating States. According to Article 6(1) CISA the checks at external borders were to be carried out by the competent national authorities in accordance with their national laws and taking into account certain uniform principles listed in Article 6(2). Article 7 CISA established an obligation of cooperation between the participating States, and Article 8 CISA conferred the power to adopt decisions on the practical aspects of carrying out the border checks unto the Schengen Executive Committee. Making use of these powers, the Executive Committee adopted the Common Manual39 detailing in its Part I the conditions for entering the Schengen area and giving practical guidance for the implementation of Article 3–5 CISA, and in Part II the carrying out of border checks at the external borders and therewith supplementing Article 6–7 CISA.40 In 1999, the Treaty of Amsterdam and the so-called Schengen Protocol attached to it integrated the Schengen acquis on border control into the legal framework of the Community. The Council designated Article 62(1) and (2) EC Treaty as the new legal basis for Article 2–7 CISA, the Decision of the Executive Committee establishing the Common Manual and five more decisions of the Committee.41 The Common Manual was a result of the Schengen intergovernmental cooperation and after the entry into force of the Treaty of Amsterdam, the powers to amend the Manual and its 21 annexes were conferred upon the Council.42 The European Parliament had largely been and continued to be excluded from effective participation in the legislative process in the area of border control. Even after the Common Manual had become part of EU law, it still differed from other EU law in that it did not take the form of any of the instruments provided for by Article 288 TFEU (formerly Article 249 EC Treaty), which lead to some ambiguity about its legal effect. The legal uncertainty was further increased by the fact that the Manual was a sort of hybrid between a source of EU law and a practical handbook that sometimes borrowed from or simply reproduced the contents of other sources as for example the Common Consular Instructions.43 Discussions about the need to revise the Common Manual started not long after the entry into force of the Treaty of Amsterdam, and it became clear that the Member

39 Decision of the Executive Committee of 28 April 1999 on the definitive versions of the Common Manual and the Common Consular Instructions (SCH/COM-ex [99] 13), OJ 2000 L 239/317. The Common Manual was first published in OJ 2002 C 313/97. It was considered a confidential document until the Council took the necessary decisions to declassify it; Council Decision 2000/751/EC, OJ 2000 L 303/29, and Council Decision 2002/535/EC (OJ 2002 L 123/49). 40 See Peers, Key Legislative Developments, p. 324 et seqq. 41 See Peers, Key Legislative Developments, p. 324. 42 Council Regulation 790/2001/EC of 24 April 2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for carrying out border checks and surveillance, OJ 2001 L 116/5. An action for annulment by the Commission was unsuccessful, ECJ, Commission v. Council, C-257/01, EU:C:2005:25. 43 See Commission Proposal, COM(2004) 391 final, p. 6.

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States favoured the Commission’s proposal to separate the legal instrument from the practical handbook.44 The Commission drafted and released a proposal for a regulation in May 2004.45 With effect from 1 January 2005, the decision-making rules for measures adopted on the basis of Article 62(1) and (2)(a) EC Treaty were amended46 and provided for the application of the co-decision procedure pursuant to Article 251 EC Treaty and qualified majority voting. The Council and the European Parliament reached a final agreement in the first reading in June 2005,47 and the Schengen Borders Code Regulation 562/2006 was formally adopted on 15 March 2006. Regulation 562/2006 entered into force on 13 October 2006 with the exception of 26 Article 34. Article 34 established obligations of the Member States to notify certain facts to the Commission and entered into force already on 14 April 2006 (Article 40). With its entry into force, the following provisions and measures were repealed (Article 39 Regulation 562/2006): – art 2–8 CISA; – the Common Manual and its annexes; – the relevant decisions of the Schengen Executive Committee; – Annex 7 of the Common Consular Instructions which was also part of the Common Manual; – the Council Regulation conferring the implementing powers in the area of border control on the Council; – Council Decision 2004/581/EC on signs at external borders; – a Council Decision amending the Common Manual; and – Council Regulation 2133/2004 on the systematic stamping of travel documents of third country nationals. Regulation 562/2006 was amended by six regulations: 27 – Regulation 296/200848 amending the existing rules on the implementing powers of the Commission; – Regulation 81/2009 regarding the use of the VIS under the Schengen Code49; – the Visa Code Regulation (EC) No 810/200950; – Regulation 265/2010 concerning the movement of persons with a long-stay visa51; – Regulation 610/201352 which introduced a number of amendments and clarifications which had become necessary through several years of practical experience, the adoption of the Visa Code Regulation and the ECJ’s jurisprudence; this regulation also brought Reg. 562/2006 in alignment with Article 290 TFEU and delegated the power to adopt additional measures concerning border surveillance and the amendments of the annexes to the Commission; and 44 See Commission Proposal, COM(2004) 391 final, p. 6 et seqq.; see also Peers, Key Legislative Developments, p. 326 et seqq. 45 Commission Proposal, COM(2004) 391 final. 46 Council Decision 2004/927/EC of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty (OJ 2004 L 396/45), Article 1(1). 47 See Peers, Key Legislative Developments, p. 329 for possible reasons for the first-reading agreement. 48 Regulation (EC) No 296/2008 of the European Parliament and of the Council of 11 March 2008 amending Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as regards the implementing powers conferred on the Commission (OJ 2008 L 97/60). 49 OJ 2009 L 35/56. 50 OJ 2009 L 243/1. 51 OJ 2010 L 85/1. 52 OJ 2013 L 182/1.

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– Regulation 1015/201353 providing for more detailed rules on the temporary reintroduction of border control at internal borders in exceptional circumstances as well as a new evaluation mechanism. One of the goals when drafting what later became Regulation 562/2006 was to separate the provisions of the Common Manual that were legally binding from the ones that were not. The practical guidance for border guards when implementing the provision of Regulation 562/2006 was then compiled in the so-called ‘Schengen Handbook’54 with a view to ensuring an effective and harmonized implementation of the common rules on border control. In 2016, the 2006 Schengen Borders Code was recast and the modifications made by the six subsequent regulations adopted between 2008 and 2013 were codified and embedded in the text of the Borders Code. Regulation (EU) 2016/39955 entered into force on 12 April 2016.56 An updated version of the Schengen Handbook was also published in 2019.57 As mentioned before, the provisions of the Schengen Handbook are still only recommendations and not legally binding. Since its entry into force in 2016, Regulation (EU) 2016/399 was already amended three times, by the following regulations: – Regulation (EU) 2016/162458 on the European Border and Coast Guard (no longer in force, as repealed by Regulation (EU) 2019/189659); this regulation transformed FRONTEX into the European Border and Coast Guard (still called FRONTEX) and enlarged its mandate; – Regulation (EU) 2017/45860 amending Regulation (EU) 2016/399 as regards the reinforcement of checks against relevant databases at external borders; this regulation extends the obligation to carry out systematic border checks at the external land, sea, and air borders to EU citizens and persons enjoying a right to free movement in the EU (and not only to third-country nationals, as was the case before). It was argued that this was necessary, as an estimated number of 5’000 EU citizens had travelled to conflict zones and joined terrorist groups such as ISIL/Da’esh. Some of the returning foreign fighters had later been involved in terrorist attacks in Europe; the control of EU nationals at external borders was therefore considered to be important in the fight against terrorism. – Regulation (EU) 2019/81761 on establishing a framework for interoperability between EU information systems in the field of borders and visa. It aims at interconnecting the Entry Exit System (EES), the Visa Information System (VIS), the European Travel Information and Authorisation System (ETIAS) and (parts of) the Schengen Information System (SIS). The regulation, together with Regulation (EU)

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OJ 2013 L 295/1. Commission Recommendation, COM(2006) 5186 final; amended by Commission Recommendation COM(2008) 2976 final, Commission Recommendation, COM(2009) 7376 final, Commission Recommendation, COM(2010) 5559 final, Commission Recommendation, COM(2011) 3918 final, Commission Recommendation, COM(2012) 9330 final. 55 See above MN 1. 56 Article 45 of Regulation 2016/399. 57 Commission Recommendation, C(2019) 7131 final. See above MN 6. 58 OJ 2016 L 251/1. 59 OJ 2019 L 295/1. 60 OJ 2017 L 74/1. 61 OJ 2019 L 135/27. 54

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2019/81862 allowing the interoperability of databases in the area of police and judicial cooperation, asylum and migration (Eurodac, ECRIS-TCN and parts of SIS), is part of the EU’s plan to create Smart Borders, i.e. borders that can be better and more easily controlled by using existing and new digital systems.63 In 2017, the European Commission published a proposal64 aiming at a reform of 32 Articles 25 et seqq. of the Schengen Borders Code on the reintroduction of border controls at internal borders. The Commission namely plans to modify the deadlines foreseen in those articles. The proposal has not yet been adopted. Another amendment of the Schengen Borders Code has already been decided: The 33 launch of the European Travel Information and Authorisation System (ETIAS)65, an automated IT system created to identify security, irregular migration or high epidemic risks posed by visa-exempt visitors travelling to the Schengen States, and the EntryExit-System (EES)66, an automated IT system for registering all travelers from thirdcountries (short-stay visa holders and visa exempt travelers) each time they cross an EU external border, which are expected to be operational in 2022, will lead to a modification of the entry conditions for third-country nationals (Article 6) and the border checks that will be carried out on them (Article 8).67

Article 2 Definitions For the purposes of this Regulation the following definitions apply: 1. ‘internal borders’ means: (a) he common land borders, including river and lake borders, of the Member States; (b) the airports of the Member States for internal flights; (c) sea, river and lake ports of the Member States for regular internal ferry connections;

62 Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 (OJ 2019 L 135/85). 63 For an in-depth discussion of interoperability see Progin-Theuerkauf/Zoeteweij-Turhan/Turhan, in Tzanou (ed), Personal Data Protection and Legal Developments in the European Union, p. 169–201. 64 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2016/399 as regards the rules applicable to the temporary reintroduction of border control at internal borders, COM(2017) 571 final. 65 Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ 2018 L 236/1). 66 Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of thirdcountry nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 767/2008 and (EU) No 1077/2011, OJ L 327, 9.12.2017, p. 20–82. See also Regulation (EU) 2017/2225 of 30 November 2017 amending Regulation (EU) 2016/399 as regards the use of the Entry/Exit System (OJ 2017 L 327/1). 67 For more information on EES and ETIAS see Progin-Theuerkauf/Zoeteweij-Turhan/Turhan, in Tzanou (ed), Personal Data Protection and Legal Developments in the European Union, p. 169–201.

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2. ‘external borders’ means the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders; 3. ‘internal flight’ means any flight exclusively to or from the territories of the Member States and not landing in the territory of a third country; 4. ‘regular internal ferry connection’ means any ferry connection between the same two or more ports situated on the territory of the Member States, not calling at any ports situated outside the territory of the Member States, and consisting of the transport of passengers and vehicles according to a published timetable; 5. ‘persons enjoying the right of free movement under Union law’ means: (a) Union citizens within the meaning of Article 20(1) TFEU, and third-country nationals who are members of the family of a Union citizen exercising his or her right to free movement to whom Directive 2004/38/EC of the European Parliament and of the Council(1) applies; (b) third-country nationals and their family members, whatever their nationality, who, under agreements between the Union and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens; 6. ‘third-country national’ means any person who is not a Union citizen within the meaning of Article 20(1) TFEU and who is not covered by point 5 of this Article; 7. ‘persons for whom an alert has been issued for the purposes of refusing entry’ means any third-country national for whom an alert has been issued in the Schengen Information System (SIS) in accordance with and for the purposes laid down in Articles 24 and 26 of Regulation (EC) No 1987/2006 of the European Parliament and of the Council(2); 8. ‘border crossing point’ means any crossing-point authorised by the competent authorities for the crossing of external borders; 9. ‘shared border crossing point’ means any border crossing point situated either on the territory of a Member State or on the territory of a third country, at which Member State border guards and third-country border guards carry out exit and entry checks one after another in accordance with their national law and pursuant to a bilateral agreement; 10. ‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance; 11. ‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it; 12. ‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, in order to prevent persons from circumventing border checks; (1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/ EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30.4.2004, p. 77). (2) Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 381, 28.12.2006, p. 4).

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Chp. 5

Art. 2

13. ‘second line check’ means a further check which may be carried out in a special location away from the location at which all persons are checked (first line); 14. ‘border guard’ means any public official assigned, in accordance with national law, to a border crossing point or along the border or the immediate vicinity of that border who carries out, in accordance with this Regulation and national law, border control tasks; 15. ‘carrier’ means any natural or legal person whose profession it is to provide transport of persons; 16. ‘residence permit’ means: (a) all residence permits issued by the Member States according to the uniform format laid down by Council Regulation (EC) No 1030/2002(3) and residence cards issued in accordance with Directive 2004/38/EC; (b) all other documents issued by a Member State to third-country nationals authorising a stay on its territory that have been the subject of a notification and subsequent publication in accordance with Article 39, with the exception of: (i) temporary permits issued pending examination of a first application for a residence permit as referred to in point (a) or an application for asylum; and (ii) visas issued by the Member States in the uniform format laid down by Council Regulation (EC) No 1683/95(4); 17. ‘cruise ship’ means a ship which follows a given itinerary in accordance with a predetermined programme, which includes a programme of tourist activities in the various ports, and which normally neither takes passengers on nor allows passengers to disembark during the voyage; 18. ‘pleasure boating’ means the use of pleasure boats for sporting or tourism purposes; 19. ‘coastal fisheries’ means fishing carried out with the aid of vessels which return every day or within 36 hours to a port situated in the territory of a Member State without calling at a port situated in a third country; 20. ‘offshore worker’ means a person working on an offshore installation located in the territorial waters or in an area of exclusive maritime economic exploitation of the Member States, as defined under the international law of the sea, and who returns regularly by sea or air to the territory of the Member States; 21. ‘threat to public health’ means any disease with epidemic potential as defined by the International Health Regulations of the World Health Organization and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States. Content I. II. III. IV.

General remarks .............................................................................................. Internal borders (Article 2(1)) ..................................................................... External borders (Article 2(2))..................................................................... Persons enjoying the right of free movement and third-country nationals (Article 2(5) and (6)).................................................................... V. Threat to public health (Article 2(21)) ......................................................

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(3) Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals (OJ L 157, 15.6.2002, p. 1). (4) Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas (OJ L 164, 14.7.1995, p. 1).

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Chp. 5 Art. 2

Schengen Borders Code Regulation (EU) 2016/399

I. General remarks 1

The definitions in Article 2 are of great significance for the correct interpretation of the other provisions of the Regulation. Whereas most of the definitions in Article 2 are self-explanatory, some are worth being discussed and will be analysed in greater detail below.

II. Internal borders (Article 2(1)) Article 2(1) defines ‘internal borders’ as the common borders of ‘the Member States’, thereby in principle also including the borders between Schengen States and Non-Schengen Member States.68 However, Non-Schengen Member States are not bound by Regulation 2016/399 and the obligation set up by Article 20 to abolish border checks at the internal border. According to Protocol (No 20) on the application of certain aspects of Article 26 TFEU to the United Kingdom and to Ireland (1997)69, Ireland is still entitled to maintain controls at its borders (the United Kingdom having left the European Union). Article 2(1) must therefore be interpreted as meaning only ‘the Schengen Member States’, not the EU Member States in general. 3 As the Schengen acquis has also been extended to some Non-member States (Norway, Iceland, Switzerland and Liechtenstein), border controls are also abolished at the borders to these countries. Therefore, the notion of ‘internal borders’ should be understood as to also include borders between the participating EU Member States and the Non-EU Member States Norway, Iceland, Switzerland and Liechtenstein that are applying the Schengen acquis on the basis of association agreements. 2

III. External borders (Article 2(2)) 4

External borders are defined negatively, i.a. as all borders that are not internal borders. Again, only external borders of Schengen members, not of EU members, are external borders in the sense of that provision.

IV. Persons enjoying the right of free movement and third-country nationals (Article 2(5) and (6)) 5

Article 2(5) and (6) define the notions of ‘persons enjoying the right of free movement under Union law’ and ‘third-country national’. It is remarkable that the latter notion is narrower than the notion of ‘alien’ in Article 1 CISA. Article 1 CISA defined aliens as ‘any person other than a national of a Member State’, whereas ‘thirdcountry national’ in sense of Article 2 (6) of Regulation 2016/399 means any person who is not a Union citizen within the meaning of Article 20(1) TFEU and who is not covered by Article 2(5) of Regulation 2016/399, therefore excluding from the scope of the regulation all EU citizens and their family members (whatever their nationality) enjoying the right of free movement as well as third country nationals and their family 68 69

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See above Article 1 MN 7 et seqq. OJ 2006 C 321 E/196.

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Art. 2

Chp. 5

members enjoying an equivalent right of free movement based on bilateral agreements, as for example the EEC Agreement or the Agreement on the free movement of persons concluded with Switzerland.70 The question if a person is to be considered a third-country national under the 6 regulation is important, as several articles of Regulation 2016/399 provide for less favourable rules as far as third-country nationals are concerned (for example in Article 6 regarding entry conditions). When exactly it can be presumed that a bilateral agreement grants rights that are 7 equivalent to the free movement rights of EU citizens and their family members is difficult to determine. A decisive factor seems to be whether the agreement grants rights to the same categories of persons than EU free movement law (i.e. the fundamental freedoms and EU citizenship), including to persons not exercising any economic activity. A full equivalence is, however, not necessary. The larger definition of ‘aliens’ according to Article 1 CISA remains relevant for 8 the provisions of the CISA that are still applicable.71 According to Article 134 CISA, the CISA is, however, only applicable as far as it is in conformity with EU law, so that the exercise of the right to free movement pursuant to EU law may in no way be impeded by the provisions of the CISA that have not been repealed.

V. Threat to public health (Article 2(21)) A threat to public health is defined as ‘any disease with epidemic potential as defined 9 by the International Health Regulations of the World Health Organization and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States’. The notion of ‘public health’ was and is of particular importance in the light of the COVID-19 pandemic. It is important to note that public health is not mentioned as a reason to reintroduce border controls according to Articles 25 et seqq. of Regulation 2016/399.72 This does not mean that reasons of public health cannot justify the reintroduction of border controls at the internal borders; however, the threat must be ‘severe’, meaning that it must have a dramatic social and/or economic impact, as it was the case during the COVID-19 pandemic.73 With regard to third-country nationals entering and exiting the Schengen zone, 9a Articles 6(1)(e)) and 8 (3)(a)(vi) and (g)(ii) foresee a systematic assessment of whether they are a threat to public health. Since 2017 (Regulation 2017/458), the same applies with regard to persons enjoying the right to free movement (Article 8(2)(b) and (2a)).74 As mentioned above, ‘simple’ threats to public health can justify individual travel restrictions, but cannot justify the reintroduction of border controls under Articles 25 et seqq.

70 Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (OJ 2002 L 114/6). 71 For example Article 22 CISA concerning the obligation of aliens to register with the authorities. According to Article 39(1) of Regulation No 562/2006, only Articles 2–8 CISA were repealed. As Regulation 2016/399 repealed Regulation 562/2006, the other articles of the CISA are still in force. 72 See Articles 25–35 MN 11. 73 Idem. For a detailed discussion see Thym/Bornemann, Schengen and Free Movement Law, p. 1148. 74 See Article 8 MN 4 et seqq.

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Chp. 5 Art. 3 10

Schengen Borders Code Regulation (EU) 2016/399

The notion of ‘public policy or internal security’ used by Articles 25 et seqq. is not defined in Article 2.75 It is an autonomous term of EU law that has to be interpreted in the light of the case-law of the ECJ, interpreting other provisions referring to these notions.76 It can also encompass reasons of public health, but only where they have a severe impact.77

Article 3 Scope This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to: (a) the rights of persons enjoying the right of free movement under Union law; (b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement. Content I. General remarks .............................................................................................. II. The rights of persons enjoying the right of free movement (Article 3(a))..................................................................................................... III. The rights of refugees and persons requesting international protection (Article 3(b)) ................................................................................

mn. 1 2 5

I. General remarks 1

Article 3 explicitly leaves the rights of persons enjoying the right of free movement and of refugees and persons seeking international protection unaffected.

II. The rights of persons enjoying the right of free movement (Article 3(a)) Article 3(a) states in no uncertain terms that the application of this regulation must not impede the exercise of the right of free movement, which is of particular importance to third-country nationals wanting to cross the external borders of the Union: If they are entitled to free movement as a family member of a Union citizen, they must be granted entry, even if they do not meet all the requirements of Article 6. 3 The European Court of Justice ruled in MRAX78 in favour of a right of entry for a third-country national married to a Union citizen solely on the ground of the existing family relationship, which could be proved. According to the Court, the right of entry is to be granted even if the person concerned is not in possession of a visa, a passport or a valid travel document, but can prove their identity and the existence of their marriage in 2

75 See Thym/Bornemann, Schengen and Free Movement Law, p. 1148; Progin-Theuerkauf, ‘Grenzkontrollen und Einreiseverbote freizügigkeitsberechtiger Personen in Zeiten von COVID-19’, Jusletter Coronavirus-Blog of 30 April 2020, available at: https://jusletter.weblaw.ch/blog/progin.html; Montaldo, The COVID-19 Emergency, p. 523–531, 527 et seq. 76 For example Article 45(3) TFEU. 77 See Thym/Bornemann, Schengen and Free Movement Law, p. 1143, 1148. 78 ECJ, MRAX, C-459/99, EU:C:2002:461.

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Art. 4

Chp. 5

another manner, provided that they do not constitute a threat to public order and security. Further, such a third-country national is not to be expelled from the territory solely on the grounds of his illegal entry. In case C-503/0379, the Court declared that a third-county national married to a Union citizen was not to be denied entry solely on the ground that there was an alert for refusal of his entry in the SIS (Article 96 CISA). An ‘automatic’ refusal of entry according to Articles 5 and 15 CISA in cases of an existing alert would not be compatible with the requirements of EU law, which, according to Article 134 CISA, takes precedence over the CISA. EU law requires the authorities to examine in each case if the individual behaviour of the person concerned constitutes a risk to public order and security. Considering the clear wording of Article 3(a), it is to be assumed that the conclusions 4 drawn from this jurisprudence are also applicable and pertinent on the basis of Regulation 2016/399, considering that the requirements for an alert for the refusal of entry of a third-country national are much lower than for a refusal of entry of thirdcountry family member of a Union citizen exercising his or her right to free movement.80 In this context, it should further be recalled that, pursuant to the findings of the ECJ in the Metock case81, the right of stay of third-country nationals that are family members of a Union citizen is not (or no longer)82 dependent on a previous legal stay in the EU territory.83

III. The rights of refugees and persons requesting international protection (Article 3(b)) According to Article 3(b), the rights of refugees and persons requesting interna- 5 tional protection, in particular as regards non-refoulement, remain unaffected by this regulation. Under certain conditions, such persons must be granted a right of entry in order for their applications to be examined.84

Article 4 Fundamental Rights When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter’), relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’), obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis. 79

ECJ, Commission v. Spain, C-503/03, EU:C:2006:74. See also Eicke, in Groenendijk/Guild/Minderhoud (eds), In Search of Europe’s Borders, p. 150, 160 et seqq. 81 ECJ, Metock, C-127/08, EU:C:2008:449. 82 See the previous different findings in the Court’s judgment in the Akrich case, ECJ, Akrich, C-109/01, EU:C:2003:491. 83 See the detailed analysis of the Metock judgment and its embedding in the previous jurisprudence of the Court in Epiney, ‘Von Akrich über Jia bis Metock: zur Anwendbarkeit der gemeinschaftlichen Regeln über den Familiennachzug – Gleichzeitig eine Anmerkung zu EuGH, Rs. C-127/08 (Metock), Urt. v. 25.7.2008’, Zeitschrift Europarecht (2008), p. 840–858. 84 See the detailed comments on Article 1 MN 15 et seqq. 80

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Chp. 5 Art. 5

Schengen Borders Code Regulation (EU) 2016/399

Article 4 contains an express safeguard clause for the protection of fundamental rights and was introduced into the Schengen Borders Code in 2013. It calls upon the Members States to fully respect their obligations derived from the EU Charter of Fundamental Rights, the Geneva Refugee Convention and other relevant international law – in particular the international human rights treaties and the ECHR –, and stresses the importance of the principle of non-refoulement85. 2 With the entry into force of the Lisbon Treaty on 1 December 2009, the EU Charter of Fundamental Rights became legally binding. Of particular relevance in the framework of border control are Article 1 (Human Dignity)86, Article 4 (Prohibition of Torture), Article 18 (Right to Asylum), Article 19 (Prohibition of Refoulement) as well as the guarantee to an effective remedy in Article 47. 3 The ECJ considers provisions of the Schengen Borders Code that might significantly interfere with the fundamental rights of the persons concerned as ‘essential elements’ and requires the involvement of the Union legislature in their amendment87. 1

TITLE II EXTERNAL BORDERS CHAPTER I Crossing of external borders and conditions for entry Article 5 Crossing of external borders 1. External borders may be crossed only at border crossing points and during the fixed opening hours. The opening hours shall be clearly indicated at border crossing points which are not open 24 hours a day. Member States shall notify the list of their border crossing points to the Commission in accordance with Article 39. 2. By way of derogation from paragraph 1, exceptions to the obligation to cross external borders only at border crossing points and during fixed opening hours may be allowed: (a) for individuals or groups of persons, where there is a requirement of a special nature for the occasional crossing of external borders outside border crossing points or outside fixed opening hours, provided that they are in possession of the permits required by national law and that there is no conflict with the interests of public policy and the internal security of the Member States. Member States may make specific arrangements in bilateral agreements. General exceptions provided for by national law and bilateral agreements shall be notified to the Commission pursuant to Article 39; (b) for individuals or groups of persons in the event of an unforeseen emergency situation; (c) in accordance with the specific rules set out in Articles 19 and 20 in conjunction with Annexes VI and VII. 85 On the protection of the rights of persons seeking international protection see above Article 1 MN 12–18. 86 See ECJ, Zakira, C-23/12, EU:C:2013:24. 87 ECJ, European Parliament v. Council, C-355/10, EU:C:2012:516, paras 76–77.

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Art. 5

Chp. 5

3. Without prejudice to the exceptions provided for in paragraph 2 or to their international protection obligations, Member States shall introduce penalties, in accordance with their national law, for the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours. Those penalties shall be effective, proportionate and dissuasive. Content I. General principles on the crossing of external borders (Article 5(1)) II. Possible derogations (Article 5(2)).............................................................. III. Penalties for the illegal crossing of external borders (Article 5(3)).....

mn. 1 4 6

I. General principles on the crossing of external borders (Article 5(1)) Title II (Articles 5–21) regulates the controls at external borders. 1 Article 5 establishes that external borders may only be crossed at the designated 2 border crossing points and during the fixed opening hours (Article 5(1)). The opening hours must clearly be indicated at border crossings that are not open 24 hours a day. According to Article 39(1)(b) Regulation 2016/399, Member States have to notify 3 their border crossing points to the Commission, the information is published in the Official Journal.88 The competent national authorities have to carry out border surveillance pursuant to Article 13 in order to prevent unauthorised border crossings.

II. Possible derogations (Article 5(2)) Article 5(2) provides for derogations from Article 5(1) in the event of an unfore- 4 seen emergency situation (lit. b) and for certain categories of borders and persons (e. g. Heads of State, pilots, seamen, offshore workers) that are subject to the specific rules set out in Annexes VI and VII (lit. c). Derogations to para 1 are also permitted where there is a ‘requirement of a special nature’ for the occasional crossing of external borders outside border crossing points or outside fixed opening hours (lit. a). Although this exception was amended by Regulation 610/2013 in an attempt to clarify it, its exact meaning still remains obscure. The provision provides no further guidance on what kind of requirements are to be considered as being ‘of special nature’. No extraordinary situation of any kind is required, leaving a large margin of discretion to the Member States that is only limited in that the persons must hold the required permits and that the public policy and internal security of the other Member States may not be threatened (which are once again indeterminate legal concepts that need to be further clarified). One could think of touristic activities as a possible example for the application of Article 5(2)(a). In situations that fall under Article 5(2)(a) and (b), Member States are also allowed to provide for derogations from the rules set out in Article 8 (border checks on persons) (Article 8(8) Regulation 2016/399).

88 The notifications can also be accessed on the website of the Directorate-General for Migration and Home Affairs https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/borders-and-visas/schengen/docs/handbook-annex_04.pdf [last accessed: 25 February 2021].

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Chp. 5 Art. 5 5

Schengen Borders Code Regulation (EU) 2016/399

It should further be noted in this context that this provision (and as a matter of fact, all provisions of Regulation 2016/399) is without prejudice to the rights of holders of local border traffic cards under Regulation 1931/2006 on local border traffic at the external borders89 and/or under bilateral agreements.90 According to Article 15(1) Regulation 1931/2006 the bilateral agreements concluded for the implementation of the local border traffic regime may provide for an easing of the border crossing in derogation of Article 5(1) Regulation 2016/399.

III. Penalties for the illegal crossing of external borders (Article 5(3)) Article 5(3) is based on the original Article 3(2) CISA and concerns the introduction of penalties for violations of Article 5(1). All Member States have introduced such penalties in the form of fines or imprisonment, except for Portugal, which only foresees an expulsion.91 For illegally present third-country nationals still subject to a return procedure, prison sentences are not compatible with the effet utile of the Return Directive 2008/115/EC92, the aim of which is to quickly return those persons. The Return Directive 2008/115/EC further obliges Member States to either issue a return decision or regularize the person found to be illegally present. An illegal stay shall not be tolerated.93 As Article 5(3) does not require the Member States to introduce prison sentences, they may comply with that obligation while observing at the same time the obligations stemming from the Return Directive 2008/115/EC. 7 It is noteworthy that Article 5(3) only concerns the ‘unauthorised crossing of an external border at places other than border crossings or at times other than the fixed opening hours’. The Schengen Boders Code does not foresee any penalties for the unauthorised crossing of internal borders, nor does it prescribe a penalty for the unauthorised crossing of an external border at a border crossing point during the fixed opening hours.94 8 Article 5(3) applies without prejudice to Article 31 of the Geneva Convention on the status of refugees of 21 June 1951, which prohibits the imposing of criminal sanctions solely on account of the illegal entry or presence of a refugee in the sense of Article 1 of the Convention, as long as the person comes directly from a country where he or she was at a risk of being persecuted and presents himself or herself without delay to the authorities and gives good reasons for his or her illegal entry or presence.95 Article 31 of the Geneva Convention is rarely applicable, as applicants for international protection hardly ever arrive directly from their home countries. 6

89 Regulation (EC) No 1931/2006 of 20 December 2006 laying down rules on local border traffic at the external borders of the Member States and amending the provisions of the Schengen Convention; OJ 2006 L 405/1; Corrigendum (OJ 2007 L 29/3). 90 Article 40 Regulation 2016/399, and at 5.5 of Part Two, Section 1 of the Schengen Handbook. 91 See https://fra.europa.eu/sites/default/files/fra-2014-criminalisation-of-migrants-annex_en.pdf [last accessed: 25 February 2021]. 92 See Article 1 MN 6. 93 Progin-Theuerkauf, The EU Return Directive, p. 37–38, with further references also to the case-law of the ECJ. 94 ECJ, Affum, C-47/15, EU:C:2016:408, paras 89 et seq. 95 For a detailed commentary on Article 31 Geneva Refugee Convention see for example Hathaway, The Rights of Refugees under International Law (CUP, 2005), p. 370–439. See also the comments on refugees, asylum seekers and persons in need of international protection above Article 1 MN 12–18.

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Art. 6

Chp. 5

Article 6 Entry conditions for third-country nationals 1. For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following: (a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria: (i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived; (ii) it shall have been issued within the previous 10 years; (b) they are in possession of a valid visa, if required pursuant to Council Regulation (EC) No 539/2001(5), except where they hold a valid residence permit or a valid long-stay visa; (c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully; (d) they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry; (e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds. 2. For the purposes of implementing paragraph 1, the date of entry shall be considered as the first day of stay on the territory of the Member States and the date of exit shall be considered as the last day of stay on the territory of the Member States. Periods of stay authorised under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States. 3. A non-exhaustive list of supporting documents which the border guard may request from the third-country national in order to verify the fulfilment of the conditions set out in paragraph 1 (c) is included in Annex I. 4. Means of subsistence shall be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of days stayed. Reference amounts set by the Member States shall be notified to the Commission in accordance with Article 39. The assessment of sufficient means of subsistence may be based on the cash, travellers’ cheques and credit cards in the third-country national’s possession. Declarations of sponsorship, where such declarations are provided for by national law and letters of guarantee from hosts, as defined by national law, where the third(5) Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ L 81, 21.3.2001, p. 1).

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Chp. 5 Art. 6

Schengen Borders Code Regulation (EU) 2016/399

country national is staying with a host, may also constitute evidence of sufficient means of subsistence. 5. By way of derogation from paragraph 1: (a) third-country nationals who do not fulfil all the conditions laid down in paragraph 1 but who hold a residence permit or a long-stay visa shall be authorised to enter the territory of the other Member States for transit purposes so that they may reach the territory of the Member State which issued the residence permit or the long-stay visa, unless their names are on the national list of alerts of the Member State whose external borders they are seeking to cross and the alert is accompanied by instructions to refuse entry or transit; (b) third-country nationals who fulfil the conditions laid down in paragraph 1, except for that laid down in point (b), and who present themselves at the border may be authorised to enter the territory of the Member States, if a visa is issued at the border in accordance with Articles 35 and 36 of Regulation (EC) No 810/ 2009 of the European Parliament and of the Council(6). Member States shall compile statistics on visas issued at the border in accordance with Article 46 of Regulation (EC) No 810/2009 and Annex XII thereto. If it is not possible to affix a visa in the document, it shall, exceptionally, be affixed on a separate sheet inserted in the document. In such a case, the uniform format for forms for affixing the visa, laid down by Council Regulation (EC) No 333/2002(7), shall be used; (c) third-country nationals who do not fulfil one or more of the conditions laid down in paragraph 1 may be authorised by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligations. Where the third-country national concerned is the subject of an alert as referred to in paragraph 1(d), the Member State authorising him or her to enter its territory shall inform the other Member States accordingly. Content I. General remarks .............................................................................................. II. Individual right of entry................................................................................ III. Conditions of entry into the Schengen area (Article 6(1)) ................... 1. Possession of valid travel documents (Article 6(1)(a)) ...................... 2. Possession of a valid visa (Article 6(1)(b)) ........................................... 3. Justified purpose of stay and sufficient means of subsistence (Article 6(1)(c), (3) and (4)) .................................................................... 4. No alert in the SIS for the purposes of refusing entry (Article 6(1)(d))........................................................................................... 5. No threat to public policy, internal security, public health or international relations (Article 6(1)(e)) ................................................. IV. Derogations from the conditions of entry (Article 6(5))....................... 1. Right of transit when in possession of a residence permit or a long-stay visa (Article 6(5)(a))................................................................. 2. Issue of visa at the border (Article 6(5)(b)) ......................................... 3. Entry on humanitarian grounds, grounds of national interest or because of international obligations (Article 6 (5)(c)) .......................

mn. 1 2 6 7 8 11 17 18 22 23 25 26

(6) (Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ L 243, 15.9.2009, p. 1). (7) Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form (OJ L 53, 23.2.2002, p. 4).

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I. General remarks Article 6 lists the conditions of entry for third-country nationals and certain deroga- 1 tions thereof. This article is one of the key provisions of Regulation 2016/399 and sets out the conditions of entry into the Schengen area for stays not exceeding three months per six-month period.96 It will be modified when the European Travel Information and Authorisation System and the Entry-Exit-System become operational.97

II. Individual right of entry Whereas Article 5 CISA stipulated that aliens ‘may be granted entry’ if the conditions mentioned were fulfilled, Article 5 of Regulation 562/2006 was given a different wording. Article 6 of Regulation 2016/399 now states that ‘the entry conditions for third-country nationals shall be the following’. The change of wording was made at the behest of the European Parliament, as the question was raised whether Article 5 Regulation 562/2006 stipulated an individual right of entry into the Schengen area for third-country nationals, provided that all the conditions listed are fulfilled.98 The wording of Article 6 alone seems to leave no room for the construction of a right to enter. However, Article 6 needs to be read in conjunction with Article 14 of the Borders Code, according to which entry shall be refused if a third-country national does not fulfil the conditions of Article 6. In deciding if the conditions are actually fulfilled, the national authorities have a certain margin of discretion. Nevertheless, is it clear that their discretion is not unlimited: Article 14(2) Regulation 2016/399 states that a refusal of entry needs to be substantiated and authorities are bound to use the standard form in Annex V, Part B, containing an exhaustive list of reasons for refusal that is corresponding to the entry conditions set out in Article 6(1). Persons refused entry shall have the right to appeal (Article 14(3) Regulation 2016/399). The explicit possibility to appeal the refusal decision speaks clearly in favour of the conclusion that Article 6 does grant individual rights and if the conditions of this provision are fulfilled, third-country nationals have an individual right of entry. In addition, the European Court of Justice has ruled that EU law provisions are granting individual rights if the provisions in question also aim at the protection of the interest of the individual, irrespective of whether the actual wording of the provision states (only) a corresponding obligation of the Member States. It is obvious that the entry into the Schengen area is of (sometimes great) importance for the individual, and therefore Article 6(1) should be interpreted as granting an individual right of entry if the conditions mentioned in this provision are fulfilled. It should, however, not be forgotten that no ‘right’ to be issued a visa can be deduced from the Visa Code, so that the decision to let a person enter the Schengen area still remains – at least with respect to persons who need a visa – at the discretion of the Member States99. Furthermore, the indeterminate legal notions used in Article 6 give 96 Further guidance for the application of Article 6 can be found in point 3 of Part Two, Section 1 of the Schengen Handbook. 97 See Article 1 MN 23. 98 Peers, Key Legislative Developments, p. 332. 99 Although the Visa Code Regulation also limits the possible grounds for refusal of a visa, the ECJ stressed that the competent authorities of a Member State still have ‘a wide discretion in the examination

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the national authorities a certain margin of appreciation, even if – as argued – a right to enter has to be admitted.

III. Conditions of entry into the Schengen area (Article 6(1)) 6

Article 6(1) lists five conditions of entry into the Schengen area for stays of up to three months in a six month period100.

1. Possession of valid travel documents (Article 6(1)(a)) 7

What documents are accepted as valid travel documents by the individual Member States can be found in Decisions (98)56 and (99)14 of the Schengen Executive Committee.101 Generally speaking, most of the Member States accept ordinary passports, diplomatic passports, service passports and travel documents for refugees as valid travel documents in the sense of Article 6(1)(a). According to Article 8(3)(a) Regulation 2016/399, border guards shall examine whether this condition is fulfilled by verifying that the travel document is not expired and does not bear signs of falsification or counterfeiting. The validity of the documents must in general extend at least three months after the planned date of departure from the Schengen area and the documents must not be older than ten years (Article 6(1)(a)(i) and (ii)).

2. Possession of a valid visa (Article 6(1)(b)) The identity of the person and the authenticity of the visa must in general be verified by consulting the VIS (Article 8(3)(b) Regulation 2016/399, unless one of the grounds of derogation from this rule apply and (Article 8(3)(c) Regulation 2016/399). 9 If the third-country national does not need a visa pursuant to Regulation 2018/1806, border guards have to examine the entry and exit stamps in his or her travel document in order to verify that he or she has not already exceeded the maximum duration of stay of three months per six-month period (Article 8(3)(a)(iii) former Schengen Borders Code Regulation 562/2006). 10 Article 6(1)(b) provides for an exception from the visa requirement according to the EU visa list if the third-country national is in possession of a valid residence permit of a Schengen state or valid long-stay visa. A valid residence permit102 can either be a permit issued on the basis of EU law (as for example Free Movement Directive 2004/38/EC103, the Family Reunification Directive 2003/86/EC,104 or the Long-Term Residents’ Directive 2003/109/EC)105 or any other document issued by a Member State pursuant to national law authorizing a stay in its 8

of that application so far as concerns the conditions for the application of those provisions and the assessment of the relevant facts, with a view to ascertaining whether one of those grounds for refusal can be applied to the applicant’ [emphasis added], ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 63; see Meloni, Visa Code Regulation (EC) No 810/2009, Article 20– 21 MN 1. 100 How to calculate the maximum possible stay in a six-month period was clarified in ECJ, Bot, C-241/05, EU:C:2006:634 and introduced in the Schengen Borders Code by Regulation 610/2013 (OJ 2013 L 182/1). 101 The lists have since been updated, see Regulation 2018/1806 (OJ 2018 L 303/39). 102 See the definition in Article 2(16) that refers to Regulation 1030/2002 laying down a uniform format for residence permits for third-country nationals (OJ 2002 L 157/1). 103 Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77). 104 Directive 2003/86/EC on the right to family reunification (OJ 2003 L251/12). 105 Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16/44).

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territory, with the exception of temporary permits that were issued pending the examination of an application for asylum or residence106 or visas issued by the Member States107. A list of the national residence permits has to be notified to the Commission pursuant to Article 39(1)(a)108.

3. Justified purpose of stay and sufficient means of subsistence (Article 6(1)(c), (3) and (4)) Article 6(1)(c) is to be read in conjunction with Article 6(3) and (4), Annex I and Article 7(3)(v) Regulation 2016/399. Even though, the 2006 Schengen Borders code defined the criteria for the assessment of sufficient means much more precisely than in Article 5 CISA and limited the discretion of the authorities in assessing the means, the specifications in Article 6(4) Regulation 2016/399 still do not guarantee a uniform application of this criterion, since the required amounts may vary considerably between the Member States (see below MN 13). Whether the conditions of Article 6(1)(c) are fulfilled or not is to be verified by requesting supporting documents, a non-exhaustive list of which is found in Annex I. What constitute sufficient means of subsistence is to be assessed in reference to the purpose and the duration of stay (Article 6(4) subpara 1). The Member States have to notify their reference amounts to the Commission (Article 5(3) subpara 2, Article 34(1))109: Some Member States have set the reference amount in relation to their national subsistence minimum, others have set out a specific amount or formula while yet others have only notified their guidelines for assessment. A majority of states considers around 50–70 € per day to be sufficient, some states request, however, proof of higher financial resources. Certain states have also notified special rules for students or visitors staying with friends or family. The third-country nationals need to prove by means of cash, travellers’ cheques and credit cards in their possession that they have the required amounts at their disposal. If provided for in national law, sponsorship declarations and letters of guarantee are also accepted (Article 6(4) subpara 3 Regulation 2016/399). It is surprising that, pursuant to Article 6(1)(c) Regulation 2016/399, third-country nationals still have to justify the purpose and conditions of their intended stay: Depending on the circumstances, such an obligation may violate the private sphere of the individual and may also influence the decisions of the competent authorities (when making use of their discretion). It is further unclear when a purpose of stay can be considered as having been ‘justified’: It seems difficult to provide actual proof for several purposes of stay. The standard of ‘proof’ should be low, in order to not render the stay practically impossible. Finally, the interests of the Member States appear to be sufficiently protected by ensuring that the third-country national is not a threat to public policy, internal security, public health or the international relations of any of the Member States

106

See Article 2(16)(b)(i) and also ECJ, ANAFE, C-606/10, EU:C:2012:348, paras 39–41. See Article 2(16)(b)(ii), referring to the uniform format laid down by Regulation 1683/9 (OJ 1995 L 164/1). 108 The notifications can be accessed on the website of the Directorate-General for Migration and Home Affairs at https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/ borders-and-visas/schengen/docs/handbook-annex_22.pdf [last accessed: 25 February 2021]. 109 A list of reference amounts can be accessed on the website of the Directorate-General for Migration and Home Affairs at https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/borders-and-visas/schengen/docs/handbook-annex_25.pdf [last accessed: 25 February 2021]. 107

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(Article 6(1)(e)). Against this background, the justification of the purpose of stay in Article 6(1)(c) should not be overly weighted.

4. No alert in the SIS for the purposes of refusing entry (Article 6(1)(d)) 17

A third-country national wanting to cross an external Schengen border must not be registered in the SIS for the purposes of refusing entry.110 It should be recalled111 that a third-country national who is married to a Union citizen may not be refused entry solely because of an SIS alert.112 In such situations, the rules on the right of free movement laid down in EU law apply and take precedence so that the authorities must examine in each individual case if the person concerned constitutes a risk for public order and security.113

5. No threat to public policy, internal security, public health or international relations (Article 6(1)(e)) Not constituting a threat to public policy, internal security, public health or international relations of any of the Schengen states is the last condition mentioned in Article 6(1). 19 The original Article 5 CISA did not contain the condition that the person shall not constitute a threat to public health.114 The concept was added to the Borders Code in 2006. As mentioned before, the notion is defined in Article 2(21) Regulation 2016/ 399.115 20 As far as the notion of ‘public policy or public security’ is concerned, the ECJ has emphasized in 2019 that the concept within the meaning of Article 6 is appreciably different from the concept referred to in Free Movement Directive 2004/38/EC116 and has to be defined narrower. According to recital 6 of the code, border control should help to prevent ‘any threat’ to public policy. It is therefore already sufficient if a third country national is suspected of a criminal offence, without it having been established that his or her conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned.117 21 Entry is to be refused if the third-country national is considered a threat to any of the listed public interests of any Member State. The third-country national therefore has (theoretically) to meet the respective requirements of all Member States, which can constitute a significant obstacle. Even though the notions of Article 6(1)(e) are EU law 18

110 See Articles 24 et seq. of Regulation (EC) No 1987/2006 (OJ 2006 L 381/4) on the establishment, operation and use of the second generation Schengen Information System (SIS II). A consultation procedure is foreseen by Article 25(2) CISA if an alert for the purposes of refusing entry has been issued for an alien who holds a valid residence permit issued by one of the Contracting Parties, the Contracting Party issuing the alert shall consult the Party which issued the residence permit in order to determine whether there are sufficient reasons for withdrawing the residence permit. Cf. ECJ, E, C-240/17, EU: C:2018:8. 111 See Article 3 MN 3. 112 ECJ, Commission v. Spain, C-503/03, EU:C:2006:74. 113 See also Article 25 of Regulation (EC) No 1987/2006 (OJ 2006 L 381/4) on the establishment, operation and use of the second generation Schengen Information System (SIS II). 114 See Peers, Key Legislative Developments, p. 332. 115 See Article 2 MN 9 and 10. 116 According to Article 27 of Directive 2004/38, a Union citizen and its family members are to be regarded as posing a threat to public policy only if their individual conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned, ECJ, Orfanopoulos and Oliveri, C‐482/01 and C‐493/01, EU:C:2004:262, paras 66 and 67. 117 ECJ, E.P., C-380/18, EU:C:2019:1071, paras 40 et seqq.

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notions, Member States have a certain margin of appreciation and, as a result, the application of Article 6(1)(e) may differ from one Member State to another.

IV. Derogations from the conditions of entry (Article 6(5)) Article 6(5) provides for three possible derogations from Article 6(1).

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1. Right of transit when in possession of a residence permit or a long-stay visa (Article 6(5)(a)) Third-country nationals in possession of a residence permit or a long-stay visa have 23 the right of transit through the other Schengen states in order to reach the state that issued the permit, even they do not fulfil all the conditions of Article 6(1). Article 6(5)(a) is also to be interpreted as granting individual rights to the persons 24 concerned. According to this provision, entry into the Schengen area can only be refused if there is an alert with the instruction to refuse entry or transit in the national database of the Schengen states whose external borders the person wants to cross. As a result, third-country nationals who hold a residence permit generally need not prove that they have sufficient means of subsistence, neither need they provide supporting documents identifying their purpose of stay.

2. Issue of visa at the border (Article 6(5)(b)) A visa can be issued at the border pursuant to the Visa Code Regulation (EC) 25 No 810/2009 to a third-country national who fulfils all the conditions in Article 6(1) with the exception of the necessary visa.

3. Entry on humanitarian grounds, grounds of national interest or because of international obligations (Article 6 (5)(c)) Third-country nationals who do not fulfil the conditions of Article 6(1) may be 26 granted entry on humanitarian grounds, on grounds of national interest or because of international obligations. The latter reason is of particular importance for persons seeking international protection and in the context of the non-refoulement principle. If a SIS alert exists for that person, the Member state authorising entry has to inform the other Member States. Even though Article 6(5)(c) is worded in a non-binding way (‘… may be granted …’), 27 implying a margin of discretion of the Member State concerned, it is important to emphasize that the obligations deriving from the prohibition of refoulement are of mandatory nature and in certain cases prohibit the rejection of a person at the border.118 In those cases, the simple possibility becomes an obligation.

118 On the question of a right of entry for asylum seekers see ECJ, ANAFE, C-606/10, EU:C:2012:348, paras 39–41; and the detailed comments on refugees, asylum seekers and persons in need of international protection (see above Article 1 MN 12–18).

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Chp. 5 Art. 7

Schengen Borders Code Regulation (EU) 2016/399

CHAPTER II Control of external borders and refusal of entry Article 7 Conduct of border checks 1. Border guards shall, in the performance of their duties, fully respect human dignity, in particular in cases involving vulnerable persons. Any measures taken in the performance of their duties shall be proportionate to the objectives pursued by such measures. 2. While carrying out border checks, border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Content I. Basic principles for the carrying out of border checks (Article 7) ...... II. Human dignity (Article 7(1))....................................................................... III. Prohibition of discrimination (Article 7(2)) .............................................

mn. 1 2 3

I. Basic principles for the carrying out of border checks (Article 7) 1

Article 7 codifies basic principles that shall be respected by the border guards when conducting border checks explained in detail in Article 8. This article was inserted at the behest of the European Parliament.119

II. Human dignity (Article 7(1)) 2

According to Article 7(1) (and in compliance with Article 1 CFR) border guards are to fully respect human dignity, and any measure taken by them has to be proportionate to the objectives of the measure in question.120 In cases involving vulnerable persons like e. g. children, unaccompanied minors and persons with serious health concerns, the border guards are urged to pay particular attention to these principles. In compliance with Article 47 CFR, the Member States have to provide appropriate legal remedies against alleged infringements of this provision121.

III. Prohibition of discrimination (Article 7(2)) 3

Article 7(2) prohibits any discriminatory treatment by border guards on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The explicit prohibition of discrimination in Article 7(2) is a significant improvement; the CISA and the Common Manual did not contain a similar provision. It is worth pointing out that Article 7(2) does not prohibit differential treatment on grounds of nationality. 119

See Peers, Key Legislative Developments, p. 335 with further references. See also recital 7 of Regulation 2016/399. 121 See ECJ, Zakaria, C-23/12, EU:C:2013:24, para 40. 120

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Furthermore, the national authorities generally have rather broad discretionary powers when applying EU legislation in the field of immigration and border control. The principle of non-discrimination on the grounds mentioned in Article 7(2) is 4 also a general principle of law and thereby a fundamental right in EU law, which is further supported by the explicit codification in Article 21(2) EU Charter of Fundamental Rights122. The prohibition of discrimination on the grounds mentioned in Article 7(2) is therefore not only part of secondary but also of primary law, which can be relevant in case of conflict with other provisions of the regulation or other secondary law. The anti-discrimination directives that were adopted on the basis of Article 19 TFEU – in particular Directive 2000/43123 and Directive 2000/78124 – are, however, not applicable to the entry of third-country nationals into the EU territory since this area does not fall within the scope of application of these instruments.125

Article 8 Border checks on persons 1. Cross-border movement at external borders shall be subject to checks by border guards. Checks shall be carried out in accordance with this chapter. The checks may also cover the means of transport and objects in the possession of the persons crossing the border. The law of the Member State concerned shall apply to any searches which are carried out. 2. On entry and on exit, persons enjoying the right of free movement under Union law shall be subject to the following checks: (a) verification of the identity and the nationality of the person and of the authenticity and validity of the travel document for crossing the border, including by consulting the relevant databases, in particular: (1) the SIS; (2) Interpol’s Stolen and Lost Travel Documents (SLTD) database; (3) national databases containing information on stolen, misappropriated, lost and invalidated travel documents. For passports and travel documents containing a storage medium as referred to in Article 1(2) of Council Regulation (EC) No 2252/2004(8), the authenticity of the chip data shall be checked. (b) verification that a person enjoying the right of free movement under Union law is not considered to be a threat to the public policy, internal security, public health or international relations of any of the Member States, including by consulting the SIS and other relevant Union databases. This is without prejudice to the consultation of national and Interpol databases. 122

See also the comments on Article 4. Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180/22). 124 Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303/16). 125 See for example Article 3(2) Directive 2000/43/EC which explicitly excludes the area of entry into and residence in the territory of the Member States. The scope of application of Directive 2000/78/EC is restricted to the areas of employment and occupation. On the implications and its potential application of the Community’s non-discrimination principle to the EU rules on border control and visa see Cholewinski, ‘Borders and Discrimination in the European Union’, in: Anderson/Apap (eds), Police and Justice Co-operation and the New European Borders (Kluwer Law International, 2002), p. 81, 93 et seqq. (8) Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ L 385, 29.12.2004, p. 1). 123

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