Business, “nearly business” and leisure travellers – revision of the Visa Code

On 14 March, the European Commission has released the proposal for a Regulation of the European Parliament and of the Council amending Regulation(EC) No 810/2009 establishing a Community Code on Visas (Visa Code).

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Mar 25, 2018
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On 14 March, the European Commission has released the proposal for a Regulation of the European Parliament and of the Council amending Regulation(EC) No 810/2009 establishing a Community Code on Visas (Visa Code).

I Main amendments proposed

Member State competent for examining and deciding on an application

When the envisaged trip covers more than one destination, or several unconnected trips are planned within a period of two months, the length of stay will be the sole criterion for determining the Member State competent for examining an application.

Decision on the application-timeline

The deadline for lodging an application will be set to six months and no later than 15 calendar days before the start of the intended visit.

Providing that the application is admissible, it shall be decided on within 10 calendar days of the date of the lodging (instead of the current delay of 15 calendar days). That period may be extended up to a maximum of 45 days when further scrutiny is required (instead of the current delay of 30 calendar days).

The delay given to authorities of other Member States to reply after being consulted, is maintained to maximum seven calendar days, however, such delay is not any more a ground for extension of the deadline to decide on the application (i.e. 10 calendar days). In short, the concept of “further scrutiny” does not cover prior consultation of authorities of other Member States.

Lastly, the possibility to extend the delay up to a maximum of 60 calendar days (when additional documentation is needed), is ruled out.

Visa fee

The visa fee will be increased from EUR 60 to EUR 80 and for minors (6-12 years of age) will be increased by EUR 5 to EUR 40.

Researchers from third countries, as defined in Council Directive 2005/71/EC, participating in a scientific seminar or conference, are added to the list of applicants covered by the visa fee waiver.

Travel medical insurance

Applicants applying for a multiple entry visa will have to provide proof of travel medical insurance only for the first intended visit.

Visa validity - “cascades” visa

Multiple-entry visas with a long validity will be issued for the following validity periods:

(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;

(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:

Visas applied for at the external border under a specific scheme

Will be issued with a validity of maximum seven days, exclusively in order to promote short term tourism.

Refusal of a visa

The right to appeal shall, at a certain stage of the proceedings, guarantee an effective judicial appeal.

Ii Can I make sure that the visa will be granted?

Key provisions

Lodging an application, it is important not to disregard the following provisions:

  • Article 14, provides for the supporting documents to be submitted when applying for a uniform visa.
  • Article 21.7 provides for an examination of an application based on the authenticity and reliability of the documents submitted, on the veracity, and reliability of the statements made by the applicant, and if there are reasonable doubts, Article 32.1(b) provides for the obligation to refuse the visa.
  • Article 21.8 will be amended to allow use of modern means of communication to interview applicants, rather than personal appearance at the consulate.

Eligibility for “cascades” visa

Visa cascades does not represent a standard long-validity multiple entry visa but a “one-size-fits-all” scheme with the possibility of adapting the cascade to specific countries. The scheme proposed combines a minimum standard applicable to all third countries with the possibility of more favourable solutions for specific third countries, adapted to local circumstances and migratory risk.

It can be thus alleged that the eligibility for such visas is mainly related to the country of origin rather than to the applicant’s circumstances.

The proposal maintains the classic multiple entry visa valid up to five years, may be issued on grounds of personal circumstances, to applicants who prove the need or justify their intention to travel frequently and/or regularly.

In any circumstances, the criteria of lawfully using previous visas must be upheld. In context, a interoperability will be established between the VIS (Visa Information System) and the EES (Entry/exit System) by way of an automatic communication channel between their Central Systems. Such communication will enable the border check authorities using the EES to consult the VIS in order to retrieve visa-related data, to create or update the entry/exit record or refusal of entry record, to enable the border check authorities to verify the validity of the visa and the identity of a visa holder by means of fingerprints automatically against the VIS.

It must be noted that where the EES’ usual data retention period will be three years following the date of the exit/refusal of entry, overstay records, will be stored for a period of five years following the date of expiry of the period of authorised stay.

Is there a right to a visa?

It must be distinguished between the right to an effective judicial appeal (currently provided by the national legislation of most of the Member States) and the right to a visa.

The European Court of Justice ruling in Soufiane El Hassani v Minister Spraw Zagranicznych (C-403/16), upheld the need for Member States to guarantee an effective judicial appeal and brought further clarification in regard to the right to a visa.

The ECJ upheld that “in examining a visa application the national authorities have a broad discretion as regards the conditions for applying the grounds of refusal laid down by the Visa Code and the evaluation of the relevant facts”.

The following rights are granted to applicants for short stay uniform visas:

  • Right to have an application fairly processed, exclusively relying on the grounds provided by the Visa Code.
  • In case of visa refusal, right to appeal under the procedural rules provided by the national legislation of each Member State, in accordance with the principles of equivalence and effectiveness. A judicial appeal must be granted.

Business activity concept

A comprehensive analysis of immigration and tax issues related to business trips in 17 Schengen countries was recently published by the International Journal of Business Administration (authors: Marco Mazzeschi & Clayton E. Cartwright Jr).

http://www.sciedupress.com/journal/index.php/ijba/article/view/13031/8072

 

Go to the profile of Tanel Feldman

Tanel Feldman

Managing Partner, Immigration Law Associates

Corporate Immigration Law/Employment Law/Social Security Law/European Law

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