Schengen Justice

 

I live in Thailand. Last summer I decided to take my wife and two-year old son to France for a holiday. I invited another couple to join us, Martin and Helen, both in their fifties. My wife wanted to take her favourite cousin, Nangnoy, a young woman of twenty one, a student at a provincial university and a frequent visitor to our house.

Both Helen and Nangnoy needed Schengen visas. They applied at the French consulate in Bangkok. Their applications were based on essentially the same supporting documents.

As the time drew near for our departure we all became excited as one does before the big vacation of the year. Nangnoy was over the moon. This was to be her first trip overseas.

But we were soon to receive a rude shock. A few days before our departure Helen’s passport was returned with a visa. But Nangnoy’s passport was returned with a “Notice of Refusal’, containing the line:

“The informations (sic) justifying the purpose and conditions of intended stay are not reliable.”

Suddenly our mood transformed from merry anticipation to shock and disbelief. How could we enjoy our holiday and leave Nangnoy behind? Rather than prepare for the vacation I spent the days prior to our departure frantically attempting to contact the embassy. Surely this was a mistake! The purpose and conditions of Nangnoy’s intended stay were the same as Helen’s. How could they be reliable for one person and unreliable for another?

But the consul at the embassy refused to communicate with us. Despite daily efforts to right the mistake, Nangnoy stayed home to look after the dog while the rest of us went on holiday.

I wrote to the Embassy and asked the question, “How could the same information be reliable for one person and not for the other?” On my return from France I found a reply waiting for me. Nangnoy’s case had been reviewed taking into account my “recommendations” but that, regrettably, the decision could not be changed. It was a vague pile of waffle that could have been sent to anyone. It didn’t answer my question.

The answer is probably found in a statement by Mr Jean-Jacques Pothier, the Deputy Consul and Head of Visas at the French Emabssy in Bangkok. In an interview with a local magazine, Gavroche, M. Pothier said, “We strive to avoid the risk of …irregular work and prostitution.” Given the similarity of their supporting documents, the only conclusion is that Nangnoy, the younger, 21 year-old, woman was presumed to be an illegal worker or a prostitute while the more senior, 56 year-old, Helen was deemed to be a bona fide traveller.

No right to a visa – but…

As a lawyer, I know that, as a general rule, no one has the right to a visa. You probably know that too and are wondering, “What’s this guy moaning about?”. Here’s what I’m moaning about. It’s called ‘procedural rights’. Examples of procedural rights are the right to be treated fairly, including the right to a hearing and the right to receive reasons for a decision. You might not have the right to a visa. But that doesn’t mean you have no rights at all.

And that’s the law now in Schengen Europe. According to the new Schengen Visa Code of 2009, visa applicants enjoy extensive procedural rights. A Visa Handbook issued by the EU Council, which interprets the Code, is emphatic: “Fundamental rights enshrined in … the Charter of the European Union must be guaranteed to anyone applying for a visa.”

It couldn’t be stated more clearly. The same fundamental rights as are enjoyed by citizens of the Union are enjoyed by non-EU citizens when applying for a visa. Among those fundamental rights is ‘The Right To Good Administration’. The Charter states that every person has the right to be heard before any measure which would affect him or her adversely is taken.

Therefore, Mr Consul, you may suspect that Nangnoy is using a family trip to France as a subterfuge to turn tricks. However, you may not presume that she is a whore. That is the law. Before you deprive her of a once-in-a-lifetime chance to go to France you must give her a chance to explain that she is, in fact, a bona fide traveller. Yes, I know, you’ll have to do more work if it involves calling her for an interview. It’s so much easier to presume. But the law requires you to act fairly.

44 million euros and no questions asked

Nangnoy is not alone. Last year, according to EU statistics, nearly 750,000 people around the world had their tourist visa application refused. EU consulates do not refund the visa fee if the application is refused. That means that EU consulates kept 44 million euros in refused visa fees. 44 million euros and no questions asked. France took more than a quarter of that booty. Were those refusals fair? Were they arbitrary? We have no way of knowing. EU consulates are unaccountable. They can, if they wish, simply roll the dice and take the money and run.

British historian,Tony Judt said of the Schengen system, “Civilized Europeans could indeed transcend boundaries – but the ‘barbarians’ would be kept resolutely beyond them”.[1] European Justice Commissioner, Cecilia Malmstroem said of the new Visa Code, “This is the beginning of a fairer system for all individuals”[2]. How out of touch she is. Bona fide prospective travellers to Europe, such as Nangnoy, are still treated as barbarians.

There is a clear disconnect between the lofty guarantee of fair process in the Visa Code on one hand and the practices of local EU consulates on the other. Despite receiving large sums of cash, EU consulates are unaccountable for their actions. The European Parliament needs to decide: either repeal the guarantee of fundamental rights to visa applicants or ensure that the Visa Code is, indeed, a “fair system for all individuals”.

 

This article was previously published in French on Rue89.com as

Non, notre cousine thaïlandaise ne venait pas se prostituer en France | Rue89

and in English at http://schengenjustice.blogspot.com/

 

 


[1] Postwar, Chapter 12, last sentence.

[2] Dw.de, cited above

Author :
Print

Comments

  1. (applicants have) “right to receive reasons for a decision”

    Are you sure? Is it written explicitly like that in the visa code?

    1. Yes. The Visa Code does explicitly require that the applicant be given a reason for the refusal. But it is a perfunctory and often confusing one. Article 32(2) of the Visa Code merely requires that the consul communicate a reason as set out in Annex VI of the Code. In other words, the Visa Code merely requires the consul to tick a box. I will argue in a later post that this provision is inconsistent with the Charter of Fundamental Rights of the EU and should be amended.

  2. I am doing my thesis on the European policy on visa and i want to show the drawbacks of the Eu visa code despite the harmonized measures of the visa code. my question is why did you not go to the court of justice to cancel the decision of the French consulate in case of a future trip for Nangnoy?

    1. First, we are in Thailand and I could not start proceedings myself. Any case started in France would have to be conducted with French lawyers. I attempted to find an NGO to take up the case or a lawyer to take up the case on legal aid. I contacted several but was unsuccessful. In the course of my enquiries I discovered that the case would be statute barred by reason of the fact that two months had passed since the the date of a ‘deemed rejection’ of the appeal. (See my article on the dysfunction of the appeal process for a discussion of ‘deemed rejection.) I nonetheless pressed an NGO to take up the case on the basis of an alleged breach of fundamental rights according to Article 41 of the Charter. I got no reply to the email. It is nonetheless open to the EU Commission to refer the matter to the European Courts of Justice on the basis of my petition. I hope they will.

Comments are closed.