In my previous post I told the story of my encounter with the Schengen visa process. In this post I expand on the legal arguments that I raised in the first post. I show that Schengen visa applicants have the right to be heard before their applications are refused. In other words the visa cannot be refused merely on the basis of a suspicion, as it so often is.
There are four main sets of law and regulation governing the issuance of Schengen Visas:
1. The Visa Code
The main law governing the application for and issue of Schengen Visas is the Visa Code of 2009.
You can find it here in 23 languages: 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)
2. The Handbooks
There are two EU Commission Handbooks interpreting the Visa Code.
i. The Handbook for Processing Visa Applications was issued by a Decision of the European Commission. It does not create law. But it claims to interpret the law. The European Commission issued a directive stating that the Handbook should be used as “the main tool” when procession visa applications. I shall refer to this Handbook as “the Handbook”.
You can find the Handbook in English here:
Decision of the European Commission of 19/3/2010 establishing the Handbook for the processing of visa applications
ii. The Organizational Handbook deals with the organization of visa sections of Member States’ consulates. It is of minor significance to Schengen Visa applicants. However, we shall see below that it does have significance for family members of EU citizens applying for a visa.
3. The Directive 2004/38
This Directive of the European Parliament establishes special rights for family members of EU Citizens travelling to a Member State with their EU relative.
4. The Convention and the Charter
Also, by specific incorporation, the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union apply to applicants for a Schengen Visa. (See below)
No right to a visa doesn’t mean “no rights”
The general rule is that no one has the right to a visa. (The EU has made an exception in the case of family members of EU citizens. I’ll discuss that later. But for the vast majority of applicants there is no right to a visa.) Similarly, having a visa does not give the holder the right of entry to the EU.
It does not follow, however, that applicants for a visa have no rights at all. The law distinguishes between substantive rights and procedural rights. Substantive rights are the right to have something done: be allowed to enter the EU. Procedural rights are the right to have something done in a fair way: the right to have one’s application considered fairly.
The Visa Code and the Handbook grant numerous procedural rights; that is, they stipulate how applicants for Schengen visas should be treated by visa sections of consulates of Member States.
The most basic statement of applicants’ rights is in the Preamble to the Visa Code:
This Regulation respects fundamental rights and observes the principles recognised in particular by the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union. (Preamble, paragraph 29)
The Handbook interprets this paragraph as follows:
Fundamental rights enshrined in the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union must be guaranteed to any person applying for a visa. (Foreword to the Handbook)
It is clear that the phrase “This Regulation respects fundamental rights” in the Visa Code means that “the fundamental rights in the Convention and the Charter must be guaranteed to all visa applicants. This is a sweeping and unqualified application of EU law to non-EU citizens insofar as they are applying for a Schengen Visa. It means that any provision of the Convention and the Charter which can be applied to the act of applying for a Schengen visa shall govern the process of applying for a visa.
What are these Fundamental Rights?
The Convention and the Charter contain many overlapping provisions. The Charter can be seen here:
I shall confine my discussion to the Charter. It contains 54 Articles discussing such rights as The Right to Human Dignity, The Rights of the Elderly, Workers Rights, the Presumption of Innocence and Consumer Protection. Clearly most of the topics in the Charter are beyond the scope of application to applicants for Schengen Visas. Which of the provisions of the Charter are most applicable to applicants for a Schengen Visa?
The Handbook seems to think that Articles 4 and 21 of the Charter are the most relevant.
The processing of visa applications should be conducted in a professional and respectful manner and fully comply with the prohibition of inhuman and degrading treatments and the prohibition of discrimination enshrined, respectively, in Articles 3 and 14 of the European Convention on Human Rights and in Articles 4 and 21 of the Charter of Fundamental Rights of the European Union. (Foreword)
This is essentially a restatement of Article 39 of the Visa Code. But Article 4 of the Charter seems a bit extreme:
Prohibition of torture and inhuman or degrading treatment or punishment
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
What has this got to do with visa applications? Does the Handbook envisage visa applicants being strapped to the rack or kept in solitary confinement?
Article 21 is a little more relevant. It prohibits discrimination,
…based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation ….
This is an important provision. But it is not one which most applicants can easily use to claim that their refusal was unlawful. It is difficult to prove discrimination unless there are two or more applicants submitting the same documents. (See Nangnoy’s case in my previous post)
The most important provision of the Charter is that which deals directly with administrative rights:
Right to good administration
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2. This right includes:
(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
(c) the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of he Union in one of the languages of the Treaties and must have an answer in the same language. (my emphasis)
This Article is important because it applies to every person who applies for a visa in every case. Every person who applies for a Schengen visa has the right,
- to have his application handled impartially and fairly;
- to be heard before any measure – i.e., the decision to refuse a visa – is taken;
- to be given reasons for a decision; and
- to have access to his file;
Let’s take a closer look at these rights:
Application handled impartially and fairly: This clause is covered by the discrimination provision in Article 21 quoted above. “Impartially” means without being influenced by improper motives.
The right to be heard: This provision means that a visa section may not refuse a visa on the basis of a mere suspicion. An applicant has the right to be called by the visa section to satisfy any doubts that the visa section has. If the visa section hears the applicant and is not satisfied with the response it may refuse the visa. However, to refuse a visa on the basis of a suspicion that, for example, the applicant might engage in illegal employment or might overstay his visa without giving the applicant an opportunity to be heard violates the provisions of the Charter and thereby violates the Visa Code.
One might argue that this interpretation places too great a burden on visa sections. I would reply:
- The applicant pays a fee which covers the expense of calling the applicant for an interview. In 2011 visa sections collected a total of 44 million euros from refused visas. In the case of the visa section of the Embassy of France in Bangkok, 164,160 euros were collected from around 2,700 refused visas. One would imagine that these sums would be sufficient to cover the expense of performing a thorough job.
- A proper implementation of the law would make visa sections think twice about refusing a visa. At present they are totally unaccountable for their action. They can shoot from the hip and refuse a visa without justification, as occurred in Nangnoy’s case. If refusing a visa required extra work the more refusal-prone visa sections might not be so trigger happy.
- The law clearly requires the interpretation that I have presented. If the European Parliament does not want to apply all of the principles of the Convention and the Charter it should amend the Visa Code to specify which provisions it wants to incorporate. As it stands in Paragraph 29 of the Preamble of the Visa Code the incorporation is unqualified. Article 41 of the Charter applies to all visa applicants.
The right to be given reasons: The Visa Code makes a perfunctory effort to satisfy this requirement. Article 32 (2) provides:
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.
The reasons in Annex VI basically repeat the grounds for refusing a visa set out in Article 32. These reasons fall into two categories.
i. Black and white: In many cases the reasons are straightforward. For example, “having already stayed three months in a six month period” or “not having requisite travel insurance” are black and white issues. There is no ambiguity. However, one wonders why a visa section would accept the application of an applicant whose file is obviously incomplete. It would seem unconscionable to take the money of an applicant knowing that his file is incomplete. The Handbook states that the presentation of an incomplete file may be considered to indicate that the applicant does not take the application seriously or is unable to present the requested documents. (Part II 7.10) But that is treating the applicant with contempt. Who is going to pay 100 euros in visa, service and insurance fees and not take the application seriously?
ii. Vague and mysterious: Other reasons for refusal are vague and would be meaningless to the average applicant. Reason no. 8 in Annex VI of the Visa Code is an example:
The information submitted regarding the justification for the purpose and conditions of intended stay was not reliable.
This was the ‘reason’ given to Nangnoy and in all other refusal cases that I have heard of. In fact it is not a reason within the meaning of the Charter. It is the legal basis upon which the visa section is empowered to refuse a visa. That legal basis does not correspond to a meaningful reason from the perspective of the applicant or the Charter. Article 41 of the Charter should be read as the obligation of the administration to give meaningful reasons for its decisions. What use are ‘reasons’ which make sense to the visa section but which are gobbledygook for the applicant?
Reason 8 of Annex VI of the Visa Code has been misinterpreted by the Handbook in three different ways. Reason 8 is vague to the point of being meaningless. It facilitates unaccountability in visa sections. Reason 8 should be deleted from Annex VI. In order to comply with the spirit of the Charter specific reasons should be given for a refusal. Article 32 of the Visa Code and Annex VI should be amended accordingly.
The right to access to his or her file: The Charter gives an applicant for a Schengen visa the right to have access to his or her file.
I have written to the French Minister of Foreign Affairs, Laurent Fabius, demanding a copy of Nangnoy’s file, including the appeal file. I will make the letter available on this blog. If and when I get a reply I’ll make that available too.
The right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties. According to this paragraph, a Schengen Visa applicant whose application is wrongfully refused is entitled to claim damages from the Member State in question. Thus, for example, an applicant whose visa is refused without having been given a chance to be heard or whose visa is refused for improper reasons, such as discrimination, is entitled to damages. This is a substantive right clearly granted to Schengen visa applicants by virtue of the Visa Code.
EU legislation has granted extensive procedural rights to Schengen visa applicants. However, these rights have not been acknowledged by the Handbook. They are not uniformly honoured by visa sections. The EU Parliament has two choices: either amend the Handbook to make clear that all of the relevant rights in the Charter are applicable or amend the Visa Code to limit the grant of unqualified rights under the Charter.
Author : Gregory Barton