The Appeal Process is a Sham

Applicants for a Schengen visa whose applications are refused are, by law, entitled to appeal the decision. But there is no information to guide the applicant in an appeal. The stated reasons for refusal are so vague that the applicant can only guess at the true reason for refusal. In the case of France, the appeal will be decided months after the applicant’s intended departure and if unsuccessful, the applicant will receive no notification. His appeal will simply vanish.

The appeal process is a cruel joke. It is likely to waste the applicant’s time and cause yet more grief and confusion by falsely raising his hopes.

The right to appeal
The Visa Code provides that applicants who have been refused a visa shall have the right to appeal. It stipulates that

the appeal be conducted in accordance with national law; and

the Member State shall provide applicants with information regarding the procedure to be followed in the event of an appeal, including

the competent authority and the time limit for lodging such an appeal. (Article 32) (my emphasis in bold)

Guidance is hopelessly inadequate
When an applicant’s visa is refused he will receive a Notice of Refusal with his passport. In the case of France, the only information regarding the right to appeal is the sentence,

“You may lodge an appeal against the decision to refuse a visa with the Commission des Recours contre les decisions de Refus de Visa d’entrée en France, BP 83 609, 44036 – Nantes CEDEX 1, within two months from the date of this notification.”

The Visa Code requires that the Notice of Refusal give information regarding the appeal procedure, “including” competent authority and time limit. It does not say “comprising” competent authority and time limit. “Including” indicates that the notice should provide more information, such as:

  1. reference to the fact that the appeal will take two months to be decided – a fact that would influence most applicants’ decision to appeal or not.
  2. guidance as to how to file an appeal;
  3. what the grounds for an appeal might be;
  4. what factors might assist the applicant.

Indeed, the intention manifested by the Refusal Notice is to provide as little information as possible presumably in order to discourage appeals.

The stated reason is inadequate
The Visa Code provides that reasons for refusal shall be given to an applicant. But it confines such reasons to those listed in Annexe VI. Of these, the only reason I have seen given (and, I suspect, the most frequent choice) is,

“the information submitted regarding the justification for the purpose and conditions of the intended stay are not reliable”.
How could an applicant base an appeal on such gobbledygook? By contrast, the UK requires its consulates to give reasons specific to the case. Which document was defective? In what way was it defective?

The vagueness of Article 32 (reasons for refusal) has the effect of making the refusal process opaque, leaving the visa section totally unaccountable and rendering an appeal impracticable; that is, it is impossible for an applicant to lodge an appeal without knowing the specific reasons for the refusal. It is highly unlikely that a court would agree that such perfunctory reasons satisfy the duty to give reasons under Article 41 of the Charter of Fundamental Rights of the EU.

The Visa Code should be amended to require the consulate to refer to a specific document in the applicant’s file and to the specific defect in that document.

Two months is not a reasonable time
In a previous post I discussed how the Visa Code adopts the Charter of Fundamental Rights. Article 41 of the Charter states that

“[e]very person has the right to have his or her affairs handled … within a reasonable time.”

What would be a reasonable time for a person going on holiday to Europe? Presumably it would be a period of time that enables the applicant to proceed with his travel plans. The only way for an appeal process to be meaningful, at all, would be to have an appeal process that takes place within days, rather than months. There is no point having an appeal process that takes so long that opportunity to travel has passed.

Result of the appeal should be notified
The appeal process in France simply fades away. One is sent a case number and told that if you don’t hear from us within two months you may presume that the appeal has failed. This is an extraordinary demonstration of contempt for the applicant. It is also a flagrant violation of the applicant’s rights under the Charter. Article 41 of the Charter requires that reasons be given for an administrative decision. It is not only common courtesy. It is also the law. Article 41 also requires the administration in question to reply in the language of the application provided it is one of the languages of the Treaty.

The most opaque process in the EU
The appeal process for applicants whose Schengen Visa application has been refused must be one of the most opaque and contemptible processes in the EU. It makes a mockery of the principles of fairness laid down in Article 41 of the Charter of Fundamental Rights. It is mere window dressing. The EU Parliament has two choices: either amend the appeal process and make it fair and practicable or get rid of it completely.

7 Responses to The Appeal Process is a Sham »»

  1. Comment by Manthan | 2012/11/01 at 13:26:56

    I completely agree with you, As I am at the same point of appealing, and I dont know how it work and how is the appeal process carry on.
    At this point I am very confused now what to do.

    If you can please help me.

    Thnx for posting.

  2. Comment by Gregory Barton | 2012/11/01 at 14:56:37

    Manthan,

    If the appeal is for France, I suggest that you don’t waste your time. For other countries I have no experience and I don’t know the national law. But I guess it is just the same as you have the same problem as with France: you don’t really know the reason for your refusal so you don’t really know how to appeal. You can only guess. This is not a system that gives you a fair chance.

  3. Comment by MAHMOOD ABDULRAZZAQ ABDULAZIZ GAMIL | 2013/02/27 at 19:52:06

    DEAR SIR
    I HAVE SUBMITTED ALL THE REQUIRED INFORMATION TO FRANC EMBASSY SANA’A -YEMEN ON IN 23/JAN/2013
    BUT ON 11 FEB/2013 I GET REFUSAL LETTER NO 27696/2013 ARTICLE NO(8) WHICH STATE THAT I’M NOT RELIABLE OF MY STAY CONDITION IN SPITE OF
    I PROVIDE HOTEL RESERVATION AND BOOKING AIR TICKET
    SO PLEASE I WANT TO APPEAL AGAINST THIS DECISION BECAUSE I HAVE RIGHT TO GET ENTRY VISA AS I , RESPONSIBLE ABOUT MYSELF
    I PROVIDE ALL THE APPLICATION AND CORRECT INFORMATION TO FRENCH EMBASSY IN SANA’A -YEMEN
    PLEASE ADVISED ME REGARDING THIS MATTER I ALSO READY TO GET A NEW AIRPLANE BOOKING AND PAYING THE TICKETS ALSO I WILL PAY CREDIT THE HOTEL WITH THE BOOKING TO BE SURE.
    WAITING YOUR REPLY
    TRULY YOURS
    MAHMOOD ABDULRAZZAQ GAMIL
    TEL NO. 00967 711243029

  4. Comment by Gregory Barton | 2013/02/28 at 02:02:48

    Mahmood,
    I cannot comment on the information you submitted, not having seen it.
    You do not have the right to get a visa, nor, having a visa, do you have the right to enter France. The only right you have is to be treated fairly during the application process. It is probably fair to presume that you were not fairly treated, in accordance with the EU law.
    However, I would not appeal to France. As my article says, it was a waste of time. Your best chance is to find someone with experience in your country who can review the application and apply again.
    My advice: do not pay for anything before you get a visa.

    Good luck.
    gb

  5. Comment by Margareth Humlen-Grinstead | 2013/04/16 at 10:00:28

    Hi.
    I’m sitting here with the letter for appeal in my hand and reading this article (blog). Actually, I was looking for an E-mail address in hope to get the appeal letter through in a faster way. The time is working against me! But no, no such address. Has to be sent by post then! Now I’m not quite sure if I will waste more time and frustration and money!
    In our case it was not travelling to France, but Spain. In the country of origin, the french embassy was representing Spain!! What a nightmare! I was going to send an invitation to my daughter in law from Spain (everything was OK, she was wellcomed by Spain) I had to send copy of my passport ,a list over my bank account,all kind og personal notes I never normally would have given, and the message for the embassy was to BUY the tickets and show the scedule and receipt. We had to send papers by FEDEX from spain to get there in time, which costed 150 euros – aprox 50 papers all together. A lot of work, a lot of money. This is all about a holiday lasting for 2 months and the main reason was for me to meet my grand son for the first time and have him christened here in Spain. Evrything is arranged with the church, with the family (coming down from Scandinavia) and we were so exited. The christening was to take place on May 5th. THEN THE SHOCK! Not accepted ! Reason? P 8 and 9 as mentioned above. They do not believe in me!!! I have been sleepless for a week now, and had finally decided to appeal to Nantes. But now?? I don’t think it’s worth it or if I have the strenght! I just have to start calling around to cancel the church, the family tickets everything! A lot of money lost. I wish The EU Parliament to know what’s going on here, but don’t know how to do it. I’m so sorry, so angry !

  6. Comment by Gregory Barton | 2013/04/22 at 04:42:15

    Margareth,

    You have my sympathies. I think you are right to forget about the appeal. It will only add insult to injury.

    I suggest that you write to the EU Commission

    http://ec.europa.eu/commission_2010-2014/malmstrom/contact/contact-me_en.htm

    Tell Ms Maelstrom how disappointed you are and that the system has excluded yet another bona fide tourist.

    gb

  7. Comment by KAYODE Sunmonu | 2013/05/04 at 17:46:08

    It’s not funny at all where adequate information is not given. i have been trying to send my letter of appeal to the commission just to satisfy myself that i appeal the basis of denying me a visa to Netherlands. I do not have receiver’s phone number to register with my local courier. If after meeting all the requirement, one still refuse a visa. i think it is a gross misconduct and violation of right. The authority should do a proper review of process of appealing. Anyway i am still going to send my appeal.
    Just hope to get a positive reply may by divine intervention.

  8. Comment by Emad | 2013/07/31 at 17:50:16

    did anyone write an appeal to France and had a reply or any positive response or it will be just another step which will increase my anger and frustration on this blind system?

  9. Comment by Gregory Barton | 2013/08/01 at 00:34:27

    I hate to be cynical, but the greater probability is the latter.

  10. Comment by Anthony Oduah | 2013/10/12 at 03:32:46

    Dear Gregory, I totally agree on your postulations. I believe the process should be open and fair. I am also a victim of this hoax, hucum, hocus pocus, arant nonsense and giberish. I submitted an application to seek entry clearance certification but to my chagrin dismay the application was denied. Althought I made an appeal because I felt my application was not given a fair considerations even though the outcome of the appeal might end up the same manner. However, I don’t have a problem if an application to seek entry clearance certification was denied but what really affect the carapace of my mind is the manner in which an applicant is being extorted without getting justice. It is totally an impervious to logic where an applicant pay for a service(visa fee) and you don’t get the value in return where there is a clear cut of credibility. Is this not a scam? One expected a certain percentage of amount be charged for administrative cost once an application is denied and the outstanding balance be refunded. This is exactly the situation in my country, Nigeria. With the template of the refusal notice, one would begin to wonder if the assessment of credibility adhere with the lay down rules, procedure, principles and law of a visa issuance to an applicant or is it just a mere figment of imagination? I know for a fact that mere figment of imagination without any substantial evidences can not hold waters in a competent court of law. I strongly believe if an applicant demostrate sufficient means of support without any evidences of previous immigration breaches should be considered credible and be issued a visa.

  11. Comment by Gregory Barton | 2013/10/12 at 04:03:42

    Anthony, thank you for your comment. Indeed, you are not getting value for your application fee. If the law requires that you get fair consideration then the taking of money without fulfilling the duty is a scam.

    I have just returned from France. There are all sorts of miscreants running around Paris: Bangladeshis selling roses to tourists in the Rue Montorgueil, dozens of Chinese prostitutes around the Boulevard St Denis yapping to each other in Mandarin. The way to address the illegal immigration situation is not by denying rights to bona fide tourists, but, rather, by policing these obvious breaches.


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