October 31, 2012
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:
- 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.
- guidance as to how to file an appeal;
- what the grounds for an appeal might be;
- 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.