Refashioning the EU Visa Policy: A New Turn of the Screw to Cooperation on Readmission and to Discrimination?

Abstract

Since the establishment of the Schengen area, border management has been having momentum within the European Union (EU) and, one of its major building blocks is the common policy on visas. This allows to control who can have access to the Schengen area for short stays that do not exceed three months over any six-month period. This article investigates how the EU visa policy has been influenced by the ever-evolving migratory dynamics towards the EU. Focusing on the latest reform of the Common Code on Visa, which has entered into force in 2020, this article argues that the new approach to conditionality in EU migration law has consolidated the intertwining between the EU visa policy and cooperation on readmission. Over the years, the latter has constituted an incentive for the EU in order to offer visa facilitation regimes or specific visa waivers to nationals of third countries. However, this article criticizes the new mechanism, introduced by the recent reform, and providing the European Commission with the mandate to propose specific restrictive measures related to visa processing and visa fee in case of a lack of cooperation especially on readmission. In an attempt to shed light on the legal concerns raised by this mechanism, the paper concludes that it even emphasises the discriminatory effects of the EU visa policy and, more generally, it impacts on the cooperation with third countries within the EU General Approach to Migration and Mobility.

External Controls: Policing Entries, Enforcing Exits

“…To analyse the development of European migration policy -and the strains it reveals -it is necessary to abandon the rhetoric of "effective" vs. "weak" states, to focus instead on functional and segmentary variations. The importance of such a distinction becomes clear when we acknowledge and confront a field in which European states have achieved a large degree of supranational integration, i.e., in terms of visa policy (Finotelli & Sciortino, 2013;Nicolosi, 2020), with a field in which formal harmonisation and cooperation among European states remain very low (return and removal policies).…”

“…Nicolosi, 2020, p. 471). In short, if the origin and transit countries do not collaborate in in re-admitting their citizens illegally present on the territory of the EU, third countries could be "punished" with restrictive measures, in primis concerning the issuing of visas (Nicolosi, 2020).…”

Informal agreements and quasi-legal mechanisms in EU-Africa cooperation on migration: how the EU takes advantage of the GCM commitments

“…The EU Visa Code, as well as other instruments involved in the EU visa policy implementation (carrier sanctions, visa representation agreements, etc. ), institutionalize forms of discrimination which, although not explicitly based on nationality, are indirectly modeled on criteria of race, religion and the socio-economic status of the visa applicant (Den Heijer, 2018;Nicolosi, 2020;Kochenov and Ganty, 2023). In addition, the mechanism described directly affects individuals who have to bear the consequences of their government's lack of (or insufficient) cooperation with the Union.…”

The European concept of readmission as a challenge for the modern world: normative and applied dimension

“…221. у питаннях реадмісії» 21 . Адже саме для цього був спеціально розроблений новий механізм 22 . Переглянута візова політика знову закручує гвинти співпраці з питань реадмісії, надаючи Європейській Комісії мандат пропонувати конкретні обмежувальні заходи, пов'язані з оформленням віз та візовим збором у разі відсутності співпраці з питань реадмісії.…”

“…22 Regulation (EU) 2019/1155, Art 25a 23. Cassarino J.-P. A Reappraisal of the EU's Expanding Readmission System.2.…”