Tercer escenario: Formulación estratégica

3.6.1 Background and general context In general, third‑country nationals need a visa if they want to enter and stay in Germany. Short‑term visa (‘Schengen visa’), which are valid for stays of up to 90 days per 180‑day‑period, and transit visa are subject to EU legislative authority. The EU Visa Code (Regulation (EC) 810/2009) contains uniform rules for all Schengen member states35_{. The list of coun‑}

tries whose nationals do not need a visa for short stays in the Schengen area is also prepared at the EU level.36 _{Third‑country nationals who plan to stay}

35 The Schengen area includes the EU member states (with the exception of the United Kingdom, Ireland and Cyprus) as well as Iceland, Liechtenstein, Norway and Switzerland. Bulgaria, Croatia and Romania are candidates for inclusion in the Schengen area.

36 Please see https://www.auswaertiges‑amt.de/de/

einreiseundaufenthalt/staatenlistevisumpflicht/207820 for

in Germany for more than three months can apply for a national visa (D‑type visa).

Schengen visa

Schengen visa entitle their holder to stay in the Schengen area for up to 90 days during a 180‑day period. They are issued by the Schengen mem‑ ber state which is the only or main destination or via which the holder enters the Schengen area (AA, n.d.). They will in general have to apply for a visa to the responsible diplomatic mission before they travel to Germany. A Schengen visa does not enti‑ tle its holder to an economic activity during his or her stay. The diplomatic mission abroad will decide on the visa application at its own discretion; “the ap‑ plicant is not entitled to a Schengen visa” (AA, n.d.). If a German diplomatic mission is to grant a visa, the following preconditions will need to be met: the “purpose of the journey to Germany must be plau‑ sible and understandable”, the applicant must “fi‑ nance the cost of living in Germany and the cost of travel by their own means”, the “visa holder must be willing to leave the Schengen area before the visa expires”, and the applicant must “present a travel medical insurance worth at least EUR 30,000 which is valid for the Schengen area as a whole and for the intended period of stay” (AA, n.d.; Article 32 para 1 of the EU Visa Code). The financial preconditions can be met by presenting a “formal undertaking by a third person pursuant to Sections 66 to 68 of the Residence Act” (AA, n.d.). Moreover, the applicant must not present a threat to public policy, internal security or public health (Article 32 para 1 lit. a) vi) of the EU Visa Code).

The Visa Information System (VIS) is a database ac‑ cessible to all diplomatic missions of the Schengen member states and the border control posts at the external borders of the EU. It contains fingerprints, passport photographs and other data from the visa application (KOM 2018a).

National visa

Third‑country nationals who want to work or study in Germany or stay in Germany for a longer period for another purpose need a national visa. They will “in general have to apply for a visa to the responsible diplomatic mission before they travel to Germany. As a rule, approval by the appropriate foreigners

38 Legal migration and mobility

authority in Germany is required” (AA, n.d.). The preconditions for a national visa depend on the pre‑ conditions for the residence title for the relevant purpose (residence or settlement permit, EU Blue Card, ICT card, or EU long‑term residence permit; Hailbronner 2017a: 73). Once the third‑country na‑ tional has entered the country, he or she may apply to the foreigners authority for the necessary resi‑ dence title. Citizens of Australia, Israel, Japan, Can‑ ada, New Zealand, the Republic of Korea and the United States of America can enter Germany with‑ out a visa and apply directly to the foreigners au‑ thority for the necessary residence title (AA, n.d.). Moreover, national visa holders may move freely within the Schengen area for 90 days within any 180‑day period (AA, n.d.).

3.6.2 Developments referring to the EU Visa liberalisation for Georgia and Ukraine On 27 March 2017, the visa exemption for Geor‑ gian nationals entered into force (Regulation (EU) 2017/372)37_{. It applies to holders of biometric}

passports. The European Commission already pro‑ posed lifting the visa requirement for Georgia back in March 2016, since the country met all require‑ ments at that time (KOM 2018b). However, the EU Council postponed the decision (Euractiv 2016). An agreement on the revised suspension mecha‑ nism (see below) finally allowed the Council and the Parliament to agree on visa liberalisation (Rat der EU 2016).

Since 11 June, Ukrainian citizens who hold a bio‑ metric passport may also enter the Schengen area without a visa. The European Commission amended the EU Visa Regulation (Regulation (EC) 539/2001) accordingly (Regulation (EU) 2017/850)38 _{(Rat der}

EU 2017a).

37 Regulation (EU) 2017/372 of the European Parliament and of the Council of 1 March 2017 amending Regulation (EC) 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (Georgia).

38 Regulation (EU) 2017/850 of the European Parliament and of the Council of 17 May 2017 amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (Ukraine).

Revision of the suspension mechanism

A suspension mechanism for Schengen visa was already introduced in 2013 (Article 1A of Regula‑ tion (EC) 539/2001)39_{. The revision of the suspension}

mechanism entered into force on 28 March 2017 (BMI, n.d.). The mechanism allows to “reintroduce the visa requirement for visa‑exempt third coun‑ tries, initially for certain groups of persons and for a limited period of time, if the migration and/or secu‑ rity situation deteriorates with regard to the nation‑ als of a visa‑exempt third country” (BMI, n.d.). This revision was related to granting visa requirement exemptions to other third countries (see above). Under the new provisions, the mechanism can be triggered not only by the member states themselves, but also by the European Commission (KOM 2017a). It may be triggered if irregular migration (including refusals of entry at the border) or the number of asy‑ lum applications with a low protection ratio rise by more than 50%, if the third countries reduce their cooperation in the area of readmission and if the risks to public order or domestic security rise sig‑ nificantly (KOM 2017a). In addition, a “monitoring component was included in order to secure com‑ pliance with the criteria for the visa liberalisation” (BMI, n.d.).

Non‑compliance with these criteria may therefore be a reason for a suspension of the visa exemption. Compliance is monitored by the European Commis‑ sion, which will report at least once a year to the Eu‑ ropean Parliament and the EU Council on this issue during the first seven years after the visa liberalisa‑ tion (KOM 2017a).

On 20 December 2017, the European Commission released its first report on the western Balkan coun‑ tries exempt from the visa requirement40 _{as well as}

on the Republic of Moldova, Georgia and Ukraine (KOM 2017b). Therein, the Commission states that all states still fulfil the criteria for visa liberalisation. Furthermore, the report identifies measures which should be implemented by the single states in order to continue to meet the criteria. Amongst others, the Commission recommends measures countering irregular migration and enhanced cooperation in 39 Council Regulation (EC) 539/2001 of 15 March 2001 listing

the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement. Amended by Regulation (EU) 2017/371.

40 Albania, Bosnia and Herzegovina, Former Yugoslav Republic of Macedonia, Montenegro and Serbia.

39

Legal migration and mobility

relation to return, the fight against organised crime and corruption as well as the protection of vulner‑ able groups in society (KOM 2017b).

Judgment by the European Court of Justice on visa on humanitarian grounds

In a judgment given on 7 March 201741 _{the Euro‑}

pean Court of Justice dealt with the question of the whether the EU Visa Code is applicable if third‑ country nationals apply for a visa in order to apply for international protection in an EU member state. The applicants were a Syrian family who lived in Aleppo and submitted applications for visas with limited territorial validity to the Belgian embassy in Beirut in October 2016. In derogation of the usual entry preconditions, the member states may issue such visa in exceptional cases, for example on hu‑ manitarian grounds (Article 25 para 1 lit. a of the EU Visa Code). They are valid only for the territory of the issuing member state (Article 25 para 2 first sentence of the EU Visa Code).

Paolo Mengozzi, Advocate General to the European Court of Justice, argued in his opinion that Belgium was obliged to respect the fundamental rights of the European Union when deciding on the visa applica‑ tion and thus required to issue a visa if denial of that visa amounted to a violation of the applicants’ fun‑ damental rights, for example because they were sub‑ ject to torture or inhuman or degrading treatment (see Article 4 of the Charter of Fundamental Rights of the European Union; Mengozzi 2017). The Advo‑ cate General believed this to be the case, seeing that the family lived in Aleppo and the father claimed to have been tortured before. However, the European Court of Justice decided that the EU Visa Code did not apply in this case and the Belgian embassy was therefore not obliged to issue a visa. It argued that the visa was sought for the purpose of applying for asylum, which implied that the family wanted to stay in Belgium for more than 90 days. The EU Visa Code, however, was intended only for short‑term stays. For this reason, applications for visa for longer stays were exclusively governed by national law.

40 International protection and asylum