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IMPACT – MEDIUM
What is the change? Under a legal deadline, the European Commission issued a report Tuesday on the status of visa-waiver reciprocity with Canada and the United States. Neither Canada nor the U.S. offers full reciprocity of visa waivers to all 28 EU member countries, triggering EU regulations that require the commission to take steps, including suspension of visa waivers for American and Canadian citizens. Any changes to visa requirements could be blocked by the European Parliament and the European Council.
What does the change mean? The commission report outlined the negative economic, logistical and political consequences of suspending visa waivers for U.S. and Canadian citizens, despite an explicit EU regulatory framework requiring action. In its report, the commission calls on the European Parliament and the European Council to “urgently launch discussions and to take a position on the most appropriate way forward” and to inform the commission of their positions no later than July 12.
Background: The European Commission was required to discuss the visa reciprocity issue by April 12. The deadline was set two years ago when the commission reported that the U.S. and Canada did not offer full reciprocity of visa waivers to all EU nationals.
At issue: the EU has lifted visa requirements for U.S. and Canadian nationals, but the U.S. and Canada have not lifted visa requirements for all EU countries. The current U.S. Visa Waiver Program allows nationals of 38 countries, including 23 European countries, to travel to the U.S. for up to 90 days without applying for a visitor visa at a consulate. The U.S. currently excludes Bulgaria, Croatia, Cyprus, Poland and Romania from its program, and Canada excludes Bulgaria and Romania.
Under an EU regulation, the commission is required to impose a 12-month suspension of the visa waiver unless Canada and the U.S. remove visa requirements for all EU countries. However, any changes to visa requirements must pass the European Parliament and Council and could be blocked by individual EU countries.
Today’s commission report assessed the consequences of suspending the visa waiver, finding that it would cost €20-25 million in infrastructure to deal with new visa applications, would make it worse for all EU nationals who would likely be required to obtain visas to visit the U.S. and could jeopardize trade negotiations on several pending treaties with Canada and the U.S.
The report is available here.
BAL Analysis: U.S. immigration law requires that countries meet certain prerequisites before they are considered for the Visa Waiver Program, including a 3 percent rate of visa refusal for nationals applying for U.S. visas. None of the five Eastern European countries currently meet the prerequisite. In addition, the U.S. has recently imposed stricter rules for countries participating in its Visa Waiver Program and for individual travelers registering in the program, and the climate does not support expansion of the program to additional countries. On the other hand, Europe is unlikely to reintroduce visa requirements which would cause an estimated €1.8 billion loss in EU tourism from the roughly 10 million Americans who visit Europe each year, and would trigger a reciprocal response under U.S. law, requiring re-introduction of visas for Europeans traveling to the U.S.
BAL is following potential changes to visa requirements and will report on any significant developments as the EU negotiates potential solutions to the impasse.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – LOW
What is the change? One of the provisions in an EU-Turkey agreement on refugees reached last week would accelerate Turkey’s path to visa liberalization with a target goal of implementing a visa waiver for Turkish citizens by the end of June.
What does the change mean? The agreement requires that Turkey meet a large number of goals that are likely to delay the target date.
Background: The EU and Turkey reached the agreement Friday, mainly addressing the refugee crisis. Turkey agreed to accept the return of new irregular migrants crossing from Turkey to Greece and to prevent new routes of irregular migration into Europe. The EU will disburse the €3 billion previously agreed on and will mobilize an additional €3 billion to help settle refugees in Turkey.
The visa liberalization provision calls for acceleration of the EU-Turkey roadmap with the intention of eliminating visa requirements by the end of June. Last year, the parties also discussed reinvigorating the process and proposed a target date of October 2016 for visa liberalization.
BAL Analysis: The refugee crisis has prompted Europe to promise an accelerated schedule for elimination of visas for Turkish nationals, but Turkey must first meet dozens of requirements under the EU-Turkey roadmap, and they are likely to postpone the implementation date beyond June. As Ireland and the U.K. are not members of the Schengen region, any visa waiver between Schengen countries and Turkey will not apply to them.
What is the change? The European Commission has proposed changes to its rules on posted workers, aiming to ensure that they generally have the same wage and employment protections as local workers in EU member countries.
What does the change mean? Under the proposed changes, posted workers would be covered by the same pay rules and collective bargaining agreements (where applicable) as local workers. The rules on pay would be extended to cover temporary agency workers in host countries. Workers posted for more than 24 months would be protected by the host country’s labor laws.
Background: For EU officials, the freedom to post workers across Europe is one of the cornerstones of the EU’s “single market” concept. Discrepancies in pay and job protections from country to country, however, prompted the commission to propose changes to the current rules on posted workers. The changes focus on three areas: remuneration (pay), temporary agency workers and long-term posting.
BAL Analysis: The changes are designed to root out “social dumping,” i.e., the practice of using cheaper labor than employers are normally permitted to use. If implemented, the changes would force companies to review their pay rates and employment protections for workers posted in other EU countries.
What is the change? The European Commission presented a road map Friday on how to restore a fully functioning Schengen border system which it called “severely tested” by the refugee crisis in the past year.
What does the change mean? The plan aims to lift all internal national border controls within the Schengen area (mainland Europe) no later than the end of 2016 and adopt a proposal for a European Border and Coast Guard agency by June so that it will be operational at external borders by summer. The road map also calls for steps to address Greek border management and to implement agreements with Turkey to keep refugees from crossing into the EU.
Background: The plan addresses internal and external borders to enable free movement for visitors within the Schengen region. Since last year, several European Union member states have re-introduced national borders to controls the flow of refugees, citing deficiencies in controlling European external borders, namely Greece and Italy.
The main steps of the road map are:
BAL Analysis: The road map sets some concrete steps and target dates for normalizing the Schengen area and bringing national border controls into a consistent framework. Meanwhile, travelers may continue to experience delays in processing and greater scrutiny of documents at borders, depending on the country. While political pressure on the EU has been created by the refugee crisis and undocumented migration, the response by the European Commission and the various national member states has significant impact on business travelers who rely on Schengen visas to move freely between business meetings within various European countries.
What is the change? Europe continues to grapple with its migration crisis, with Schengen member countries establishing additional border controls and EU ministers warning of a possible “humanitarian crisis” if countries along migration routes fail to properly prepare for the continued influx of tens of thousands of migrants.
What does the change mean? The migration crisis continues to pose a threat to freedom of movement within the Schengen Area. Belgium became the latest country to announce that it would establish border checks (albeit in a limited fashion), joining Austria, Denmark, France, Germany, Norway and Sweden among countries that have set up border controls. Denmark announced this week that it would extend its border controls by at least 10 days, and Austria has implemented caps on the number of asylum applications it will accept on a daily basis. Travelers should anticipate delays in areas where border controls have been set up, and non-EU and EU nationals alike should be prepared to show proper identification at checkpoints.
Background: More than 1 million people arrived in Europe in 2015, mostly from the Middle East and North Africa, and over 100,000 asylum seekers have arrived by sea this year.
Belgium instituted targeted border controls this week as it braces for the possible evacuation of an estimated 3,000 to 6,000 migrants in an encampment at Calais, a city near the French-Belgian border. A French court is expected to rule on the evacuation this week. Belgian Interior Minister Jan Jambon said in a televised interview Tuesday that Belgian officials will continue to monitor the border situation and that it is impossible to say at this time how long the security checks will remain in place. He added that Belgium notified the European Convention Tuesday of the border controls, which represent a derogation from the Schengen Agreement.
In Denmark, the government announced that border controls that were set to expire Feb. 23 would be extended until at least March 4. Officials said controls remain a necessity in order to maintain order and security in Denmark. Austria, meantime, has instituted a daily cap of 80 on the number of people allowed to cross its southern border in order to apply for asylum. It also capped at 3,200 the number of people permitted to enter the country on a daily basis for the purposes of traveling through Austria to seek international protection in a neighboring country.
The continued influx of thousands of migrants, who often enter Europe through Greece and travel through the Balkan Peninsula, prompted Dutch Minister for Migration Klaas Dijkhoff and European Commissioner for Migration, Home Affairs and Citizenship, Dimitris Avramopoulos to issue a joint statement, calling for a unified “European approach” to addressing the challenge.
“We understand the pressure the different countries concerned are facing,” the statement said. “We are concerned about the developments along the Balkan route and the humanitarian crisis that might unfold in certain countries especially in Greece.”
The Council of the European Union’s Justice and Home Affairs Council is scheduled to discuss external EU security measures at a meeting Thursday.
BAL Analysis: BAL will continue following developments in Europe, as officials consider both the re-establishment of national border controls and external border security. Delays should be expected when crossing borders where controls have been re-established.
This alert has been provided by the BAL Global Practice group and our network providers. For additional information, please contact your BAL attorney.
What is the change? The European Commission has given Greece three months to implement dozens of improvements on managing its borders, building infrastructure to receive and house refugees, training staff, registering and screening incoming migrants and deporting irregular migrants.
What does the change mean? If Greece is unable to implement the myriad measures by the May deadline, the commission is likely to invoke Article 26 of the Schengen Borders Code, which would allow member countries to prolong national border controls for up to two years.
Background: The deadline follows a set of recommendations based on an evaluation report by the commission last month finding “serious deficiencies” in Greek border management.
The crisis that began last summer has been an ongoing challenge to European free movement principles, as approximately 2,000 refugees per day, mostly fleeing conflict in Syria, arrive on Greek shores in the hopes of reaching other European countries. Several countries, including Austria, Denmark, France, Germany, Norway and Sweden, have reintroduced temporary border controls, and some member states asked the European Commission in January to prepare the legal and practical basis for prolonging the measures.
In addition to prolonging border checks, the measures would mean refugees would have to stay in Greece for a longer period before traveling on to preferred destinations, such as Germany.
BAL Analysis: Should Greece fail to meet the deadline for the recommended changes, it would lay the legal basis for the commission to invoke Article 26, which permits member states to continue border controls beyond the initial six-month period for up to two years on the grounds of exceptional circumstances.
What is the change? EU member countries asked the European Commission Monday to make “legal and practical” preparations for the extension of national border controls, as Europe continues to grapple with the arrival of huge numbers of asylum seekers from the Middle East and North Africa.
What does the change mean? Some EU countries are seeking to invoke Article 26 of the Schengen Borders Code, which would allow for national border controls beyond six months. A handful of Schengen Area countries – including Austria, Denmark, France, Germany, Norway and Sweden – have set up temporary border controls, as asylum seekers continue to arrive in Europe in record numbers. EU countries are also focusing on better security on the EU’s external borders, but some member countries have said that in the absence of stronger external security, internal border controls are necessary.
Background: After a meeting of justice and interior ministers in Amsterdam Monday, Dutch State Secretary for Security and Justice Klaas Dijkhoff told reporters that some EU members states are seeking to invoke Article 26 of the Schengen Borders Code, which would allow for national border controls for up to two years.
“Currently, temporary border measures can be taken only for a limited period, for six months,” he said. “But the unprecedented influx of asylum seekers, which compelled member states to take these measures nationally, have not decreased yet. So member states invited the Commission to prepare the legal and practical basis for the continuance of temporary border measures through Article 26 of the Schengen border code.”
More than 1 million people arrived in Europe in 2015, mostly from the Middle East and North Africa. There is no sign that the flow of migrants will significantly slow down anytime soon. And while both the Council of the EU and the European Commission have proposed new border control measures, some officials have said for months that if the EU is not able to do a better job of securing its external border controls, member countries will continue to resort to national border control measures.
BAL Analysis: Tensions are running high in Europe, where some leaders say long-term national border controls are necessary. For now, some countries have set up temporary border checks. Travelers with valid EU passports, D visas, Schengen C visas, or EU residence permits will be permitted to travel between Schengen states, though in some cases they may need to show passports, visas or residence permits. Delays should be expected when crossing borders with newly implemented controls. BAL will continue following developments in Europe, as officials consider both the re-establishment of internal border controls and external border security.
What is the change? The Council of the European Union has called for “accelerating the implementation” of a number of border control measures in the wake of the Nov. 13 terrorist attacks in Paris.
What does the change mean? The Council has proposed checking EU nationals’ biometric information at external borders, ensuring that EU member states have access to relevant Interpol databases when conducting border checks, and registering third-country nationals who enter the EU illegally. While the recommendations have not received final approval, the measures would lead to longer wait times when entering the EU, including for EU nationals.
Background: Many of the measures the Council called for on Nov. 20 had already been recommended, but the Council stated that officials should accelerate the implementation of the security proposals.
Among border control measures, the Council called on the EU to implement “systematic and coordinated” checks at external borders, including for EU nationals; upgrade Schengen countries’ border control systems to provide access to relevant Interpol databases and automatic screening of all travel documents; register and take fingerprints from third-country nationals who enter the Schengen area illegally; deploy border intervention teams and police officers to areas of the EU’s borders that are “most exposed” to illegal crossings; and develop a proposal for a “targeted revision” of the Schengen Border Code to provide for verification of biometric information from EU nationals at external borders.
The Council also recommended collecting more data on air travel, strengthening firearms laws and developing new strategies to target terrorism financing.
BAL Analysis: Europe has been grappling for months over how best to control its external and internal borders as it deals with the biggest migration crisis since World War II and threats from terrorist groups. The Council’s endorsement of external border control measures, while not binding, could set the stage for enhanced security and longer wait times for travelers entering Europe. BAL will continue to follow Europe’s border policy debate and will alert clients to any significant developments.
What is the change? Colombia’s visa-free travel agreement with the European Union takes effect today.
What does the change mean? Colombian nationals can travel without a visa to the 26 Schengen Area countries for up to 90 days in a 180-day period. The waiver does not apply to the United Kingdom or Ireland, neither of which is part of the Schengen Area.
Background: The EU and Colombia reached the visa-free travel agreement in June, and officials signed a final version of the agreement Wednesday. Although the final text must still be approved by the European Parliament, this step is considered a formality and visa-free travel begins on a provisional basis starting today.
The agreement provides for visa-free travel for business, tourism, cultural visits, scientific activities and family visits, among other types of travel. Paid activity still requires work authorization. While the U.K. and Ireland are not part of the deal, Colombia has reached visa-free travel agreements with Switzerland and Liechtenstein, in addition to the 26 Schengen countries. Nationals of Schengen countries, Switzerland and Liechtenstein already enjoy visa-free travel to Colombia.
BAL Analysis: The agreement is expected to facilitate business and other short-term travel opportunities for Colombian nationals traveling to the Schengen Area.
This alert has been provided by the BAL Global Practice group and our network provider located in Colombia. For additional information, please contact your BAL attorney.
What is the change? Following a foiled gun attack on a French train Sunday and a sustained surge of Mediterranean refugees, European leaders are renewing calls to place border controls on travelers in the Schengen area.
What does the change mean? European leaders are meeting to discuss changes ranging from identity and luggage checks to bringing back full national border enforcement.
Background: Talk of reintroducing controls resurfaced in May with the refugee crisis and is receiving renewed interest after a gunman was thwarted on a high-speed train from Amsterdam to Paris.
Belgian Prime Minister Charles Michel called for a meeting with ministers from Germany, France and the Netherlands. “The Schengen Agreement is important for our economy and our citizens, but we are now faced with new threats in Europe and so we’ll maybe have to move towards new rules in identity and baggage checks,” Michel said.
However, imposing border restrictions would violate the core of the 26-country Schengen free-movement regime. European Commission spokesperson Christian Wigand said at a press conference that “freedom of movement is a fundamental European right – this is non-negotiable.” Under the Schengen agreement, member states may institute police checks as long as they do not amount to systematic border controls, he added.
BAL Analysis: Travelers in the Schengen area should expect the possibility of heightened security or stricter rules in the future.