This chapter focuses on the most recent developments whereby all aspects of visa policy are adopted following Community decision-making rules. The first ‘communitarized’ elements are the list of countries whose nationals are submitted to visa requirements and those who are exempted, and a uniform visa format, and the procedures and conditions for issuing visas by Schengen signatory states regulated by the Community Code on Visas1 (later referred to as the Visa Code), an important document given this study’s focus on visa granting in consulates. EU visa policy is characterized by competing objectives: reducing and authorizing discretion. The ambiguous character of laws is often underlined, especially in the EU context which requires interstate and inter-institutional compromise. Visa policy policy-making serves a seemingly paradoxical purpose: trying to reduce national discretion while leaving Schengen States room to maneuver. Consequently, one cannot expect convergence through the definition of common rules given their ambiguity. Regulations are also broadly worded. In effect, the Visa Code defines what is the examination of applications but fails to specify its actual enforcement. How to assess the authenticity of documents? What are reasonable doubts? What is reliable information? Does each Schengen consulate utilize the same criteria? The plurality of the situations encountered on the ground and the need for discretion and adaptiveness are general conditions that impede to detail legislation in a comprehensive manner. But there exist other conditions inherent to the process of construction of EU visa policy that have contributed to the vagueness of the legislation.
This chapter starts with the intergovernmental Schengen process and the ways in which this process overlapped with the achievement of the free movement of persons in the European Union and then continues with the communitarization of Schengen rules and all components of visa policy. EU visa policy regulations are not created from scratch but build on the original Schengen process although they are less precise. Those two sections highlight the emergence of visa policy as a security measure that should compensate the lifting of internal frontiers and identify restrictiveness and discretion as visa policy’s essential characteristics. The communitarization of all components of visa policy paves the way for the elaboration of new regulations that tackle the procedures and conditions for issuing visas by Schengen States. The remaining of the chapter focuses on the new legislative tools regulating the day-to-day implementation of common visa policy, a mix of hard law—the Visa Code—and soft law—operational instructions included in the Handbook for the processing of visa applications and the modification of issued visas and the Handbook for the organization of visa sections and local Schengen cooperation.2 The analysis of the process that has led to the adoption of the Visa Code sheds light on the novelties it includes notably the fact that visa policy implementation in national consulates is transformed into an issue where the images of unified Europe and friendly European border are at stake. The Visa Code’s provisions that regulate the examining and the decision-making on applications show instead the continuity with the original Schengen process. The analysis builds mainly on the texts of legislative documents (the Visa Code, the Handbook, and the Common Consular Instructions) and the minutes of parliamentary debates. However, interviews are crucial to show some of the underlying choices and concerns that, on the one hand, have contributed to the ambiguity and vagueness of the EU law, and on the other hand, have affected the understandings of public policy issues most notably the understanding of the migratory ‘risk.’
The analysis builds on interviews with Birgitte, a key policy officer3 of the Visa Unit of the Directorate General Home Affairs and the Belgian and French civil servants who participate to the European Commission and the European Council working groups (the visa committee and the visa working group). Birgitte is a key informant. She is considered to be an expert of EU visa policy. The director of the Visa Unit suggested I talk to her and the Deputy Director of the European Delegation to the Kingdom of Morocco based in Rabat describes her as a fundamental resource using these terms: ‘if the Commission loses her, it’s fifteen years of experience that we lose.’ I have interviewed the Belgian civil servant twice and met this civil servant during the journée diplomatique agents visa, one-day training for visa agents, held in Brussels.
EU Visa Policy: A Compensatory Measure to Free Movement
The establishment of the Schengen area is the process by which the European Union has achieved the free movement of persons and has strengthened its external borders to enhance security and to control migration. Whereas the free movement of persons is one of the fundamental liberties stated in the 1957 Treaty of Rome, both migration control and internal security were not domains of the competence of the European Economic Community. Neo-functionalist theories of the European Union interpret the widening of supranational policy competence as functional spillover (Haas 1964). According to these theories, Schengen rules including visa policy would be interpreted as a functional spillover of the Single Market Project. The Single European Act4 signed in 1986 provided for the transformation of the common market into a single market on January 1, 1993. The Single Market Project and the consequent abolishment of the interstate borders do not automatically imply the strengthening of external borders to foster security. As we will see below, the Benelux Economic Union is an example where lifting internal borders did not imply restrictive measures and pooling sovereignty did not imply pooling fears about third countries. In fact, a number of scholars have indeed challenged the neo-functionalist hypothesis according to which Schengen is a consequence of the single market. Widening the competences of the European Union has been analyzed as the outcome of a contamination of migration policy with the fight against terrorism and the international crime (Duez 2008; Guiraudon 2011; Rea 1999; Bigo 1992). The liberty/security dialectic has been articulated in a complementary manner: The free movement of persons needs some compensatory measures to be exercised.
Two parallel intergovernmental processes are key to understand the securitization of free movement: the Schengen process and the groups cooperating in response to the Single Market Project.
The Schengen Agreement is the first step toward the debordering (Albert and Brock 1996) and re-bordering of the European Union and the achievement of the free movement of persons: in 1985, in the city of Schengen, the Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Grand Duchy of Luxembourg, and the Kingdom of the Netherlands signed an agreement on free movement. The Schengen Agreement is concluded as a political response to the 1984 strike of customs and a mobilization of road transport workers who blocked border-crossing points to protest against the burdensomeness of checks at the internal borders of the European Community that slowed down the circulation of merchandise. The 1985 Schengen Agreement represented a statement of general intent for the long-term objective of achieving the free movement of goods, persons, and services.
In parallel, the 1986 Single European Act which amends the 1957 Treaty of Rome states the commitment to create a single market in the Community by December 1992 which ‘shall comprise an area without internal frontiers in which the free movement of goods, persons, services, and capital is ensured’ (Article 8a). Under the umbrella of Trevi (Terrorisme, Radicalisme et Violence Internationale), an intergovernmental mechanism established in 1976 at the instigation of the Prime Minister of the UK to convene home affairs ministers for regular public order and internal security discussions, the working groups Trevi 92 and the Ad Hoc Group on Immigration (AHGI) are set up. Trevi broadened its mandate in the view of the creation of the single market. Trevi 92 was tasked with examining the consequences of the removal of internal frontiers controls. As a result, Trevi 92 works on police and security issues involved in free movement of people, compensatory measures to combat relaxing of internal border checks, and supervises the AHGI, set up in 1986, that specializes in visas, asylum, refugees, external borders, and expulsions .
The objective of the intergovernmental Schengen process and the intergovernmental groups cooperating in response to th...