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EU-USA visa row on the cards: many visa-free entrants "stay within the territory of the Schengen area for several years continuously."

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Country/Region

17 October 2016

The long-standing EU-USA row over the US visa-free entry to the EU is soon to come to a head. Last week we reported on the EU-USA JHA Senior Officials meeting 8-9 September 2016 where theEU proposal to "impose temporary visa requirement for US nationals" went down like a lead balloon. At the same time the EU has been trying for years to get the USA to give visa-free entry to five EU Member States.

 

Now the latest Council view on the Commission's proposals for planned Regulations on the Entry-Exit System and Touring Visa: Duration of short-stay in the Schengen area - Extension of that duration under bilateral agreements concluded by Member States with third countries - Draft regulations on Entry/Exit system and Touring visa (LIMITE doc no: 12114-16, pdf) notes that:

"The current situation has created ground for different interpretations ... The vast majority of Member States interpret it to the effect that bilateral agreements that had been agreed before accession to Schengen, allow the third country nationals concerned to stay within the territory of the Schengen area beyond the period of 90 days in one 180 day period. Such interpretation makes it possible to merge the several short-term stays of the third country nationals on the basis of those bilateral agreements and to stay within the territory of the Schengen area for several years continuously." [emphasis added]

It is widely recognised that people entering the EU from the so-called "White List (visa-free) of countries often overstay - for years or for ever. Some Commission estimates suggest that there are as many as 4 million "over-stayers" in the EU.

The Commission takes the view that a common policy on visas-fee entry cannot be based on "the existence of bilateral agreements [with the USA] from the past and:

"The same rules should apply to all visa-free third-country nationals."

Under the new EES all entries and exits will be entered in the system and:

"Given the automatic nature of the EES, the EES would unfoundedly flag these third country nationals as overstayers if they stay longer than 90 days within 180 days..." [emphasis added]

The Council Presidency is also of the opinion the short-term stay within the territory of the Schengen area is defined as up to 90 days and becomes a long-term stay beyond 90 days (covered by national visas, residence permits, etc) both for the nationals of third countries subject to the visa requirement and for those who are exempt from that requirement.

The draft text attached says that the right of a visa-free visitor to stay beyond 90-days is permissible but "in exceptional circumstances".

A further problem for all visa-free visitors (and tourists) is that where a stay is extended:

"The alien shall exit at the external borders of that Contracting party"

except where another Member State agrees to afford transit in advance. Many enter through one Member State and exit through another.

See also: Fingerprinting for all? Inclusion of all travellers in new border database to be discussed by 'High Level Expert Group' (Statewatch)