On 14 March,
the European Commission has released the proposal for a Regulation of the
European Parliament and of the Council amending Regulation(EC) No 810/2009
establishing a Community Code on Visas (Visa Code).

I Main
amendments proposed

Member State
competent for examining and deciding on an application

When the
envisaged trip covers more than one destination, or several unconnected trips
are planned within a period of two months, the length of stay will be the sole
criterion for determining the Member State competent for examining an
application.

Decision on the
application-timeline

The
deadline for lodging an application will be set to six months and no later than
15 calendar days before the start of the intended visit.

Providing
that the application is admissible, it shall be decided on within 10 calendar
days of the date of the lodging (instead of the current delay of 15 calendar
days). That period may be extended up to a maximum of 45 days when further
scrutiny is required (instead of the current delay of 30 calendar days).

The delay
given to authorities of other Member States to reply after being consulted, is
maintained to maximum seven calendar days, however, such delay is not any more
a ground for extension of the deadline to decide on the application (i.e. 10
calendar days). In short, the concept of “further scrutiny” does not cover prior
consultation of authorities of other Member States.

Lastly, the
possibility to extend the delay up to a maximum of 60 calendar days (when
additional documentation is needed), is ruled out.

Visa fee

The visa
fee will be increased from EUR 60 to EUR 80 and for minors (6-12 years of age)
will be increased by EUR 5 to EUR 40.

Researchers
from third countries, as defined in Council Directive 2005/71/EC, participating
in a scientific seminar or conference, are added to the list of applicants
covered by the visa fee waiver.

Travel medical
insurance

Applicants
applying for a multiple entry visa will have to provide proof of travel medical
insurance only for the first intended visit.

Visa validity –
“cascades” visa

Multiple-entry
visas with a long validity will be issued for the following validity periods:

(a) for a
validity period of one year, provided that the applicant has obtained and lawfully
used three visas within the previous two years;

(b) for a
validity period of two years provided that the applicant has obtained and
lawfully used a previous multiple-entry visa valid for one year;

(c) for a
validity period of five years, provided that the applicant has obtained and lawfully
used a previous multiple-entry visa valid for two years:

Visas applied for
at the external border under a specific scheme

Will be
issued with a validity of maximum seven days, exclusively in order to promote short term tourism.

Refusal of a visa

The right
to appeal shall, at a certain stage of the proceedings, guarantee an effective
judicial appeal.

Ii Can I make
sure that the visa will be granted?

Key provisions

Lodging an application, it is
important not to disregard the following provisions:

·        
Article
14, provides for the supporting documents to be submitted when applying for a
uniform visa.

·        
Article
21.7 provides for an examination of an application based on the authenticity
and reliability of the documents submitted, on the veracity, and reliability of
the statements made by the applicant, and if there are reasonable doubts, Article
32.1(b) provides for the obligation to refuse the visa.

·        
Article
21.8 will be amended to allow use of modern means of communication to interview
applicants, rather than personal appearance at the consulate.

Eligibility for “cascades”
visa

Visa
cascades does not represent a standard long-validity multiple entry visa but a “one-size-fits-all” scheme with the possibility
of adapting the cascade to specific countries. The scheme proposed combines a
minimum standard applicable to all third countries with the possibility of more
favourable solutions for specific third countries, adapted to local
circumstances and migratory risk.

It can be
thus alleged that the eligibility for such visas is mainly related to the
country of origin rather than to the applicant’s circumstances.

The
proposal maintains the classic multiple entry visa valid up to five years, may
be issued on grounds of personal circumstances, to applicants who prove the
need or justify their intention to travel frequently and/or regularly.

In any
circumstances, the criteria of lawfully using previous visas
must be upheld. In context, a interoperability will be established between the
VIS (Visa Information System) and the EES (Entry/exit System) by way of an
automatic communication channel between their Central Systems. Such communication
will enable the border check authorities using the EES to consult the VIS in
order to retrieve visa-related data, to create or update the entry/exit record
or refusal of entry record, to enable the border check authorities to verify
the validity of the visa and the identity of a visa holder by means of
fingerprints automatically against the VIS.

It must be
noted that where the EES’ usual data retention period will be three years
following the date of the exit/refusal of entry, overstay records, will be
stored for a period of five years following the date of expiry of the period of
authorised stay.

Is there a right to
a visa?

It must be distinguished
between the right to an effective judicial appeal (currently provided by the
national legislation of most of the Member States) and the right to a visa.

The European
Court of Justice ruling in Soufiane El Hassani v Minister Spraw Zagranicznych (C-403/16),
upheld the need for Member States to guarantee an effective judicial appeal and
brought further clarification in regard to the right to a visa.

The ECJ
upheld that “in examining a visa
application the national authorities have a broad discretion as regards the
conditions for applying the grounds of refusal laid down by the Visa Code and
the evaluation of the relevant facts”.

The
following rights are granted to applicants for short stay uniform visas:

·        
Right
to have an application fairly processed, exclusively relying on the grounds
provided by the Visa Code.

·        
In
case of visa refusal, right to appeal under the procedural rules provided by
the national legislation of each Member State, in accordance with the
principles of equivalence and effectiveness. A judicial appeal must be granted.

Business activity
concept

A comprehensive
analysis of immigration and tax issues related to business trips in 17 Schengen
countries was recently published by the International Journal of Business
Administration (authors: Marco Mazzeschi1, 2 & Clayton E. Cartwright Jr).

http://www.sciedupress.com/journal/index.php/ijba/article/view/13031/8072