CM(2004)224 revised 17 March 2005
920 Meeting, 23 March 2005
10 Legal questions
10.1 European Committee on Legal Co-operation (CDCJ) – Completion of terms of reference on the freedom of movement between the Council of Europe member States
Report on “Good Pracitces relating to the movement of persons between the Council of Europe member states”
The present report was prepared by the CDCJ in accordance with Decision No. CM/863/05052004 of the Committee of Ministers of 5 May 2004 to “draw up a list of existing good practices relating to the movement of persons between the Council of Europe member states” taking into account the Parliamentary Assembly's Recommendation 1648 (2004). The Report analyses multilateral, bilateral and unilateral measures taken by the member states to facilitate the freedom of movement of their nationals between the Council of Europe member states for the purpose of short term stays.
The Report deals with three blocks of issues: (1) abolition of short-stay visas, (2) simplification of visa procedures and (3) simplification of procedures governing border crossing and short term stay with special attention being paid to measures facilitating freedom of movement between the member states implementing the Schengen Acquis and the other Council of Europe member states.
1. As to the abolition of short-stay visas, the Report takes note of the:
- unilateral waivers of visa introduced by certain member states with respect to the nationals of certain other Council of Europe member states, in particular, in the framework of “asymmetrical” agreements providing for the abolition of visa requirements with respect to the nationals of one contracting state and simplifying visa procedures with respect to the nationals of the other contracting state;
- wide practice of the Council of Europe member states of exempting from visa requirement the holders of diplomatic and other official passports of certain other member states;
- quasi general exemption of the nationals of member states from transit visa requirement in the case of airport transit.
2. As to the simplification of visa procedures, the Report takes note of:
- recent bilateral co-operation agreements between the Schengen and non-Schengen member states providing for facilitated visa procedures for certain categories of travellers, such as the issue of multiple entry visas valid for one year or more, reduced time limits for processing visa applications and waiver or reduction of visa fees;
- reduction of time limits for processing visa applications in certain urgent situations;
- complete waiver or reduction of visa fees for specific categories of visa applicants, such as children, and in certain situations such as humanitarian emergencies;
- measures aimed at reducing the administrative burden on visa applicants concerning supporting documents, in particular with regard to persons considered to be acting in good faith (bona fide);
- measures simplifying visa application procedures such as application by post or visa issuance at the border in special circumstances such as humanitarian or professional emergencies;
- measures aiming at increasing transparency and informing the visa applicants;
- authorities' duty to provide reasons for visa refusal and possibilities for appeal against visa refusal.
3. As to the simplification of procedures governing border crossing and short term stay, the Report takes note of:
- provisions limiting the administrative burden on travellers regarding the supporting documents to be presented during border crossing;
- practices concerning registration of foreigners, including abolition of this requirement and its limitation to certain situations only;
- provisions authorising extension of visa during the stay in the country visited;
- quasi general practice of the member states facilitating expedient departure and return to the home country in the case of loss or theft of passport and visa.
TABLE OF CONTENTS
I. Introduction 4
Background of the report 4
Scope of the report 4
II. “Good Practices” in abolition of visas 5
2.1. Introduction 5
2.2. European Agreement on Regulations governing the Movement of Persons between Member States of the Council of Europe (ETS No. 025) of 1957 5
2.3. European Union 6
2.4. European Economic Area (EEA) Agreement 6
2.5. Schengen system 7
2.5.1. Objectives 7
2.5.2. Participating states 7
2.5.3. Nationals of third countries 7
2.5.4. Schengen visa. 8
2.6. Reciprocal visa abolition practices 8
2.7. Unilateral visa waivers (without reciprocity) 10
2.8. Visa exemptions with regard to specific categories of persons 11
2.8.1. Holders of diplomatic and other official passports 11
2.8.2. School pupils 11
2.9. Exemption from certain types of visa 11
2.9.1. Airport transit visa 11
2.9.2. Transit visa 11
III. Simplification of visa procedures 12
3.1. Introduction 12
3.2. Recent bilateral agreements 12
3.2.1. Visa procedure simplification agreements concluded by the Russian Federation 12
3.2.2. Visa procedure simplification agreements between Lithuania, Poland and the Russian Federation concerning, in particular, Kaliningrad 13
3.2.3. Agreements on abolition of visas and simplification of visa procedures concluded by Ukraine 13
3.3. Conditions for obtaining a visa 13
3.3.1. General requirements 13
3.3.2. Supporting documents 14
3.4. Time limits for processing visa applications 16
3.5. Methods for applying for and obtaining a visa 16
3.6. Visa fees 17
3.7. Specific categories of travellers 17
3.7.1. Researchers 18
3.7.2. Residents of border areas 18
3.8. Refusal of visa 19
3.8.1. Provision of reasons for refusal 19
3.8.2. Appeal against refusal 19
IV. Procedures governing border crossing and short term stay 19
4.1. Refusal of entry and documents required at the border 19
4.2. Additional documents 20
4.3. Registration 20
4.4. Procedures in the case of expiry of visas and/or loss of documents 21
V. Conclusions 21
5.1. General considerations 21
5.2. Abolition of short-stay visas 21
5.3. Simplification of visa procedures 22
5.4. Procedures governing border crossings and short term stay in the country of destination 23
Background of the report
1. This report was prepared by the CDCJ in accordance with the ad hoc Terms of Reference given to the CDCJ by the Committee of Ministers at the 883rd meeting of the Ministers' Deputies on 5 May 2004 (Decision No. CM/863/05052004) to “draw up a list of existing good practices relating to the movement of persons between the Council of Europe member states”. To fulfil these Terms of Reference, the CDCJ established the Working Party1 CDCJ-GT-MOV and commissioned the Consultant – the Swiss Institute of Comparative Law – to prepare a comparative Study on the “Member states' practice with regard to visas”2, which served as a basis for the deliberations of the Working Party.
2. The preparation of the report took place in parallel with the drafting of the CDCJ's Opinion on Parliamentary Assembly Recommendation 1648 (2004) on the “Consequences of European Union enlargement for freedom of movement between Council of Europe member states”, also requested by the Committee of Ministers in its above-mentioned decision.
3. The CDCJ-GT-MOV held two meetings, on 27-28 September and on 4-5 November 2004. The report was approved by the CDCJ-Bureau at its meeting on 22-23 November 2004, after written consultation with all the CDCJ delegations.
Scope of the report
4. The report focuses on procedures governing entry and short term stay of Council of Europe member states' nationals in other Council of Europe member states, in particular:
- requirement of prior authorisation – visa;
- procedures and formalities concerning application for and obtaining of visas;
- procedures governing border crossing and certain procedures affecting short term stay and movement in the country of destination.
5. The report will accordingly not deal with issues such as the right to residence, access to employment and social rights that also have a significant impact on the freedom of movement.
6. The CDCJ noted that the primary concern of Parliamentary Assembly Recommendation 1648 (2004), which was to be taken into account in the drafting of the report according to the above-mentioned terms of reference, is the consequences of the geographical extension of the “Schengen Area” to the new member states of the European Union. It points, in particular, to the effects of this extension on those Council of Europe member states that are not members of the EU or candidates for accession. For this reason, the report places particular emphasis on measures improving or simplifying movement of persons between the EU member states implementing the Schengen Acquis and other Council of Europe member states.
7. It should also be mentioned that the report will not deal with travel facilities granted by various Council of Europe member states with regard to the following specific categories of persons: refugees, civilian air and sea crew members, the holders of laissez-passer issued by international organisations or military servicemen. The policies of Council of Europe member states regarding travel of such persons are governed by specific international treaties, too numerous and technical to analyse in this report. Nevertheless, the separate country files in the above-mentioned comparative Study prepared by the consultant do also provide certain details on arrangements concerning such categories of travellers.
8. On the other hand, the report will tackle as far as possible the specific legal regimes applied to several other categories of persons such as holders of diplomatic and other official passports, residents of border areas, private and business visitors. More details on the specific regulations applied to these different categories of persons can also be found in the Study prepared by the consultant.
9. The present report is not an exhaustive overview of the existing practices on the freedom of movement. The specific country examples, cited in the report, are based on information provided in the Study prepared by the consultant and contributions by certain member states' delegations. The report may therefore have overlooked certain member states' practices because of lack of information. It may also not have listed all countries applying a certain practice mentioned in the report.
II. “Good Practices” in abolition of visas
1. This Chapter will provide an overview of multilateral, regional, bilateral and unilateral measures of the Council of Europe member states that provide for abolition of visas.
2. As far as multilateral cooperation is concerned, it will briefly describe the Council of Europe 1957 Agreement, the European Union (EU), the European Economic Area (EEA) Agreement as well as the Schengen system.
3. Concerning bilateral agreements on abolition of visas, it should be remembered that the EU, the EEA and Schengen rules have replaced the previously existing bilateral arrangements between their respective countries because these rules introduce between them a free movement area and harmonise their visa policies vis-à-vis third countries. On the other hand, bilateral agreements on abolition of visas continue to play an important role outside the EU, the EEA and the Schengen system.
4. Finally, this chapter will describe the rather numerous unilateral visa waivers sometimes practised without any reciprocity by several Council of Europe member states that are not EU member states.
2.2. European Agreement on Regulations governing the Movement of Persons between Member States of the Council of Europe (ETS No. 025) of 1957
5. The 1957 European Agreement was opened for signature by Council of Europe member states on 13 December 1957 and came into force on 1 January 1958. To date, fifteen member states have ratified the Agreement3.
6. The aim of the Agreement is to enable the nationals of States Party to enter and stay in the territory of another Party for up to 3 months on simple presentation of one of the documents listed in the appendix to the Agreement.
7. The implementation of the Agreement faces several difficulties, such as the following:
- Of the fifteen States party to the Agreement, fourteen are subject to more recent regulations governing the free movement of persons effectively superseding the Agreement. Twelve States party to the Agreement4 are members of the European Union and are bound by EU regulations governing free movement of persons between the EU member states. Two other countries5 have concluded agreements with the EU member states under which visa requirements have been mutually abolished.
- The proliferation of travel and identity documents, the less common of which are not included in the Appendix to the Agreement, and the reluctance of some States party to accept, in a multilateral context, the identity cards issued by the other States Party as valid travel documents, owing, inter alia, to the lack of guarantees against forgeries and to the impossibility of stamping these cards on entry and exit.
-The frequent use by States party of Article 7 of the Agreement, under which each State party may, on grounds relating to public order, security or public health, delay the entry into force of the Agreement or order the temporary suspension thereof in respect of all or some of the other States party. The twelve States party to the Agreement, which are members of the European Union, are under the obligation, according to the EU's common visa policy, to require visas from the nationals of Turkey, the fifteenth current State party to the Agreement. Thus, the majority of States party6 to the Agreement have suspended its application in respect of Turkey and have restored visas for Turkish nationals.
8. Accordingly, the 1957 Agreement is no longer being practically applied by its present States party. The present practice of suspending or delaying its application is not likely to encourage other states to ratify the Agreement in its present state. At the same time, nothing prevents new member states from joining the Agreement. The reaction by some States party to the signature of Ukraine7 shows the legal difficulties that the Agreement presents in the current conditions.
2.3. European Union
9. The European Union Acquis concerning free movement of EU citizens and their family members currently consists of the provisions of the Treaty establishing the European Community8, two Regulations9 and one Directive10, adopted on 29 April 2004, which will replace the existing 9 sectoral directives dealing with specific categories of people (workers, the self-employed, people not working, pensioners and students etc.).
10. All European Union citizens have the right to enter another member state by virtue of having a valid identity card or passport. Under no circumstances can an entry or exit visa be required. For stays of less than three months, the only requirement for European Union citizens is that they possess an identity document. Family members who do not have the nationality of an EU member state enjoy the same rights as the citizen who they accompany. They may, however, be subject to a sho rt - stay visa requirement under Schengen rules (see further point 2.5.3).
2.4. European Economic Area (EEA) Agreement
11. The Agreement creating the European Economic Area (EEA) was concluded in 1992 by the European Community and seven member countries of the European Free Trade Association (EFTA). Subsequently, one of the EFTA countries (Switzerland11) decided, after a referendum, not to participate and three others (Sweden, Austria and Finland) joined the European Union. The EEA agreement accordingly applies at present to three non-EU countries - Norway, Iceland and Liechtenstein. The Agreement is concerned principally with "four freedoms” of the European Community, including freedom of movement of persons, where the contracting states accept the Community “Acquis”. Accordingly, the free movement of persons between the European Union states extends also to Norway, Iceland and Liechtenstein, parties to the EEA agreement. Norway and Iceland are in addition parties to the Schengen Convention (see further point 2.5.2.)
2.5. Schengen system
12. The first Schengen agreement on the gradual removal of controls at common borders was concluded on 14 June 1985 by France, Germany and the Benelux countries. On 19 June 1990 the same states concluded the Convention implementing the Schengen Agreement.12 In view of the possible security deficit resulting from the abolition of border controls, this convention, which came into force on 26 March 1995, introduced compensatory measures with regard to asylum and co-operation between police, judicial and customs authorities. These agreements and their subsequently adopted implementation measures constitute what is commonly referred to as “Schengen Acquis”.
13. The Schengen system is aimed at establishing free movement of persons within a multinational territory (the Schengen area) through abolition of controls at internal borders. It is not, in principle, compulsory for EU citizens and the nationals of third countries to present an identity document when crossing internal borders. The public order and security concerns arising from this are addressed by two sets of measures: the first consists of harmonising visa policies vis-à-vis the non-EU countries and reinforcing external border control, intended to prevent individuals who represent a threat to public order or security from entering the Schengen area; the second concerns police and security cooperation, designed to enhance national criminal justice systems' ability to operate between states within the borderless Schengen area so as to improve their ability to deal with all forms of transactional and international crime. The Schengen Information System (SIS) has been created to allow the competent national authorities to access data on individuals who are not entitled to enter the Schengen area.
2.5.2. Participating states
14. The Schengen area was progressively extended to include almost every one of the former 15 EU Member States except Ireland and the United Kingdom, that are not bound by the Schengen Acquis but can at any time request to take part in all or some of the provisions of this Acquis. The United Kingdom exercised this option twice and is bound by the EU regulations concerning technical specifications for uniform visas. Denmark is not automatically bound by the measures adopted pursuant to Title IV “Visas, Asylum, Immigration and other Policies related to Free Movement of Persons” of the Treaty establishing the European Community. These provisions do not constitute supranational law for Denmark but rather public international law. Denmark participates in the measures determining the third countries whose nationals must be in possession of a visa and measures relating to a uniform format for visas.
15. Norway and Iceland are fully fledged members of the Schengen system according to an association agreement concluded on 18 May 1999. Switzerland has just signed an association agreement on 26 October 2004 but its ratification is subject to optional referendum in Switzerland.
16. Finally, the 10 new member States that joined the EU on 1 May 200413 are bound to implement the Schengen Acquis in its entirety in two stages. As from the moment of accession, these countries are bound to fully apply the Schengen rules concerning the visa policy vis-à-vis the third countries while the abolition of controls on internal borders and a complete implementation of the Schengen Acquis is expected to take place in 2006-2007. The visa policies of these countries accordingly have to follow Schengen rules even if their visas, during the transitional period, will only be valid for the country concerned.
2.5.3. Nationals of third countries
17. The EU Council has adopted a Regulation14 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.
18. According to this Regulation as later amended, the Council of Europe member states whose nationals do not need a visa are: Andorra, Bulgaria, Croatia, Monaco, Romania, and San Marino. These countries have accordingly waived visa requirements, either by reciprocal national decisions or agreements, with regard to the nationals of EU member states.
19. The Council of Europe member states whose nationals require visas are: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Moldova, the Russian Federation, Serbia and Montenegro, “the former Yugoslav Republic of Macedonia”, Turkey and Ukraine. Some of these countries nevertheless maintain unilateral visa exemptions with respect to the nationals of some EU countries (see further point 2.7.).
20. Consequently, there is very limited room for manoeuvre for the Schengen states to conclude or maintain separate agreements on abolition of visas. According to Regulation No. 539/2001, the Schengen states may generally exempt from visa requirement only the following categories of persons:
- holders of diplomatic passports, official-duty passports and other official passports15;
- civilian air and sea crew,
- the flight crew and attendants on emergency or rescue flights and other helpers in the event of disaster or accident;
- the civilian crew of ships navigating in international waters;
- the holders of laissez-passer issued by some intergovernmental international organisations to their officials;
- school pupils having the nationality of a third country requiring a Schengen visa who reside in a third country exempted from visa obligations and are travelling in the context of a school excursion as a member of a group of school pupils accompanied by a teacher from the school in question.
2.5.4. Schengen visa.
21. The Schengen system only concerns short-stay visas, ie visas for stays lasting no more than three months.16 There is now a uniform format for these visas.17 Schengen visas give nationals of third countries the right to enter and move freely in the Schengen area.
22. Even though the Schengen visa is not yet valid for travel to the 10 new EU member states (just as visas issued by these countries are not yet Schengen visas), several of the new EU member states exempt holders of Schengen visas of certain nationalities from transit visa requirements in accordance with their bilateral agreements (see further point 2.9.2.).
2.6. Reciprocal visa abolition practices
23. The visa policy of the EU member states (except of the United Kingdom and Ireland) and other Schengen states (Iceland and Norway) towards the third countries is based on EU Regulation 539/2001. As a consequence of this harmonised policy, several of the 10 countries that acceded to the EU on 1 May 2004 had to cease18 their previous (reciprocal) visa exemption regimes with certain non-EU countries in accordance with Regulation 539/2001.
24. The EU candidate countries on the EU's list of “third countries whose nationals are exempt from the requirement to be in possession of visas when crossing the external borders” (Bulgaria, Croatia and Romania) are in the process of adapting their legislation in visa matters to Schengen rules. At present they still maintain visa exemption regimes with certain countries on the EU's list of “third countries whose nationals must be in possession of visas when crossing the external borders”.
25. Thus, Croatia exempts from visa obligations the nationals of “the former Yugoslav Republic of Macedonia”, Turkey, the Russian Federation (in the case of holding a certified business/ private letter of invitation or proof of holiday-booking), Bosnia and Herzegovina and Serbia and Montenegro (on a temporary basis until 31 December 2005).
26. Romania has a visa abolition agreement in force with Moldova.
27. Bulgaria has visa abolition agreements in force with “the former Yugoslav Republic of Macedonia” and Serbia and Montenegro.
28. With regard to the two EU countries not part of the Schengen area – the United Kingdom and Ireland - the United Kingdom requires visas from the nationals of Bulgaria, Croatia and Romania - countries on the EU's “visa exemption” list. Ireland requires visas from the nationals of Bulgaria and Romania.
29. The Agreement on free movement of persons between Switzerland and the European Community and the EFTA Convention mutually exempt from visa requirement the nationals of Switzerland and of the 15 former EU member states as well as the nationals of Iceland, Norway and Liechtenstein. A protocol on the extension of this Agreement to the 10 new EU member states has just been signed on 26 October 2004. At present, Switzerland has bilateral agreements on abolition of short-stay visas with the 10 new EU member states as well as with the countries on the EU's “visa exemption” list.
30. Lichtenstein is a party to the EEA agreement and in customs union with Switzerland whose rules it follows in short-stay visa matters.
31. The territory of San Marino is only accessible from Italy since San Marino has neither sea ports nor airports. Foreigners who are not allowed into Italy accordingly cannot enter San Marino. There is no border control between the two countries and a (Schengen) visa delivered for Italy is also valid for San Marino.
32. A similar situation can be observed in another Council of Europe member State in a similar geographical situation – Andorra, situated between France and Spain. Foreign nationals arriving in Andorra as tourists for a period not exceeding 90 days do not, in principle, require a visa under Andorran law. However, according to a convention between the three above-mentioned states, third country nationals must possess a valid travel document and, if necessary, visas for France and Spain (Schengen visas) to enter Andorra.
33. As to Monaco, it also does not issue its own visas - any person wishing to enter its territory for a stay not exceeding three months must possess the document required for entering France (i.e. Schengen visa where applicable).
34. Accordingly, one can speak of a visa-free travel area between the above-mentioned 35 Council of Europe member states (except the special position of the United Kingdom and Ireland vis-à-vis certain countries on the EU's “visa exemption” list) and of a harmonised external visa policy of these states subjecting the nationals of the remaining 11 Council of Europe member states to visa requirements (with the above-mentioned (temporary) exceptions in the case of Bulgaria, Croatia and Romania).
35. As far as the remaining 11 Council of Europe member states are concerned, the 6 Council of Europe member states that participate in the “Commonwealth of Independent States - CIS” cooperation - Armenia, Azerbaijan, Georgia, Moldova, the Russian Federation and Ukraine19 - have established among themselves a comprehensive network of multilateral and bilateral reciprocal visa abolition agreements (except between Georgia - Russian Federation).
36. Another example of visa abolition arrangements on a regional basis is the co-operation between the 3 countries of the Balkan region - Bosnia and Herzegovina, “the former Yugoslav Republic of Macedonia” and Serbia and Montenegro. Moreover, Serbia and Montenegro also admits nationals of Bosnia and Herzegovina and of “the former Yugoslav Republic of Macedonia” into Montenegro on the sole basis of identity cards. These three Council of Europe countries have also introduced several unilateral visa exemptions vis-à-vis the nationals of other Council of Europe member states without reciprocity.
37. The remaining 2 Council of Europe countries are Albania and Turkey. The nationals of both countries require visas to enter the Schengen area under the EU regulations. Both Turkey and Albania have also introduced unilateral visa exemptions with regard to several Council of Europe member states without reciprocity.
38. There are, in addition, several other bilateral agreements on abolition of short-stay visas in force between certain of these 11 Council of Europe member states referred to above20.
2.7. Unilateral visa waivers (without reciprocity)
39. In addition to the reciprocal abolition of visas described in the previous item, several non-EU Council of Europe member states maintain unilateral visa waivers without reciprocity with respect to the nationals of certain other Council of Europe member states.
40. Serbia and Montenegro has waived visa requirements for the nationals of all the 25 EU member states (Slovenian nationals are admitted to Montenegro also with identity cards), Norway, Iceland, Liechtenstein, Switzerland, Andorra, San Marino, Monaco and Bulgaria.
41. Bosnia and Herzegovina has waived visa requirements for the nationals of the former 15 EU member states, Norway and Iceland, Liechtenstein, Andorra, Switzerland, Croatia, Malta and Slovenia.
42. “The former Yugoslav Republic of Macedonia” has waived visa requirements for the nationals of the former 15 EU member states, Norway, Iceland, Switzerland, Liechtenstein, San Marino, Cyprus, Malta and Bulgaria.
43. Turkey has waived visa requirement for the nationals of the following EU member states: Denmark, Finland, France, Germany, Greece, Luxembourg and Sweden, as well as of Iceland, Liechtenstein, Switzerland, San Marino and Bulgaria.
44. Albania has waived visa requirements for the nationals of the 15 former EU member states, Norway, Switzerland, Hungary, the Czech Republic, Slovakia, Bulgaria and Romania.
45. Armenia has waived visa requirements for the nationals of Serbia and Montenegro.
46. Azerbaijan has waived visa requirements for the nationals of Hungary.
47. Ukraine has waived visa requirements for the nationals of Bosnia and Herzegovina, Hungary, Lithuania, “the former Yugoslav Republic of Macedonia”, Poland, Slovakia, Serbia and Montenegro and Slovenia. Some of these unilateral visa waivers by Ukraine are based on “asymmetrical” bilateral agreements providing for visa abolition with respect to the nationals of the other contracting state and for facilitated visa procedures for Ukrainian nationals (see further point 3.2.3.).
2.8. Visa exemptions with regard to specific categories of persons
2.8.1. Holders of diplomatic and other official passports
48. Holders of diplomatic and other official passports are one of the categories of persons that Schengen states may exempt from visa requirements under the EU Regulation No. 539/2001 subject to prior consultation21. Certain of the present “full” members of the Schengen system have introduced such visa waivers with respect to the holders of diplomatic and other official passports of Albania, Bosnia and Herzegovina, “the former Yugoslav Republic of Macedonia”, Serbia and Montenegro and Turkey. Certain of the new EU member states apply such waivers also with respect to holders of diplomatic and other official passports of other EU's “visa list” states.
49. The other Council of Europe member states also practice exemption from visa requirements for the holders of diplomatic and other official passports of at least one nationality. Moldova, for example, exempts from visa requirements holders of diplomatic passports of the 15 former EU member states, Cyprus, Switzerland, Liechtenstein, Lithuania and Bulgaria.
50. Finally, certain countries operate facilitated visa issuance procedures with regard to holders of diplomatic and other official passports travelling on official business.
2.8.2. School pupils
51. School pupils are another category of persons for whom Schengen, as well as Romanian, rules allow exemption from visa obligations in the case of an organised trip if they study in a third country whose nationals do not require a visa. The Schengen countries applying this visa exemption are, for example, Belgium, Germany, Luxembourg and Sweden. They apply it, however, in slightly different circumstances than those prescribed in the EU regulation. In fact, their exemptions concern school pupils, normally requiring visas, who reside in one of the EU Member States (EEA states in the case of Sweden). Switzerland exempts Turkish school pupils studying in Germany who participate in visits organised by their schools from visa requirements.
2.9. Exemption from certain types of visa
2.9.1. Airport transit visa
52. An airport transit visa is a visa enabling nationals of third countries to pass through the international transit zone of an airport without entering the national territory of the country, during a stopover or transfer from one international flight segment to another.
53. There is an almost generally recognised principle of visa-free transit in the international transit zones of airports. Thus, only a few Council of Europe member states subject the nationals of certain other Council of Europe member states to the requirement to obtain prior airport transit visas. The countries that impose airport transit visas are: Cyprus, Switzerland and Germany with respect to Turkish nationals; France with respect to Albanian nationals; Poland with respect to nationals of Armenia and Azerbaijan; and the United Kingdom with respect to nationals of Albania, “the former Yugoslav Republic of Macedonia”, Moldova, Serbia and Montenegro and Turkey.
2.9.2. Transit visa
54. Several Council of Europe member states exempt the nationals of certain other member states from transit visa requirements.
55. Serbia and Montenegro, for example, exempts from transit visa requirements the nationals of Albania, the Russian Federation, Turkey and Ukraine if they hold a residence permit of an EU or Schengen state or of Switzerland.
56. Poland exempts from transit visa requirement the nationals of the Russian Federation and Ukraine22 if they hold a Schengen visa or a visa for the Czech Republic (or a visa for Slovakia in the case of Russian nationals), with the maximum duration of transit being 5 days.
57. Lithuania23 and Hungary24 exempt from transit visa requirements the nationals of Ukraine who hold a residence permit issued by a Schengen country or a Schengen visa (valid for at least three days after crossing the border in the case of Lithuania), with the maximum duration of transit being 2 days in Lithuania and 5 days in Hungary.
58. The United Kingdom requires transit visas (also in the case of airport transit – see above) only from the nationals of the following Council of Europe member states – Albania, “the former Yugoslav Republic of Macedonia”, Moldova, Serbia and Montenegro and Turkey. Accordingly, the nationals of several Council of Europe countries who would require transit visas under the Schengen rules can transit through the United Kingdom without transit visas.
59. In Ireland transit visas are required from the nationals of Albania, Bulgaria, Moldova, Romania and Serbia and Montenegro.
III. Simplification of visa procedures
1. Simplification of visa application and issuance procedures can be an effective means to facilitate the freedom of movement.
2. This chapter will, firstly, describe the recent bilateral agreements providing for simplification of visa procedures concluded by the Council of Europe member states, in particular those agreements that represent examples of co-operation between the EU member states bound by the Schengen Acquis and the non-EU countries.
3. Secondly, this chapter will outline general requirements and conditions for obtaining visas and indicate various simplifications that can be considered as “good practices” for the purposes of this report.
3.2. Recent bilateral agreements
3.2.1. Visa procedure simplification agreements concluded by the Russian Federation
4. The Russian Federation has recently concluded bilateral agreements on mutual simplification of visa and travel procedures with three Schengen states - France25, Germany26 and Italy27. These agreements apply to several categories of travellers, such as researchers, teachers, students, participants in youth exchange activities, artists, businessmen, officials etc. Visas for these categories of persons are to be issued on the basis of simple invitation from the host institution without the need for a certified invitation (“accommodation certificate” - see further point 3.3.2.). Visa applications from persons covered by the agreements are to be processed within fixed time limits, such as 3 days in urgent cases and five days for students. Visa fees are mutually reduced or completely waived. Moreover, these agreements foresee the abolition of “exit visas” or equivalent authorisations normally required in the case of loss or theft of passport and visa. These agreements also extend the range of situations qualifying for issue of multiple entry visas.
3.2.2. Visa procedure simplification agreements between Lithuania, Poland and the Russian Federation concerning, in particular, Kaliningrad
5. Another recent example of reciprocal co-operation on simplification of visa procedures are the agreements concluded by the Russian Federation with Lithuania28 and Poland.29
6. These agreements provide for simplified travel procedures to and from the Kaliningrad region. They provide for simplifications such as issue of multiple entry and free of charge visas valid for up to one year without presentation of supporting documents for the Russian nationals residing on a permanent basis in the Kaliningrad region.
7. For other categories of travellers, free of charge multiple entry visas valid for one year can be issued without presentation of invitations to drivers working in international cargo traffic, disabled persons, persons over 60 years of age (under 16 and above 70 years of age in the case of the Russian-Polish agreement), persons visiting graves of their relatives or attending cultural and sports and other important state or regional events. The Polish-Russian agreement additionally applies to persons visiting seriously ill relatives or attending funerals, to railway workers as well as teachers and students participating in academic exchange programmes. The time limits for issuing of visas have also been reduced to a minimum.
3.2.3. Agreements on abolition of visas and simplification of visa procedures concluded by Ukraine
8. The bilateral agreements recently concluded by Ukraine with Lithuania,30 Poland31 and Hungary32 provide for the abolition of Ukrainian visa requirements for, respectively, Lithuanian, Polish and Hungarian nationals, on the one hand, and for facilitated visa procedures for Ukrainian nationals travelling to these countries, on the other hand (see also point 2.7.).
9. According to these agreements, Ukrainian nationals may receive short-stay visas free of charge that are normally issued within 5 days and are valid up to 1 year, or up to 5 years for specific categories of persons such as international cargo drivers, active facilitators of bilateral relations, frequent travellers because of family ties or for visiting family graves, elderly persons and other exceptional cases. These visas are issued to the nationals of Ukraine without presentation of invitation. These agreements also abolish the requirement to obtain “exit” visas or similar authorisations in the case of loss or theft of travel documents.
10. Also the agreement on visas concluded by Ukraine and Romania33 provides for the same simplification facilities on reciprocal basis, but not for the exemption of Romanian nationals from Ukrainian visa obligation.
3.3. Conditions for obtaining a visa
3.3.1. General requirements
11. The Schengen Convention of 1990 and the Common Consular Instructions (CCI)34 of the European Union provide for presentation of the following documents to obtain Schengen visas:
- a travel document which must be valid for at last three months longer than the period of validity of the visa and to which a visa can be attached;
- a standardised and correctly filled in Application Form;
- documents justifying the purpose and conditions of the stay unless the person is considered to be acting in bona fide;35
- documents justifying the place of residence, parental authorisation, documents relating to the social and professional situation of the applicant;
- proof of sufficient means of subsistence for the stay and return.
12. The CCI further provide for a personal interview with the applicant to verify the purpose of the stay except where the person is considered bona fide. To receive visas, the persons must not be persons for whom an alert has been issued in the Schengen Information System for the purposes of refusing entry and he/she must not be considered as presenting a danger for the “ordre public”, national security, public health and international relations of a Schengen state. In evaluating visa applications, countries take account of the purpose of the visit and the risk that an applicant may remain in the country illegally.
13. The regulations of some countries stipulate in more detail what persons and what kinds of behaviour would be considered as presenting a danger to “ordre public”, national security and public health considerations. They include, for example, persons suffering from drug addiction or alcoholism, inhabitants of epidemic regions, unaccompanied persons suffering from serious mental problems, persons who have previously left the country without settling their debts to the state and/or its nationals, expelled persons during the period of validity of the expulsion decision, persons with criminal records, persons involved in prostitution, persons suspected of terrorism and the nationals of countries at war with the state concerned.
3.3.2. Supporting documents
14. Supporting documents required with visa applications depend on the country of destination, the nationality of the applicant and the purpose and duration of the visit. Documents justifying the purpose and the conditions of stay may be invitation letters, documents attesting participation in organised travel, hotel reservation etc. The requirements imposed by countries may be tougher in the case of nationals of countries considered to be of high migratory potential. It has to be taken into account that each visa application is processed individually and the requirements may differ. Some countries, such as Germany, have declared the application of the principle of “proportionality” concerning supporting documents.
15. Many Council of Europe countries make issuance of visas (or entry into the country) subject to proof of adequate means of subsistence.36 This can take the form of cash, credit card, travellers cheques, employment contract, pay slips, bank statements etc. It can be requested both at the time of visa application or at the border crossing (including in the case of non-visa nationals). The holders of diplomatic, official or service passports are normally exempt from the obligation to provide evidence of sufficient means of subsistence.
16. A few countries such as Germany, Bulgaria, the Czech Republic and Slovakia may require a monetary deposit with the consular establishment to cover any possible costs to the state (such as expulsion costs) if those cannot be ensured in another manner. In Romania, a monetary deposit with the Ministry of Interior of Romania is mandatory for Albanian nationals.
17. For private and business visits, several countries require invitations by private persons or business organisations of the host country to be filled in on a standard form and certified by the responsible authority of the host country. Such certified invitations (in some countries referred to as “accommodation certificates”) contain detailed information about the host and the foreign guest. It is validated upon presentation of documents affirming the capability of the host to accommodate the guest and to provide for his/her subsistence needs. The certification authority is normally a state or local authority - local police or migration office or municipality, but it can be also, for example, a “notary” in Slovenia, or the “Chamber of Commerce” in Serbia and Montenegro (for business visits). In most of the countries concerned, the accommodation certificate engages the material responsibility of the inviting person to cover the expenses that the visitor may possibly cause to the state, for example in the case of medical treatment or expulsion.
18. In some countries, such as Poland and Slovakia, it appears that during the certification procedure checks are carried out not only on the host but also on the invitee and certification may be refused on conditions similar to the conditions of visa refusal. On the other hand, for example in the case of Switzerland, it is indicated that certification of the invitation does not confer a right to obtain a visa. Some countries, such as France, provide for the possibility of appeal against the refusal of certification. Some countries have indicated a maximum delay for certification procedure, such as 15 days in Slovakia and 60 days in Romania.
19. In some countries, such as Hungary, the Netherlands, the Czech Republic, Bulgaria and Switzerland, the accommodation certificate and the financial guarantee that it involves can be required as an alternative for other proof of means of subsistence and accommodation.
20. The procedures governing invitation and its certification differ. In certain situations certification of the invitation is not required depending on the purpose of the visit, as the case may often be with business visits, or depending on the nationality of the visa applicant. In Romania, for example, certified invitation must be presented only by nationals from countries considered to have a high migration potential - Armenia, Azerbaijan and Georgia, without obligation for the invited persons to establish financial guarantees. Ukraine issues business visas on the basis of an invitation from a business company lawfully registered in Ukraine accompanied by a copy of the State Registration Certificate issued to that company. Visas permitting entry for the purposes of “service”, “business”, “scientific research”, “cultural and sporting events” or “private” may be issued to citizens of European Union countries, Turkey or Switzerland without presentation of invitation. Slovenia, for example, does not require certified invitations for business visits. In Armenia, no invitation is required for tourist visas valid for 21 days.
21. In Latvia, no invitation is required when the entry of the person is necessary in the interests of the State or for humanitarian reasons. In addition, no invitation is required for the nationals of Albania, Armenia, Azerbaijan, Georgia, Moldova, Turkey, the Russian Federation and Ukraine who are holders of a Schengen visa or Schengen residence permit in order to receive a single entry visa valid up to 30 days if they apply for a visa at the diplomatic or consular representation of Latvia in the Schengen country and if the foreseeable border control point of entry in Latvia is the international airport of Riga.
22. The requirement to present a certified invitation may be abolished through bilateral agreements, as it is the case with the recent visa procedure simplification agreements concluded by the Russian Federation with Germany, France and Italy (see further point 3.2.1.).
23. Some bilateral agreements provide for complete abolition of the invitation requirement such as, for example, the “asymmetrical” agreements concluded by Ukraine (see further point 3.2.3.) as well as the agreement between Ukraine and Bulgaria (concluded through exchange of notes).
24. Many countries may make the issuance of visa and entry into the country subject to presentation of a guarantees of return such as, for example, the return ticket and require a certificate of medical insurance which has, for example, been obligatory in the Schengen Area since June 200437.
3.4. Time limits for processing visa applications
25. The national legislation of several member states and their bilateral agreements may provide for immediate issuance of short-stay visas in the case of visiting a seriously ill close relative, participation in the funeral of a close relative, or medical emergencies. There are also provisions for accelerated short-stay visa processing procedures in the case of official or business visits, participation in international events etc. Several countries emphasize the need to inform the visa applicant of the expected visa application processing times.
26. On the other hand, the maximum time limits for visa application processing, which are stipulated in several countries, may go up to several months. Many Council of Europe member states authorise longer time limits whenever it is necessary to carry out further investigation and some member states indicate extended time limits for nationals of certain countries.
3.5. Methods for applying for and obtaining a visa
27. Visas are normally delivered by the diplomatic and consular missions but certain states also authorise visa delivery at the border. Most of the countries allow for visa applications and issuance by postal procedure or through a representative.
28. As far as the Schengen States38 are concerned, in derogation from the general principle of visa issuance exclusively by diplomatic and consular establishments, a transit visa valid for single entry and for five days as well as a travel visa valid for single entry and 15 days can be issued only in situations where a prior application for visa in the consular establishment has not been possible and where it is justified by unforeseeable and imperative reasons.
29. Several non-Schengen states have rather flexible rules on visa issuance at the border, for example Albania, Armenia (issues tourist visas valid for 21 days at the Yerevan international airport and on border crossings with Georgia and Iran), Georgia (with respect to Russian nationals), Azerbaijan (issues visas at the Baku international airport; nationals of countries with Azerbaijani embassies are however advised to request their visas at the embassy), “the former Yugoslav Republic of Macedonia” (issues visas at the border only to Albanian nationals), Moldova (issues visas in the Chisinau international airport and certain border points to nationals of countries without Moldavian consular establishments). Malta authorises nationals of countries where it does not have diplomatic missions to apply by facsimile to the office of the Immigration Police in Malta, which notifies the applicant by facsimile and authorises him/her to travel to Malta to receive the visa at the border.
30. Some countries allow for visa issuance at the border in exceptional humanitarian (accidents, natural disasters, illness or death of close relatives etc.) or professional circumstances requiring a person's entry into their territory when for valid reasons the person has not been able to request a visa at the consular establishment. This facility is available, for example, in Bulgaria (transit visa and short-stay visa valid up to 10 days), Estonia, Latvia (single entry visa valid up to 15 days), Lithuania (single entry visa, valid up to 15 days and a single transit visa valid up to 5 days also in the case of official visits and to drivers of international cargo vehicles), Poland (single entry visa valid up to 15 days), Slovakia and Romania (single entry visa valid up to 10 days). Apart from the above-mentioned circumstances, the Czech Republic authorises visa issuance at the border also for participants in official events and has a special provision for issuance of transit visas in cases where an onward flight is cancelled due to weather conditions.
3.6. Visa fees
31. In most Council of Europe countries, the visa fee is considered to be an administrative payment for processing visa applications which is not subject to reimbursement in the case of refusal. There are exceptions, however. For example, Bulgaria and Ukraine practise a payment system consisting of a non-refundable handling charge for processing the visa application and a visa fee according to the type of visa, which is paid only upon issuance of the visa.
32. The issuance of visas at the border may be subject to an increased fee, for example, in the Czech Republic, Moldova, Georgia (double the usual fee in the case of nationals of countries with Georgian embassies) and Bulgaria (double the usual fee).
33. Some countries charge higher fees in the case of accelerated procedures, for example, Moldova, Estonia (an additional 25 Euro fee for visa issuance within 72 hours), Romania (an additional fee of 6 dollars for processing within 48 hours), Ukraine (double the usual fee in the case of urgent procedure) and Bulgaria (fee increased by 50 % for application processing within 8 hours)
34. Several countries exempt children from visa fees. For example, Slovakia and the Czech Republic exempt children under 15 while Latvia and Lithuania exempt children under 16. “The former Yugoslav Republic of Macedonia” and Serbia and Montenegro charge half the usual fee in the case of children under 14.
35. Several countries exempt from visa fees the holders of diplomatic passports, representatives of international organizations as well as persons attending official events (only on a parity basis in certain cases). There are also other cases in which the Council of Europe member states waive visa fees. For example, Lithuania exempts from visa fees persons visiting family graves and seriously ill family members or other close relatives, as well as those persons who are seriously ill and require urgent medical treatment and their accompanying persons, foreign nationals attending funerals of family members or close relatives and persons travelling to conduct pedagogical activities. The Czech Republic exempts from visa fees persons travelling for medical and humanitarian reasons. Some countries, such as Romania and Moldova, exempt from fees or charge reduced fees to organised tourist groups of at least 10 persons.
36. Within the Schengen area, a uniform visa fee of 35 Euro has been established39 regardless of the type of short-stay visa and processing time. On the other hand, several non-Schengen states apply different visa fees according to the applicant's citizenship, the type of visa and the processing time requested.
37. Reduced visa fees or visas free of charge may also be provided under bilateral agreements on the simplification of visa procedures. States may also waive visa fees with respect to nationals of a country which has unilaterally waived the visa requirement with respect to its nationals, as is the case, for example, with Bulgaria that exempts from visa fees Albanian nationals visiting Bulgaria as an organised tourist group or when transiting Bulgaria.
3.7. Specific categories of travellers
38. The European Commission has recently presented initiatives aimed at improving the free movement of certain categories of persons. The initiatives concerning researchers and residents of border regions call for particular attention in this report.
39. The European Commission's Proposal for a Recommendation40 aims at facilitating the admission and movement of researchers for short stays not exceeding three months. It is one of the measures in the legislative initiative package41 aimed at attracting researchers to the European Union. According to this proposal, the member states are invited to:
– consider researchers as bona fide persons;
– shorten time limits for visa issuance;
– encourage mobility by delivering multiple entry visas;
– adapt validity periods of visas to the period of their research in order to avoid the necessity of successive visa applications;
– harmonise and reduce the number of supporting documents;
– reduce or eliminate visa fees.
40. In addition, the states are invited to exchange their good practices through consultation and sharing of information.
3.7.2. Residents of border areas
41. Following the EU enlargement on 1 May 2004, the land borders of several of the new EU member states have now become the external EU borders with third countries such as the Russian Federation, Serbia and Montenegro and Ukraine. In certain cases, the EU enlargement process has caused cessation of previous visa abolition agreements between the new EU member states and these non-EU countries creating, inter alia, more obstacles to “local border traffic” between their respective border areas, whose residents are often bound by family and other close ties.
42. Border area residents are expressly dealt with in the agreement between Ukraine and Slovakia42 providing for the issue of multiple entry and free of charge visas valid for 180 days for a maximum stay of 90 days to permanent residents of specified border areas who have relatives in the border area of the other contracting state.
43. Favourable provisions for border area residents can also be found in the recent “asymmetrical” agreements concluded by Ukraine with Poland and Hungary (see point 3.2.3.) that provide for issue to Ukrainian nationals of visas valid for multiple entries and for up to 5 years, without invitation and free of charge, for visiting relatives and family graves as well as for those who own immovable property or have inherited property in the other contracting state.
44. Finally, the agreements between Ukraine and Romania43 and between Romania and Serbia and Montenegro44 provide for issue to the residents of border areas of multiple entry and free of charge visas valid for up to one year as well as of free of charge collective visas in the case of group travel.
45. The European Commission's Proposal for a Council Regulation45 defines “local border traffic” as regular crossing of the external land border of a member state by persons lawfully resident in the border areas of a neighbouring third country for a limited duration (maximum 7 days and not more than 3 months in total per semester). The border area residents not requiring a visa will be able to cross the border simply with their identity cards or with a special border crossing authorisation. Border area residents requiring visas will be able to apply for a special "L" visa ("local border traffic") if they are considered as bona fide and fulfil the conditions of the Regulation.
46. The “L” visa will only be valid in the border area of the issuing state. It will be valid for multiple border crossings. Maximum duration of stay will be 7 days and not more than 3 months per semester. The validity period of the visa will be between 1 and maximum 5 years. The visa fees can be reduced or waived. This visa may give entitlement to border crossing at special border crossing points or outside regular border crossing points and/or outside fixed working hours.
47. To qualify for this visa, the border area residents will have to prove their residence in the border area and present their reasons for frequent border crossings.
48. In order to ensure reciprocal measures by the neighbouring states concerned and to take account of local specificities, the Proposal foresees the implementation of these principles through bilateral agreements that the EU member states will be able to negotiate with their non-EU neighbouring states on the basis of the Regulation.
3.8. Refusal of visa
3.8.1. Provision of reasons for refusal
49. Not all Council of Europe countries provide for the duty to provide reasons for refusal to issue a visa or provide for it only in the case of certain categories of applicants. On the other hand, Italy, for example, expressly provides for notification of a reason of the refusal together with instructions for lodging an appeal, all translated into the applicant's language if possible, otherwise into his/her choice of English, French, Spanish or Arabic.
3.8.2. Appeal against refusal
50. Several countries provide for the right to appeal against decisions to refuse the issue of visas. The procedures differ from country to country as do the time limits for appeal, for example, four weeks in the Netherlands, one month in Italy, and two months in France. In Germany, an appeal can be made directly to the administrative court or a prior appeal can be submitted to the consular establishment concerned. In France, the applicant can appeal either to the consular establishment concerned or to the special commission competent for appeals against visa refusals established in 2000 under the auspices of the Ministry of Foreign Affairs and, eventually, to the State Council.
IV. Procedures governing border crossing and short term stay
4.1. Refusal of entry and documents required at the border
1. A person travelling to another Council of Europe member state, whether requiring a visa or not and whether actually having one or not, can be refused entry at the border on various grounds.
2. Firstly, the entry can be refused for such obvious reasons as inappropriate, invalid or forged travel documents or lack of travel documents necessary to proceed to the final destination in the case of transit.
3. Secondly, the person may be denied entry for reasons related to national security, “ordre public” and public health or because of failure to prove the correspondence of the purpose of the visit with one of the authorised purposes (for non-visa nationals) or the purpose indicated in the visa (for visa nationals) as well as because of lack of sufficient means of subsistence (see also point 3.3.2.).
4. In most of the Council of Europe member states, visas are considered as only one of the elements in the system of immigration control. The possession of a visa does not necessarily guarantee the entry and border control officials are empowered to make the final decision. In practice there is, however, a presumption that entry will be granted to a holder of a valid visa except if it turns out to be issued for a purpose other than the real purpose of the visit.
5. Presentation of supporting documents can be required at the moment of border crossing also if such documents have already been submitted with the visa application46. In this regard, Poland, for example has an express provision lifting the requirement to prove the availability of means of subsistence and Latvia does not require presentation of a certificate of medical insurance if the person enters the country with a valid visa. On the other hand, in the case of some member states, visa holders are expressly required to carry with them the documents submitted with their visa applications for possible presentation to the border control authorities. Finally, a few Council of Europe member states may require from travellers of certain nationalities (including non-visa nationals) the presentation of a certified invitation at the time of border crossing.
6. In the context of procedures governing border crossing, it is also useful to mention the proposal47 that is currently being examined by the European Union on systematical stamping of the travel documents of third-country nationals when they cross the external borders of the member states.
4.2. Additional documents
7. Most Council of Europe member states do not require the travellers to fill in at the time of entry any additional documents. Some member states, however, require the filling in of “entry-exit” forms or migration cards. For certain member states it serves as a statistical and registration tool especially for entries by non-visa nationals. The “entry” part of such a document is collected upon entry while the “exit” part is stamped and should be kept in the passport until its collection upon departure. In certain member states, the loss of the “exit” part of the document may be subject to penalties. It may also be necessary, for example, to register at hotels.
8. Many Council of Europe member states do not require any additional registration of foreigners in the case of short term stays48. In those member states where such a requirement exists, registration is normally carried out by the hotel in the case of stay in a hotel. Some member states require registration only in the case of prolonged stays (30 days in Azerbaijan, Hungary and Slovakia) or only from persons entering the country with visas, for example in Slovakia.
9. The time limit for registration is 12 hours in Croatia and Serbia and Montenegro (in the case of stay in a hotel or with a private person) or 24 hours in other cases, 48 hours in Bulgaria, three days in the Russian Federation49, the Czech Republic, Belgium and Moldova and 10 days in San-Marino (after 10 days a visitor must obtain a “tourist permit” from the Gendarmerie).
4.4. Procedures in the case of expiry of visas and/or loss of documents
10. Several Council of Europe member states allow extension of visas during the person's stay on their territory. However, in some countries this can only be done in limited circumstances, for example, in France and in Hungary (for medical treatment). From the procedural point of view, in the Russian Federation it is only the “sponsor” (local host indicated in the visa) that can apply on the traveller's behalf for the replacement or extension of, or any changes to the Russian visa. The time limit for the submission of extension requests varies from 15 days before the expiry of the visa in Hungary, to 7 days in Slovakia and to any time during the validity of the visa in the Czech Republic.
11. In the case of loss or theft of documents, the general practice is the issue of exit documents by the consular authorities of the visitor's home state that enable return to the country of origin. Some Council of Europe member states additionally require, in such situations, the obtaining of permission to leave their territory. Some member states have stipulated the exact amounts of fines for exceeding the period of validity of visas.
5.1. General considerations
1. This report has revealed a number of “good practices” adopted by the Council of Europe member states both by way of international treaties and as unilateral measures. It has to be taken into account, however, that the analysis contained in this report is mostly limited to legal aspects. In consequence, it may well be that advantages from the procedures appearing simple on the face of it are, in fact, compromised by the complexity of the administrative practice. In visa application and issuance procedures especially, much depends on the practical functioning of the authorities responsible and how they implement the respective legal regulations.
2. As already indicated in the Introduction, the report pays particular attention to the practices simplifying movement of persons between the Council of Europe member states which are bound by the Schengen Acquis and the other Council of Europe member states. Even though co-operation between these two categories of Council of Europe member states is limited by the uniform external visa policy adopted within the Schengen area, certain of the “good practices” identified by this report prove the possibility of bridging the Schengen and non-Schengen states. They also demonstrate the usefulness for the Council of Europe member states of exploiting to the maximum extent possible the various methods of facilitation of movement of persons described in this report. By providing guidance on these methods the Council of Europe facilitates the unity of its member states and peoples in accordance with the objectives laid down in its Statute.
3. The following summary of the “good practices”, as identified in this report, will use the same structure as the report itself, namely: (1) measures on abolition of short-stay visas, (2) measures simplifying visa procedures and (3) measures simplifying the procedures governing border crossing and short term stay.
5.2. Abolition of short-stay visas
4. Several Council of Europe member states that are not members of the EU and do not follow the Schengen Acquis have introduced numerous unilateral visa waivers without reciprocity with respect to the nationals of certain and, in some cases, several other Council of Europe member states. Certain countries have coupled such unilateral action, through “asymmetrical” bilateral agreements, with facilitated travel procedures for their own nationals.
5. Numerous Council of Europe member states exempt from visa requirements holders of diplomatic and other official passports of certain other Council of Europe member states.
6. Although several of the existing bilateral visa abolition agreements concluded by the member states as well as certain unilateral measures provide for different maximum duration of visa-free stays, 90 days per semester appears to be a generally accepted practice.
7. Some member states exempt the nationals of certain member states from transit visa requirements in the case of holding short-stay visas issued by certain other member states also outside the Schengen system.
8. There is a quasi general waiver of airport transit visas with respect to the nationals of the Council of Europe member states.
5.3. Simplification of visa procedures
9. The report describes bilateral agreements on simplification of visa procedures concluded by various Council of Europe member states to facilitate the freedom of movement. These agreements provide, notably, for multiple entry visas with a period of validity of one year or more that are issued free of charge or for reduced visa fees, and subject to simplified requirements as to the supporting documents and within shorter processing time limits. They target particular categories of travellers such as: researchers, teachers, students, participants in youth exchange activities, cultural, official and sports events, artists, business people, as well as persons working in international cargo traffic, children, seniors, disabled people, persons with family ties in the other country concerned and residents of border areas.
10. The report further identifies a number of “good practices” of the Council of Europe member states providing for facilitated visa application and issuance procedures such as:
(a). reducing visa application processing times in such situations as family or medical emergencies as well as official visits and participation in international events;
(b). waiving or reducing visa fees for certain categories of persons such as children, participants in official events or in the cases of humanitarian or medical emergencies;
(c). applying the principle of proportionality with regard to the supporting documents required from visa applicants and simplifying requirements especially in the case of visa applicants whose previous record and actual conditions demonstrate their acting in good faith (bona fide);
(d). requiring certified invitations (“accommodation certificates”) as supporting documents only when no alternative, simpler means are available for ascertaining the purpose of travel and means of subsistence;
(e). requiring monetary deposits as proof of means of subsistence only exceptionally when no other means exist to ascertain the means of subsistence;
(f). allowing visa application without personal interview unless it is absolutely required;
(g). even though the general practice is visa issuance only by consular establishments, authorising visa issuance also at the border in such cases as absence of the respective consular establishment in the traveller's country of residence, exceptional humanitarian and professional circumstances when prior visa application at the consular establishment has not been possible as well as to participants in official events;
(h). laying down express rules on transparency and assistance to visa applicants concerning visa applications, including on applicable law and regulations as well as on administrative procedures.
11. The Report shows the differing practices of the Council of Europe member states regarding the visa administration's duty to provide reasons for visa refusals and on availability of appeal procedures. These two procedural guarantees nevertheless appear to be important means of protecting the interests of the visa applicant. Such guarantees are also relevant with regard to the certification of “accommodation certificates” where they exist.
5.4. Procedures governing border crossings and short term stay in the country of destination
12. The report demonstrates the existence of provisions in the Council of Europe member states aimed at avoiding situations where the documents that have already been submitted with visa applications must be presented again at the border crossing, as well as of provisions preventing the need to present documents, such as “accommodation certificates” in the case of travellers exempted from visa requirements, whose acquisition would involve a considerable administrative burden;
13. the report identifies different rules on the duty to register with the authorities that exist in some Council of Europe member states. Several countries do not impose registration requirements at all or only apply them in certain cases, for example, only with respect to travellers arriving on visas or only in the case of stays exceeding a certain number of days, providing longer registration time limits and refraining from disproportionate sanctions in the case of failure to register;
14. the report shows the practice of numerous Council of Europe member states authorising extension of the validity of visas during the stay in the visited country up to a general maximum of 90 days per semester;
15. the report finally shows the quasi general practice of the Council of Europe member states authorising departure and return to the country of origin in the case of loss or theft of the passport without any additional administrative requirements being imposed on the traveller by the authorities of the visited country.
1 Following the expression of interest by the CDCJ delegations, the CDCJ included in the WP the representatives of Lithuania, Romania, Russian Federation, Ukraine and the United Kingdom and appointed Mr Sjaak JANSEN (Netherlands), Vice-Chair of the CDCJ, as Chair of the Working Party. The European Commission was invited to both meetings and participated in the second meeting of the WP.
2 The Study is available from the Secretariat upon request in its original “arc-en-ciel” version.
3 Austria, Belgium, France, Germany, Greece, Italy, Liechtenstein, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain, Switzerland and Turkey. The Agreement has also been signed by Cyprus on 23 June 2003 and by Ukraine on 18 February 2004.
4 Austria, Belgium, France, Germany, Greece, Italy, Luxemburg, Malta, the Netherlands, Portugal, Slovenia and Spain.
5 Liechtenstein, which is a party to the European Economic Area (EEA) Agreement, and Switzerland, which is party to the Agreement with the European Community of 21 June 1999 on the free movement of persons.
6 Austria, Belgium, France, Germany, Luxembourg, Malta, The Netherlands, Portugal, Slovenia and Switzerland. Also Cyprus, signatory but not (yet) State Party to the Agreement, has notified its intention to delay its application with respect to Turkey.
7 Several State Parties have already notified their intention to suspend the application of the Agreement with respect to Ukraine, signatory but not (yet) State Party to the Agreement.
8 Such as Article 12, 18, 39, 40, 44, and 52. In particular, Article 18(1) gives every Union citizen a right to move and reside freely, subject to restrictions and conditions laid down by the Treaty or in secondary legislation.
9 Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement of workers within the Community and Commission Regulation (EEC) No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State.
10 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. The Directive is to be implemented in the member states by 30 April 2006.
11 Free movement of persons has been established between the Switzerland and the member states of the European Community in accordance with the agreement signed on 21 June 1999 (see further point 2.6.).
12 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders of 19 June 1990
13 Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia.
14 Council Regulation (EC) No 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 (with subsequent amendments).
15 However, according to Annex 2 to the Common Consular Instructions on Visas for the Diplomatic Missions and Consular Posts (Official Journal of 16.12.2002 C 313), EU member states are under the obligation to consult with each other before introduction of visa exemptions with respect to the holders of diplomatic and other official passports.
16 Article 18 of the Convention implementing the Schengen Agreement stipulates that “Visas for stays exceeding three months shall be national visas issued by one of the Contracting Parties in accordance with its national law”.
17 Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas.
18 Some of the examples of visa abolition agreements ended because of EU enlargement include: Russian Federation - Cyprus; Russian Federation - Poland; Serbia and Montenegro - Hungary; Ukraine – Hungary; Ukraine - Poland; “the former Yugoslav Republic of Macedonia” - Slovenia; Turkey - Slovenia.
19 Although one of the three original signatories to the treaty establishing the CIS in 1991, Ukraine did not subsequently ratify the treaty. It does, however, participate in many CIS activities.
20 For example, between the Russian Federation, on the one hand, and Bosnia and Herzegovina, “the former Yugoslav Republic of Macedonia” and Serbia and Montenegro, on the other; between Turkey, on the one hand, and Bosnia and Herzegovina, “the former Yugoslav Republic of Macedonia” and Serbia and Montenegro, on the other, etc.
21 See note 15 above.
22 Article 4 of the Agreement between the Cabinet of Ministers of Ukraine and the Government of the Republic of Poland on the travel conditions of their nationals, signed on 30 July 2003 in Kyiv.
23 According to Article 7 of the Agreement between the Cabinet of Ministers of Ukraine and the Government of the Republic of Lithuania on travel of their nationals, signed on 25 February 2004 in Vilnius.
24 According to Article 8 of the Agreement between the Cabinet of Ministers of Ukraine and the Government of the Republic of Hungary on the travel conditions of their nationals, signed on 9 October 2003 in Kyiv
25 Agreement between the Government of the Russian Federation and the Government of the French Republic on mutual simplification of the conditions for entry, travel and exit of the nationals of the Russian Federation and of the French Republic, signed in Moscow on 15 June 2004.
26 Agreement between the Government of the Russian Federation and the Government of the Federal Republic of Germany on simplification of travel of the nationals of the Russian Federation and of the Federal Republic of Germany, signed in Berlin on 10 December 2003. It was ratified by the State Duma of the Federal Assembly of the Russian Federation on 27 October 2004.
27 Agreement between the Government of the Russian Federation and the Government of the Republic of Italy on simplified issuance of visas to the nationals of the Russian Federation and of the Republic of Italy, signed in Moscow on 15 June 2004.
28 Agreement between the Government of the Republic of Lithuania and the Government of the Russian Federation on reciprocal travel arrangements for their nationals, signed on 30 December 2002.
29 Agreement between the Government of the Republic of Poland and the Government of the Russian Federation on the travel conditions for the nationals of the Republic of Poland and of the Russian Federation, signed in Warsaw on 18 September 2003.
30 Agreement between the Cabinet of Ministers of Ukraine and the Government of the Republic of Lithuania on travel of their nationals, signed on 25 February 2004 in Vilnius.
31 Agreement between the Cabinet of Ministers of Ukraine and the Government of the Republic of Poland on the travel conditions of their nationals, signed on 30 July 2003 in Kyiv.
32 Agreement between the Cabinet of Ministers of Ukraine and the Government of the Republic of Hungary on the travel conditions of their nationals, signed on 9 October 2003 in Kyiv
33 Agreement between the Cabinet of Ministers of Ukraine and the Government of Romania on the travel conditions of their nationals, signed on 19 December 2003 in Kyiv.
34 Common Consular Instructions on Visas for the Diplomatic Missions and Consular Posts, Official Journal of 16.12.2002 C 313.
35 Bona fide concept is used in the Common Consular Instructions (CCI) in several instances foreseeing more favourable treatment for visa applicants who are considered to be acting in bona fide. Some criteria for what constitutes bona fide can be deduced from the negative definition provided in Part VIII-3 of the CCI according to which such persons are not to be considered bona fide whose “applications have been refused due to the fact that stolen, lost or falsified documents have been used, or that the date of exit on the previous visa was not respected or that there is a risk to security and in particular there is reason to believe that an attempt is being made to illegally immigrate to the territory of the Contracting Parties”.
36 The reference amounts for subsistence expenses vary from country to country. A number of countries have fixed reference amounts per day, for example Italy and Bulgaria. Some countries provide for individual estimation on a case by case basis, such as Sweden, Austria, and the Netherlands. Other countries such as Belgium distinguish between the types of stay (with a private person or in the hotel). The Czech Republic and France fix this amount with reference to the official subsistence minimum. There is a proposal currently being discussed in the Council of the European Union (Draft Council Decision amending Part V of the Common Consular Instructions and Part I of the Common Manual) that aims at harmonising the minimum amount determined each year by the states between 40 and 60 Euro per day.
37 Council Decision of 22 December 2003 amending Part V, point 1.4, of the Common Consular Instructions and Part I, point 4.1.2 of the Common Manual as regards inclusion of the requirement to be in possession of travel medical insurance as one of the supporting documents for the grant of a uniform entry visa (Official Journal L5 of 9.1.2004). According to the decision, visa applicants must show that they are in possession of adequate and valid travel insurance to cover any expenses which might arise in connection with repatriation for medical reasons, urgent medical attention and/or emergency hospital treatment. The minimum coverage is EUR 30000.
38 Council Regulation (EC) No 415/2003 of 27 February 2003 on the issue of visas at the border, including the issue of such visas to seamen in transit, Official Journal L 64/1 of 7.3.2003.
39 According to the Council Decision No 2003/454/EC of 13 June 2003 amending Annex 12 of the Common Consular Instructions and Annex 14a of the Common Manual on visa fees.
40 Proposal for a Council Recommendation to facilitate the issue by the Member States of uniform short-stay visas for researchers from third countries travelling within the European Community for the purpose of carrying out scientific research COM (2004) 178
41 Comprising also: Proposal for a Council Directive on a specific procedure for admitting third country nationals for purposes of scientific research COM (2004) 178-2 and Proposal for a Council Recommendation to facilitate the admission of third-country nationals to carry out scientific research in the European Community COM (2004) 178-3
42 Exchange of Notes between the Cabinet of Ministers of Ukraine and the Government of the Slovak Republic on liberalisation of visa regime, in force since 1 March 2001.
43 Agreement between the Cabinet of Ministers of Ukraine and the Government of Romania on the travel conditions of their nationals, signed on 19 December 2003 in Kyiv. Its Article 8 modifies the Agreement between the Government of Ukraine and the Government of Romania on simplified procedures of border crossing by the residents of border areas, signed on 29 March 1996.
44 Agreement between the Government of Romania and the Government of Serbia and Montenegro concerning the travel of their nationals, signed in Bucharest on 14 June 2004.
45 Proposal for a Council Regulation on the establishment of a regime of local border traffic at the external land borders of the Member States COM(2003) 502 final. This proposal is, however, at present being reconsidered because of the change in the legal basis and procedures for its adoption (end of the transitional period foreseen in Article 67 of the EC Treaty) and in the light of the discussions that have already taken place on this proposal within the Council of the European Union.
46 According to Article 5 of the Convention implementing the Schengen Agreement of 14 June 1985 “…aliens fulfilling the following conditions may be granted entry into the territories of the Contracting Parties:… (c) that the aliens produce, if necessary, documents justifying the purpose and conditions of the intended stay and that they have sufficient means of subsistence, both for the period of the intended stay and for the return to their country of origin or transit to a third State into which they are certain to be admitted, or are in a position to acquire such means lawfully;…”. Similar provisions are also to be found in Article 5 of the Proposal for a Council regulation establishing a Community Code on the rules governing the movement of persons across borders that is at present being discussed in the Council of the European Union.
47 Proposal for a Council Regulation laying down the requirement for the competent authorities of the Member States to stamp systematically the travel documents of third-country nationals when they cross the external borders of the Member States and amending the convention implementing the Schengen agreement and the common manual to this end.
48 Registration according to national procedures either on entry or within three working days of entry, at the discretion of the Contracting Party whose territory they enter is, however, foreseen in Article 22 of the Schengen Convention. Registration requirement in the case of short term stays has been abolished within the EU with respect to the nationals of EU member states.
49 The first exception from this rule is the abolition of registration requirement with respect to the Ukrainian nationals staying in the Russian Federation for short term, provided in the Protocol, signed on 30 October 2004, on amendments to the Agreement between the Government of the Russian Federation and the Government of Ukraine on visa free travel of Russian and Ukrainian nationals, signed in Moscow on 16 January 1997.