Saturday 13 May 2017
Brexit is not going to bring about a visa requirement for visits between the UK and Europe, but change is in the wind for all travellers.
There has been much speculation in the British press about the prospect of visas being introduced for travel between the UK and Europe following Brexit.
With headlines such as ‘Brussels may force British travellers to apply for visas to travel in Europe after Brexit’ and 'Booking that spontaneous European city break could be that little bit harder when the UK leaves the EU’, British nationals might be forgiven that thinking that they faced major new bureaucratic hurdles to enjoy their summer holiday in France or a weekend in Paris.
Political leaders in Europe and in the European Commission have done little to dampen the speculation, stating repeatedly that the ‘four freedoms’ (citizens, capital, services and goods) were inseparable and that consequently the UK would face tough new movement controls on in the future.
Even the British Home Secretary Amber Rudd, has weighed by stating that "we don’t rule it (visa's) out because we have to be allowed a free hand to give the best negotiation."
All tough sounding, ominous stuff, but in reality, barring a few dark periods, freedom of travel in Western Europe has been around since Cain and Able.
In modern times it is formally enshrined in law outside of the EU institutional framework, by a Treaty of the Council of Europe in 1957, a body that comprises 48 member states.
Article 1 of the 'European Agreement on Regulations governing the Movement of Persons between Member States of the Council of Europe' states:
'Nationals of the Contracting Parties, whatever their country of residence, may enter or leave the territory of another Party by all frontiers on presentation of one of the documents listed in the Appendix to this Agreement, which is an integral part thereof. The facilities mentioned above shall be available only for visits of not more than three months' duration.'
Not every member of the Council is a signatory to this Treaty, including the UK, but France is one of the founding signatories, and the UK has abided by it provisions.
This right was extended to third countries by European Council Regulation (EC) No 539/2001, which grants the same right of visa-free travel for three months to nationals from many countries on the planet.
The regulation lists the countries outside Europe whose nationals must be in possession of visas when crossing external borders and those whose nationals are exempt from that requirement.
The list of exclusions from visa-free travel includes most countries of Asia, Africa and the Middle East, but those where no such requirement exists includes the USA, Australia, New Zealand, Argentina, Brazil, Canada, Japan, Chile, Uruguay, Malaysia, Mexico, and Venezuela.
In total, visa-free travel applies to around 1.4 billion people from 60 countries and, according the European Commission, "the number of visa-exempt third country nationals to the Schengen countries will continue to grow, with an expected increase of over 30% in the number of visa-exempt third country nationals crossing the Schengen borders by 2020, from 30 million in 2014 to 39 million in 2020."
The EU has threatened to introduce new visa requirements for visitors from the USA, but this is only as a result of the decision of the Trump administration to introduce such requirements on visitors from some countries in Eastern Europe.
The reason for the absence of visa controls, and why there will be no significant change in the future, is of course due to the importance of ease of travel for tourism and business.
Beyond travel, the removal of barriers enshrined in the 'four freedoms' of the EU is more limited than the pronouncments from the European Commission would suggest.
The free of movement of persons, in particular, has really been about workers; for everyone else there only exists an automatic right of short-stay limited to three months' duration in another Member State.
Longer-term stays are subject to a test of 'sufficient resources' and health insurance cover, and the right of permanent residence is only granted after 5-years legal residence.
France may well have adopted a lenient interpretation of the first condition, but as we have seen over the past 5 years, they have toughened considerably their stance on health cover.
The freedom of movement of workers has also, in practice, mainly been an East-West phenomenon, and one which is also in increasing difficulty due to growing protectionist resistance across Europe, of which Brexit is merely the most significant manifestation.
The European Court has been nibbling away at freedom of movement for several years, by curtailing access to social security rights, and many countries in the EU have introduced unilateral controls to tighten access to the labour market. France, in particular, has recently tightened up rights relating to the employment of EEA nationals and similar measures have been taken in a number of other European countries, notably the UK, Hungary and Austria.
In addition, with the refugee crisis and growth in the terrorist threat across Europe, freedom of travel across Europe is likely to be subject to greater controls in the future
In recent years, many Member States of the EU have taken unilateral action to introduce intra-Schengen border controls, often in the teeth of resistance from the European Commission.
The uncontrolled passage by train to Italy obtained by the killer of 12 people in Berlin last December sent panic around European capitals and was a game changer for most of them.
As a result, the European Commission has been obliged to review the balance between mobility and security, and since 7th April everyone entering the EU has been subject to an identity check, including EU nationals. The measures have caused chaos on some border points, with huge vehicle tailbacks being reported.
There is also more to come.
Last year the Commission proposed the introduction of an electronic travel information and authorisation system (ETIAS) for those persons travelling to Europe from visa-free countries.
The purpose of ETIAS is to allow for advance security checks on visa-exempt travellers and deny them entry where necessary. The EU plan the introduction of the system by 2020, but it has yet to receive full political approval and it is likely there will be some slippage in that date.
But the system is far from a visa scheme by another name. According to the report from the Commission the process can all be accomplished on-line in a matter of minutes and the validity period of the pass will be 5 years’ duration.
They state: 'An ETIAS authorisation would be obtained through an application process, which would be simple, cheap, fast and would in the vast majority of cases not require any further steps. According to the experience of other countries with similar systems for travel authorisations (US, Canada, Australia), an estimated 95% or more would result in a positive reply, which would be communicated to applicants within minutes. Fingerprints and other biometric data would not be collected. The authorisation would be valid for five years and for multiple travels and its application fee will only be €5."
In practice, therefore, ETIAS is more a comprehensive version of the ‘watch lists’ that are already in operation for air and sea travel, except that it will also apply to those travelling by car or foot across land borders in Europe.
And whilst it is planned to be put in place only for visa free countries outside of Europe, how long might it be before it is applied within the EU itself? Perhaps not before too long. The complacency of open border policies is unlikely to withstand the migratory and terrorist pressures Europe is facing and the growing hostility towards freedom of movement amongst many communities in Europe. Enhanced security clearance procedures are going to apply right across Europe.
We have introduced a Brexit Helpline for those of you who have questions about the whole process. The service is free of charge. If you have a question, send it to us via the form on our Brexit Helpline page.