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Visa sanctions to increase deportations

03 July 2024

Changes to the EU’s rules on visa issuance that came into force in 2020 have made it possible for sanctions to be introduced against states that fail to cooperate with deportations. For example, non-EU states that consistently fail to provide identity documents for their own nationals facing deportation from the EU can have visa fees increased, or the examination of applications slowed down. The tool appears to be popular with EU institutions and member states, and changes are on the way to “improve” its functioning. This analysis examines the mechanism itself, measures proposed or adopted under the mechanism, and recent proposals to develop and reform the system, and considers the way in which the idea of “solidarity” (between EU member states and EU bodies) is used as a weapon against third countries.

Image: Moin Uddin, CC BY-NC 2.0

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Visas: privilege and apartheid

In May 2024 the Commission published figures indicating that 10.3 million worldwide short-stay visa applications were received by EU and Schengen-associated countries, a 37% increase compared to 2022’s 5.9 million applications, but much lower than the figure for 2019 (17 million). A similar pattern applies to the number of visas issued (8.5 million in 2023; 5.9 million in 2022; and 15 million in 2019), as the visa refusal rate declined slightly (from 17.9% in 2022 to 16% in 2023). Over half the visas issued in 2023 (54.2%) allowed multiple entry, compared to 58.1% in 2022, marking a slight decrease. In addition, 85,200 uniform visas were issued at external border points in 2023.

The visa mechanism also operates within a context that has been criticised for establishing a situation of “passport privilege” and “visa apartheid”, particularly regarding Africans’ access to Europe and America. A 2020 study documented the experiences of Tunisians suffering from higher costs and more restrictive policies, and complaints about the costly, burdensome and discriminatory nature of EU visa procedures often arise from civil society groups in non-EU countries. For instance, in late 2022 high refusal rates for north Africans were criticised, and in November 2023 complaints emerged from Senegal about north-south discrimination, costs and profiteering practices linked to securing interviews and access to the procedure. The visa sanction mechanism outlined in this piece is likely to intensify such problems, yet this does not appear to have been considered amidst efforts to make cooperation between EU and non-EU states on deportation and readmission more “effective”.

Article 25a: visa sanctions for deportations

The EU’s longstanding push to increase deportations (“returns”, in official jargon) has seen efforts targeted at all parts of the deportation procedure. The possibility for visa sanctions introduced by article 25a of the Visa Code relates to readmission procedures: the political and bureaucratic guarantees required from non-EU states to enable the return and admission of their citizens removed from EU territory into their country, such as agreeing to accept deportations in the first place, the provision of identity documents for individuals, or landing permits for deportation flights.

Article 25a(1) of the revised Visa Code establishes that insufficient cooperation by a non-EU state with readmission proceedings may entail a suspension of favourable measures for citizens of the country concerned that apply for Schengen visas. For example, the EU can choose to suspend:

• fast-track procedures for applicants “known to the consulate or the central authorities for his integrity and reliability, in particular as regards the lawful use of previous visas” (article 14.6);
• the waiving of visa fees for holders of diplomatic or service passports (article 16(5b));
• the 15-day time limit for decisions on applications (article 23(1));
• issuance of multi-entry visas (art. 24(2)) and five-year multi-entry visas (art. 24(2c))for all nationals.

If the adoption of such measures fails to improve cooperation, higher visa fees (€120 or €160) for nationals of the third country in question (except for children under 12 years old) may be introduced.

The procedure under article 25a lays out a framework for continuous monitoring of cooperation on readmission and returns, with the Commission obliged to produce an annual report for the Council’s consideration. The criteria to be considered include return decisions issued, forced returns, readmission requests accepted (by member state), assistance in identification, acceptance of an EU travel document or laissez-passer for returns, acceptance of people to be returned to their home country, of return flights and operations. Attention is also paid to how many third-country nationals residing illegally in EU territory have transited through a third country, and whether they accept returns of people who travelled through their territory.

The intensive nature of this monitoring has led to member state complaints (see the “effectiveness of the visa leverage” section, below) about the administrative burden in relation to third states from which they have few visa applications and/or a low number of people subject to expulsion orders for illegal entry and stay. It must be noted that in the Visa Code itself, and in subsequent policy and discussion documents, third countries and their authorities feature merely as actors to be subjected to concerted pressure to secure cooperation.

Proposals to date

Since February 2020, when the Visa Code reform introduced the possibility to apply restrictive visa measures to third countries for inadequate cooperation on readmission, the Commission has tabled proposals concerning Iraq, Bangladesh, Senegal, The Gambia and Ethiopia. A document (17111/23) circulated by the Spanish Council presidency in January this year, for a meeting of the Council’s Working Party on Integration, Migration and Expulsion (IMEX), summarised the history of each proposal.

In the presidency paper, Iraq is repeatedly cited as an example of best practices. Adoption of a first proposal for restrictive visa measures in July 2021 was averted after constructive engagement by Iraq to help resolve the Belarus border crisis, although shortcomings in cooperation continued, as reported by member states. Measures were proposed again in 2022, and Iraq promised to cooperate in March 2023. In May 2023, Iraq announced that it had lifted a moratorium on accepting forced returns, flanked by outreach towards EU states and indication of a willingness to sign bilateral readmission agreements. The EU deadline thus slid to the October meeting of the Justice and Home Affairs Council, when Iraqi willingness to conclude a non-binding EU-Iraq instrument on readmission and return resulted in the opening of a discussion, scheduled for January 2024.

Restrictive visa measures were proposed for Bangladesh in July 2021. Improved cooperation levels resulted in the measures not being adopted, but member states insisted on keeping the proposal on the table until improvement with all member states was deemed sustainable, but the quality of cooperation was reported as having decreased “significantly” in 2022.

In the case of Senegal, restrictive measures were proposed in November 2022 (and discussed in the Council’s Visa Working Party), alongside intense contacts and an improvement in cooperation with some member states, although the picture was mixed and the outcome of February 2024 elections was pending.

Germany notified the Commission in February 2021 of “substantial and persisting practical problems” with The Gambia, and restrictive visa measures were proposed in July 2021 and adopted in October. A Commission report concluded that the measures had been ineffective despite limited improvements, leading to the proposal and adoption of an increased visa fee in November and December 2022. Cooperation in organising return flights and operations led to repeal of the visa fee measure in December 2023, but the original visa restriction measures were maintained due to insufficient overall cooperation on readmission (assistance in identification, timely issuing of travel documents, frequency of flights). Nevertheless, deportations to The Gambia have resumed, with Yahya Sonko, an advocate for the rights of Gambian migrants in Germany, recently said:

“…deportations exacerbate the already challenging situation in The Gambia, where the government is struggling to manage high youth unemployment rates. The return of hundreds of citizens each year without adequate reintegration support only serves to worsen the socioeconomic conditions for deportees and their families.”

In the case of Ethiopia, a Commission evaluation led to a proposal for visa sanctions in September 2023 (suspension of waiver of visa document requirement, of 15-day processing deadline, of multi-entry visa issuing and of visa fee waiver for diplomats and holders of service passports). The following month, a “note verbale” by the Ethiopian authorities announced resumption of the implementation of the 2018 readmission arrangement, alongside a request to renegotiate it. Discussion on the measures has taken place in the EU’s Visa Working Party, and The Commission proposed early 2024 meetings for the EU-Ethiopia working group. Significantly, acknowledgement of an armed conflict in northern Ethiopia from November 2021 to February 2022 did not interrupt these endeavours, nor bring into play considerations as to whether returns to Ethiopia may place people at risk, as reported return rates were low (10% in 2021 and 2022).

Member states discuss a “new approach”

In a document (5114/24) circulated for the January meeting of the Visa Working Party, the Spanish presidency proposed a “new approach” for the 25a procedure that would rejig the way in which internal EU discussions take place.

The proposed approach suggests that introducing punitive visa measures be discussed in the Working Party on Integration, Migration and Expulsion (IMEX) and MOCADEM (operational coordination mechanism for the external dimension of migration), with the Visa Working Party (VWP) only to be involved “at a later stage.” Thus, after an IMEX decision that lack of progress on readmission cooperation warrants adopting visa measures, the VWP would approve such measures and analyse other visa-related aspects.

Alleged shortcomings in past Visa Working Party scrutiny are mentioned in the presidency document:

“…the Visa WP has so far missed the opportunity to examine further the implications of the considered visa measures, especially when adopting visa sanctions towards The Gambia. Those ‘visa-related aspects’ to be discussed could include: the number of visas delivered by the Member States in the third country, the additional administrative burden to be expected and to be considered when deciding on the entry into force of the measures, the potential problems that could arise from the adoption of the measures, etc.”

This appears to be an effort by member states and the Council to seize control of the mechanism and speed it up, as part of efforts to hold the Commission to deadlines to systematically issue visa restriction proposals and to speed up the cycle in pursuit of increased effectiveness (see below).

A further discussion paper (17110/23) on the “Visa Code Article 25a exercise” was circulated by the presidency on 9 January, to prepare the IMEX working party meeting on 16 January (it was also reported on by Statewatch here). The paper reaffirms the purpose of the “visa leverage” provided by article 25a, as the “only legal tool at our disposal for all third countries to improve readmission cooperation.” The “external dimension” (that is, relations with non-EU states) is deemed crucial to increase the number of returns and ensure satisfactory cooperation by third states to readmit “illegally staying third country nationals vis-à-vis all Member States,” regardless of their caseload. Prioritisation of this objective in this semester requires a “strategic discussion” on the visa leverage’s effectiveness, says the document.

The moving of preliminary discussions on the “state of play of outreach towards the relevant third countries and the developments in terms of cooperation on readmission” away from the VWP to the IMEX is also noted in the document, adding that this should “increase the coherence and the effectiveness of the mechanism.” Ensuring that the Commission has concrete deadlines to issue proposals on restrictive visa measures is viewed as potentially fruitful, and follow-up to proposals that are on the table are to be discussed within IMEX.

Weaponising “solidarity” against third countries and a systematic adoption of visa measures

The presidency document on “effectiveness of the visa leverage” (17110/23) contains a troubling assessment of the mechanism’s “credibility, strategy and solidarity.” Credibility requires “a search for the right and delicate balance between incentivizing cooperation by giving enough time and space for dialogue and taking restrictive visa measures when no real progress is observed.” Member states are required to act jointly, “in a true spirit of solidarity, which sometimes might mean prioritizing a wider European interest over the national interests.” Thus, even if progress with some member states is observed, this should not impede visa restriction measures unless it applies to all member states, regardless of caseloads.

Member state requests to lessen administrative burdens by linking the information requested to the size of caseloads have led the Commission to adapt its data collection methods. A timeline adopted in December 2023 aims to reduce gaps between data collection, the Commission’s annual evaluation and subsequent visa measure proposals. The adoption of visa measures is deemed secondary to fostering progress in cooperation by third countries. As the presidency puts it, “[t]he power of the mechanism lies in the political message conveyed by the proposals, rather than the measures themselves,” strengthening the Commission’s credibility in outreach activities.

Nonetheless, “the Presidency believes that the Commission should issue more proposals with regard to other relevant third countries not yet concerned by the proposals currently on the table”. The adoption of positive measures like reducing the visa fee from 80 to 60 euros, the deadline for a decision from 15 to 10 days, or increasing the duration of multiple entry visas also features in the article 25a mechanism, but none have been proposed to date, because the third countries identified already had more favourable visa regimes.

Regarding the Commission’s selection of third countries to be targeted, the paper notes that having to consider the EU’s overall relations with the third country in question (rather than just cooperation on readmission) should not be treated as a “blocking element,” to prevent the mechanism becoming “inoperative towards some priority countries.” Following the Commission report, member states identify priority countries among those whose cooperation is deemed unsatisfactory, which fall into three categories: those facing visa restriction measures proposals; those not facing such proposals but identified by the Council as priorities; and those which do not face visa sanctions proposals and are not deemed priorities. Close scrutiny of all states that do not cooperate adequately is necessary, but its intensity should be tailored to their category, the presidency paper argues.

The strategy section argues that the European External Action Service’s (EEAS) contribution to assessing the “third country national context” is crucial for taking decisions in an “enlightened manner,” and that member state involvement when the Commission prepares outreach and visits to third states enables “strategic decision-making.” The communication of clear deadlines to third country authorities is deemed a best practice, drawing on the example of Iraq. Failure to make progress would result in restrictive visa measures, allowing “the EU to put pressure on the third country in a transparent and precise way.” Dilatory tactics (“delays in the appointment of interlocutors or hindrances to meetings”) should not excuse delays in improving operational cooperation. Formal steps like the negotiation or extension of readmission agreements or arrangements should be deemed separate from “concrete progress on readmission cooperation on the ground,” without affecting cooperation evaluation deadlines.

Regarding the stock of proposals for visa restriction measures under the article 25a mechanism, the management of existing proposals that have not been adopted for years could lead to the Commission withdrawing a proposal but, the presidency paper stresses, this should not be automatic. Moreover, the time that passes without substantial improvement should be a “decisive element” when considering adoption of a decision. Returns of third country nationals posing a security threat must be prioritised, requiring “smooth cooperation on identification, issuance of travel documents and readmission”, for which the article 25a mechanism could contribute to improvement.

The final section on “solidarity” is striking, because it spells out the power play theme mentioned above. In fact, working as “Team Europe” in a coordinated way, “the message brought collectively is more influential and bears concrete results,” says the paper. Iraq is again cited as an example of success in this regard. The possibility provided by article 25a for a simple majority of member states to compel the Commission to submit proposals within 12 months (while continuing efforts to improve cooperation) has not been used to date. Yet, it is viewed as a “solution” to demonstrate “solidarity” among member states and to “send a strong signal to third countries.”

Moreover, improving cooperation with some member states should not be deemed adequate to prevent adoption of restrictive visa measures towards a third country unless it applies to all member states regardless of caseloads. A united Council position to prioritise EU interests when outreach does not produce “substantial and sustainable progress” should adopt restrictive measures:

“The importance of solidarity between Member States at this stage of the mechanism is a key element to further put the third country under pressure and also to ensure the credibility of the Article 25a mechanism.”

Visa Code evaluation: speeding up cooperation on readmission

Whilst member states were considering ways to enhance the implementation of article 25a, the Commission was undertaking a broader assessment of the EU’s Visa Code. The evaluation includes an examination of cooperation on return, readmission and migration management, which suggests that procedures should be accelerated to increase effectiveness.

The main problem identified in the evaluation was the length of the cycles, which was deemed to have hindered accomplishment of the Visa Code reform’s three main goals (below). These are supposed to run annually but have previously exceeded a year in length, resulting in overlaps and faulty evaluation. Nevertheless, the Commission supports a need for flexibility to factor in different aspects to the discussion. The delay between approval of the Commission report and the submission of Commission proposals is identified as the main impediment. Seven member states, and the French and Czech Council presidencies, called for a shorter cycle to address these shortcomings.

Discussions mentioned in the annual evaluation of the Visa Code include the involvement of different stakeholders and Eurostat and Frontex data used in the annual assessment report, which the EU Court of Auditors identified as containing “weaknesses” in 2021. Frontex has bemoaned the lack of a “robust, integrated electronic data collection system” in several member states, but it supports them in developing integrated return case management systems connected to a central hub operated by the agency, intended to improve data on removals and readmission. Despite member states putting mechanisms in place to temper such shortcomings and duly fill in the relevant questionnaire, they complain about the administrative burden involved.

The overall evaluation on the three goals that motivated the Visa Code reform complains that:

• visa fees did not fully cover administrative expenses incurred by member states for visa issuing;
• an unclear legal basis has resulted in discrepancies and in most member states developing “restrictive practices when issuing multiple-entry visas” (MEVs); and
• a lack of cooperation and “low levels of readmission and return of irregular migrants to countries of origin” persist.

Strikingly, while the EEAS called for further involvement in providing expertise about the situation in third countries for the annual article 25a evaluation report (and three member states calling for more information on the political context), this was opposed by the Commission because “including this type of political analysis would detract from the current technical focus and factual nature of the reports.” Eurostat data is used regarding expulsion decisions and effective return rates, whereas Frontex data is used for readmission requests (by member states) and travel documents issued (by third countries). This apparently restricts the scope of the article 25a requirement for the Commission to take into account overall relations with a third state when deciding upon proposals for visa restriction measures. It also appears to exemplify efforts to subordinate the formal level (such as ensuring that deportations do not violate the EU Charter of Fundamental Rights) in cooperation with third countries to the operative level, squarely focused on achieving strategic migration policy goals (like higher rates of removal, regardless of other considerations). 

Single-minded approach

The documents examined display a wilful lack of critical scrutiny of the mechanism (other than on the basis of achieving operational goals) and of assessment on proportionality based on the size of caseloads and on conditions in third countries that may mean that some deportations may be unsafe from a formal viewpoint. There appears to be a strong drive to improve “effectiveness” and to speed up the process to pressure third country authorities, even if this may worsen the quality of decision-making and limit the information and stakeholders involved. Only four years after the mechanism was first introduced, amidst admissions that it is burdensome, the Council and some member states already appear eager to pile on pressure to cooperate on targeted third countries and to limit the Commission’s margins of appreciation and initiative before imposing or threatening to impose restrictions to visa access for their citizens, for the sake of “effectiveness”.

The idea of “solidarity” being used as a weapon to break a third country’s resistance to measures that may penalise their citizens – for example, by increasing the likelihood of them being targeted by police operations in the EU to enable deportations, to lessen remittances from abroad, or give rise to opposition by civil society – is not palatable. Moreover, successes and best practices that are highlighted may amount to the EU and its member states (as “Team Europe”) succeeding in achieving unlawful outcomes (in the case of returns that may place people at risk, for instance in Iraq and Ethiopia).

Furthermore, the risk that good cooperation on readmission and returns may lead to unsafe third countries being declared “safe” to enable swift refusals of asylum and/or protection, linked to speedy returns at the operative level, may restrict access to protection for bona fide refugees and protection seekers. There is no guarantee that people may not be targeted by authorities and/or armed groups in target countries like Senegal and The Gambia, whereas the Bangladeshi example also brings the issue of potential climate refugees into the picture.

Yasha Maccanico, Statewatch