Select Committee on European Scrutiny Thirty-Seventh Report


20 Visas to enter the Schengen area

(27701)

11668/06

COM(06) 84

Draft Regulation amending Regulation (EC) No. 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders of Member States and those whose nationals are exempt from that requirement

Legal baseArticle 62(2)(b)(i) EC; consultation; QMV
Document originated13 July 2006
Deposited in Parliament19 July 2006
DepartmentHome Office
Basis of considerationEM of 10 August 2006
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionNot cleared; further information requested

Background

20.1 In 2001, the Council adopted a Regulation which lists the third countries whose nationals are or are not required to possess a visa to enter the Schengen area.[57] Recital 5 of the Regulation says that the determination of the countries whose nationals are required to have a visa is to be governed by a case-by-case assessment using a variety of criteria relating to, among other things, illegal immigration, public policy and security, reciprocity, regional coherence and the EU's external relations with third countries.

20.2 For the purposes of the Regulation, "visa" is defined as an authorisation or decision by a Member State in connection with either an intended stay of no more than three months in the area of the Member State or several Member States or transit through the area of the Member State or States.

20.3 Annex I of the Regulation lists the third countries whose nationals are required to have a visa and Annex II those whose nationals are exempt.

20.4 The Schengen Convention of 1990 abolished checks on the movement of people across the common borders of the signatory countries and created a single external frontier where checks were to be carried out in accordance with a common set of rules. The Convention was incorporated into EU law by the Treaty of Amsterdam 1997. The UK is not part of Schengen area.

20.5 Article 62(2)(b)(i) of the EC Treaty requires the Council to decide the lists of third countries whose nationals are or are not required to have short-stay visas in order to enter the Schengen area.

The document

20.6 In its explanatory memorandum, the Commission says that it has reviewed the present lists of third countries using the criteria in recital 5 of the 2001 Regulation. For the reasons given in the explanatory memorandum, the Commission proposes amendments to the Annexes I and II of the Regulation:

  • to require nationals of Bolivia to have a visa to enter the Schengen area (at present, they are not required to have one);
  • to exempt the nationals of Antigua and Barbuda, the Bahamas, Barbados, Mauritius, St Kitts and Nevis and the Seychelles from the requirement to have a visa (at present, they are required to have one);
  • to exempt holders of British National (Overseas) passports from the requirement to have a visa (at present, they are required to have one);[58]
  • to require British Overseas Territories Citizens, British Overseas Citizens, British Subjects and British Protected Persons to have a visa (at present, they are exempt);[59]
  • to exempt members of the armed forces travelling on NATO business from the requirement to have a visa;
  • to exempt from the requirement refugees and stateless people living in one Schengen State if they are travelling to another Schengen State; and
  • to widen the scope of an existing exemption for school children travelling on organised school trips in the Schengen area.

20.7 The Commission says that it:

"is proposing that Britsh Overseas Territories Citizens (BOTC), British Overseas Citizens (BOC), British Subjects and British Protected Persons (BPP) [should] be placed in Annex I [required to have a visa]. The United Kingdom nationality laws were extensively amended by the British Territories Act 2002 [sic], which made most BOTC eligible to apply to become British citizens and therefore Union citizens. As regards BOTC who have not become British citizens and BOC, British Subjects and BPP, these categories of people have what can only be [described] as a tenuous link with the United Kingdom as they have no right of abode and are subject to immigration controls. There is also considerable uncertainty as to possible links to other States and the exact nature of such links. The Commission accordingly concludes that these categories should be subject to visa requirements as there is a risk of illegal immigration."[60]

20.8 The UK will not be bound by the proposed Regulation because it does not participate in the immigration provisions of the Schengen acquis.

The Government's view

20.9 The Parliamentary Under-Secretary of State for Nationality, Citizenship and Immigration at the Home Office (Joan Ryan) tells us that, although the UK is not bound by the EU Common Visa List, the draft Regulation is of interest to the Government because it affects the holders of several different categories of British passport.

20.10 The Government is content with the proposals to require nationals of Bolivia to possess a visa and to exempt nationals of Antigua and Barbuda, the Bahamas, Barbados, Mauritius, St Kitts and Nevis and the Seychelles; this would bring the EU lists into line with the UK's visa requirements.

20.11 The Government welcomes the proposal to exempt holders of British National (Overseas) passports from the requirement to have a visa to enter the Schengen area.

20.12 The Minister goes on, however, to say that:

"The FCO believes that BOTC passport holders, most of whom are also eligible to hold British Citizen passports and have the right of abode in the UK, should also be listed in Annex II [not required to have a visa] and will take this up at the discussion stage of the proposal. Presumably the FCO would have similar objections to the Commission's proposal to require visas of other categories of British passport holder[;] but[,] although they have been given the opportunity to comment on this[,] they have not done so."

Conclusion

20.13 We consider the draft Regulation to be of political importance because of the effects it would have on the holders of various categories of British passport. We understand why the Government considers that British Overseas Territories Citizens should continue to be exempt from the requirement to possess a visa to enter the Schengen area. We ask the Minister to keep us informed of the negotiations on this point.

20.14 We do not understand why the Foreign and Commonwealth Office had not commented on the proposal to require British Overseas Citizens, British Subjects and British Protected Persons to possess visas. We ask the Minister to ensure that we are provided with the views of the Foreign and Commonwealth Office.

20.15 Pending the provision of the information requested in the preceding two paragraphs, we shall keep the draft Regulation under scrutiny.



57   Regulation (EC) No. 539/2001: OJ No. L 81, 21.3.01 p.1. Back

58   British National (Overseas): a British national who registered as a British National (Overseas) and was, before 1 July 1997, a British Dependent Territories Citizen by virtue of a connection with Hong Kong. Back

59   British Overseas Territory Citizen (formerly known as a British Dependent Territories Citizen): a British national by connection with one of the overseas territories listed in Schedule 6 to the British Nationality Act 1981.With the exception of people connected solely with the Sovereign Base Areas of Akrotiri and Dhekelia, people who were British Overseas Territory Citizens before 21 May 2002 became British Citizens automatically under the Britsh Overseas Territories Act 2002. British Overseas Citizen: (a) a citizen of the United Kingdom and Colonies on 31 December 1982 and who did not become a British Citizen or a British Dependent Territories Citizen under the British Nationality Act 1981;

or

(b) a person who was a British Dependent Territories Citizen by connection with Hong Kong who had not registered as a British National (Overseas) and would otherwise have become stateless on 1 July 1997, when sovereignty was handed over to China;

or

(c) a person born on or after 1 July 1997 who would otherwise be born stateless, provided either a parent was a British National (Overseas) or a British Overseas Citizen under (b) above.

 Back

60   Commission explanatory memorandum, page 4, second full paragraph. Back


 
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