Letter to the Clerk of the Committee from the Parliamentary Relations and Devolution Team, Foreign and Commonwealth Office, 13 February 2007
During evidence on 13 December 2006 for the Developments in the EU Inquiry, Andrew Mackinlay asked about overseas territories citizens and visa requirements for travel in Europe (Q95-99). The Foreign Secretary undertook to provide further details on the visa requirements of certain categories of British Nationals who wished to travel within the Schengen area. The FAC was concerned that there might be an alteration to the Schengen Common Visa List (CVL) that would require British overseas territories citizens (BOTCs) from Bermuda and the five British overseas territories in the Caribbean to have visas in order to visit the Schengen area of Europe. In order to provide a full and comprehensive answer I will set out the background and context of the amendment to the CVL and its implications for British Nationals.
Categories of British Nationals and the requirements for their entry into the UK
BOTCs come from any of 14 British overseas territories scattered across the globe. The great majority of BOTCs have a right of abode in the UK as in 2002 the British Overseas Territories Act made all existing BOTCs, except those whose BOTC status derived solely from a connection with the Cyprus Sovereign Base Areas (CSBA), automatically become British citizens. As British citizens, these BOTCs are not subject to immigration control for entry into the UK.
There are a small number of BOTCs who are not also British citizens and who therefore do not have the right of abode in the UK. These are persons who were registered or naturalised as BOTCs after 2002 and who have not subsequent y been registered as British citizens, and those whose BOTC status derives solely from a connection with the CSBA. People who became BOTCs after 2002 can apply for British citizenship unless their BOTC status derives from a connection with the CSBA, or unless they have previously held, but given up, British citizenship. The application will then be considered at the Home Secretary's discretion, and in practice all applications are granted except for when an applicant is suspected of acquiring BOTC status improperly.
BOTCs who are not also British citizens, British Overseas citizens (BOCs), certain categories of British subjects (BSs) - primarily those who have a connection with India and Pakistan rather than with Southern Ireland -- and British protected persons (BPPs) do not have automatic returnability to their country of residence or any right of abode in the UK. These categories of British nationals must satisfy an immigration officer that they qualify for entry into the UK in accordance with the Immigration Rules. These nationals also need a visa in certain situations, e.g., when seeking entry for a period exceeding six months or for a purpose for which prior entry clearance is required under the Immigration Rules.
There is one important exception to this. All BOTCs who derive their BOTC status through a connection with Gibraltar are EU Citizens. As EU Citizens they benefit from free movement rights within the EU.
All British citizens have the right of abode in the UK, i.e. they are entirely free from UK immigration controls.
Negotiations on the CVL
The United Kingdom does not participate in the CVL, and therefore does not have a vote on matters pertaining to it. Nevertheless, the Commission agreed to take our views into account as long as our position was clear and unambiguous, and no immigration risk was perceived by other Member States.
In their initial proposal the Commission suggested that the 3.4 million British Nationals Overseas (BN(O)s) should be exempt from visa requirements to enter the Schengen area. The Commission considered that they would not constitute a migratory risk or a risk in terms of public policy, as they are re-admissible to Hong Kong and the passports that British offices issue exclusively to them have highly reliable security features. Most BN(O)s also hold Hong Kong Special Administrative Region passports, which allow visa-free travel to EU Member States.
This change was agreed by Member States BN(O)s do not have the right of abode in the UK They do not need a visa to come to the UK, unless seeking entry for a period exceeding 6 months or for a purpose for which prior entry clearance is required, but they must satisfy an immigration office that they qualify for entry in accordance with the Immigration Rules.
The Commission's initial proposal also stated that all BOTCs and BSs should be subject to the Schengen visa regime. However, at the Visa Working Group meetings of 26 October 2006 and 14 November 2006 the Commission agreed -- in view of a UK intervention and ECJ case law - to allow those BSs and BOTCs with a right to abode in the UK visa free access into the Schengen area. The Commission felt that re-admissability to the country of origin was less certain for those BOTCs and BSs without the right of abode in the UK than for the BN(O)s, and was therefore unwilling to grant visa exemptions to them.
This proposal was accepted by the SCIFA/Mixed Committee of 9 November 2006 and the Permanent Representatives Committee (COREPER) of 23 November 2006 where agreement was reached on the text of the then draft Regulation. The amendments to the CVL mean that Schengen immigration control requirements for the relevant British nationals are now more in alignment with the UK's immigration control. The FCO was consulted about how to conduct the above negotiations, and was content with the strategy that was used.
Proving a right of abode in the UK
BOTCs have a right of abode in the UK if they simultaneously possess British citizenship. As British citizens, they additionally enjoy the rights of free movement and establishment conferred by or under the EC Treaty and, therefore, visa free access to the Schengen area. The majority can prove their status at border controls by producing one of two documents; a British citizen passport or a BOTC passport containing a certificate of entitlement to the right of abode in the UK. A BOTC passport without this certificate will not suffice. The only exception to this is for BOTCs who derive their status from a connection with Gibraltar, as their passports are in an EU format and are evidence of the holders free movement rights within the EU. All BOTCs who are also British citizens would be granted a British citizen Passport and/or a certificate of entitlement to the right of abode in the UK (to put in their BOTC passport) upon application and payment of the requisite fee.
BS passports are endorsed on issue either to show that the holder has right of abode (generally speaking, those whose BS status derives from birth in Ireland) or that the holder has right of re-admission to the UK.
As mentioned above, BOTCs who derive their BOTC status from a connection with Gibraltar have no need to prove a right of abode in the UK. Spain recognised Gibraltarian ID cards as valid travel documents to establish the holders right of free movement within the EU in 2000. Free movement rights are governed by the Free Movement Directive 2004/38/EC that entered into force on 30 April 2006, which also supports that Gibraltarian ID cards establish the holders right of free movement within the EU. All BOTC(Gib) EU format passports arc also evidence of the holders free movement rights. We are writing separately to the Commission on this point.
BOTCs from Bermuda and the British overseas territories in the Caribbean who possess British citizenship, and hence have the right of abode in the UK, have visa free access to the Schengen area. The great majority of these BOTCs possess British citizenship, and most of those who do not possess British citizenship can register as British citizens if they wish and also obtain the right of abode.
To pass Schengen border controls without a visa, a BOTC with simultaneous British citizenship may need to show either a British citizen passport or a BOTC passport which contains a certificate of entitlement to a right of abode in the UK. Those who do not already possess either one of these documents can apply for them by virtue of their British citizenship. The certificate of entitlement to a right of abode in the UK is applied for separately from the BOTC passport, but they must be displayed together.
Beside British citizens there are, as a legacy of empire, a number of other categories of British passport holders: British Nationals (Overseas) (BN(O)s), British overseas territories citizens (BOTCs), British subjects (BSs), British Overseas citizens (BOCs) and British protected persons (BPPs). EU Member States previously imposed national visa requirements on certain British nationals resulting in a variegated system to the latters' detriment. (For example, a BOC needed a visa to enter France but not Malta.) It has long been our policy to seek the removal of EU visa requirements on British nationals, particularly the 3.4 million BN(O)s.
Schengen, of which the UK is not a member for the purpose of border control, operates a Common Visa List (CVL). The amendment to the Schengen CVL (Regulation 539/2001) for the first time introduced a common EU visa policy for British nationals. Because of our approach to Schengen border provisions, we are not allowed to participate or vote on legislation in this area. However, we engage in debate and have been able to persuade the Commission and other Member States to act in our interest. Regulation (EC) 1932/2006 amending Regulation (EC) 539/2001 entered into force on 19 January 2007.
Below is a table on the different categories of British National, and how the amendment to the CVL has affected them. We cannot guarantee the exact location of all British nationals, so I include our best approximation.
Parliamentary Relations and Devolution Team
Foreign and Commonwealth Office