5Visa exemption for UK nationals travelling to the EU after Brexit
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Committee’s assessment |
Politically important |
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Not cleared from scrutiny; further information requested; drawn to the attention of the Exiting the European Union Committee, the Foreign Affairs Committee, the Home Affairs Committee and the Justice Committee |
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Document details |
Proposal for a Regulation amending Council Regulation (EC) No 539/2001 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, as regards the withdrawal of the United Kingdom from the EU |
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Legal base |
Article 77(2)(a) TFEU, ordinary legislative procedure, QMV |
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Department |
Home Office |
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Document Number |
(40192), 14329/18, COM(18) 745 |
Summary and Committee’s conclusions
5.1The proposed Regulation is one in a series of measures put forward by the European Commission to prepare for the UK’s withdrawal from the EU. It would amend the 2001 EU Visa Regulation to include the UK in the list of third countries whose nationals do not need to obtain an entry visa for short-stays (visits which do not exceed 90 days in any 180-day period) within the Schengen area.38 The Regulation would enter into force on 30 March 2019—exit day—but only take effect when EU law ceases to apply to the UK. This could be any date between 30 March 2019 (if the UK leaves without an exit deal) and 1 January 2023 (if the draft EU/UK Withdrawal Agreement is ratified). The European Commission makes clear that the visa exemption for UK nationals is conditional on the UK allowing reciprocal visa-free entry post-exit for the nationals of the remaining 27 EU Member States.
5.2The 2001 EU Visa Regulation forms part of the Schengen rule book which does not apply to the UK. The UK is not therefore entitled to take part in, or vote on the adoption of, any changes to the EU Visa Regulation. In her Explanatory Memorandum of 30 November 2018, the Immigration Minister (Rt Hon Caroline Nokes MP) referred us to the Government’s July 2018 White Paper, The Future Relationship Between the United Kingdom and the European Union, which envisages reciprocal arrangements to enable citizens to travel freely between the EU and the UK, without a visa, for tourism and temporary business activity. She noted that the Political Declaration on the Framework for the Future Relationship accompanying the draft EU/UK Withdrawal Agreement also commits the EU and the UK to “aim to provide, through their domestic laws, for visa-free travel” for short-term visits. The proposed Regulation is consistent with this objective.
5.3Whilst welcoming the proposed Regulation, we reminded the Minister that the European Commission has made its progress through the legislative process dependent on the Government “formalising” its commitment to grant EU citizens reciprocal visa-free access for short stays in the UK, once free movement ends. We asked her whether this would necessitate a change to the UK’s Immigration Rules and to indicate when she expected to announce and give effect to this change.
5.4In her letter of 22 January 2019, the Minister explains that the current rules on free movement set out in the EU Free Movement Directive are implemented in the UK by the Immigration (European Economic Area) Regulations 2016.39 These rules are “frozen” by the European Union (Withdrawal) Act 2018 and will remain in force until they are repealed by the Immigration and Social Security Coordination (EU Withdrawal) Bill once it receives Royal Assent. The purpose of the Bill is to end the free movement rights of EU citizens within the UK by revoking the domestic rules which give effect to them. Unlike the EU Visa Regulation, the UK’s Immigration Rules only list the countries whose nationals are required to obtain a visa to enter the UK. They do not list the countries whose nationals enjoy visa-free entry to the UK. As a consequence, the Minister confirms that “there is no requirement to make any changes to the Immigration Rules to formalise our commitment to grant EU nationals visa-free access to the UK”.
Recent developments
5.5The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs agreed its report on the proposed Regulation on 29 January 2019. It proposes to include a new recital which further underlines the expectation that the UK will grant full visa-free entry to the nationals of all EU Member States, without any differentiation, and calls on the European Commission to “monitor the respect of the principle of reciprocity on a continuous basis”.
5.6A Council press release issued on 1 February 2019 states that COREPER (the body on which Member States’ ambassadors to the EU are represented) has agreed a mandate to open negotiations with the European Parliament. It makes clear that “visa exemption is granted on condition of reciprocity”, adding:
In the event that the United Kingdom introduces a visa requirement for nationals of at least one Member State in the future, the existing reciprocity mechanism would apply and the three institutions [European Commission, Council and European Parliament] would commit to act without delay in applying the mechanism.
5.7A report in the Financial Times, also published on 1 February 2019, states that Spain has pressed for and obtained an amendment to the text originally proposed by the European Commission so that it includes a footnote reference to Gibraltar as “a colony of the British Crown”. If formally approved by the Council and European Parliament, the report suggests that a similar footnote would be included in all future EU legislation concerning the UK post-exit.40
Our Conclusions
5.8We thank the Minister for clarifying the default position under the UK’s Immigration Rules which is that EU citizens will not be required to obtain a visa for short stays in the UK post-exit/transition. Should the Government wish to introduce a visa requirement for EU citizens (or differentiate between them), a change to the Immigration Rules would be necessary. We ask the Minister for an assurance that Parliament would be informed of, and consulted on, any proposal to change the visa status of EU citizens in the future, given the important implications this would have for the visa status of UK nationals travelling to the Schengen area under the EU’s reciprocity rules.
5.9We would welcome the Government’s view on the amendment proposed by the European Parliament’s Civil Liberties Committee. We also ask the Minister to:
- provide a copy of the negotiating mandate agreed to by COREPER;
- comment on the significance of any changes made, particularly concerning references to the status of Gibraltar; and
- update us on the progress of trilogue negotiations with the European Parliament.
5.10Meanwhile, the proposed Regulation remains under scrutiny. We draw this chapter to the attention of the Exiting the European Union Committee, the Foreign Affairs Committee, the Home Affairs Committee and the Justice Committee.
Full details of the documents
Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 539/2001 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, as regards the withdrawal of the United Kingdom from the EU: (40192), 14329/18, COM(18) 745.
Background
5.11The inclusion of a third country in the visa-required or visa-exempt list annexed to the EU Visa Regulation must be based on a case-by-case assessment of various criteria, notably:
- the risk of illegal immigration;
- public policy and security;
- economic benefit from tourism and foreign trade;
- external relations considerations, such as respect for human rights and the implications for regional coherence; and
- reciprocity.
5.12The Regulation contains a suspension mechanism enabling the EU to review and suspend visa-free travel in the event of a “substantial and sudden increase” in the number of illegal immigrants or asylum applicants from a visa-exempt third country. It also contains a reciprocity mechanism to ensure that the EU can respond swiftly if a visa-exempt third country imposes a visa requirement on the nationals of any EU Member State.
5.13The changes proposed in the amending Regulation would include the UK in the list of visa-exempt third countries in recognition of the UK’s geographical proximity to the EU, close trading links, high volume of travel and shared commitment to human rights, democracy and the rule of law.41
Previous Committee Reports
Forty-eighth Report HC 301–xlvii (2017–19), chapter 6 (12 December 2018).
38 Regulation (EC) No 539/2001. The Regulation has been frequently amended. The link is to the latest consolidated text of the Regulation.
39 See Directive 2004/38/EC.
40 See the Financial Times, 1 February 2019, Gibraltar to be designated ‘Crown colony’ in EU law for no-deal Brexit.
41 See the European Commission’s explanatory memorandum accompanying the proposed Regulation.
Published: 12 February 2019