Visa sanctions, a sign of strength? Nope
Only a few years ago, Russia and the EU were actively engaged in a dialogue on a visa-free regime. Unfortunately, visa issues have taken a completely different turn in the last ten years. Today, far from discussing the abolition of visa requirements for all Russian nationals, some EU countries are considering banning the issuance of Schengen visas to Russians.
At the beginning of August 2022, the President of Ukraine called on Western states to close their country to Russians, while Ukraine itself has so far refrained from such measures.
Almost simultaneously, the Estonian Prime Minister and several Lithuanian, Latvian and Finnish politicians suggested that the EU stop issuing visas to Russian nationals. Previously, the Polish authorities had made a similar proposal.
After Russia recognized the Donetsk People’s Republic and the Lugansk People’s Republic, several EU states, for various reasons, either restricted the issuance of Schengen and national visas to Russian nationals, stopped issuing them, or restricts the entry of Russian nationals by other means. However, EU statistics for the year 2019, the year before the COVID pandemic, indicate that states that suspended visa issuance in 2022, taken together, issued Russians no more than 20 % of the total number of Schengen visas at the time. At the same time, some EU member states, as part of the lifting of COVID restrictions, resumed issuing all types of visas to Russians already after February 24, 2022.
Since the EU has a common visa area, unilateral visa restrictions imposed by some states will not facilitate the desired effect of EU anti-Russian sanctions. Consequently, at the end of the summer, supporters of greater sanctions pressure on Russia were seen discussing an EU-wide ban on issuing Schengen visas to Russian nationals.
Predictably, Moscow took a very negative view of the idea, while the European Commission and leaders of other EU member states were rather skeptical. Nevertheless, plans are to discuss this issue at the meeting of the Council of the European Union to be held on August 31, 2022.
National measures to restrict visa issuance and entry
Along with restricting the issuance of Schengen visas, some EU member states restrict the entry of Russian nationals. For example, since August 18, 2022, the Estonian authorities have restricted the entry into Estonia of Russian holders of Schengen visas issued by Estonian foreign missions. The Polish authorities have proposed a rather original way of restricting the entry of Russian nationals. In February 2022, while lifting coronavirus restrictions, Poland kept entry restrictions in place via the Russian-Polish and Belarusian-Polish borders. Officially, Russian nationals are not prohibited from entering Poland and they can enter the Republic of Poland through all domestic and foreign borders, except Russian-Polish and Belarusian-Polish border crossings. Moreover, these are general restrictions, since they apply to nationals of all states crossing the border with Russia and Belarus, except for those directly listed in the order of the Ministry of Interior of the Republic of Poland. As absurd as these restrictions are, they are not technically in contradiction with either EU law or international law as they are part of the anti-COVID measures where states have wide discretion.
As for Estonia’s decision to ban entry to Russian nationals, it directly contravenes EU law. Article 6 of the Schengen Borders Code establishes the conditions for the entry of foreign nationals into the Schengen area: having a travel document (passport), a visa, the reason for the trip, the absence of alerts issued in the system Schengen information and no reason to believe that a foreign national poses a threat to public policy, internal security, public health and international relations. If a foreign national fulfills all entry requirements, a border guard has no reason to refuse entry. This norm has direct force and the Estonian authorities must comply with it.
Furthermore, under Article 4 of the Schengen Borders Code, all decisions relating to the application of this code must be taken on an individual basis. In other words, the authorities cannot classify all Russian nationals as posing a threat to public order. This means that European Union law excludes the general denial of entry to Russian nationals. It should be mentioned that the concept of “threat to public order” has been repeatedly explained in EU case law and legislation. However, no one has ever propagated the idea of declaring an entire nation a threat to public policy.
As for EU member states suspending the issuance of Schengen and national visas, such actions are questionable in terms of compliance with EU law. Technically, the EU Community Visa Code is directly applicable as it establishes the procedure and conditions for issuing Schengen visas. Any decision to refuse a visa must comply with the requirements of the Code and must be justified (article 32). In addition, national legislation should provide for the possibility of appeal. When applying the Visa Code, law enforcement authorities have to take decisions on an individual basis (Article 1). However, states that have suspended visa issuance are not denying visas, they are not accepting visa applications. In other words, these States do not carry out activities with a view to issuing Schengen visas to Russians, and the European Union cannot oblige them to carry out such activities since this issue falls within the competence of national governments.
By ceasing to issue visas to all Russian nationals, EU Member States are violating the principles of non-discrimination and the prohibition of collective responsibility when they must comply with these principles as members of the EU.
Prospects for an EU-wide ban on issuing Schengen visas to Russian nationals
This situation requires consideration of both the legal and political aspects of this initiative.
Technically, EU law does not provide for such a prohibition. Under Article 215 of the Treaty on the Functioning of the European Union, restrictive measures may result in the partial or total suspension or reduction of economic and financial relations with one or more third countries, as well as measures against natural and legal persons, groups or non-state entities. Individual sanctions may consider visa restrictions, but EU law does not grant the EU the possibility to introduce a general visa restriction against all nationals of a given state. The Community Visa Code does not contain such provisions either. Under the Visa Code (Article 25a), the Council may, on a proposal from the Commission, decide to tighten the visa regime for nationals of States which refuse to cooperate in the field of readmission, i.e. say states that present a high risk of immigration. According to the EU’s own data, Russia is not a high-risk state for immigration. According to official EU statistics, Russian nationals have recently received the highest number of Schengen visas with the highest percentage of multiple entry visas and they also have one of the lowest percentages of visa refusals.
Furthermore, the ban on issuing visas to all nationals of a given State contravenes fundamental principles of modern democratic society such as non-discrimination and the prohibition of collective responsibility. For, if a ban on issuing visas to all Russian nationals were to be introduced, it could be characterized as a punishment inflicted on all people without regard to the role and guilt of each citizen, and international law prohibits collective responsibility . A general ban on issuing visas can also qualify as discrimination based on nationality, which is prohibited by international and EU law. This is why the history of European integration has not known such prohibitions until today.
As far as the political aspect of this initiative is concerned, this approach will in any case be counter-productive.
Under the Guidelines on the implementation and evaluation of restrictive measures (sanctions) in the framework of the EU’s Common Foreign and Security Policy, the EU adheres to the principle of targeted measures. The point of this approach is that the greatest effect of sanctions should be aimed directly at decision-makers and those with connections to decision-makers, and should have minimal effect on the general population of the country. If a ban on issuing visas is introduced, it will mainly affect ordinary citizens and especially the part of the population which is to some extent connected with the EU states and quite sympathetic to them. Proponents of visa restrictions on Russian nationals believe that the ban on entering the EU will cause public discontent with Russian political leaders. This ban, however, is more likely to induce a negative attitude towards EU authorities, which will certainly be conducive to further escalation of tensions between the parties.
Unfortunately, even if this initiative is irrational and has no legal basis, the possibility that this decision will be adopted cannot be excluded because the policy of sanctions against Russia – as it is currently implemented – shows that the EU has repeatedly taken measures contrary to international law and Union law itself.
At the same time, the EU is unlikely to adopt an EU-wide ban on issuing Schengen visas to Russian nationals. To date, only a small group of EU Member States strongly support this initiative, while this decision requires the consent of all EU States (Articles 24, 29 of the Treaty on European Union) and the approval of the European Commission and the High Representative. Union for Foreign Affairs and Security Policy (Article 215 of the Treaty on the Functioning of the European Union) since it is the two parties who will have to jointly draft the restriction bill. An initiative proposed by Member States remains simply an initiative until the Commission and the High Representative turn it into a draft law.
So far, the European Commission is obviously in no hurry to approve such a drastic measure. Furthermore, many EU member states are unwilling to sever relations with Russia and its nationals; and some do not wish to lose Russian tourists to satisfy someone else’s ambitions. The adoption of such an EU-wide ban would become a very worrying precedent that testifies to the Union’s distance from the fundamental principles of European integration.
From our partner RIAC