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Inquiry into rules governing the analysis and weighting of evidence in a German Embassy Schengen Visa procedure
Synopsis & translation (coming soon)
Original message from OSP to Foreign Affairs Office (October 21st, 2021)
Gemäß Artikel 21 Absatz 1 des Visakodex der Gemeinschaft muss im Rahmen der Antragstellung für ein Schengenvisum seitens des Antragstellers nachgewiesen werden, dass dieser "beabsichtigt, vor Ablauf der Gültigkeitsdauer des beantragten Visums das Hoheitsgebiet der Mitgliedstaaten zu verlassen." Hierfür sollen geeignete Nachweise vorgelegt werden. Im Rahmen der Überprüfung des Antrags durch eine Verwaltungsfachkraft der Botschaften wird anschließend ein "Beurteilungsspielraum" ausgeübt, gemäß dem "die für und gegen das Vorliegen einer Tatbestandsvoraussetzung sprechenden Gesichtspunkte abgewogen werden" sollen (siehe Visumhandbuch). Im Rahmen meiner Anfrage möchte ich die Offenlegung von Weisungen an die Botschaften erzielen. Aus diesen soll hervorgehen, welche Methoden zur Auswertung von eingereichten Nachweisen (z.B. hinsichtlich Authentizität, Plausibilität, Stimmigkeit) und zur Gewichtung der Beurteilungskriterien (soziale, berufliche, wirtschaftliche Bindung an das Heimatland u.a.) angewendet werden. Soweit diese Weisungen von Botschaft zu Botschaft individualisiert erstellt werden, so bitte ich darum, exemplarisch die Weisungen für die Deutsche Botschaft Nairobi auszuhändigen.
Document provided by Foreign Affairs Office to OSP (November 18th, 2021)
Inquiry regarding the political justification of the Schengen Visa entry criteria
Synopsis (coming soon)
Original message from OSP to Europe Direct (April 15th, 2020)
An essential requirement for a Schengen visa to be granted by a competent national authority is the applicant's proven intention to timely leave the territory of the Schengen member states. An intention to timely leave the territory of the member states is generally assumed when an applicant has provided sufficient evidence of his or her entrenchment in the home country, amongst other things. I would like to know based on what evidence the Schengen Visa Code presumes that economic or social ties should be seen as influential factors that likely compell the applicant to return to his or her home country. In other words: does the Commission possess statistics or other credible evidence that would prove or suggest beyond reasonable doubt that an applicant with greater ties to his or her homecountry is more likely to return home in time than an applicant who only has weak ties? I would be grateful if you could point out to me any official or consulted documents that could shed more light on this subject for me. Should you not be able to provide this, I would appreciate a position statement regarding this matter.
Response by European Commission to OSP (Feb 26th, 2021)
In your message of 27 January 2021 your reiterated a request addressed to Europa Direct in April 2020. Similarly to the questions that you had raised earlier (and to which DG HOME replied in April 2020) the new questions were of a theoretical nature and did not relate to a concrete case. We nevertheless apologize for this late reply. Under the Visa Code, Article 21, Member States are to verify whether visa applicants fulfil the entry conditions (as set out in the Schengen Borders Code) and to assess whether an applicant presents a risk of illegal migration or a risk to the security of the Member States and finally, assess whether the applicant intends to leave the territory of the Member States before the expiry of the visa applied for. It can rightly be assumed that persons who have ties in their country of origin or residence, such as family ties, a solid professional status and property would have little inclination to abuse the visa rules to stay illegally in the European Union. This assessment is naturally based on consular staff’s knowledge of local circumstances in the third country concerned and their risk assessment. The revised VIS Regulation amends Article 21 Visa Code to the effect that visa authorities will in the future have to take into account the results of automated checks in other EU systems and Interpol databases and hits against specific risk indicators when examining visa applications.
Response from OSP to European Commission (May 10th, 2021)
Response by European Commission to OSP (August 4th, 2021)
On 26 February 2021 “Europa Direct” sent a reply to your queries regarding the EU rules on short stay visas. On 10 May 2021 you contacted us again, as you considered that reply incomplete. Please find below further explanation of the legal framework governing short stay visa procedures. The EU’s short stay visa policy constitutes an important pillar of the Schengen acquis with a comprehensive legal framework for determining which third-country nationals are under the visa requirement, the conditions and procedures for issuing short stay visas (the Visa Code), the Visa Information System (VIS) recording all visa applications and decisions taken and a uniform format for visas. Allow me, in this context, to recall that it is the role of the Commission to monitor the implementation of the various legislation on short stay visas as adopted by the Council and the European Parliament. Additionally, under Council Regulation (EU) No 1053/20131 Member States’ implementation of the entire Schengen acquis is regularly monitored. Evaluations are carried out over a five-year cycle, meaning that each Member State is evaluated at least once every five years. Based on the findings in the evaluations between 2015 and 2019, it was concluded that overall, Member States comply with the essential provisions of the Schengen acquis in all the evaluated policy fields. The Commission’s Staff Working Document (SWD (2020) 327 final) of 25 November 20202 provides a summary of the findings of the evaluations that took place between 2015 and 2019 per policy area. As mentioned in our earlier reply, the Visa Code, Article 21, sets out the various conditions to be verified by Member States’ consulates before a decision can be taken on a visa application. The entry conditions listed in this article mirror the fundamental entry conditions set out in the Schengen Borders Code. As specified in Article 21(9) of the Visa Code, each application is to be assessed on an individual basis and what matters is that the person fulfils the entry conditions and will depart from the Schengen area at the expiry of the granted short stay visa. Applying for a short stay visa is not the solution for persons who wish to stay longer than 90 days per 180 days. Other types of entry and residence permits exist for such purposes. Furthermore, verification of visa applicants’ ties to their country of origin or residence is a globally established standard. Proof of such ties is required in visa procedures across the world applied also by e.g. the USA, Canada, Australia, Japan and South Africa. Since March 2020, the travel restrictions imposed because of the pandemic have led to a decrease of around 80% of the volumes of visa applications handled worldwide but judging by the 2019 statistics on short stay visas, the average refusal rate was 9,6%, meaning that more than 90% of all visa applications lead to the granting of a short stay visa of which 60% allowed for multiple entries. The percentage of applications, that were refused in 2019, varied widely and ranged from less than 2% (e.g. Indonesia and Russia) to more than 35% (e.g. Algeria, DR Congo, Eritrea, Iraq and Nigeria). Finally, in line with the rules of good law-making, the Commission always welcomes input from stakeholders and the general public. As an example, I draw your attention to the recent open-public consultation on digitalisation3 where members of the public could ‘have their say’ to provide input for this upcoming EU initiative.
Response from OSP to European Commission (August 10th, 2021)
I can confirm that I have received a reply (Ares(2021)4940660) from Dimitri Giotakos on August 4th in relation to my inquiry from May 10th 2021 (Ref. EUDGMHA10052021). Regrettably, as was already the case with the first reply that was issued to me on February 26th, Mr. Giotakos' answer almost entirely avoided the substance of my inquiry. This is despite my May 10th letter clearly pointing out my grievances. Mr. Giotakos' letter from August 4th led with a general explanation of the individual policy parts that the Schengen Acquis consists of, despite such an explanation not having been requested. He followed up with the Commission's role in monitoring the functioning of the Acquis. I took the time to read the entirety of the referenced document (SWD (2020) 327 final) and found it to be irrelevant, as it only vaguely describes Member States' procedural compliance with the Acquis regulations. In part three of the letter, Mr. Giotakos addresses the overarching topic of my inquiry, which is the entry requirements stipulated under the Visa Code. However, instead of addressing the ethical and practical ramifications of the entry requirements (as I had clearly spelled them out for him in my letter from May 10th), Mr. Giotakos chose to inform me, based on which Articles in the Visa Code the entry requirements had to be applied by the Member State embassy. Unfortunately, this too is completely irrelevant in the context of my inquiry. In part four, Mr. Giotakos alleges that "verification of visa applicants’ ties to their country of origin or residence is a globally established standard." While I am in disagreement about the veracity of that statement, it is the only thing that in any way can count as a valid reply to my inquiry, which sought to understand how the entry requirements came to exist in the first place. It is my honest hope that the Commission still has better arguments to provide considering that legalization or tolerance of slavery, exclusion of women from voting and the workforce and the perscecution of blasphemy were also once global policy standards. If you believe this to be hyperbolic, the key point to take away is that a standard is not automatically legitimate by way of broad adoption. In part five I was presented with a recent Schengen Visa admission statistic in the wake of the COVID19 impact on global travel. As you may have already guessed, this point was once again not relevant in the context of what was asked. For an applicant who was denied a Schengen Visa, what matters is on what basis they were denied, not how many other persons were or were not denied a visa in that same country or another within that same year. Since Mr. Giotakos was clearly unable or unwilling to provide me with an adequate response to my inquiry I hereby request that all of my correspondence relating to this inquiry be escalated to the Commissioner, Ms. Ylva Johansson. The Ombudsman will be informed of the state of affairs.
Response by European Commission to OSP (September 24th, 2021)
We acknowledge receipt of your message of 10 August 2021 (ref.: (2021) 5674543). Referring to our comprehensive reply of 4 August 2021, we have no further observations to make.
Complaint against Federal Republic of Germany regarding the violation of informational rights under the Visa Code
Synopsis (coming soon)
Original message from OSP to European Commission (April 27th, 2020)
This is regarding my June and July inquiries into lack of transparency in Schengen visa application processes. In your response you assured me that the Commission would assess concrete cases in which member states have failed to correctly apply EU legislation. I would like to take the Commission at their word and present you with the case data that ultimately led to my previous inquiry coming about. In 2017 and 2018 respectively my Kenyan partner [redacted] applied for a Schengen visitor’s visa to Germany at the German Embassy in Nairobi, Kenya. In both cases her applications were denied and she was subsequently served with the standard rejection form. I have appended copies of these documents alongside this correspondence. Now, according to your response from April 2nd 2020, member state embassies are by law required to use the field for remarks to make case specific clarifications regarding the reasons leading to the rejection of the application. As you can see, both the 2017 and the 2018 visa rejection forms did not present any case relevant information to Ms. [redacted] within the remarks section. Absolutely no evidence was provided about the case officer’s assertions in relation to the evaluation of the applicant’s documents, which means that the reason for rejection was ultimately not substantiated vis-à-vis the applicant. Instead, the German Embassy in Nairobi only made general statements that could apply to any other case rejected using the same reason (nr. 9). Not knowing the visa officer’s reasoning, the applicant had no way forward, such as disproving the officer’s case specific allegations (as they remained undisclosed) or to provide new evidence where this may have been warranted. This is despite the fact that these case specific assertions indeed existed, only they were retained in the applicant’s case file and not communicated to her even upon request. You made it clear that recital nr. 15 of Regulation 2019/1155 has addressed this problem in that it clarifies the need to fill the remarks section of the rejection letter with case specific information. I appreciate that. However, I am fairly confident that the Commission cannot monitor the application thereof in all of the 16 million (as of 2018) annual visa applications. Therefore, I hold that the standard rejection form instead needs to be altered to inform applicants of their (EU and national) informational rights, so that they themselves can hold the embassies accountable. Moving forward, my expectations of the European Commission are the following:
- 1. To investigate the exact scale of the showcased problem in past, present and future visa cases, especially at the Germany Embassy Nairobi, but also at all other German and other member state embassies.
- 2. To strongly emphasise towards the member state embassies that the applicants’ right to sufficient information does not constitute an optional or volunteered service but an obligation enshrined in the rule of law.
- 3. To change the current standard rejection form in such a way that the printed information allows the applicant to immediately understand that they are entitled to case specific information, so that in case of a member state failing to comply, they can claim this right without first having to acquire in-depth legal knowledge of the Schengen Visa Code.
- 4. To take into consideration opening an EU infringement procedure against Germany and other member states in case the Commission can confirm the raised issue to be a systemic problem.
- 5. To regularly and comprehensively inform Open Schengen Project regarding steps the Commission decides to undertake or not undertake regarding my complaint.
Response by European Commission to OSP (May 19th, 2020)
Thank you for your letter dated 27 April 2020 sent to the Visa Policy Unit concerning the matters in the Visa Code you find challenging. In your letter, you reiterate your claim you spouse was not provided the details and circumstances for the refusal decision by the German Embassy in Nairobi and that the field “remark” on the visa refusal decision (Annex VI of the Visa Code) was not completed. You ask the Commission to revise the Annex VI in order to better informed applicants about their rights. In addition, you ask the Commission to monitor the implementation of the Visa Code by all German consulate and to launch an infringement procedure against Germany regarding alleged systematic issues of its application by the German consulates. As explained in our letter dated 02 April 20201, the revision of the Visa Code became applicable from 2 February 2020 and Member States will have to inform the person concerned via the new standard form for notifying reasons for refusal of the specific ground for the refusal. The Annex VI contains a section where additional remarks can be provided to the visa applicant. Furthermore, the Commission evaluates if specific laws, policies and spending activities are fit for purpose and have delivered, at minimum cost, the desired changes to European businesses and citizens. The evaluation findings help the Commission decide whether EU actions should be continued or changed. The Commission also regularly assesses concrete cases as to whether Member States have failed to comply with applicable EU legislation, in this concrete case with the Visa Code. Launching an infringement case against a Member State is always an option for the Commission as “the guardian of the treaties” once an obvious failure to comply with EU law has been proved. In this context, it should be pointed out that the Communication Communication from the Commission to the Council and the European Parliament "Updating the handling of relations with the complainant in respect of the application of Union law” recalls that the Commission enjoys a discretionary power in deciding whether or not to commence infringement proceedings. Furthermore, the Commission has a discretion which excludes the right for individuals to require it to adopt a specific position. This discretion is fully recognised by the European Union Court of Justice and by the EU Ombudsman. Finally, the public authorities and Member States' courts have the main responsibility for the application of Union law. When you consider you have suffered loss or damage, a judicial review is always opened before a national judge. The latter can take into account all the facts and circumstances linked to the treatment of a visa application and can assess, in accordance to national procedural rules, how the decision was taken by national consulate in the third- country.
Inquiry regarding lack of information provided to Schengen Visa applicants via the standard rejection letter
Original message from OSP to Europe Direct (June 16th, 2019)
When Schengen visa applicants are denied by the responsible member state embassy or consulate, they are served with a standard form (Annex VI, Visa Code) stating the reason for refusal. However, this reason is only stated in short. It does not actually enable the applicant to understand how the embassy arrived at the decision that led to the refusal, because the stated reason for refusal does not establish how the documentation provided by the applicant was evaluated by the responsible officer, in order to justify this negative decision. 1. Considering that the embassy officer in charge must outline the reason for rejection in more detail on a decision-making draft, why does the visa codex not contain a provision requiring the embassy to submit a copy of this document to the applicant? 2. Based on the current legal provisions, does the Commission deem that the member state embassies and consulates are obliged to provide the rejected applicant with more information once he or she has indicated their intention to want to learn more? 3. Considering the low detail of information provided in the standard form, and considering the applicant is required to provide new information, how does the Commission envision an applicant could successfully appeal a rejection, when they have no basis for clearly determining which information may help reverse the initial decision in the first place? 4. Considering that the rejection could well be caused by error on part of the embassy, e.g. because the responsible officer misinterpreted information (and therefore drew wrong conclusions), why should the information provided in the standard form be deemed sufficient to justify the embassy’s decision vis-à-vis the applicant?
Response by Europe Direct to OSP (July 8th, 2019)
A person who has been refused a short stay visa under Article 32 of the Visa Code has a right to appeal the negative decision (Article 32(3)). Appeals must be conducted against the Member State that took the final decision and in accordance with the national law of that Member State. The person concerned is not “required to provide new information” as claimed by the member of the public in such a procedure. The revised Visa Code (text to be published in the Official Journal on 12 July 2019) certain refusal grounds listed in Annex VI to the Code have been split into several grounds thus offering more details to the person contained. The revised rules will become applicable early 2020.
Response by OSP to Europe Direct (July 29th, 2019)
Following my review, I found that your reply did not address my questions. In fact - I have to be this clear - it did not even come close to doing so. 1. You partly addressed question 3 by saying that the applicant does not have to provide new information. While this is formally correct, it completely ignores practice. If the applicant does not address the reason for his or her denial, then in practice, without new evidence, there is a very high chance that the embassy will simply confirm the previous decision due to the factual basis not having changed. The question was otherwise ignored, and I do not see why it should be. 2. You also referenced Regulation 2019/1155, recently published in the Official Journal of the European Union (L 188). While this new policy does introduce certain interesting changes, they do not appear to address the substance matter at hand. That includes your mentioning of the added reasons for refusal on the new annex VI, especially because reason for refusal number 13 (formerly number 9) continues to be a blanket statement that could signify the lack of economic, familial, or professional ties. I therefore ask you to carefully read all my questions once more and to answer them fully and with regards to common administrative practice, not just formality. Should there be any reason why you cannot or do not want to answer a question I have posed, please answer this with "no comment", citing the legal or other basis for refusing comment. Thank you.
Response by European Commission to OSP (April 14th, 2020)
Allow me first of all to recall, that under Article 32(3) of the Visa Code appeals are to be conducted against the Member State that took the final decision on the application and in accordance with the national law of that Member State. The Commission confirms that, according to the Visa Code, the person concerned is not “required to provide new information”. However, nothing prevents the person who has been refused a visa to, when lodging the appeal, provide new information and explain why he/she considers the refusal unjustified. Moreover, during the formal appeal procedure, the competent Member State would have to further develop the grounds for refusal. Any potential misjudgment or administrative error would be clarified in the appeal process. The Visa Code must be interpreted in light of the right to effective judicial review enshrined in Article 47 of the Charter, and therefore the Commission is of the view that Member States are obliged to fill in the space provided for “remarks” of the standard form for notifying the grounds for refusal by adding further details on the reasons that lead to the refusal decision when this is necessary for the applicant to exercise his/her right to effective judicial review. This obligation has been further clarified (see recital no 15 of Regulation 2019/1155) in the Visa Code. Additionally, it is an obligation for Member States to inform the applicant of the specific aspects that have been taken into account when the refusal ground (no 11) is “there are reasonable grounds as to the liability of the statements made as regards ....”. Furthermore, the former refusal ground no 6 has been split into three allowing the person concerned to know which was the specific ground for the refusal. Finally, rest assured that the Commission regularly assesses concrete cases as to whether Member States has failed to comply with applicable EU legislation.
Synopsis (coming soon)