1. What happened?
Discussion about an EU ban on tourist visas for Russian citizens is gaining momentum. In the past week alone, the foreign ministers of Latvia and Lithuania called for tightening travel restrictions, Finland decided to limit the number of tourist visas for Russians tenfold, and Denmark joined a number of other countries in advocating for an EU-wide embargo.
Russia’s full-blown invasion of Ukraine has already prompted many EU countries to halt or restrict visa issuance for Russian nationals. Estonia went so far as to enforce an entry ban for Russian citizens holding Schengen tourist visas it had issued in the past.
The issue of a bloc-wide Russian tourist visa ban is set to be discussed at a meeting of EU foreign ministers in Prague on August 31. Czechia, which currently holds the Presidency of the Council of the European Union, put the issue on the agenda.
Although the foreign ministers’ meeting is informal, it could lay the groundwork for decisions EU leaders will make at their next summit in October. 2
2. Would a ban apply to previously issued visas or just new ones?
Most of the countries that support the idea of limiting or banning Schengen visas for Russians aren’t talking about revoking permits that have already been issued.
Estonia is the exception to the rule. The Baltic country has invalidated the visas of several Russian nationals in recent weeks (however, Russians can still use EU visas issued by Estonia to enter other countries in the Schengen zone). In addition, Latvia’s President Egils Levits has suggested revoking the visas and residency permits of Russian nationals who support the war against Ukraine. 3
3. Can a Schengen visa ban be adopted at the EU level?
Probably not. The adoption of such a ban would have to be approved by the Council of the European Union with the unanimous support of the bloc’s 27 member states — and not all of them belong to the Schengen zone. It would also require coordination with Schengen zone countries that are not part of the EU. At present, there isn’t widespread support for this idea, and the odds of a common consensus emerging in the near future appear to be slim.
The countries leading the charge for a travel ban are Estonia, Latvia, Lithuania, Poland, Czechia, and Finland. Meanwhile, the leader of the EU’s most powerful member — Germany’s Chancellor Olaf Scholz — has publicly rejected the idea.
During a press conference in Oslo on August 15, Scholz insistedthat the EU shouldn’t “make it more difficult” for people fleeing the Russian regime to “look for freedom.” “This is not the war of the Russian people, it is Putin’s war,” the chancellor underscored. “Political discourse in Germany hasn’t reached the idea that the time has come to move sanctions to the level of mass punishment of the civilian population,” Berlin-based political analyst Alexey Yusupov explains.
The European Commission has also stated that EU visa rules do not allow for a complete ban on issuing Schengen visas to Russian citizens (although the bloc’s member countries can take such measures independently). “There is always a group of people who should be granted a visa, such as in humanitarian cases, family members, journalists, and dissidents,” the European Commission said in a comment.
4. Does the EU have a legal basis for a complete visa ban against citizens of a particular country?
There is no such legal basis in the existing regulatory framework for issuing Schengen visas.
A complete ban would contradict the basic principles of both international and EU law. According to the Schengen visa rules, which are based on the EU Visa Code, member states must assess each visa application individually and, in the case of refusal, provide an official explanation.
As outlined in Article 32 of the Visa Code, a visa shall be refused if the applicant:
- Presents a false, counterfeit, or forged travel document;
- Does not provide justification for the purpose and conditions of the intended stay;
- Does not provide proof of sufficient funds for the duration of the stay and for returning to their home country (or place of residence);
- Has already stayed in the Schengen zone for three months during the current sixth-month period;
- Does not provide proof of travel medical insurance.
An applicant can also be refused a visa if they are considered to be a threat to public policy, internal security, or public health. Or if they are considered to be a threat “to the international relations of any of the Member States, in particular where an alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds.”
If an applicant is denied a visa for any other reason, they have the right to appeal against the decision in court, in the country that issued the refusal.
According to Sarah Ganty, a senior researcher at the Human Rights Center of Ghent University and a J.S.D. Candidate at Yale Law School, it follows from the EU Visa Code that “it is prohibited to adopt a complete ban [on citizens of a particular country] or to automatically deny any citizen of any country” a visa.
The Visa Code also precludes “a politically motivated ban on the issuance of visas,” says legal scholar Vadim Voynikov. According to Voynikov, a complete ban on issuing visas to Russian nationals would also be in violation of the European Union’s primary lawand Charter of Fundamental Rights.
In addition, it would contradict the principle of non-discrimination enshrined in Article 2 of the Universal Declaration of Human Rights and the constitutions of each EU member country.5
5. Does this mean a blanket ban at the EU level is formally impossible?
Formally speaking, it’s still possible by one of two means:
- A visa ban could be written into a future package of blocking sanctions against Russia;
- Or it could be implemented by amending the Schengen rules.
That said, there are problems with both of these options.
Sanctions must be targeted and, according to Article 215 of the Treaty on the Functioning of the European Union, can be imposed on specific individuals or provide for the reduction of economic and financial relations. A visa ban doesn’t meet either of these conditions (since visas are granted to individuals on a case-by-case basis, and not under an agreement with Russia). As such, the decision could be challenged in a European court as untenable and unreasonable.
“There are questions as to whether the EU has the jurisdiction [to make a binding decision for all member states],” adds Vitaly Slepak, a senior lawyer at the Russian law firm Pen & Paper.
According to Article 52 of the EU Charter, any limitation on the exercise of rights and freedoms — including freedom of movement — “must be provided for by law and respect the essence of those rights and freedoms.” Further,
“Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”
According to Vitaly Slepak, amending Schengen legislation to introduce a complete visa ban doesn’t meet these conditions:
“What objective of general interest might be achieved if states are given the individual right to bar all citizens of a [specific] state from entering their territory? Even if it’s declared [a matter of] ensuring national security, a second question arises: How exactly is a decision not to admit tourists connected with achieving [this] objective […]? And finally, are there really no gentler means of achieving this objective?”
In this context, sanctions are the easier route. The European Court of Justice has already recognized them as pursuing a legitimate objective, Vitaly Slepak notes. However, in his opinion, there would still be lingering questions about the extent to which travel restrictions would help stop Russia’s aggression against Ukraine, and whether there are no other measures that could achieve the same objective in a less radical way. If there are no convincing answers to these questions, then an EU court would likely consider these measures discrimination on the basis of citizenship.
The experts Meduza interviewed said that the EU was extremely unlikely to go for either of these options. That said, the bloc could reduce the number of Russian tourists by other means — such as tightening customs checks, cutting the number of visa appointments (like Finland), or slowing down the application process.
6. Estonia’s Prime Minister Kaja Kallas said that ‘visiting Europe is a privilege, not a human right.’ Is this true?
This statement is legally inconsistent with the charters and treaties mentioned above.
Being issued a Schengen visa may not be a fundamental human right, but the fundamental rights of applicants must be respected, underscores Sarah Ganty. According to Ganty, automatically refusing Russian citizens visas would violate Article 20 of the EU Charter, which enshrines equality before the law, and raise the issue of discrimination.
7. Could all member states adopt visa bans at the national level in order to create a de facto EU-wide embargo?
Such a scenario can’t be ruled out completely. And formally speaking it wouldn’t require the EU to revise its fundamental principles. However, experts say this option seems unrealistic.
As political analyst Alexey Yusupov points out, not all EU countries are on the same page when it comes to dealing with Russia. “For example, for Portugal, Greece, and Spain the [visa] issue is not so acute, because they aren’t countries bordering Russia,” he explains. There are also member states that are practically friendly towards Moscow, such as Hungary.
In addition, for many EU countries, Russian travelers play an important role in maintaining and developing the tourism industry, which — even before the February invasion — was still recovering from a two-year slump due to the coronavirus pandemic. In 2019, for example, 1.3 million Russian citizens visited Italy, 1.1 million visited Spain, and 800,000 visited Greece.
Alexey Yusupov speculates that the countries calling for a complete ban will quickly realize that a Europe-wide consensus is unlikely and take matters into their own hands. That said, even the national-level bans that are already in place are raising questions among experts. Though the decision to issue a Schengen visa is taken by an individual member state, they still have to comply with the EU Visa Code and assess each application individually. Restrictions introduced at the national level may also prove unconstitutional.
Thus, legal scholar Vadim Voynikov argues that Estonia’s entry ban violates the Schengen Borders Code, which regulates the conditions for entry into the zone. If foreign travelers comply with the requirements outlined in this document, an EU member state has no grounds for denying them entry. However, Voynikov adds that how the European Commission will respond to Estonia’s decision remains to be seen.
8. Can an EU member state bar entry to Russians with Schengen visas issued by other countries?
Some EU member states will probably attempt to do this. For example, Estonia’s Foreign Minister Urmas Reinsalu has said already that the government is working on a mechanism to ban entry to Russian tourists with Schengen visas issued by all EU countries.
That said, it’s not entirely clear what this would look like in practice. According to Vadim Voychenko, if Estonia bans entry from Russia outright, this would be an even more obvious violation of the Borders Code. And if the Estonian authorities try to “screen” Russian nationals on their borders with other EU member states, it would effectively constitute the return of border controls inside the Schengen Area. Which would call into question the very meaning of the common visa policy.
In any case, it’s likely that national restrictions will create the need for a Europe-wide solution — which could restrict the right of visa holders to move freely within the EU.
9. So will the European Union impose a visa ban or not?
Honestly, we don’t know. Russia’s ongoing war against Ukraine means that Kyiv’s most ardent allies in the EU — namely, Estonia, Latvia, Lithuania, and Poland — are likely to keep this issue on the agenda. The debate may very well become “frozen.” But we can’t rule out the possibility that Europe will tighten its visa regime amid the war, especially if Russia continues to commit war crimes or seizes more Ukrainian territory.
10. Worst case scenario, could all Russian passport holders be banned from entering the EU?
Even the most ardent supporters of the tourist visa ban aren’t talking about denying entry to all Russian nationals regardless of their circumstances. Those eligible for visas on humanitarian grounds will most likely still be able to obtain them, as will the relatives of EU citizens.
At the national level, the exceptions vary. The Latvian Embassy, for example, is only issuing visas to Russians citizens who need to attend the funeral of a close relative. Lithuania’s visa restrictionsdo not apply to the family members of EU citizens, or to people of Lithuanian descent and those who have received documentation certifying their right for restoration of Lithuanian citizenship. Czechia issues visas to the Russian family members of EU citizens. Poland also issues visas to such relatives, as well as to Polish Card (Karta Polaka) holders, and those who need to cross the Polish-Russian border for work (such as truck drivers and diplomats).
If you are a Russian citizen who is at risk of political persecution in Russia or belongs to a vulnerable group, it’s best to get in contact with lawyers or human rights groups who can help connect you with foreign embassies or get you to a safe place. For example, the organizations Rapid Response Unit, Help Desk, or Queer Svit.11
11. Are there any precedents where citizens of a particular country were banned from entering the EU?
The short answer is, no.
That said, there is one recent example of European countries closing their borders: the response to the first coronavirus wave. In the spring of 2020, many EU countries stopped issuing visas for non-essential travel and banned entry for residents of other member states. These restrictions were partially lifted during the summer, but a number of countries closed their borders again in the fall, following the onset of the second wave. Hungary, for example, closed entry to everyone except residents of Czechia, Slovakia, and Poland. The European Commission criticized such measures at the time, saying that they did not comply with Schengen Area norms.
Nevertheless, it is precisely these pandemic restrictions that are being cited by Estonian Foreign Minister Urmas Reinsalu, for example, in his search for a legal basis for a complete visa ban against Russian tourists.
Meduza Explainer by Irina Chevtaeva. Abridged translation by Eilish Hart. With special thanks to Sergey Lagodinsky, Sarah Ganty, Vadim Voynikov, Benjamin Tallis, Alexey Yusupov, Vitaly Slepak, Alexander Zakharov, and Dmitry Kochenov.
This article was first published in Meduza, and republished in Transit Magasin under a Creative Common CC BY 4.0 – Attribution 4.0 International. You can find the original article using this link.