Enter your email address to be notified of new entries to this blog

Saturday, March 30, 2013

Wheels turn slowly, but they are turning


The wheels of the EU Committee on Petitions turn slowly, but at least they are turning. Last month I received a letter indicating that my petition has been deemed admissible and the matter is under investigation.

Here is the text of the letter:


Monday, November 12, 2012

EU Commission Must Face Reality If It Wants to Create 500,000 Jobs in Tourism



At last the EU is starting to realize that its visa policy is hurting potential tourism revenue – but not for the reasons that they claim.

On November 7th, last week, the charming and ebullient European Commission Member, Cecelia Malström gave a press conference with her colleague, EC Vice-President Antonio Tajani. The subject of the press conference was a proposed revision of visa policy. The change in policy comes after the EU Commission discovered that “21% of potential tourists”, or nearly three million tourists per year, are discouraged from applying for a visa due to the visa application process itself. 

“The EU could gain 46 million tourists by 2015 if the flexibility of the visa rules were exploited”, claimed Ms Malström. “If we could get them to apply,” said Ms Malström, “Europe could create 500,000 jobs in the next three years.” According to Mr Tajani, such an increase of tourism would add hundreds of billions of euros to the economy.

These potential tourists don’t apply, according to Ms Malström, “because it’s complicated to get a visa”.

That might be part of the problem. But it misses a much greater point. The reason people don’t apply for a visa to visit Europe is because they fear an unjust and arbitrary visa process. People don’t apply because they’ve seen their friends refused a visa for no intelligible reason and they don’t want to suffer that humiliation.

Frustration and humiliation greeted one applicant last month when his application was refused. Net, a Thai male, aged 25, applied for a visa at the French Consulate in Bangkok. He was planning to travel to France with his friend and business associate, Marcus, who owns several medical clinics in Australia. Net does offshore data processing in Thailand for one of Marcus’s Australian companies that processes insurance claims.

Net and Marcus were planning to visit Europe for several weeks. They would be joined by a colleague from Australia. Marcus is a frequent visitor to Europe. Last year he spent around 30,000 euros on travel in Euorpe. “I like to shop in the Place de la Concorde,” he told me.
Net’s application was prepared by a travel consultancy. According to Marcus, “It was a sure thing.” But alas, in the world of Schengen visa applications there is no such thing as a sure thing. Net’s visa was refused. The stock “reason” was given:

“The information supplied justifying the purpose and conditions of stay was not reliable.”

Marcus attempted to find out what this meant. He managed to breach the security surrounding the visa section of the consulate. He waited outside the glass doors. He refused to be fobbed off by the security guard. He accosted the first European to walk out of the door. 

“What do you want?” asked the official.

“I just want someone to review Net’s file fairly. Clearly, that hasn’t been done.”

The official agreed to have the file reconsidered and instructed Net to make an appointment. Five days later Net and Marcus went back to the consulate. But there was no review of Net’s file. He was merely told to apply again. He wasn’t told the specific reason why his application was refused,.nor was he given any information that would increase his confidence that the visa would be granted next time.  A second application would therefore amount to another roll of the dice and another visa fee.

Marcus, bitter and frustrated, cancelled the trip. He and Net live in Chiangmai. In order to make a second application they would have to fly to Bangkok. They had already spent five days waiting for the appointment which came to nothing. If the visa were refused again Marcus would forfeit three thousand euros in airline cancellation charges.
So Europe loses 30,000 euros and the reputation of a cruel and arbitrary visa application process is perpetuated. 

According to Ms Malström, “For many people the first encounter with Europe is the consulate. We need to ensure that the Visa Code is properly applied so that the encounter is positive.”

Ms Malström, the Visa Code is not properly applied and the first encounter is often bitter.
“We have to implement the rules that are already there in the Visa Code and make it easier for bona fide travelers to come to Europe,” said Ms Malström. She cited appointment deadlines and simplifying supporting documents as the way to “make it easier” for bona fide tourists.

Ms Malström, you are right that the Visa Code needs to be properly applied if you want to reach your target by 2015. But simplifying procedures is not the answer. If you want to attract more tourist-euros you must persuade potential tourists that the visa application process is fair and transparent. To do that you must implement the fundamental rights that are guaranteed to visa applicants by law but which are often ignored by consulates.
The Visa Code incorporates the fundamental rights “enshrined” in the Charter of the Fundamental Rights of the EU. Chief of these fundamental rights is The Right to Good Administration (Article 41). According to this fundamental right applicants for a visa should be given a chance to be heard and correct any defect before their visa is refused. They should not be told to guess the reason for the refusal and keep applying until they get it right.

By refusing Net’s visa, the French Consulate breached his fundamental rights as guaranteed by the Visa Code. Net should have been called for an interview if the consulate found the information that he submitted unreliable. The consulate should have made an effort to discover whether Net is, in fact, a bona fide traveller. They did not. If, after a hearing, the consulate decided to refuse the visa, Net should have been given a real reason for the refusal; not the incomprehensible mumbo-jumbo “the information supplied justifying the purpose and conditions of intended stay is not reliable.”

Simplifying the application procedure would be welcome by visa applicants. But it will not change the reputation of the application process as opaque, arbitrary and foreboding. Only by respecting the fundamental rights guaranteed to visa applicants by the Visa Code will the European Commission change that reputation and achieve its goal of adding 500,000 jobs and raising billions in additional tourist revenue. Anything less is mere tinkering.

Wednesday, October 31, 2012

The Appeal Process is a Sham



The Appeal Process is a Sham


Applicants for a Schengen visa whose applications are refused are, by law, entitled to appeal the decision. But there is no information to guide the applicant in an appeal. The stated reasons for refusal are so vague that the applicant can only guess at the true reason for refusal. In the case of France, the appeal will be decided months after the applicant’s intended departure and if unsuccessful, the applicant will receive no notification. His appeal will simply vanish.

The appeal process is a cruel joke. It is likely to waste the applicant’s time and cause yet more grief and confusion by falsely raising his hopes.

The right to appeal

The Visa Code provides that applicants who have been refused a visa shall have the right to appeal. It stipulates that the appeal be conducted in accordance with national law; and

the Member State shall provide applicants with information regarding the procedure to be followed in the event of an appeal, including the competent authority and the time limit for lodging such an appeal. (Article 32) (my emphasis in bold)

Guidance is hopelessly inadequate

When an applicant’s visa is refused he will receive a Notice of Refusal with his passport. In the case of France, the only information regarding the right to appeal is the sentence,

“You may lodge an appeal against the decision to refuse a visa with the Commission des Recours contre les decisions de Refus de Visa d’entrée en France, BP 83 609, 44036 – Nantes CEDEX 1, within two months from the date of this notification.”

The Visa Code requires that the Notice of Refusal give information regarding the appeal procedure, “including” competent authority and time limit. It does not say “comprising” competent authority and time limit. "Including" indicates that the notice should provide more information, such as:

  1. reference to the fact that the appeal will take two months to be decided – a fact that would influence most applicants’ decision to appeal or not. 
  2. guidance as to how to file an appeal; 
  3. what the grounds for an appeal might be; 
  4. what factors might assist the applicant. 
Indeed, the intention manifested by the Refusal Notice is to provide as little information as possible presumably in order to discourage appeals.


The stated reason is inadequate

The Visa Code provides that reasons for refusal shall be given to an applicant. But it confines such reasons to those listed in Annexe VI. Of these, the only reason I have seen given (and, I suspect, the most frequent choice) is,

“the information submitted regarding the justification for the purpose and conditions of the intended stay are not reliable”.

How could an applicant base an appeal on such gobbledygook? By contrast, the UK requires its consulates to give reasons specific to the case. Which document was defective? In what way was it defective?

The vagueness of Article 32 (reasons for refusal) has the effect of making the refusal process opaque, leaving the visa section totally unaccountable and rendering an appeal impracticable; that is, it is impossible for an applicant to lodge an appeal without knowing the specific reasons for the refusal. It is highly unlikely that a court would agree that such perfunctory reasons satisfy the duty to give reasons under Article 41 of the Charter of Fundamental Rights of the EU.

The Visa Code should be amended to require the consulate to refer to a specific document in the applicant’s file and to the specific defect in that document.

Two months is not a reasonable time

In a previous post I discussed how the Visa Code adopts the Charter of Fundamental Rights. Article 41 of the Charter states that
“[e]very person has the right to have his or her affairs handled … within a reasonable time.”
What would be a reasonable time for a person going on holiday to Europe? Presumably it would be a period of time that enables the applicant to proceed with his travel plans. The only way for an appeal process to be meaningful, at all, would be to have an appeal process that takes place within days, rather than months. There is no point having an appeal process that takes so long that opportunity to travel has passed.

Result of the appeal should be notified 

The appeal process in France simply fades away. One is sent a case number and told that if you don't hear from us within two months you may presume that the appeal has failed. This is an extraordinary demonstration of contempt for the applicant. It is also a flagrant violation of the applicant's rights under the Charter. Article 41 of the Charter requires that reasons be given for an administrative decision. It is not only common courtesy. It is also the law. Article 41 also requires the administration in question to reply in the language of the application provided it is one of the languages of the Treaty.

The most opaque process in the EU

The appeal process for applicants whose Schengen Visa application has been refused must be one of the most opaque and contemptible processes in the EU. It makes a mockery of the principles of fairness laid down in Article 41 of the Charter of Fundamental Rights. It is mere window dressing. The EU Parliament has two choices: either amend the appeal process and make it fair and practicable or get rid of it completely. 








Wednesday, October 10, 2012

Justice for Schenge Visa Applicants

Justice for Schengen Visa Applicants

Have you been refused a Schengen Visa?
Did you find the reason for refusal incomprehensible?
Was your application decided merely on the basis of the documents submitted?
Were you not given a chance to explain any suspicions the consul might have had?

 If you answered "yes" to these questions, this blog is for you. And you are not alone. In 2011 745,000 people around the world had their visa application refused. In many cases, no doubt, the refusal was justified. But in many cases, such as the one I report in this blog, the refusal was in contravention of the rights of the applicant.
 
This blog is about the rights of applicants for a Schengen visa. It comprises:
  1. An outline of the rights of applicants for a Schengen according to EU law.
  2. The case history in my campaign to have the law recognized: Nangnoy's case.
  3. Suggestions for how the law should be amended
  4. Statistics on Schengen visa refusals.
My aim is to show the disconnect between the law as stated and, by way of the case example, how it has been applied in practice.

I am assuming that you know what a Schengen visa is and I'm assuming that you know which nationalities require the said visa.

Follow me on Facebook





Tuesday, October 9, 2012

The Law Governing Schengen Visas and the Rights of Applicants

The Law Governing Schengen Visas and 

the Rights of Applicants

This article argues that Schengen visa applicants have the right to be heard before their applications are refused and that they have the right to their file. In other words the visa cannot be refused merely on the basis of a suspicion.  I also argue that the reasons for refusal, as mentioned in the Visa Code, are inadequate.

 

The Law 

There are four main sets of law and regulation governing the issuance of Schengen Visas:

 1. The Visa Code

The main law governing the application for and issue of Schengen Visas is the Visa Code of 2009.
You can find it here in 23 languages: Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code)

2. The Handbooks

There are two EU Commission Handbooks interpreting the Visa Code.

i. The Handbook for Processing Visa Applications was issued by a Decision of the European Commission. It does not create law. But it claims to interpret the law. The European Commission issued a directive stating that the Handbook should be used as "the main tool" when procession visa applications. I shall refer to this Handbook as "the Handbook".

You can find the Handbook in English here:

Decision of the European Commission of 19/3/2010 establishing the Handbook for the processing of visa applications


ii. The Organizational Handbook deals with the organization of visa sections of Member States' consulates. It is of minor significance to Schengen Visa applicants. However, we shall see below that it does have significance for family members of EU citizens applying for a visa.

You can find the Organizational Handbook here.

3. The Directive 2004/38
This Directive of the European Parliament establishes special rights for family members of EU Citizens travelling to a Member State with their EU relative.


Directive of the European Parliament and of the Council 2004/38/EC

4. The Convention and the Charter
Also, by specific incorporation, the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union apply to applicants for a Schengen Visa. (See below)

 

Rights of Applicants

The general rule is that no one has the right to a visa. The EU has made an exception in the case of family members of EU citizens. I'll discuss that later. But for the vast majority of applicants there is no right to a visa. Similarly, having a visa does not give the holder the right of entry to the EU.

It does not follow, however, that applicants for a visa have no rights at all. The law distinguishes between substantive rights and procedural rights. Substantive rights are the right to have something done: be allowed to enter the EU. Procedural rights are the right to have something done in a fair way; the right to have one's application considered fairly.

The Visa Code and the Handbook grant numerous procedural rights; that is, they stipulate how applicants for Schengen Visas should be treated by visa sections of consulates of Member States.

The most basic statement of applicants' rights is in the Preamble to the Visa Code:
This Regulation respects fundamental rights and observes the principles recognised in particular by the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union. (Preamble, paragraph 29)
 The Handbook interprets this paragraph as follows:
Fundamental rights enshrined in the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union must be guaranteed to any person applying for a visa. (Foreword to the Handbook)
It is clear that the phrase "This Regulation respects fundamental rights" in the Visa Code means " that the fundamental rights in the Convention and the Charter must be guaranteed to all visa applicants. This is a sweeping and unqualified application of EU law to non-EU citizens insofar as they are applying for a Schengen Visa. It means that any provision of Convention and the Charter which can be applied to the act of applying for a Schengen visa shall govern the process of applying for a visa.

What are these Fundamental Rights?

The Convention and the Charter contain many overlapping provisions. The Charter can be seen here:
Charter of Fundamental Rights of the European Union

I shall confine my discussion to the Charter. It contains 54 Articles discussing such rights as The Right to Human Dignity, The Rights of the Elderly, Workers Rights, the Presumption of Innocence and Consumer Protection. Clearly most of the topics in the Charter are beyond the scope of application to applicants for Schengen Visas. Which of the provisions of the Charter are most applicable to applicants for a Schengen Visa?

The Handbook seems to think that Articles 4 and 21 of the Charter are the most relevant.
The processing of visa applications should be conducted in a professional and
respectful manner and fully comply with the prohibition of inhuman and degrading treatments and the prohibition of discrimination enshrined, respectively, in Articles 3 and 14 of the European Convention on Human Rights and in Articles 4 and 21 of the Charter of Fundamental Rights of the European Union. (Foreword)
This is essentially a restatement of Article 39 of the Visa Code. But Article 4 of the Charter seems a bit extreme:


Prohibition of torture and inhuman or degrading treatment or punishment
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
What has this got to do with visa applications? Does the Handbook envisage visa applicants being strapped to the rack or kept in solitary confinement?

Article 21 is a little more relevant. It prohibits discrimination,


Article 21
...based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation ....
This is an important provision. But it is not one which most applicants can easily use to claim that their refusal was unlawful. It is difficult to prove discrimination unless there are two or more applicants submitting the same documents. (See Nangnoy's case)

The most important provision of the Charter is that which deals directly with administrative rights:


Right to good administration
1.   Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2.   This right includes:

(a)the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

(b)the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

(c)the obligation of the administration to give reasons for its decisions.
3.   Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4.   Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language. (my emphasis)
 This Article is important because it applies to every person who applies for a visa. Every person who applies for a Schengen visa has the right,
  • to have his application handled impartially and fairly;
  • to be heard before any measure - i.e., the decision to refuse a visa - is taken;
  • to be given reasons for a decision; and
  • to have access to his file;
Let's take a closer look at these rights:

Application handled impartially and fairly: This clause is covered by the discrimination provision in Article 21 quoted above. "Impartially" means without taking into account improper motives.

The right to be heard: This provision means that a visa section may not refuse a visa on the basis of a mere suspicion. An applicant has the right to be called by the visa section to satisfy any doubts that the visa section has. If the visa section hears the applicant and is not satisfied with the response they may refuse the visa. However, to refuse a visa on the basis of a suspicion that, for example, the applicant might engage in illegal employment or might overstay his visa without giving the applicant an opportunity to be heard violates the provisions of the Charter and thereby violates the Visa Code.

One might argue that this interpretation places too great a burden on visa sections. I would reply:
  1. The applicant pays a fee which covers the expense of calling the applicant for an interview. In 2011 visa sections collected a total of 44 million euros from refused visas. In the case of the visa section of the Embassy of France in Bangkok, 164,160 euros were collected from around 2,700 refused visas. One would imagine that these sums would be sufficient to cover the expense of performing a thorough job.
  2. A proper implementation of the law would make visa sections think twice about refusing a visa. At present they are totally unaccountable for their action. They can shoot from the hip and refuse a visa without justification, as occurred in Nangnoy's case. If refusing a visa required extra work the more refusal-prone visa sections might not be so trigger happy.
  3. The law clearly requires the interpretation that I have presented. If the European Parliament does not want to apply all of the principles of the Convention and the Charter it should amend the Visa Code to specify which provisions it wants to incorporate. As it stands in Paragraph 29 of the Preamble the incorporation is unqualified.
The right to be given reasons: The Visa Code makes a perfunctory effort to satisfy this requirement. Article 32 (2) provides:

A decision on refusal and the reasons on which it is based shall be notified to the applicant by means of the standard form set out in Annex VI.
The reasons in Annex VI basically repeat the grounds for refusing a visa set out in Article 32. These reasons fall into two categories.

i. Black and white:  In many cases the reasons are straightforward. For example, "having already stayed three months in a six month period" or "not having requisite travel insurance" are black and white issues. There is no ambiguity. However, one wonders why a visa section would accept the application of an applicant whose file is obviously incomplete. It would seem unconscionable to take the money of an applicant knowing that his file is incomplete. The Handbook states that the presentation of an incomplete file may be considered to indicate that the applicant does not take the application seriously or is unable to present the requested documents. (Part II 7.10) But that is treating the applicant with contempt. Who is going to pay 100 euros in visa, service and insurance fees and not take the application seriously?

ii. Vague and mysterious: Other reasons for refusal are vague and would be meaningless to the average applicant. Reason no. 8 in Annex VI of the Visa Code is an example:

The information submitted regarding the justification for the purpose and conditions of intended stay was not reliable.
This was the 'reason' given to Nangnoy and in all other refusal cases that I have heard of. In fact it is not a reason within the meaning of the Charter. It is the legal basis upon which the visa section is empowered to refuse a visa. That legal basis does not correspond to a meaningful reason from the perspective of the applicant or the Charter. Article 41 of the Charter should be read as the obligation of the administration to give meaningful reasons for its decisions. What use are 'reasons' which make sense to the visa section but which are gobbledygook for the applicant?

Reason 8 of Annex VI of the Visa Code could be interpreted (or misinterpreted by the Handbook) in three different ways. Reason 8 is vague to the point of being meaningless. It facilitates unaccountability in visa sections. Reason 8 should be deleted from the Annex VI. In order to comply with the spirit of the Charter specific reasons should be given for a refusal. Article 32 of the Visa Code and Annex VI should be amended accordingly.

The right to access to his or her file: The Charter gives an applicant for a Schengen visa the right to have access to his or her file.

I have written to the French Minister of Foreign Affairs, Laurent Fabius, demanding a copy of Nangnoy's file, including the appeal file. I will make the letter available on this blog. If and when I get a reply I'll make that available too.

The right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties. According to this paragraph, a Schengen Visa applicant whose application is wrongfully refused is entitled to claim damages from the Member State in question. Thus, for example, an applicant whose visa is refused without having been given a chance to be heard or whose visa is refused for improper reasons, such as discrimination, is entitled to damages. This is a substantive right clearly granted to Schengen visa applicants by virtue of the Visa Code.

EU legislation has granted procedural rights to Schengen visa applicants. However, these rights have not been acknowledged by the Handbook. They are not uniformly honoured by visa sections. The EU Parliament has two choices: either amend the Handbook to make clear that all of the relevant rights in the Charter are applicable or amend the Visa Code to limit the unqualified statement in Paragraph 29 of the Preamble.











Mr Consul, you may suspect she is a whore but you may not presume



 

Mr Consul: you may suspect she is a whore - but you may not presume


I live in Thailand. Last summer I decided to take my wife and two-year old son to France for a holiday. I invited another couple to join us, Martin and Helen, both in their fifties. My wife wanted to take her favourite cousin, Nangnoy, a young woman of twenty one, a student at a provincial university and a frequent visitor to our house.

Both Helen and Nangnoy needed Schengen visas. They applied at the French consulate in Bangkok. Their applications were based on essentially the same supporting documents.

As the time drew near for our departure we all became excited as one does before the big vacation of the year. Nangnoy was over the moon. This was to be her first trip overseas.

But we were soon to receive a rude shock. A few days before our departure Helen’s passport was returned with a visa. But Nangnoy’s passport was returned with a “Notice of Refusal’, containing the line:
“The informations (sic) justifying the purpose and conditions of intended stay are not reliable.”

Suddenly our mood transformed from merry anticipation to shock and disbelief. How could we enjoy our holiday and leave Nangnoy behind? Rather than prepare for the vacation I spent the days prior to our departure frantically attempting to contact the embassy. Surely this was a mistake! The purpose and conditions of Nangnoy’s intended stay were the same as Helen’s. How could they be reliable for one person and unreliable for another?

But the consul at the embassy refused to communicate with us. Despite daily efforts to right the mistake, Nangnoy stayed home to look after the dog while the rest of us went on holiday.

I wrote to the Embassy and asked the question, “How could the same information be reliable for one person and not for the other?” On my return from France I found a reply waiting for me. Nangnoy’s case had been reviewed taking into account my “recommendations” but that, regrettably, the decision could not be changed. It was a vague pile of waffle that could have been sent to anyone. It didn’t answer my question.

The answer is probably found in a statement by Mr Jean-Jacques Pothier, the Deputy Consul and Head of Visas at the French Emabssy in Bangkok. In an interview with a local magazine, Gavroche, M. Pothier said, “We strive to avoid the risk of …irregular work and prostitution.” Given the similarity of their supporting documents, the only conclusion is that Nangnoy, the younger, 21 year-old, woman was presumed to be an illegal worker or a prostitute while the more senior, 56 year-old, Helen was deemed to be a bona fide traveller.

As a lawyer, I know that no one has the right to a visa. You probably know that too and are wondering, “What’s this guy moaning about?”. Here’s what I’m moaning about. It’s called ‘procedural rights’. Examples of procedural rights are the right to be treated fairly, including the right to a hearing and the right to receive reasons for a decision. You might not have the right to a visa. But that doesn’t mean you have no rights at all.

And that’s the law now in Schengen Europe. According to the new Schengen Visa Code of 2009, visa applicants enjoy extensive procedural rights. A Visa Handbook issued by the EU Council, which interprets the Code, is emphatic: “Fundamental rights enshrined in … the Charter of  the European Union must be guaranteed to anyone applying for a visa.”

It couldn’t be stated more clearly. The same fundamental rights as are enjoyed by citizens of the Union are enjoyed by non-EU citizens when applying for a visa. Among those fundamental rights is ‘The Right To Good Administration’. The Charter states that every person has the right to be heard before any measure which would affect him or her adversely is taken.

Therefore, Mr Consul, you may suspect that Nangnoy is using a family trip to France as a subterfuge to turn tricks. However, you may not presume that she is a whore. That is the law. Before you deprive her of a once-in-a-lifetime chance to go to France you must give her a chance to explain that she is, in fact, a bona fide traveller. Yes, I know, you’ll have to do more work if it involves calling her for an interview. It’s so much easier to presume. But the law requires you to act fairly.

Nangnoy is not alone. Last year, according to EU statistics, nearly 750,000 people around the world had their tourist visa application refused. EU consulates do not refund the visa fee if the application is refused. That means that EU consulates kept 44 million euros in refused visa fees. 44 million euros and no questions asked. France took more than a quarter of that booty. Were those refusals fair? Were they arbitrary? We have no way of knowing. EU consulates are unaccountable. They can, if they wish, simply roll the dice and take the money and run.

British historian,Tony Judt said of the Schengen system, “Civilized Europeans could indeed transcend boundaries – but the ‘barbarians’ would be kept resolutely beyond them”.[1] European Justice Commissioner, Cecilia Malmstroem said of the new Visa Code, “This is the beginning of a fairer system for all individuals”[2]. How out of touch she is. Bona fide prospective travellers to Europe, such as Nangnoy, are still treated as barbarians.

There is a clear disconnect between the lofty guarantee of fair process in the Visa Code on one hand and the practices of local EU consulates on the other. Despite receiving large sums of cash, EU consulates are unaccountable for their actions. The European Parliament needs to decide: either repeal the guarantee of fundamental rights to visa applicants or ensure that the Visa Code is, indeed, a “fair system for all individuals”.


Gregory Barton is an Australian lawyer, retired and living in Thailand.



This article was published in French on 4th October 21012 in Rue89.com



[1] Postwar, Chapter 12, last sentence.
[2] Dw.de, cited above