Media outlets picked up a story that US nationals are going to need Schengen visas to travel anywhere in the EU. This is not (entirely) fake news. In this blog, Elspeth Guild and Nicolas Rollason explore the issues and explain the background to the situation.

What happened?

In April 2014, The European Parliament notified the European Commission that five countries: Australia, Brunei, Canada, Japan and the US were not respecting EU visa reciprocity requirements because their governments oblige nationals of some EU countries (but not others) to have visas to travel to their territories while the EU does not require visas from any nationals of the other states as a condition of entry into the EU. Progress has been made with all countries apart from the US.

On 3 March 2017, the European Parliament’s LIBE Committee followed up on the April 2014 notification and voted to require the European Commission to take measures to temporarily re-introduce visa requirements for US citizens seeking to enter the Schengen area until such time as visa reciprocity is achieved.

What happens next?

The EU Parliament has stated that the European Commission is legally obliged to take measures to temporarily reintroduce visa requirements for US citizens entering the Schengen area but there is no time limit on when. The European Parliament’s Committee urged that this be done within the next two months (i.e. by 2 May 2017).

Which countries do not respect visa reciprocity with the Schengen states?

There is now only one: the US. Australia, Brunei and Japan have gone for visa reciprocity and Canada has promised to take all EU citizens off its mandatory visa list by the end of 2017.

What is the problem with the US’s visa policy?

The US still requires nationals of Bulgaria, Cyprus, Poland and Romania (all of which are EU states) to obtain visas before going to the US. Further, according to a US Congressional amendment to the Visa Waiver Program in December 2015, from 21 January 2016, EU nationals who also have the nationality of Iraq, Iran or Syria must obtain visas before traveling to the US. The same Congressional amendment also required EU citizens who have visited Iraq, Iran, Sudan, Libya, Somalia or Yemen at any time on or after 1 March 2011 to obtain visas. If EU citizens in these categories already had an ESTA (electronic authorisation), that would be revoked at the US border.

In addition, the Trump Executive Order of 27 January 2017 actually banned (with or without a visa) entry of all EU citizens who were born in any of the seven countries on the list (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) as they are presumed to be dual nationals. Although parts of the first Executive Order were stayed by the US courts, on 7 March the President issued a second Executive Order temporarily banning admission of nationals of six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the US. However, in this Executive Order there is an exception for any dual national of any of the designated countries so long as the individual is travelling on the passport of a non-designated country (ie an EU country).

So, far from moving towards visa reciprocity with the EU, the US is moving away from it.

What will the Commission do?

On 12 April 2016, the European Commission issued its most recent, regular report on the visa reciprocity issue. It set out the issues and consequences of suspension of visa waivers for nationals of the (then) five countries. It requested the European Parliament and the Council to decide what to do by 13 July 2016. The co-legislators, the Parliament and the Council, did not choose to require the temporary application of visa requirements on nationals of the five (now one). Now the European Parliament’s LIBE Committee has changed its mind and wants action.

What is likely to happen?

The EU measure which requires the Commission to re-introduce Schengen visa requirements on countries which do not respect visa reciprocity (i.e. the US) obliges the Commission to adopt a delegated act suspending the visa waiver in place for the offending country for 12 months.

What this means is that the normal legislative procedure, which enables the EU Member States and EU Parliament to have a say in any proposal (and therefore amend, approve or block it) is not applicable, though the Commission insists that ultimately according to the very complicated rules the European Parliament and/or the Member States can revoke a decision. However, the margin for Member States and the Parliament to agree or block a proposal are much more limited.

Whether the Commission will now issue a proposal remains to be seen. The economic and business consequences of applying visa requirements to US nationals wishing to come to the EU (and vice versa) would be significant. It is understandable that the Commission appears reluctant to take forward a proposal. It is most likely that this issue will be dealt with diplomatically, but in the new political climate in the US and in light of President’s Trump’s previous actions on immigration, it is difficult to predict the outcome.

Could this affect US visitors wishing to come to the UK?

The UK (and Ireland) are not part of the Schengen area and are free to determine their own visa policy. The EU Parliament’s vote and any possible Commission action will therefore have no impact on UK/US visa policy. US nationals continue to be able to travel to the UK as visitors without requiring a visa. The current US Visa Waiver Programme will continue for British citizens (so long as they are not dual national of the prohibited countries or have visited any the six designated countries since 1 March 2011).