Reasons for and objectives of the proposal
The United Kingdom of Great Britain and Northern Ireland (“the United Kingdom”) will withdraw from the European Union on 30 March 2019 (date of withdrawal) and will become a third country. Currently, British citizens are also Union citizens. They enjoy the fundamental right to move and reside freely within the Union and the right to enter any other Member State without any entry visa or equivalent formality. Nationals of the United Kingdom who are British citizens 1 will enjoy this right until the moment when Union law on free movement of Union citizens will cease to apply to them. This will occur on 30 March 2019, unless a ratified Withdrawal Agreement pursuant to Article 50 of the Treaty on European Union establishes another date or the European Council, in agreement with the United Kingdom, unanimously establishes another date..
Therefore, it will be necessary to determine whether the nationals of the United Kingdom who are British citizens will be subject to a visa requirement when crossing the external borders of the Member States or whether they will be exempt from that requirement. The determination as to whether a third country national is subject to or exempt from a visa requirement is laid down in Council Regulation (EC) No 539/2001 2 . Annex I to the Regulation lists the countries whose nationals are subject to the visa requirement, and Annex II lists those countries whose nationals are exempt from that requirement. For this determination, a legislative action is necessary to include the United Kingdom in one of the Annexes to Regulation (EC) No 539/2001 as of the date when Union law ceases to apply to the United Kingdom.
Consistency with existing policy provisions in the policy area
Regulation (EC) No 539/2001 is applied by all Member States – with the exception of Ireland – and by the Schengen Associated Countries (Iceland, Liechtenstein, Norway and Switzerland). The Regulation is part of the Union’s common visa policy for short stays of 90 days in any 180-day period. The United Kingdom has never been bound by this Regulation.
As Ireland does not participate in the Schengen acquis on visas, the specific bilateral arrangement (the “Common Travel Area”) it has with the United Kingdom and which provides for visa-free travel between Ireland and the United Kingdom by nationals of either country, is not affected by Regulation (EC) No 539/2001 or this proposal for an amendment.
The criteria which should be taken into account when determining – based on a case-by-case assessment – the third countries whose nationals are subject to, or exempt from, the visa requirement are laid down in Article -1 of Regulation (EC) No 539/2001. They include “illegal immigration, public policy and security, economic benefit, in particular in terms of tourism and foreign trade, and the Union’s external relations with the relevant third countries, including in particular, considerations of human rights and fundamental freedoms, as well as the implications of regional coherence and reciprocity”. It is also important to pay particular attention to the security of travel documents issued by the third country concerned.
The Annexes to Regulation (EC) No 539/2001 were last amended in 2017 by Regulation (EU) 2017/372 and Regulation (EU) 2017/850, which transferred Georgia and Ukraine from Annex I (visa-required) to Annex II (visa-free). The Commission also tabled two further proposals regarding Kosovo 3* 4 and Turkey 5 . Regulation (EC) No 539/2001 is currently being codified 6 ; therefore any references to this Regulation in the proposal will need to be replaced by references to the codified Regulation once it has entered into force, which will likely take place before the end of 2018.
Consistency with other Union policies
Keeping the lists of third countries annexed to Regulation (EC) No 539/2001 complete and up to date is a key element to facilitate the crossing of the external borders of the Member States. In its Communication on adapting the common visa policy to new challenges 7 , the Commission underscored that it is an essential element for ensuring the security and proper functioning of the area without internal border control. The same objectives are pursued by the Commission’s proposals to amend the Visa Code (Regulation (EC) No 810/2009) 8 and the VIS Regulation (Regulation (EC) No 767/2008) 9 that are currently being discussed by the co-legislators. Similarly, the proposed regulation on establishing a framework for interoperability between Union information systems 10 aims to join up and strengthen in a comprehensive manner the Union’s information tools for border management, migration and security.
Regulation (EU) 2017/2226 11 establishing an Entry/Exit system (EES) further improves the security and management of the Union’s external borders. The main objectives of this regulation are to improve the quality of border checks for third-country nationals and to ensure a systematic and reliable identification of overstayers. The future Entry/Exit system (EES) will thus be an important element to ensure lawful use of the visa-free stays in the Schengen area by third country nationals and to contribute to preventing irregular migration of nationals from visa-free countries.
Regulation (EU) 2018/1240 12 establishing a European Travel Information and Authorisation System (ETIAS) will close the information gap regarding travellers exempt from the requirement of being in possession of a visa when crossing the external borders. The system will determine the eligibility of visa-exempt third-country nationals prior to their travel to the Schengen area, and whether such travel poses a security, illegal immigration or high epidemic risks.
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