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«A thesis submitted to the Department of Political Science and International Studies of the University of Birmingham for the degree of Doctor of ...»

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Free Movement into and within Europe (Aldershot: Ashgate, 2005), pp. 233-263, p. 261 116 establishing an area where individuals can move freely within EU territory without border controls at intra-community borders. On another level, the common visa policy should be taken to mean all types of visas (short and long stay) and therefore, references only to short stay visas fall short of covering all visas that reasonably can be expected to be included. As such it is an example of the reconstruction of internal borders in the EU. Therefore, the absence of articulations, in the overwhelming majority of Commission documents, that contain explicit provisions for long-term visas to the EU are an important silence, which make it possible to recreate the divisions between the member states on a certain level. In turn, this is an example of the continued existence of non- unified border controls.

A few further examples will illustrate this point. Under the provisions of the common visa policy: “A Member State shall not require a visa issued by its own authorities of a person applying to stay for a short time within its territory who holds a uniform visa.”121 The EU Code on visas defines uniform visa as a visa that is “valid for the entire territory of the Member States.”122 Also, a person, holding a residence permit of a member state is entitled to enter the territory of other members for short stays. 123 These provisions unequivocally have de-bordering effects on internal border controls because they allow TCNs to cross the borders of Schengen-participating states for short stays (up to three months) with a visa/ residence permit issued by any of the other Schengen member states.

The logical consequence of the qualifications contained in these provisions, however, is also the stipulation that: “Persons who propose to stay in a Member State other than for a short time shall enter that State under the conditions laid down in its national law”. 124 Therefore: “Visas for stays exceeding three months shall be national visas issued by one of 121 European Commission, Proposal for a Regulation Determining the Third Countries whose Nationals Must be in Possession of a Visa when Crossing the External Borders of the Member States, COM (93) 684 final, 10.12.1993, p. 32 (emphasis added). This is the case during the first three months of validity of the long-stay visa.

122 European Commission, Proposal for a Regulation of the European Parliament and of the Council Establishing a Community Code on Visas, COM (2006) 403 final, 19.07.2006, p. 41 (emphasis added) 123 European Commission, Proposal for a Regulation Determining the Third Countries whose Nationals Must be in Possession of a Visa when Crossing the External Borders of the Member States, COM (93) 684 final, 10.12.1993, p. 25 124 Ibid., p. 26 117 the Contracting Parties in accordance with its national law.” 125 For TCNs who are not subject to visa requirement, the Schengen Implementing Convention states that each member state has the right to extend an alien‟s stay on its territory beyond three months in certain circumstances. 126 Given these provisions it should come as no surprise that even as late as mid 2000s, the proposals of the Commission on common visa policy, which are still through the EU decision-making process,127 talk about short-stay visas: “entry for an intended stay in that Member State or in several Member States of a duration of no more than three months in total”.128 Also they state that further legal instruments will be needed to assure: “the exchange of data on long stay-visas which are not concurrently valid as short-stay visas by the VIS; this would need further political orientation in view of the absence of a common acquis for such visas.”129 These, however, are only two examples of the recent manifestations of a trend in the Commission discourse on visas. 130 This trend indicates that in this discourse the Commission does not talk about common long-stay visas. 131 Therefore, I classify that as a silence in its articulations. As the reference to the lack of an acquis for long-stay visas in the quotation above indicates, the reason for this absence is that currently there is no EU-level agreement for the issuance of 125 Article 18, Convention Implementing the Schengen Agreement (emphasis in the original). This stipulation is repeated in Council of the European Union, Regulation on Freedom of Movement with a Long-Stay Visa, (EC) No 1091/ 2001, p. 2 126 Article 20 (2), Convention Implementing the Schengen Agreement (emphasis in the original) 127 http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=194509, accessed on 24.04.2009 128 European Commission, Proposal for a Regulation of the European Parliament and of the Council Establishing a Community Code on Visas, COM (2006) 403 final, 19.07.2006, p. 41.

129 European Commission, Proposal for a Regulation of the European Parliament and of the Council Concerning the Visa Information System (VIS) and the Exchange of Information between Member States on Short-Stay-Visas, COM (2004) 835 final, 28.12.2004, p. 2 130 Other examples of key Commission documents referring only to short-stay visas are: European Commission, Proposal for a Regulation of the European Parliament and of the Council Amending the Common Consular Instructions on Visas for Diplomatic Missions and Consular Posts in Relation to the Introduction of Biometrics Including Provisions on the Organization of the Reception and Processing of Visa Applications, COM (2006) 269 final, 31.05.2006, particularly p. 5; European Commission, Proposal for a Council Regulation Laying Down a Uniform Format for Visas, COM (94) 287 final, 13.07.1994, p. 4;





European Commission, Proposal for a Regulation Determining the Third Countries whose Nationals Must be in Possession of a Visa when Crossing the External Borders of the Member States, COM (93) 684 final, 10.12.1993, p.24 131 A very rare example of a Commission document referring explicitly to “long-term visas” is European Commission, Proposal for a Council Directive on the Conditions of Entry and Residence of Third Country Nationals for the Purpose of Paid Employment and Self-Employed Economic Activities, COM (2001) 386 final, 11.07.2001, p. 4 118 long-term visas. Hence, this silence in the Commission discourse is because of the limits of the Commission to go beyond certain point. Currently it has no legal grounds on which to step in order to attempt to promote harmonisation. Despite that, as the discussion in Chapter Four shows, in recent years the Commission has been at the forefront of the efforts to harmonise and facilitate the movement of TCNs in the EU for work purposes. This is exemplified by the adoption of several proposals that provide for more favourable conditions for entry and residence for TCNs for work purposes. These imply the crossing of intra-EU borders and as such are related to the issue of border controls. Therefore, these articulations can be read as potentially facilitating the establishment of a common policy on long-term visas in the future. Nevertheless, currently these documents do not talk explicitly about “long-term visas”. As I discussed in Chapter Two, this may be due to the Commission anticipating the reactions of the Council. Therefore, this silence in its discourse is probably best interpreted as a result of a realistic calculation that currently any attempts to establish common policy on long-term visas do not have chances of success and therefore the Commission does not want to lose political capital. Nevertheless, I think that these absences are very important because they implicitly support the status quo established during the previous years and therefore contribute to the reproduction of the currently existing internal EU borders. This obstructs the achievement of the goals discernable from some Commission articulations (movement of TCNs in the EU for work purposes) as well as the emergence of the genuine border controls-free areas implied by the SEA and Tampere formulations.

This is because such an absence has important consequences on borders in the EU, which are contrary to the de-bordering trend evident in the Commission documents on border controls. The lack of harmonisation efforts in certain types of visas opens the door for references to the “member states”. In turn, such articulations point to the existence of national divisions within the Union, which is a sign of the persistent relevance of internal borders and border controls in the EU despite the efforts towards their abolition. Examples of these are the provisions that national law will guide the issue of long-stay visas and the stipulation that: “Member States shall … take back any person to whom they have issued a residence permit or provisional residence permit … and who is illegally resident in the 119 territory of another Member State.”132 These articulations point to the possibility that under certain circumstances different areas in the EU apply different rules with respect to border controls and free movement of TCNs, which is a clear example of the continued relevance of internal borders in the Union.

Importantly, it should also be noted that the absences in the Commission discourse on this issue reconstruct a specific kind of internal physical EU borders in that they are obstacles to the movement of TCNs only and are not applicable to EU citizens. As long as barriers to the movement of EU citizens are concerned, the current provisions in the acquis have led to the dismantlement of border controls for this category of people. There are, nevertheless, still specific requirements in terms of EU citizens‟ right of residence in other than their member state, which can be interpreted as reconstructing internal EU borders.

These, however, recreate functional borders and therefore are more closely related to the right of free movement of people. Thus, I examine them in detail in Chapter Four.

3.4.2. Inconsistencies in the discourse The second main way in which Commission discourse on border controls can be interpreted as contributing to the reconstruction of internal borders in the EU is through the inconsistencies in the articulations in its documents. There are two main examples of that – the particular provisions of the procedure for applying for Schengen visas and the discourse on the common asylum policy. Again, in both cases the main cause of the Commission articulations is the established pattern of cooperation in JHA, which has left little space for the Commission to advance proposals that envisage greater involvement of the supranational level.

Due to references to “member states”, the latter can be regarded as displaying similar characteristics with the line in the Commission discourse examined in the previous section. Despite that, the articulations on the common asylum policy reconstruct internal borders in a different way – through inconsistency in the discourse, rather than silences in it. There is a clash within this discourse of the Commission between the articulations on the 132 European Commission, Proposal for a Regulation Determining the Third Countries whose Nationals Must be in Possession of a Visa when Crossing the External Borders of the Member States, COM (93) 684 final, 10.12.1993, p. 25 120 establishment of the EU as a unified area for asylum seekers and the continued references to “member states”. For example, the Green Paper on the future Common European Asylum System states that its idea is to make: “the European Union a single protection area for refugees …”133 The achievement of this goal requires diminished salience of borders between the EU members. To that end, as I showed in the previous section, a considerable amount of effort has been put into devising a Union-level system for handling asylum applications and preventing applications in more than one member state, which can have important input into the establishment of a Common Asylum area in the EU.134 However, the Commission discourse on this matter has articulated two main areas of concern. Firstly, as the above discussion shows, the setting of minimum standards on procedures has been one of the dominant principles on the issue of asylum. Its goal “is to establish in the short term a minimum level of harmonisation of the rules applicable in the matter in the Community. It does not require the Member States to apply uniform procedures.”135 Therefore, “Within the current legal framework, the responsibility for determining asylum claims lies with individual Member States.”136 Thus, as Lavenex rightly points out, during the initial years of cooperation on the common asylum policy, the predominant approach has been to leave to national legislation important questions, such as who qualifies as a refugee and what form of protection are different types of refuges entitled to. 137 This has left scope for considerable divergence on these issues, which in turn, as the Commission Green Paper on asylum acknowledges, has left gaps in the Union acquis 133 European Commission, Green Paper on the Future Common European Asylum System, COM (2007) 301 final, 06.06.2007, p. 2 134 For studies examining the development of cooperation on Asylum and Refugees at European level, see Sandra Lavenex, „The Europeanization of Refugee Policies: Normative Challenges and Institutional Legacies‟, Journal of Common Market Studies, 39: 5 (2001), pp. 851-874 and Eiko Thielemann, „Symbolic Politics or Effective Burden Sharing? Redistribution, Side-payments and the European Refugee Fund‟, Journal of Common Market Studies, 43: 4 (2005), pp. 807-824 135 European Commission, Towards a Common Asylum Procedure and a Uniform Status, Valid throughout the Union, for Persons Granted Asylum, COM (2000) 755 final, 22.11.2000, p. 8 136 European Commission, Green Paper on the Future Common European Asylum System, COM (2007) 301 final, 06.06.2007, p. 4 137 Sandra Lavenex, „The Europeanization of Refugee Policies: Normative Challenges and Institutional Legacies‟, Journal of Common Market Studies, 39: 5 (2001), pp. 851-874, p. 861. Footnote 7 gives particular examples of how this plays out in practice. For other examples of how diverging national legislations affect asylum applications see European Commission, Green Paper on the Future Common European Asylum System, COM (2007) 301 final, 06.06.2007, p. 5.

121 on asylum. 138 From the point of view of border configurations, this contributes to the reconstruction of internal territorial and functional borders inside the EU.



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