Legal and Political Aspects of EU’s Possible Visa Sanctions Against Russian Nationals

Just a few years ago, Russia and the EU were actively engaged in dialog on a visa-free regime. Sadly, visa matters have taken an entirely differently turn within some ten years. Today, far from discussing abolishing visa requirements for all Russian nationals, some EU nations are considering a prohibition on issuing Schengen visas to Russians.

Even though this initiative is irrational and has no legal grounds, the possibility of this decision being adopted cannot be ruled out since the anti-Russian sanctions policy—as currently implemented—shows that the EU has repeatedly taken steps that contravene both international law and the law of the Union itself.

At the same time, the EU is fairly unlikely to adopt a Union-wide ban on issuing Schengen visas to Russian nationals. As of today, only a small group of EU member states is sternly advocating this initiative, while this decision requires consent of all EU states (Articles 24, 29 of the Treaty on the European Union) and approval of the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy (Article 215 of the Treaty on the Functioning of the European Union) since they are the two parties that will need to jointly draft the restriction bill. An initiative proposed by member states remains merely an initiative until the Commission and the High Representative shape it into a bill.

So far, the European Commission is evidently in no hurry to endorse such a radical step. Besides, many EU member states are not willing to sever relations with Russia and its nationals; and some do not wish to lose Russian tourists to accommodate someone else’s ambitions. Adopting such an EU-wide ban will become a very disturbing precedent that evidences the Union’s moving away from the fundamental principles of the European integration.

Just a few years ago, Russia and the EU were actively engaged in dialog on a visa-free regime. Sadly, visa matters have taken an entirely differently turn within some ten years. Today, far from discussing abolishing visa requirements for all Russian nationals, some EU nations are considering a prohibition on issuing Schengen visas to Russians.

In early August 2022, the President of Ukraine called upon Western states to close their countries off to Russians, while Ukraine itself is so far abstaining from such steps.

Virtually simultaneously, Estonia’s Prime Minister and several politicians from Lithuania, Latvia, and Finland suggested that the EU stop issuing visas to Russian nationals. Previously, Polish authorities had made a similar proposal.

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After Russia recognized the Donetsk People’s Republic and the Lugansk People’s Republic, several EU states, on various grounds, either restricted the issuance of Schengen and national visas to Russian national, or stopped issuing them altogether, or restricted Russian nationals’ entrance by other means. However, the EU statistics for the year 2019, the one before the COVID pandemic, indicates that the states that suspended issuance of visas in 2022, taken together, issued to Russians no more than 20% of the overall number of Schengen visas back then. At the same time, some EU member states, as part of lifting COVID restrictions, resumed issuing all types of visas to Russians already after February 24, 2022.

Since the EU has a common visa space, unilateral restrictions on visas imposed by some states will not facilitate the desired effect of the EU’s anti-Russian sanctions. Therefore, by the end of summer, proponents of greater sanctions pressure on Russia were seen discussing an EU-wide ban on issuing Schengen visas to Russian nationals.

Predictably, Moscow took a very negative view of this idea, while the European Commission and leaders of other EU member states were rather skeptical. Nonetheless, plans envisage discussing this matter at the meeting of the Council of the European Union to be held on August 31, 2022.

National measures for restricting visa issuance and entry

Alongside restricting the issuance of Schengen visas, some EU member states restrict Russian nationals’ entry. For instance, since August 18, 2022, Estonian authorities restricted entry into Estonia for Russian holders of Schengen visas issued by Estonian foreign missions. Polish authorities came up with a rather original way of restricting entry of Russian nationals. In February 2022, while lifting coronavirus-related restrictions, Poland kept in place restrictions for entry via Russian-Polish and Belarusian-Polish borders. Officially, Russian nationals are not prohibited from entering Poland, and they may enter the Republic of Poland via any domestic and foreign borders except for the Russian-Polish and Belarusian-Polish border crossings. Moreover, these are blanket restrictions, since they apply to nationals of any states crossing the border with Russia and Belarus, with the exception of those directly listed in the Order of the Ministry of the Interior of the Republic of Poland. No matter how absurd these restrictions are, they are not technically at odds with either the EU law or international law as they constitute part of anti-COVID measures where states have a broad discretion.

As for Estonia’s decision to prohibit Russian nationals from entering, this directly contravenes the EU law. Article 6 of the Schengen Borders Code establishes conditions for foreign nationals entering the Schengen space on having a travel document (passport), a visa, reason for travel, no alerts issued in the Schengen Information System, and no reasons to believe that a foreign national posits a threat to public policy, internal security, public health, and international relations. If a foreign national meets all conditions of entry, a border guard has no reason to deny entry to such a person. This norm has direct force, and Estonian authorities must comply with it.

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Besides, under Article 4 of the Schengen Borders Code, all decisions on applying this code should be made on an individual basis. In other words, authorities cannot classify all Russian nationals as persons positing a threat to public policy. It means that the European Union’s law rules out blanket denial of entry to Russian nationals. It should be mentioned that the concept of “threat to public policy” has been repeatedly explained in the EU in case law and in the Union’s legislation. However, no one has ever propagated the idea of declaring an entire nation a threat to public policy.

As for individual EU member states that suspend the issuance of Schengen and national visas, such actions are dubious as regards compliance with EU law. Technically, the EU’s Community Code on Visas has direct force as it establishes the procedure and conditions for issuing Schengen visas. Any decision to deny a visa must comply with the Code’s requirements and must be well-founded (Article 32). Moreover, national legislation should envisage the possibility of an appeal. When applying the Code on Visas, law enforcement bodies must make decisions on individual basis (Article 1). However, the states that have suspended issuance of visas do not deny visas, they do not accept visa applications. In other words, these states do not conduct activities with a view to issuing Schengen visas to Russians, and the European Union cannot force them to conduct such activities since this issue comes within the purview of national governments.

By stopping issuing visas to all Russian nationals, individual EU member states violate the principles of non-discrimination and of prohibiting collective responsibility while they must comply with these principles as the EU’s members.

Prospects of a Union-wide ban on issuing Schengen visas to Russian nationals

This situation requires considering both legal and political aspects of this initiative.

Legal aspect

Technically, the EU law does not provide for such a ban. Under Article 215 of the Treaty on the Functioning of the European Union, restrictive measures may entail partial or complete suspension or reduction of economic and financial relations with one or several third countries, and also measures against natural and legal persons, groups, or non-State entities. Individual sanctions may envisage visa restrictions, yet the Union’s law does not grant the EU the option on introducing a blanket visa restriction against all nationals of a certain state. The Community Code on Visas does not contain such provisions either. Under the Code on Visas (Article 25a), the Council may, acting upon the Commission’s proposal, make the decision to toughen visa regime for nationals of states that refuse to cooperate in the field of readmission, i.e. states that posit a high risk of immigration. According to the EU’s own data, Russia is not a state with a high immigration risk. In accordance with the EU’s official statistics, Russian nationals lately have been issued the highest number of Schengen visas with the highest percentage of multi-entry visas and they also have one of the lowest percentages of visa refusals.

Additionally, a prohibition on issuing visas to all nationals of a certain state contravenes such core principles of modern democratic society as non-discrimination and prohibition on collective responsibility. For, should a prohibition on issuing visas to all Russian nationals be introduced, it may be qualified as punishment imposed on all persons without account for each citizen’s role and guilt, and international law prohibits collective responsibility. A blanket prohibition on issuing visas may also be qualified as discrimination on the basis of nationality which is prohibited by international law and the EU’s law. This is why the history of European integration has known no such prohibitions up to this day.

Political aspect

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As regards the political aspect of this initiative, this step will be counterproductive in any case.

Under the guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU common foreign and security policy, the EU adheres to the targeted measures principle. The point of this approach is that sanctions’ greatest effect should be aimed directly against decision-makers and persons with connections to decision-makers, and should have minimal effect on the country’s general population. If a prohibition on issuing visas is introduced, it will primarily affect regular citizens and specifically that part of the population that is to some degree connected with EU states and is fairly sympathetic to them. Supporters of visa restrictions against Russian nationals believe that prohibition on entering the EU will cause the population to become discontented with Russia’s political leadership. This prohibition, however, is more likely to induce negative attitude toward EU authorities, which will certainly be conducive to a greater escalation of tensions between the parties.

Unfortunately, even though this initiative is irrational and has no legal grounds, the possibility of this decision being adopted cannot be ruled out since the anti-Russian sanctions policy—as currently implemented—shows that the EU has repeatedly taken steps that contravene both international law and the law of the Union itself.

At the same time, the EU is fairly unlikely to adopt a Union-wide ban on issuing Schengen visas to Russian nationals. As of today, only a small group of EU member states is sternly advocating this initiative, while this decision requires consent of all EU states (Articles 24, 29 of the Treaty on the European Union) and approval of the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy (Article 215 of the Treaty on the Functioning of the European Union) since they are the two parties that will need to jointly draft the restriction bill. An initiative proposed by member states remains merely an initiative until the Commission and the High Representative shape it into a bill.

So far, the European Commission is evidently in no hurry to endorse such a radical step. Besides, many EU member states are not willing to sever relations with Russia and its nationals; and some do not wish to lose Russian tourists to accommodate someone else’s ambitions. Adopting such an EU-wide ban will become a very disturbing precedent that evidences the Union’s moving away from the fundamental principles of the European integration.