- Visas and Border Control under Irish and EU Law - Should Ireland join the Schengen Zone for the sake of Tourism?
Marc McDonald - School of Hospitality Management and Tourism
- Dublin Institute of Technology
- marc.mcdonald@dit.ie
Introduction - Law governing visas and border controls is relevant tourism because …
- The subject is increasing in importance because there are:
- More travellers
- More immigrants masquerading as tourists
- More security risks in travel since 9/11 in US
Introduction - In response governments in Ireland, UK, EU and elsewhere are updating their immigration laws and introducing new security initiatives
- Its even entering popular consciousness with new reality TV programmes
- These initiatives add obstacles and to tourist travel
- UNWTO established in 2008 a special working committee to look at the area
Focus - Law governing visas and border controls on travel into Ireland
- Travel inside and into Schengen Zone
- Travel between Ireland and UK
- Should Ireland join Schengen Zone?
Travel into Ireland - State power to control entry/exit rooted in Constitution
- Conditions of entry:
- Valid travel document
- Visa if required
- Border controls on entry/exit
- Limits on use of state power based on human rights protections
Irish Visas - A visa is … its purpose is ...
- Ireland decides who needs a visa, creates its own application procedures, issues its own visas and does not accept anyone else’s
- Currently, no specific Irish visa legislation, but note Immigration, Residence and Protection Bill 2008
Tourist Visas - No specific tourist visa
- Visas are awkward to get
- Demanding on visa applicants
- Involve precise form-filling, intrusive questioning, delays/queuing, expense
- Visa system difficult to administer - how effective is it anyway?
- Even so, Ireland (like other states) is reluctant to give up what looks like a useful deterrent against illegal immigration …
Alternatives to Visas for Tourists - Technological developments
- Machine-readable, biometric passports and visas, automated entry gates
- API, PNR, electronic travel authorisation
- New possibilities mainly assess security risks, not tourist bona fides i.e. risk of illegal immigration
- Removing visa requirement would mean placing greater emphasis on entry border controls and internal police controls
Irish Border Controls - Generally non-nationals must arrive at authorised air/sea port, except when crossing land frontier with NI
- Airlines must channel to immigration officer
- Tourist must present to request permission to enter
- Legislation (Immigration Act) stipulates grounds of refusal
Irish Border Controls - To gain entry tourist must:
- Posses valid travel document
- Distinction between EC and non-EC tourists
- Show visa if required
- Be able to substantiate tourism purpose if requested
- Not be a security, health, public policy risk
- No mandatory checks and importance for tourists
- No exit checks
Tourist Travel and the EU - EU/EC law governs tourist travel inside and into EU, not national law
- EC law is relevant because of travel implications of EU citizenship and common market freedoms
- EC impact on travel involves two basic distinctions:
- Between tourists crossing EU’s internal and external borders
- Between EU citizens and non-EU citizens
Travel inside the EU - EU citizen’s right of free movement depends only on possession of valid passport/official ID
- No stamps, no questions about …
- Refusals of EU citizens still allowed under EU law but must serve vital public policy, involve no nationality discrimination and act/work proportionately
- Always seen as part of EC project but started as a non-EU initiative and since moved inside EU/EC legal framework - Schengen Initiative
- Intended to facilitate cross-border travel, including tourist movement
- UK and Ireland refusal to join means EU is now split into Schengen Zone and non-Schengen Zone
- Schengen Initiative means more than removing internal border controls
Other Elements of Schengen - Common visa policy
- Common external borders policy
- Common security systems to back up operation of common visa/border policies – Schengen Information System (SIS and VIS)
- External dimension of Schengen – forcing non-EU states to adjust their visa policies for citizens of accession states
EU Visa Policy - One visa issued by any Schengen state authorises tourist entry in all Schengen Zone
- Common list of non–EU states whose nationals need/do not need a Schengen visa
- Common visa format and procedures for issuing Schengen visas …
- EU visa laws operate in addition to local laws controlling outbound tourism e.g. China
- EU visa policy only applies to short-stays (90 days in 6 months)
- Stays beyond this remain subject to national laws and bi-lateral agreements
EU External Border Controls - Detailed, prescriptive and mandatory legal framework
- Requiring ‘thorough’ checks (entry/exit) - questioning and verification … impact on tourism
- Mandatory separate lanes at airports for flights crossing EU external borders
EU External … - Recent security initiatives:
- API
- Proposed UK introduction of API in CTA
- Current Spanish use of EU API law
- Data protection and privacy concerns
Tourism Impacts on Ireland of remaining outside Schengen - Tourists from Schengen Zone subjected to Irish border controls
- Irish tourists travelling to Schengen Zone subjected to Schengen border controls
- Non-EC tourists coming from Schengen Zone need extra Irish visa
- Non EC tourists entering Schengen Zone from Ireland need Schengen visa
Ireland and UK – the Common Travel Area (CTA) - CTA not based on any formal bi-lateral agreement
- Historically understood to mean (mainly) control-free and passport-free travel between both states
- With informal alignment of visa and border control policies
- In Ireland CTA only truly operated on land frontier crossing with NI
CTA - Dublin airport has no separate lanes for CTA travellers and while (in theory) they do not need to show a passport, they must produce some ID to prove they do not need to show a passport!
- UK and Irish proposals for ‘e-borders’
- End of CTA? If it ever existed?
Should Ireland join the Schengen Zone for the sake of Tourism? - So far Ireland has remained outside Schengen mainly because entry would mean imposing the full set of EU external border controls on travel across the land frontier with NI
- Politically (against the background of the NI peace process) Irish government does not wish to create further barriers to north/south cooperation etc.
Should … - Strong case needed to convince Irish government to alter its position
- No sign of EU pressure even though …
- Any tourism–related reasons? Potential benefits of:
- removing internal checks on intra-EU travellers
- recognising/issuing Schengen visas
- No EC checks for out-bound tourists
Should … - But no one has tried to quantify:
- past losses from being outside Schengen
- future benefits from being inside Schengen
- Also, little/no pressure from in/out-bound tourism industry for joining Schengen
- Volume of illegal migration across land frontier with NI?
- Travel and tourism with Schengen Zone becoming more important than with CTA area?
Should … - How ‘untouchable’ is the Schengen obligation to operate external border controls on land frontier with NI?
- Any ways round it? Softening it?
- So far, not much evidence of Irish government exploring softening measures
- Seeking (longish/experimental) transitional derogation?
Should … - Possible special border zone derogation/softening along lines of existing Schengen law for ‘local border traffic’
- Persuading UK to join/adhere to/be approved by Schengen external border controls, while retaining internal border checks
Conclusion - Tourist travel is affected by immigration law
- Border controls hinder movement and full border controls hinder travel more
- Insisting on visas and not recognising anyone else’s also hinders travel
- Ireland does not take part in a major EU initiative designed to facilitate cross-border travel which obviously benefits tourists
Conclusion - Participation in Schengen should make in-bound and out-bound Irish tourist travel easier
- The major impediment to joining Schengen is the obligation to treat the land frontier with NI as an EU external border
- Need for further research to determine impacts
- Irish government has not been pro-active in determining whether there might be any way around this
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