Humanitarian visas : European added value assessment accompanying the European Parliament's legislative own-initiative report (Rapporteur: Juan Fernando López Aguilar).
Date: 2018-10-22
Institutions: Directorate-General for Parliamentary Research Services
Subjects: EU visa policy, Schengen Agreement, admission of aliens, external border of the EU, human rights, humanitarian aid, legislation, migration policy, right of asylum

Humanitarian 
visas 
European Added 
Value Assessment 
accompanying the 
European 
Parliament's 
legislative own-
initiative report 
(Rapporteur: 
Juan Fernando 
Ló pez Aguilar) 

STUDY 

EPRS | European Parliamentary Research Service 

Authors: Wouter van Ballegooij and Cecilia Navarra 
European Added Value Unit 
PE 621.823  October 2018 

EN 

Humanitarian visas 

European Added Value Assessment accompanying the 
European Parliament's legislative own-initiative report 

(Rapporteur: Juan Fernando López Aguilar) 

The European Parliament legislative own-initiative reports drawn up on the 
basis of Article 225 of the Treaty on the Functioning on the European Union 
(TFEU)  are  accompanied  by  a  European  Added  Value  Assessment  (EAVA). 
These  assessments  are  aimed  at  evaluating  the  potential  impacts  and 
investigating the potential EU added value of proposals made in legislative 
own-initiative reports.  

This  particular  EAVA  accompanies  the  legislative  own-initiative  report 
prepared by the Parliament's Committee on Civil Liberties, Justice and Home 
Affairs  (LIBE)  (Rapporteur:  Juan Fernando López Aguilar  (S&D,  Spain)), 
presenting  recommendations  to  the  Commission  on  EU  legislation  on 
Humanitarian visas (2017/2270(INL)).  

Firstly,  it  assesses  the  impacts  of  the  status  quo,  in  which  90 %  of  those 
granted international protection reach the European Union through irregular 
means. It argues that the EU and its Member States' failure to offer regular 
entry  pathways  to  those  seeking  international  protection  undermines  the 
achievement  of  their  Treaty  and  fundamental  rights  obligations.  This 
situation also has severe individual impacts in terms of mortality and damage 
to health, negative budgetary and economic impacts. Secondly, it assesses 
the potential added value of three shortlisted policy options for EU action in 
the area of humanitarian visas: a  'visa waiver' approach, limited territorial 
visas  for  asylum  seeking  purposes  and,  EU-wide  international  protection 
application  travel  permits.  Finally,  it  concludes  that  EU  legislation  on 
humanitarian  visas  could  close  this  effectiveness  and  fundamental  rights 
protection gap by offering safe entry pathways, reducing irregular migration 
and  result  in  increased  management,  coordination  and  efficiency  in  the 
asylum process, as well as promoting fair cost-sharing.

EPRS | European Parliamentary Research Service 

 
 
 
 
AUTHOR(S) 

1. Internal author:   

Dr Wouter van Ballegooij and Dr Cecilia Navarra, European Added Value Unit, DG EPRS, European Added Value 
(Rapporteur: 
Assessment  accompanying 
Juan Fernando López Aguilar) 

the  European  Parliament's 

legislative 

initiative 

report 

This paper was drawn up by the European Added Value Unit within the Directorate-General for Parliamentary 
Research Services (EPRS) of the Secretariat of the European Parliament. 

To contact the author, please email: wouter.vanballegooij@ep.europa.eu   

2. External authors:  

Dr Violeta Moreno-Lax, Queen Mary University, London, The Added-Value of EU Legislation on Humanitarian 
Visas-Legal Aspects 

Dr Meena Fernandes and Brittni Geny, Milieu Ltd., The Added-Value of EU Legislation on Humanitarian Visas-
Economic Aspects  

These research papers were written at the request of the European Added Value Unit within the Directorate-
General for Parliamentary Research Services (EPRS) of the Secretariat of the European Parliament.  

ADMINISTRATOR RESPONSIBLE 

Wouter van Ballegooij, European Added Value Unit, DG EPRS 

To contact the publisher, please e-mail EPRS-EuropeanAddedValue@ep.europa.eu  

LINGUISTIC VERSIONS 

Original: EN 

Manuscript completed in July 2018.  

DISCLAIMER AND COPYRIGHT 

This  document  is  prepared  for,  and  addressed  to,  the  Members  and  staff  of  the  European  Parliament  as 
background  material  to  assist  them  in  their  parliamentary  work.  The  content  of  the  document  is  the  sole 
responsibility of its author(s) and any opinions expressed herein should not be taken to represent an official 
position of the Parliament. 

Reproduction  and  translation  for  non-commercial  purposes  are  authorised,  provided  the  source  is 
acknowledged and the European Parliament is given prior notice and sent a copy. 

Brussels © European Union, 2018. 

PE 621.823 
ISBN: 978-92-846-3106-3 
doi:10.2861/147429 
Cat: QA-02-18-833-EN-N 

eprs@ep.europa.eu  
http://www.eprs.ep.parl.union.eu (intranet) 
http://www.europarl.europa.eu/thinktank (internet) 
http://epthinktank.eu (blog) 

 
 
 
 
Humanitarian visas 

Executive summary  

Humanitarian visas allow asylum-seekers to legally and safely access a third country. At present, the 
EU  lacks  a formalised  humanitarian  visa  system.  The  number of  persons  admitted  through other 
protected  entry  procedures  (PEPs)  and  protection  practices,  such  as  resettlement  programmes, 
community or private sponsorship schemes and 'humanitarian corridors' remains low in comparison 
with the need. Furthermore, resettlement caters only for those who are already declared refugees, 
without providing a means of access to those in need of international protection whose status is yet 
to  be  established.  This  means  there  is  a  lack  of  regular  channels  for  those  seeking  international 
protection  to  reach  the  EU  and  lodge  an  asylum  application.  As  a  result,  90 %  of  those  granted 
international protection reached the European Union through irregular means.  

This European Added Value Assessment (EAVA) builds upon the two annexed research papers and 
identifies  the  impact  of  the  lack  of  regular  pathways  to  access  international  protection  on  the 
achievement  of  EU  policy  objectives  and  fundamental  rights  obligations.  It  argues  that,  at  the 
moment, EU legislation does not provide clear and complete standards on admission to the EU for 
asylum seeking purposes and that there is no common understanding of the applicable practical 
arrangements. This situation calls into question the extent to which the EU and its Member States 
collectively fulfil their Treaty and fundamental rights obligations to guarantee the right to asylum. 

This study also identifies the social, economic and budgetary impacts of the status quo at individual, 
Member State and EU level (the 'Cost of Non-Europe'). Beyond the denial of fundamental rights, the 
current situation has severe negative impacts on individuals, Member States and the EU. Individual 
impacts  include  the  financial  repercussions  of  paying  smugglers,  and  heightened  risks  for 
trafficking, exploitation, violence and death. The EU and Member States also experience high direct 
costs. This is due to high levels of emergency funding, primarily allocated to border Member States, 
for  the  reception  of  asylum-seekers;  the  transfers  of  asylum-seekers  to  the  Member  State 
responsible for examining the asylum application; the processing of the asylum applications and 
the return of rejected asylum-seekers. The status quo also implies high indirect costs for the EU and 
Member States, which are related to efforts to control the inflow of migrants and asylum-seekers 
(e.g.  border  security  and  surveillance  costs),  search  and  rescue  activities,  and  cracking  down  on 
criminals or members of organised crime networks that have exploited the refugee crisis for their 
personal gain.  

This  EAVA  argues  that  a  formalised  humanitarian  visa  system  at  EU  level  would  add  value,  by 
ensuring compliance with EU values, including fundamental rights. It would enhance mutual trust 
between  Member  States  and  confidence  in  the  system  for  asylum-seekers,  would  provide  legal 
certainty, predictability, uniform application and implementation of the rules. It would also result in 
the increased management, coordination and efficient of the asylum process and the reduction of 
the above-cited status quo costs.  

In  particular,  EU  legislation  on  humanitarian  visas  would  avoid  fragmentation  in  policies  and 
practices  across  the  Schengen  area,  thereby  enhancing  its  stability.  In  this  context,  it  should  be 
pointed out that in the absence of Union action, there has already been a dismantlement of existing 
PEPs at national level, due to fears that they would work as a 'pull factor' for migration. The adoption 
of  a  clear  set  of  rules  to  access  the  Schengen  area  for  the  purposes  of  seeking  international 
protection  would  allow  for  better  screening  of  candidates,  predictions  of  arrivals,  and  better 
preparation  and  coordination  of  post-arrival  arrangements.  Furthermore,  EU  intervention  would 
allow for a reduction of current costs (in human lives; illicit smuggling and trafficking activity; and 
border and migration control and deterrence) and a reallocation of resources. Consequently, this 
would ensure the development of an integrated management system of the EU external borders in 
line with fundamental rights. 

5 

 
EPRS | European Parliamentary Research Service 

EU  legislation  on  humanitarian  visas  would  affect  the  Union's  policies  regarding  asylum,  border 
control  and  visa  policy.  Schengen  Member  States  would  be  particularly  affected,  given  that  they 
have  lifted  internal  border  controls  between  them,  barring  exceptional  circumstances.  Different 
Member States' standards as regards the entry of asylum-seekers can undermine the Union's policy 
objectives in these areas, as has occurred in the past. The primary objective of the EU legislation on 
humanitarian visas would be to establish both the conditions for safe access to the Schengen space 
and  to  apply  for  international  protection  under  EU  law.  Therefore,  Article 77(2) (b)  TFEU  on  the 
checks to which persons crossing external borders are subject, and (alternatively or concurrently) 
78(2)(g)  TFEU  on  partnership  and  cooperation  with  third  countries  for  the  purpose  of  managing 
inflows of  people  applying  for  asylum or  subsidiary or  temporary  protection, would  be  the most 
appropriate legal basis. 

This EAVA looks at three EU policy options that are feasible to adopt EU law on humanitarian visas, 
namely:  

1) a 'visa waiver' approach; 

2) limited territorial visas (LTV) for asylum-seeking purposes; and  

3) EU-wide international protection application travel permits. 

The expected costs and benefits of the identified options for EU legislation on humanitarian visas 
are  determined,  to  some  extent,  by  how  asylum-seekers  would  respond  to  those  options.  A  key 
factor to assess is whether those currently reaching the EU through irregular means will make use 
of the legal channel created. Applying economic theory, one may reasonably expect a significant 
portion of migrants travelling to the EU to seek asylum through irregular means to apply for an EU 
humanitarian visa, thus reducing irregular migration flows to the EU. The effect on those people of 
concern who would not migrate in the absence of the policy option is expected to be much smaller. 
Significant costs remain, even where a legal channel is opened.  In any event, a controlled pilot of 
the preferred policy option, selecting certain refugee producing countries, categories of claimants 
etc., along with a robust monitoring system could provide a better picture of the practical impact 
on migration flows. 

The visa waiver approach would have most benefits from an individual rights perspective, whereas 
the  economic  findings  suggest  that  LTV  and  EU-wide  international  protection  application  travel 
permit options in particular would lead to increased management, coordination and efficiency in 
the asylum process, as well as promote fair cost-sharing across the Member States in line with the 
principles of subsidiarity and proportionality. An expansion of the European Asylum Support Office 
(EASO) staff and responsibilities could help ensure the effective implementation of these options. 

6 

 
 
 
 
 
 
Humanitarian visas 

Table of contents 

1. Introduction  _________________________________________________________________  9 

2. Impact of the lack of regular pathways towards accessing international protection _______ 11 

2.1. Legal and fundamental rights impacts _________________________________________ 11 

2.2. Individual impacts _________________________________________________________ 11 

2.3. Impacts on the EU and Member States _________________________________________ 13 

3. EU humanitarian visas  ________________________________________________________ 16 

3.1. Subsidiarity (necessity, relevance and EU added value)  ___________________________ 16 

3.2. Legal basis _______________________________________________________________ 17 

3.3. Policy options  ____________________________________________________________ 17 

3.4. Proportionality ____________________________________________________________ 18 

Annex I – The Added-Value of EU Legislation on Humanitarian Visas-Legal Aspects   _______ 23 

Annex II – The Added-Value of EU Legislation on Humanitarian Visas - Economic Aspects __ 125 

7 

 
 
 
 
 
 
 
EPRS | European Parliamentary Research Service 

Table of figures 

Figure 1: Persons of concern in 2016 – a global perspective ____________________________ 12 

Figure 2: Decision tree for a hypothetical person in need of protection ___________________ 19 

Table of tables 

Table 1: Overview of individual impacts ____________________________________________ 13 

Table 2: Overview of impacts on Member States _____________________________________ 14 

Table 3: Summary of indirect impacts for the EU (annual estimates)______________________ 15 

Table 4: Member States with humanitarian admission programmes  _____________________ 17 

Table 5: Overview of costs faced by individuals in need of protection  ____________________ 20 

Table 6: Comparative analysis of the policy options as opposed to the status quo  __________ 21 

8 

 
 
 
 
 
 
 
 
 
1. Introduction 

Humanitarian visas allow asylum-seekers to legally and safely access a third country. Humanitarian 
visas  fall  within  the  category  of  protected  entry  procedures  (PEPs).1  Other  PEPs  and  protection 
practices  exist  that  meet  individual  or  collective  protection  needs  outside  the  territory  of  the 
Member States, such as resettlement2 programmes, community or private sponsorship schemes,3 
and 'humanitarian corridors'.4 A previous study suggests that as many as 16 Member States have or 
have  had  some  form  of  PEPs  in  place.5  Nevertheless,  arrangements  differ  significantly  between 
formulae and across Member States, in terms of selection criteria, referral mechanisms, procedures, 
status  conferred,  and  post-arrival  arrangements.  Moreover,  the  number  of  persons  admitted 
through  all  these  schemes  remains  low6  in  comparison  with  the  need.  As  a  result,  it  has  been 
estimated that 90 % of those granted international protection reached the European Union through 
irregular means.7 

At present, the EU lacks a formalised humanitarian visa system. This means there is a lack of regular 
channels  for  those  seeking  international  protection  to  reach  the  EU  and  lodge  an  asylum 
application. In particular as regards entry requirements it needs to be pointed out that the Schengen 
Borders  Code  (SBC)  only  includes  generic  references  to  the  rights  of  refugees  and  persons 
requesting  international  protection  and  international  obligations  incumbent  upon  the  Member 
States to guarantee these rights. The practical implications of these references for the treatment of 
these persons at the EU's external borders remain unclear.8   

The Common European Asylum System (CEAS) instruments also remain largely silent on Member 
States  responsibilities  before  the  application  for  international  protection  has  been  made  and 
lodged.  This  may  lead  to  the  erroneous  dismissal  of  applications,  or  even  forcing  the  person  to 
return  to  a  country  or  territory  where  he  or  she  is  likely  to  face  persecution  (refoulement). 
Furthermore,  the  CEAS  is  not  applicable  to  requests  for  asylum  submitted  to  representations  of 
Member States.9  

EU visa rules follow the logic of the SBC, anticipating entry controls to the stage of pre-departure. 
However, there is no explicit reference to the rights of those seeking international protection. To the 
contrary,  as  part  of  visa  policy,  refugee-producing  countries  are  placed  on  blacklists  and  the 
applicants' intention to leave the territory before the visa expires is verified (which is per se contrary 

1 For further background, also taking into account wider options for legal migration, see Legal entry channels to the EU for 

persons in need of international protection: a toolbox, European Union Agency for Fundamental Rights, 2015. 

2 Resettlement consists of the selection and transfer of already-recognised refugees from a country of first asylum to a 
third State that agrees to admit them as refugees and grant them permanent residence; UNHCR Resettlement Handbook. 
Negotiations concerning a proposal for a Union resettlement framework are currently ongoing (see EPRS legislative train 
schedule, EU resettlement framework). Moreno-Lax, section 3.1.1. 

3 Moreno-Lax, sections 3.1.2 and 3.1.3. 
4 Moreno-Lax, section 3.1.4. 
5  U.  Jensen,  Humanitarian  visas,  option  or  obligation,  Policy  Department  C:  Citizens'  Rights  and  Constitutional  Affairs, 

European Parliament, 2014. 

6  Progress  report  on  the  Implementation  of  the  European  Agenda  on  Migration,  COM(2018)  250  final,  European 

Commission, March 2018. 

7 See Exploring avenues for protected entry in Europe Italian Council for Refugees (CIR), October 2012, p. 17; Moreno-Lax, 

section 1.1. 

8 Moreno-Lax, section 2.1.1. 
9 Moreno-Lax, section 2.1.2. 

9 

 
 
 
 
                                                             
to lodging an application for asylum).10 In accordance with the interpretation of the Court of Justice 
of the European Union (CJEU), Member States are currently not required to grant a humanitarian 
visa to persons who wish to enter their territory with a view to applying for asylum.11 The SBC, CEAS 
and Visa Code therefore leave gaps in protection for refugees at of Member States' representations 
and at the EU's external borders.12  

The  Commission  was  originally  favourable  towards  EU  measures  on  humanitarian  visas,  even 
outsourcing a feasibility study.13 As recently as 2013, the Commission was still referring to a holistic 
approach to maritime crossings and death at sea, including exploring the opening of legal channels 
to  safely  access  the  European  Union.14  However,  since  then  its  emphasis  has  shifted  towards 
increasing  border  controls  and  cooperation  with  third  countries,  together  with  –  limited  – 
resettlement programmes.15 In parallel with this policy shift, several Member State schemes have 
been abolished. 

The European Parliament has however consistently called for the provision of humanitarian visas. In 
its 2016 resolution on the situation in the Mediterranean and the need for a holistic EU approach to 
migration, the European Parliament stated that persons seeking international protection should be 
able to apply for a European humanitarian visa directly at any consulate or embassy of a Member 
State, and that once granted, such a European humanitarian visa would allow its holder to enter the 
territory  of  the  Member  State  which  had  issued  the  visa,  for  the  sole  purpose  of  lodging  an 
application for international protection in that country.16 

As  part  of  the  negotiations  on  the  2014  Commission  proposal  for  a  Visa  Code,17  a  number  of 
amendments aimed at the creation of a European humanitarian visa were included in the report 
adopted by Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE).18 However, 
during trilogue negotiations both Commission and Council opposed the inclusion of provisions on 
humanitarian  visas  in  the  Visa  Code,  with  the  Council  refusing  to  continue  negotiations  if  these 
amendments  were  not  withdrawn.  In  September 2017,  after  several  months  of  deadlock  in  the 
negotiations, Parliament's negotiating team withdrew the amendment in relation to the creation of 
a  European  humanitarian  visa.  Instead,  a  legislative  own-initiative  report  has  been  drawn  up 
(Rapporteur:  Juan Fernando López Aguilar  (S&D,  Spain),  (2017/2270(INL)),  to  call  upon  the 
Commission  to  present  a  separate  legislative  act  on  humanitarian  visas.  The  legislative  own-
initiative report also includes recommendations as to the content of the proposal requested. 

10 Moreno-Lax, section 2.1.3. 
11 Case C-638/16 PPU, X and X v État Belge, March 2017. 
12 Moreno-Lax, section 2.2. 
13 G. Noll et al., Study on the feasibility of processing asylum claims outside the EU against the background of the Common 
European  Asylum  System  and  the  goal  of  a  Common  Asylum Procedure,  study  carried  out  by  the  Danish  Centre  for 
Human  Rights  on  behalf  of  the  European  Commission  (Directorate  General  for  Justice  and  Home  Affairs),  European 
Commission, 2002. 

14 Commission Communication on the work of the Task Force Mediterranean, COM (2013) 869, p. 2. 
15 A European Agenda on Migration, COM (2015) 240, European Commission, 2015, at p. 5. 
16 Resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration, 

European Parliament, para. 27. 

17 Proposal for a regulation of the European Parliament and of the Council on the Union Code on Visas (Visa Code), COM 

(2014) 0164 final, 2014. 

18 Draft European Parliament legislative resolution on the proposal for a regulation of the European Parliament and of the 

Council on the Union Code on Visas (Visa Code), 14 April 2016. 

10 

 
 
 
 
 
 
                                                             
2. Impact of the lack of regular pathways towards accessing 
international protection 

2.1. Legal and fundamental rights impacts 

The  lack  of  regular  pathways  to  access  international  protection  touches  the  core  of  EU  values. 
Respect for these values, including fundamental rights, is underlined in various treaty articles19 and 
the Charter of Fundamental Rights (CFR). It is also an explicit condition for external action.20 This is 
reflected in the provisions on the Area of Freedom, Security and Justice (AFSJ), which demand these 
policies  are  developed  with  respect  to  fundamental  rights.21  The  Treaty  provisions  on  the  CEAS 
underline the need to comply with the principle of non-refoulement, the Geneva Convention and 
other  relevant  treaties.22  The  prohibition  of  refoulement  is  covered  by  Article 4  of  the  Charter, 
mirroring  Article 3  of  the  European  Convention  on  Human  Rights  (ECHR),  as  interpreted  by  the 
European Court of Human Rights. As discussed in the research paper by Dr Moreno-Lax, presented 
in full in Annex I, 'any action under EU law, such as entry rejection or a visa refusal, the consequence 
of  which  is  to  expose  to  ill  treatment  may  well  impinge  upon  Article 3  ECHR  and  Articles 4  and 
19 CFR'.23 

This situation calls into question the extent to which the EU and its Member States collectively fulfil 
their treaty and fundamental rights obligation to protect the right to asylum. 

2.2. Individual impacts 

In the research paper by Milieu, presented in full in Annex II, eight key impacts on persons in need 
of protection have been identified.24 These impacts include: 

  the risk of continued persecution of those who do not have the resources and those 

who are too vulnerable to seek to enter the EU through irregular means; 

  the financial repercussions of paying smugglers;  
  the heightened risks for mortality due to drowning, and starvation, peaking at over 

5 000 deaths in 2016;  

  sexual violence and trafficking; and 
 

 poor reception conditions at arrival.  

The limited legal pathways to the EU primarily affect two populations – 'other persons of concern' 
(see  figure 1)  and  asylum-seekers.  Other  persons  of  concern  include  internally  displaced  persons 
(IDPs), who remain in the source country where they experienced persecution. Asylum-seekers to 
the EU account for 3 % of the persons of concern.  

19 Articles 2, 6 TEU. 
20 Article 21 TEU. 
21 Article 67 (1) TFEU. 
22 Article 78(1) TFEU. 
23 Moreno-Lax, section 4.2.1. 
24 Milieu, section 2.I (individual impacts). 

11 

 
 
 
                                                             
Figure 1: Persons of concern in 2016 – a global perspective   

Source: Milieu, 2018, Chapter 2.   

The table below presents an overview of the findings by Milieu on the impacts of the status quo on 
those individuals. 

12 

 
 
 
 
Table 1: Overview of individual impacts 

Individuals 
affected 

f
o
s
n
o
s
r
e
p

n
r
e
c
n
o
c

r
e
h
t
O

U
E
e
h
t
o
t

s
r
e
k
e
e
s
-

m
u
l
y
s
A

Type of impact 

Assessment* 

1.  Risk  of  continued 
persecution (do not seek 
asylum). 

An estimated 70 % of 'persons of concern' (47.7 million) 
in  2016.25  These 
remained 
individuals are likely to be from vulnerable populations. 

in  the  source  country 

2. Smuggler fees. 

€3 050-32 000 per asylum seeker. 

3.  Risk  of  trafficking  and 
other exploitation. 

79 % reported at least one of four human trafficking and 
other  exploitative  practices  along 
the  Central 
Mediterranean route; 9 % for the Eastern Mediterranean 
route. 

4. Mortality and health. 

1.3-1.8 % estimated risk of mortality. 

5. 
Poor 
conditions. 

reception 

97 % of arrivals to the EU in 2016 were in border Member 
States  (Italy  and  Greece),  causing  work  and  cost 
imbalance  and  overload  and  ultimately  poor  reception 
conditions.  

6. Delays to integration.  Waiting  periods  delay  the  eventual  decision  on  an 
towards 
asylum 
integration 
is  an 
estimated 6-12 month waiting period to lodge an asylum 
application in the EU. 

into  society.  For  example,  there 

seeker's  application  and 

steps 

7.  Risk  of  entry  into  the 
informal market. 

8. Discrimination. 

Applicants whose application is rejected but that remain 
in  the  EU  risk  falling 
informal  economy 
(estimated 24 % of applicants). 

into  the 

Lower earnings due to higher risk of assault (2-13 %) and 
lower probability of employment (2-8 % for racial/ethnic 
discrimination).  

Source: Milieu, 2018, Chapter 2.  

2.3. Impacts on the EU and Member States 

The EU and Member States incur direct costs due to high levels of emergency funding under the 
Asylum  Migration  and  Integration  Fund,  primarily  devoted  to  border  Member  States  for  the 
reception of asylum-seekers, as well as transfers of asylum-seekers to the Member State responsible 

25  These  individuals  include  returned  refugees,  internally  displaced  persons  (IDPs),  returned  IDPs,  persons  under  the 

UNHCR's statelessness mandate, and others of concern. 

13 

 
 
                                                             
 
 
 
 
 
 
 
 
for examining the application for asylum, the processing of asylum applications and the return of 
rejected asylum-seekers.26 

The table below presents an overview of the findings by Milieu on the impacts of the status quo on 
Member States. 

Table 2: Overview of impacts on Member States 

Type of impact 

Assessment 

Border security and 
surveillance 

Security and terrorism 

Private shipping –  
search and rescue missions 

High burden on EU border countries (e.g. Italy, Greece)  

See Cost of Non-Europe in the fight against terrorism27 

€23 000 per year or up to €216 000 per operation28 

Provision of reception 

€34 per day, per individual 29 

Processing asylum 
applications 

Cost of return 

€4 834 for each application30 

Forced return: €2 000 per individual 31 

Voluntary return: €560 per individual 32 

Risk of entry into the informal 
market 

An  estimated  24 %  of  arrivals  (approximately  300 000)  disappear  from 
the EU asylum system and remain in the EU 

Complementary  pathways  of 
admission 

Costs 
for  Member  States  hosting 
humanitarian admission programmes  

refugees 

through  national 

Organised crime 

See section III EU impacts  

Source: Milieu, 2018, Chapter 2.  

The  review  carried  out  by  Milieu  (see  annex II)  identified  the  following  direct  costs  (2016  annual 
figures):  

•  €170 million to set up the CEAS; 
•  €73 million for the operation of the EASO; and 

26 Milieu, section 2.II (Member State impacts) and 2.III (EU impacts). 
27 W. van Ballegooij and P. Bakowski, The fight against terrorism, Cost of Non-Europe Report, EPRS, May 2018. 
28 The cost depends on the type of private vessel, the distance that must be taken off-course, accessibility of the nearest 
port,  etc.  Lower  bound  cost  sourced  here:  https://fairplay.ihs.com/commerce/article/4266186/european-parliament-
votes-to-protect-ship-masters-during-mediterranean-rescues;  the  upper-bound  figure  was  calculated  based  on  the 
US$50 000  mentioned  here:  https://www.reuters.com/investigates/special-report/europe-migrants-ship/  This  was 
multiplied by the five days mentioned in delays. The figure was then converted into euro (note conversation rate based 
on June 2018 rate).  

29 Cost of Non-Europe Report in the area of asylum, EPRS, to be published in September 2018. 
30 Ibid. 
31 Ibid. 
32 Ibid. 

14 

 
 
 
                                                             
•  €2.3 billion for emergency funding for 'hotspots' and other supports. 

The status quo also implies high indirect costs for the EU and the Member States, in terms of border 
security, surveillance, and search and rescue operations, as well as control of organised crime. Due 
to the lack of regular channels for asylum applications (and also to obtain work permits), mixed flows 
of economic migrants and refugees seek to access the EU at its external borders. EU agencies and 
Member State authorities face difficulties in distinguishing between the two categories. This also 
leads to a waste of financial resources. The 2014 EU budget for border control, irregular immigration 
deterrence, and related law-enforcement apparatus, exceeded €4 billion. The table below presents 
an overview of the indirect impacts of the status quo on the EU: 

Table 3: Summary of indirect impacts for the EU (annual estimates) 

Type of impact 

1. Surveillance and 
border 
management. 

2 Security and 
terrorism. 

3. Third country 
agreements. 

4. Development 
cooperation. 

annual 

Total 
cost  
€416 million 

€13.6 billion 

€2.3 billion 

€2.5 billion 

5. Organised crime. 

€30 billion 

Assessment 

ISF: €7 million for EU actions and €73 million for 
emergency assistance; Frontex: €230 million; 
Temporary internal border controls: €106 million 

See Cost of Non-Europe on terrorism 

Emergency Trust Fund for Africa: €833 million; Turkey 
agreement: €1.5 billion 

Development  cooperation:  €1 million;  Emergency 
funding: €2.5 billion 

Human 
Smuggling Centre: €5 million 

trafficking:  €30 billion;  Europol  Migrant 

Source: Milieu, 2018, Chapter 2. 

Note: The cost estimates are annual estimates based on multi-year budgets spanning from 2014 to 
2019.   

15 

 
 
3. EU humanitarian visas 

3.1. Subsidiarity (necessity, relevance and EU added value) 

Article  5(3)  TEU  encapsulates  the  principle  of  subsidiarity,  which  requires  consideration  of  any 
factors  that  may  determine  the  best  level  for  measures,  whether  domestic  or  supranational,  to 
comply  with  a  particular  Union  objective.  '[I]n  areas  which  do  not  fall  within  its  exclusive 
competence', as is the case of the AFSJ, 'the Union shall act only if and in so far as the objectives of 
the proposed action cannot be sufficiently achieved by the Member States … but can rather, by 
reason of the scale or effects of the proposed action, be better achieved at Union level'. 

Different  standards  among  Member  States  as  regards  the  entry  of  asylum-seekers  can  and  have 
undermined  the  Union's  policy  objectives,  notably  as  regards  the  integrated  management  of 
external borders33 and the achievement of a Common European Asylum System.34 Several examples 
are mentioned in the research paper by Dr Moreno-Lax.35 Most importantly they also undermine the 
citizens' trust in the EU's combined approach to the challenges of managing migration, achieving a 
high level of security, and safeguarding fundamental rights. Moreover, without a more homogenous 
policy approach, asylum-seekers will continue to reach EU shores through irregular, unsafe means, 
risking their lives in perilous voyages, collectively assimilated to the category of irregular migrants. 
Unless alternative pathways are opened, resettlement will, predictably, continue to be the only legal 
route to international protection in the EU, despite not providing a means of primary access to a 
durable solution, but catering only for those who have already been declared refugees. It is worth 
mentioning that currently resettlement numbers are quite small compared to the need. 

A formalised humanitarian visa system at EU level would have added value, by: 

  ensuring compliance with EU values, including fundamental rights;   
  enhancing mutual trust between Member States and confidence in the system for 

asylum-seekers;  

  providing  legal  certainty,  predictability  of  application  procedures,  and  the  fair 

application and implementation of the rules; and 
  reducing the costs of the status quo cited above.  

Specifically, harmonisation of the relevant rules would avoid fragmentation in policies and practices 
across the Schengen area, thereby enhancing its stability.36 In this context it should be pointed out 
that, in the absence of Union action, existing PEPs at national level have already been dismantled, 
due to fear that they might create a 'pull factor' for migration.37 Those still in existence recently, cater 
to very modest numbers, as can be seen in table 4.  

33 Article 77 TFEU. 
34 Article 78 TFEU. 
35 Moreno-Lax, section 5.3.1, (the necessity of EU-level intervention). 
36 Cf. European Parliament resolution of 30 May 2018 on the annual report on the functioning of the Schengen area, P8_TA-
PROV(2018)0228,  paragraph  30:  'Stresses  that  safe,  legal  access  to  the  EU,  including  at  the  external  borders  of  the 
Schengen area, will help ensure the overall stability of the Schengen area'. 

37 Moreno-Lax, section 5.3.1, (the necessity of EU-level intervention). 

16 

 
 
                                                             
Table 4: Member States with humanitarian admission programmes 

Host 
country 
Austria 

Germany 

Ireland 

France 

UK 

Programme name 

Countries targeted 

Humanitarian admission 
programme 
Humanitarian admission 
programmes 

Syrian humanitarian admission 
programme (SHAP) and family 
Reunification HAP 
Humanitarian admission 
programme 
Vulnerable persons relocation 
scheme (VPRS) 

Syria 

Syria, Afghanistan, 
Palestine, Egypt, Libya, 
Iraq 
SHAP – Syria 
FRHAP – all refugees 

Syria 

Syria (and, as of mid-2017, 
Iraq and Palestine) 

Number of refugees  
2013-2016 

1 668 

20 047 

SHAP – 119 visas 
FRHAP – 530 

3 415 

10 538 

Source: Milieu, 2018, Chapter 2. 

Economies of scale can only materialise in an EU-wide context. The adoption of a clear set of rules 
to access Schengen territory for the purposes of seeking international protection would allow for 
better screening of candidates, predictions of arrivals, and better preparation and coordination of 
post-arrival arrangements. EU intervention would furthermore allow for a reduction in current costs 
(in  human  lives;  illicit  smuggling  and  trafficking  activity;  and  border  and  migration  control  and 
deterrence),  and  a  reallocation  of  resources.  Ultimately  this  would  ensure  compliance  with  the 
obligation of developing an integrated management system for the EU's external borders in line 
with fundamental rights (Articles 67 and 77 TFEU).  

3.2. Legal basis 

As  discussed  in  chapter 1,  EU  legislation  on  humanitarian  visas  would  affect  the  Union's  policies 
regarding asylum, border control and visa policy. Schengen Member States would be particularly 
affected,  given  that  they  have  lifted  internal  border  controls  between  them,  barring  exceptional 
circumstances.38 The position of asylum-seekers crossing (or demonstrating an intention to cross) 
into an EU Member State's territory, reveals the cross-border nature of their situation, disclosing the 
'EU-relevance' of the matter, and the need for EU-wide intervention to deal with the issue. 

The primary objective of EU legislation on humanitarian visas would be to establish the conditions 
for safe access to the Schengen space to apply for international protection under EU law. Articles 
77(2) (b) TFEU  on  the  checks  to  which  persons  crossing  external  borders  are  subject  and 
(alternatively  or  concurrently),  and  78(2)(g) TFEU  on  partnership  and  cooperation  with  third 
countries  for  the  purpose  of  managing  inflows  of  people  applying  for  asylum  or  subsidiary  or 
temporary protection, would therefore provide the most appropriate legal basis. 

3.3. Policy options 

Next to the baseline scenario presented previously, this study has also explored three policy options: 

Option 1: A 'visa waiver' approach 
The  visa  waiver  approach  would  only  require  a  revision  of  the  current  visa 
in 
Regulation 539/2001  to  either  de-classify  or  suspend  the  visa  requirement  for  nationals  of  top 

lists 

38Cf.  European  Parliament  resolution  of  30  May  2018  on  the  annual  report  on  the  functioning  of  the  Schengen  area, 

P8_TA(2018)0228. 

17 

 
                                                             
refugee-producing  countries,  where  risks  to  life  and/or  freedom  are  well  known  and  freely 
ascertainable from publicly available and reliable sources. For an accurate selection of the countries 
concerned, it is proposed to draw on Eurostat and UNHCR data. 

Option 2: Limited territorial visas (LTV) for asylum-seeking purposes 
A  second option would  be  for Member  State  consulates  to issue  EU  humanitarian  visas  allowing 
holders to access their territory. This would be carried out according to a dedicated legal instrument 
that harmonises issuing criteria and procedures, in line with the good administration and effective 
remedy  standards  set  in  Articles  41  and  47 CFR.  The  legal  instrument  would  notably  entail 
amendments to the LTV provisions in the Visa Code. 

Option 3: EU-wide international protection application travel permits 
A third option would entail full centralisation of decision-making and distribution of applicants via 
specialised  EASO  teams  making  or  coordinating  assessments  within  European  External  Action 
Service  (EEAS)  representations  abroad.  However,  it  should  be  mentioned  that  this  option  would 
entail  a  number  of  consequences,  including  the  adjustment  of  Dublin  criteria;  the  creation  of  a 
distribution  mechanism  of  successful  applicants  via  predefined  quotas  per  Member  State;  a 
preference-matching tool; a corrective system that accounts for children rights, family unity, and 
dependency links; and a compensatory tool to palliate any residual uneven distribution. 

Whatever  the  option,  qualification  criteria  must  match  non-refoulement  guarantees,  as  per 
Articles 4  and  19(2) CFR,  so  that  those  with  an  'arguable  claim'  of  exposure  to  a  'real  risk'  of 
persecution or serious harm are granted a visa for asylum seeking purposes. Decisions should be 
taken prima facie and by fully competent and trained personnel. Procedural guarantees, including 
legal aid, information, translation, and representation must be provided, so as to preserve the right 
to be heard. Appeals against negative decisions and effective remedies must also be available. 

3.4. Proportionality 

Beside the principle of subsidiarity, the principle of proportionality, under Article 5(4) TFEU, requires 
that  'the  content  and  form  of  Union  action  shall  not  exceed  what  is  necessary  to  achieve  the 
objectives of the Treaties'. In this respect, there are different considerations to take into account, 
including the intensity of the EU action, the form it should take, and the costs it implies.39  

The expected costs and benefits of the proposal for EU humanitarian visas are determined, to some 
extent, by how asylum-seekers would respond to the policy options. Currently asylum-seekers, by 
and large, have three options: 

39 Better Regulation Toolbox No 5. 

18 

 
 
 
                                                             
1) stay in the source country;  

2) seek asylum in a neighbouring country; or  

3) seek asylum in the EU through irregular means.  

The introduction of EU humanitarian visas may lead to a shift in choice towards this new option. This 
is modelled in terms of the decision tree below. 

Figure 2: Decision tree for a hypothetical person in need of protection  

Source: Milieu, 2018, Chapter 3. 

Since the new legal tool would reduce the cost of (and some of the risks associated with) seeking 
asylum, a significant portion of migrants seeking asylum in the EU through irregular means could 
be expected to apply for an EU humanitarian visa, thereby reducing irregular migration flows to the 
EU.  The  level of  substitution may,  in  principle,  reach  up  to  100  %,  where  all asylum  seekers who 
would have pursued an irregular channel now pursue the new legal channel. In practice, however, 
the level of substitution may depend on the implementation of the policy option, its accessibility, 
and the perception of fairness. Under the reasonable assumption that asylum seeking is relatively 
'inelastic' in cost, it is expected that the number of people who would apply for an EU humanitarian 
visa, among those who would have otherwise stayed in the country of origin, is relatively small. This 
especially applies to the LTV and EU-wide international protection application travel permit options.  

However, as indicated in table 5 below, significant costs remain, which would limit the appeal of 
seeking  asylum in  the  EU,  even  where  a  legal  channel is offered.  The  stress  and  social  costs  (e.g. 
leaving one's community behind) would be high. The financial cost would be less, but may still be 
quite significant for individuals, particularly if they are from more vulnerable populations.   

19 

 
 
 
 
Table 5: Overview of costs faced by individuals in need of protection 

Key types of 
risks/costs 

Status quo 

Stay in source country 

Seek asylum in the EU 
via irregular means 

EU scheme for 
humanitarian visas 
(policy options 1-3) 

Persecution 
Financial costs  
Risk of trafficking and 
other exploitation 
Mortality and health 
Isolation  from  family 
and community 

Source: Milieu, 2018, Chapter 3 

High 
Low 
Low 

Medium-high 
Low 

Low 
Very high 
High 

High 
High 

Low 
Medium-high 
Low 

Low 
High 

A  controlled  pilot  of  the  preferred  policy  option,  selecting  certain  refugee  producing  countries, 
categories of claimants etc., along with a robust monitoring system, could provide a better picture 
of the practical impact on migration flows.40 

The visa waiver approach would have most benefits from an individual rights perspective, whereas 
the economic findings suggest that the visa waiver option would have the lowest set-up costs and 
the highest benefits for individual asylum-seekers. From the perspective of the EU and its Member 
States,  however,  the  LTV  and  EU-wide  international  protection  application  travel  permit  options 
would offer greater benefits that stem primarily from the reduction of reception and return costs in 
the  post-arrival  phase.  An  expansion  of  EASO  staff  and  responsibilities  could  help  ensure  the 
effective  implementation  of  these  options.  In  general  these  options  would  lead  to  increased 
management,  coordination  and  efficiency  in  the  asylum  process,  as  well  as  promoting  fair  cost-
sharing  across  the  Member  States  that  are  in  line  with  the  principles  of  subsidiarity  and 
proportionality.41 

40 Milieu, Chapter 3; Moreno-Lax, Chapter 5. 
41 Milieu, Chapter 4. 

20 

 
                                                             
Table 6: Comparative analysis of the policy options as opposed to the status quo  

Individual 
rights 
perspective 

Reduction 
of  irregular 
entries into 
the EU 

Pre-arrival 
security  and 
control 

Legal  changes 
required 

Cost-savings 

Policy  Option  1: 
visa 
waiver 
approach 

Policy  Option  2: 
territorial 
Limited 
visas  

+++ 

++ 

+ 

+++ 

++ 

+++ 

+++ 

++ 

+ 

++ 

Policy Option 3:  
EU-wide 
international 
protection 
application 
permits 
Key: '--' highly negative; '--' negative; '++' highly positive; '+' positive; '=' neutral 

+++ 

+++ 

++ 

+ 

++ 

Source:  EPRS,  taking  account  of  Milieu,  2018,  Table  3  (comparison  of  policy  options  with  the  status  quo  – 
individual's  perspective),  table  4  (comparison  of  policy  options  with  the  status  quo,  Member  State  and  EU 
perspectives), and Moreno-Lax, table on p. 15 of the executive summary. 

21 

 
 
 
 
 
 
 
 
ANNEX I  

The Added Value of EU Legislation on Humanitarian Visas – 
Legal Aspects 

Research paper 
by Dr Violeta Moreno-Lax 

Abstract 

The present research paper undertakes an in-depth evaluation of the added (legal) 
value  of  legislation  that  may  be  proposed  for  adoption  by  the  European 
Parliament  via  its  Legislative  Own-Initiative  Report  on  Humanitarian  Visas.  As 
part of this process, this research focuses on the main issues pertaining to access 
to international protection in the EU Member States and situates the debate on 
humanitarian  visas  within  its  wider  context,  acknowledging  that  up  to  90%  of 
subsequently recognised refugees and beneficiaries of subsidiary protection in the 
EU  reach  the  territory  of  the  Member  States  irregularly  and,  often,  through  life-
threating  routes.  The  research  finds  that  this  is  due  to  the  lack  of  clarity  and 
completeness  of  the  rules  on  admission  for  asylum  seeking  purposes  under 
Schengen norms and to the absence of a common understanding of the applicable 
practical arrangements. As a result, Member States have developed discretionary 
procedures  of  humanitarian  admission,  using  different  methods  and  based  on 
different criteria. Against this background, the need for a harmonised approach at 
EU level is pressing, to avoid fragmentation undermining the existing acquis. The 
Charter  of  Fundamental  Rights,  in  particular  the  prohibition  of  refoulement, 
may  render  the  issuance  of  visas  for  seeking  asylum  purposes  compulsory  in 
certain circumstances. This obligation must thus be taken into account, alongside 
legitimate  Member  State  concerns,  considering  numbers,  resource  implications, 
and  the  workability  of  the  ensuing  EU  scheme,  in  devising  necessary  and 
proportionate  action.  With  this  in  mind,  the  study  examines  questions  of 
competence,  legal  basis,  subsidiarity  and  proportionality,  and  carries  out  an 
assessment of the pros and cons of several policy options at EU level. 

 
 
 
 
 
 
 
AUTHOR 
This  study  has  been  written  by  Dr  Violeta  Moreno-Lax,  Senior  Lecturer  in  Law, 
Queen Mary University of London at the request of the European Added Value Unit 
of  the  Directorate  for  Impact  Assessment  and  European  Added  Value,  within  the 
Directorate  General  for  Parliamentary  Research  Services  (DG  EPRS)  of  the  General 
Secretariat of the European Parliament.  

LINGUISTIC VERSIONS 
Original: EN 

DISCLAIMER 
The opinions expressed in this document are the sole responsibility of the author and 
do not necessarily represent the official position of the European Parliament. 

Reproduction and translation for non-commercial purposes are authorized, provided 
the source is acknowledged and the publisher is given prior notice and sent a copy. 

Manuscript completed in June 2018 
Brussels © European Union, 2018. 

24 

 
 
 
 
 
 
 
 
Table of contents 

ABBREVIATIONS ........................................................................................................ 26 

List of Tables .................................................................................................................. 27 

EXECUTIVE SUMMARY ............................................................................................ 28 

Chapter 1. EU Humanitarian Visas? .......................................................................... 34 

Chapter 2. Regulatory Framework ............................................................................. 39 

Chapter 3. PEPs: Past and Present .............................................................................. 49 

Chapter 4. The Place of Fundamental Rights:.......................................................... 64 

Chapter 5. The Scope for EU Humanitarian Visas.................................................. 76 

Chapter 6. Policy Options ............................................................................................ 85 

Chapter 7. Conclusions and Recommendations .................................................... 108 

ANNEX I ....................................................................................................................... 111 

ANNEX II ...................................................................................................................... 121 

ANNEX III .................................................................................................................... 122 

ANNEX IV .................................................................................................................... 123 

KEY BIBLIOGRAPHY ............................................................................................... 124 

25 

 
 
 
ABBREVIATIONS 

AFSJ – Area of Freedom, Security and Justice 
APD – Asylum Procedures Directive 
CCME – Churches Commission for Migrants in Europe 
CCV – Community Code on Visas 
CEAS – Common European Asylum System 
CFR – Charter of Fundamental Rights 
CFSP – Common Foreign and Security Policy 
CIR – Italian Council for Refugees 
CISA – Convention Implementing the Schengen Agreement 
CJEU – Court of Justice of the European Union 
CM – Common Manual 
DR – Dublin Regulation 
EASO – European Asylum Support Office 
ECHR – European Convention on Human Rights 
ECRE – European Council on Refugees and Exiles 
ETIAS – European Travel Information and Authorisation System 
FRA – Fundamental Rights Agency 
GC – Geneva Convention 
HAP – Humanitarian Assistance Programme 
ICMC - International Catholic Migration Commission 
IOM – International Organisation for Migration 
LBT – Local Border Traffic 
LTV – Limited Territorial Validity Visa 
MPI – Migration Policy Institute 
PEP – Protected-Entry Procedure 
QD – Qualification Directive 
RCD – Reception Conditions Directive 
RSD – Refugee Status Determination 
SBC – Schengen Borders Code 
TCN – Third-Country National 
TEU – Treaty on European Union 
TFEU – Treaty on the Functioning of the European Union 
UNHCR – United Nations High Commissioner for Refugees 
VCRS – Vulnerable Children’s Resettlement Scheme 
VHAS – Voluntary Humanitarian Admission Scheme 
VIS – Visa Information System 
VPRS – Vulnerable Person Resettlement Scheme 

26 

 
 
 
 
 
 
LIST OF TABLES 

Table 1: RESETTLEMENT vs. ASYLUM SEEKER VISAS ....................................... 51 

Table 2: SPONSORSHIP SCHEMES vs. ASYLUM SEEKER VISAS ....................... 51 

Table 3: HUMANITARIAN CORRIDORS vs. ASYLUM SEEKER VISAS ............ 52 

Table 4: PEPs Map. European Parliament, IPOL Study, Humanitarian visas: 

option or obligation? (Sept. 2014), p. 49 ...................................................................... 58 

Table 5: Overall Assessment of Policy Option 1 - ‘Visa Waiver’ Approach ......... 90 

Table 6: Overall Assessment of Policy Option 2 – LTVs for Asylum Seeking 

Purposes .......................................................................................................................... 98 

Table 7: Overall Assessment of Policy Option 3 – EU-Wide Asylum Seeker 

Visas ............................................................................................................................... 104 

Table 8: Rating Policy Options – Advantages and Disadvantages in 

Perspective .................................................................................................................... 105 

Table 9: Locating Policy Options within Rights-Security Continuum ................. 106 

Table 10: Phased approach to legal pathways for access to protection in 

Europe ............................................................................................................................ 107 

27 

 
 
EXECUTIVE SUMMARY 

The present research paper undertakes an in-depth evaluation of the added (legal) value 
of  legislation  that  may  be  proposed  for  adoption  by  the  European  Parliament  via  its 
Legislative  Own-Initiative  Report  on  Humanitarian  Visas.  As  part  of  this  process,  the 
purpose  of  this  research  is  to  support  the  European  added  value  assessment 
accompanying the European Parliament’s legislative initiative. 

Chapter 1 sets the general background and identifies the main issues pertaining to access 
to  international  protection  in  the  EU  Member  States  and  situates  the  debate  on 
humanitarian  visas  within  its  wider  context.  The  main  problem  detected  is  that  up  to 
90%  of  the  total  population  of  subsequently  recognised  refugees  and  beneficiaries  of 
subsidiary protection in the EU reach the territory of the Member States irregularly and, 
often, through life-threating routes. This is due to the lack of clarity and completeness of 
the rules on admission for asylum seeking purposes under the Schengen acquis and to the 
absence  of  a  common  understanding  of  the  applicable  arrangements.  As  a  result, 
Member  States  have  developed  discretionary  procedures  of  humanitarian  admission, 
using  different  methods  and  based  on  different  criteria.  The  need  for  a  harmonised 
approach at EU level is, thus, pressing and responds to repeated calls by multiple actors 
to  this  effect.  Legitimate  Member  State  concerns  must  be  taken  into  account  in  this 
endeavour:  considering  numbers,  resource  implications,  and  the  workability  of  the 
ensuing  EU  scheme,  alongside  and  in  the  light  of  their  obligations  flowing  from  the 
Charter  of  Fundamental  Rights.  The  examination  of  the  regulatory  framework,  lessons 
learnt  from  experiences  at  national  and  EU  level,  questions  of  competence,  legal  basis, 
subsidiarity  and  proportionality,  compatibility  with  fundamental  rights,  and  an 
assessment of the pros and cons of policy options is, therefore, necessary. 

On  this  basis,  Chapter  2  examines  how  entry  requirements  for  asylum  seekers  have 
been  regulated  in  EU  law,  concluding  these  are  unclear  and  incomplete.  Neither  the 
Schengen nor the asylum or visa acquis set the norms applicable, which has led to asylum 
seekers  being  assimilated  to  the  category  of  ‘irregular  migrants’  before  arrival. 
Although the Schengen Borders Code (SBC) aims to establish the norms applicable to the 
control of ‘persons’ (without qualification) crossing, or showing an intention to cross, the 
external  borders  of  the  Member  States,  the  situation  of  asylum  seekers  has  not  been 
fully  taken  into  account,  neither  by  the  general  criteria  in  Article  6  SBC,  nor  by  its 
exceptions.  Asylum  seekers  are  thus  placed  in  the  impossible  situation  of  having  to 
show  willingness  and  ability  to  return  to  their  countries  of  provenance  to  be  allowed 
entry, while, at the same time, should they be capable of return, that very factor would 
determine their exclusion from international protection under the Qualification Directive.  

Although  the  application  of  the  Schengen  Borders  Code  should  be  in  line  with 
‘obligations related to access to international protection’ (Article 4 SBC), despite the Code 
being  ‘without  prejudice  to  the  rights  of  refugees  and  persons  requesting  international 
protection’ (Article 3(b) SBC), and that refusal of entry ‘shall be without prejudice to the 

28 

 
 
 
 
application  of  special  provisions  concerning  the  right  to  asylum  and  to  international 
protection’  (Article  14(2)  SBC),  these  provisions,  as  currently  interpreted  and  applied, 
do  not  provide  adequate  protection.  From  its  part,  the  Community  Code  on  Visas 
(CCV),  as  construed  by  the  CJEU  in  X  and  X,  does  not  cover  the  situation  of  asylum 
seeking  visa  applicants,  who,  in  the  Court’s  view,  fall  outside  the  scope  of  the  CCV, 
since  the  instrument  intends  to  solely  set  the  rules  applicable  to  short-term  visas.  The 
asylum  acquis  is  of  no  avail  either,  as  its  instruments  concern  themselves  with 
‘applicants’  for  international  protection,  who  formally  lodge  an  asylum  claim,  but 
without regulating access to the system itself. 

Against  this  background,  Chapter  3  explores  Protected-entry  Procedures  (PEPs)  at  EU 
and  domestic  level.  In  recent  times,  PEPs  have  taken  the  form  of  resettlement 
‘humanitarian 
programmes,  community  or  private  sponsorship  schemes,  and 
corridors’. Yet, arrangements differ significantly between formulae and across Member 
States,  in  terms  of  selection  criteria,  referral  mechanisms,  procedures,  status  conferred, 
and post-arrival arrangements. 

RESETTLEMENT 

SPONSORSHIP 

Vulnerability,  but 
also  other  non-
protection-related 
criteria 

HUMANITARIAN 
CORRIDORS 

ASYLUM SEEKER 
VISAS 

Vulnerability-based  Refoulement-based 

[Qualification 
Directive-
compliant] 

SELECTION 

REFERRAL 

PROCEDURE 

STATUS 

BASIS 

OUTCOME 

(e.g. 

Vulnerability,  but 
also  other  non-
protection-related 
criteria 
integration 
potential, 
language 
family links) 
By UNHCR 

health, 
skills, 

status 

Refugee 
determination 
(RSD)  by  UNHCR, 
security  and  health 
checks,  and  pre-
departure 
interview(s) 
resettling 
authorities 
1951  Convention 
refugee status 

by 
State 

Solidarity  vis-à-vis 
first  countries  of 
asylum 
Secondary  means 
of access to durable 
solution 
for 
recognised 

By  pre-authorised 
community 
or 
private sponsor 
No  standard  RSD, 
security, health and 
other  checks,  and 
pre-departure 
interview(s) 
receiving 
authorities 

by 
State 

By pre-authorised 
community 
sponsor 
No  standard  RSD, 
security, health and 
checks  by 
other 
receiving 
State 
authorities  before 
arrival 

Self-referral 
claimant herself 

by 

Coherent with 
Articles 41 and 47 
CFR, including 
procedural 
guarantees and 
effective remedies 

1951  Convention 
refugee  or  other 
status 
under 
domestic law 
Favour  post-arrival 
integration 

Access  to  asylum 
procedures  under 
Asylum Procedures 
Directive (APD) 
Solidarity  vis-à-vis 
beneficiaries  

Access  to  asylum 
procedures  under 
APD 

Individual 
based 

rights-

Secondary  means 
of access to durable 
solution 
for 
vulnerable 

Primary  means  of 
access  to  RSD  for 
asylum seekers 

Primary  means  of 
access  to  RSD  for 
asylum seekers 

29 

 
 
 
 
 
RATIONALE 

refugees 
Access  to 
protection  

‘better’ 

ACCOUNTABILITY  Little  transparency. 

Blurred 
responsibility 
between  State  and 
UNHCR. 
No 
specific remedies 

but 
Small, 
upscaling  via  EU 
framework 
Member  States  / 
EU 

SCALE 

RESOURCES 

categories 
Varied 
[from 
family  reunion  to 
humanitarian] 
Little  transparency. 
Blurred 
responsibility 
between  State  and 
sponsors. 
private 
No 
specific 
remedies 
Small 

Access 
to 
protection  via  safe 
and lawful channel 
Little  transparency. 
Blurred 
responsibility 
between  State  and 
sponsors. 
private 
No 
specific 
remedies 
Small 

sponsors 
Private 
of 
[risk 
commodification  / 
privatisation 
of 
protection] 

sponsors 
Private 
of 
[risk 
commodification  / 
privatisation 
of 
protection] 

Access 
to 
protection  via  safe 
and lawful channel 
Full  transparency. 
Articles  41  and  47 
CFR-compliant 

for 
EU-

Potential 
higher, 
harmonised scale 
Potential 
only 

for  EU 

On the positive side, all schemes concerned are based on the principles of additionality 
and  complementarity,  intending  to  offer  safe  and  regular  alternatives  to  ‘spontaneous 
arrivals’ other than via smuggling and trafficking routes; the programmes are managed 
and  allow  for  a  high  level  of  screening  and  control  over  applicants;  they  garner  the 
support of UNHCR and other specialised organisations; the involvement of private and 
community sponsors facilitates integration and diminishes risks of disengagement with 
the  system  by  potential  beneficiaries;  and  all  programmes  constitute  a  display  of 
solidarity with beneficiaries and countries of first asylum. 

On the negative side, though, the numbers catered for are small; programmes tend not to 
be  open-ended,  but  quota-based,  geographically  bounded  and  limited  in  time; 
processing  periods  are  long;  selection  criteria  complex  and  not  always  protection-
related;  few  initiatives  allow  for  self-referral  and  instead  rely  on  UNHCR  or  private 
sponsors  to  first  identify  potential  beneficiaries;  the  involvement  of  private  actors 
produces selectivity issues, considering the amount of resources and expertise required, 
leading  to  risks  of 
‘privatisation  /  commodification’  of  protection;  publicity, 
transparency, and predictability need improvement to align with legal certainty and rule 
of law standards; all schemes are based on sovereign discretion (as of favour) rather than 
on the legal strength of protection obligations (as of right); and most of them provide for a 
secondary  means  of  access  to  protection  by  already-recognised  refugees,  instead  of 
granting  a  primary  way  for  unrecognised  claimants  to  reach  Schengen  territory  and 
apply for asylum on arrival. 

Chapter  4  examines  primary  law,  including  the  EU  Charter  of  Fundamental  Rights 
(CFR), concluding that it demands that safe and legal pathways be created, even if the 
CJEU  has  not  stated  that  explicitly  yet.  The  Chapter  thus  contests  the  prevailing 
understanding on which PEPs are based, i.e. that there is no obligation to grant access 
to Schengen domain for the purposes of seeking asylum under current rules. Despite 

30 

 
 
 
 
the final conclusion in the X and X judgement, declaring the inapplicability of the CCV to 
asylum  seeking  visa  applicants,  it  is  posited  that  there  is  no  legal  or  rational  basis  to 
exclude asylum seekers from the generic category of ‘third country nationals’, to whom 
Schengen visas are addressed under Regulation 539/2001, or from the group of ‘persons 
crossing’ or ‘showing an intention to cross’ the external borders of the Member States, 
to whom EU admission criteria apply under the Scchengen Borders Code. The same is 
true  at  primary  law  level  (Article  77(2)(b)  TFEU).  This  being  the  case,  fundamental 
rights must be understood to be relevant in this context, as per the Fransson ruling. 

Fundamental rights penetrate the EU legal order qua founding values (Article 2 TEU), as 
primary law (Article 6 TEU and Charter of Fundamental Rights), and at secondary law 
level  (Article  4  SBC  and  Recital  29  CCV).  They  are  all-pervasive  and  govern  the 
development  of  the  AFSJ  at  large  (Article  67  TFEU),  including  border  control  and  visa 
policy,  as  well  as  the  construction  of  a  Common  European  Asylum  System  (CEAS),  in 
particular (Article 78 TFEU). The CFR applies whenever a situation falls to be governed 
by EU law, with territoriality not being decisive. Any time the EU or the Member States 
act within the scope of EU law (Article 51 CFR), the Charter becomes applicable. 

Crucially  for  current  purposes,  this  includes  the  protection  against  refoulement 
contained in Articles 4 and 19(2) CFR, which consolidate the substance of Article 3 ECHR 
as interpreted by the  European Court of Human Rights in its case law. As a result,  any 
measure, including a rejection of entry or a visa refusal under Schengen rules, ‘the effect 
of  which  is  to  prevent  migrants  from  reaching  the  borders  of  the  [Member]  State 
[concerned]’ may amount to refoulement (Hirsi, para. 180) and, if it exposes the applicant 
to persecution or serious harm, must be forbidden. What is more, in line with Căldăraru, 
Member  States,  when  confronting  situations  representing  a  risk  of  ill  treatment  are 
obliged  to  take  positive  action  to  avert  it,  which,  in  the  concrete  case,  if  there  are  no 
other practicable alternatives, may require the delivery of a visa. 

Chapter  5,  drawing  on  the  conclusion  from  Chapter  4  that  further  EU  action  to  ensure 
safe and legal pathways is required, explores the scope for EU level intervention on this 
point, addressing questions of competence, legal basis, subsidiarity and EU added value, 
to establish the adequacy of EU action.  

The chapter identifies several provisions in the TFEU, which  may provide a  legal basis 
for  the  adoption  of  a  EU  instrument  on  humanitarian  visas,  including:  Article  77(2)(a) 
TFEU, on common visas; Article 77(2)(b) TFEU, on controls on ‘persons…crossing…[the 
EU]  external  borders’;  Article  78(2)(g)  TFEU,  calling  on  the  EU  legislator  to  adopt 
measures,  as  part  of  the  CEAS,  aimed  at  ‘managing  the  inflows  of  people  applying  for 
[international] protection’; and Article 79(2)(a) TFEU, offering a basis for the adoption of 
long-term visas and residence permits to third country nationals. And it concludes that, 
considering  the  subject  matter  of  the  issue  to  regulate  and  the  primary  objective 
pursued,  i.e.  to  establish  the  conditions  for  access  to  Schengen  space  to  apply  for 
international  protection  under  EU  law,  Articles  77(2)(a)-(b)  and  (alternatively  or 
concurrently) 78(2)(g) TFEU are the most appropriate.  

31 

 
 
 
 
Regarding  subsidiarity,  since  uncoordinated  action  may  upset  the  well  functioning  of 
the Schengen regime, undermining  the uniform application of the common entry rules 
agreed  in  the  SBC  and  affecting  mutual  trust,  the  principle  of  pre-emption  is  said  to 
preclude  individual  Member  State  initiatives  and  to  require  EU-level  intervention 
instead. A uniform understanding of the rights / obligations at stake is essential for the 
integrity of the current acquis. 

Regarding EU added value, it is observed that economies of scale can only be achieved 
at EU level. EU intervention will allow for a reduction of current costs (in human lives; 
illicit  smuggling  and  trafficking  activity;  and  border  and  migration  control  and 
deterrence) and a re-allocation of resources to ensure compliance with the obligation of 
developing  an  integrated  management  system  of  the  EU  external  borders  in  line  with 
fundamental rights (Articles 67 and 77 TFEU). 

On the conclusion that EU level action is necessary, Chapter 6 deals with the question of 
proportionality  and  identifies  three  main  possibilities  that  are  available  to  the  EU 
legislator to harmonise the criteria applicable to the admission of asylum seekers into 
Schengen territory, with varying degrees and intensity of EU intervention. 

1.  The  visa  waiver  approach  is  presented  first.  This  formula  only  needs  a  revision  of 
the current visa lists in Regulation 539/2001 to either de-classify or suspend the visa 
requirement  for  nationals  of  top  refugee-producing  countries,  where  risks  to  life 
and/or freedom are well known and freely ascertainable from publicly available and 
reliable sources. For accuracy, the selection of the countries concerned, it is proposed, 
should draw on EUROSTAT and UNHCR data.  

2.  A  different  option  would  be  for  EU  humanitarian  visas  to  be  issued  by  Member 
State  consulates  abroad,  according  to  a  dedicated  instrument  that  harmonises 
issuing  criteria  and  procedures,  in  line  with  the  good  administration  and  effective 
remedy  standards  in  Articles  41  and  47  CFR.  It  is  suggested  that  a  reformed  set  of 
LTV provisions may be useful to this effect.  

3.  A  third  variant  entails  full  centralisation  of  decision-making  and  post-arrival 
distribution  of  applicants  via  specialised  EASO  teams  making  or  coordinating 
assessments  within  EEAS  representations  abroad.  This  requires  adjustment  of  the 
Dublin regime via the creation of a distribution mechanism of successful applicants 
via  predefined  quotas  per  Member  State,  a  preference-matching  tool,  a  corrective 
system  that accounts for children rights, family  unity, and dependency links, and a 
compensatory tool to palliate any residual unevenness in the final allocation. 

Whatever  the  option,  qualification  criteria  must  match  non-refoulement  guarantees, as 
per  Articles  4  and  19(2)  CFR,  so  that  those  having  an  ‘arguable  claim’  of  exposure  to  a 
‘real risk’ of persecution or serious harm are granted a visa for asylum seeking purposes. 
Decisions should be taken prima facie by fully competent and trained personnel and not 

32 

 
 
 
 
 
 
 
replace  or  anticipate  full  RSD.  Procedural  guarantees,  including  legal  aid,  information, 
translation, and representation must be provided, so as to preserve the right to be heard. 
Appeals against negative decisions and effective remedies must also be available. 

To  address  ‘floodgates’  and  resource  concerns,  any  of  the  above  formulae  can  first  be 
piloted in a controlled environment, selecting particular countries, specific categories of 
claimants (e.g. children or other particularly vulnerable profiles), and/or periods of time, 
prior  to  complete  roll  out;  collaborating  with  private  service  providers,  including 
UNHCR and specialised NGOs; and making use of technology and e-means to facilitate 
application processing. 

The  table  below  summarises  the  key  considerations  to  bear  in  mind  when  selecting  the 
preferred policy option: 

BENEFICIARIES 

LEGAL 
CHANGES 

MATERIAL 
INSTITUTIONAL 
PROCEDURAL 
INVESTMENTS 

COMPLIANCE 
WITH 
FUNDAMENTAL 
RIGHTS 

VISA 
WAIVER 
LTVs 
EU 
ASYLUM 
SEEKER 
VISAS 

+++ 

+ 

++ 

+++ 

++ 

+ 

+++ 

++ 

+ 

+++ 

+ 

++ 

PRE-
ARRIVAL 
SECURITY 
AND 
CONTROL 

+ 

+++ 

++ 

SOLIDARITY AND 
FAIR-SHARING OF 
RESPONSIBILITY 

++ 

+ 

+++ 

Chapter  6  elaborates  on  the  individual  criteria,  their  relative  importance,  and  their 
suitability  to  address  the  problem  of  access  to  the  CEAS  by  its  addressees,  while 
maintaining the integrity of Schengen, and the principles of mutual trust and solidarity. It 
concludes  that  the  best  option  is  the  visa  waiver  route,  followed  by  the  EU  asylum 
seeker visa. The Member State-issued LTV solution runs the risk of not meeting the final 
objective  pursued,  unless  the  scope  for  free  riding  and  defaulting  is  offset  via  a  robust 
monitoring and sanctioning mechanism that penalises non-compliance. 

However, on the consideration that sufficient political consensus may not be immediately 
available for the adoption of the visa waiver option, a phased approach, combining the 
key  benefits  of  each  proposal  is  recommended,  with  an  improved  Member  State  LTV 
regime  representing  the  first  step  towards  an  integrated  EU-wide  scheme  of  asylum 
seeker visas, and with the EU visa waiver approach marking the final destination.  

33 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
CHAPTER 1. EU HUMANITARIAN VISAS? 

KEY FINDINGS 

•  While  a  Common  European  Asylum  System  (CEAS)  is  being  developed,  currently, 
up  to  90%  of  the  total  population  of  subsequently  recognised  refugees  and 
beneficiaries  of  subsidiary  protection  reach  the  territory  of  Member  States  and 
access the CEAS irregularly, due to the very limited legal pathways the EU offers. 

•  For  many,  this  leaves  no  option  but  to  risk  their  lives  on  a  perilous  journey, 
including  across  the  Mediterranean  –  where  an  estimated  23,000  to  33,000  persons 
have perished since records began.  

•  Most Member States have, or have had at some point, discretionary procedures of 
humanitarian  admission,  using  different  methods  and  based  on  different  criteria, 
facilitating access to their territories for protection-related purposes.  

•  Neither the European Commission, nor the Court of Justice (CJEU) have interpreted 
there to  be a basis  to issue visas for  the purposes of  claiming asylum,  ‘as European 
Union  law  currently  stands’  (X  and  X,  para.  51).  On  the  other  hand,  the  European 
Parliament and the Commission itself have reapeatedly called on the EU legislature 
to adopt legislative measures in this regard. 

•  The necessary EU intervention to fill the fundamental rights protection gap should 
take  account  of  the  principles  of  subsidiarity  and  proportionatliy,  and  consider 
legitimate Member State concerns when devising appropriate action.  

1.1 General Background and Main Issues  

The  problem  of  access  to  asylum  in  Europe  remains  as  salient  as  ever.1  It  has  been 
estimated that up to 90% of the total protection seekers granted a form of international 
protection  in  the  EU,2  whether  refugee  status  or  subsidiary  protection  as  per  the 

1  For  a  thorough  discussion,  see  Moreno-Lax,  Accessing  Asylum  in  Europe  (OUP,  2017).  See  also  Den  Heijer, 
Europe  and  Extraterritorial  Asylum  (Hart,  2012);  and  Gammeltoft-Hansen,  Access  to  Asylum  (CUP,  2011). 
Generally  on  EU  asylum  policy,  see  Peers  et  al.,  EU  Immigration  and  Asylum  Law,  Vol.  3  (Brill,  2nd  rev.  edn., 
2015);  Hailbronner  and  Thym  (eds)  EU  Immigration  and  Asylum  Law  (Hart/Beck/Nomos,  2nd  rev.  edn.,  2016); 
Chetail, De Bruycker, and Maiani (eds), Reforming the Common European Asylum System (Brill, 2016). 
2 See Italian Council for Refugees (CIR), Exploring avenues for protected entry in Europe (October 2012), p. 17, at: 
<https://www.fluechtlingshilfe.ch/assets/asylrecht/rechtsgrundlagen/exploring-avenues-for-protected-
entry-in-europe.pdf>;  and  European  Council  of  Refugees  and  Exiles  (ECRE),  Broken  Promises  –  Forgotten 

34 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Qualification  Directive  terms,3  reach  the  Member  States  through  irregular  channels  as 
irregular migrants. 4 The lack of safe and legal pathways to protection makes recourse to 
smuggling and trafficking rings a structural necessity—currently, despite the recognition 
of a ‘right to asylum’ in the Charter of Fundamental Rights, 5 there are no means to reach 
the  EU  safely  and  legally  for  the  purposes  of  applying  for  international  protection,  as 
defined in the asylum acquis. For many, this leaves no option but to risk their lives on a 
perilous  journey,6  including  across  the  Mediterranean—where  an  estimated  23,000  to 
33,000 people have perished since records began. 7    

Some Member States (actually, more than half of them) have, at some point, entertained 
discretionary  procedures  of  humanitarian  admission—whether  on  asylum-related, 
medical,  or  purely  compassionate  grounds.8  The  typology  has  been  diverse—ranging 
from  emergency  evacuation,  to  individual  resettlement,  and  private  sponsorship 
schemes.9  Such  variety  of methods  responds  to  the  sovereign  discretion  understood  to 
underpin  the  programmes,  and  upon  which  subsequent  admission  to  the  country 
concerned has been granted.  

In  fact,  neither  the  European  Commission, 10  nor  the  Court  of  Justice  (CJEU),11  have 
interpreted  there  to  be  a  basis  in  EU  law  to  issue  visas  for  the  purposes  of  claiming 
asylum, at least ‘as European law currently stands’.12 As per its judgment in X and X, the 
latter believes that, ‘since … no measure has been adopted, to date, by the EU legislature 
on the basis of Article 79(2)(a) TFEU, with regard to the conditions governing the issue by 
Member States of long-term visas and residence permits to third-country nationals (TCN) 
on humanitarian grounds, [these measures, in their view] fall solely within the scope of 
national  law’. 13  For  the  CJEU,  the  Community  Code  on  Visas  (CCV)  only  regulates  the 

Principles:  ECRE  Evaluation  of  the  Development  of  EU  Minimum  Standards  for  Refugee  Protection,  Tampere  1999  – 
Brussels  2004  (June  2004),  p.  17,  at:  <https://www.ecre.org/wp-content/uploads/2016/07/ECRE-Broken-
Promises-%E2%80%93-Forgotten-Principles-An-ECRE-evaluation-of-the-development-of-EU-minimum-
standards-for-refugee-protection_June-2004.pdf>.  
3 Qualification Directive 2004/83, [2004] OJ L 304/12 (‘QD’). 
4  ‘Irregular  migrant’  refers  herein  to  every  third-country  national  who  enters  a  EU  Member  State  without 
complying with the entry criteria specified in Art 6 of the Schengen Borders Code, Regulation (EU) 2016/399, 
[2016]  OJ  77/1    (‘SBC’).  In  turn,  ‘asylum  seeker’  refers  to  those  amongst  them  in  need,  and  in  search,  of 
‘international  protection’  as  defined  in  Art  2(a)  QD.  Finally,  ‘refugee’  and  ‘person  eligible  for  subsidiary 
protection’ relates, then, to those meeting the definitions contained in Arts 2(d) and 2(f) QD respectively. 
5 Art 18, Charter of Fundamental Rights of the European Union, [2010] OJ C 83/2 (‘CFR’). 
6 Acknowledging this reality, see Towards a Reform of the CEAS, COM(2016) 197, p. 14. 
7 For relevant estimates, see IOM, Missing Migrants Project (March 2018): <https://missingmigrants.iom.int/>. 
Cf. UNITED, List of 33.305 documented deaths of refugees and migrants due to the restrictive policies of Fortress Europe 
<http://www.unitedagainstracism.org/wp-
(June 
content/uploads/2017/06/UNITEDListOfDeathsActual.pdf>.     
8  For  a  recent  survey,  Iben  Jensen,  Humanitarian  Visas:  Option  or  Obligation?,  PE  509.986  (September  2014) 
<http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509986/IPOL_STU%282014%29509986_EN.p
df>. 
9 See, e.g., FRA, Legal entry channels to the EU for persons in need of international protection: a toolbox (March 
<http://fra.europa.eu/en/publication/2015/legal-entry-channels-eu-persons-need-international-
2015) 
protection-toolbox>. 
10 Commission Decision establishing the Handbook for the processing of visa applications and the modification 
of issued visas, C(2010) 1620 (‘Visa Handbook’). 
11 Case C-638/16 PPU, X and X, ECLI:EU:C:2017:173. 
12 Ibid., para. 51. 
13 Ibid., para. 44. 

2017) 

35 

 
 
                                                                                                                                      
conditions  and  procedure  for  issuance  of  short-term  visas,  and  visas  with  a  view  to 
applying  for  asylum  ‘fall  outside  the  scope  of  that  code’.14  Yet,  the  assertion  requires 
further  analysis.15  Whether  visa  applications  for  the  purpose  of  seeking  international 
protection  do  ‘fall  outside  the  scope  of  that  code’,  as  presently  drafted,  implying  that  ‘the 
situation at issue…is not, therefore, governed by EU law [at all]’,16 is examined in detail in 
Chapter 4. 

What is certain is that, for the time being, Protected Entry Procedures (PEPs) have never 
been  harmonised  at  EU  level,  despite  several  recent  calls  to  this  effect  from  different 
quarters,  including  the  European  Parliament  itself.17  The  possibility  of  a  dedicated  EU 
system of admission for asylum-seeking purposes has been intimated by the Commission 
on several occasions. The measure was thoroughly examined in a Feasibility Study back 
in  2002,18  resurfacing  the  debate  again  in  the  context  of  the  2006  Green  Paper  on 
Asylum,19  and  making  the  object  of  specific  attention  in  the  2009  Stockholm 
Programme.20 A commitment to a ‘holistic approach’ to deal with maritime crossings and 
death at sea, including the opening of ‘legal channels to safely access the European Union 
the  Task  Force  Mediterranean 
in  2013 
to  be  explored’,  was  reiterated 
Communication.21  

in 

Most recently, the Communication  on  An open and secure  Europe, posits that PEPs ‘could 
complement  resettlement,  starting  with  a  coordinated  approach  to  humanitarian  visas 
and  common  guidelines’.22  However,  neither  the  guidelines  nor  the  coordinated 
approach  have  so  far  materialized.  In  fact,  the  reference  to  humanitarian  visas  has 
disappeared  from  the  2015  Agenda  on  Migration,  where  legal  channels  for  access  to 
asylum  have been replaced with a strategy of increased border control and cooperation 
with third countries to ‘prevent hazardous journeys’, rather than facilitating safe arrival.23  

What is more, concrete attempts at reforming the Community Code on Visas (CCV)24 for 

14 Ibid., para. 43. 
15 Cf. different views on the matter, see Opinion of AG Mengozzi in Case C-638/16 PPU, X and X, 7 February 
2017, ECLI:EU:C:2017:93; Moreno-Lax, ‘Asylum Visas as an Obligation under EU Law: Case C-638/16 PPU, X 
and X’, Part I and Part II, Omnia Blog, 16 and 21 February 2017; Carlier and Leboeuf, ‘Le visa humanitaire et la 
jouissance  effective  de l’essentiel des  droits:  une  voie moyenne?  A  propos  de l’affaire  X  et  X’,  Omnia  Blog, 27 
February  2017;  Brouwer,  ‘The  European  Court  of  Justice  on  Humanitarian  Visas:  Legal  Integrity  vs.  Political 
Opportunism?’, CEPS Commentary, 16 March 2017.  
16 X and X (n 11), para. 45 (emphasis added). 
17 European Parliament, Resolution on the Situation in the Mediterranean and the Need for a Holistic EU Approach to 
Migration,  P8_TA(2016)0102,  12  April  2016,  para.  27.  See  also,  Resolution  on  Migration  and  Refugees  in  Europe, 
P8_TA(2015)031710, 10 September 2015, para. 13. 
18 Noll et al., Study on the Feasibility of Processing Asylum Claims Outside the EU Against the Background of 
the Common European Asylum System and the Goal of a Common Asylum Procedure (European Commission, 
<https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-
2002) 
library/docs/pdf/asylumstudy_dchr_2002_en_en.pdf>.  
19 Green Paper on Asylum, COM(2007) 301. 
20 Stockholm Programme, [2010] OJ C 115/1. 
21 Task Force Mediterranean, COM(2013) 869, p. 2. 
22  An  open  and  secure  Europe, COM(2014)  154,  p. 7-8  (emphasis  added).  See  also Towards a  Reform of  the  CEAS, 
COM(2016)  197,  p.  16,  speaking  of  ‘ways  to  promote  a  coordinated  European  approach’  regarding 
‘humanitarian permits’. 
23 A European Agenda on Migration, COM(2015) 240, p. 5 (emphasis added).  
24 Regulation (EC) 810/2009 establishing a Community Code on Visas (Visa Code), [2009] OJ L 243/1 (‘CCV’). 

36 

 
 
 
                                                 
that  purpose  have  been  strongly  resisted  by  the  Council,25  blocking  for  months  the 
negotiation  of  the  amendments  tabled  by  the  European  Parliament,26  to  the  point  of 
forcing their withdrawal. 27 Their main concerns relate to the fear of numbers; the risk of 
overburdening  consulates,  processing  and  resource  implications;  that  other  refugee-
specific  legal  pathways  already  exist  in  the  form  of  resettlement;  and  the  fact  that  the 
CCV’s focus is on short-stay visas, making the instrument unsuitable, in their opinion, for 
the regulation of entry permits for asylum seekers.28 

Instead,  the  Legislative  Initiative  Report  launched  on  6  December  2017,  pursuant  to 
Article  225  TFEU,  will  request  the  Commission  to  take  legislative  action  on  a  separate 
Humanitarian  Visas  instrument.29  As  part  of  this  process,  the  present  assessment  will 
undertake an in-depth evaluation of the added (legal) value of any such legislation. The 
purpose  of  this  research  is  to  support  the  European  added  value  assessment 
accompanying the European Parliament’s legislative initiative. 

1.2 Scope, Objectives and Structure  

This  assessment  will  identify  the  possible  scope  of  EU  action  regarding  Humanitarian 
Visas  (or  ‘Visas  for  Refugees’,  as  some  actors  have  called  them30).  Key  recent  and/or 
current national experiences, within Europe and beyond, will be analysed in Chapter 3 
to  distil  best  practices  that  can  provide  inspiration  for  a  prospective  EU  blueprint 
initiative. The usage of Schengen Short Stay – type C Visas (LTV) and national Long Stay 
– type D Visas for international protection purposes, as in Italy, Malta or Portugal, will be 
scrutinized.  Formalized  refugee  visa  schemes  from  embassies  and  consulates,  as  in 
Switzerland  or  Brazil,  will  also  be  paid  attention. 31  Community-based  sponsorship 
mechanisms,  as  those  piloted  in  Italy  by  Sant’Egidio’s  religious  community,32  or  in  the 

25  Austria,  France,  Belgium,  The  Netherlands,  Hungary,  Sweden,  Slovenia,  Spain,  and  Portugal  were  against 
continuing  negotiations,  if  amendments  on  the  rules  on  humanitarian  visas  were  included  in  the  reformed 
version of the CCV. See Summary of Discussions, Council doc. 15602/16, 19 December 2016, p. 1.  
26 European Parliament, Report on the proposal for a regulation of the European Parliament and of the Council 
on  the  Union  Code  on  Visas  (Visa  Code)  (recast)  (COM(2014)0164  –  C8-0001/2014  –  2014/0094(COD)),  A8-
0145/2016, 25 April 2016. 
27  European  Parliament,  Towards  A  New  Policy  on  Migration:  Legislative  Train  (December,  2017),  p.  75 
<http://www.europarl.europa.eu/legislative-train/pdfs/legislative-train-schedule-theme-towards-a-new-
policy-on-migration-12-2017.pdf>. See also EP Legislative Observatory, Procedure file of Union Code on Visas 
(Visa  Code).  Recast,  2014/0094(COD)  <  http://eur-lex.europa.eu/procedure/EN/2014_94>  (last  update:  3 
October 2017). 
28  S&D  Working  Breakfast  on  Humanitarian  Visas,  Background  Paper,  21  February  2018,  p.  2  (on  file).  The 
European Commission appears to share the same concerns. See Non-Paper by LIBE Rapporteur Juan Fernando 
Lopez  Aguilar,  Amendments  on  the  European  Humanitarian  Visas  and  on  Strengthening  Protection 
Considerations in the Visa Code, Draft 20 September 2016, p. 5 (on file).  
29 Note that, in any event, the Commission intends to withdraw the proposal to recast the Visa Code in its 2018 
Work Programme, COM(2017) 650, p. 9. 
30 ECRE, Survey of Provisions on Travel Documents and Visas for Refugees in the European Union (October, 
2000)  <https://www.ecre.org/wp-content/uploads/2016/07/ECRE-ELENA-Survey-on-Provisions-on-Travel-
Documents-and-Visas-for-Refugees-in-the-European-Union_October-2000.pdf>.  
31 Iben Jensen (n 8).  
32 
<http://www.santegidio.org/pageID/11676/langID/en/Humanitarian-Corridors-for-refugees.html>.  

Humanitarian 

Sant’Egidio, 

(undated) 

Corridors 

Refugees 

for 

37 

 
 
 
                                                 
UK  by  Caritas-Salford,33  following  the  Canadian  example,  will  be  investigated  as 
potential alternatives including the involvement of private actors. Finally, the flexible use 
of existing visa categories, including reliance on (extended) family reunification schemes 
qua  humanitarian  admission  channel  for  referrals  and/or  assistance  to  normally  non-
eligible  cases  under  current  Family  Reunification  Directive  rules, 34  like  the  Family 
Assistance  Programme  (FAP)  developed  by  the  German  Federal  Foreign  Office  in 
cooperation with IOM,35 will also be taken in to account. 

The  current  regulatory  framework  will  be  explored  in  Chapter  2  to  identify  gaps  and 
shortcomings  in  the  common  external  borders,  immigration  and  asylum  acquis—
considering  issues  of  coherence  (especially  links  to  post-arrival  measures,  including 
Dublin  rules).  The  role  of  fundamental  rights,  qua  founding  values  of  the  EU36 
(including with regard to its external action37) and as primary law obligations,38 will be 
examined  in  detail  in  Chapter  4.  Considering  the  Lisbon  reform,  after  which  the  EU 
Charter acquired ‘the same legal value’ of the founding Treaties, fundamental rights will 
guide  the  direction  of  the  entire  evaluation.  Legal  basis  issues,  matters  of  legislative 
competence,  and  questions  of  subsidiarity  and  proportionality  will  be  dealt  with  in 
Chapter 5.  

The  result  of  this  assessment  will  determine  the  policy  options  available,  their  costs, 
benefits  and  limits  (from  a  legal  perspective)  as  well  as  regulatory  and  governance 
possibilities. On this basis, Chapter 6 will map out the specific modalities; the legal and 
operational  framework  to  be  used  per  scheme,  paying  particular  attention  to  the  pros 
and cons of the different alternatives and putting forward the best option to be adopted 
at EU level. Conclusions and recommendations will be formulated in Chapter 7 for the 
European  Parliament’s  consideration,  including  a  model  framework  attached  as  an 
Annex. 

(undated) 

33  Caritas-Salford,  Caritas  Europe  share  the  Community  Sponsorship  model  of  refugee  resettlement  at  the 
  <https://www.caritassalford.org.uk/news/caritas-europe-share-the-
European  Parliament, 
community-sponsorship-model-of-refugee-resettlement-at-the-european-parliament/>. 
34 Family Reunification Directive 2003/86, [2003] OJ L 251/12.   
35 
(April, 
Family 
<http://germany.iom.int/sites/default/files/FAP/FAP_Infosheet_ENGLISH_2017-04-04.pdf>.   
36 Art 2 TEU.  
37 Art 3(5) and 21 TEU.  
38 Art 6 TEU. 

Programme 

Assistance 

2017) 

IOM, 

38 

 
 
                                                 
 
CHAPTER 2. REGULATORY FRAMEWORK 

KEY FINDINGS 

•  Neither  the  Schengen  nor  the  asylum  or  visa  acquis  set  clearly  the  norms 
applicable to regulate the entry of asylum seekers, which in practice has led to their 
assimilation  to  the  category  of  ‘irregular  migrants’  before  arrival  at  the  external 
borders of the Member States, in disregard of their fundamental rights. 

•  Although the Schengen Borders Code (SBC) aims to establish the rules on the control 
of ‘persons’ (without qualification) crossing, or showing an intention to cross, the EU 
external  borders,  the  situation  of  asylum  seekers  has  not  been  fully  taken  into 
account, neither by the general criteria of Article 6 SBC nor by its exceptions, despite 
references  to  non-refoulement  and  to  obligations  related to  access  to  international 
protection in Articles 3 and 4 SBC.  

•  From its part, the Community Code on Visas (CCV), as interpreted by the CJEU in X 
and X, does not cover the situation of asylum seeking visa applicants, who, in the 
Court’s  view,  fall  outside  the  scope  of  the  Code,  since  the  instrument  intends  to 
solely set the rules applicable to short-term visas. 

•  The asylum acquis is of no avail either, as its instruments concern themselves with 
‘applicants’ for international protection in the procedural sense, who formally lodge 
an asylum claim, but without regulating access to the CEAS by its addressees.  

•  The EU legislator is, thus, yet to comply with its obligations under the Treaty and 
‘shall  adopt  measures  concerning…the  checks  to  which  [all]  persons  crossing 
external borders [including asylum seekers] are subject’ (Article 77(2) TFEU). 

2.1 Entry requirements for asylum seekers under EU law 

The way in which EU law has regulated entry requirements for asylum seekers is unclear 
and  incomplete.39  Although  their  situation  has  been  (partially)  contemplated  in  the 
Schengen Borders Code, it appears to have then been disregarded in related rules. None 
of the visa or asylum instruments establish the specific criteria for admission applicable 
to  them.  As  the  next  sections  disclose,  asylum  seekers,  while  on  transit,  appear  to  have 
instead been assimilated to the category of irregular migrants. Their travel and arrival in 
the  EU  is  therefore  being  thwarted  by  the  measures  adopted  to  fight  against  irregular 

39 For a thorough examination, see Moreno-Lax, Accessing Asylum in Europe (OUP, 2017) chs 3 and 4. 

39 

 
 
 
 
 
 
 
 
 
 
 
                                                 
movements.  The  compatibility  of  this  situation  with  the  EU  Charter  is  doubtful,  as 
Chapter 4 will expound in detail. 

2.1.1 Situation under the Schengen Borders Code 

The Code establishes the rules applicable to the control of ‘persons [without qualification] 
crossing  the  external  frontiers  of  the  Member  States  of  the  European  Union’.40  This 
includes  ‘any  person’41—encompassing:  EU  citizens  and  their  family  members,  as 
‘persons enjoying the right of free movement under Union law’, as well as ‘third-country 
nationals’, who either cross the border or show ‘an intention’ to do so. 42 Then, Article 3 
SBC makes provision for two especial categories, and speaks of the scope of application 
of the Code as being ‘without prejudice to the rights of persons enjoying the right of free 
movement  under  Union  law  [and]  the  rights  of  refugees  and  persons  requesting 
international protection, in particular as regards non-refoulement’.43  

However, while Article 2 SBC offers an exact demarcation of who the ‘persons enjoying 
the  right  of  free  movement  under  Union  law’  are,44  there  is  no  definition  of  what 
‘refugees and persons requesting international protection’ mean in this framework. And, 
whereas there is a direct reference to the EU citizenship regime in relation to the former, 
there is no mention of the asylum acquis or any other (EU or national) law with regard to 
the latter. 

This  contrasts  with  Article  1  of  the  Convention  Implementing  the  Schengen  Agreement 
(CISA),45 pre-dating the Code. That provision did establish the meaning of the concepts 
of ‘asylum seeker’, ‘application for asylum’, and ‘processing applications for asylum’, in 
the  context  of  border  crossing  and  border  control  regulation.  The  CISA  framed  an 
‘application for asylum’ as ‘any application submitted in writing, orally or otherwise by an 
alien at an external border or within the territory of  a Contracting Party with a view to 
obtaining  recognition  as  a  refugee  in  accordance  with  the  Geneva  Convention’.46  From 
the  Commission’s  Proposal  of  the  Schengen  Borders  Code  it  is  not  clear  why  the 
definition  of  these  terms  as  well  as  the  notion  of  ‘refugees  and  persons  requesting 
international protection’ has been omitted and replaced in the final version with a generic 
reference  to  ‘third-country  national’,  described  by  default  as  ‘any  person  who  is  not  a 
Union citizen within the meaning of Article 20(1) of the Treaty and who is not covered by 
[the definition of persons enjoying the right of free movement under EU law]’.47  

40 Art 1 SBC, second indent. 
41 Art 3 SBC, opening sentence. Confirming this reading, see Case C-606/10 ANAFE, ECLI:EU:C:2012:348, para. 
35. 
42 Arts 2(5), 2(6) and 2(10) SBC. 
43 See also Art 4 SBC. 
44 Art. 2(5) SBC. 
45 Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of 
the  Benelux  Economic  Union,  the  Federal  Republic  of  Germany  and  the  French  Republic  on  the  Gradual 
abolition of checks at their common borders, 19 June 1990, [2000] OJ L 239/19 (‘CISA’). 
46 Art. 1 CISA (emphasis added). 
47 Art. 2(6) SBC. See also Commission Proposal for a Council Regulation establishing a Community Code on the 
rules governing the movement of persons across borders, COM(2004) 391 (‘SBC Proposal’), at pp. 14-16. 

40 

 
 
 
 
                                                 
As  things  stand,  the  default  position  seems  to  be  that,  having  been  assimilated  to  the 
general  category  of  TCNs,  the  general  entry  criteria  foreseen  in  Article  6  SBC  should 
apply  to  asylum  seekers.  This  is  what  the  CJEU  appears  to  imply,  when  reading  that 
Article  6  SBC  ‘governs  the  conditions  of  entry  of  third-country  nationals  [in  general]’, 
including those who lodge an asylum claim. 48 In its own words, those conditions are ‘in 
principle applicable to all cross-border movements by persons’.49 But can persons seeking 
international protection meet the conditions of Article 6 SBC?  

Article 6 SBC conditions includes being in possession of valid travel documents, a valid 
visa, justification of the purpose and conditions of sojourn, evidence of sufficient means 
of  subsistence,  proof  of  posing  no  threat  to  public  order,  national  security,  or  the 
international  relations  of  the  Member  States,  and,  crucially,  proof  of  the  intention  and 
ability to return to the country of provenance prior to the expiry of the allowed period of 
stay.  However,  refugees  cannot  demonstrate  willingness  or  ability  to  return  to  the 
country  of  provenance  without  thereby  losing  their  (legal)  status.  There  seems  to  be  a 
contradiction in terms.  

Indeed, the Qualification Directive, by reference to the 1951 Convention on the Status of 
Refugees,50 defines refugees as TCNs who, owing to a well-founded fear of persecution, 
are ‘unwilling’ or ‘unable’ to avail themselves of national protection and therefore cannot 
return to their countries of origin.51 In turn, a ‘person eligible for subsidiary protection’ is 
defined as a TCN  who, albeit not qualifying as a refugee, cannot return either,  due to a 
real  risk  of  serious  harm  in  the  event  of  removal.52  The  return  condition  is,  hence, 
impossible  to  fulfil  for  persons  requiring  international  protection.  This  is  why  the 
exceptions  contemplated  in  the  Code  must  be  examined,  to  determine  whether  there  is 
somewhere else a satisfactory regulation of the conditions applicable to the admission of 
asylum seekers into Schengen domain. 

During  the  negotiations  of  the  Code,  in  recognition  of  the  plight  of  asylum  seekers  as 
persons  hardly  in  a  position  to  fulfil  the  general  requirements  for  admission,  the 
European  Parliament  proposed  to  (partially)  reintroduce  the  exception  provided  for  in 
former  Article  5(2)  CISA  in  the  text  of  Article  6  SBC53—which  the  Commission  had 
deleted  from  its  proposal.54  As  a  result,  Article  6(5)(c)  SBC  now  reads  that,  by  way  of 
derogation from the general rule, ‘third-country nationals who do not fulfil one or more 
of  the  [general  entry]  conditions…may  be  authorised  by  a  Member  State  to  enter  its 
territory  on  humanitarian  grounds,  on  grounds  of  national  interest  or  because  of 
international  obligations…’.  Yet,  none  of  these  terms  has  been  defined  anywhere,  so  the 

48 ANAFE (n 41), para. 27 ff. 
49 Ibid., para. 35 (emphasis added). 
50 Convention Relating to the Status of Refugees [1951] 189 U.N.T.S. 150 (‘Geneva Convention’ / ‘GC’). 
51 Art. 2(d) QD. 
52 Art. 2(f) QD. 
53  Amendment  7,  Report  on  the  proposal  for  a  Regulation  establishing  a  Community  Code  on  the  rules 
governing the movement of persons across borders, A6-188/2005, p. 74. 
54 For the original proposal, see draft Art. 5(6), SBC Proposal, p. 47.  

41 

 
 
 
 
                                                 
sufficiency of this generic reference to ‘international obligations’—presumably including 
protection-related duties—remains open to debate.55 

In reality, Article 5(2) CISA comprised a second indent mentioning that entry rules ‘shall 
not preclude the application of special provisions concerning the right of asylum…’, but 
this  was  not  included  in  the  wording  of  current  Article  6(5)(c) SBC.  It  has  instead  been 
incorporated into Article 14 SBC, in the framework of the guarantees applicable in cases 
of ‘refusal of entry’.  

In a rather intricate formulation, Article 14(1) SBC reads that ‘[a] third-country  national 
who does not fulfil all entry conditions laid down in Article 6(1) and does not belong to 
the categories of persons referred to in Article 6(5) shall be refused entry to the territories of 
the  Member  States’.  This  is,  however,  ‘without  prejudice  to  the  application  of  special 
provisions concerning the right of asylum and to international protection…’. The allusion to 
the  ‘right  to  international  protection’  was  added  at  the  behest  of  the  European 
Parliament.56 Yet, it is not entirely clear what the practical implications of this reference 
are,  nor  its  exact  relation  to  the  right  to  protection  from  refoulement.57  And  the  related 
‘special provisions’ that may serve to preserve it have not been specified either.  

Previously,  in  the  pre-codification  era,  the  so-called  Common  Manual  (guiding  the 
application of the Schengen Convention rules), established that where a TCN requested 
asylum at the border ‘the national laws of the Contracting Party concerned [applied] until 
it  [was]  determined  who  [had]  responsibility  for  dealing  with  the  application  for 
asylum’.58  On  account  of  the  posterior  communautarisation  of  the  Schengen  acquis  and 
the  harmonisation of asylum  norms, the Commission interpreted that the incorporation 
of this clause in the SBC had somehow become ‘superfluous’. 59 The general references in 
the Code to international obligations and non-refoulement were deemed enough.  

At  the  same  time—and  probably  for  the  same  reasons—refugees  and  asylum  seekers 
were  also  removed  from  the  ‘certain  categories  of  persons’  to  whom  ‘specific  rules  for 
checks’  applied  under  the  Common  Manual.  Neither  current  Article  20  SBC  nor  its 
development  in  Annex  VII  SBC  deals  with  persons  requesting  international  protection. 
The  same  was  done  in  relation  to  EU  citizens  and  persons  enjoying  the  right  to  free 
movement.  But  the  reasons  behind  this  erasure  are  more  solid  in  the  latter  case.  ‘[T]he 
rules on entry and residence applicable to citizens of the Union and, in general, persons 
enjoying  the  [Union]  right  to  free  movement  are  already  laid  down  in  the  relevant 
provisions  of  [EU]  law.[60]  There  is  therefore  no  need  to  reproduce  [in  the  Code] 

55 This was, precisely, the question posed by the referring court to the CJEU in X and X (n 11). 
56 ‘International protection’ is defined in Art 2(a) QD. It covers ‘refugee status and subsidiary protection status’. 
57 Expressing similar doubts, see Boeles et al., European Migration Law (Intersentia, 2009), ch 4.2. 
58 Para. 6.10, Part II, Common Manual, [2002] OJ C 313/97 (‘CM’). 
59  Explanatory  Memorandum,  SBC  Proposal,  p.  28.    This  understanding  may  be  due  to  the  silo  effect  of 
negotiating borders and asylum measures separategly within different processes, leading to a situation where 
secondary  law  does  not  give  proper  expression  to  obligations  under  primary  law;  a  situation  that  the 
Parliament attempted to address, although only with partial success.  
60  Directive  2004/38/EC  on  the  right  of  citizens  of  the  Union  and  their  family  members  to  move  and  reside 
freely within the territory of the Member States, [2004] OJ L 158/77 (‘Citizenship Directive’). 

42 

 
 
 
 
                                                 
provisions that are already contained in other [EU] instruments’.61 In fact, Articles 4 and 5 
of the EU Citizenship Directive reflect the particular rules applicable to entry and exit of 
this category of persons. By contrast, no similar EU arrangements exist for the admission 
of asylum seekers into the Schengen zone. 

It  is  also  noteworthy  that  Article  8  SBC  on  the  regulation  of  minimum  and  thorough 
checks  includes  a  proviso,  whereby  the  regime  established  therein  is  not  applicable  to 
persons  enjoying  free  movement  rights,  for  whom  checks  ‘shall  be  carried  out  in 
accordance  with  Directive  2004/38/EC’.62  There  is  neither  an  equivalent  exception  for 
asylum seekers,  nor a reference to a  more  specific EU law instrument to be followed in 
lieu of the Code. Yet, on the basis of the identical treatment accorded to both categories in 
Article  3  SBC—defining  the  very  scope  of  the  Code—the  expectation  was  to  find  a 
parallel exemption with an indication of the relevant alternative regime.  

2.1.2 Situation under the Common European Asylum System Instruments 

In the absence of specific rules governing the entry of asylum seekers into the Schengen 
area in the SBC, implying a tacit renvoi to the common asylum acquis is also insufficient. 
The  relevant  instruments  are  practically  silent  in  this  regard.  And  the  only  express  link 
between the Schengen Code and Common European Asylum System (CEAS) legislation, 
inserted in the 2015 version of the Schengen Handbook, merely establishes the obvious, 
that:  ‘All  applications  for  international  protection…lodged  at  the  border  must  be 
examined by Member States in  order to assess,  on the basis of the criteria laid  down in 
Directive  2011/95/EU  of  13  December  2011,  whether  the  applicant  qualifies  either  for 
refugee status…or for subsidiary protection status…’. 63 

Other than that, CEAS instruments refer to asylum seekers in procedural terms. Instead 
of  speaking  of  ‘unrecognised  refugees’,  ‘asylum  seekers’  or  ‘third-country  national[s] 
international  protection’  (as  in  Article  78(1)  TFEU),  they  refer  to  the  ‘applicant  for 
international protection’, defined as a ‘third-country national or a stateless person who has 
made an application for international protection in respect of which a final decision has not 
yet  been  taken’.64  In  turn,  ‘application  for  asylum’  denotes  ‘a  request  made  by  a  third-
country national or a stateless person for [international] protection from a Member State, 
who can be understood to seek refugee status or subsidiary protection status’.65  

61 Explanatory Memorandum, SBC Proposal, at 27, referring to para. 6.1 Part II CM. 
62 Art. 8(6) SBC. 
63  See  ‘General  Principles’,  in  Commission  Recommendation  establishing  a  common  “Practical  Handbook  for 
Border Guards (Schengen Handbook)” to be used by Member States’ competent authorities when carrying out 
the  border  control  of  persons,  C(2006)  5186,  as  rev.  C(2008)  2976;  C(2009)  7376;  C(2010)  5559;  C(2011)  3918; 
C(2012) 9330; and C(2015) 3894 (‘Schengen Handbook’). 
64 Art. 2(b) (emphasis added), Directive 2013/33/EU laying down standards for the reception of applicants for 
international  protection  (recast),  [2013]  OJ  L  180/96  (‘RCD’);  Art.  2(c),  Regulation  (EU)  604/2013  establishing 
the  criteria  and  mechanisms  for  determining  the  Member  State  responsible  for  examining  an  application  for 
international  protection  lodged  in  one  of  the  Member  States  by  a  third-country  national  or  a  stateless  person 
(recast), [2013] OJ L 180/31 (‘DR III’); and Art. 2(c), Directive 2013/32/EU on common procedures for granting 
and withdrawing international protection (recast), [2013] OJ L 180/60 (‘APD’). 
65 Art. 2(h) QD, to which Art. 2(b) DR III, Art. 2(b) APD, and Art. 2(a) RCD refer. 

43 

 
 
 
 
 
                                                 
The problem is that, although ‘Member States shall ensure [in imperative language] that a 
person  who  has  made  an  application  for  international  protection  has  an  effective 
opportunity to lodge it as soon as possible’, they may also subordinate the exercise of this 
right to specific formalities, requiring that applications ‘be lodged in person and/or at a 
designated  place’  to  be  valid.66  In  fact,  ‘an  application  for  international  protection  shall 
[only]  be  deemed  to  have  been  lodged  once  a  form  submitted  by  the  applicant  or…an 
official  report,  has  reached  the  competent  authorities’.67  Whereas  Member  States  must 
guarantee that ‘other authorities which are likely to receive applications for international 
protection 
relevant 
information…[training]  and  instructions  to  inform  applicants  as  to  where  and  how 
applications…may  be  lodged’,68  by  virtue  of  the  Asylum  Procedures  Directive  (APD) 
alone, they are not strictly obliged to ‘require these authorities to forward the application 
to the competent authority’—as used to be the case under the original version of the APD 
(before the 2013 recast).69  

the  police,  border  guards 

[etc]  have 

such 

the 

as 

What  is  more,  the  APD  distinguishes  between  the  act  of  ‘making’  an  application  and 
formally ‘lodging’ it. When the application is ‘made’ it shall be ‘registered’, including ex 
officio,  by  a  national  authority  competent  to  receive  it,  but  unless  the  applicant  ‘lodges’ 
the application following the relevant formalities, Member States may presume that the 
application has been abandoned or implicitly withdrawn after a certain time.70  

In  addition,  the  application  for  international  protection  may  be  dissociated  from 
decisions  on  entry,  where  border  procedures  apply.71  Border  procedures  may  apply  to 
applications  submitted  at  the  border  or  in  transit  zones,  when  the  applicant  does  not 
meet  the  criteria  for  entry  under  Article  6  SBC—which,  in  practice,  may  amount  to  the 
entire  asylum  applicant  population,  considering  the  existential  inability  by  persons  in 
need  of  international  protection  to  return  to  their  countries  of  provenance.  As  these 
procedures  may  include  derogations  from  basic  procedural  guarantees,  including  the 

66 Arts 6(2) and 6(3) APD. 
67 Art. 6(4) APD. 
68 Art. 6(1) APD, third indent (emphasis added). 
69 Former Art. 6(5) APD. See Council Directive 2005/85/EC on minimum standards on procedures in Member 
States for granting and withdrawing refugee status, [2005] OJ L 326/13. This provision has disappeared from 
the recast text. See the ‘correlation table’ in Annex III PD. It is arguable, however, that this obligation continues 
to exist, stemming from the need to interpret the Directive in consonance with the CFR and general principles of 
EU  law.  Otherwise  the  APD  would  be  incompatible  with  ECHR  standards.  In  this  direction,  see  Peers, 
‘Enhancing  Cooperation  on  Border  Controls  in  the  EU’,  in  Cholewinski,  Perruchoud  and  MacDonald  (eds), 
International Migration Law (T.M.C. Asser Press, 2007), p. 452. This is also the interpretation maintained by the 
Commission in the Schengen Handbook, Part II, para. 10.3: ‘Any application for international protection must be 
transmitted either to the competent national authority designated by each Member State for the purpose of its 
examination/processing or to the authority which is responsible for deciding whether to permit the applicant 
entry to the territory so that his/her application can be examined by the competent authority. No decision to 
return the applicant must be taken by the border guard without prior consultation with the competent national 
authority or authorities’ (emphasis added). But this clause has not been adopted in legal form. 
70 Arts 6(1), 6(2) and 28 APD. 
71  Art.  43  APD.  Documenting  Member  States  practice,  see  studies  by  FRA,  Fundamental  Rights  at  Land Borders 
(FRA,  2014);  and  Fundamental  Rights  at  Airports  (FRA,  2014).  See  also  Report  on  the  Application  of  Directive 
2005/85/EC,  COM(2010)  465;  and  UNHCR,  Improving  Asylum  Procedures:  Comparative  Analysis  and 
Recommendations for Law and Practice (March 2010). 

44 

 
 
                                                 
possibility  of  considering  applications  unfounded,72  the  combined  effect  of  these 
provisions may lead to the erroneous dismissal of applications, if not to the refoulement of 
a person who has not yet ‘lodged’, but nonetheless ‘made’, an asylum claim. 73 

The  risk  is  all  the  more  real,  considering  the  absence  of  any  details  on  the  ‘special 
provisions’ applicable to asylum seekers under the Schengen Borders Code and the fact 
that an entry refusal ‘shall take effect immediately’, with appeals devoid (‘shall not have’) 
of suspensive effect.74 Article 14(4) SBC, establishing that ‘border guards shall ensure that 
a  third-country  national  refused  entry  does  not  enter  the  territory  of  the  Member  State 
concerned’, heightens this risk.  

The insertion in the text of the Code or the APD of the indications contained in the (soft-
law)  Schengen  Handbook  that  ‘[a]  third-country  national  must  be  considered  as  an 
applicant  for  asylum/international  protection  if  he/she  expresses—in  any  way—fear  of 
suffering  serious  harm  if  he/she  is  returned  to  his/her  country  of  origin  or  former 
habitual  residence’,  would  have  been  most  appropriate.75  It  would  have  taken  into 
account the declarative nature of refugee status,76 and the fact that ‘the defining element 
is  the  expression  of  fear  of  what  might  happen  upon  return’.77  Making  clear  that  ‘[t]he 
wish  to  apply  for  protection  does  not  need  to  be  expressed  in  any  particular  form’  and 
that  ‘[t]he  word  asylum  does  not  need  to  be  used  expressly’ 78  would  have  brought  the 
rules on admission in line with the international human rights and refugee law standards 
applicable  within  the  EU  legal  order,  by  virtue  of  Article  6  TEU  and  the  Charter  of 
Fundamental  Rights,  on  which  Chapter  4  elaborates. Moreover,  it  would  have  matched 
the  logic  behind  the  codification  of  the  Schengen  borders’  acquis,  by  clarifying  ‘all  the 
existing’ obligations. 79  

To  the  contrary,  the  asylum  acquis  above  appears  to  assume  that  refugee  status  is 
dependent  on  recognition,  so  that,  before  an  asylum  application  has  been  successfully 
resolved,  the  person  concerned  is  placed  in  the  interim  position  of  ‘asylum  applicant’. 
And  until  and  unless  the  asylum  application  has  been  formally  lodged,  domestic 
authorities are legitimised to treat the person like any other TCN, thus subject to general 
entry  requirements  that  may  cause  him/her  to  be  classified  as  an  ‘irregular  migrant’.80 

its  processing 

‘accelerated’,  where 

72 Arts 43(1)(b), 32(2), 31(8)(h) APD. According to these provisions, an application can be considered unfounded 
and 
‘the  applicant  entered  the  territory  of  the  Member  State 
unlawfully…and,  without  good  reason,  has  either  not  presented  himself  or  herself  to  the  authorities  or  not 
made an application for international protection as soon as possible’. 
73 Cf. Art. 28(2), 3rd indent, APD. 
74 Art. 14(2)-(3) SBC. On the incompatibility of this clause with the CFR, see Moreno-Lax, Accessing Asylum in 
Europe (OUP, 2017) ch 10. 
75 Schengen Handbook, Part II, para. 10.1. Note that the Handbook is not legally binding. 
76 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 
1967 Protocol relating to the Status of Refugees (HCR/IP/4/Eng/REV.1), para 28. See also Recital 21 QD. 
77 Schengen Handbook, Part II, para. 10.1. 
78 Ibid. 
79 The Commission explained the advantages of codification as an operation that allows ‘all the existing acquis 
on external and internal borders to be collated in a single instrument, thus establishing a genuine [Union] Code 
on the rules governing the movement of persons across borders’. See Explanatory Memorandum, SBC Proposal, 
at 8 (emphasis added). 
80  Note  that  the  ‘right  to  remain’  in  the  Member  State  concerned,  recognized  in  Art.  9  APD,  appears  only  to 

45 

 
 
 
                                                 
The  entry  of  the  asylum  seeker  and  the  processing  of  the  asylum  claim  are  treated  as 
separate  and  independent  from  one  another,  so  that  entry  may  be  unauthorised,  while 
the application is being processed (in the framework of ‘border procedures’). And, what 
is worse, the current APD ‘shall not apply to requests for…asylum submitted…abroad’.81 
So,  there  are  no  specific  arrangements  in  the  current  CEAS  to  access  the  system  by  its 
addressees. 

2.1.3 Situation under the Visa acquis 

EU  visa  rules  do  not  dispel  the  ambiguities  detected  above.  They  draw  on  the  SBC, 
anticipating  entry  controls  to  the  stage  of  pre-departure.  The  criteria  to  be  satisfied  are, 
therefore,  the  same  generally  required  for  admission.  ‘In  the  examination  of  an 
application  for  a  uniform  visa,  it  shall  be  ascertained  whether  the  applicant  fulfils  the 
entry  conditions  set  out  in  [Article  6]  of  the  Schengen  Borders  Code’.82  Yet,  unlike  the 
Schengen Borders Code, the application of these criteria is not ‘without prejudice to…the 
rights  of  refugees  and  persons  requesting  international  protection’.83  The  application  of 
the Visa Code is exclusively ‘without prejudice to the rights of free movement enjoyed by 
third-country  nationals  who  are  family  members  of  citizens  of  the  Union’  and  ‘the 
equivalent rights’ deriving from agreements with specific third countries.84  

The  Visa  Code  thus  reflects  Schengen  entry  rules,  but  only  in  part,  disregarding  that 
‘[w]hen  applying  this  Regulation  [as  any  other  piece  of  EU  legislation]  Member  States 
shall  act  in  full  compliance  with  relevant  Union  law,  including  the  Charter…relevant 
international law, including the…Geneva Convention, [and] obligations related to access 
to  international  protection,  in  particular  the  principle  of  non-refoulement’,  as  the  SBC 
explicitly acknowledges. 85 There is no such ‘saving clause’ in the CCV. The only generic 
reference to the need to respect fundamental rights when applying the CCV Regulation is 
in the Preamble, but without any mention of the particular position of asylum seekers.86  

This has led many to describe visas as ‘the most explicit blocking mechanism for asylum 
flows’. 87  In  fact,  all  refugee-producing  countries  have  been  placed  in  the  ‘black  list’  of 
States  whose  nationals  require  visas  for  entry  into  Schengen  territory.88  And,  when 
examining  visa  applications,  consular  personnel  are  under  an  obligation  to  paying 
particular attention to ‘whether the applicant intends to leave the territory of the Member 

apply  ‘pending  the  examination  of  the  application’,  i.e.  once  the  asylum  claim  has  been  formally  lodged, 
without conferring an independent right of entry. 
81 Art. 3(2) APD.  
82 Art. 21 CCV.  
83 Art. 3(b) SBC.  
84 Art. 3(b) SBC.  
85 Art. 4 SBC.  
86 Recital 29 CCV.  
87 Morrison and Crosland, Trafficking and Smuggling of Refugees: The End Game in European Asylum Policy, New 
Issues in Refugee Research, Working Paper No. 39 (UNHCR, 2001), p. 28. 
88 Council Regulation (EC) 539/2001 listing the third countries whose nationals must be in possession of visas 
when crossing the external borders and those whose nationals are exempt from that requirement (as amended), 
[2001] OJ L 81/1 (‘Visa List Regulation’ / ‘VLR’). 

46 

 
 
 
 
                                                                                                                                      
States  before  the  expiry  of  the  visa  applied  for’89—which  is,  precisely,  what  persons  in 
need of international protection can, by the very definition of their legal position under 
EU rules, not do.  

Article 1 CCV contemplates that its provisions ‘shall apply to any third country national 
who must be in possession of a visa when crossing the external borders of the  Member 
States pursuant to [the Visa List Regulation]’. 90 In  turn, the Code defines ‘third-country 
national’ as ‘any person who is not a citizen of the Union within the meaning of Article 
17(1)  of  the  Treaty’,  without  differentiating  or  excluding  those  in  need  of  international 
protection.91 Therefore, the fact that asylum seekers applying for a visa may ‘thereafter’ 
(following  a  subsequent  legal  procedure  under  a  separate  legal  instrument,  that  is,  the 
APD) try ‘to being granted a residence permit with a period of validity not limited to 90 
days’,  as  the  CJEU  objected  in  X  and  X,92  should  be  without  consequence,  by  the  very 
wording of the Visa Code and the logics underpinning the EU entry and asylum systems. 

Yet, the CJEU has interpreted instead that, since the CCV concerns only ‘visas for transit 
through or intended stays on the territory of the Member States not exceeding 90 days in 
any 180-day period’,93 because asylum seekers’ purpose is presumably for a longer stay, 
their situation ‘fall[s] outside the scope of th[e] Code’. The Court relies on ‘the objective’ 
of the CCV to reach this conclusion.94 

On the other hand, as the Court itself recognizes, ‘the existence of “reasonable doubts as 
to…[the  applicant’s]  intention  to  leave  the  territory  of  the  Member  States  before  the 
expiry  of  the  visa  applied  for”  is  a  ground  for  refusal  of  a  visa  [under  Article  32(1)(b) 
CCV]  and  not  a  reason  not  to  apply  that  Code’. 95  The  motives  of  an  applicant  serve  to 
assess the merits of the application under Article 21 CCV, but should not determine the 
applicability  of  the  Visa  Code  per  se.  Otherwise,  there  may  be  so  many  scopes  of 
application  of  the  Visa  Code  as  there  are  motives  (and  potentially  candidates)  to  apply 
for  visas.  Legal  certainty  and  the  rule  of  law  oppose  such  an  interpretation.96  The 
applicant’s  circumstances,  including  his/her  future  plans  and  intentions,  can  therefore 
lead  to  the  rejection  of  the  application  (at  the  admissibility  or  merits  stage),  but  should 
not be taken to constitute a basis for the a priori non-application of the relevant rules—an 
application that is specifically foreseen in Article 1(2) of the Code.  

Another  point  the  CJEU  acknowledges  is  based  on  Article  25  CCV.  The  position  of 
asylum  seekers  is  presumably  captured  by  the  ‘international  obligations’  clause 
contained  in  Article  25(1)(a)  CCV  on  visas  with  limited  territorial  validity  (LTV).  The 
provision  establishes  that  ‘on  humanitarian  grounds…or  because  of  international 

89 Art. 21(1) CCV.  
90 Art. 1(2) CCV (emphasis added).  
91 Art 2(1) CCV. 
92 X and X (n 11), para. 42. 
93 Ibid., para. 41. 
94 Ibid. and para. 43. 
95 Ibid., para. 46. 
96 Concurring: Mengozzi (n 15), para. 49 ff. 

47 

 
 
 
 
                                                 
obligations’ it may be ‘necessary’ for Member States ‘to derogate from the principle that 
the  entry  conditions  laid  down  in  Article  [6(1)]  of  the  Schengen  Borders  Code  must  be 
fulfilled’.  This  reproduces  the  exception  contained  in  the  SBC  itself.  Article  6(5)(c)  SBC 
takes  account  of  the  same  ‘humanitarian  grounds…[and]  international  obligations’  to 
open up the possibility for ‘third-country nationals who do not fulfil one or more of the 
conditions…[to] be authorised by a Member State to  enter its territory’. Accordingly,  to 
infer that, visa applications by asylum seekers, ‘even if formally submitted on the basis of 
Article  25  of  [the  Visa]  Code’,  nonetheless  ‘fall  outside  the  scope  of  that  code’  does  not 
appear justified.97 How can there be a provision in the Visa Code that, as it ensues from 
the  legal  history  of  Article  6(5)(c)  SBC  analysed  above,  intended  precisely  to  cover  the 
position of those in need of international protection and, at the same time, conclude that 
the Code (as a whole) is inapplicable to this category of ‘third-country nationals’ (defined 
in the same Code as including every non-EU citizen)? How can Article 25 CCV pertain to 
the  Visa  Code  (and  thus  fall  within  its  scope  of  application)  and,  yet,  at  the  same  time, 
posit  that  those  who  may  possibly  rely  on  it  for  the  issuance  of  a  visa  fall  outside  the 
scope of application of the same instrument? 

2.2 Overall assessment 

Although  the  above  analysis  points  in  a  different  direction,  providing  a  plausible 
alternative reading of the visa acquis, on account of the CJEU’s assessment in X and X, the 
necessary  implication  is  that  asylum  seekers  do  not  fall  within  the  scope  of  the  current 
CCV. If such is the case, then the mission of the Schengen Borders Code remains yet to be 
accomplished.  And  the  ‘rules  governing  border  control  of  persons  crossing  the  external 
borders of the Member States of the Union’ require additional legislation,98 so as to cover 
the situation of one specific group ‘of persons crossing’ or ‘showing an intention to cross’ 
into the Member States.99 Indeed, Article 77(2) TFEU, which is the legal basis buttressing 
the  Schengen  Borders  Code,100  and  especially  paragraph  (b)  thereof,  requires  that  the 
‘European Parliament and the Council…shall adopt measures concerning…the checks to 
which  persons  crossing  external  borders  [presumably  all  of  them,  including  asylum 
seekers] are subject’. Therefore, means and criteria for the admission of persons in need 
of international protection into the Schengen zone need to be specified in EU law for the 
EU legislator to comply with its obligations under the Treaty. So, either the ambiguity of 
SBC rules and the CEAS acquis is corrected or separate rules that confront the exclusion 
from CCV provisions, as per the judgment of the CJEU, are adopted. 

97 X and X (n 11), para. 43. 
98 Art. 1, second indent, SBC. 
99 Art. 2(10) SBC. 
100 Preamble, SBC. 

48 

 
 
                                                 
CHAPTER 3. PEPS: PAST AND PRESENT 

KEY FINDINGS 

•  Member States, in line with the ambiguous situation concerning the rules applicable 
to  the  admission  of  asylum  seekers  under  current  EU  provisions  on  entry,  as 
analysed in Chapter 2, have usually considered there to be no obligation to offer or 
facilitate access to their territories. 

•  Discretionary,  and  usually  small  scale,  Protected-entry  Procedures  (PEPs)  have 
emerged  instead.  Experience  at  supranational  and  domestic  level  is  varied  and 
extensive.  In  recent  times,  it  has  taken  the  form  of  resettlement  programmes, 
community  and  private  sponsorship  schemes,  and  ‘humanitarian  corridors’.  Yet, 
arrangements vary significantly between formulae and across Member States. 

•  On  the  positive  side  of  the  balance,  all  schemes  are  based  on  the  principles  of 
additionality and complementarity, intending to offer safe and regular alternatives 
to  ‘spontaneous  arrivals’  other  than  via  smuggling  and  trafficking  routes;  the 
programmes are managed and allow for a high level of screening and control over 
entry;  they  garner  the  support  of  UNHCR  and  other  specialised  organisations;  the 
involvement  of  private  and  community  sponsors  facilitates  integration  and 
diminishes  risks  of  disengagement  with  the  system;  all  programmes  constitute  a 
display of solidarity with beneficiaries and countries of first asylum. 

•  On the negative side of the balance, the numbers catered for are small; programmes 
tend  not  to  be  open-ended,  but  geographically  bounded  and  limited  in  time; 
processing  times  are  long;  selection  criteria  complex  and  not  always  protection-
related;  few  initiatives  allow  for  self-referrals  and  instead  rely  on  UNHCR  or 
private  sponsors  to  first  identify  potential  beneficiaries;  the  involvement  of  private 
actors  produces  selectivity  issues,  considering  the  amount  of  resources  and 
expertise  required,  leading  to  risks  of  ‘privatisation  /  commodification’  of 
protection;  publicity,  transparency,  and  predictability  need  improvement  to  align 
with  legal  certainty  and  rule  of  law  standards;  all  schemes  are  based  on  sovereign 
discretion (as of favour) rather than on the legal strength of protection obligations (as 
of right); and most of them provide for a secondary means of access to protection by 
already-recognised  refugees,  instead  of  granting  a  primary  way  for  unrecognised 
claimants to reach Schengen territory and apply for asylum on arrival. 

49 

 
 
 
 
 
 
 
 
 
 
3.1 Humanitarian Admission Experiences  

Member  States,  in  line  with  the  ambiguous  situation  concerning  the  rules  applicable  to 
the  admission  of  asylum  seekers  under  current  EU  provisions  on  entry,  as  analysed  in 
Chapter 2, have usually considered there to be no obligation to offer or facilitate access to 
their  territories.  They  have  rather  interpreted  that  such  matters  ‘fall  solely  within  the 
scope of national law’ and remain subject to their sovereign discretion. 101 

Out of free will, since the outbreak of the Syrian hostilities, several Member States have, 
nonetheless,  adopted  means  of  humanitarian  admission,  either  in  the  form  of  ‘classic’ 
resettlement  programmes  or  more  tailored  (and  typically  ad  hoc  and  exceptional) 
measures  that  select  individuals  prior  to  having  formally  qualified  for  refugee  or  other 
protection status—making these schemes accessible to a wider range of people. The FRA 
has  identified  several  examples  in  Austria,  Germany,  the  UK,  France  and  Ireland  with 
some common traits.102 And a more recent European Migration Network (EMN) survey 
documents practices in 17 Member States and Norway. As the analysis below reveals,103 
most  of  these  assign  UNHCR  a  role  in  the  identification  and/or  referral  of  candidates, 
while  final  selection  decisions  rest  with  Member  States.  Beneficiaries  are  granted  the 
same  or  a  similar  status  to  those  recognised  in-land,  although  domestic  rules  and 
integration  vary 
approaches  regarding  qualification,  reception,  and  post-arrival 
significantly.104 

The tables below summarise pros / cons of each scheme, as compared to the alternative 
‘asylum seeker visas’ proposed in Chapter 6, highlighting key points in colour: 

PROS 

CONS 

Cf. ASYUM SEEKER VISAS 

Managed process 

No individual autonomy / 
Territorially limited 

Combines managed process 
and individual autonomy, 
with potentially no territorial 
limit 

Allows focus on vulnerability 

Selectiveness 

Coheres with QD 

UNHCR support 

UNHCR dependent 

Accountability-proof 

101 X and X (n 11), para. 44.  
102 FRA (n 9), p. 8-10. 
103  This  is  limited  to  protection-specific  channels.  Other  means  have  been  proposed  and  are  being  tested, 
regarding the extension of study or labour migration routes to refugees. See, e.g. Collet, Clewett, and Fratzke, 
No  Way  Out?  Making  Additional Migration Channels  Work  for Refugees,  Migration  Policy  Institute  (March, 2016) 
<https://www.migrationpolicy.org/research/no-way-out-making-additional-migration-channels-work-
refugees>. See also ‘IOM Releases Outcomes of Skills2Work Pilot Initiative Integrating Refugees into EU Labour 
Markets’, IOM Press Release, 3 March 2018 <https://www.iom.int/news/iom-releases-outcomes-skills2work-
pilot-initiative-integrating-refugees-eu-labour-markets>. 
104  European  Migration Network,  Resettlement  and  Humanitarian  Admission Programmes in  Europe –  what  works? 
(November, 2016) <http://emn.ie/files/p_201611221258152016_emn-informs_resettlement.pdf>.  

50 

 
 
 
 
 
                                                 
Planned integration 

Only for 1951 GC refugees 

Coheres with CEAS 

Display of solidarity 

Inter-State focus 

Rights-based approach 

Provides safe passage 

2ary means of access 

1ary means of access 

Durable solution 

Very small numbers 

Potential for higher scale 

Flexibility 

Based on State discretion 

Legal guarantees 

Table 1: RESETTLEMENT vs. ASYLUM SEEKER VISAS 

PROS 

CONS 

Cf. ASYUM SEEKER VISAS 

Managed  process  /  shorter 
processing 
than 
resettlement 

times 

No  individual  autonomy  / 
territorially limited 

Combines  managed  process 
and 
individual  autonomy, 
with  potentially  no  territorial 
limit 

Allows focus on vulnerability 

Selectiveness 

Coheres with QD 

Private support / civil society 
involvement  /  public-private 
partnership 

Blurs responsibility 

Accountability-proof 

Planned 
overcomes misgivings 

integration 

/ 

Private resource dependent 

Coheres with CEAS 

Display of solidarity 

Inter-community focus 

Rights-based approach 

Provide safe passage  

2ary means of access 

1ary means of access 

Durable solution 

Very small numbers 

Potential for higher scale 

Flexibility 
initiative 

/ 

bottom-up 

legal 

No 
transparency 

certainty 

/ 

Procedural guarantees 

Table 2: SPONSORSHIP SCHEMES vs. ASYLUM SEEKER VISAS 

PROS 

CONS 

Cf. ASYUM SEEKER VISAS 

Managed process 

No  individual  autonomy  / 
territorially limited 

Combines  managed  process 
and 
individual  autonomy, 
with  potentially  no  territorial 
limit 

Allows focus on vulnerability 

Selectiveness 

Coheres with QD 

51 

 
 
 
 
 
Private support / civil society 
involvement  /  public-private 
partnership 

Blurs responsibility 

Accountability-proof 

Planned 
overcomes misgivings 

integration 

/ 

Private resource dependent 

Coheres with CEAS 

Display of solidarity 

Inter-community focus 

Rights-based approach 

1ary means of access 

No harmonised process  

1ary means of access 

Durable solution 

Very small numbers 

Potential for higher scale 

Flexibility 
initiative 

/ 

bottom-up 

legal 

No 
transparency 

certainty 

/ 

Procedural guarantees 

Table 3: HUMANITARIAN CORRIDORS vs. ASYLUM SEEKER VISAS 

3.1.1 Resettlement 

Together  with  repatriation  and  local  integration,  resettlement  is  one  of  the  ‘durable 
solutions’ for refugees supported by UNHCR. It consists of the selection and transfer of 
already-recognised refugees from a country of first asylum to a third State that agrees to 
admit  them  as  refugees  and  grant  them  permanent  residence.105  The  main  reason  for 
resettlement  is  the  need  for  ‘better’  protection  of  particularly  vulnerable  refugees  who 
have  reached  a  country  of  asylum  where  their  situation  is  precarious,  undignified  or 
unsafe due to health, security or other reasons.  

Despite the benefits of resettlement as ‘a life-changing experience’,106 less than 1% of the 
total 17 million refugees of concern to UNHCR worldwide were resettled by the end of 
2016.  And  only  a  small  fraction  of  States  participate  in  UNHCR’s  resettlement 
programme, with the US championing global efforts, followed by Canada, Australia, and 
the Nordic countries in recent times.107 By contrast, EU Member States’ contribution has 
been slow and scarce, despite the launch of the Joint Resettlement Programme already in 
2009.108  

At  the  time,  only  10  Member  States  had  established  annual  schemes  with  very  limited 
capacity and no common planning or coordination mechanism existed at EU level.109 So, 
the  programme  intended  to  provide  a  framework  for  the  development  of  a  common 
approach,  seeking  to  involve  as  many  Member  States  as  possible.  In  parallel,  it  was 

105 UNHCR Resettlement Handbook (Geneva, 2011), p. 3 <http://www.unhcr.org/46f7c0ee2.pdf>. 
106 UNHCR, Resettlement Information (undated) <http://www.unhcr.org/uk/resettlement.html>.   
107 UNHCR, Resettlement Factsheet 2017 <http://www.unhcr.org/uk/5a9d507f7>.   
108 The establishment of a Joint EU Resettlement Programme, COM(2009) 447. Underpinning the proposal see 
also, van Selm et al., Study on the Feasibility of Setting Up Resettlement Schemes in EU Member States or at EU Level 
(European  Commission,  2003)  <http://ec.europa.eu/home-affairs/doc_centre/asylum/docs/resettlement-
study-full_2003_en.pdf>.  
109  Commission  Staff  Working  Document  accompanying  the  Communication  of  the  Commission  on  the 
establishment of a Joint EU Resettlement Programme (Impact Assessment), SEC(2009) 1127. 

52 

 
 
 
 
                                                 
expected that the global humanitarian profile of the EU would rise and access to asylum 
organised  in  an  orderly  way.  On  the  other  hand,  the  Commission  also  intended  to 
coordinate the programme with the Global Approach to Migration and Mobility (GAMM),110 
through the identification of common priorities not only on protection reasons, but also 
on the basis of broader migration policy considerations, using resettlement in a ‘strategic’ 
way  to  curtail  irregular  entry  into  the  EU—the  European  Commission  has,  in  fact, 
recently  affirmed  (albeit  adducing  no  evidence  to  back  the  claim)  that  EU  resettlement 
efforts should contribute to ‘reducing irregular migration’, ‘to disrupt migrant smuggling 
networks’, and ‘to a better overall management of the migratory situation’. 111 

The  European  Refugee  Fund  was  amended  in  2012  to  support  resettlement  efforts.112 
Nonetheless,  the  results  achieved  were  minimal.  During  the  Arab  Spring  only  700 
resettlement places were offered EU-wide, while UNHCR had estimated the need for at 
least  11,000.113  The  replacement  of  the  ERF  with  the  current  Asylum,  Migration  and 
Integration Fund (AMIF) 2014-2020,114 with increased provisions, was expected to attract 
significant  pledges.  But  this  has  yet  to  fully  materialise.  Individual  efforts  at  domestic 
level have improved in some countries.115 Still, the Commission’s 2015 plan for a 20,000 
places scheme to respond to the Syrian crisis, proposed as part of the European Agenda on 
Migration, 116  has  not  been  entirely  executed.117  And  that,  even  after  the  Relocation 
Decisions were amended to make it possible for Member States to fulfil their obligations 
in relation to 54,000 applicants via resettlement of Syrians from Turkey instead.118 

Nevertheless, in September 2017, a further commitment to resettle 50,000 refugees ‘over 
the next two years’ was tabled, ‘as part of the Commission’s efforts to provide viable safe 
and  legal  alternatives  for  those  who  risk  their  lives  at  the  hands  of  criminal  smuggling 
networks’  across  the  Mediterranean.119  To  facilitate  the  transition  into  a  permanent 
framework, the Commission adopted a new Recommendation at the same time, inviting 
Member States to take a ‘stronger engagement’, focusing primarily on the MENA region 

26;  and  EASO  Annual  Report  2016,  p.  26,  all  available 

110 The Global Approach to Migration and Mobility, COM(2011) 743. 
111  Commission  Recommendation  of  27  September  2017  on  enhancing  legal  pathways  for  persons  in  need  of 
international protection, C(2017) 6504, Recitals 1, 4 and 13.  
112 Decision 281/2012/EU amending Decision No 573/2007/EC establishing the European Refugee Fund for the 
period 2008 to 2013, [2012] OJ L 92/1.  
113  Statement  by  Cecilia  Malmström  on  the  results  of  the  Ministerial  Pledging  Conference  12  May,  MEMO 
11/295, 13 May 2011 <http://europa.eu/rapid/press-release_MEMO-11-295_en.htm?locale=fr>.   
114 AMIF Regulation 516/2014, [2014] OJ L 150/175. 
115 EASO Annual Report 2013, p. 71 and Annex C.14; EASO Annual Report 2014, p. 8 and 81-82; EASO Annual 
Report  2015,  p.  8  and 
at: 
<https://www.easo.europa.eu/easo-annual-report>.  
116 Commission Recommendation on a European resettlement scheme, C(15) 3560. 
117  European  Commission,  ‘European  Agenda  on  Migration:  Continuous  efforts  needed  to  sustain  progress’, 
Press Release, 14 March 2018 <http://europa.eu/rapid/press-release_IP-18-1763_en.htm>. 
118  Council  Decision  2016/1754  of  29  September  2016  amending  Decision  (EU)  2015/1601  establishing 
provisional  measures  in  the  area  of  international  protection  for  the  benefit  of  Italy  and  Greece,  [2016]  OJ  L 
268/82.  Further  on  the  Relocation  Decisions,  see  Guild,  Costello  and  Moreno-Lax,  Implementation  of  the  2015 
Council Decisions establishing provisional measures in the area of international protection for the benefit of Italy and of 
Greece, 
2017) 
583.132 
<http://www.europarl.europa.eu/RegData/etudes/STUD/2017/583132/IPOL_STU(2017)583132_EN.pdf>.  
119 State of the Union 2017 – Commission presents next steps towards a stronger, more effective and fairer EU 
migration and asylum policy, Press Release, 27 September 2017 <http://europa.eu/rapid/press-release_IP-17-
3406_en.htm?locale=FR>.   

(March 

PE 

53 

 
 
                                                 
and, especially, on ‘key African countries along and leading to the Central Mediterranean 
migration route, including Libya, Niger, Chad, Egypt, Ethiopia, and Sudan’.120 Therein, it 
also calls for a commitment with UNHCR’s new ‘temporary mechanism for emergency 
evacuation  of  the  most  vulnerable  migrants  from  Libya’121—the  implementation  of 
which has equally been slow and at a tokenistic scale so far.122 

If  the  July  2016  proposal  for  a  permanent  EU  Resettlement  Framework,123  proposing  a 
unified  procedure  and  common  selection  criteria,  is  finally  adopted,  it  will  replace  the 
current  ad  hoc  initiatives  and  facilitate  the  attainment  of  the  Commission  targets  with  a 
harmonised approach. 124 Nevertheless, the essential nature of the system as State-driven 
and grounded in sovereign discretion, rather than a rights-based understanding of access 
to protection, will remain.  

3.1.2 Community Sponsorship  

In parallel to resettlement, community and private sponsorship initiatives, following the 
Canadian model,125 have proliferated in several EU countries—but there is no EU-wide 
equivalent.  The  EMN  has  identified  six  Member  States,  including  Germany,  Ireland, 
Italy, Poland, Slovakia, and UK, following different approaches.126 

In terms of eligibility criteria, most countries select on vulnerability grounds, but Poland 
and  Slovakia  target  victims  of  persecution  for  religious  reasons—especially  with  a 
Christian  background.  The  content  of  protection  statuses  also  varies.  In  Germany, 
sponsored individuals receive a two-year extendable permit with an immediate right to 
work.  In  contrast,  Ireland  accords  them  a  specific  humanitarian  status  allowing 
beneficiaries to work, invest, or establish a business. In Poland they are granted refugee 
status, while in Slovakia they receive asylum on national terms. In all cases, most of the 
costs  are  born  by  the  sponsor,  including  travel,  medical  and  maintenance  costs  upon 

120  Commission  Recommendation  of  27  September  2017  on  enhancing  legal  pathways  for  persons  in  need  of 
international protection, C(2017) 6504, Recitals 10, 14-15 and para. 3(a)-(c).  
121 Ibid., Recital 18 and para. 3(c).   
122 Molinari, ‘Groundbreaking first evacuation of 162 vulnerable refugees from Libya to Italy’, UNHCR News, 23 
December  2017  <http://www.unhcr.org/news/latest/2017/12/5a3e3d155/groundbreaking-first-evacuation-
162-vulnerable-refugees-libya-italy.html?utm_source=ECRE+Newsletters&utm_campaign=ff8195c031-
EMAIL_CAMPAIGN_2018_02_23&utm_medium=email&utm_term=0_3ec9497afd-ff8195c031-420552073>.   
123 Proposal for a Regulation of the European Parliament and of the Council establishing a Union Resettlement 
Framework, COM(2016) 468.  See also JHA Council Conclusions, 12-13 October 2017, Council doc. 13029/17, p. 
7; LIBE Report on the proposal for a regulation of the European Parliament and of the Council establishing a 
Union Resettlement Framework and amending Regulation (EU) No 516/2014 of the European Parliament and 
the Council (COM(2016)0468 – C8-0325/2016 – 2016/0225(COD)), 23 October 2017; and EC Press Release, ‘EU 
resettlement framework: Council ready to start negotiations’, Press 664/17, 15 November 2017.  
124  See  Juncker’s  Statement  to  this  effect,  Ensuring  Legal  Pathways  to  Europe,  13  September  2017 
<https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-
migration/20170927_factsheet_ensuring_effective_legal_pathways_to_europe_en.pdf>.   
125  Government  of  Canada,  Sponsor  a  Refugee,  9  August  2017  <https://www.canada.ca/en/immigration-
refugees-citizenship/services/refugees/help-outside-canada/private-sponsorship-program.html>.  
126  European  Migration Network,  Resettlement  and  Humanitarian  Admission Programmes in  Europe –  what  works? 
(November  2016)  <http://emn.ie/files/p_201611221258152016_emn-informs_resettlement.pdf>,  p.  7.  France 
has indicated an interest in developing similar initiatives.  

54 

 
 
 
 
                                                 
arrival.127  And  this  is  part  of  the  main  challenges  the  programme  gives  rise  to,  as  it 
constitutes  a  form  of  ‘privatisation  of  protection’,  shifting  certain  responsibilities  away 
from  public  authorities,  that  may  lead  to  excessive  selectivity  (if  not  discrimination)  of 
candidates  for  reasons  unrelated  to  protection  needs.  Other  obstacles  relate  to  the 
complexity  and  length  of  procedures,  logistical  and  coordination  flaws  between 
multiple  actors,  lack  of  adequate  pre-departure  information  and  orientation, 
difficulties  in  obtaining  travel  documents,  and  security  issues  in  the  country  of 
residence.128  

The  UK  Vulnerable  Person  Resettlement  Scheme  (VPRS)  and  Vulnerable  Children’s 
Resettlement  Scheme  (VCRS),129  targeting  respectively  20,000  refugees  fleeing  conflict 
in Syria and 3,000 minors from the MENA region, illustrates further difficulties. 130 The 
programme allows only registered charities, community interest companies, or religious 
organisations to act as sponsors accredited by the Home Office,131 upon signature of a 12-
month  declaration,  approval  by  the  relevant  local  authority,  and  a  guarantee  of  £9,000, 
committing themselves to  a plethora of obligations: They need to actively participate in 
every  step  of  the  process  and,  on  arrival,  provide  accommodation  for  two  years,  initial 
orientation assistance, and help with access to welfare services. This requires significant 
resources  and  expertise,  considerably  limits  accessibility  to  the  scheme,  and  reduces 
potential impact. In fact, as of July 2017, only 7,000 refugees had arrived in the UK.132  

At  individual  level,  it  is  unclear  which  conditions  are  specifically  required.  Relevant 
documentation simply states that ‘[t]he UK sets the criteria and then UNHCR identifies 
and  submits  potential  cases  for  consideration’,  so  sponsors  cannot  name  preferred 
candidates  themselves.  There  is  a  security  screening  and  a  pseudo-exclusion  process 
upon which cases may be rejected on ‘war crimes or other grounds’—but without taking 
account  of  other  exclusion  clauses  in  the  Qualification  Directive  and,  most  importantly, 
without providing for any legal remedies or procedural guarantees. On completion of the 
screening  phase,  a  full  medical  assessment  is  undertaken  by  IOM,  which  also  provides 
with  pre-departure  and  travel  support.  On  confirmation  of  eligibility,  an  initial  three-

21 

July 

2017) 

partners 

127 Ibid., p. 7-8  
128 Ibid., p. 8.  
129  UK  Home  Office,  Syrian  vulnerable  person  resettlement  programme  (VPRS)  fact  sheet,  28  October  2015 
<https://www.gov.uk/government/publications/syrian-vulnerable-person-
(updated 
resettlement-programme-fact-sheet>;  and  ‘New  scheme  launched  to  resettle  children  at  risk’,  21  April  2016 
<https://www.gov.uk/government/news/new-scheme-launched-to-resettle-children-at-risk>. 
130  UK  Home  Office,  Syrian  Vulnerable  Persons  Resettlement  Scheme  (VPRS)  -  Guidance  for  local  authorities 
and 
2017) 
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/631369/170711_Syrian_
Resettlement_Updated_Fact_Sheet_final.pdf>. 
131  The  first  Syrian  refugees  under  the  programme  arrived  in  Manchester  in  November  2015,  through  the 
sponsorship  of  Caritas  Salford.  See  ‘Caritas  Europe  share  the  Community  Sponsorship  model  of  refugee 
resettlement 
(undated) 
<https://www.caritassalford.org.uk/news/caritas-europe-share-the-community-sponsorship-model-of-
refugee-resettlement-at-the-european-parliament/>.   
132 UK Home Office, Refugees of all nationalities fleeing Syria are now eligible for resettlement in the UK, 3 July 
2017  <https://www.gov.uk/government/news/refugees-of-all-nationalities-fleeing-syria-are-now-eligible-for-
resettlement-in-the-uk>.  The  IMO  webpage  provides  a  revised  figure,  speaking  of  ‘Over  10,000  Refugees 
Resettled in UK Under Flagship Scheme’, Press Release, 23 February 2018 <https://www.iom.int/news/over-
10000-refugees-resettled-uk-under-flagship-scheme>.    

Parliament’, 

European 

Salford 

Caritas 

(July 

the 

at 

55 

 
 
                                                 
month  entry  visa  is  issued  for  travel,  followed  by  a  five-year  Refugee  Leave  permit 
granted  on  arrival.133  The  whole  process  takes  substantial  time,  which  has  translated  in 
long waits and the programme stalling for several months after launching. 134   

3.1.3 Private Sponsorship 

Private  sponsorship  is  a  slightly  different  mechanism  from  community  sponsorship 
schemes. It typically enables private citizens—such as ‘groups of five’ in Canada135—to 
support individual arrivals by family members and extended kin. The first programme 
emerged in Canada in 1979 and has resettled nearly 300,000 refugees since.136 The target 
quota for 2017 was 16,000.137 The cost, however, is considerable. It has been estimated to 
be around C$13,500 for one individual and C$30,900 for a family of five, rising criticism 
for its  privatisation / commodification impact on protection.138 On the other  hand, the 
government  provides  for  healthcare,  education  and  integration  schemes  and  applicants 
are exempted from visa fees. Access to social security benefits is allowed from the second 
year upon arrival.139  

In  2016,  the  Canadian  model  inspired  the  UNHCR-led  Global  Refugee  Sponsorship 
Initiative, designed to support other countries to adopt similar schemes. 140 Australia, for 
instance, launched its Community Support Programme (CSP) on 1st July 2017,141 after a 
four-year pilot,142 permitting individuals, businesses and community groups  to  sponsor 
eligible  cases.  The  numbers,  however,  are  small,  with  a  yearly  quota  of  1,000.  143  And 
requests must go through one of the few registered ‘Approved Proposing Organisation’. 
Eligibility conditions include protection-related criteria, such as being outside the country 

– 

Five 

2018 

Sponsor 

15  March 

a  Refugee, 

of  Canada,  Groups 

133 Syrian Vulnerable Persons Resettlement Scheme (VPRS) - Guidance for local authorities and partners (July 
2017), p. 6. 
134  ‘UK  community  refugee  scheme  has  resettled  only  two  Syrian  families’,  The  Guardian,  18  January  2017 
<https://www.theguardian.com/uk-news/2017/jan/18/uk-community-refugee-scheme-has-resettled-only-
two-syrian-families>. 
135  Government 
of 
<https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/help-outside-
canada/private-sponsorship-program/groups-five.html>.  
136  Asylum  Insight,  ‘Private  Sponsorship’,  14  September  2017  <http://www.asyluminsight.com/private-
sponsorship/#.Wq-c9q10f3A>. 
137 Government of Canada, Notice – Supplementary Information 2017 Immigration Levels Plan, 31 October 2016 
<https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/notice-supplementary-
information-2017-immigration-levels-plan.html>.   
138  See  e.g.  Canadian  Council 
(undated) 
<http://ccrweb.ca/en/2017-immigration-levels-comments>,  critiquing  that  ‘[a]s  a  principle,  government 
resettlement numbers should always be higher than the numbers resettled by civil society. However, according 
to the 2017 levels plan, privately sponsored refugees will make up 64% of the total number of refugees resettled 
to Canada’. 
139  Government  of  Canada,  Guide  to  the  Private  Sponsorship  of  Refugees  Program,  26  May  2017 
<https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/guide-
private-sponsorship-refugees-program.html>.  
140 The Global Sponsorship Refugee Initiative (2018) <http://refugeesponsorship.org>.  
141  Australian  Department  of  Home  Affairs,  The  Community  Support  Programme 
<https://www.homeaffairs.gov.au/Trav/Refu/Offs/community-support-programme>.  
142 Australian Refugee Council, Community Proposal Pilot and Community Support Program, 6 October 2016, 
<https://www.refugeecouncil.org.au/getfacts/seekingsafety/resettlement/community-support-program/>.   
143  Australian  Minister  for  Immigration  and  Border  Protection,  2017  Budget,  Media  Release,  9  May  2017 
<http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/5266893/upload_binary/5266893.pdf;fileTy
pe=application%2Fpdf#search=%22media/pressrel/5266893%22>.   

Immigration  Levels  –  Comments 

for  Refugees,  2017 

(undated), 

56 

 
 
 
                                                 
of  origin  and  subjected  to  persecution,  but  also  require  applicants  to  fall  within 
Australia’s  settlement  priorities  and  meet  specific  health  and  character  standards.  And 
those  with  an  offer  of  employment  or  likely  to  become  financially  independent  in  the 
short term are given priority. Sponsors must cover airfares, medical assessment expenses, 
visa  fees,  and  post-arrival  costs,  including  social  security  payments,  for  the  first  year, 
which virtually shifts responsibility for material subsistence and community integration 
to the private sector.144 The government has, in fact, projected savings of A$ 26.9 million 
over  four  years,  showing  no  intention  of  reinvesting  gains  into  other  publicly-funded 
resettlement opportunities.145 

One  key  drawback  of  the  Australian  scheme  is  that,  unlike  the  Canadian  experience,  is 
not  based  on  the  principle  of  additionality.  Sponsored  places  are  integrated  within  the 
general government resettlement targets of 16,250 places in 2017-18 and 18,750 places in 
2018-19,146  instead  of  creating  additional  protection  capacity.  The  scheme  thus  reduces 
the overall spaces available under the general Humanitarian Programme.147 On the other 
hand,  processing  times  seem  to  be  faster  than  under  alternative  routes,  prompting 
criticism that it is serving wealthy applicants purchasing ‘priority access’ to asylum.148 

In  the  EU,  some  countries  have  also  followed  the  Canadian  example.  The  German 
Humanitarian  Admission  Programme  (HAP),149  for  instance,  facilitates  family  reunion 
with Syrian relatives affected by the conflict. Since 2013, more than 20,000 visas have been 
issued  for  the  purpose—and  the  programme  is  open-ended.150  The  criteria  require 
relatives  (either  German  citizens  or  legal  residents)  to  sign  a  binding  declaration 
assuming  personal  liability  for  all  travel  and  accommodation  expenses  up  to  five  years 
upon  arrival  in  Germany—excluding  medical  care  costs,  integration  programmes,  and 
education  and  vocational  training  expenses.  The  referral  is  done  directly  by  the 
sponsoring  kin  and  the  beneficiary  is  then  issued  with  a  two-year  renewable  permit  on 
humanitarian  grounds.  Yet, a subsequent successful asylum application will  not release 
the sponsor of his/her obligations. Visa applications are processed and issued by German 
representations  abroad,  which  has  proved  challenging  given  the  high  number  of 
applications received, translating into strained capacity and long waiting periods of up to 

See 

(undated), 
also  Global 

144  Australian  Department  of  Home  Affairs,  The  Community  Support  Programme 
<https://www.homeaffairs.gov.au/Trav/Refu/Offs/community-support-programme>. 
Special Humanitarian visa (subclass 202) <https://www.homeaffairs.gov.au/Trav/Visa-1/202->.  
145    Australian  Government,  Budget  Measures  –  Budget  Paper  No  2  (2017-18),  9  May  2017,  p.  15 
<http://www.budget.gov.au/2017-18/content/bp2/download/bp2.pdf>.  
146  Ibid.  
147    Hoang,  ‘Risks  and  rewards  in  Australia's  plan  for  private  sponsorship’,  UNSW  Kaldor  Centre  for 
International  Refugee  Law,  16  May  2017  <http://www.kaldorcentre.unsw.edu.au/publication/risks-and-
rewards-australias-plan-private-sponsorship>.  
148  Kneebone,  Hirsch  and  Macklin,  ‘Private  resettlement  models  offer  a  way  for  Australia  to  lift  its  refugee 
intake’, ABC News, 19 September 2016 <http://www.abc.net.au/news/2016-09-19/private-resettlement-a-way-
for-australia-to-lift-refugee-intake/7857988>.  
149  Humanitarian  Assistance  Programme  (HAP)  is  an  umbrella  term  including  UNHCR-referred  cases  and 
flexible family reunification programmes for refugees.  
150  ICMC,  Private  Sponsorship  in  Europe  –  Expanding  Complementary  Pathways  for  Refugee  Resettlement 
(September  2017),  p.  27  <https://www.icmc.net/sites/default/files/documents/scoping-paper-icmc-europe-
2017.pdf>.  

57 

 
 
                                                 
1.5  years.151  This  is  why,  since  June  2016,  IOM  ‘service  centres’,  located  in  close 
proximity,  have  provided  individual  assistance  in  purpose-built  facilities  to  alleviate 
pressure  on  German  Consular  Offices  (in  Turkey,  Iraq  and  Lebanon),  accelerating 
processing  times  and  releasing  German  authorities  of  application-preparation  and  pre-
departure orientation tasks, allowing the programme to run smoothly. 152 

3.1.4 Humanitarian Corridors 

Italy  and  France  have  experimented  with  humanitarian  visas,  based  on  the  LTV 
provisions  of  the  CCV  or  on  domestic  long-term  visas  rules,  in  the  form  of 
‘humanitarian  corridors’. 153  As  the  map  below  illustrates,  up  to  14  other  EU  countries 
have had similar schemes in the past.154   

Table 4: PEPs Map. European Parliament, IPOL Study, Humanitarian visas: option or obligation? 
(Sept. 2014), p. 49 

In Italy, a coalition of several religious groups, including the Community of Sant’Egidio, 
the  Federation  of  Evangelical  Churches  (FCEI),  and  the  Waldensian  Board,  signed  a 
Memorandum  of  Understanding  with  the  Italian  Ministries  of  Interior  and  Foreign 
Affairs in December 2015 for a 2-year pilot programme, ensuring safe access to protection 
for 1,000 cases—in addition to the parallel resettlement scheme of the Italian government. 
The  rhythm  of  implementation  has  been  swift,  with  almost  90%  of  the  quota  filled  by 

151 Ibid., p. 28 and 29.  
152  German  Federal  Foreign  Office, 
<http://germany.iom.int/sites/default/files/FAP/FAP_Infosheet_ENGLISH_2017-04-04.pdf>. 
153 ICMC (n 150), p. 17-23. 
154 Iben Jensen (n 8), p. 41-49. 

IOM’s  Family  Assistance  Programme, 

4  April 

2017, 

58 

 
 
 
 
 
                                                 
August 2017.155  

Candidates are Syrian refugees coming from Lebanon and Morocco. They are identified 
on  a  prima  facie  basis  and  referred  by  the  sponsors’  local  networks  considering  special 
vulnerability, 
‘victims  of 
in  consultation  with  UNHCR—targeting,  especially, 
persecution,  torture  and  violence,  as  well  as  families  with  children,  elderly  people,  sick 
people,  persons  with  disabilities’.156  But  the  project  does  not  distinguish  between 
refugees  and  others.  It  rather  focuses  on  ‘individual  cases  determined  by  personal 
situation,  age  and  health  status  which  are  not  a  priority  in  the  Geneva  Convention’.157 
Candidates are interviewed and after an (unspecified) screening process by the Consular 
authorities,  a  LTV  visa  is  extended  on  ‘humanitarian  grounds’  for  entry,  for  the  sole 
purpose  of  lodging  an  asylum  application  in  Italy  immediately  upon  arrival.  And,  thus 
far, all cases have qualified for international protection following expedited procedures. 
Yet,  costs  relating  to  accommodation,  subsistence,  and  access  to  services  pertaining  to 
refugee  and  subsidiary  protection  status  have  been  covered  by  the  sponsoring 
organisations  for  an  initial  period  of  up  to  two  years  after  recognition—thus  deviating 
from the normal Qualification Directive arrangements. Each organisation has developed 
its own approach according to individual capacities, which has led to uncertainly as for 
the quality and duration of settlement assistance in individual cases.158 Nevertheless, the 
overall  assessment  by  participating  organisations  has  been  very  positive  and  a  new 
Memorandum has been signed in February 2017 for an extra 500 places until the end of 
2018—this time targeting Eritrean, Somali and Sudanese refugees in Ethiopia and hence 
expanding the initial focus on Syrian exiles.159  

In March 2017, France followed Italy’s example and opened a corridor from Lebanon for 
500 Syrian and Iraqi refugees until the end of 2018. The Memorandum was signed by five 
promoting organizations, including the St. Egidio Community, the Protestant Federation 
of  France,  the  French  Bishops’  Conference,  Entraide  Protestante  and  Secours  Catholique. 160 
The  scheme  is  not  based  on  the  LTV  provisions  of  the  CCV,  but  on  domestic  long-stay 
visa  regulations,  whereby  the  candidate  is  delivered  a  ‘visa  pour  asile’  and  granted 
permission to travel to France to apply for asylum on arrival. A prior Humanitarian Visa 
programme,  running  from  2012  until  2016,  allowed  for  the  self-referral,  mostly  via 

Refugees, 

Corridors 

(undated) 

Sant’Egidio 

Humanitarian 

‘Humanitarian  Corridors  are  Saving  Lives’, 

155 ICMC (n 150),  p. 17. 
156 
for 
<http://archive.santegidio.org/pageID/11676/langID/en/Humanitarian-Corridors-for-refugees.html>.   
157  Lyneham, 
Info  Migrants,  10  November  2017 
<http://www.infomigrants.net/en/post/6020/humanitarian-corridors-are-saving-lives>.  See  also  Mallardo, 
‘Humanitarian  Corridors:  A  Tool  to  Respond  to  Refugees’  Crises’,  Border  Criminologies,  3  May  2017 
<https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-
criminologies/blog/2017/05/humanitarian>.  
158 ICMC (n 150), p. 20. 
159  First  African 
<http://www.infomigrants.net/en/post/6338/first-african-refugees-to-italy-via-humanitarian-
corridors?utm_source=ECRE+Newsletters&utm_campaign=ff8195c031-
EMAIL_CAMPAIGN_2018_02_23&utm_medium=email&utm_term=0_3ec9497afd-ff8195c031-420552073>. 
160  Humanitarian  corridors:  France  joins  Italy;  Hollande  and  Giro,  ‘step  forward  against  globalization  of 
indifference’,  ONU  Italia,  14  March  2017  <http://www.onuitalia.com/2017/03/14/humanitarian-corridors-
france-joins-italy-hollande-giro-step-forward-globalization-indifference/>. 

corridors,  ANSA,  30  November  2017 

Italy  via  humanitarian 

refugees 

to 

59 

 
 
                                                 
relatives, of 8,900 Syrians and Iraqis. But this has now been discontinued.161   

Similarly  to  the  Italian  scheme,  the  sponsor  assumes  a  number  of  responsibilities  for 
travel, accommodation, settlement, and integration support for one year. But, unlike the 
Italian experience, the programme can also accommodate applications from persons with 
family or other links to France. 162 The sponsor carries out scoping interviews, submits a 
list of candidates and a complete visa application for each of them to the French consular 
authorities  in  Beirut.  Embassy  personnel,  in  consultation  with  the  Ministry  of  Interior, 
undertake a security check and then issue a Visa D within two months. Candidates have 
15  days  to  apply  for  asylum  after  arrival  and  asylum  services  3  months  to  reach  a 
decision.  In  the  meantime,  applicants  do  not  have  the  right  to  work.  Care,  throughout 
this period, is provided by the sponsor. 163  

A variant from the Italian and French examples has been tried out at EU level on a very 
small  scale.  Back  in  2002, a  CFSP  Common  Position  was  adopted—drawing  on  former 
second  pillar  provisions,  instead  of  those  regarding  JHA—concerning  the  transfer  and 
temporary  reception  of  13  Palestinian  nationals  evacuated  from  the  Church  of  the 
Nativity  of  Bethlehem,  following  an  agreement  with  the  Government  of  Israel,  the 
Palestinian Authority, and other parties. 164 The initiative was taken ‘on a temporary basis 
fell, 
and  exclusively 
nonetheless,  within  the  sole  competence  of  each  receiving  Member  States—comprising 
Belgium,  Greece,  Spain,  Ireland  and  Portugal—deciding  on  a  sovereign  basis.166  The 
purpose of the Common Position was to ensure ‘a common approach at the level of the 
European  Union’,  to  ensure  ‘comparable  treatment’  and  cater  for  common  ‘security 
concerns’.167  

[undefined]  humanitarian  reasons’.165  Entry  decisions 

for 

With  that  in  mind,  participating  Member  States  ‘shall’  issue  a  national  permit  allowing 
entry into their territory and stay for up to 30 months—a period that has been renewed 
several times; the latest in  April 2016 for a further 24 months  starting from 31st January 
2016.168 That does not mean that the issuance of these permits may not be ‘submitted to 
specific  conditions  to  be  accepted  by  the  Palestinians  concerned  before  their  arrival’,  as 
each  Member  State  sees  fit.169  In  any  event,  Member  States  shall  ‘take  account  of  the 
public  order  and  security  concerns  of  other  Member  States’,  despite  that  the  permit’s 

161 ICMC (n 150), p. 21. 
162 Ibid., p. 22. 
163 Ibid., p. 23. 
164  Council  Common  Position  of  21  May  2002  concerning  the  temporary  reception  by  Member  States  of  the 
European Union of certain Palestinians, 2002/400/CFSP, [2002] OJ L 138/33 (as amended by Council Common 
Position  2003/366/CFSP,  [2003]  OJ  L  124/51,  and  Council  Common  Position  2004/493/CFSP,  [2004]  OJ  L 
181/24).  However,  note  that  the  practice  of  regulating  migration  issues  via  CFSP  instruments  is  legally 
doubtful.  See  Martenczuk,  ‘Policy  Migration  and  EU  External  Relations’,  in  Azoulai  and  de  Vries  (eds), 
Migration and EU Law and Policy (OUP, 2014) 69, at 100.  
165 Common Position 2002/400/CFSP, Recital 3, Preamble, and Art 1. 
166 Ibid., Recital 4, Preamble, and Art 2. 
167 Ibid., Recitals 4-6, Preamble. 
168 Ibid., Art 3, first indent, and Council Decision (CFSP) 2016/608 of 18 April 2016 concerning the temporary 
reception by Member States of the European Union of certain Palestinians, [2016] OJ L 104/18, Preamble and 
Art 1. 
169 Ibid., Art 3, second indent. 

60 

 
 
 
                                                 
validity  ‘shall  be  limited  to  the  territory  of  the  Member  State  concerned’ 170—which  is 
reminiscent  of  the  Italian  practice  based  on  the  current  LTV  provisions  of  the  CCV, 
although  using  longer-term  permits,  as  in  the  French  example.  Upon  arrival,  receiving 
countries  must  ensure  ‘the  personal  security  of  the  Palestinians  received’,  while, 
regarding  accommodation  and  integration  matters,  each  can  apply  their  respective 
national provisions—instead of the Qualification Directive regime. 171 

A  further  experience  with  humanitarian  corridors  at  EU  level  will  be  the  future 
Voluntary Humanitarian Admission Scheme (VHAS), adopted for the implementation 
of the EU-Turkey Statement arrangements.172 The system aims not only to provide safe 
access to Syrian refugees to international protection in a Member State and demonstrate 
solidarity,  but  also  to  reduce  the  number  of  irregular  crossings  from  Turkey.173  In  fact, 
‘the  number  of  persons  to  be  admitted…[will]  be  determined  regularly  taking  into 
account  [inter  alia]…the  sustainable  reduction  of  numbers  of  persons  irregularly 
crossing…into  the  European  Union’. 174  Admission  is  thus  subordinated  to  Turkey’s 
success in halting unwanted arrivals, rather than premised on the candidates’ protection 
needs—actually,  the  document  includes  a  section  on  the  ‘prevention  of  secondary 
movements’  that  corroborates  this  approach,  making  pre-departure  orientation  and 
support targeted to informing candidates ‘in particular’ of ‘the consequences of onward 
movement’. 175 

If  such  is  the  case—however  the  Member  States  may  come  to  reach  that  ‘common 
conclusion’,176 the system is to be deployed, based on a double-referral process by Turkey 
and UNHCR and only with regard to displaced persons ‘who have been registered by the 
Turkish authorities prior to 29 November 2015’—which substantially reduces the pool of 
potential beneficiaries.177 The end result should be a grant of subsidiary protection—not 
refugee  status—or  an  ‘equivalent  temporary  status’,  which  the  Commission  fails  to 
define,  with  a  minimum  duration  of  one  year.178  Considering  that  participation  in  the 
scheme  is  strictly  voluntary,  it  is  unclear  why  participating  countries  ‘should  take  into 
account…absorption,  reception  and  integration  capacities,  the  size  of  the  population, 
total  GDP,  past  asylum  efforts,  and  the  unemployment  rate’  when  accepting 
applicants179—a  distribution  key  only  makes  sense  in  cases  where  pre-defined, 
compulsory quotas are at play.  

170 Ibid., Recital 6, Preamble, and Art 3, second indent. 
171 Ibid., Arts 4 and 6. 
172 The scheme was proposed in 2015, but the Commission has recently spoken of it as a ‘future’ mechanism, yet 
to  be  implemented  on  the  ground.  See  Commission  Recommendation  of  15  December  2015  for  a  Voluntary 
humanitarian  admission  scheme  with  Turkey,  C(2015)  9490;  and  Commission  Recommendation  of  27 
September  2017  on  Enhancing  legal  pathways  for  persons  in  need  of  international  protection,  C(2017)  6504, 
Recital 14. 
173 Ibid., Recitals 3 and 6, Preamble. 
174 Ibid., Recital 10, Preamble, and para. 3. 
175 Ibid., paras 12-13. 
176 Ibid., para. 6. 
177 Ibid., para. 2. 
178 Ibid. and para. 11. 
179 Ibid., para. 4. 

61 

 
 
 
                                                 
The Commission proposes a ‘standardised’ admission procedure  with several elements, 
including 
identity  and  registration  checks,  security  and  medical  screenings,  a 
vulnerability  evaluation  ‘according  to  UNHCR  standards’,  an  assessment  of  possible 
family  links  (limited  to  ‘the  participating  States’,  instead  of  the  entire  EU),  alongside  a 
‘preliminary  assessment  of  the  reasons  for  fleeing  from  Syria’,  rather  than  a  full  status 
determination  process.  Candidates  can  also  be  excluded  on  the  basis  of  ‘reasons  for 
exclusion  from  international  protection’. 180  The  process  should  be  run  through  a 
‘collaborative  effort  of  the  participating  Member  States,  Turkey,  UNHCR  and  EASO’, 
who  should  adopt  standardised  operating  procedures—in  consultation  with  the 
Commission  and  IOM. 181  Nevertheless,  the  final  decision,  to  be  adopted  within  six 
months, rests solely (and without appeal) with the Member States.182 

To  foster  cooperation  between  the  authorities  of  participating  Member  States,  the 
Commission  also  suggests  that  ‘common  processing  centres  and/or  mobile  teams’  be 
developed,  ‘where  staff  of  one  participating  State  is  authorised  to  represent  another 
participating State for the purpose of conducting whole or part of the selection process on 
behalf of that other State’. The idea is that this takes place ‘either at the representation or 
in  the  province  where  the  admission  candidate  is  registered’.183  But  the  procedures  to 
follow,  the  regulatory  framework  applicable  (whether  the  CCV  or  otherwise),  and  any 
good administration and effective remedy guarantees are not specified. 

3.2 Overall assessment 

PEP experience in the EU, at supranational and domestic level, is varied and extensive. 
The numbers, in some cases, are symbolic, but there is no reason why they could not be 
upscaled,  especially  if  a  EU-wide  instrument  is  adopted.  This  is  precisely  another 
drawback  of  practices  so  far;  they  are  all  founded  on  the  sovereign  discretion  of  the 
Member State concerned, rather than on an understanding that recognises the legal force 
individuals,  as  Chapter  4  elucidates.  Equally,  the 
of  the  protection  rights  of 
predominance  of  resettlement  and  resettlement-inspired  sponsorship 
initiatives 
disregard  the  fact  that  these  programmes  provide  secondary  channels  to  access 
protection to those who have already been recognised as refugees, failing thus to provide 
a primary route for those whose status has yet to be formally established. They cater for 
specific  categories  of  vulnerable  refugees  and  as  of  favour  or  good  will;  not  for  the 
general class of asylum seekers holding a right to protection from persecution and serious 
harm. 

Other  challenges  concern  the  long  processing  times  taken  by  some  schemes,  the 
excessive  selectivity  of  qualification  criteria,  and  accessibility  issues––in  particular 
regarding community and private sponsorship programmes, which entail the transfer of 

180 Ibid., para. 7. 
181 Ibid., para. 8. 
182 Ibid., paras 9 and 10. 
183 Ibid., para. 9. 

62 

 
 
 
 
                                                 
costs to private actors. Although this type of initiative may ensure better integration and 
acceptance  of  beneficiaries  within  local  receiving  communities,  they  require  an  amount 
of resources and expertise that most individuals and private organisations lack, thereby 
further  obstructing  access,  unduly  outsourcing  responsibility  to  non-State  actors,  and 
exacerbating  the  risk  of  privatisation  of  protection.  The  publicity  and  transparency  of 
these  initiatives  should  also  improve  to  enhance  predictability  and  legal  certainty, 
helping applicants and sponsors manage expectations and develop trust in the system.  

On  the  positive  side  of  the  balance,  all  programmes  (in  EU  Member  States)  have  been 
developed with the principles of additionality and complementarity in mind. They do 
not intend to provide exclusive avenues of access to protection, but to offer alternatives to 
‘spontaneous’ arrivals other than via smuggling and trafficking routes. The only initiative 
that  openly  links  humanitarian  admission  to  irregular  migration  reduction  aims,  using 
the latter as a means to enhance control capacity, is the yet-to-be implemented Voluntary 
Humanitarian  Admission  Scheme  (VHAS)  from  Turkey.  The  unsuitability  (legally  and 
ethically) of trading one for the other is to be noted and rejected in the development of a 
comprehensive  humanitarian  visa  scheme.  Article  1  CFR,  encapsulating  the  ‘inviolable’ 
right to human dignity, calls for an alternative approach. Compliance with fundamental 
rights under EU law, as the next chapter expounds, is not optional or dependent on the 
achievement of desirable policy outcomes. The CFR must be observed as a matter of law, 
and  the  entitlements  thereunder  of  TCNs  honoured  on  their  own  right  and  without 
discrimination. 184   

184 See further Costello, The Human Rights of Migrants in European Law (OUP, 2015). 

63 

 
 
                                                 
CHAPTER 4. THE PLACE OF FUNDAMENTAL RIGHTS:  

Are Humanitarian Visas a Matter of Discretion? 

KEY FINDINGS 

•  Even  if  current  CCV  provisions  have  been  held  to  provide  insufficient  basis  for  the 
mandatory issuance of humanitarian visas, it is clear that asylum seekers are covered 
by  relevant  treaty  provisions  regarding  those  crossing  external  borders  (Article 
77(2) TFEU). This being the case, relevant fundamental rights standards need to be 
complied with in the development and implementation of EU law in the area. 

•  Fundamental rights penetrate the EU legal order as primary law (Article 6 TEU and 
Charter of Fundamental Rights), including qua founding values (Article 2 TEU), and 
at  secondary  law  level  (Article  4  SBC  and  Recital  29  CCV).  They  are  all-pervasive 
and govern the development of the AFSJ at large (Article 67 TFEU), including border 
control and visa policy, as well as the construction of a Common European Asylum 
System (CEAS) in particular (Article 78 TFEU).  

•  The  Charter  of  Fundamental  Rights  (CFR)  applies  whenever  a  situation  falls  to  be 
governed by EU law (Fransson). Any time the EU or the Member States act within 
the scope of EU law (Article 51 CFR), the Charter becomes applicable. 

•  This  includes  the  protection  against  refoulement  as  per  Articles  4  and  19(2)  CFR, 
which  consolidate  the  substance  of  Article  3  ECHR  as  interpreted  by  the  European 
Court of Human Rights. As a result, any measure, including a rejection of entry or a 
visa refusal  under Schengen rules, ‘the effect  of which is to prevent  migrants from 
reaching  the  borders  of  the  [Member]  State  [concerned]’  may  amount  to  refoulement 
(Hirsi,  para.  180)  and,  if  it  exposes  the  applicant  to  persecution  or  serious  harm, 
must be forbidden. 

•  What is  more, Member States, when confronting  situations representing a risk  of ill 
treatment  are  obliged  to  take  positive  action  to  avert  it  (Căldăraru),  which,  in  the 
concrete  case,  if  no  other  practicable  alternatives  are  available,  may  require  the 
delivery of a visa. And, in the absence of harmonised rules to this effect, Member 
States must lay down the pertinent procedure (Article 4(3) and 19 TEU).  

64 

 
 
 
 
 
 
 
 
 
 
 
 
4.1 Fundamental rights and access to protection in the EU 

The  consideration  of  the  regulation  of  access  to  international  protection  in  the  EU  as  a 
matter  of  Member  State  discretion,  as  Chapter  3  has  illustrated,  derives  from  the 
prevailing  understanding  that  visas  for  asylum  seeking  purposes  constitute  a  situation 
which is ‘not…governed by EU law’.185 This is the conclusion arrived at by the CJEU in X 
and X. It is the result of considering the ‘purpose of [such] application’—so as to reach the 
external  borders  of  the  Member  States  to  subsequently  lodge  a  separate  claim  for 
international protection—as ‘the defining feature of the situation’, thereby implying that, 
because that purpose differs from the key (policy) objective of the Code—which is ‘that of 
[establishing  the  procedures  and  criteria  for  issuing  a]  short-term  visa’—the  situation 
becomes extraneous to the EU legal order.186  

However,  this  is  a  consequentialist  reasoning,  justifying  exclusion  from  the  scope  of 
application  of  EU  law,  based  on  the  projected  (and  presumably  undesirable)  results  of 
inclusion  (from  a  policy,  rather  than  legal,  perspective).  In  fact,  the  Court  posits  that 
recognising the situation of asylum seekers, intending to approach Schengen territory by 
means  of  a  visa,  as  falling  within  the  scope  of  application  of  EU  law,  ‘would  be 
tantamount  to  allowing  third-country  nationals  to  lodge  applications  for  visas  on  the 
basis of the Visa Code in order to obtain international protection in the Member State of 
their  choice’.  In  the  eyes  of  the  Court,  this  is  something  to  be  avoided,  since  it  ‘would 
[apparently]  undermine  the  general  structure  of  the  [Dublin]  system’.187  Yet,  it  is  the 
Dublin  Regulation  that  includes,  among  the  criteria  for  apportioning  responsibility  for 
the  examination  of  asylum  applications  between  Member  States,  the  ‘possession  of  a 
valid  visa  [presumably  including  those  issued  following  CCV  rules]’.188  As  a  norm, 
‘[w]here the applicant is in possession of a valid visa, the Member State which issued the 
visa shall be responsible for examining the application for international protection’, unless 
other preceding criteria in the list of Chapter III DR are to be applied first.189 So, this very 
situation  is  already  part  and  parcel  of  the  current  Dublin  provisions  for  allocation  of 
responsibility in the present state of EU law. It does not add anything new that may upset 
the current Dublin order. 

Moreover,  such  a  reading  disregards  the  full  implications  of  the  fact  that  a  visa 
application  and  an  application  for  international  protection  are  two  distinct  procedures 
under EU law. It neglects that ‘applications for visas…[even if] with a view to applying 
for asylum…thereafter’, are independent.190 Each application is subject to specific criteria 

185 X and X (n 11), para. 45. 
186 Ibid., para. 47. 
187 Ibid., para. 48. 
188  Art  12(2),  Regulation  (EU)  No  604/2013  of  26  June  2013  establishing  the  criteria  and  mechanisms  for 
determining the Member State responsible for examining an application for international protection lodged in 
one of the Member States by a third-country national or a stateless person (recast), [2013] OJ L180/31 (‘Dublin 
Regulation’ / ‘DR’). 
189 According to Art 7(1) DR, ‘[t]he criteria for determining the Member State responsible shall be applied in the 
order in which they are set out in this Chapter [i.e. Chapter III DR]’. 
190 X and X (n 11), para. 42 (emphasis added). 

65 

 
 
 
                                                 
and  separate  rules,  and  is  not  part  of  the  same  legal  action.  The  asylum  seeking  visa 
applicant  under  the  CCV  simply  aspires  to  ‘reach  the  territory  of  the  [Member  State] 
which  issued  the  visa’.191  His/her  subsequent  stay,  upon  lodging  an  asylum  claim,  will 
pass to be governed by the asylum acquis. And it will be by virtue of Article 9 APD that 
‘applicants shall [then] be allowed to remain in the Member State, for the sole purpose of 
the procedure, until the determining authority has made a decision’. 192 So, what he/she 
needs, while still abroad, is not ‘long-term visas and residence permits…on humanitarian 
grounds’, which have not been adopted ‘to date’ by the EU legislature. 193 This also differs 
from  ‘requests  for  diplomatic  or  territorial  asylum  submitted  to  representations  of 
Member States’, which are excluded from the current APD. 194 What the asylum seeking 
visa applicant requires is a means of reaching the external borders of the Member States, 
like  other  third-country  nationals  subject  to  the  condition  of  being  ‘in  possession  of  a 
valid visa, if required pursuant to [the Visa List Regulation]’, 195 so as to be able to cross 
into Schengen territory legally and safely to lodge an asylum application. 196  

As  clarified  in  Chapter  2  above,  there  is  no  legal  or  rational  basis  to  exclude  asylum 
seekers from the generic group of ‘third country nationals’ to whom Schengen visas are 
addressed,  and  even  less  so  from  the  category  of  ‘persons  crossing  [or  showing  ‘an 
intention  to  cross’]  the  external  borders  of  the  Member  States  of  the  Union’  to  whom 
admission  criteria  apply.197  The  fact  that  these  rules  are  to  be  implemented  ‘without 
prejudice to…the rights of refugees and persons requesting international protection’ and 
‘in  full  compliance  with…fundamental  rights’,  including  under  the  CFR,  the  Geneva 
Convention,  and  observing  ‘obligations  [specifically]  related  to  access  to  international 
protection’ substantiates this point. 198  

Therefore, the conclusion, in X and X, that the Visa Code ‘must be interpreted as meaning 
that  an  application  for  a  visa…on  the  basis  of  Article  25 [CCV]…does  not  apply  within 
the  scope  of  that  code’  is  puzzling.199  The  presence  of  Article  25  CCV  within  the  Code, 
allowing  Member  States  to  derogate  from  general  admission  conditions  to  issue  LTV 
visas,  points  in  the  opposite  direction.  It  is  the  very  CCV  that  includes  Article  25  and 
‘exceptionally’  and 
its  application—to  be 
regulates 
‘when…consider[ed]  necessary’  by  the  Member  State  concerned.  The  ‘discretionary 
power’  it  contemplates,  as  the  CJEU  concluded  in  N.S.  in  the  context  of  the  Dublin 
system,  ‘forms  part  of  the  mechanisms  [provided  for  in  the  CCV]  for  [issuing  visas] 
under that regulation and, therefore…a Member State which exercises that discretionary 

the  conditions  of 

issued 

191 Mutatis mutandis, Art 18 CISA. 
192 Such a change of circumstances may also occur, for instance, when someone arrives irregularly or overstays a 
visa and then marries a EU national, thus becoming a family member whose rights are then to be determined 
under the EU Citizenship Directive (n 60). See, e.g. Case C-127/08 Metock ECLI:EU:C:2008:449.  
193 X and X (n 11), para. 44.  
194 Art 3(2) APD. 
195 Art 6(1)(b) SBC. 
196 Art 1, second indent, SBC. 
197 Art 1(2) CCV’; and Arts 1 and 2(10) SBC. 
198 Arts 3(b) and 4 SBC. 
199 X and X (n 11), para. 51. 

66 

 
 
                                                 
power must be considered as implementing EU law’.200 The issuance of LTV visas under 
Article  25  CCV  is  a  faculty  covered  by  the  express  provisions  of  the  Visa  Code.  As  a 
result, the situation it explicitly contemplates cannot be said ‘not [to] fall within the scope 
of  that  Code’.201  If  Article  25  applies,  that  perforce  implies  that  the  CCV,  wherein  the 
provision is contained, governs the situation at hand.  

And, even if the interpretation excluding asylum seeking visa applicants from the scope 
of  application  of  the  CCV  was  retained,  that  cannot  alter  the  fact  that  they  remain 
covered qua ‘persons crossing [or showing ‘an intention to cross’] the external borders of 
the Member States of the Union’202 by the Schengen Borders Code and qua ‘[n]ationals of 
third countries…[whom] shall be required to be in possession of a visa when crossing the 
external borders of the Member States’ as per Annex I to the Visa List Regulation.203 They 
belong  to  the  group  of  ‘persons’  contemplated  in  Article  77(2)  TFEU,  subject  to  checks 
when  ‘crossing  external  borders’.  This  being  the  case,  it  ensues  that  fundamental  rights 
become  relevant  to  their  position,  since  ‘situations  cannot  exist  which  are  covered…by 
European Union law without…fundamental rights being applicable’. 204 

4.1.1 EU Founding Values 

‘[R]espect for human rights’ belongs to the set of values on which the ‘EU is founded’. 205 
Its  importance  is  all-pervasive.  It  forms  part  of  ‘its  spiritual  and  moral  heritage’  of  the 
organisation.206 

Fundamental  rights  not  only  govern  the  internal  dimension  of  EU  policies  and  actions, 
but  have  also  an  impact  on  their  external  effects,207  such  that  ‘[i]n  its  relations  with  the 
wider  world,  the  Union  shall  uphold  and  promote  its  values’.  In  particular,  ‘[i]t  shall 
contribute  to  the  protection  of  human  rights’. 208  As  Article  21  TEU  reiterates,  ‘[t]he 
Union’s  action  on  the  international  scene  shall  be  guided  by  the  principles  which  have 
inspired its own creation, development and enlargement, and which it seeks to advance 
in the wider world’, and this includes ‘the universality and indivisibility of human rights 
and fundamental freedoms’.  

To that end, ‘[t]he Union shall seek to develop relations and build partnerships with third 
countries,  and  international,  regional  or  global  organisations’  and  ‘shall  [also]  promote 
multilateral solutions to common problems’ in line with those values. 209 In parallel, ‘[t]he 
Union  shall  define  and  pursue  common  policies  and  actions,  and  shall  work  for  a  high 
degree of cooperation in all fields of international relations, in order to…consolidate and 

200 Joined Cases C-411/10 and C-493/10 NS & ME ECLI:EU:C:2011:865, para. 68. 
201 X and X (n 11), para. 44. 
202 Arts 1 and 2(10) SBC. 
203 Art 1(1) VLR 
204 Case C-617/10 Fransson ECLI:EU:C:2013:105, para. 21. See also NS & ME (n 200), paras 68-69. 
205 Art 2 TEU. 
206 Recital 2, Preamble, CFR. 
207 Art 21(3) TEU. 
208 Art 3(5) TEU. 
209 Art 21(1), second indent, TEU. 

67 

 
 
 
 
 
                                                 
support…human  rights’.210  And  it  ‘shall  [too]  ensure  consistency  between  the  different 
areas  of  its  external  action  and  between  these  and  its  [internal]  policies’.211  The 
observance  of  fundamental  rights  is,  thus,  omnipresent  in  everything  and  anything  the 
EU or the Member States do ‘when they are implementing Union law’.212 They constitute 
key standards of validity and legality of EU acts.213 

4.1.2 The AFSJ and the CEAS’ Aims 

Like  all  Union  policies,  the  Area  of  Freedom  Security  and  Justice  (AFSJ),  which  ‘[t]he 
Union shall offer its citizens’,214 also ‘places the individual at the heart of its activities’, 215 
and  must  hence  be  equally  built  ‘with  respect  for  fundamental  rights’.216  Fundamental 
rights  therefore  penetrate  ‘policies  on  border  checks,  asylum  and  immigration’,  as  a 
matter of EU primary law.217 

In  particular,  the  construction  of  the  CEAS  is  subordinate  to  compliance  with 
fundamental rights. Article 78 TFEU makes clear that the Union ‘shall develop a common 
policy  on  asylum…ensuring  compliance  with  the  principle  of  non-refoulement  [and]  in 
accordance with the Geneva Convention…and other relevant treaties’. 218 

These  are  the  general  parameters  governing  the  treatment  of  third-country  nationals  in 
need of international protection, in respect of whom ‘[t]he Union shall develop a common 
policy  on  asylum…with  a  view  to  offering  appropriate  status’,  in  accordance  with 
fundamental  rights.219  This  obligation  (established  in  ‘shall’  terms)  constitutes  the 
ultimate objective of the CEAS. 

4.1.3 The Charter for Fundamental Rights 

‘The applicability of EU law entails applicability of the fundamental rights guaranteed by 
the Charter’,220 which after the entry into force of the Lisbon Treaty ‘shall have the same 
legal value as the Treaties’.221 This is  what  the CJEU concluded in its  Fransson decision. 
The only threshold criterion for the application of the Charter relates to the ‘EU-relevant’ 
character of the situation at hand. If there is a connecting link making EU law relevant to 
the case, then the Charter provisions become applicable. There are no separate scopes of 
application  of  one  and  the  other.  If  a  specific  circumstance  falls  to  be  governed  by  EU 
law, that very fact triggers the action of the Charter of Fundamental Rights. 222  

210 Art 21(2)(b) TEU. 
211 Art 21(3), second indent, TEU. 
212 Art 51(1) CFR. 
213 Art 6 TEU and Art 263 TFEU. 
214 Art 3(2) TEU. 
215 Recital 2, Preamble, CFR. 
216 Art 67(1) TFEU. 
217 Heading of ch 2, Title V, TFEU. 
218 Art 78(1) TFEU. 
219 Ibid. 
220 Fransson (n 204), para. 21. 
221 Art 6(1) TEU. 
222  For  an  elaboration,  see  Moreno-Lax  and  Costello,  ‘The  Extraterritorial  Application  of  the  Charter:  From 

68 

 
 
 
 
 
 
                                                 
The  Explanations  to  the  Charter  make  this  clear,  when  they  establish  that  ‘[t]he  aim  of 
Article  51  [CFR]  is  to  determine  the  scope  of  the  Charter’,  and  that,  in  relation  to  the 
conduct  of  Member  States,  the  Charter  applies  ‘when  they  act  in  the  scope  of  Union 
law’.223  The  scope  of  the  Charter  is  the  same  of  EU  law.224  And,  as  specified  below, 
territoriality  is  not  determinative  in  this  connection—as  EU  visa  policy,  typically 
implemented from abroad, illustrates. 

The Charter includes several provisions with particular relevance to the issue of access to 
international  protection  in  the  EU.  The  most  relevant  of  all  is  the  principle  of  non-
refoulement, which is scrutinized in detail in the next section. 

4.2 The Prohibition of Refoulement 

The principle of non-refoulement forms part of the fundamental rights acquis as an absolute 
protection.225  The  substance  of  Article  3  ECHR  has  been  ‘absorbed’  within  the  EU  legal 
order in different ways. Non-refoulement forms part of the general principles of EU law. 226 
It  has  been  codified  in  primary  law,  in  Articles  4  and  19(2)  CFR.  And  it  has  equally 
entered the text of EU acts of secondary law regarding external borders.227 The principle 
thus penetrates the Union system all-pervasively—in line with its nature as a customary 
international law,228 if not a jus cogens norm. 229  

Focusing on its concrete manifestation as a rule of primary law, drawing on the Charter 
Explanations,  ‘[t]he  right  in  Article  4  [CFR]  is  the  right  guaranteed  by  Article  3  of  the 
ECHR’,  while  Article  19(2)  CFR  ‘incorporates  the  relevant  case-law  from  the  European 
Court  of  Human  Rights  regarding  Article  3  of  the  ECHR’.230  Articles  4  and  19(2)  CFR 
must, therefore, be read as including the substance of the protection enshrined in Article 
3 ECHR as interpreted by the Strasbourg Court—and, it is posited, also that of Article 33 

Territoriality  to  Facticity,  the  Effectiveness  Model’,  in  Peers  et  al.  (eds),  Commentary  on  the  EU  Charter  of 
Fundamental Rights (Hart, 2014) 1657. See also, Moreno-Lax, Accessing Asylum in Europe (OUP, 2017) ch 8.  
223  Explanations  relating  to  the CFR,  [2007] OJ  C  303/17,  p.  32.  Note that,  according  to  Art  6(1),  third  indent, 
TEU,  ‘the  Charter  shall  be  interpreted  in  accordance…with  due  regard  to  the  explanations  referred  to  in  the 
Charter’. 
224  Cf.  Case  C-64/16  Associação  Sindical  dos  Juízes  Portugueses  ECLI:EU:C:2018:117,  para.  29,  where  the  CJEU 
seems to distinguish certain ‘fields covered by Union law’, as per the wording of Article 19(1) TEU, ‘irrespective 
of whether the Member States are [considered to be] implementing Union law, within the meaning of Article 
51(1) of the Charter’. On the other hand, the Court refers to the right to an effective remedy in the CFR as being 
co-extensive to ‘[t]he principle of the effective judicial protection of individuals’ rights under EU law, referred 
to in the second subparagraph of Article 19(1) TEU’, which it considers to be ‘now reaffirmed by Article 47 of 
the Charter’ (para. 35). So, in light of this, and in the absence of any reference to Fransson (n 204) and its possible 
reversal, it would be too quick to conclude to a complete departure from that precedent.  
225 Case C-112/00 Schmidberger ECLI:EU:C:2003:333, para. 80. 
226 Case C-465/07Elgafaji ECLI:EU:C:2009:94, para. 28. 
227 Arts 3(b) and 4 SBC. 
228  Bethlehem  and  Lauterpacht,  ‘The  Scope  and  Content  of  the  Principle  of Non-Refoulement:  Opinion’,  in 
Feller,  Türk  and  Nicholson  (eds),  Refugee  Protection  in  International  Law:  UNHCR's  Global  Consultations  on 
International Protection (CUP, 2003) 87.  
229 Allain, ‘The jus cogens Nature of non-refoulement’ (2001) 13 IJRL 533.  
230 Charter Explanations, pp. 18 and 24. 

69 

 
 
 
 
 
                                                                                                                                      
of the Geneva Convention (GC) by virtue of its express mention in Articles 78 TFEU and 
18  CFR.  This  ‘cumulative  standards’  approach,231  understands  Charter  provisions  to 
‘reaffirm’ individual rights ‘as they result, in particular, from the constitutional traditions 
and international obligations common to the Member States’,232 including those flowing from 
the  ECHR  and  the  GC  taken  concurrently—this  is  also  the  interpretative  technique 
generally followed in EU asylum case law. 233 According to AG Trstenjak in her Opinion 
on N.S., ‘[e]ven though an  infringement of the Geneva Convention  or the ECHR…must 
be distinguished strictly, de jure, from any associated infringement of EU law, there is, as 
a  rule,  a  de  facto  parallel  in  such  a  case  between  the  infringement  of  the  Geneva 
Convention or the ECHR and the infringement of EU law’.234 As a result, Member States’ 
‘legitimate concern to foil the increasingly frequent attempts to circumvent immigration 
restrictions  must  not  deprive  asylum-seekers  of  the  protection  afforded  by  these 
conventions’.235  

4.2.1 Personal Scope of Application 

The restrictions concerning the personal scope of application attached to Article 33 GC 
are not directly transposable to Articles 4 and 19(2) CFR. 236 Unlike Article 33 GC, which 
contains  a  limitative  clause  in  paragraph  2,  excluding  from  non-refoulement  protection 
refugees in relation to whom ‘there are reasonable grounds for regarding as a danger to 
the security of the country in which [they are], or who, having been convicted by a final 
judgment  of  a  particularly  serious  crime,  constitute  a  danger  to  the  community  of  that 
country’, the prohibition contained in the Charter covers everyone without exception.  

Both the wording of Articles 4 and 19(2) CFR speak of ‘no one’ as the subject of protection 
against ill treatment; both generally and in the event of removal, expulsion or extradition. 

4.2.2 Territorial Scope of Application 

In relation to its territorial reach, the scope of Articles 4 and 19(2) CFR is the same as that 
of the Charter as a whole and depends solely on Article 51 CFR. The ECHR, and arguably 
also  the  GC,  too,  work  as  a  minimum  floor  of  protection  below  which  the  CFR  cannot 
descent. But they should not be taken to prevent the more extensive coverage that EU law 
can, and does, provide in several respects.237 ‘[T]he interpretation of [EU standards] must, 
therefore,  be  carried  out  independently,  although  with  due  regard  for  fundamental 
rights, as they are guaranteed under the ECHR [and the GC]’.238 

231 Moreno-Lax, Accessing Asylum in Europe (OUP, 2017) ch 7.  
232 Recital 5, Preamble, CFR (emphasis added).  
233 See, e.g., Case C-175/08 Abdulla ECLI:EU:C:2010:105, paras 51-53. 
234  Opinion  of  AG  Trstenjak  in  Joined  Cases  C-411/10  and  C-493/10  NS  &  ME,  22  September  2011, 
ECLI:EU:C:2011:611, para. 153. 
235  Mutatis  mutandis,  ECtHR,  Amuur  v.  France,  Appl.  19776/92,  25  June  1996,  para.  43  (emphasis  added); 
confirmed: M.S.S. v. Belgium and Greece, Appl. 30696/09, 21 January 2011, para. 216. 
236  Resisting  similarly  limitative,  automatic  transplants  from  international  humanitarian  law,  focusing  instead 
on the text, context, and purpose of EU law, see Case C-285/12 Diakité ECLI:EU:C:2014:39. 
237 Art 52(3) CFR. Concurring: Mengozzi (n 15), paras 97-101. 
238 Elgafaji (n 226), para. 28, regarding Art 15(c) QD in relation to 3 ECHR. 

70 

 
 
 
 
 
                                                 
The  incorporation  of  foreign,  unwritten  limitations  into  the  Charter  would  violate  the 
principles  of  legality  and  narrow  interpretation  of  exceptions  under  EU  law,239  and  go 
equally  against  the  autonomous  construction  of  EU  notions  as  per  the  independent 
requirements  of  the  system,  constraining  their  application  on  the  basis  of  restrictions 
imposed elsewhere and for purposes alien to the CFR—whose ultimate goal is explicitly 
to ‘strengthen the protection of fundamental rights’. 240 Hence, the temptation to interpret 
the  phrase  in  Article  52(3)  CFR,  providing  that  ‘the  meaning  and  scope  of  [CFR]  rights 
[which correspond to ECHR rights] shall be the same as those laid down by the [ECHR]’, 
as entailing the assimilation within Articles 4 and 19(2) CFR of the territorial constraints 
applicable to Article 3 ECHR, due to the separate Article 1 ECHR, should be resisted.  

The  opposite  would  negate  the  specific  nature  and  objectives  of  the  Charter  within  the 
(distinct)  EU  legal  order  and  break  the  coherence  governing  the  entire  system—
fractioning  the  territorial  scope  of  Charter  provisions  depending  on  exogenous 
conditions  originating in a different legal regime, so  that CFR rights drawing on ECHR 
rights  would  depend  on  Article  1  ECHR  to  define  their  scope  of  territorial  application, 
while the remit  of other CFR provisions would be determined by Article 51 CFR alone. 
This  would  contravene  the  explicit  terms  of  Article  51  CFR,  which,  as  its  title  clearly 
indicates, is the provision (lex specialis), within the Charter system, governing its (entire) 
‘field of application’. Constraining the territorial application of Articles 4 and 19(2) CFR 
to  Article  1  ECHR,  through  a  selective  interpretation  of  Article  52(3)  CFR  (which 
explicitly foresees that ‘this provision shall not prevent EU law providing more extensive 
protection’),  sidelining  the  literal  tenor  of  Article  51  CFR,  constitutes  a  contra  legem 
interpretation that is unsustainable under EU law. Paraphrasing the Strasbourg Court, to 
accept  this  and  ‘to  afford  [Articles  4  and  19(2)  CFR  in  line  with  Article  1  ECHR 
dispositions] a strictly territorial scope, would result in a discrepancy between the scope 
of  application  of  the  [Charter]  as  such  [as  governed  by  Article  51  CFR]  and  that  of 
[Articles  4  and  19(2)  CFR],  which  would  go  against  the  principle  [of  coherence]’, 
demanding that the Charter ‘be interpreted as a whole’.241 

A similar move was attempted in the context of the Bank Saderat Iran case, where the EU 
General  Court  refused  the  import  of  limitations  ensuing  from  Article  34  ECHR  in  the 
interpretation  of  CFR  provisions  (in  an  extraterritorial  case),  chiefly  on  the  ground  that 
‘Article 34 ECHR is a procedural provision which is not applicable to procedures before 
the  Courts  of  the  European  Union’.242  The  same  should  occur  regarding  the  import  of 
Article 1 ECHR constraints on Article 3 ECHR (and equivalent interpretations of Article 
33  GC)  when  appraising  visa-issuing  proceedings,  or  any  other  extraterritorial  EU 
measure, under the CFR.  

Otherwise,  if  the  CJEU  or  the  EU  legislature  decided  to  break  the  coherence  of  Charter 

239 Art 52(1) CFR. 
240 Recital 4, Preamble, CFR. 
241 ECtHR, Hirsi v. Italy, Appl. 27765/09, 23 February 2012, para. 178. 
242 Case T-494/10 Bank Saderat Iran ECLI:EU:T:2013:59, para. 36. 

71 

 
 
 
 
                                                 
provisions and accept a reduction of the territorial scope of application of Articles 4 and 
19(2)  CFR  due  to  ECHR  conditions,  it  would  still  be  confronted  with  the  fact  that  visa 
issuance,  as  chief  responsibility  of  consulates  in  other  countries,  gives  rise  to 
extraterritorial de jure jurisdiction under Article 1 ECHR. Indeed, ‘recognised instances of 
the extra-territorial exercise of jurisdiction by a State include cases involving the activities 
of  its  diplomatic  or  consular  agents  abroad…In  these  specific  situations,  customary 
international  law  and  treaty  provisions  have  recognised  the  extra-territorial  exercise  of 
jurisdiction  by  the  relevant  State’.243  Precisely,  according  to  Article  5(d)  Vienna 
Convention  on  Consular  Relations, 244  visa  issuance  cannot  but  be  considered  part  and 
parcel of those ‘activities’, being explicitly listed as consular functions exercised on behalf 
of the issuing State and, as such, as a manifestation of its sovereign right to control entry 
by  foreigners  into  territorial  domain.  Thus,  even  in  the  event  of  the  territorial  scope  of 
Articles 4 and 19(2) CFR being taken as subjected to Article 1 ECHR, the extraterritorial 
applicability  of EU  non-refoulement to the case of asylum seeking visa applicants abroad 
remains inescapable.  

4.2.3 Material Scope of Application 

Regarding the material scope of application of the prohibition, following the Strasbourg 
Court, any measure ‘the effect of which is to prevent migrants from reaching the borders 
of  the  State  [concerned]’  may  amount  to  refoulement,  if  it  exposes  the  applicant  to  ill 
treatment, and must therefore be forbidden.245 There is no need to prove direct causation, 
as  the  matter  is  one  of  prospective  harm;  foreseeability  of  a  ‘real  risk’  suffices  in  this 
regard.  

So, any action under EU law, such as entry rejection or a visa refusal, the consequence of 
which is to expose to ill treatment may well impinge upon Article 3 ECHR and Articles 4 
and  19(2)  CFR.  The  fact  that  the  applicant  may  have  (in  the  abstract)  a  possibility  to 
address  his/her  request  to  a  different  State  is  immaterial,  particularly  because  ‘this 
possibility becomes theoretical if no other country offering protection comparable to the 
protection they expect to find in the country where they are seeking asylum is inclined or 
prepared to take them in’246—as was the case in X and X.  

Regarding  the  possible  margin  of  appreciation  left  to  Member  States  to  assess  the 
circumstances  in  which  entry  refusal,  via  visa  rejection  or  other  extraterritorial  activity 
covered  by  EU  law,  may  lead  to  refoulement,  one  needs  to  consider  the  absolute  (non-
derogable and non-limitable) character of the prohibition. 247 Where there is a ‘real risk’ of 
exposing the applicant to irreversible harm, no discretion is left.248 

243 ECtHR, Bankovic, Appl. 52207/99, 12 December 2001, para. 73; confirmed: Al-Skeini v. UK, Appl. 55721/07, 7 
July 2011, para. 134. 
244 Vienna Convention on Consular Relations, [1963] 596 U.N.T.S. 261 (‘VCCR’).  
245 Hirsi (n 241), para. 180; confirmed: Sharifi v. Italy and Greece, Appl. 16643/09, 21 October 2014, paras 112 and 
115. 
246 Amuur (n 235), para. 48; confirmed: M.S.S. (n 235), para. 216. 
247 Schmidberger (n 225), para. 80. 
248 Concurring: Mengozzi (n 15), paras 121, 129, 131. 

72 

 
 
 
 
                                                 
As  a  rule,  the  exercise  of  discretionary  clauses  in  EU  instruments  is  subject  to  Member 
States’  obligations  under  the  Charter.  Thus,  before  rejecting  entry  or  refusing  a  visa, 
account  must  be  taken  of  the  consequences  under  Articles  4  and  19(2)  CFR.  If  the 
action/omission  of  the  Member  State  concerned  (via  entry  rejection,  visa  refusal  or 
anything  else)  leads  to  a  ‘real  risk’  of  exposing  the  applicant  to  ill  treatment,  the  option 
contemplated in Article 25 CCV should be understood to turn into an obligation, so as to 
avoid the risk from materialising.249 This remains the case even if Article 25 CCV didn’t 
exist. By necessity, by the very hierarchical relationship between EU primary law and EU 
secondary  law,250  the  application  of  EU  legislation  (be  it  the  Visa  Code,  the  Schengen 
Borders  Code,  or  the  provisions  of  the  Visa  List  Regulation)  is  subordinated  to 
compliance with Fundamental Rights.251 So, if there is no other practicable alternative to 
guarantee (in law and in practice) the effet utile of  non-refoulement, the issuance of a visa 
(qua permission to travel to the external borders of the Member State concerned) becomes 
compulsory (whether under the Visa Code, the Schengen Borders Code, or the Visa List 
Regulation), to avoid the infringement of Articles 4 and 19(2) CFR.252   

4.3 Overall assessment 

Any other construction different from the above would render ‘practically impossible or 
excessively  difficult  the  exercise  of  rights  conferred  by  [Union]  law’,253  contrary  to  the 
aspiration of the Charter to ‘guarantee real and effective…protection’.254 In such cases, a 
negative obligation not to refouler enjoins Member States to engage in positive action. As 
per Căldăraru, ‘it follows from the case-law of the ECtHR [incorporated into Article 19(2) 
CFR255]  that  Article  3  ECHR  [which  shares  ‘the  same  meaning’  as  Article  4  CFR256] 
imposes,  on  the  authorities  of  the  [Member]  State[s]…a  positive  obligation’  to  ensure 
compliance with the prohibition of ill-treatment in every case.257  

Thus, the fact that, under the current asylum acquis, there is no codified procedure—‘on 
the  basis  of  Article  78  TFEU’  or  otherwise—‘to  allow  third-country  nationals  to  submit 
applications for international protection to the representations of Member States that are 
within the territory of a third country’, 258 does not exclude the necessity of having to give 
effect  to  the  prohibition  of  non-refoulement  whenever  relevant.  One  should  not  be  too 
quick  to  assume  that  ‘[a]sylum  issues  that  the  Directives  did  not  aim  to  harmonise  will 
fall outside the scope of EU law and therefore remain out of the reach of EU fundamental 

249 Ibid., paras 132 ff. 
250 Art 6 TEU; Art 51 CFR. 
251 Case C-305/05 Ordre des Barreaux ECLI:EU:C:2007:383, para. 28. 
252 Concurring: Mengozzi (n 15), paras 3 and 163. 
253 Case C-432/05 Unibet ECLI:EU:C:2007:163, para. 43.  
254 Case 14/83 Von Colson ECLI:EU:C:1984:153, para. 23.  
255 Charter Explanations, p. 24. 
256 Charter Explanations, p. 18; and Art 52(3) CFR. 
257 Joined Cases C-404/15 and C-659/15 PPU Căldăraru ECLI:EU:C:2016:198, paras 90 and 94. 
258 X and X (n 11), para. 49. 

73 

 
 
 
 
                                                 
rights’.259 On the contrary, in the absence of harmonised rules on the matter, it is for the 
domestic  legal  system  of  each  Member  State  to  lay  down  pertinent  procedural  rules  to 
safeguard EU rights in accordance with the applicable standards. As established by  the 
CJEU,  ‘Member  States  are  to  provide  remedies  sufficient  to  ensure  effective  judicial 
protection for individual parties in the fields covered by EU law’.260  

This was explicitly recognised in the CEAS’ context. In H.N., concerning Ireland and the 
absence of a single procedure there, to which the APD would have otherwise applied to 
adjudicate refugee status and subsidiary protection claims, the CJEU asserted that ‘in the 
absence of EU rules concerning the procedural requirements attaching to the examination 
of  an  application  for  subsidiary  protection,  the  Member  States  remain  competent,  in 
accordance with the principle of procedural autonomy, to determine those requirements’. 
The key, in these circumstances, is  to ensure that  ‘fundamental rights are  observed and 
that EU [rights] remain fully effective’; to ensure that potential beneficiaries ‘are actually 
in  a  position  to  avail  themselves  of  the  rights  conferred  on  them’.  ‘[G]enuine  access’  to 
EU rights (both in law and in practice) must be guaranteed.261 

The Court’s conclusions relate to the principle of loyal cooperation, by virtue of which, all 
national authorities have a legal obligation not to deprive EU rights of their useful effect. 
According to Temple Lang, the principle entails both ‘a duty to help, and a duty not to 
obstruct’ the effectiveness of EU law.262 Article 4(3) TEU explicitly provides that ‘Member 
States  shall  take  any  appropriate  measure,  general  or  particular,  to  ensure  fulfilment  of 
the  obligations  arising  out  of  the  Treaties  or  resulting  from  the  acts  of  the  [EU] 
institutions’. The duty to ‘facilitate the achievement of the Union’s tasks and refrain from 
any  measure  which  could  jeopardise  the  attainment  of  the  Union’s  objectives’  is  also 
expressly stated. And the procedural dimension of this obligation is made explicit in the 
Treaties. Indeed, Article 19 TEU mandates ‘Member States to establish a system of legal 
remedies  and  procedures  which  ensure  respect  for  the  right  to  effective  judicial 
protection’ in relation to any of the rights recognised by EU law, and in any situation in 
which they may be at stake.263  

So, either Member States proceed alone, and provide for safeguards within their domestic 
legal  systems  that  guarantee  the  observance  of  the  prohibition  of  refoulement  in  the 
context of entry and visa decisions under Schengen rules, or harmonization is agreed at 
EU level to ensure the uniform implementation of the relevant norms, elaborating upon 
the ‘special provisions concerning the right of asylum and to international protection’ in 
the realm of border and pre-border controls’.264 Considering the EU-wide implications of 

259 Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014), p. 14; and Battjes, European 
Asylum Law and International Law (Martinus Nijhoff, 2006), p. 88. 
260 Associação Sindical dos Juízes Portugueses (n 224), para. 34. See also Case C-453/99 Courage ECLI:EU:C:2001:465, 
para. 29; and Case C-13/01 Safalero ECLI:EU:C:2003:447, para. 49.  
261 Case C-604/12 H.N. ECLI:EU:C:2014:302, paras 41-42 and 45. 
262  Temple  Lang,  ‘The  Principle  of  Effective  Protection  of  Community  Law  Rights’,  in  O’Keeffe  (ed.),  Judicial 
Review in European Union Law (Kluwer, 2000) 235, p. 252. 
263 Associação Sindical dos Juízes Portugueses (n 224), para. 34. For analysis, see Dougan, National Remedies Before the 
Court of Justice (Hart, 2004), pp. 4-5. 
264 Art 14(1) SBC. 

74 

 
 
 
                                                 
the matter and its repercussions for the integrity and uniform application of the relevant 
acquis,  the  following  two  chapters  examine  in  detail  the  scope  for  EU  action,  exploring 
possible legal bases, questions of subsidiarity and proportionality, and EU added value. 

75 

CHAPTER 5. THE SCOPE FOR EU HUMANITARIAN VISAS 

KEY FINDINGS 

•  LEGAL BASIS: There are several provisions in the TFEU, which may provide a legal 
basis for the adoption of a EU instrument on humanitarian visas, including: Article 
77(2)(a)  TFEU,  on  common  visas;  Article  77(2)(b)  TFEU,  on  controls  on  persons 
crossing the EU external borders; Article 78(2)(g) TFEU, calling on the EU legislator 
to  adopt  measures,  as  part  of  the  CEAS,  aimed  at  ‘managing  the  inflows  of  people 
applying  for  [international]  protection’;  and  Article  79(2)(a)  TFEU,  offering  a 
foundation for the adoption of long-term visas and residence permits to TCNs.  

•  OBJECTIVE: Considering the subject matter to regulate and the primary objective 
pursued, i.e. to establish the conditions for access to Schengen territory by TCNs  in 
need of a visa but  practically and  legally impeded to show  willingness or ability to 
return  to  the  country  of  provenance,  without  thereby  forfeiting  the  international 
protection to which they are entitled under EU law, Articles 77(2)(a)-(b) and 78(2)(g) 
TFEU appear to be the most suitable choices.  

•  The  AFSJ  is  a  field  of  shared  competence,  which  entails  consideration  of  the 

principles of subsidiarity and proportionality of any EU action to be adopted. 

•  PROBLEM: Since uncoordinated action upsets the well functioning of the common 
regime, drawing form experience during the 2011 Arab Spring and the 2015 ‘refugee 
crisis’, undermining the uniform application of the common entry rules and affecting 
the  mutual  trust  at  the  core  of  the  Schengen  and  Dublin  systems,  according  to  the 
principle  of  proportionality,  EU-level  intervention  is  required.  A  uniform 
understanding  of  the  rights/obligations  at  stake  is  essential  for  the  integrity  and 
effectiveness of the current acquis. 

•  EU  ADDED  VALUE:  Regarding  EU  added  value,  economies  of  scale  can  only  be 
achieved at EU level. EU intervention will allow for a reduction of current costs (in 
human  lives;  illicit  smuggling  and  trafficking  activity;  and  border  and  migration 
control  and  deterrence)  and  a  re-allocation  of  resources  to  ensure  compliance  with 
the obligation of developing an integrated management system of external borders in 
line with fundamental rights (Articles 67 and 77 TFEU). 

76 

 
 
 
 
 
 
 
 
 
 
 
5.1 Competence 

According to the explicit provision  of the Treaties, the constitution of an AFSJ is a field 
where  the  EU  ‘shall  share  competence  with  the  Member  States’.265  As  such,  conformity 
with the principles of subsidiarity and proportionality is required. This is the case in all 
areas ‘which do not fall within its exclusive competence’.266  

But, before matters regarding the  nature and scale of  EU intervention are established, a 
decision  must  be  taken  regarding  the  appropriate  ‘legal  basis’  sustaining  the  action. 
Linked to the issue of competence, is therefore the question of identifying its appropriate 
grounding within the Treaties. 

5.2 Possible Legal Bases for EU Action 

As  EU  law  stands,  there  is  sufficient  competence  under  the  Treaties  to  adopt  dedicated 
humanitarian visas legislation. The legislator can draw on Articles 77, 78 and/or 79 TFUE 
to this effect. The choice of the most appropriate legal basis must be made taking account 
of the nature of the predominant content and the objective pursued by the action at hand.  

Article 77(2)(b) TFEU is one of the legal bases underpinning both the Schengen Borders 
Code  as  well  as  the  CCV,267  which  objectives  are,  respectively,  to  lay  down  the  ‘rules 
governing  border  control  of  persons  crossing  [or  showing  ‘an  intention  to  cross’]  the 
external borders of the Member States of the Union’, 268 and to establish ‘the procedures 
and  conditions  for  issuing  visas…to  any  third-country  national  who  must  be  in 
possession of [one] when crossing the external borders of the Member States pursuant to 
[the  Visa  List  Regulation]’,269  which  includes  the  nationals  of  all  refugee-producing 
countries. The same clause in Article 77 TFEU could well be employed to elaborate on the 
‘special  provisions  concerning  the  right  of  asylum  and  to  international  protection’ 
foreseen  in  Article  14  SBC,  thus  allowing  for  the  adoption  of  uniform  arrangements  for 
the regulation of exceptions to the rules on refusal of entry (and pre-entry) contemplated 
by the Code. 

That  asylum  seekers  come  within  the  remit  of  ‘persons’  in  the  sense  of  the  SBC,  and 
under  the  terms  of  the  CCV,  alluding  to  ‘any  third-country  national  who  must  be  in 
possession of [one] when crossing the external borders of the Member States pursuant to 
[the Visa List Regulation]’, 270 has been elucidated in Chapter 4 above. This being the case, 
by logical extension, they should also be deemed to fall within the scope of ‘persons’ in 
the  wording  of  Article  77(2)(b)  TFEU,  calling  on  the  EU  legislature  to  ‘adopt  measures 

265 Art 4(1) and 4(2)(j) TFEU. 
266 Art 5(3) and 5(4) TEU. 
267 Opening statement, Preamble, SBC; and opening statement, Preamble, CCV. 
268 Art 1, second indent, and Art 2(10) SBC. 
269 Art 1(1)-(2) CCV. 
270 Ibid. 

77 

 
 
 
 
 
 
                                                 
concerning…the  checks  to  which  persons  crossing  external  borders  are  subject’.  As  a 
result,  Article  77(2)(b)  TFEU  can  be  used  as  legal  basis  for  the  adoption  of  a  dedicated 
humanitarian visas instrument within EU law.  

Article 77(2)(a) TFEU may also be appropriate. It provides for measures concerning ‘the 
common policy on visas’ and has  been used to buttress the  rules on local border traffic 
(LBT)  adopted  under  Regulation  1931/2006.271  The  regime  constitutes  an  autonomous 
system,  derogating  from  the  general  norms  governing  visas  and  border  controls  on 
persons, according to  both the CJEU and the EU legislator,272 easing frontier formalities 
for ‘border residents’  with  ‘legitimate reasons frequently to cross an external border’.273 
With this  in  mind,  ‘local border traffic permits’  may  be issued to those having  lawfully 
resided in a ‘border area’ – extending no more than 30 kilometres from the EU external 
border – for at least one year to cross into the Schengen zone repeatedly and stay for up 
to  three  consecutive  months  each  time. 274  Although,  there  is  strictly  no  unconditional 
entitlement to LBT permits, neither in the EU Charter nor in the LBT Regulation itself,275 
it is remarkable the CJEU considers access to them a matter of ‘right’. 276 Transposing this 
approach  to  prospective  refugees,  entitled  both  to  a  right  to  asylum  and  to  protection 
against  refoulement  under  Articles  4,  18,  and  19  CFR  that  they  should  be  capable  to 
exercise, the LBT regime could serve as inspiration for a Humanitarian Visa Regulation. 

Alternatively (or complementarily), Article 78(2)(g) TFEU can be said to provide specific 
grounding  for  such  an  instrument,  as  it  foresees  that:  the  Union  legislator  ‘shall  adopt’ 
measures for a Common European Asylum System including those aimed at ‘managing 
inflows of people applying for [international] protection’. This wording is particularly apt 
to accommodate the situation of asylum seekers attempting to reach the external borders 
of  the  Member  States  to  exercise  their  rights  under  EU  law.  And  it  does  not  affect  ‘the 
right  of  Member  States  to  determine  volumes  of  admission’,  as  per  Article  79(5)  TFEU, 
governing  immigration  policy,  since  the  persons  concerned  cannot  be  considered  as 
‘third-country  nationals  coming…in  order  to  seek  work’,  but  rather  as  ‘third-country 
national requiring international protection’, as per Article 78(1) TFEU. 

A  final  option  to  contemplate  is  the  one  suggested  by  the  CJEU  in  the  case  of  X  and  X. 
Therein the Court seems to propose that the right legal base is Article 79(2)(a) TFEU.277 
However,  that  provision  concerns  the  delivery  of  ‘long-term  visas  and  residence 
permits…on  humanitarian  grounds’,  presumably  separate  from  (already  existing) 
protection  obligations  under  the  Charter.  Indeed,  reliance  on  the  generic  immigration 
policy  clause,  in  the  presence  of  the  more  specific  provisions  regarding  border-crossing 

271 Regulation (EC) No 1931/2006 of 20 December 2006 laying down rules on local border traffic at the external 
land borders of the Member States and amending the provisions of the Schengen Convention [2006] OJ L 405/1 
(‘LBT’). 
272 Recital 3, Premable, LBT; and Case C-254/11 Shomodi ECLI:EU:C:2013:182, para. 24. 
273 Recital 4, Premable, LBT. 
274 Recital 5, Premable, and Art. 5 LBT. 
275 Art. 4 LBT, listing the issuing conditions. 
276 Shomodi (n 272), paras 25-26. 
277 X and X (n 11), para. 44. 

78 

 
 
 
                                                 
and asylum contained in Articles 77 and 78 TFEU, appears inadequate, especially because 
the  CJEU  seemingly  assumes  this  to  be  detached  from  any  form  of  legally-binding 
duty.278 Yet, as elaborated upon in Chapter 4, the EU prohibition of refoulement may well 
require Member States to engage in positive action to avoid exposure to ill treatment279—
including in the context of Schengen entry (and pre-entry) controls.280 

The  inadequacy  of  Article  79(2)(a)  TFEU  stems  also  from  the  fact  that,  as  explained  in 
Chapter 2, asylum seeking visa applicants only require a means that guarantees that they 
can reach the territory of the Member States safely and legally, so as to ‘thereafter’ lodge 
an  application  for  international  protection  under  the  APD.281  The  idea  is  not  ‘to  allow 
third-country  nationals  to  submit  applications  for  international  protection  to  the 
representations of Member States that are within the territory of a third country’.282 The 
facilitation  of  extraterritorial  processing  of  asylum  claims  is  not  the  ultimate  goal—this 
entails  very  considerable  risks  of  disconformity  with  human  rights  guarantees  and  has 
been  widely  criticized  by  specialists.  283  The  objective,  instead,  is  to  provide  a  means  to 
travel to access protection rights (already recognised) under EU law.  

Thus, it appears that Articles 77(2)(a) and (b) TFEU, whether alone or jointly with Article 
78(2)(g)  TFEU, are  the  most  suitable  bases,  especially  in  the  presence  of  wording  in  the 
SBC to the effect that, when taking decisions on the refusal of entry, Article 14(1) requires 
that this ‘shall be without prejudice to the application of special provisions concerning the 
right  of  asylum  and  to  international  protection’.  The  need  to  apply  the  Schengen  entry 
(and  pre-entry)  regime  in  line  with  the  EU  fundamental  rights  acquis,  as  stated  earlier, 
derives  from  the  very  hierarchy  of  sources  of  EU  law,  to  which  both  visa  and  border 
policy  are  subjected284—by  virtue  of  Articles  6  TEU  and  67  TFEU—a  fact  that  is  also 
unambiguously acknowledged in Article 4 SBC. 

5.3 Subsidiary and EU Added Value Questions  

Once  the  question  of  the  most  appropriate  legal  basis  has  been  clarified,  given  the  fact 
that  the  AFSJ  is  an  area  of  shared  competence  under  the  Treaty,  the  principles  of 
subsidiarity  and  proportionality,  as  per  Article  5  TEU,  become  relevant  to  establish  the 
appropriate  level  and  scale  of  any  action.  The  current  section  addresses  the  issue  of 
subsidiarity  and  EU  added  value,  while  the  concrete  proportionality  questions  will  be 
explored in detail in the next chapter, where specific policy options will be contemplated.  

278 Ibid., para. 49. 
279 Căldăraru (n 257), paras 90 and 94. 
280 Art 4 SBC; Recital 29, Preamble, CCV. 
281 X and X (n 11), para. 42. 
282 Ibid., para. 49. 
283  See,  e.g.  Red  Cross  EU  Office,  Europe  in  Crisis:  Facilitating  Access  to  International  Protection,  (Discarding) 
Offshore  Processing  and  Alternatives  for  the  Way  Ahead,  (February  2016)  <https://redcross.eu/positions-
publications/europe-in-crisis-facilitating-access-to-protection-discarding-offshore-processing-and-mapping-
alternatives-for-the-way-forward> and references therein. See also (n 354) below.  
284 To which the Preambles of both Codes allude: Recital 29, Preamble, CCV; and Recital 36, Preamble, SBC. 

79 

 
 
 
 
                                                 
5.3.1 The Necessity of EU-level Intervention 

Article 5(3) TEU encapsulates the principle of subsidiarity, which requires consideration 
of  any  factors  that  may  determine  the  better  level  of  action,  whether  the  domestic  or 
supranational, to comply with a particular Union objective. ‘[I]n areas which do not fall 
within its exclusive competence’, as is the case of the AFSJ, ‘the Union shall act only if and 
in  so  far  as  the  objectives  of  the  proposed  action  cannot  be  sufficiently  achieved  by  the 
Member States…but can rather, by reason of the scale or effects of the proposed action, be 
better achieved at Union level’. 

The  position  of  asylum  seekers  crossing  (or  showing  an  intention  to  cross285)  into  a  EU 
Member State’s territory—qua ‘persons’,286 in general, and ‘third-country national[s] who 
must be in possession of [one] when crossing the external borders of the Member States 
pursuant  to  [the  Visa  List  Regulation]’,287  in  particular—within  the  Schengen  scheme, 
reveals  the  cross-border  nature  of  their  situation,  disclosing  the  ‘EU-relevance’  of  the 
matter, and the need for EU-wide intervention to deal with it. 

Non-intervention at EU level is bound to undermine the well functioning of the Schengen 
cooperation  towards  an  ‘integrated  management  system  for  external  borders’. 288 
Different  standards  can,  and  have  proliferated,  in  relation  to  the  interpretation  of  the 
rules  applicable  to  the  entry  of  asylum  seekers,289  undermining  faith  in  the  Schengen 
system, both on the part of asylum seekers themselves and between the Member States. 
Recent examples illustrate how unilateral action by individual Member States unravels.  

In  the  aftermath  of  the  Arab  Spring,  a  diplomatic  standoff  occurred  between  Italy  and 
France.  France  accused  Italy  of  abusing  the  Schengen  system  through  the  issuance  of 
temporary residence permits and travel documents to migrants fleeing violence in North 
Africa  in  the  knowledge  that  many  would  subsequently  attempt  to  reach  France.  In 
response,  several  hundreds  were  blocked  in  Ventimiglia  and  pushed  back,  provoking  a 
crisis.290  Several  Member  States  supported  either  France’s  or  Italy’s  position,  whereas 
Denmark announced the unilateral reintroduction of custom controls at its borders with 
Germany and Sweden, supposedly to fight cross-border crime and tax evasion, but with 
a  direct  impact  in  practice  on  traffic  through  intra-EU  frontiers.291  Fifteen  of  the  27 

285 Art 2(10) SBC. 
286 Art 1, second indent, SBC. 
287 Art 1(1)-(2) CCV. 
288 Art 77(1)(c) TFEU. 
289  See,  extensively, the  reports  by  the  Fundamental  Rights Agency  of  the  EU  (FRA)  per  type of  border:  FRA, 
Fundamental  rights  at  land  borders:  findings  from  selected  European  Union  border  crossing  points  (November  2014); 
FRA,  Fundamental  rights  at  airports:  border  checks  at  five  international  airports  in  the  European  Union  (November 
2013) 
2014); 
<http://fra.europa.eu/en/project/2011/treatment-third-country-nationals-eus-external-borders-surveying-
border-checks-selected/publications>.   
290 For the analysis and further references see Carrera et al., A Race against Solidarity: The Schengen Regime and the 
Franco-Italian  Affair,  CEPS  Working  Papers,  April  2011  <http://www.ceps.eu/book/race-against-solidarity-
schengen-regime-and-franco-italian-affair>.   
291 See letter by J.M. Barroso to the Prime Minister of Denmark of 13 May 2011, warning him that if his country 

Fundamental 

Europe’s 

southern 

(March 

borders 

rights 

FRA, 

and 

sea 

at 

80 

 
 
 
 
 
                                                 
Member  States  backed  the  changes  proposed  by  the  European  Commission  for  a 
mechanism  ‘to  handle  situations  where  either  a  Member  State  is  not  fulfilling  its 
obligations to control its section  of the external border, or where a particular portion  of 
the  external  border  comes  under  unexpected  and  heavy  [migratory]  pressure  due  to 
external  events’.292  These  were  eventually  incorporated  in  the  Schengen  Code  recast, 
allowing for the coordinated and temporary reintroduction of internal border controls. 293 
So, it is the breakdown of the mutual trust on which the system is based what provoked 
the legislative reform.  

A similar situation ensued in 2015 due to the ‘refugee crisis’, leading to the closure of the 
so-called ‘Balkan route’,294 the introduction of the  ‘hotspot approach’, and the launch of 
the relocation scheme.295 As a consequence, the Dublin regime was brought into question 
and  partly  derogated  from,  kickstarting  the  process  of  revision  currently  underway.296 
For Greece, it has also meant the collapse of inter-State trust and the imposition of intra-
EU  border  controls  to  stop  secondary  movements  of  asylum  seekers  northwards,  with 
particularly deleterious effects for the country and the system as a whole. 297 

Besides  undermining  Schengen  and  Dublin,  the  absence  of  EU-level  regulation  on 
admission  for  asylum  purposes  has  also  resulted  in  the  unilateral  dismantlement  of 
existing PEPs at national level.298 ‘Pull factor’ or disproportionate pressure grounds have 
been  adduced  in  the  past  to  justify  the  action,  reinforcing  the  perception  that  ‘asylum 
seeking  visas’  are  always  optional,  disregarding  the  extraterritorial  protection-related 
obligations existing in current EU law, as disclosed in Chapter 4.  

Without a more homogenous policy approach, asylum seekers will continue to reach EU 
shores  through  irregular,  unsafe  means,  risking  their  lives  in  perilous  voyages, 
assimilated  to  the  category  of  ‘irregular  migrants’.299  Unless  alternative  pathways  are 

to 

of 

the 

the 

steps 

ensure 

respect 

relevant 

persisted in its intention to introduce controls in a ‘intensive and permanent way’ the Commission ‘will take all 
necessary 
law’ 
full 
<http://www.statewatch.org/news/2011/may/eu-com-letter-Barroso-Danish-pm.pdf>.  
292  Communication  on  Migration,  COM(2011)  248,  p.  8.  The  JHA  Council  ‘welcome[d]  the  Commission’s 
intention’ and ‘invite[d] it to present its proposal’ in Council Conclusions on Borders, Migration and Asylum, 9-
10 June 2011, para. 12.  
293  Arts  25-35  SBC.  For  commentary  see  Jones,  Commission  Communication  on  Migration:  Adapting  the  Schengen 
Border  Code,  Statewatch  Analysis,  May  2011  <http://www.statewatch.org/analyses/no-129-schengen-boder-
code.pdf>. 
294  For  details,  see  Žagar,  Kogovšek  Šalamon  and  Lukšič  Hacin  (eds),  The  Disaster  of  European  Refugee  Policy: 
Perspectives from the “Balkan Route” (Cambridge Scholars, 2018). 
295 Guild, Costello and Moreno-Lax (n 118). 
296 Dublin IV Proposal, COM(2016) 270. See also European Parliament, Report on the proposal for a regulation 
of  the  European  Parliament  and  of  the  Council  establishing  the  criteria  and  mechanisms  for  determining  the 
Member  State  responsible  for  examining  an  application  for  international  protection  lodged  in  one  of  the 
Member  States  by  a  third-country  national  or  a  stateless  person  (recast)  (COM(2016)0270  –  C8-0173/2016  – 
2016/0133(COD)), 6 November 2017. Cf. New Dublin: Reversing the Dynamics, Council doc. ST 7674 2018 INIT, 
9 April 2018. 
297  For  the  latest  list  of  Temporarily  reintroduced  border  controls,  see  <https://ec.europa.eu/home-
affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-
control/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf>.  For  analysis,  see  Guild,  Internal 
border controls in the Schengen area: Is Schengen crisis-proof?,  Study PE 571.35 (European Parliament, 2016). 
298 Iben Jensen (n 8), pp. 41 ff.  
299 (n 2).  

81 

 
 
 
                                                                                                                                      
opened, resettlement will, predictably, continue to be the only legal route to international 
protection  in  the  EU,  despite  that  it  does  not  provide  a  means  of  primary  access  to  a 
durable  solution,  but  caters  only  for  those  who  have  already  been  declared  to  be 
refugees.300 And the numbers will probably continue to be small. Economies of scale can 
only materialize in a EU-wide context. No single Member State, considering current rules 
for the allocation of responsibility for asylum applications, will take the risk of providing 
alone  for  a  significant  amount  of  asylum  seeker  visas—this  is  proven  by  the  limited 
spaces offered by the ‘humanitarian corridors’ in Italy and France, as shown in Chapter 3.  

Finally, to ensure that there is a uniform understanding of the rights at stake and of the 
situations in which the issuance of ‘visas for asylum seekers’ may be required, there is a 
need  for  common,  coordinated  action  at  EU 
legal  certainty, 
foreseeability,  and  the  similar  application  and  implementation  of  the  relevant  rules 
cannot be guaranteed. Mutual trust between Member States and confidence in the system 
by asylum seekers depends on the existence of a level playing field, which Member States 
acting alone cannot provide.  

level.  Otherwise, 

Arguably, the principle of pre-emption is at stake in this context.301 With the EU having 
adopted  the  Schengen  Borders  Code,  including  a  set  of  uniform  criteria  to  allow  entry 
across  the  ‘common’  external  frontiers  of  the  Member  States,  only  another  piece  of  EU 
legislation  will  ensure  the  integrity  of  the  common  system.  Member  States  cannot 
regulate  the  matter  on  their  own,  as  that  will  undermine  the  common  acquis.  The  only 
way to avoid fragmentation in policies and practices across the Schengen area is through 
the harmonisation of the relevant rules. This was also the basis in the early 2000s for the 
adoption  of  what  became  the  subsidiary  protection  provisions  in  the  Qualification 
Directive, communautarising disparate approaches to the protection duties deriving from 
non-refoulement obligations arising in relation to asylum seekers reaching the territory of 
the  Member  States.302  The  question  now  is  how  to  regulate  the  extraterritorial  reach  of 
those same obligations in a way concordant with the objectives pursued by the Treaty of 
building ‘an area of freedom, security and justice without internal frontiers, in which the 
free  movement  of  persons  is  ensured  in  conjunction  with  appropriate  measures  with 
respect to external border controls, asylum, immigration’, 303 in light of and ‘with respect 
for  fundamental  rights’, 304  including  an  ‘integrated  management  system  for  external 
borders’,305 where ‘the checks to which [all] persons crossing external borders are subject’ 

300 Ch 3 above.  
301 On the principle of pre-emption regarding non-exclusive EU competence, see Arena, ‘The Doctrine of Union 
Preemption in the EU Internal Market: Between Sein and Sollen’ (2010) 17 Columbia Journal of European Law 477. 
302 Spijkerboer, ‘Full Circle? The Personal Scope of International Protection in the Geneva Convention and the 
Draft  Directive  on  Qualification’;  Noll,  ‘International  Protection  Obligations  and  the  Definition  of  Subsidiary 
Protection in the EU Qualification Directive’; and Julien-Laferrière, ‘Le statut des personnes protégées’, in Dias 
Urbano de Sousa and De Bruycker (eds), The Emergence of A European Asylum Policy (Bruylant, 2004) 167, 183, 
and 195. 
303 Art 3(2) TEU.  
304 Art 67(1) TFEU.  
305 Art 77(1)(c) TFEU.  

82 

 
 
                                                 
are  clear  and  in  conformity  with  the  rule  of  law.306  Regulating  access  to  the  Common 
European Asylum System can only be undertaken via common rules. 

5.3.2 EU Added Value Considerations  

Beside the principle of subsidiarity, further EU added value considerations demonstrate 
the requirement of intervention at EU level. The current situation is one of persistent lack 
of  clarity  in  the  legal  framework  that  leaves  persons  in  need  of  international  protection 
without  alternatives,  but  to  embark  on  irregular,  unsafe  journeys  to  find  asylum  in  a 
Member  State.  And,  although  it  may  appear  that  the  maintenance  of  the  status  quo  is 
without expense, there are several points to bear in mind. 

The  human  cost  of  inaction  has  been  estimated  at  about  30,000  border-related  deaths 
since the  early 2000s.307 In addition, the  turnover of  the migrant smuggling and  human 
trafficking  businesses  has  been  calculated  in  the  billions  of  dollars  per  year—up  to  $32 
billions for human trafficking, and from $7 to $10 for migrant smuggling, depending on 
the estimates, which equates the yearly humanitarian aid expenditure by the US and the 
EU taken together, according to UNODC. 308 Neither outcome seems compatible with the 
objective of orderly migration, conformity with EU values, and respect for the rights and 
protection-related  obligations  deriving  from  EU  law.  So,  consideration  of  alternative 
options to facilitate dignified access to asylum in Europe is necessary. 

This will also rationalize spending. The EU and Member States’ investments in the border 
control,  irregular  immigration  deterrence,  and  the  related  law-enforcement  apparatus, 
just  considering  the  EU  budget,  exceeds  EUR  4  billion  for  2014-20.309  The  annual  figure 
will  be  trippled,  following  Commission  plans  to  establish  a  10,000-strong  permanent 
corps of border guards and new infrastructure to combat irregular immigration, reaching 
EUR 5 billion per year. The total spending announced for 2021-27 is EUR 35 billion. 310 A 
clarification of the norms applicable to the entry into Schengen territory of a considerable 

2017) 

306 Art 77(2)(b) TFEU and Art 2 TEU.  
307 For relevant estimates, see IOM, Missing Migrants Project (March, 2018): <https://missingmigrants.iom.int/>. 
Cf. UNITED, List of 33.305 documented deaths of refugees and migrants due to the restrictive policies of Fortress Europe 
<http://www.unitedagainstracism.org/wp-
(June 
content/uploads/2017/06/UNITEDListOfDeathsActual.pdf>.     
308  New  UNODC  campaign  highlights  transnational  organized  crime  as  a  US$870  billion  a  year  business, 
UNODC,  19  July  2012  <https://www.unodc.org/unodc/en/frontpage/2012/July/new-unodc-campaign-
highlights-transnational-organized-crime-as-an-us-870-billion-a-year-business.html>.  Cf.  Migration  Data  Portal 
(14  December  2017)  <https://migrationdataportal.org/themes/smuggling-migrants>.    See  also,  UNODC, 
Global  Study  on  Smuggling  of  Migrants  (June  2018),  p.  5  <https://www.unodc.org/unodc/en/data-and-
analysis/glosom.html>.   
309  This  includes  the  Internal  Security  Fund  (ISF)  2014-20,  totalling  EUR  3.8  billion  for  police  action  and  the 
<https://ec.europa.eu/home-
management 
including 
affairs/financing/fundings/security-and-safeguarding-liberties/internal-security-fund-police_en>;  and 
the 
Return  Fund,  integrated  within  the  Asylum,  Migration  and  Integration  Fund  (AMIF)  2014-20,  which  in  total 
<https://ec.europa.eu/home-affairs/financing/fundings/migration-asylum-
exceeds 
borders/asylum-migration-integration-fund_en>.  
310  ’EU  to  triple  spending  to  €5bn  a  year  targeting  illegal  migration’,  The  Guardian  (12  June  2018) 
<https://www.theguardian.com/world/2018/jun/12/eu-5bn-a-year-targeting-illegal-migration-border-
infrastructure>.  See  also  ’European  Commission  wants  10,000  border  guards’,  EU  Observer  (2  May  2018) 
<https://euobserver.com/justice/141731>.  

borders, 

external 

billion 

policy 

EUR 

visa 

of 

3 

83 

 
 
 
 
                                                 
portion of the ‘persons’,311 who may cross the external borders of the Union, including all 
of  the  ‘third-country  national[s]  who  must  be  in  possession  of  visas  when  crossing  the 
external  borders  of  the  Member  States  pursuant  to  [the  Visa  List  Regulation]’,312  will 
allow  for  the  rationalization  and  the  re-allocation  of  funds  to  ensuring  that  the  Union 
‘develop[s]  a  common  policy  on  asylum…offering  appropriate  status  to  any  third-
country national requiring international protection’ and builds a system of ‘immigration 
and external border control…which is fair towards third-country nationals’. 313  

In addition, clarity will not diminish control. On the contrary, the adoption of a clear set 
of rules for Schengen entry for the purposes of accessing the CEAS under the terms of the 
APD will allow for better screening of candidates, the predictability of arrivals, and better 
preparation and coordination of post-arrival arrangements. Currently, it is ‘spontaneous 
arrivals’  that  are  out  of  control.  There  is  no  foreseeability  of  when  and  how  they  may 
occur and no prior vetting of their circumstances. Inclusion on the EURODAC database 
occurs only ex post.314 The elaboration of a harmonised system will also be in line with the 
underlying  rationale  of  the  ETIAS  proposal,  whereby  even  TCNs  from  countries  on  the 
visa ‘white list’ will be enrolled on the ETIAS database.315 

With  this  in  sight,  several  policy  options  and  types  of  instrument  can  be  explored.  The 
next  chapter  deals  with  proportionality  issues  and  identifies  three  main  possibilities  to 
resolve the admission of asylum seekers into the Schengen zone, so that Member States 
comply with their obligations under the EU Charter in an effective way. 

311 Art 1, second indent, SBC. 
312 Art 1(1)-(2) CCV. 
313 Arts 78(1) and 67(2) TFEU. 
314 EURODAC Regulation (EU) No 603/2013, [2013] OJ L 180/1. 
315  Proposal  for  a  Regulation  establishing  a  EU  Travel  Information  and  Authorisation  System  (ETIAS), 
COM(2016) 731. 

84 

 
 
                                                 
CHAPTER 6. POLICY OPTIONS 

KEY FINDINGS 
•  Several  possibilities  are  available  to  the  EU  legislator  to  harmonise  the  criteria 
applicable  to  the  admission  of  asylum  seekers  into  Schengen  territory,  with 
varying degrees and intensity of intervention necessary at EU level. 

•  The  visa  waiver  approach  only  needs  a  revision  of  the  current  visa  lists  in 
Regulation  539/2001  to  either  de-classify  or  suspend  the  visa  requirement  for 
nationals of top refugee-producing countries, where risks to life and/or freedom are 
well known and freely ascertainable from publicly available and reliable sources. The 
selection of the countries concerned should draw on EUROSTAT and UNHCR data. 

•  A different option would be for asylum seeker visas to be issued by Member State 
consulates  abroad,  according  to  a  dedicated  instrument  that  harmonises  issuing 
criteria  and  procedures,  in  line  with  the  good  administration  and  effective  remedy 
standards  contained  in  Articles  41  and  47  CFR.  A  reformed  set  of  LTV  provisions 
would be required to this effect. 

•  A  third  variant  entails  full  centralisation  of  decision-making  and  distribution  of 
applicants  via  specialised  EASO  teams  making  or  coordinating  assessments  within 
EEAS  representations  abroad.  This  option  requires  adjustment  of  Dublin  criteria, 
the  creation  of  a  distribution  mechanism  of  successful  applicants  via  predefined 
quotas  per  Member  State,  a  preference-matching  tool,  a  corrective  system  that 
links,  and  a 
accounts 
compensatory tool to palliate any residual unevenness in distribution. Some of these 
elements could complement the above options to aling them with Article 80 TFEU. 

for  children  rights,  family  unity,  and  dependency 

•  Whichever the option (or combination) preferred, qualification criteria must match 
non-refoulement guarantees as per Articles 4 and 19(2) CFR, so that those having an 
‘arguable claim’ of exposure to a prima facie ‘real risk’ of persecution or serious harm 
are granted a visa for asylum seeking purposes in EU Member States. 

•  Decisions  must  be  taken  by  fully  competent  and  trained  personnel.  Procedural 
guarantees, including legal aid, information, translation, and representation must be 
provided, so as to preserve the right to be heard. Appeals against negative decisions 
must also be available. But prima facie assessments must not derive into full RSD. 

•  To  address  ‘floodgates’  and  resource  concerns,  any  of  the  above  formulae  can  first 
be piloted in a controlled environment, selecting particular countries and periods of 
time,  and/or  focusing  on  particularly  vulnerable  applicants  prior  to  full  roll  out; 
collaborating  with  private  service  providers,  including  UNHCR  and  specialised 
NGOs; and using technology and e-means to facilitate application processing. 

85 

 
 
 
 
 
 
 
 
6.1 Proportionality: The Scale and Intensity of Policy Action 

The principle of proportionality, under Article 5(4) TFEU, requires that ‘the content and 
form of Union action shall not exceed what is  necessary to achieve the objectives of the 
Treaties’. In this respect, there are different considerations to take account  of, including 
the intensity of EU action, the form it should take, and the pros and cons it implies.316 

Several possibilities are available to the EU legislator to harmonise the criteria applicable 
to  the  admission  of  asylum  seekers  into  Schengen  territory,  with  varying  degrees  of 
intervention necessary at EU level. The following explores three main proposals, ranging 
from  the  one  requiring  the  least  changes  to  current  rules,  to  the  one  entailing  the 
construction of an elaborate, centralized system of EU asylum seeking visas, necessitating 
a  dedicated  legal  and  institutional  machinery  set  up  abroad.  Before  selecting  the 
preferred  option  in  Section  6.2,  the  advantages  and  disadvantages  of  each  of  the  three 
possibilities identified are considered in detail, taking account of what is needed to solve 
the original problem and meet the objective of the initiative, as concluded in Chapter 5. 

The first option, the ‘visa waiver’ approach, needs only a revision of the current visa lists 
that  already  exist.  The  second  option,  the  ‘asylum  seeking  visas’  formula,  entails  the 
adoption of new legislation, perhaps taking inspiration from the current LTV provisions 
in the CCV—which some EU countries have already been using for this purpose, as the 
Italian  ‘humanitarian  corridors’,  recounted  in  Chapter  3,  indicate.  But  it  does  not 
necessitate  the  centralization  of  the  visa  issuing  process.  Finally,  the  third  option,  the 
‘uniform  international  protection  application  travel  permits’,  issued  by  EU-wide  visa 
application centres in third countries, requires the adaptation and further elaboration of 
the current acquis, on the substantive, procedural, and institutional fronts. 

6.1.1 The ‘Visa Waiver’ Approach 

The easiest option, entailing the least intervention at EU level, is to either permanently or 
temporarily suspend visa requirements imposed on nationals coming from unsafe third 
countries,  where  threats  to  life  and  persecution  are  well-known  realities,  until  the 
circumstances change.   

The  ‘black  list’  in  the  Visa  List  Regulation  includes  all  refugee-producing  countries. 317 
And,  as  explained  in  Chapter  2,  apparently  asylum  seekers  are  expected  to  abide  by 
normal  Schengen  admission  criteria,  which  constitute  the  basis  for  obtaining  a  visa.318 

316  European  Commission,  Better  Regulation  Toolbox  (undated),  Tool  #5  Legal  Basis,  Subsidiarity  and 
Proportionality, p. 30 <https://ec.europa.eu/info/better-regulation-toolbox_en>. 
317  Cf.  Annex  I  and  Annex  II  VLR.  See  also  EUROSTAT,  Asylum  Statistics,  12  December  2017 
<http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report>;  UNHCR,  Asylum 
Levels  and  Trends  in  Industrialized  Countries,  covering  the  1999-2014  period  <http://www.unhcr.org/cgi-
and 
bin/texis/vtx/search?page=home&skip=0&cid=49aea93aba&comid=4146b6fc4&keywords=Trends>; 
UNHCR, 
2018) 
and 
<http://www.unhcr.org/uk/statistical-yearbooks.html>.  
318 Art 21 CCV, referring to Art 6(1) SBC. 

(February 

Statistical 

Yearbook 

Yearbook 

Statistical 

2015 

2016 

86 

 
 
 
 
 
 
                                                 
Yet,  persons  in  need  of  international  protection,  by  definition,  cannot  demonstrate 
willingness  or  ability  to  return  to  the  country  of  origin—which  has  been  configured  as 
one  key  element  to  deliver  one.  Both  the  legal  characterisation  of  ‘refugee’  and 
‘beneficiary  of  subsidiary  protection’  in  the  Qualification  Directive  imply  that  persons 
escaping persecution or serious harm cannot justify that they will ‘return to [the] country 
of [provenance]’,319 without thereby losing their status.320  

Therefore,  abolishing  visa  requirements  for  refugee-producing  countries  would  be  the 
most immediate and effective way of ensuring unobstructed access to protection to those 
in need – much more than resettlement or private sponsorship schemes, since it would be 
based on the individual initiative of the person concerned, involve no referral mechanism 
by any intermediary, and no pre-arrival processing at all. Technically, there is no real risk 
of  irregular  immigration  by  refugees,  since,  by  virtue  of  Article  31  of  the  Geneva 
Convention,  they  are  exempt  from  ‘penalties’  regarding  unauthorised  entry  or  stay,321 
which  is  the  main  reason  for  classification  of  a  State  within  the  visa  ‘black  list’.322  De-
classification  of  the  top  refugee-producing  countries  would  thus  be  in  keeping  with 
stated goals of EU visa policy and in line with the new proviso inserted in the Visa List 
Regulation  in  2014,  requiring  ‘considerations  of  human  rights  and  fundamental 
freedoms’ to be taken into account when drawing up the lists. 323  

In any case, fundamental rights must anyway be observed. Once again, subjection to EU 
primary law does not require specific assertion to this effect in secondary law. Its primacy 
is  constitutionally  scheduled  in  the  Treaties  and  in  case  law.  The  very  structure  of  EU 
sources mandates subordination of rules of secondary law to the dispositions of primary 
law.324 As the Court of Justice has consistently held in its judgments, where ‘the wording 
of secondary law is open to more than one interpretation, preference should be given to 
the  interpretation  which  renders  the  provision  consistent  with  the  [EU]  Treaty’.325  This 
same  tenet  has  been  reiterated  in  the  asylum  context,  with  the  Court  making  clear  that 
‘Member States must…make sure they do not rely on an interpretation of an instrument 
of secondary legislation which would be in conflict with the fundamental rights protected 
by the EU legal order or with the other general principles of EU law’.326  

Short  of  abolition,  other  alternatives  could  be  explored  to  avoid  potential  violations  of 
non-refoulement  and  regulate  access  to  the  territory  of  the  Member  States  for  asylum 
seeking purposes. The first is the possibility of establishing a mechanism to suspend visa 
requirements  for  a  period  of  time,  until  the  root  causes/push  factors  of  forced 

319 Art 6(1)(c) SBC (emphasis added). 
320 Art 2(d) and (f) QD.  
321 Art 31(1) GC: ‘The Contracting States shall not impose penalties, on account of their illegal entry or presence, 
on  refugees  who,  coming  directly  from  a  territory  where  their  life  or  freedom  was  threatened…enter  or  are 
present  in  their  territory  without  authorization,  provided  they  present  themselves  without  delay  to  the 
authorities and show good cause for their illegal entry or presence’.  
322 Recital 5 VLR; and Recital 3, Preamble, CCV. 
323 Art. -1 VLR, as amended by Regulation (EU) 509/2014, [2014] OJ L149/67. 
324 Art 2 TEU; Art 6 TEU; Art 51 CFR; and Art 263 TFEU. 
325 Ordre des Barreaux (n 251), para. 28. 
326 NS & ME (n 200), para. 77. 

87 

 
 
 
                                                 
displacement have been addressed, particularly for those countries from which there are 
substantial  flows  of  refugees  seeking  access  to  protection  in  the  EU,  such  as  Syria.  One 
could  use  UNHCR  and  EUROSTAT  data  to  substantiate  a  presumption  of  prima  facie 
qualification  for  international  protection  to  select  the  relevant  countries.  However,  this 
should not lead to rigid approaches or to reverse assumptions that asylum seekers from 
other  countries  are  not  genuinely  in  need  of  international  protection.  The  presumption 
should  in  no  event  undermine  the  right  of  ‘everyone’  to  seek  asylum  and  to  have  their 
claims individually assessed.327 

Either  temporary  suspension  or  total  abolition  of  visa  requirements  for  refugee-
producing countries would also avoid additional practical obstacles, such as the absence 
of  consulates  in  certain  war-torn  ‘black  listed’  countries,  where  there  is  no  physical 
possibility to apply for visas. Indeed, inaccessibility in law is not the only concern when it 
comes to visas and refugees. Inaccessibility in practice further compounds the situation. 
Currently, there are no representations of any EU Member State in Liberia, Sierra Leone, 
Somalia, and South Sudan; all visa sections of existing embassies in Afghanistan, Libya, 
Syria,  and  Yemen  are  closed,  ‘temporarily  suspended’,  or  only  cover  applications  from 
holders  of  diplomatic  passports.328  Hence,  at  least  in  these  ‘black  listed’  countries, 
obtaining a visa is both legally and physically impossible.  

In such circumstances, if visa requirements are not lifted or suspended, carrier sanctions 
impede  travel  through  normal  commercial  routes.  Indeed,  although  the  Schengen 
Borders  Code  is  specifically  without  prejudice  to  the  rights  of  refugees  and  persons 
requesting  international  protection,  in  particular  as  regards  non-refoulement,329  the 
effectiveness  of  these  provisions  is  undermined  by  the  threat  of  fines  in  case  of 
transportation  of  unduly  documented  migrants.330  The  problem  is  one  of  structural 
design. Through the threat of sanctions, carriers have been de facto delegated to carry out 
travel document checks, without however being given the authority (let alone the means 
and  necessary  training)  to  undertake  full  entry  controls,  taking  also  account  of  the 
applicable exceptions under Article 14(1) SBC, in light of ‘obligations related to access to 
international protection, in particular the principle of non-refoulement’.331   

As a result, carriers, concerned to avoid sanctions, usually simply refuse to carry anyone 
who  does  not  have  a  passport  and/or  a  visa  (when  required),  pushing  asylum  seekers 
from  ‘black  listed’  countries  into  irregular  migration  routes.332  If  visa  requirements  are 
retained  for  refugee-producing  countries,  lifting  or  suspending  carrier  sanctions  would 
constitute an alternative solution, transforming the possibility of safe arrival for those in 

327 Case C-175/11 HID ECLI:EU:C:2013:45. 
328List  of  Member  States'  consular  presence,  representation  arrangements  and  forms  of  cooperation  for  the 
collection  of  visa  applications,  collection  by  Honorary  Consuls  or  outsourcing  of  the  collection  of  visa 
2018 
15 
applications, 
<https://www.udiregelverk.no/en/documents/schengen/16202010/Annex_28/>.   
329 Arts 3(b) and 14(1) SBC. 
330 Carrier Sanctions Directive 2001/51, [2001] OJ L 187/45. 
331 Art 4 SBC. 
332 For a thorough review: Scholten, The Privatisation of Immigration Control through Carrier Sanctions (Brill, 2015). 
See also, Moreno-Lax, Accessing Asylum in Europe (OUP, 2017) ch 5. 

January 

88 

 
 
 
                                                 
need  of  protection  and  also  ending  the  smuggling  business  at  a  stroke.  Otherwise,  the 
problem  of  inaccessible  visas  will  remain  in  those  countries  where  EU  consulates  are 
closed  or  do  not  exist.  So,  in  terms  of  ensuring  the  widest  coverage  and  highest  rate  of 
compliance with fundamental rights obligations, this policy option is the best suited. And 
is also the one entailing the least regulatory changes to the existing acquis.  

Many may oppose this option as impracticable and evoke the ‘floodgates argument’—as 
Belgium  did  in  the  X  and  X  case.  However,  the  point  is  empirically  unsubstantiated,  as 
demonstrated  by  the  numbers  concerned  in  past  experiences  with  other  visa  waiver 
schemes. In recent times, several neighbouring countries have been transferred to the visa 
‘white list’, including all of the Western Balkans, in 2009 and 2010,333 and the Republic of 
Moldova,  in  2014.334  Despite  the  wide  disparities  in  terms  of  wealth,  GDP  differentials, 
quality  of  life,  and  job  opportunities  between  these  countries  and  Schengen  partners,335 
the liberalisation process has not meant the emigration of the entire population of any of 
these  countries  to  the  EU,  not  even  of  significant  portions  thereof.336  Plus,  in  case  of  a 
mass  influx,  the  Temporary  Protection  Directive  would  provide  the  tools  to  cope.337  A 
way to dispel fears would be to ‘pilot’ the policy within a controlled environment, e.g. 
by  suspending  visas  or  carrier  sanctions  for  a  particular  country  and  period  of  time,  or 
for a specific sub-set of nationals in particularly vulnerable circumstances (e.g. disabled, 
wounded applicants, and/or unaccompanied minors) before a full roll out. 

Another  inconvenience  of  this  option  is  the  impossibility  it  entails  of  carrying  out 
security checks prior to arrival at the external borders, which limits, thereby, the amount 
of control exerted over incoming persons. Under this option, these can only be conducted 
at  frontier  posts  before  entry,  but  once  the  territory  of  the  Member  State  concerned  has 
been reached. The adoption of the ETIAS reform will change this landscape, since details 
of  passengers  from  ‘white  listed’  countries  will  need  to  be  entered  in  the  database, 
meaning  that  any  perceived  loss  of  control  over  their  movement  will  be  compensated 
prior to departure. The inconvenience for potential asylum seekers, however, will be the 
re-creation of current physical and legal barriers. Even if their countries of origin are de-
classified from the ‘black list’, where no Member State representations are available, (in 
person) retrival of their details for ETIAS purposes will become impracticable and access 
to  regular  travel  foreclosed,  unless  carrier  sanctions  cease  to  apply  or  e-means  are 
accepted as alternative course for registration. The ETIAS, therefore, has the potential of 
curtailing the intended effects of the visa waiver strategy as a way to provide legal access 
to protection in the EU.  

333  Council  Regulation  (EC)  1244/2009 amending  the  Visa List Regulation,  [2009]  OJ  L 336/1;  and  Regulation 
(EU) 1091/2010 amending the Visa List Regulation, [2010] OJ L 329/1. 
334 Regulation (EU) 259/2014 amending the Visa List Regulation, [2014] OJ L 105/9.  
335 See, e.g., UNDP, Human Development Index and Human Development Reports per country and per year: 
<http://hdr.undp.org/en/data>. 
336 
<http://ec.europa.eu/eurostat/statistics-
explained/index.php/Migration_and_migrant_population_statistics>.  
337 Temporary Protection Directive 2001/55/EC, [2001] OJ L 212/12 (‘TPD’).  

EUROSTAT, 

population 

Migration 

statistics 

migrant 

(March 

2018) 

and 

89 

 
 
 
                                                 
Another inconvenience of the visa waiver scheme is that it relies on ‘natural distribution’ 
of  applicants  among  Member  States,  coming  close  to  a  system  of  ‘free  choice’  of 
destination  country.338  Although  this  situation  would  not  be  strictly  incompatible  with 
the Dublin criteria for allocation of responsibility for the examination of asylum claims,339 
it may undermine its  underpinning  deterrent rationale. A way to mitigate the effects of 
such an arrangement would be to adopt a mechanism of distribution and compensation 
along the lines of the one proposed below, as part of the third policy option.   

MATERIAL 
INSTITUTIONAL 
PROCEDURAL 
INVESTMENT(S) 

COMPLIANCE 
WITH 
FUNDAMENTAL 
RIGHTS 
OBLIGATIONS 

PRE-ARRIVAL 
SECURITY 
AND 
CONTROL 

None required at the pre-
arrival stage 

Fear of numbers can be 
palliated through piloting 
of scheme prior to 
(incremental) roll out 

The Temporary 
Protection regime offers 
additional support in 
case of mass influx 
[Directive 2001/55] 

Maximum 

Mimimum 

[No risk of system 
becoming off-
shore processing 
scheme] 

[None at pre-
frontier stage; 
controls carried 
out on arrival 
at the border 
post, at least 
until adoption 
of ETIAS 
reform] 

BENEFICIARIES 

LEGAL CHANGES 

All nationals 
from de-
classified 
refugee-
producing 
country 

Total abolition or 
temporary 
suspension of visa 
requiremments 
[Regulation 
539/2001] 

or 

and/or 

Total abolition or 
temporary 
suspension of carrier 
sanctions 
[Directive 2001/51] 

targeted, 
particularly 
vulnerable 
group thereof  

[no pre-arrival 
assessment 
required by 
State authorities 
or commercial 
carriers at pre-
frontier stage, at 
least prior to 
ETIAS reform] 

Table 5: Overall Assessment of Policy Option 1 - ‘Visa Waiver’ Approach 

6.1.2 Limited Territorial Validity Visas for Asylum Seeking Purposes 

A different option  would be for  EU humanitarian visas to be issued by Member State 
consulates  and  embassies  abroad,  according  to  a  dedicated  instrument,  harmonising 
issuing criteria and procedures. In such case, compliance with good administration and 
effective remedy standards would have to be guaranteed in line with Articles 41 and 47 

338 For an evaluation of the different distribution alternatives, see Maiani, The Reform of the Dublin III Regulation, 
PE 571.360 (European Parliament, 2016).  
339 It can be said to be contemplated in Art 14 DR.  

90 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
CFR, including appeals, judicial protection, and fair trial guarantees. 

for 

Indeed,  if  no  collective  solutions  are  adopted,  and  both  visas  and  carrier  sanctions  are 
maintained 
to  comply  with 
refugee-producing  countries,  one  possibility 
extraterritorial  obligations  of  non-refoulement,  as  expounded  in  Chapter  4,  is  to  consider 
individual  solutions  for  visa  subjects  who  are  in  need  of  international  protection.  The 
LTV  visa  provisions  contained  in  the  CCV  offer  a  basis  in  that  regard—as  interpreted 
within the Italian ‘humanitarian corridor’ scheme. 

According  to  Article  25  CCV,  ‘[a]  visa  with  limited  territorial  validity  shall  be  issued 
exceptionally  …  when  the  Member  State  concerned  considers  it  necessary  on 
humanitarian  grounds,  for  reasons  of  national  interest  or  because  of  international 
obligations to derogate from…the entry conditions laid down in…the Schengen Borders 
Code’  (emphasis  added).  The  equivocal,  half-compulsory  /  half-discretionary  language 
used  is  taken  from  pre-Visa  Code,  pre-Lisbon,  pre-EU  Charter  of  Fundamental  Rights 
documents—before it became clear that ‘[t]he applicability of European Union law entails 
applicability  of  the  fundamental  rights  guaranteed  by  the  Charter’,  whatever  the  policy 
area concerned.340  

Today,  applying  the  Koushkaki  judgment  by  analogy,  when  the  conditions  of  Article  25 
CCV  (interpreted  in  line  with  EU  fundamental  rights  obligations341)  are  met,  Member 
States  should  be  understood  to  have  no  capacity  to  refuse  to  issue  a  LTV  visa.342  The 
ruling  establishes  that  there  is  no  discretion  for  Member  States  to  ‘refuse…to  issue…a 
visa to an applicant unless one of the grounds for refusal…listed in [the CCV] provisions 
can  be  applied  to  that  applicant’.343  So,  although  visas  are  not  delivered  ‘as  of  right’  to 
those  requesting  them,  neither  can  they  be  considered  as  completely  dependent  on 
Member States’ whims. In  our case, the binding force of fundamental rights obligations 
flowing from primary law, and  to which the Visa and Schengen Codes refer, reinforces 
this  interpretation. 344  Article  25  CCV  could,  accordingly,  be  conceived  of  as  one  of  the 
'special  provisions  concerning  the  right  of  asylum  and  to  international  protection’ 
referred  to  in  the  Schengen  Borders  Code.345  Consequently,  if  an  asylum  seeking  visa 
applicant  applied  for  a  LTV  with  a  particular  Member  State,  this  application  should  be 
given  serious  consideration,  in  compliance  with  the  principles  of  good  administration, 
fair processing, and effective judicial protection under Charter provisions.346  

It doesn’t matter that the (soft law) Visa Handbook,  guiding the application of  the Visa 
Code,  fails  to  contemplate  the  situation  of  asylum  seekers  as  one  specific  scenario  in 

340 Fransson (n 204), para. 21. 
341 Ordre des Barreaux (n 251), para. 28. 
342 Case C-84/12 Koushkaki ECLI:EU:C:2013:862. In this line, see Peers, ‘Do potential asylum-seekers have a right 
to  a  Schengen  visa?’,  EU  Law  Analysis  (January  2014)  <http://eulawanalysis.blogspot.co.uk/2014/01/do-
potential-asylum-seekers-have-right.html>. 
343 Koushkaki (n 342), para. 63. 
344 Recital 29 CCV; and Recital 36, Preamble, and Art 4 SBC. 
345 Art 14(1) SBC. 
346 See further Moreno-Lax, Accessing Asylum in Europe (OUP, 2017) ch 10.  

91 

 
 
 
 
                                                 
which the issuance of LTVs may be justified.347 Whether the list of examples it provides is 
intended to be exhaustive is also irrelevant, as it is the legal nature of the Handbook itself 
(whether as binding or non-binding). As an act of the EU (of the European Commission 
in  this  case),  its  interpretation  and  implementation  remains  subject  to  the  Treaties  (and 
the Charter). And neither the Handbook nor, ultimately, the Visa Code (including Article 
25 thereof) can limit the effect of primary law.348  

At  present,  because  of  LTV  rules  having  been  inherited  from  past  époques,  the  related 
application, issuing, and appeal regime is ambiguous. First, it is unsure that a LTV can be 
‘applied for’ separately in practice. The standard visa application appended to the Code 
does  not  specify  any  LTV-relevant  reasons  that  the  applicant  may  adduce.349  It  rather 
seems that LTV delivery depends on the appreciation of the circumstances by the issuing 
authority, upon reception of an ‘ordinary’ visa application. Then, the specific conditions 
and  procedure  to  be  followed  to  issue  a  LTV  have  not  been  defined  by  the  Code.  In 
particular,  there  are  no  signs  indicating  that  Member  States  are  obliged  to  initiate  an 
assessment of non-refoulement implications ex officio.  

immediately  discontinued.350 

According  to  the  general  rules,  when  consulates  receive  a  visa  application,  before 
proceeding with a full examination of the file, they have to carry out a preliminary check 
to ascertain that  the elements  necessary  to  make a decision  have been provided. Where 
these formalities are not satisfied, the application must be declared ‘inadmissible’ and its 
‘an 
processing 
application  that  does  not  meet  the  requirements…may  be  considered  admissible  on 
humanitarian  grounds  or  for  reasons  of  national  interest’.351  But  the  ‘international 
obligations’  to  which  Article  25  CCV  refers,  have  been  omitted  from  the  wording  of 
Article 19 CCV governing  admissibility decisions. As a result, there is a gap, and a real 
risk that LTV applications  be potentially dismissed without a ‘formal’ refusal. If such is 
the  case,  there  is  an  ensuing  danger  that  LTV  applicants  be  deprived  of  the  right  to 
appeal a negative (albeit ‘informal’) decision on their request.352  

‘By  way  of  derogation’,  however, 

If a reformed LTV regime is taken as a foundation for the development of the  ‘asylum 
seeker  visa’  option,  the  European  Parliament  proposed  amendments  to  the  Visa  Code 
could be taken into account to put it together, clarifying and expanding upon the current 
LTV  visa  system,  by  bringing  it  in  line  with  EU  fundamental  rights  obligations  and 
correcting  the  perception  that  ‘asylum  seeking  visas’  are  (always)  optional.  Recognition 
by international courts of the existence of extraterritorial non-refoulement duties that may, 

347 Consolidated version of the Handbook for the processing of visa applications and the modification of issued 
visas  of  15  September  2011  based  on  Commission  Decision  C(2010)  1620  of  19  March  2010,  as  amended  by 
Commission Decision C (2011) 5501 of 4 August 2011 (‘Visa Handbook’), pp. 70-71. 
348 Case C-226/99 Siples ECLI:EU:C:2001:14, para. 17.  
349 See Box 21 of the standard application form in Annex I CCV, concerning the ‘main purpose(s) of the journey’. 
Applicants could possibly indicate LTV-relevant reasons only under the rubric of ‘other’. 
350 Art. 19(1) and (3) CCV. 
351 Art. 19(4) CCV. 
352 Art. 32 CCV. Expressing similar concerns, see Meijers Committee, Note on the draft proposal for a Regulation of 
the  European  Parliament  and  of  the  Council  establishing  a  Community  Code  on  Visas,  COM(2006)  403  final 
<http://www.commissie-meijers.nl/assets/commissiemeijers/Jaarverslagen/CMJaarverslag2007_web.pdf>.  

92 

 
 
 
                                                 
in  practice,  require  States  to  issue  visas  to  avoid  ill-treatment  (if  no  other  options  are 
available) should be at the heart of such initiative.353 

On the other hand, the dangers of asylum seeking visas becoming a fully-fledged system 
of  extraterritorial  processing—involving  reception  centres  in  third  countries,  indefinite 
detention off shore, poor procedural guarantees, and insufficient long-term prospects and 
durable solutions, as the Australian experience illustrates—must be avoided.354 As in the 
Italian humanitarian corridor case, the purpose of ‘LTV asylum seeking visas’ should be a 
grant  of  pre-arrival  clearance,  allowing  the  holder  to  present  him-  or  herself  to  the 
asylum  authorities  of  the  EU  Member  State  concerned  upon  reaching  its  territory, 
travelling  through  ordinary,  commercial  routes.  Obviously,  such  solution  requires  that 
access to embassies be maintained, whether physically or online, so that, in turn, access 
to ‘LTV asylum seekeing visas’ can be effectively guaranteed. 

The  decision  on  beneficiaries  and  procedural  arrangements  must,  then,  be  such  as  to 
comply  with  existing  fundamental  rights  obligations.  Therefore,  the  best  option  is  to 
draw on existing standards: All those entitled to protection under the principle of non-
refoulement should thus be entitled to apply for LTV asylum seeker visas. This is in line 
with  the  Qualification  Directive,  which  imposes  an  obligation  on  Member  States  under 
Articles 13 and 18 so that they ‘shall grant’ the relevant protection status to the individual 
meeting  the  qualification  criteria  defined  in  the  Directive.355  No  margin  of  appreciation 
has been left in that regard.356 The obligation has been acknowledged by the CJEU itself, 
noting in Abdulla that ‘[u]nder Article 13 of the Directive, the Member State is required to 
grant refugee status to the applicant if he qualifies…’. 357 The same applies, from M’Bodj, 
to Article 18 of the Directive, according to which ‘Member States are to grant that status to 
a third-country national eligible for subsidiary protection’. 358 After all, the purpose of the 
instrument is ‘to introduce common criteria on the basis of which applicants…are to be 
recognised  as  [beneficiaries  of  international]  protection…drawn  from  international 
obligations under human rights instruments and practices existing in Member States’.359  

The  prohibition  of  refoulement  plays  a  prominent  role  in  this  regard.  Because  ‘Member 
States shall respect the principle…in accordance with their international obligations’ and 

353 Hirsi, (n 241). 
354 McAdam, Policy Brief 1 - Extraterritorial processing in Europe: Is 'regional protection' the answer, and if not, 
what  is?  (Kaldor  Centre,  May  2015)  <http://www.kaldorcentre.unsw.edu.au/publication/policy-brief-1-
extraterritorial-processing-europe-regional-protection-answer-and-if-not>; and McAdam, ‘Migrating laws? The 
“plagiaristic  dialogue”  between  Europe  and  Australia’,  in  Lambert,  McAdam  and  Fullerton  (eds),  The  Global 
Reach of European Refugee Law (CUP, 2013), p. 25 ff. See also den Heijer (n 1), p. 274; and Noll, ‘Visions of the 
Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’ (2003) 5 
EJML 303, pp. 338 ff. 
355  Note,  however,  that  the  QD  acknowledges  in  Recital  21  that  ‘[t]he  recognition  of  refugee  status  is  a 
declaratory act’. 
356  Recall  also  that  the  QD  is  not  subject  to  the  same  territorial  limitation  of  the  APD  and  other  CEAS 
instruments. 
357 Abdulla (n 233), para. 62 (emphasis added). It, thus, appears that the Court interprets the provision as capable 
of producing direct effect.  
358 Case C-542/13 M’Bodj ECLI:EU:C:2014:2452, para. 29 (emphasis added). 
359 Recital 34, Preamble, and Art 1 QD. 

93 

 
 
 
                                                 
these international obligations may evolve in time, 360 the Qualification Directive foresees 
that  its  implementation  ‘be  evaluated  at  regular  intervals,  taking  into  consideration  in 
particular  the  evolution  of  the  international  obligations  of  Member  States  regarding  non-
refoulement’.361 Considering that, as explained in Chapter 4, the principle may be violated 
extraterritorially,362 the criteria for issuing LTV visas for asylum seeking purposes should 
be  the  same  as  those  giving  rise  to  the  obligation  not  to  expose  anyone  to  ill  treatment 
under Articles 4 and 19(2) CFR, so as to ensure that ‘nobody is sent back to persecution’ 
or  to  face  a  real  risk  of  ‘serious  harm’, 363  construed  in  line  with  the  prevailing 
interpretation at the relevant time,364 and taking account of ‘present day conditions’.365 

Regarding procedural arrangements to apply for LTV asylum seeking visas, as they will 
translate rights that individuals derive from EU law, these should be established in a way 
that does not ‘render practically impossible or excessively difficult [their] exercise’.366 Full 
assessments  of  the  merits  of  international  protection  claims  should  not  be  conducted 
extraterritorially,  in  light  of  the  difficulties  pertaining  to  providing  access  to  dignified 
reception  conditions,  fair  processing  guarantees,  remedies  with  suspensive  effect,  and 
effective  judicial  protection  abroad.367  Neither  must  preliminary  decisions  prejudge  the 
result of prospective inland proceedings or disadvantage claimants in any other way.  

The most suitable option would hence be to deliver LTV asylum seeking visas either to 
those submitting an ‘arguable claim’ of exposure to a real risk of serious harm or a well-
founded fear of persecution, along the lines of Strasbourg case law. Under the ECHR, this 
means  that  claims  raising  prima  facie  issues  under  the  relevant  provisions  (and,  by 
analogy,  its  EU  Charter  equivalents)  must  be  accepted  for  detailed  examination.368  So, 
those  presenting  an  ‘arguable  claim’  of  a  need  of  protection  from  refoulement  should  be 
delivered  a  LTV  visa  for  travel  to  the  EU  Member  State  concerned  for  the  purposes  of 
lodging an asylum application and be allowed to fully substantiate their cases ‘onshore’ 
upon  arrival,  following  normal  processing  arrangements  under  CEAS  instruments 
(including Dublin and APD provisions). This would best reflect the declarative nature of 
refugee  status,369  and  provide  a  real  alternative  to  smuggling  and  trafficking,  while 
avoiding the practical and legal difficulties associated with offshore processing schemes. 
At the same time, it will keep authorities in control of the procedure. 

Decisions ought to be adopted by fully competent personnel, with sufficient knowledge 
and  prior  training,  which  means  that  either  a  delegation  of  the  competent  national 

360 Art 21 QD. 
361 Recitals 48, Preamble, QD (emphasis added). 
362 Hirsi (n 241). 
363 Recitals 3, Preamble, QD; and Art 15 QD. 
364  Legal  Consequences  for  States  of  the  Continued  Presence  of  South  Africa  in  Namibia  (South  West  Africa) 
notwithstanding Security Council Resolution 276(1970), Advisory Opinion, [1971] ICJ Rep. 16. 
365 ECtHR, Tyrer v. UK, Appl. 5856/72, 25 April 1978, para. 31. 
366 See, among many others, Unibet (n 253), para. 43. 
367 Red Cross (n 283). 
368 Note that the concept of ‘arguable claim’ is not the same as ‘admissible application’; it denotes a much lower 
threshold.  See,  e.g.,  TI  v  UK,  Appl.  43844/98,  7  Mar.  2000,  which  the  ECtHR  considered  ‘arguable’,  but 
subsequently dismissed as ‘inadmissible’ after a thorough examination of the case. 
369 UNHCR Handbook (n 76). 

94 

 
 
 
                                                 
asylum  authority  is  deployed  in  consular  premises  to  that  end  or  application  files  are 
transferred  to  them  by  embassy  staff  for  inshore  analysis.  Legal  aid,  translation,  and 
representation will also need to be provided, so as to guarantee the right to be heard.370 
For the same reason, an interview with the applicant will be required—who is, anyway, 
supposed to ‘appear in person’ for the assessment of his/her situation and the retrieval of 
biometric  identifiers  under  current  visa  rules.371  Skype  and  other  technological  means 
may  serve  to  guarantee  the  security  of  applicants,  cater  for  specific  vulnerabilities,  and 
preserve the processing capacities of the national services concerned.  

National  authorities  will  need  to  take  account  of  both  the  general  and  particular 
circumstances  of  the  applicant  concerned,372  relying  on  published  sources  and  taking 
proactive  steps  to  ascertain  the  reality  of  the  risks  faced  by  him/her,  ‘carrying  out  a 
thorough  and  individualised  examination  of  the  situation  of  the  person  concerned’, 373  
‘before  any  individual  measure  which  would  affect  him  or  her  adversely  is  taken’. 374 
Knowledge of the circumstances will otherwise be imputed on the Member State,375 and 
failure  to  adopt  preventative  means  to  spare  the  applicant  from  foreseeable  harm  will 
amount to a violation of the CFR. 

In  case  of  negative  decisions,  the  right  to  an  effective  remedy,  in  accordance  with  the 
criteria  of  Article  47  CFR,  must  be  provided.376  Article  32  CCV  already  foresees  that 
‘applicants who have been refused a visa shall have the right to appeal’. A similar clause 
will have to be inserted in any visa instrument the legislator adopts for the purposes of 
complying  with  non-refoulement  guarantees.  The  problem  will  be  how  to  suspend  the 
application  of  visa  refusals.  In  case  of  a  risk  of  irreversible  harm,  a  remedy  without 
automatic  suspensive  effect  will  not  satisfy  the  requirement  of  effectiveness.377  The 
option for applicants to obtain proper judicial protection and interim relief may have to 
translate in the issuance of a permit for immediate evacuation in situations of imminent 
danger,  to  safeguard  the  effectiveness  of  rights  under  Articles  4  and  19(2)  CFR. 
Otherwise, while appeals are being considered by a competent judge, a system of interim 
shelter  in  premises  subjected  to  diplomatic  inviolability,  be  it  an  embassy  or  EU  /  UN 
buildings  under  equivalent  protection,  ought  to  be  made  available  to  the  applicant  for 
him/her to voluntarily relocate. 

As with the first policy option, to avoid any detrimental effect that the adoption of these 
arrangements may entail, the roll out of LTV visas for asylum seeking purposes could be 
progressive and be first introduced in countries where the presence of applicants from 

370 Case C-277/11 M.M. ECLI:EU:C:2012:744, para. 86. 
371 Arts 10 and 13 CCV. 
372 Art 4 QD. 
373 Tarakhel, para. 104; Art. 4 SBC. 
374 M.M. (n 370), para. 83. 
375 M.S.S. (n 235), para. 358; Hirsi (n 241), para. 121; NS & ME (n 200), para. 88; Mengozzi (n 15), para. 140 ff. 
376  Moreno-Lax,  Accessing  Asylum  in  Europe  (OUP,  2017)  ch  10  and  references  therein.  Cf.  Reneman,  ‘An  EU 
Right to Interim Protection during Appeal Proceedings in Asylum Cases?’ (2010) 12 EJML 407. 
377 See, among many others, ECtHR, Sultani v. France, Appl. 45223/05, 20 September 2007, para. 50: ‘un recours 
dépourvu  d'effet  suspensif  automatique  ne  satisfaisait  pas  aux  conditions  d'effectivité  de  l'article  13  de  la 
Convention’. 

95 

 
 
 
                                                 
top refugee-producing States is most pressing and a presumption of unsafety / need for 
protection  from  refoulement  is  most  easily  recognised  on  the  basis  of  ‘information 
contained  in  recent  reports  from  independent  international  human-rights-protection 
associations…or  governmental  sources’  in  the  public  domain,  including  UNHCR. 378  In 
such cases, knowledge of circumstances that expose applicants to treatment in breach of 
the principle shall, indeed, be assumed and imputed to the authorities of the EU country 
concerned.379   

Opponents  of  this  policy  formula  will  raise  the  fear  of  numbers  again.  However,  the 
clogging of Member State embassies is improvable. At current capacities, the number of 
visas issued daily in EU-28 is in the thousands, with the system having never collapsed 
on  that  count.  According  to  the  European  Commission,  in  2017  alone,  Member  States 
managed to issue 14.6 million Schengen visas, of a total 16 million applied for (including 
a mere 100,000 LTVs), without incidents.380  

In  any  event,  the  fear  of  numbers  does  not  constitute  a  legal  argument,  let  alone  one 
capable of limiting the absolute nature of non-refoulement obligations. In truth, compliance 
with the CFR is not optional or open to negotiation,381 and given the non-limitable / non-
derogable  character  of  the  right  concerned,  even  a  mass  influx  or  other  commensurate 
difficulties ‘cannot absolve a State of its obligations under [the relevant] provision[s]’. 382 
Potential  ‘problems  with  managing  migratory  flows  cannot  justify  recourse  to  practices 
which  are  not  compatible  with  the  State’s  obligations…’.383  Thus,  the  legislator,  when 
deciding on how to arrange visas to avoid refoulement should strictly adhere to EU law, 
avoiding political or ideologically motivated temptations. 

If a rationalization of the visa system were, nonetheless, desired, the CCV provides for 
several  options  to  this  effect,  leaving  ample  freedom  for  Member  States  to  manage 
applications electronically, for instance, or with the collaboration of honorary consuls or 
via  co-location  or  representation  by  other  Member  States,  which  would  still  permit 
coordination with Dublin rules.384 What must be born in mind at all times is the need for 
any forms of collaboration to ensure that ‘the quality of the service offered to the public is 
of a high standard and follows good administrative practice’. For the purpose, Member 
States ‘should allocate sufficient resources in order to facilitate as much as possible the visa 
application process’.385 And, crucially, ‘access to consulates’ ought to be maintained.386 

This formula allows Member States to keep current levels of control over entries at the 

378 Hirsi (n 241), paras 118, 123, and 125-126; M.S.S. (n 235), paras 147 and 353. 
379 Hirsi (n 241), paras 131 and 156. 
380 European Commission, Complete statistics on short-stay visas issued by the Schengen States, Visa Statistics 
2017  <https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/visa-
for  Consulates 
policy#stats>.  
381 Art 6 TEU and Art 51 CFR. 
382 Hirsi (n 241), paras 122-23. 
383 Ibid., para. 179. 
384 Recital 13, Preamble, CCV and Arts 40-42 CCV. 
385 Recital 7, Preamble, CCV (emphasis added). 
386 Art 8 CCV; and Recitals 4 and 15, Preamble, CCV. 

96 

 
 
 
 
                                                 
issue  LTVs.  Confronted  with  potentially  high  (or 

pre-arrival  stage.  But  it  entails  the  risk  of  diverging  practices  or  even  free  riding  and 
defaulting  by  Member  States  attempting  to  avoid  Dublin  responsibility  for  those  to 
just 
whom  they  ought  to 
umpredictable) numbers of applicants, Member States may decide to adopt exceedingly 
strict  interpretations  or  even  misapply  or  chose  to  ignore  the  common  rules.  A  notable 
example  of  this  practice  emerged  during  the  2015  ‘refugee  crisis’  in  relation  to  the 
relocation  scheme  adopted  in  favour  of  Italy  and  Greece  that  Slovakia  and  Hungary 
opposed and disregarded, supported by Poland, contesting its legality under EU law.387 
In  less  radical  fashion,  disparities  in  implementation  cannot  be  obviated.  EASO  has 
revealed  serious  gaps  between  Member  States  in  the  ways  in  which  CEAS  rules  are 
interpreted  and  applied,  documenting  divergences  in  decision  practices,  recognition 
rates,  and  types  of  protection  granted388  –  this  is  precisely  part  of  the  justification  to 
review  the  ‘asylum  package’  and  come  up  with  more  integrated  formulas,  thus 
motivating the transformation of Directives into Regulations. 389   

To  address  the  risk  of  under-performance  or  non-engagement,  the  introduction  of  a 
robust  and  independent  monitoring  system  will  be  crucial,  whether  by  EASO,  the 
European  Commission  or  some  other  impartial  actor.  Cooperation  with  UNHCR  and 
specialised NGOs will be key to this effect. And, to secure the integrity and credibility of 
the  system,  a  sanctioning  mechanism  that  penalises  non-compliance  should  be 
established – similar to those in place within the Schengen scheme or as proposed in the 
Dublin IV reform. Positive incentives could also be introduced, in the form of financial 
and  other  support  for  countries  issuing  asylum  seeker  visas  and  hosting  LTV  arrivals, 
which could be entirely covered by EU funds.  

Another way to foster compliance is to break the link between allowing entry into the 
Schengen space and bearing responsibility for the examination of asylum claims. This 
could  be  achieved  through  the  amendment  of  the  Dublin  allocation  criteria  and  the 
adoption of a system of responsibility distribution that complies with the principle of 
solidarity, along the lines of the one proposed as part of Option 3 below. 

BENEFICIARIES 

LEGAL CHANGES 

MATERIAL 
INSTITUTIONAL 
PROCEDURAL 
INVESTMENT(S) 

COMPLIANCE 
WITH 
FUNDAMENTA
L RIGHTS 
OBLIGATIONS 

PRE-ARRIVAL 
SECURITY 
AND 
CONTROL 

Persons raising 

Need 

for 

new 

Need to maintain access to 

Risk of becoming 

Equal to 

387 Joined Cases C‑ 643/15 and C‑ 647/15 Slovakia and Hungary v Council ECLI:EU:C:2017:631. 
388  See,  e.g.  Annual  Report  on  the  Situation  of  Asylum  in  the  European  Union  (EASO,  2016),  pp.  26  and  48 
the 
<https://www.easo.europa.eu/sites/default/files/annual-report-2016.pdf>;  and  Annual  Report  on 
Situation 
166 
(EASO, 
<https://www.easo.europa.eu/sites/default/files/Annual-Report-2017-Final.pdf>. 
389  Completing  the  reform  of  the  Common  European  Asylum  System:  towards  an  efficient,  fair  and  humane 
asylum  policy,  European  Commission  Press  Release,  13  July  2016  <http://europa.eu/rapid/press-release_IP-
16-2433_en.htm>. 

European 

Asylum 

Union 

2017), 

the 

of 

in 

p. 

97 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
legislative instrument 
[possibly  inspired  by 
existing LTV rules]  

prima facie issues 
under Art 4 CFR 

[minimal pre-
arrival 
assessment 
required by 
State authorities] 

fully-fledged 
extra-territorial 
processing 
scheme 

current level 
under CCV 
[Regulation 
810/2009] 

Risk of under-
performance / 
non-engagement 
by Member 
States willing to 
avoid Dublin 
responsibility 

embassies / consulates 

robust 
for 
Need 
monitoring  /  punishing 
mechanism 
avoid 
defaulting 

to 

Need  to  comply  with  Arts 
41 and 47 CFR: 

-  Competent  personnel  to 
examine  requests  and  take 
substantiated decisions 
- Legal aid / representation 
/ translation services 
to  be  heard 
-  Right 
(possibly through e-means) 
-  Right  to  effective  remedy 
with suspensive effect 

for  a  system  of 
Need 
urgent  evacuation  and/or 
interim 
shelter  while 
appeals are examined 

Fear  of  numbers  can  be 
palliated  via  cooperation 
(representation/co-
location/honorary  consuls 
formulae)  and  piloting  of 
scheme prior to full roll out 

Table 6: Overall Assessment of Policy Option 2 – LTVs for Asylum Seeking Purposes 

6.1.3 EU-Wide International Protection Application Travel Permits 

The  most  ambitious  plan  would  be  for  the  complete  centralization  of  admission 
procedures in joint visa centres, e.g. within EEAS representations abroad, with processing 
assumed or coordinated by the soon-to-be EU Asylum Agency (replacing EASO).390 This 
would eliminate variation across Member States, ensuring a fully harmonized approach 
to visa issuing for asylum seekers. Yet, it would require a very high level of trust, the re-
structuring  of  the  Dublin  criteria  for  allocation  of  responsibility  for  the  examination  of 
ensuing  asylum  claims,  and  a  post-arrival  allocation  mechanism,  similar  to  the  one 
governing  the  2016  relocation  scheme, 391  to  guarantee  compliance  with  responsibility-
sharing and solidarity requirements under Article 80 TFEU.  

390  Proposal  for  a  Regulation  on  the  European  Union  Agency  for  Asylum  and  repealing  Regulation  (EU)  No 
439/2010, COM(2016) 271. 
391  Council  Decision  (EU)  2015/1523  of  14  September  2015  establishing  provisional  measures  in  the  area  of 
international  protection  for  the  benefit  of  Italy  and  Greece,  [2015]  OJ  L  239/146;  and  Council  Decision  (EU) 
2015/1602 of 22 September 2015 establishing provisional measures in the area of international protection for the 
benefit of Italy and Greece, [2015] OJ L 248/80 (’EU Relocation Decisions’). 

98 

 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Current  visa  rules  already  provide  for  the  possibility  of  establishing  ‘Common 
Application  Centres’  where  the  consular  staff  ‘of  two  or  more  Member  States  [are] 
pooled  in  one  building  in  order  for  applicants  to  lodge  [visa]  applications’.392  But  this 
formula  does  not  entail  that  decisions  are  taken  on  a  EU-wide  basis  on  behalf  of  the 
Member  States  represented  at  the  Common  Application  Centre.  In  reality,  once  there, 
‘applicants shall be directed to the Member State competent for examining and deciding 
on the application’.393 Competence rules are established in Article 5 of the Visa Code. The 
Member State competent for the assessment of the application is normally the one ‘whose 
territory  constitutes  the  sole  [or  main]  destination  of  the  visit(s)  [concerned]’. 394  If  that 
cannot  be  determined,  then  it  will  be  the  Member  State  ‘whose  external  border  the 
applicant intends to cross [first] in order to enter [Schengen] territory’. 395  

Since  keeping  these  allocation  criteria  may  be  ‘tantamount  to  [subsequently]  allowing 
third-country  nationals  to  lodge  applications  for  [asylum]  in  the  Member  State  of  their 
choice’,  with  that  presumably  ‘undermin[ing]  the  general  structure  of  the  system 
established  by  [the  Dublin]  Regulation’,396  the  EU  legislator  may  prefer  to  adopt  an 
alternative solution. And, instead of  individual Member States taking visa decisions for 
the purposes of seeking asylum on their own, centralize decision-making within a EU-
wide  structure.  This  could,  for  instance,  be  a  set  of  specially  trained  EASO  officials 
seconded  to  EEAS  representations  in  third  countries. 397  Decisions  would  then  be  taken 
on  behalf  of  the  Union  as  a  whole  and  successful  candidates  allocated  according  to  a 
predetermined distribution key, which could well be inspired by the one at play within 
the  2016  relocation  scheme,  based  on  territory,  population,  GDP,  protection  capacities, 
and  past/current  asylum  efforts.398  This  means  that  each  Member  State  will  have  a 
predefined  yearly  quota,  which  the  EASO  and/or  the  Commission  would  review 
annually or at shorter intervals, depending on flows. The allocated Member State would 
count as the country of ‘first entry’ for Dublin purposes—requiring a modification of the 
Regulation  to  this  effect—so  that,  in  case  of  subsequent  secondary  movements,  Dublin 
criteria could apply unchanged.  

To  minimize  disruption  by  different  levels  of  ‘popularity’  of  Member  States,  possibly 
leading  to  an  uneven  distribution  of  applicants,  a  preference-matching  mechanism, 
similar  to  the  one  developed  by  EASO  for  the  implementation  of  relocation  decisions, 
could be put in place. 399 Family, language, or cultural links could be relied upon to this 
effect—but  avoiding  them  becoming  ‘hidden’  qualification  criteria,  in  violation  of  the 
principle  of  non-discrimination  amongst  refugees.400  On  that  basis,  asylum  seekers,  as 

392 Art 41(2) CCV. 
393 Ibid. 
394 Art 5(1)(a) and (b) CCV. 
395 Art 5(1)(c) CCV. 
396 X and X (n 11), para. 48. 
397 Such powers will need to be clearly conferred in the recast version of the EASO Regulation. See Proposal for 
a  Regulation  on  the  European  Union  Agency  for  Asylum  and  repealing  Regulation  (EU)  No  439/2010, 
COM(2016) 271. 
398  EU Relocation Decisions (n 391). 
399 Guild, Costello and Moreno-Lax (n 118). 
400 Art 3 GC. 

99 

 
 
                                                 
part  of  their  visa  application,  could  list,  e.g.,  up  to  5  Member  States,  in  order  of 
preference, providing reasons for that classification. While the quota of the top 1 country 
is  not  yet  filled,  the  asylum  seeker  may  be  assigned  to  it.  If  already  filled  at  that  point, 
then,  the  second  listed  may  be  considered  and  so  on.  A  more  complex  variant  of  this 
model  could  have  Member  States  listing  also  their  own  preferences,  which  would  be 
‘crossed’  with  those  of  applicants,  prior  to  assigning  a  final  destination.  This  will  take 
account of legitimate  interests by countries and better respect the agency of the persons 
concerned, while still not creating a ‘right to chose’ the country of destination.  

A  corrector,  taking  account  of  children  rights,  family  unity,  and  dependency  links,401 
will  also  have  to  be  in  place,  so  that  the  quotas  of  Member  States  can  be  ‘exchanged’ 
between themselves to meet Charter obligations. In case of a country exceeding its quota, 
a  compensatory  mechanism,  consisting  in  extra  funding  and/or  a  reduced  quota  the 
following year, could be introduced to ensure compliance with Article 80 TFEU.402 This 
will  foster  engagement  with,  and  trust  in,  the  system,  while  reducing  chances  for 
unnecessary uses of force that may violate fundamental rights during, or due to, forced 
transfers.403  

Another measure to avoid the delays and disparities seen during the implementation of 
the 2016 Relocation scheme concerns pre-arrival security vetting. Under the 2015 Council 
Decision  arrangements  buttressing  the  scheme,  security-related  decisions  were  to  be 
adopted by the beneficiary Member States (whether Italy or Greece), but ended up being 
duplicated  by  receiving  countries. 404  To  prevent  the  repetition  of  this  scenario,  security 
checks should be centralised as well and adopted on the basis of a common set of criteria 
that reflects the concerns of the Member States with EU-wide import or effects and does 
not  go  beyond  what  is  legally  permissible  under  current  rules.  There  should  also  be  a 
clear  understanding  of  how  far  security  checks  can  go  and  which  consequences  may 
ensue  therefrom,  so  that  they  do  not  constitute  an  exclusion  procedure  in  disguise. 
Crucially, Member States should bear in mind that security concerns do not release them 
of their non-refoulement obligations—even declared criminals and suspected terrorists are 
protected under Article 3 ECHR. 405 An option in such cases may be for these applicants to 
be  placed  under  surveillance  or  received  in  closed  reception  centres  upon  arrival,  with 
detention  following  pre-established  legal  norms,  including  judicial  oversight,  and 

401  Case C-648/11  M.A.  ECLI:EU:C:2013:367,  para. 55; and  Case C-245/11  K  ECLI:EU:C:2012:685,  paras  31, 35, 
40, 48 and 54. 
402 In a way, this is already happening on an ad hoc basis. See, e.g., the EUR 4.5 billion compensation planned for 
Germany  in  the  next  EU  budget  2012-27,  to  indemnify  the  financial  burden  of  taking  in  1.7  million  refugees 
since  2013:  ’Germany  to  receive  compensation  payments  for  refugees’,  Deutsche  Welle  (1  June  2018) 
<http://m.dw.com/en/germany-to-receive-compensation-payments-for-refugees-report/a-
44038746?xtref=https%253A%252F%252Fduckduckgo.com%252F>.  
403 In this line, see Guild et al., Enhancing the CEAS and Alternatives to Dublin, PE 519.234 (European Parliament, 
July 
2015) 
<http://www.europarl.europa.eu/RegData/etudes/STUD/2015/519234/IPOL_STU(2015)519234_EN.pdf>; 
and Guild et al., New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking 
International 
2014) 
<http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509989/IPOL_STU(2014)509989_EN.pdf>. 
404 Guild, Costello and Moreno-Lax, (n 118). 
405  ECtHR,  Soering  v.  UK,  Appl.  14038/88,  7  July  1989  (murderer);  Saadi  v.  Italy,  Appl.  37201/06,  28  February 
2008 (terrorist suspect). 

Parliament, 

(European 

PE509.989 

Protection, 

October 

100 

 
 
                                                 
adopted as final recourse, when no other alternatives are available.406 

And,  to  help  palliate  the  effects  of  any  possible  increases  in  the  demand  for  visas,  like 
with the other options above, a piloting approach prior to full roll out can help planning 
and optimizing resources. Cooperation with external service providers, which is another 
modality  of  cooperation  contemplated  in  current  law, 407  could  also  be  contemplated. 
Non-State entities and private actors, such as specialised international organisations and 
NGOs, have already been involved in recent PEP experiences, as mapped out in Chapter 
3.  The  IOM  ‘service  centres’,  opened  in  June  2016  to  support  the  German  Family 
Assistance Programme, are a case in point.  Therein, IOM staff has been  trained  to  offer 
pre-interview  support  in  culturally  sensitive  and  accessible  ways,  including  for  the 
completion of the relevant online application forms, file completeness checks, facilitation 
of contacts  with sponsors  via Skype, phone and email, scheduling  and re-scheduling of 
interview appointments, photo-taking and photocopying services, and (in select centres) 
also for the enrolment of biometric data. Also, to ensure safe access to IOM premises, the 
organisation  provides  escort  and  shuttle  bus  services,  and  even  visits  to  applicants’ 
locations. They have opened a dedicated Facebook page and Twitter account to enhance 
outreach, correct misinformation spread through social media, and furnish accurate data. 
Finally, IOM also delivers orientation and integration classes to potential beneficiaries.408 
A similar approach could be adopted in support of this or the above options to develop a 
workable, comprehensive regime of visas for asylum seeking purposes in the EU. 

The  role  of  technology  should  also  be  carefully  pondered  upon.  The  use  of  electronic 
media  for  the  enrolment  of  data  in  the  VIS  and  for  most  of  the  current  pre-application 
operations,  such  as  collecting  the  relevant  information,  managing  appointments,  and 
organizing  communication  between  service  providers,  the  applicant,  and  the  issuing 
consulate,  already  take  place  through  e-means.  This  is  why  the  current  Article  44  CCV 
calls  for  the  encryption  and  secure  transfer  of  sensitive  data.  To  cater  for  increased 
pressures on visa delivery systems, the function of online services and devices could be 
further  expanded  as  a  way  to  increase  processing  capacities.  The  IOM  has  piloted  a 
‘MigrantApp’ in Central America, ‘one of the main migratory corridors in the world’, to 
‘provide  information  to  facilitate  regular,  safe  and  orderly  migration  using  mobile 
devices’.  The  application  offers  ‘reliable,  rapid,  safe  and  free  information  in  three 
languages  on  governmental,  private  and  civil  society  services  for  migrants’,  and 
‘facilitates access to…more than 1,500 geo-referenced centres where migrants can receive 
assistance  or  information’.409  Something  similar  could  be  developed  to  support  the 
system of humanitarian visas within the EU. 

406  Suspects  should  then  be  put  to  trial—pursuant  to  the  aut  dedere  aut  judicare  principle—and  subsequently 
released, if found innocent, or penalised according to the applicable criminal law of the receiving Member State. 
407 Art 43 CCV; Recitals 14-17, Preamble, CCV; and Annex 10 CCV (emphasis added). 
408  German  Federal  Foreign  Office, 
2017, 
<http://germany.iom.int/sites/default/files/FAP/FAP_Infosheet_ENGLISH_2017-04-04.pdf>.  The  Facebook 
page  is  <https://www.facebook.com/IOM.Family.Assistance.Programme/>  and  the  Twitter  account  is 
<@IOM_FAP>. 
409  IOM  News,  ‘UN  Migration  Agency  Launches  Mobile  App  for  Migrants  in  Mesoamerica’,  10  June  2017 
<https://www.iom.int/news/un-migration-agency-launches-mobile-app-migrants-mesoamerica>. 

IOM’s  Family  Assistance  Programme, 

4  April 

101 

 
 
                                                 
Remedies  will  have  to  be  provided  under  this  formula  too.  The  difficulty  with  a 
centralised system where a EU body takes EU-wide decisions entails that there has to be 
a  EU  competent  court  or  tribunal  that  can  hear  appeals  in  a  prompt  and  effective  way, 
meeting Article 47 CFR standards. This can be solved in different ways. There could be a 
panel of experts, sourced from different, independent and reliable bodies (e.g. UNHCR, 
ECRE,  and  other  specialist  organisations),  taking  on  a  quasi-judicial  role,  and  being 
vested  with  enough  powers  and  independence  to  review  EASO  decisions  and  afford 
adequate  reparation  for  any  harm  done410;  a  special  tribunal  for  asylum  cases  created 
within the CJEU, like the Civil Service Tribunal adjudicating upon EU staff cases411; or a 
special  procedure,  inspired  by  the  CJEU  urgent  procedure  for  matters  concerning 
freedom, security and justice,412 or the expedited procedure applied by the General Court 
‘in cases considered to be particularly urgent’ could  also offer an adequate approach. 413 
The  first  solution  will  require  wording  being  inserted  to  this  effect  in  the  EASO  recast 
Regulation.  The  second,  in  turn,  may  necessitate  a  Treaty  amendment.  The  third 
approach, on the other hand, may be fulfilled with a change to the Rules of Procedure of 
the  CJEU—the  application  to  the  General  Court  for  the  purposes  of  reviewing  EASO 
decisions would be covered by the current terms of Article 263 TFEU on direct actions for 
invalid / illegal acts of EU organs.   

For  positive  outcomes,  whether  at  first  instance  or  after  appealing  a  negative  decision, 
travel and other assistance will be crucial. A partnership with UNHCR, IOM and other 
organisations,  as  currently  in  existence  in  relation  to  some  of  the  PEPs  explored  in 
Chapter 3, can facilitate logistics and pre-arrival arrangements. Accurate information as 
for how to proceed on arrival, whom to contact, where to file the application, etc. will be 
essential  to  the  well-functioning  of  the  system.  A  mentoring  mechanism  whereby 
successful applicants are received at the airport and accompanied to the relevant places / 
brought  before  the  competent  authorities  would  be  the  best  formula.  This  is  something 
that  local  NGOs  could  assume  after  landing  and  which  is  common  practice  within 
community and private sponsorship schemes. 

A final point to elucidate relates to the destiny of rejected cases and its relationship with 
‘spontaneous  arrivals’.  Since  the  circumstances  leading  to  a  need  for  protection  can  be 
very  volatile,  today’s  rejected  case  may  be  tomorrow’s  urgent  situation.  So,  the 
opportunity  for  re-applying  for  a  new  visa  afresh,  with  flexibility  in  terms  of  time 
elapsed between applications, avoiding rigid, automatic assumptions, and taking account 
of conditions ex nunc, will be important. In any case, the need to consider that there will, 
nonetheless, always be cases that cannot wait, or are not well informed, and thus take the 
‘spontaneous  arrival’  route.  Here,  Article  31  GC  becomes  relevant  again  so  that  those 

410 The requirements of competence, permanence, impartiality, compulsory jurisdiction, and independence will 
have to be met. See Associação Sindical dos Juízes Portugueses (n 224), para 38 ff.  
411 EU Civil Service Tribunal <https://curia.europa.eu/jcms/jcms/p1_217428/en/>.  
412  Consolidated  version  of  the  Rules  of  Procedure  of  the  Court  of  Justice  of  25  September  2012 
<https://curia.europa.eu/jcms/upload/docs/application/pdf/2012-10/rp_en.pdf>.  
413  The  General  Court 
05/tribunal_en.pdf>.  

(undated)  <https://curia.europa.eu/jcms/upload/docs/application/pdf/2012-

102 

 
 
 
                                                 
concerned are not punished for their irregular entry.414 

A  system  of  monitoring,  reporting,  and  periodic  review  should  also  be  introduced,  to 
ensure  that  any  flaws  are  addressed  and  any  changes  necessary  introduced  in  timely 
fashion.  Monitoring,  to  be  credible  and  effective,  will  need  to  be  entrusted  to 
independent actors. These can be highly renowned human rights organisations (such as 
Human Rights Watch or Amnesty International), specialised NGOs (e.g. ECRE and/or its 
national  partners),  the  members  of  the  EASO  Consultative  Forum,  the  FRA,  or  a 
combination  thereof.  Reporting  will  need  to  take  place  from  the  ground  up.  Both 
consular  personnel  and  asylum  authorities  in-land  concerned  with  this  procedure  in 
addition  to  the  EU  bodies  involved  should  keep  the  Asylum  Agency  (as  well  as  the 
European  Commission,  the  Council  and  the  Parliament)  well  informed.  On  the  basis  of 
information  gathered  through  those  two  channels,  the  European  Commission  should 
conduct  a  periodic  review.  Asylum  capacities,  distribution-key  criteria,  and  related 
quotas per country will need constant short-term (probably yearly) assessment, while the 
‘asylum seeking visas’ mechanism as a whole may be subjected to evaluation on a three 
to five years basis to guarantee fitness for purpose. 

BENEFICIARIES 

LEGAL CHANGES 

MATERIAL 
INSTITUTIONAL 
PROCEDURAL 
INVESTMENT(S) 

COMPLIANCE 
WITH 
FUNDAMENTA
L RIGHTS 
OBLIGATIONS 

PRE-ARRIVAL 
SECURITY 
AND 
CONTROL 

Equal to 
current level 
under CCV 
[Regulation 
810/2009] 

[Compatible 
with ETIAS 
plans] 

Lesser risk of 
becoming fully-
fledged extra-
territorial 
processing 
scheme 

[especially if 
contribution by 
NGOs and 
independent 
bodies] 

Persons raising 
prima facie issues 
under Art 4 CFR 

[pre-arrival 
assessment 
required by EU 
authorities] 

Need for new 
legislative 
instrument, 
including: 

-  EU-wide structure; 
- centralised decision-
making by EASO; 
- distribution key; 
- preference-
matching tool; 
- correction / 
compensation system 
- EU appeal system 
- pre- and post-
arrival mentoring 
mechanisms 

Need for 
amendments of 
Dublin III and EASO 
Regulations   

Need  to  develop  EU  visa 
centres  /  equip  EEAS 
representations 

Need 
robust 
for 
monitoring  mechanism  to 
avoid malfunctioning 

Need  to  comply  with  Arts 
41 and 47 CFR: 

-  Competent  personnel  to 
examine  requests  and  take 
substantiated decisions 
- Legal aid / representation 
/ translation services 
-  Right 
to  be  heard 
(possibly through e-means) 
-  Right  to  effective  remedy 
with suspensive effect 

Need 

for  a  system  of 

414  Consolidated  version  of  the  Rules  of  Procedure  of  the  Court  of  Justice  of  25  September  2012 
<https://curia.europa.eu/jcms/upload/docs/application/pdf/2012-10/rp_en.pdf>.  

103 

 
 
 
 
 
 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
urgent  evacuation  and/or 
interim 
shelter  while 
appeals are examined 

Fear  of  numbers  can  be 
palliated  via  system  of 
distribution and piloting of 
scheme prior to full roll out 

be 

palliated 

Fear  of  draining  resources 
via 
can 
with 
cooperation 
specialised 
organisations 
(UNHCR  /  NGOs)  who 
can assist at several points 

Table 7: Overall Assessment of Policy Option 3 – EU-Wide Asylum Seeker Visas 

6.2 Choice of Instrument 

Considering  the  objective  pursued  with  the  adoption  of  a  system  of  visa  issuing  for 
asylum  seeking  purposes,  in  line  with  non-refoulement  obligations,  the  most  appropriate 
type  of  instrument  is  one  that  is  legally  binding.  A  non-binding  recommendation  will 
not be enough to guarantee compliance with the underlying legally binding duties under 
Articles 4 and 19(2) CFR.  

To minimize deviation from these (already existing) common obligations under EU law, 
the most suitable choice, between a Directive or a Regulation, is the latter. This is also 
the form of the visa acquis, the Schengen Borders Code, and the forthcoming third-phase 
CEAS  instruments.  Allowing  Member  States  ‘the  choice  of  form  and  methods’  of 
implementation  has  proven  ineffective  in  the  past.415  As  the  survey  in  Chapter  3 
demonstrates,  it  has  given  rise  to  the  emergence  of  different  criteria  and  different 
processes,  underpinned  by  different  standards  of  application.  To  preserve  the  integrity 
and well-functioning of the current rules governing the field, the best is to adopt similar 
arrangements  of  ‘general  application’  that  are  ‘binding  in  [their]  entirety  and  directly 
applicable  in  all  Member  States’,416  like  those  presently  regulating  visa  policy,  external 
border controls, and international protection in the EU. 

As  for  the  preferred  policy  option  of  the  three  identified  above,  the  comparative  table 
below  should  be  of  guidance  to  inform  the  choice,  considering  the  strengths  and 
weaknesses  of  each,  and  their  potential  to  resolve  the  problem  of  access  to  the  CEAS 
through  legal  pathways  in  a  manageable  and  security-proof  way.  The  adequacy  of  the 
policy is represented with “+” signs, from the least (“+”) to the most (“+++”) convenient, 
depending on the level of resources, legal amendments, compliance with obligations and 
possibilities  to  retain  security  and  pre-arrival  controls  required  in  each  case.  The 

415 Art 288, third indent, TFEU. 
416 Art 31 GC (n 321). 

104 

 
 
 
 
 
 
 
                                                 
presumption  is  that  the  lesser  the  changes  and/or  resource  investments  required,  the 
better;  and  the  greater  the  opportunities  for  compliance  with  fundamental  rights 
obligations and opportunities for pre-vetting checks, the more suitable as well.  

BENEFICIARIES 

LEGAL 
CHANGES 

MATERIAL 
INSTITUTIONAL 
PROCEDURAL 
INVESTMENTS 

COMPLIANCE 
WITH 
FUNDAMENTAL 
RIGHTS 

VISA 
WAIVER 
LTVs 
EU VISAS 

+++ 

+ 

++ 

+++ 

++ 

+ 

+++ 

++ 

+ 

+++ 

+ 

++ 

PRE-
ARRIVAL 
SECURITY 
AND 
CONTROL 

+ 

+++ 

++ 

SOLIDARITY AND 
FAIR-SHARING OF 
RESPONSIBILITY 

++ 

+ 

+++ 

Table 8: Rating Policy Options – Advantages and Disadvantages in Perspective 

According to this scheme, the maximum points the optimum policy option could obtain 
(scoring  “+++”  in  every  category)  is  18,  which  provides  a  numerical  representation  of 
appropriateness to tackle the problem of the need to provide lawful access to the CEAS 
by  its  addressees  and  achieve  the  objective  of  a  harmonized  approach  that  respects  the 
integrity of the Schengen cooperation and maintains mutual trust. Following these rules, 
the option that scores highest in the six adequacy parametres considered throughout the 
chapter  is  the  visa  waiver  approach  with  15  points.  The  LTV  formula  scores  10  points, 
while EU-wide asylum visas obtain 11 points.   

legislative  amendment,  no 

Proportionality-wise,  the  visa  waiver  approach  is  the  least  intrusive,  adhering  to  the 
minimum  intervention  necessary  to  meet  the  objective  pursued,  while  maximising  the 
benefits  of  EU  added  value.  It  reaches  out  to  a  maximum  number  of  beneficiaries, 
requires  minimum 
in  extraterritorial 
infrastructure, and ensures full compliance with non-refoulement and related fundamental 
rights obligations. On the down side, this option does not allow for pre-frontier security 
or other checks – at least until the ETIAS reform is adopted. Nonetheless, the option still 
offers  a  better  opportunity  for  controls  upon  arrival  at  the  border  than  in  the  current 
situation  of  ‘spontaneous’  entries,  usually  through  irregular  means,  which  makes  it 
preferable to the status quo. The fear of numbers, from its part, would require a strategy 
of  tailored  and  controlled  roll  out  in  progressive  phases,  selected  countries,  or  chosing 
specific categories of vulnerable persons.  

investments 

The other policy options allow for an increased amount of security and control at the pre-
frontier  stage,  but  have  other  drawbacks.  The  LTV  solution  requires  the  adoption  of  a 
new,  dedicated  legisltative  instrument  that  caters  for  the  material,  procedural  and 
structural  investments  necessary  to  receive  requests  abroad  and  undertake  prima  facie 
processing. The need to comply with effective remedy and procedural guarantees as per 
the  Charter  of  Fundamental  Rights  calls  for  consideration  of  matters  of  expertise, 
independence,  impartiality,  interim  relief,  and  the  question  of  provisional  shelter  while 

105 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(and  also  sanctioning)  mechanism 

appeals (with suspensive effect) against negative decisions are being examined. With the 
system  being  de-centralised,  the  scope  for  free  riding  and  defaulting  is  large,  unless  a 
is  developed.  With  no 
robust  monitoring 
accompanying  review  of  Dublin  criteria  to  apportion  responsibility  for  the  examination 
of  asylum  claims  upon  arrival,  the  incentives  to  not  comply  will  remain  high.  And 
keeping pre-arrival security checks entirely in the hands of the Member States may lead 
to the development  of a fully-fledged extraterritorial  (dis-)qualification system ‘through 
the  back  door’  that  filsters  out  risky  candidates  for  reasons  unrelated  to  refoulement.  If 
these flaws finally materialise, the politcy objective pursued will not be attained and the 
original  problem  identified  will  remain  unresolved,  replicating  the  current  situation  of 
unavailability  of  legal  pathways  for  access  to  protection  in  the  EU  Member  States. 
Therefore,  it  is  crucial  that,  should  this  option  be  pursued,  the  EU  legislator  takes  the 
necessary precautions to offset drawbacks. 

FUNDAMENTAL RIGHTS 

SECURITY AND CONTROL 

VISA WAIVER 

EU ASYLUM SEEKER VISAS 

LTVs 

Table 9: Locating Policy Options within Rights-Security Continuum 

EU-wide  Asylum  Seeker  Visas  sit  somewhere  in  the  middle  of  the  two  extremes, 
representing a compromise between the maximum adherance to fundamental rights that 
the visa waiver option represents and the maximum scope for Member State security and 
pre-arrival  control  that  a  reformed  LTV  mechanism  would  entail.  The  amount  of 
legislative action and resource investments will be high, but not necessarily  higher than 
in relation to the Frontex reform into a fully-fledged corps of European Border and Coast 
Guard  or  the  creation  of  a  European  External  Action  Service,  for  example.417  Thus,  it 
cannot  a  priori  be  discarded  as  an  appropriate  option  from  the  proportionality 
perspective.  The  higher  investment  this  policy  option  requires  cannot  a  priori  be 
considered  to  exceed  what  is  necessary  to  solve  the  original  access  problem  for  asylum 
seekers  in  a  manner  that  achieves  the  objective  of  coherence  of  interpretation  of  entry 
rules  for  protection  purposes,  uniformity  of  practice  in  their  implementation,  and 
integrity of the Schengen regime and the mutual trust on which it is based. The formula 
will  entail  a  certain  amount  of  pre-departure  prima  facie  assessment  of  refoulement  risks 
run  by  applicants,  like  in  the  case  of  LTVs  –  with  the  related  danger  of  over-
disqualification,  but,  through  centralisation,  the  dangers  of  free  riding,  defaulting,  and 
ultra-securitising  the  system  will  be  minimized.  This  policy  solution  is  also  the  best 
suited  to  ensure  compliance  with  the  principle  of  solidarity  and  fair  sharing  of 
responsibility  under  Article  80  TFEU.  The  extra  costs  are  commensurate  with  the 
objective  to  be  achieved,  they  can  be  covered  by  the  EU  budget  and  through  the 
(estimated)  savings  from  ‘transforming’  asylum  seekers’  irregular  entry  into  lawful 
admission  –  considering  this  will  substantially  decrease  the  demand  for  smuggling 
services,  reduce  the  room  available  to  trafficking  networks,  and  hence  the  costs 

417  On  this  point,  see  European  Commission  plans  for  the  next  multi-annual  financial  framework  2021-27, 
including a proposal to support a standing corps of 10,000 border guards (n 310). 

106 

 
 
 
 
 
 
 
                                                 
associated  with  the  EU  ‘fight  against  irregular  immigration’.418  Therefore,  if  the  visa 
waiver formula were discarded, due to a lack of political consensus around the matter of 
pre-arrival security and control, taking these advantages into account and the capacity to 
offset  the  risks  of  de-centralisation,  the  EU-wide  Asylum  Seeker  Visa  option  should  be 
preferred over a system of Member States’ LTVs.  

Intermediate options or a phased approach, combining the key benefits of each proposal 
can  also  offer  a  sustainable  way  forward.  Member  State  LTVs  could  represent  the  first 
step  towards  an  integrated  EU-wide  system  of  asylum  seeker  visas,  with  the  EU  visa 
waiver  approach  for  refugee-producing  countries  marking  the  final  milestone.  In  such 
case, de-centralised LTVs should be framed within a system that guarantees compliance 
with fundamental rights and the principles of solidarity between Member States and non-
discrimination  among  claimants.  An  ancillary  distribution  mechanism  that  ensures  the 
fair  allocation  of  responsibility,  possibly  including  a  preference-matching  scheme  and  a 
compensation tool, alleviating pressures deriving from the ‘first entry’ rule underpinning 
Dublin  III,  would  foster  compliance  and  buttress  trust  among  Member  States  and 
confidence by applicants. The centralisation of expenses in the EU budget, reliance on e-
means to deal with applications, cooperation with NGOs and other specialised actors at 
the  pre-  and  post-application  stages,  and  the  introduction  of  positive  and  negative 
incentives can also minimize costs and create a climate of cooperation and compliance.  

STARTING POINT 

FINAL PHASE 

LTVs 

EU ASYLUM SEEKER VISAS 

VISA WAIVER 

Table 10: Phased approach to legal pathways for access to protection in Europe 

418 See Research Paper on the Added Value of Humanitarian Visas – Economic Aspects (Milieu, 2018), table 16. 

107 

 
 
 
 
 
 
 
 
                                                 
CHAPTER 7. CONCLUSIONS AND RECOMMENDATIONS  

•  The  problem  of  access  to  international  protection  in  the  EU  needs  to  be  resolved. 
Currently, up to 90% of the total population of subsequently recognised refugees and 
beneficiaries of subsidiary protection reach the territory of Member States irregularly. 

•  How  entry  requirements  for  asylum  seekers  have  been  regulated  in  EU  law  is 
unclear and incomplete. Neither the Schengen nor the asylum or visa acquis set the 
norms  applicable,  which  has  led  to  their  assimilation  to  the  category  of  ‘irregular 
migrants’ before arrival. 

•  Most Member States have, or have had at some point, discretionary protected-entry 
procedures  (PEPs)  of  humanitarian  admission,  using  different  methods  and 
different criteria, facilitating access to their territories for protection-related purposes. 

•  PEPs  so  far  have  been  developed  on  the  idea  that  there  is  no  obligation  to  issue 
visas  for  asylum  seeking  purposes.  However,  because  asylum  seekers  qualify  as 
‘persons’  (without  qualification)  crossing,  or  showing  an  intention  to  cross,  the 
external borders of the Member States, as per the Schengen Borders Code (SBC) and 
Article  77(2)(b)  TFEU  on  which  the  Code  is  based,  their  situation  falls  to  be 
governed by EU law. 

•  This  being  the  case,  fundamental  rights  become  relevant,  as  per  the  Fransson 
decision,  including  the  protection  against  refoulement  contained  in  Articles  4  and 
19(2) CFR, which consolidate the substance of Article 3 ECHR as interpreted by the 
European Court of Human Rights in its case law.  As a result, any measure, including 
a rejection of entry or a visa refusal under Schengen rules, ‘the effect of which is to 
prevent migrants from reaching the borders of the [Member] State [concerned]’ may 
amount  to  refoulement  (Hirsi,  para.  180)  and,  if  it  exposes  the  applicant  to 
persecution or serious harm, is forbidden. What is more, in line with the Căldăraru 
judgement,  Member  States,  when  confronting  situations  representing  a  risk  of  ill 
treatment are obliged to take positive action to avert it, which, in the concrete case, if 
no other practicable alternatives are available, may require the delivery of a visa.  

•  The preservation of the integrity of the Schengen acquis requires EU-level action to 
be  adopted,  rather  than  initiatives  by  Member  States  on  their  own.  The  best-suited 
legal  bases  to  this  effect  are  Article  77(2)(a)-(b)  TFEU,  on  visas  and  controls  on 
persons  crossing  the  EU  external  borders,  and  Article  78(2)(g)  TFEU, calling on the 
EU legislator to adopt measures, as part of the CEAS, aimed at ‘managing the inflows 
of people applying for [international] protection’.  

•  Several  possibilities  are  available  to  the  EU  legislator  to  harmonise  the  criteria 
applicable  to  the  admission  of  asylum  seekers  into  Schengen  territory,  with 

108 

 
 
 
 
 
 
 
 
varying degrees and intensity of intervention necessary at EU level:  

(1)  The  visa  waiver  approach  only  needs  a  revision  of  the  current  visa  lists  in 
Regulation  539/2001  to  either  de-classify  or  suspend  the  visa  requirement  for 
nationals of top refugee-producing countries, where risks to life and/or freedom 
are  well  known  and  freely  ascertainable  from  publicly  available  and  reliable 
sources.  The  selection  of  the  countries  concerned  should  draw  on  EUROSTAT 
and UNHCR data.  

(2)  EU  humanitarian  visas  issued  by  Member  State  consulates  abroad, 
according  to  a  dedicated  instrument  that  harmonises  issuing  criteria  and 
procedures, in line with the good administration and effective remedy standards 
contained in Articles 41 and 47 CFR. A reformed set of LTV provisions may be 
useful to this effect.  

(3)  The  full  EU  centralisation  of  decision-making  and  distribution  of 
applicants  via  specialised  EASO  teams  making  or  coordinating  assessments 
within EEAS representations abroad. This option requires adjustment of Dublin 
criteria,  the  creation  of  a  distribution  mechanism  of  successful  applicants  via 
predefined  quotas  per  Member  State,  a  preference-matching  tool,  a  corrective 
system that accounts for children rights, family unity, and dependency links, and 
a  compensatory  tool  to  palliate  any  residual  uneven  distribution,  in  line  with 
Article 80 TFEU. 

•  Qualification criteria must match non-refoulement guarantees as per Articles 4 and 
19(2)  CFR,  so  that  those  having  an  ‘arguable  claim’  of  exposure  to  a  ‘real  risk’  of 
persecution or serious harm are granted a visa for asylum seeking purposes. 

•  Decisions  must  be  taken  on  a  prima  facie  basis  and  by  fully  competent  and  trained 
personnel.  Procedural  guarantees,  including  legal  aid,  information,  translation,  and 
representation  must  be  provided,  so  as  to  preserve  the  right  to  be  heard.  Appeals 
against negative decisions and effective remedies must also be available. 

•  To  address  ‘floodgates’  and  resource  concerns,  any  of  the  above  formulae  can  first 
be piloted in a controlled environment, selecting particular countries and periods of 
time,  prior  to  full  roll  out;  collaborating  with  private  service  providers,  including 
UNHCR  and  specialised  NGOs;  and  making  use  of  technology  and  e-means  to 
facilitate application processing. 

•  Annex  II  summarises  the  policy  options,  with  Annex  III  addressing  concerns  with 
regard to asylum  seeker visas.  Annex I offers a model of regulation for either LTV-
based  or  EU-wide  asylum  seeker  visas,  while  Annex  IV  illustrates  the  decision-
making flow regarding applications. 

109 

 
 
 
 
 
 
 
 
•  On  the  basis  of  the  above  and  taking  account  of  key  considerations  on  the 
proportionality  implications  of  each  option,  the  one  preferred  is  the  visa  waiver 
route,  as  it  maximizes  the  realization  of  policy  objectives,  while  keeping  EU 
intervention to the bare minimum:  

VISA 
WAIVER 
LTVs 
EU 
ASYLUM 
SEEKER 
VISAS 

• 

• 

BENEFICIARIES 

LEGAL 
CHANGES 

MATERIAL 
INSTITUTIONAL 
PROCEDURAL 
INVESTMENTS 

COMPLIANCE 
WITH 
FUNDAMENTAL 
RIGHTS 

+++ 

+ 

++ 

+++ 

++ 

+ 

+++ 

++ 

+ 

+++ 

+ 

++ 

PRE-
ARRIVAL 
SECURITY 
AND 
CONTROL 

+ 

+++ 

++ 

SOLIDARITY AND 
FAIR-SHARING OF 
RESPONSIBILITY 

++ 

+ 

+++ 

If sufficient political consensus is not  immediately available for the adoption of  this 
option,  a  phased  approach,  combining  the  key  benefits  of  each  proposal  should  be 
considered, with an improved Member State LTV regime representing the first step 
towards  an  integrated  EU-wide  scheme  of  asylum  seeker  visas  and  the  EU  visa 
waiver approach marking the final milestone.  

In such case, de-centralised LTVs should be framed within a system that guarantees 
compliance  with  fundamental  rights  and  the  principles  of  solidarity  between 
Member  States  and  non-discrimination  among  claimants.  An  ancillary  distribution 
mechanism  that  ensures  the  fair  allocation  of  responsibility,  possibly  including  a 
preference-matching and compensation tool, alleviating pressures deriving from the 
‘first entry’ rule underpinning Dublin III, would foster compliance and buttress trust 
among  Member  States  and  confidence  by  applicants.  The  centralisation  of  expenses 
in  the  EU  budget,  reliance  on  technology  and  e-means  to  deal  with  applications, 
cooperation with NGOs and other specialised actors at the pre- and post-application 
stages,  and  the  introduction  of  positive  and  negative  incentives  can  also  minimize 
costs and create a climate of cooperation and compliance. 

110 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX I 

MODEL REGULATION FOR EU-WIDE ASYLUM SEEKING PERMITS 

TITLE I GENERAL PROVISIONS 

Article 1 
Purpose 

This  regulation  establishes  the  procedures  and  conditions  for  issuing  uniform  visas  for 
the  purposes  of  reaching  the  external  borders  of  the  EU  Member  States  to  lodge  an 
application for international protection as defined in Directive 2011/95/EU. 

Article 2 
Scope of Application 

The provisions of this regulation shall apply to any third-country national who must be 
in possession of a visa when crossing the external borders of the Member States pursuant 
to Council Regulation (EC) No 539/2001and who is  in need of protection against a real 
risk  of  being  exposed  to  persecution  or  serious  harm,  as  defined  in  Directive 
2011/95/EU, in line with the prohibition of refoulement in Articles 4 and/or 19(2) of the 
Charter of Fundamental Rights of the European Union 

TITLE II PROCEDURES AND CONDITIONS FOR ISSUING VISAS 

Article 4  
Authorities Responsible 

De-centralised 
1.  Applications  shall  be  received  by 
consulates 

EU centralised 
1.  Applications  shall  be  received  by  EEAS 
representations abroad. 

2.  Decisions  on  a  ‘real  risk’  of  being 
exposed to persecution or serious harm, as 
defined  in  Directive  2011/95/EU,  shall  be 
taken by the national authorities competent 
to  examine  asylum  claims  as  per  Directive 
2013/32/EU 

2.  Decisions  on  a  ‘real  risk’  of  being 
exposed to persecution or serious harm, as 
defined  in  Directive  2011/95/EU,  shall  be 
taken by trained and competent officials of 
the  EU  Asylum  Agency  with  EU-wide 
effect. 

3.  Such  authorities  shall  sit  in-land  or  a 

3.  Such  officials  shall  be  permanently 
present  at  EEAS  representations,  so  as  to 

111 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
delegation 
seconded 
abroad.  

thereof 
to  national 

be 

permanently 
representations 

process  visa  applications 
seeking purposes. 

for  asylum 

4.  Visas  shall  be  issued  on  a  positive 
decision  on  the  existence  of  a  ‘real  risk’  of 
refoulement  

4.  Visas  shall  be  issued  on  a  positive 
decision  on  the  existence  of  a  ‘real  risk’  of 
refoulement  

Article 5 
Competent Member State / EEAS Representation 

competent 

De-centralised 
The  Member 
for 
State 
examining  and  deciding  on  an  application 
for  a  uniform  visa  for  asylum  seeking 
the  one  whose 
purposes 
representation  is  the  closest  and/or  safest 
for  the  applicant  to  approach,  so  as  to 
minimise the risk of persecution or serious 
harm 
from 
materialising. 

shall  be 

applicant 

facing 

the 

EU centralised 
The  EEAS  representation  competent  for 
receiving an application for a uniform visa 
for  asylum  seeking  purposes  shall  be  the 
one  which  is  the  closest  and/or  safest  for 
to 
the  applicant 
minimise the risk of persecution or serious 
from 
harm 
materialising. 

to  approach,  so  as 

applicant 

facing 

the 

Article 6 
Eligibility Criteria 

Persons  facing  a  ‘real  risk’  of  persecution  or  serious  harm  as  defined  in  Directive 
2011/95/EU  shall  be  issued  visas  for  the  purposes  of  applying  for  international 
protection under Directive 2013/32/EU 

Article 7 
Security Vetting  

De-centralised 

1.  The  Member  State  competent 
for 
examining and deciding on the application 
may undertake a security vetting process to 
establish  whether  the  applicant  concerned 
constitutes  a  threat  to  the  security  of  the 
EU.  

competent 

representation, 

EU centralised 
1.  The  EASO  team,  within  the  responsible 
for 
EEAS 
examining and deciding on the application 
may undertake a security vetting process to 
establish  whether  the  applicant  concerned 
constitutes  a  threat  to  the  security  of  the 
EU.  

2.  Security  in  this  framework  shall  be 

2.  Security  in  this  framework  shall  be 

112 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
defined solely by reference to Article 1F of 
the  1951  Refugee  Convention,  so  as  to 
detect  serious  reasons  for  considering  that 
the applicant: 
 (a) has committed a crime against peace, a 
war crime, or a crime against humanity, as 
defined  in  the  international  instruments 
drawn  up  to  make  provision  in  respect  of 
such crimes; 
(b)  has  committed  a  serious  non-political 
crime outside the country of refuge prior to 
his admission to that country; 
(c)  has  been  guilty  of  acts  contrary  to  the 
purposes  and  principles  of  the  United 
Nations.  

defined solely by reference to Article 1F of 
the  1951  Refugee  Convention,  so  as  to 
detect  serious  reasons  for  considering  that 
the applicant: 
 (a) has committed a crime against peace, a 
war crime, or a crime against humanity, as 
defined  in  the  international  instruments 
drawn  up  to  make  provision  in  respect  of 
such crimes; 
(b)  has  committed  a  serious  non-political 
crime outside the country of refuge prior to 
his admission to that country; 
(c)  has  been  guilty  of  acts  contrary  to  the 
purposes  and  principles  of  the  United 
Nations.  

3.  The  assessment  in  this  regard  must, 
however,  not  lead  to  summary  exclusion 
from  refugee  status,  which  shall  only  be 
determined  upon  arrival,  after  thorough 
examination  of  the  subsequent  asylum 
claim,  and  in  compliance  with  fair  trial 
guarantees  under  the  ordinary  procedure 
regulated in Directive 2013/32/EU. 

3.  The  assessment  in  this  regard  must, 
however,  not  lead  to  summary  exclusion 
from  refugee  status,  which  shall  only  be 
determined  upon  arrival,  after  thorough 
examination  of  the  subsequent  asylum 
claim,  and  in  compliance  with  fair  trial 
guarantees  under  the  ordinary  procedure 
regulated in Directive 2013/32/EU. 

to 

4.  The  presence  of  security  concerns  will 
the  applicant  possibly  being 
lead 
escorted during travel to the Member State 
concerned  and  placed  under  surveillance 
upon  arrival,  with  detention  during  the 
asylum  application  process,  constituting  a 
measure of last resort. 

to 

4.  The  presence  of  security  concerns  will 
the  applicant  possibly  being 
lead 
escorted during travel to the Member State 
concerned  and  placed  under  surveillance 
upon  arrival,  with  detention  during  the 
asylum  application  process,  constituting  a 
measure of last resort. 

5.  Any  of  the  above  measures  remain 
subject  to  proportionality  and  effective 
judicial oversight. 

5.  Any  of  the  above  measures  remain 
subject  to  proportionality  and  effective 
judicial oversight. 

Article 8 
Application Procedure 

De-centralised 

1.  The  Member  State  competent 
for 
examining and deciding on the application 

EU centralised 
1.  The  EASO  team,  within  the  responsible 
for 
EEAS 

representation, 

competent 

113 

 
 
 
 
 
 
 
 
 
 
will  grant  visas  on  a  prima  facie  basis  to 
applicants submitting an arguable claim of 
a real risk of refoulement. 

examining and deciding on the application 
will  grant  visas  on  a  prima  facie  basis  to 
applicants submitting an arguable claim of 
a real risk of refoulement. 

2.  Applicants  can  submit  applications 
either in person or in electronic form.  

2.  Applicants  can  submit  applications 
either in person or in electronic form.  

3.  An  interview  needs  to  take  place,  either 
in  person  or  via  Skype,  if  the  security  or 
vulnerability of the applicant so requires. 

3.  An  interview  needs  to  take  place,  either 
in  person  or  via  Skype,  if  the  security  or 
vulnerability of the applicant so requires. 

application 

4. During the interview and throughout the 
preparation  of 
and 
the 
examination  process,  applicants  may  have 
access  to  UNHCR  and  other  relevant 
to 
providing 
organisations 
applicants, 
form  of 
in 
information,  legal  aid,  representation,  and 
related services. 

including 

support 

the 

application 

4. During the interview and throughout the 
preparation  of 
and 
the 
examination  process,  applicants  may  have 
access  to  UNHCR  and  other  relevant 
to 
providing 
organisations 
applicants, 
form  of 
in 
information,  legal  aid,  representation,  and 
related services. 

including 

support 

the 

5. Together with his/her individual details, 
photo and biometric data for VIS collection, 
applicants  shall  submit  the  reasons  why 
they  fear  persecution  and/serious  harm, 
accompanying any specific and/or general 
evidence  accessible  to  them  together  with 
the application form. 

5. Together with his/her individual details, 
photo and biometric data for VIS collection, 
applicants  shall  submit  the  reasons  why 
they  fear  persecution  and/serious  harm, 
accompanying any specific and/or general 
evidence  accessible  to  them  together  with 
the application form. 

6.  National  authorities  will  need  to  take 
account  of  the  general  and  particular 
circumstances  of  the  applicant  concerned, 
relying  on  the  application  materials,  the 
interview  with  the  applicant,  and  any 
published  sources  regarding  the  situation 
in  the  country  of  origin  concerned,  taking 
proactive  steps  to  ascertain  the  reality  of 
the risks faced by the applicant.   

6.  EASO  authorities  will  need  to  take 
account  of  the  general  and  particular 
circumstances  of  the  applicant  concerned, 
relying  on  the  application  materials,  the 
interview  with  the  applicant,  and  any 
published  sources  regarding  the  situation 
in  the  country  of  origin  concerned,  taking 
proactive  steps  to  ascertain  the  reality  of 
the risks faced by the applicant.   

7.  Knowledge  of  the  circumstances  shall 
otherwise  be  imputed,  and  the  visa  issued 
as  a  preventative  measure 
to  avoid 
incurring  in  a  violation  of  the  prohibition 
of refoulement. 

7.  Knowledge  of  the  circumstances  shall 
otherwise  be  imputed,  and  the  visa  issued 
as  a  preventative  measure 
to  avoid 
incurring  in  a  violation  of  the  prohibition 
of refoulement. 

114 

 
 
 
 
 
 
 
 
 
 
 
 
 
8. The benefit of the doubt must be given to 
the  applicant,  unless  there  is  substantial 
and  reliable  evidence  from  independent 
and  reputable  sources  justifying  a  refusal 
of the visa applied for. 

8. The benefit of the doubt must be given to 
the  applicant,  unless  there  is  substantial 
and  reliable  evidence  from  independent 
and  reputable  sources  justifying  a  refusal 
of the visa applied for. 

Article 9 
Decisions and Appeals 

De-centralised 
1. In case a real risk of refoulement has been 
detected, 
shall  be  granted 
straightaway 

the  visa 

EU centralised 
1. In case a real risk of refoulement has been 
detected, 
shall  be  granted 
straightaway 

the  visa 

2. If the applicant is determined not to be at 
risk  of  refoulement,  the  application  can  be 
rejected.  However,  if  there  are  signs  of 
imminent danger or a supervening real risk 
of persecution or serious harm at the point 
the  rejection  decision  is  being  taken,  then, 
the  visa  must  be  granted,  taking  into 
account conditions ex nunc. 

2. If the applicant is determined not to be at 
risk  of  refoulement,  the  application  can  be 
rejected.  However,  if  there  are  signs  of 
imminent danger or a supervening real risk 
of persecution or serious harm at the point 
the  rejection  decision  is  being  taken,  then, 
the  visa  must  be  granted,  taking  into 
account conditions ex nunc. 

3. A dedicated panel of experts in Country 
of  Origin  Information  will  be  established 
within  the  national  asylum  service  to 
provide bi-weekly updates of the situation 
on  the  ground.  ALOs  (Asylum  Liaison 
Officers)  shall  be  detached  to  top  refugee-
producing  countries  to  collect  first-hand 
information 
in  collaboration  with  UN 
bodies and international and local NGOs. 

3. A dedicated panel of experts in Country 
of  Origin  Information  will  be  established 
within  the  EASO  team  delegated  to  the 
competent EEAS representation to provide 
bi-weekly  updates  of  the  situation  on  the 
ground,  collecting  first-hand  information 
in  collaboration  with  UN  bodies  and 
international and local NGOs. 

4.  The  decision  shall  be  communicated 
promptly  and  in  a  language  the  applicant 
can  understand,  with  an  indication  of  the 
times and formalities to lodge an appeal. 

4.  The  decision  shall  be  communicated 
promptly  and  in  a  language  the  applicant 
can  understand,  with  an  indication  of  the 
times and formalities to lodge an appeal. 

5. Appeals should be filed either in person 
or  electronically,  with  consideration  of  the 
security  and  vulnerability  situation  of  the 
applicant. 

5. Appeals should be filed either in person 
or  electronically,  with  consideration  of  the 
security  and  vulnerability  situation  of  the 
applicant. 

115 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
to 

subjected 

6. If there are security and/or vulnerability 
concerns,  a  system  of  interim  shelter  in 
premises 
diplomatic 
inviolability,  be  it  in  the  embassy  of  the 
country  concerned  or  the  buildings  of 
UNHCR,  IOM,  or  equivalent  UN  or  EU 
body  under  similar  protection,  must  be 
available  for  the  applicant  to  voluntarily 
is  being 
relocate  while 
examined. 

the  appeal 

to 
in 

6. If there are security and/or vulnerability 
concerns,  a  system  of  interim  shelter  in 
diplomatic 
subjected 
premises 
inviolability, 
the  EEAS 
it 
be 
representation  itself  or  in  the  buildings  of 
UNHCR,  IOM,  or  equivalent  UN  or  EU 
body  under  similar  protection,  must  be 
available  for  the  applicant  to  voluntarily 
is  being 
relocate  while 
examined. 

the  appeal 

immediately 
7.  The  appeal  shall  be 
assessed  by  a  competent  judge,  who  must 
take  a  decision  within  three  days,  as  for 
whether there is a prima facie case of a real 
risk  of  refoulement,  taking  into  account  the 
initial  application  materials,  the  decision 
adopted  at  first  instance,  and  any  other 
new information that helps take a decision 
on the basis of the prevailing circumstances 
at that time. 

immediately 
7.  The  appeal  shall  be 
assessed  by  the  EU  General  Court,  who 
must  take  a  decision  within  three  days,  as 
for  whether  there  is  a  prima  facie  case  of  a 
real risk of  refoulement, taking into account 
the 
the 
initial  application  materials, 
decision  adopted  at  first  instance,  and  any 
other  new  information  that  helps  take  a 
decision  on  the  basis  of  the  prevailing 
circumstances at that time. 

legal 

8.  Procedural  guarantees,  including  the 
right  to  be  heard  at  the  appeal  stage, 
translation, 
and 
representation,  must  be  in  place  either 
through  services  provided  directly  by  the 
Member State concerned or via partnership 
with UNHCR or specialist NGO personnel.  

assistance 

legal 

assistance 

8.  Procedural  guarantees,  including  the 
right  to  be  heard  at  the  appeal  stage, 
translation, 
and 
representation,  must  be  in  place  either 
through  services  provided  directly  by  the 
EEAS 
EASO 
representation 
via 
partnership  with  UNHCR  or  a  specialist 
NGO.  

team  within 

concerned 

the 

or 

to 

communicated 

9.  If  the  appeal  is  granted,  this  must  be 
the 
immediately 
applicant  and  the  consular  and  asylum 
authorities  concerned.  The  issuance  of  the 
visa  shall  be  automatic,  for  travel  within 
the shortest practicable time that is safe for 
the applicant. 

to 

communicated 

9.  If  the  appeal  is  granted,  this  must  be 
immediately 
the 
applicant  and  the  consular  and  asylum 
authorities  concerned.  The  issuance  of  the 
visa  shall  be  automatic,  for  travel  within 
the shortest practicable time that is safe for 
the applicant. 

arrangements  must 

be 
10.  Travel 
facilitated. In the absence of a passport, the 
the 
national 
Member  States  concerned  shall  issue  a 

consular  authorities  of 

arrangements  must 

10.  Travel 
be 
facilitated. In the absence of a passport, the 
EEAS  representation  concerned  shall  issue 

116 

 
 
 
 
 
 
 
 
 
 
 
laissez  passer  to  which  the  visa  can  be 
affixed for travel to its territory. 

a  laissez  passer  to  which  the  visa  can  be 
affixed for travel to Schengen territory. 

Article 10 
Outcomes and Link to Dublin System 

of 

De-centralised 
1.  Regarding  successful  applicants,  upon 
arrival in the Member State concerned, the 
determination 
for 
examining  the  subsequent 
international 
protection  claim  will  follow  the  criteria 
established  in  Chapter  III  of  Regulation 
(EU)  No  604/2013, 
the  order  of 
appearance. 

responsibility 

in 

EU centralised 
1.  Regarding  successful  applicants,  these 
will  be  assigned  to  a  reception  country 
to  a  yearly  quota  and  a 
according 
preference-matching 
mechanism 
developed  by  EASO  in  consultation  with 
the  Member  States  and  its  Consultative 
Forum, which will serve to ensure the even 
distribution of applicants across the Union. 

family  unity,  and 

2.  The  best  interests  of  the  child,  the 
principle  of 
the 
protection  of  specially  vulnerable  and 
dependent  applicants  shall  be  taken  into 
account when applying those criteria. 

2.  For  that  purpose,  a  yearly  reception 
quota will be calculated per Member State, 
taking  account  of  territory,  population, 
GDP, protection capacity, and past/current 
asylum efforts. 

3.  The  corrective  allocation  mechanism 
proposed in the recast Regulation (EU) No 
604/2013 or a similar arrangement shall be 
adopted to compensate for any unevenness 
in  the  distribution  of  applicants  resulting 
from this scheme. 

3.  Asylum  seekers,  as  part  of  their  visa 
application, will list up to 5 Member States, 
in  order  of  preference,  indicating  any 
family or dependency reasons as relevant.  

transfers 

under 
4.  Any 
Regulation  (EU)  No  604/2013  shall  be 
funded through the EU budget.  

necessary 

as 

and  when 

5.  Rejected  applicants  may  submit  a  new 
application 
their 
circumstances  in  the  country  of  origin  or 
residence  change.  Whenever  a  real  risk  of 
persecution  or  serious  harm  emerges,  they 
shall  be  able  to  re-apply  for  a  visa  for 
asylum seeking purposes. 

6.  For 
‘spontaneous 

those 

arrival’ 

taking, 

instead, 

the 
route,  national 

4. While the quota of the preferred country 
is not filled yet, the asylum seeker  may be 
assigned to it. If already filled at that point, 
then,  the  second  listed  may  be  considered 
and so on. 

5.  A  corrector,  taking  account  of  children 
rights, family unity, and dependency links, 
will  be  in  place,  so  that  the  quotas  of 
Member  States  are  virtually  ‘exchanged’ 
to  meet  Charter 
between 
unnecessary 
obligations 
transfers  under  Regulation 
(EU)  No 
604/2013. 

themselves 
and 

avoid 

117 

 
 
 
 
 
 
 
 
 
 
 
 
  
 
authorities  must take account  of Article 31 
of  the  1951  Geneva  Convention  and  not 
impose  penalties  due  to  their  irregular 
entry  or  stay,  if  they  fulfil  the  conditions 
established in that provision.  

6.  In  the  event  that  a  country  exceeds  its 
quota,  a  compensatory  mechanism, 
in 
terms  of  extra  funding  and/or  a  reduced 
quota 
following  year,  will  be 
introduced  to  ensure  compliance  with 
Article 80 TFEU.  

the 

TITLE III LOGISTICS AND SUPPORT 

Article 11 
Application and Pre-arrival Assistance 

De-centralised 
1.  Application  and  pre-arrival  assistance 
shall  be  provided  either  directly  by  the 
Member  State  authorities  concerned  or  via 
UNHCR,  IOM,  and/or  a  trusted  NGO 
partner. 

EU Centralised 
1.  Application  and  pre-arrival  assistance 
may be provided either directly by the EU 
authorities concerned or via UNHCR, IOM, 
and/or a trusted NGO partner. 

2.  The  relevant  staff  must  be  trained  to 
offer pre-application and interview support 
in culturally sensitive and accessible ways, 
including for the completion of the relevant 
application form, file completeness checks, 
facilitation of contacts with visa authorities, 
via  phone,  Skype  and  email,  scheduling 
interview 
and 
appointments, 
and 
photocopying services.  

of 
photo-taking 

re-scheduling 

2.  The  relevant  staff  must  be  trained  to 
offer pre-application and interview support 
in culturally sensitive and accessible ways, 
including for the completion of the relevant 
application form, file completeness checks, 
facilitation of contacts with visa authorities, 
via  phone,  Skype  and  email,  scheduling 
interview 
and 
and 
appointments, 
photocopying services.  

of 
photo-taking 

re-scheduling 

3.  To  ensure  safe  access  to  UNHCR,  IOM 
and/or NGO partner premises, the EU will 
provide funding for escort and shuttle bus 
services, and visits to applicants’ locations, 
if 
or 
of 
considerations 
vulnerability so require.  

security 

3.  To  ensure  safe  access  to  UNHCR,  IOM 
and/or NGO partner premises, the EU will 
provide funding for escort and shuttle bus 
services, and visits to applicants’ locations, 
or 
of 
considerations 
if 
vulnerability so require.  

security 

4.  Accurate  information  on  the  application 
process  as  well  as  pre-  and  post-arrival 
conditions  shall  be  published 
the 
website  of  the  consulate  concerned  and 
widely  disseminated  in  applicant-friendly 
format, including via social media.  

in 

4.  Accurate  information  on  the  application 
process  as  well  as  pre-  and  post-arrival 
conditions  shall  be  published 
the 
in 
website  of 
representation 
the  EEAS 
concerned  and  widely  disseminated  in 
applicant-friendly  format,  including  via 
social media.  

118 

 
 
 
 
 
 
 
 
 
 
 
 
5. Among the services to be provided at the 
pre-arrival  stage,  applicants  shall  receive 
orientation and integration sessions, where 
they  can  familiarise  themselves  with  the 
programme 
any  other  options 
available  for  safe  and  legal  access  to  the 
Member States. 

and 

5. Among the services to be provided at the 
pre-arrival  stage,  applicants  shall  receive 
orientation and integration sessions, where 
they  can  familiarise  themselves  with  the 
programme 
any  other  options 
available  for  safe  and  legal  access  to  the 
Member States. 

and 

6. For those lacking sufficient resources for 
travel,  the  Member  State  concerned  shall, 
via EU funding and/or in partnership with 
IOM, provide for transport itself. 

6. For those lacking sufficient resources for 
travel,  the  EEAS  representation  concerned 
in 
shall,  via  EU 
partnership  with 
for 
transport itself. 

and/or 
IOM,  provide 

funding 

Article 12 
Post-arrival Mentoring 

1. Upon arrival, applicants shall be matched with a mentor. 

2.  The  mentor  will  guide  the  applicant  through  the  subsequent  asylum  process,  as 
according to CEAS instruments. Assisting her through the different steps to be taken and 
pointing her to the relevant services and authorities in timely fashion. 

3.  Mentors  can  either  be  officers  of  the  national  asylum  services  of  the  Member  States, 
delegates from EASO, or staff from UNHCR or partner NGOs acting locally. 

4. To ensure the quality and effectiveness of the service, mentors shall be trained to offer 
asylum process support in culturally sensitive and accessible ways. 

TITLE IV FINAL PROVISIONS 
Article 13 
Monitoring, Sanctioning, Reporting and Review 

De-centralised 
1.  A  system  of  monitoring,  reporting,  and 
evaluation  will  be  introduced,  to  ensure 
that any flaws in the system are addressed 
and  any  changes  necessary  introduced  in 
timely fashion.  

EU Centralised 
1.  A  system  of  monitoring,  reporting,  and 
evaluation  will  be  introduced,  to  ensure 
that any flaws in the system are addressed 
and  any  changes  necessary  introduced  in 
timely fashion.  

2.  Monitoring  will  be  entrusted  to  a  panel 
of independent actors, sourced either from 
renowned  human  rights  organisations, 
a 
specialised  NGOs, 

the  FRA,  or 

2.  Monitoring  will  be  entrusted  to  a  panel 
of independent actors, sourced either from 
renowned  human  rights  organisations, 
a 
specialised  NGOs, 

the  FRA,  or 

119 

 
 
 
 
 
 
 
 
 
 
 
combination thereof.  

combination thereof.  

3.  Consular  personnel  and  the  asylum 
authorities  concerned  with  this  procedure 
will  keep 
the 
European  Commission,  the  Council,  and 
the  Parliament  well  informed,  via  annual 
reports. 

the  Asylum  Agency, 

3.  EEAS  personnel  and  the  EASO  staff 
concerned  with  this  procedure  will  keep 
the  European 
the  Asylum  Agency, 
the 
and 
Commission, 
Parliament  well 
informed,  via  annual 
reports. 

the  Council, 

4.  On  the  basis  of  this  information,  the 
European  Commission  will  conduct  a 
periodic  review,  so  as  to  assess  asylum 
capacities,  distribution-key  criteria,  and 
propose  adjustments  to  related  quotas  per 
country on a yearly basis. 

4.  On  the  basis  of  this  information,  the 
European  Commission  will  conduct  a 
periodic  review,  so  as  to  assess  asylum 
capacities,  distribution-key  criteria,  and 
propose  adjustments  to  related  quotas  per 
country on a yearly basis. 

the 

provisions, 

5.  In  case  of  non-compliance  with  the 
above 
European 
Commission  will  impose  sanctions  on  the 
are 
Member 
dissuasive,  effective  and  proportionate. 
The  applicable  amounts  will  be  deducted 
from  EU  funding  benefiting  the  Member 
State in the following financial year. 

concerned 

State 

that 

Article 14 
Evaluation 

An  external  evaluation  will  be  commissioned  after  3  years  since  the  entry  into  force  of 
this  Regulation,  and  every  5  years  thereafter,  to  assess  the  ‘asylum  seeking  visas’ 
mechanism as a whole to guarantee fitness for purpose. 

Article 15 
Progressive Roll Out 

1. The application of this Regulation will start in selected top refugee-producing countries 
according  to  EUROSTAT  and  UNHCR  data,  where  risks  of  persecution  and/or  serious 
harm are well known and documented by reliable sources.  

2.  A  pilot  programme  will  be  conducted  for  Syrian  applicants  in  Lebanon,  Jordan,  and 
Turkey  until  the  end  of  the  current  AMIF.  Afterwards,  drawing  on  lessons  learnt,  the 
programme  will  be  rolled  out  to  progressively  cover  applicants  from  other  countries  in 
other regions. 

120 

 
 
 
 
 
 
 
 
 
 
 
 
ANNEX II 

SUMMARY OF POLICY OPTIONS  

— 

SUSPENSION OF VISA REQUIREMENTS  

General application 

for nationals of unsafe third countries until 
circumstances change 

  Need to amend Visa List Regulation 539/2001 

LTV ASYLUM VISAS 

(modeled on reformed set of LTV provisions) allowing 
travel on prima facie basis of refoulement risks, issued by 
MS embassies 

 Inspired by Italian Humanitarian Corridor 

EU ASYLUM VISAS 

allowing travel on prima facie basis of refoulement risks, 
issued by EU Visa Centres / EEAS Delegations with 
EASO reviewing files on behalf of MS / UNHCR and 
NGOs input at pre- and post-application phases 

EU coordination 

(GROUP solution) 

Individual 
application 

EU harmonisation 

(PERSON solution) 

Individual 
application 

EU centralisation 

(PERSON solution) 

+ 

 Need Dublin overhaul + relocation scheme 

121 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX III 

SUMMARY OF CONCERNS REGARDING ASYLUM SEEKER VISAS 

CONCERN 

WIDER PERSPECTIVE 

Number of applicants / 
floodgates 

In 2017 alone, Member States issued circa 15 million 
Schengen visas without incidents 

Overloading resources / 
straining expertise 

AMIF  can  be  used  and  Temporary  Protection 
Directive  is  available  in  case  of  mass  influx  + 
compliance with human rights is not optional 

No control of applicants /  
No control over arrivals 

Much  better  situation  than  with 
arrivals / in line with ETIAS rationale 

‘spontaneous’ 

Creation of a ‘right’ of entry 

Entry  is  byproduct  of  Articles  4,  19(2),  47  CFR  + 
Koushkaki judgment 

Ability of refugee to chose MS  No different from current situation (traveller choses 
destination  MS)  /  a  system  of  distribution  and 
preference matching can help equalize allocation 

Compatibility with Dublin / 
principle of solidarity 

Pre-arrival  allocation  system  with  quotas  per 
Member State per year (reviewable) is possible 

122 

 
 
 
 
 
ANNEX IV 

FLOW CHART OF ASYLUM SEEKER VISA APPLICATIONS 

Information of scheme 

Pre-application assistance 
by UNHCR / IOM / NGOs 

APPLICATION  
at MS embassy or EEAS 
Representation 

Interview with applicant 
(assisted by UNHCR / 
NGOs / MS Asylum or 
EASO officials) 

Decision on prima facie basis 

ACCEPTANCE 
Pre-arrival and travel 
assistance by partners 

Mentoring scheme upon 
arrival in Schengen soil 

Asylum application in-land 

REJECTION 
Communication of decision 
to applicant with indication 
of means for appeal 

Automatic suspension of 
refusal in case of new ‘real 
risk’ of refoulement or 
imminent danger to life 

APPEAL + interim shelter 
at embassy / EEAS / 
equivalent inviolable 
premises 

If granted: see acceptance 

If rejected: opportunity to 
re-appeal as and when new 
real risk of refoulement 

123 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
KEY BIBLIOGRAPHY 

o  CCME, Providing for safe passage to and through Europe (September 2015); 
o  Consiglio Italiano per i Rifugiati, Exploring avenues for protected entry in Europe (March 

2012); 

o  Den Heijer, Europe and Extraterritorial Asylum (Hart, 2012); 
o  European Council on Refugees and Exiles (ECRE), Protection in Europe: Safe and Legal 

Access Channels (February 2017). 

o  European  Migration  Network,  Resettlement  and  Humanitarian  Admission 

Programmes in Europe – What Works? (November 2016); 

o  EU  Red  Cross,  Europe  in  Crisis:  Facilitating  Access  to  International  Protection, 
(Discarding) Offshore Processing and Alternatives for the Way Ahead (February 2016); 
o  Fundamental Rights Agency (FRA), Legal entry channels to the EU for persons in need of 

international protection: a toolbox (March 2015); 

o  Gammeltoft-Hansen, Access to Asylum (Cambridge University Press, 2011); 
o  Guild,  Costello  and  Moreno-Lax,  Implementation  of  the  2015  Council  Decisions 
establishing provisional measures in the area of international protection for the benefit of Italy 
and of Greece, PE 583.132 (European Parliament, March 2017); 

o  Guild,  Costello,  Garlick,  and  Moreno-Lax,  Enhancing  the  CEAS  and  Alternatives  to 

Dublin, PE 519.234 (European Parliament, July 2015); 

o  Guild,  Costello,  Garlick,  and  Moreno-Lax,  New  Approaches,  Alternative  Avenues  and 
Means  of  Access  to  Asylum  Procedures  for  Persons  Seeking  International  Protection,  PE 
509.989 (European Parliament, October 2014); 
Iben  Jensen,  Humanitarian  visas:  option  or  obligation?,  PE  509.986  (European 
Parliament, September 2014); 
ICMC,  Private  Sponsorship  in  Europe  –  Expanding  Complementary  Pathways  for  Refugee 
Resettlement (September 2017); 

o 

o 

o  McAdam, Policy Brief 1 – Extraterritorial processing in Europe: Is ‘regional protection’ the 

answer, and if not, what is? (Kaldor Centre, May 2015); 

o  Migration  Policy 

Institute 

(MPI),  Commentary:  The  Potential  and  Pitfalls  of 

Extraterritorial Processing of Asylum Claims (March 2015); 

o  Moreno-Lax, Accessing Asylum in Europe (Oxford University Press, 2017); 
o  Moreno-Lax,  ‘The  External  Dimension’,  in  Peers,  Moreno-Lax,  Garlick  and  Guild 

(eds), EU Immigration and Asylum Law, Vol. 3 (Brill, 2nd rev. edn) 617; 

o  Moreno-Lax, ‘Must EU borders have Doors for Refugees?’ (2008) 10 EJML 315; 
o  MPI, No way out? Making additional migration channels work for refugees (March 2016); 
o  Neville and Rigon, Towards an EU Humanitarian Visa Scheme?, PE 556.950 (European 

Parliament, June 2016); 

o  Noll,  ‘Visions  of  the  Exceptional:  Legal  and  Theoretical  Issues  Raised  by  Transit 

Processing Centres and Protection Zones’ (2003) 5 EJML 303; 

o  Noll et al., Study on the Feasibility of Processing Asylum Claims Outside the EU Against 
the  Background  of  the  Common  European  Asylum  System  and  the  Goal  of  a  Common 
Asylum Procedure (European Commission, 2002). 

124 

 
 
ANNEX I I  

The Added Value of EU Legislation on Humanitarian Visas - 
Economic Aspects 

Research paper 
by Milieu Ltd 

Abstract 

The Common European Asylum System (CEAS) offers few legal options for persons 
in need of protection to seek asylum in the EU. This research paper investigates the 
economic aspects of this gap in EU action and cooperation and assesses three policy 
options under consideration to introduce  a Humanitarian Visa Scheme. It closely 
complements a separate research paper that reviews the legal elements of the policy 
options.    The  first  component  of  this  research  paper  identifies  and  assesses  the 
economic impacts of the status quo on the EU and the Member States, as well as the 
impacts on individuals. The second component investigates the potential changes 
in migrant influx  and reviews the potential costs and benefits of the policy options 
from the perspective of individuals, Member States and the EU. The assessment is 
primarily  qualitative  and  draws  on  quantitative  estimates  when  possible.  The 
economic  findings  suggest  that  an  EU  Humanitarian  Visa  Scheme  may  decrease 
irregular migration to the EU and lead to increased management, coordination and 
efficiency  in  the  asylum  process.  In  addition,  some  of  the  options  under 
consideration  could  promote    fair  cost-sharing  across  the  Member  States,  in  line 
with  the  principles  of  subsidiarity  and  proportionality.  A  controlled  pilot  of  the 
preferred  option  combined  with  a  robust  monitoring  plan  could  provide  more 
robust and quantitative evidence regarding the policy’s costs and benefits.   

125 

 
 
 
 
 
 
 
AUTHORS 
This research paper has been prepared by Meena Fernandes and Brittni Geny of Milieu, 
at the request of the EU Added Value Unit of the Directorate for Impact Assessment and 
European  Added  Value,  within  the  Directorate  General  for  Parliamentary  Research 
Services (DG EPRS) of the General Secretariat of the European Parliament.  

LINGUISTIC VERSIONS 
Original: EN 

DISCLAIMER 
The opinions expressed in this document are the sole responsibility of the authors and 
do not necessarily represent the official position of the European Parliament. 

Reproduction  and  translation  for  non-commercial  purposes  are  authorised,  provided 
the source is acknowledged and the publisher is given prior notice and sent a copy. 

Manuscript completed in June 2018 
Brussels © European Union, 2018 

126 

 
 
 
 
 
 
 
 
Table of contents 

Executive summary ..................................................................................................... 129 
List of abbreviations and acronyms ......................................................................... 134 
Chapter 1: Introduction .............................................................................................. 136 
I 
Background ............................................................................................................... 136 
II.  Objectives .................................................................................................................. 137 
Chapter 2: Impacts of the status quo ....................................................................... 139 
Individual impacts ................................................................................................... 139 
I 
II  Member State impacts.............................................................................................. 146 
III  EU impacts ................................................................................................................ 150 
Chapter 3: Potential changes in migrant influx due to the policy options ....... 156 
II. An asylum seeker’s decision tree .............................................................................. 156 
II. Relative costs of the policy options ........................................................................... 157 
III. Substitution and income effects ............................................................................... 162 
Chapter 4: Assessment of the policy options ......................................................... 165 
I Costs to set up the policy options ................................................................................ 165 
II  Benefits  of  the  policy  options  from  the  perspective  of  individuals,  the  Member 
States and the EU .............................................................................................................. 170 
Conclusions .................................................................................................................. 176 
Annex ............................................................................................................................. 178 
Bibliography ................................................................................................................ 180 

List of Tables 
Table 1: Overview of policy options .......................................................................... 129 
Table 2: Overview of key impacts identified in the status quo ............................. 130 
Table  3:  Comparison  of  policy  options  with  the  status  quo  –  individual’s 
perspective .................................................................................................................... 131 
Table 4: Comparison of policy options with the status quo – Member State and EU 
perspectives ................................................................................................................... 132 
Table 5: Breakdown of policy options ....................................................................... 138 
Table 6: Overview of individual impacts .................................................................. 141 
Table 7: Overview of impacts on Member States .................................................... 147 
Table 8: Member States with humanitarian admission programmes ................... 150 
Table 9: Summary of indirect impacts  for the EU (annual estimates) ................. 151 
Table 10: Overview of costs faced by individuals in need of protection .............. 158 
Table 11: Financial costs faced by the individual per EU humanitarian visa ...... 159 
Table 12 Expected EU/Member State costs to set up the policy options ............. 166 
Table 13: Total USV and LTV visas issued in EU Member State consulates, 2016
 ......................................................................................................................................... 168 
Table 14: Member States and EEAS representation in the three countries of focus, 
2016 ................................................................................................................................. 169 
Table  15:  Comparison  of  policy  options  with  the  status  quo  –  individual’s 
perspective .................................................................................................................... 171 
Table 16: Comparison of policy options with the status quo – Member State and 
EU perspectives ............................................................................................................ 172 
Table 17: Cost of processing an asylum application ............................................... 179 

127 

 
 
 
List of Figures 
Figure 1: Persons of concern in 2016 – a global perspective .................................. 140 
Figure  2:  Search  and  rescue  operations  by  agency/ship  operator  2014-2016  (%)
 ......................................................................................................................................... 149 
Figure 3: Trends in funding levels in relation to numbers of asylum applicants 152 
Figure 4: Trends in funding levels for Frontex ........................................................ 153 
Figure 5: Breakdown of emergency funds for development cooperation ........... 155 
Figure 6: Decision tree for a hypothetical person in need of protection .............. 157 
Figure 7: Overview of ETIAS security screening process ....................................... 161 
Figure 8: Six steps in the process for resettlement ................................................... 169 
Figure 9: Composition of asylum applicants to the EU in 2016, by source country
 ......................................................................................................................................... 178 

List of Boxes 
Box 1: What do asylum seekers pay to smugglers to reach the EU?..................... 143 
Box 2: What do border Member States pay to address the migrant crisis? ......... 148 
Box 3: Economic theory – substitution and income effects .................................... 163 

128 

 
 
 
 
 
Executive summary 

Persons in need of protection have few legal options to seek asylum in the EU. The EU legal 
framework focuses on resettlement of recognised refugees, with several initiatives put into 
place since the height of the refugee crisis in 2015. Member State efforts have also focused 
on  recognised  refugees,  offering  legal  channels  to  reach  the  EU  through  humanitarian 
admission programmes, private sponsorship schemes and facilitated family reunification 
schemes. The number of persons admitted through all of these existing schemes is low 
when compared to the need. As a result, large numbers of desperate persons in need travel 
irregularly to the EU and face high risks for trafficking, exploitation, violence and death. 
This situation calls into question the extent to which the EU fulfils its legal obligations to 
protect the right to seek asylum 1. The exorbitant number of deaths in the Mediterranean 
Sea is just one of a number of  significant  costs, both monetary and otherwise, that the 
status quo admits. In 2017 alone, an estimated 3,139 migrants died at sea in an attempt to 
reach the EU2. This gap in the EU legal framework is highly visible and threatens core EU 
values concerning the ‘respect for human dignity, freedom, democracy, equality, the rule 
of  law  and  respect  for  human  rights,  including  the  rights  of  persons  belonging  to 
minorities’3. Experts attest that the increased trend in migration and asylum seekers will 
persist  in  the  face  of  protracted  conflicts  around  the  world,  with  drivers  extending  to 
include climate change4. The inability of Member States alone to cope with the situation 
underscores the urgent need for EU action and cooperation. 

A proposal for an EU Scheme on Humanitarian Visas may help to address this critical 
gap. The idea for such a scheme is not new – in fact, it has been around for at least 15 years 
– and a number of Member States have experimented with such schemes on their own. 

This research paper assesses the economic aspects of such a proposal. More specifically, it 
reviews the impacts of the status quo and the expected costs and benefits of three policy 
options under consideration, building on the legal analysis presented in an earlier research 
paper. 

Chapter  1  presents  the  introduction  to  the  study  and  defines  both  of  its  objectives.  An 
overview of the three policy options under consideration is presented below.  

Table 1: Overview of policy options 

Policy #  Policy option title 

1 

Visa Waiver   

Policy option description 
Revise the current visa lists in Regulation 539/2001 
to  de-classify  or  suspend  the  visa  requirement  for 
nationals of top refugee-producing countries.  

1 To date, EU Member States have resettled about 30,000 refugees. Figures for asylum seekers accepted through 
national schemes are not well established but are significantly lower.  
2 IOM Missing Migrants Project available at: https://missingmigrants.iom.int/, viewed 4 June 2018. 
3 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European 
Community 
(2007/C 306/01), OJEU C 306/1, 17.12.2007, Article 1a, available at: http://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=celex%3A12007L%2FTXT  
4 Papademetriou, D.G., The migration crisis is over: long live the migration crisis, Migration Policy Institute, March 
2017, available at: https://www.migrationpolicy.org/news/migration-crisis-over-long-live-migration-crisis  

129 

 
 
 
 
 
                                                           
Policy #  Policy option title 

2 

Limited Territorial 
Validity (LTV) 
asylum visas  

3 

EU Asylum visas 

Policy option description 
EU  humanitarian  visas  issued  by  Member  State 
consulates  abroad  through  harmonised  issuing 
criteria and procedures. These procedures would be 
in  line  with  Article  41  and  47  of  the  Charter  of 
Fundamental  Rights  (CFR)  and  might  include  a 
reformed set of LTV provisions. 
Full  EU  centralisation  of  decision-making  and 
distribution of applicants via specialised European 
Asylum  Support  Office  (EASO)  teams  within 
European  External  Action 
(EEAS) 
representations  abroad.  This  would  require  some 
adjustments and the creation of several mechansims 
across the EU. 

Service 

Chapter 2 investigates the first objective: What is the impact of the status quo, i.e. the issuance 
of  humanitarian  visas  by  certain  Member  States  in  the  absence  of  common  EU  standards?  The 
analysis identified impacts for individuals, Member States and the EU, quantifying them 
where possible. Table 2 presents an overview of the key impacts while the estimates can 
be found in the chapter itself. Individual asylum seekers face not only the risk of death but 
also  exploitation  and  trafficking.  The  concentration  of  arrivals  in  border  Member  States 
places a strain on their resources while also increasing the risk of poor reception conditions 
for  asylum  seekers.  One  of  the  biggest  impacts  of  the  status  quo  is  irregular  migration, 
which has consequences for surveillance, border security and border management, which 
are competences shared between Member States and the EU.  

Table 2: Overview of key impacts identified in the status quo 

Individual 

vulnerable 
Most 
remain  at 
for 
persecution  in  source 
countries 

risk 

Smuggler fees 

Risk of trafficking and 
other exploitation 

Mortality and health 

Poor reception 
conditions  

Delays to integration 

Risk of entry into the 
informal market 

Discrimination 

Member State 
Surveillance and border security 

Security and terrorism  

Private shipping – search and 
rescue missions 

Processing of asylum 
requests and transfers 

Uneven distribution of costs 
for reception 

Return  of  rejected  asylum 
seekers 

Complementary pathways of 
admission 

EU 

and 

border 

Surveillance 
management 

Security and terrorism 

up 

Set 
Common 
the 
European  Asylum  System 
(CEAS) 

Operation  of  the  European 
Asylum 
Support  Office 
(EASO) 

funding 

for 
Emergency 
‘hotspots’ and other financial 
support 

Organised crime 

Third country agreements  

Development cooperation  

Organised crime 

Note: Impacts indicated in italics are indirect impacts.  

130 

 
 
Chapter 3 examines the expected changes in migrant influx in response to the three policy 
options  under  consideration.  The  investigation  draws  on  some  of  the  findings  for 
individual impacts in Chapter 2 as well as economic theory of consumer behaviour.  

Since the new legal tool would reduce the cost of (and some of the risks associated to) 
seeking asylum, one may expect a significant portion of migrants seeking asylum in the 
EU through irregular means to apply for an EU Humanitarian Visa, thus offering a safe 
access route and reducing irregular migration flows to the EU.  

The level of substitution may -in principle- be up to 100%, where all asylum seekers who 
would have pursued an irregular channel now pursue the new legal channel. In practice 
however  the  level  of  substitution  may  be  less,  depending  on  the  implementation  of  the 
policy, its accessibility and its perception of fairness. The design and the implementation 
of the policy option can therefore have an impact on the extent to which the substitution 
effect is realized. 

Under the reasonable assumption that asylum seeking is relatively “inelastic” to its cost, 
it is expected that the number of people who will apply for an EU Humanitarian Visa, 
among  those  who  would have  otherwise stayed  in the  country  of  origin,  is  relatively 
small.  This  especially  applies  to  the  LTV  and  EU-wide  international  protection 
application travel permit options.  

However,  significant costs remain, which would limit the appeal of seeking asylum in 
the EU, even where a legal channel is offered. The stress and  social costs (e.g.  leaving 
one’s community behind) would be high. The financial cost would be less, but may still be 
quite significant for individuals, particularly if they are from more vulnerable populations.   

 Chapter 4 responds to the second objective of the research paper: What are the possible costs 
and benefits of the policy options for the establishment of EU legislation on humanitarian visas? 
This  question  was  reviewed  from  the  perspective  of  asylum  seekers,  the  EU  and  the 
Member  States.  With  regards  to  individual  asylum  seekers,  all  policy  options  would  be 
preferred  to  the  status  quo  (see  Table  3  for  an  overview).  Policy  Option  1  rates  more 
favourably in the pre-arrival stage due to the lack of costs for applying for a visa. Policy 
Options 2 and 3 may be preferable in the post-arrival stage due to reduced delays in the 
processing of the asylum application and integration. A key benefit offered by all policy 
options is the reduced risk of mortality, trafficking and exploitation.  

Table 3: Comparison of policy options with the status quo – individual’s perspective 

Stage 

Cost 

Policy Option 
1 (visa waiver) 

l
a
v
i
r
r
a
-
e
r
P

r
A

v
i
r

l
a

Travel costs to EU 
Access  to  procedure 
for legal channel 
Risk of trafficking and 
other exploitation 
Risk  of  mortality  and 
poor health 
Poor reception 

+++ 
+++ 

+++ 

++ 

0 

131 

Policy Option 
2 (LTV asylum 
visas) 
++ 
++ 

Policy Option 
3 (EU asylum 
visas) 
++ 
+ 

+++ 

++ 

+++ 

+++ 

++ 

+++ 

 
 
 
 
 
 
  
 
  
 
  
 
 
 
  
Stage 

Cost 

Policy Option 
1 (visa waiver) 

0 
0 

into 

Delays to integration 
Risk  of  entry 
formal market 
+ = minimal positive (cost-saving) impact  
++ = stronger positive (cost-saving) impact  
+++ = substantial positive (cost-saving) impact  
- = negative (cost increasing) impact 
0 = no change from status quo 

Policy Option 
2 (LTV asylum 
visas) 
+++ 
++ 

Policy Option 
3 (EU asylum 
visas) 
+++ 
++ 

Table  4  presents  an  overview  of  the  costs  and  benefits  of  the  policy  options  from  the 
perspective  of  the  EU and Member  States.  The assessment  finds  that  the  costs  of  Policy 
Option 1 are minimal while those for Policy Options 2 and 3 may be more substantial due 
to  the  likely  need  to  bolster  human  resources  for  the  review  and  processing  of  visa 
applications. The costs may include fixed costs to set up and maintain the required human 
and physical infrastructure for the policy option as well as variable costs incurred for each 
asylum  seeker.  The  use  of  technology  and  remote  staff  to  support  the  review  and 
issuance of visas in source countries could promote economies of scale and operational 
efficiencies. 

The analysis finds that all three policy options could generate substantial benefits in terms 
of  mitigating  the  level  of  irregular  migration  into  the  EU.  Policy  Options  2  and  3  offer 
additional  benefits,  for  example,  greater  efficiency  in  managing  inflows  of  asylum 
seekers, enhanced control over the level of asylum seekers in the EU, greater predictability 
of the asylum procedure and a stronger distinction between asylum seekers and economic 
migrants. The assessment found that the options could also impact the costs of the asylum 
system  in  the  EU  itself.  Specifially,  the  options  could  reduce  the  prevalence  of  Dublin 
transfers and returns of rejected asylum seekers, resulting in lower costs for Member States 
and  the  EU.  These  benefits  would  be  especially  felt  by  Member  States  that  receive  a 
disproportionate number of arrivals or applications.  

Table  4:  Comparison  of  policy  options  with  the  status  quo  –  Member  State  and  EU 
perspectives  

Policy Option 1 
(visa waiver) 

Policy Option 2 
(LTV asylum 
visas) 

Costs 

Policy Option 3  
(EU asylum visas) 

Costs of 
implementation 

Irregular 
migration 
Security/terrorism 
Surveillance and 
border 
management 

0 

+ 

+1 

+ 

+/++ 

+/++ 

++ 

++ 

++ 

Benefits 

++ 

++ 

++ 

132 

 
  
  
  
 
 
 
 
Policy Option 1 
(visa waiver) 

Policy Option 2 
(LTV asylum 
visas) 

Policy Option 3  
(EU asylum visas) 

Private shipping – 
search and rescue 
missions 
Costs of asylum 
procedure 
Costs for return 
Uneven 
distribution of 
reception costs 
Harmonisation of 
asylum procedure 
across Member 
States 
Third country 
agreements 
Development 
cooperation 
Organised crime 

+++ 

+++ 

0 

0 

0 

0 

++ 

++ 

+ 

++ 

+ 

++ 

+ 

+++ 

+ 

+++ 

+++ 

+++ 

+ 

++ 

++ 

+++ 

+ 

+++ 

+ = minimal positive (cost-saving) impact  
++ = stronger positive (cost-saving) impact  
+++ = substantial positive (cost-saving) impact  
- = negative (cost increasing) impact 
0 = no change from status quo 
1 Assuming that a security screening process such as ETIAS is employed. 

Better implementation of the policy option may imply more costs (for example, hiring of 
staff at a centralised location such as EASO or in source countries), but may also generate 
greater benefits for the EU, Member States and asylum seekers. A controlled pilot of the 
preferred policy option accompanied by a robust monitoring plan could generate more 
evidence regarding the impacts on migration inflows, costs and benefits and support its 
effective implementation and scale-up.  

133 

 
 
 
 
List of abbreviations and acronyms 

AMIF 
CAMMS 
CEAS 
CSDP 
DCI 
DG ECHO 

DG HOME 

EASO 
ECHR 

ECRE 
ECSA 
EEAS 
EMN 
ENI 
EPRS 
EPSC 
ETIAS   
EU 
Eurodac 
Europol 

Eurosur  
EUTF 
FRA 
Frontex  
IDP 
IOM 
ISF 
LIBE 
LTV 
MEV 
MFF 
MP 
MPF 
MS 
NGO 
OECD 

PEP 
RDDP 

Asylum, Migration and Integration Fund 
Common Agendas on Migration and Mobility 
Common European Asylum System 
Common Security and Defence Policy 
Development Cooperation Instrument 
Directorate-General  of  the  European  Commission  for 
European  Civil  Protection  and  Humanitarian  Aid 
Operations 
Directorate-General  of  the  European  Commission  for 
Migration and Home Affairs 
European Asylum Support Office 
European Convention for the Protection of Human Rights 
and Fundamental Freedoms 
European Council on Refugees and Exiles 
European Community Shipowners’ Association  
European External Action Service 
European Migration Network 
European Neighbourhood Instrument 
European Parliamentary Research Service 
European Political Strategy Centre  
European Travel Information and Authorisation System 
European Union 
European Dactyloscopy 
The  European  Union  Agency  for  Law  Enforcement 
Cooperation 
The European Border Surveillance system 
EU Emergency Trust Fund for Africa 
European Union Agency for Fundamental Rights 
European Border and Coast Guard Agency 
Internally displaced people 
International Organisation for Migration  
Internal Security Fund 
Civil Liberties Justice and Home Affairs 
Limited Territorial Validity  
Multiple-Entry Visa (category of a USV) 
Multiannual Financial Framework 
Mobility Partnership 
Mobility Partnership Facility 
EU Member State 
Non-Governmental Organisation 
Organisation 
Economic 
Development 
Protected-entry procedure 
Regional Development and Protection Programme 

Cooperation 

and 

for 

134 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
SAR 
SIS 
TFEU 
UNHCR 

USV 
VFA 

Search and Rescue 
Schengen Information System 
Treating on the Functioning of the European Union 
United  Nations  High  Commissioner  for  Refugees  (UN 
Refugee Agency) 
Uniform Schengen Visas 
Visa Facilitation Agreements 

135 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Chapter 1: Introduction 

I 

Background 

The economic analysis of policies in the arena of Civil Liberties, Justice and Home Affairs 
(LIBE)  is  a  growing  area  of  interest  for  EU  policy  makers.  Traditionally,  attention  has 
focused  on  compliance  and  complementarity  with  existing  legal  obligations  at  the 
international  and  EU  level,  such  as  the  EU  Charter  of  Fundamental  Rights  CFR). 
Assessment of a policy through an economic lens may provide valuable insight into a range 
of issues, such as the reasoning behind the particular application of a legal instrument by 
Member States, or the failure of key stakeholders to undertake certain activities to support 
a  policy.  An  economic  analysis  can  identify  if  the  costs  associated  with  compliance  are 
substantial, or if compliance activities are not harmonised with other ongoing activities. It 
may also shed light on other, previously unknown benefits of the policy. Such insight from 
an  ex-ante  standpoint  may  support  the  design  of  more  effective  policies  that  are  well-
implemented, achieve their intended impacts and generate greater benefits than costs for 
society.   

Economic analysis can offer a valuable viewpoint for topics that are highly politicised and 
contentious, which is often the case for LIBE issues. As it typically draws on data reflecting 
actual costs and behaviours, economic analysis can offer balanced objectivity in the face of 
divergent  political  views.  It  is  often  the  case  that  proponents  of  a  policy  focus  on  the 
intended objectives and the degree to which it addresses an identified problem, while its 
opponents express concerns about costs or feasibility. An economic analysis can help to 
determine if such concerns are well-founded, and facilitate constructive exchange between 
the two groups. All policies have associated costs and benefits, and it should be borne in 
mind that there are also costs associated with the status quo.  

The  Better  Regulation  Agenda,  which  was  introduced  in  2015,  recognised  the  merits  of 
economic analysis and has led to more rigorous analysis across all of the policy areas of the 
EU. In the retrospective evaluations carried out by the European Commission, economic 
analysis  is  reflected  in  the  effectiveness  and  efficiency  criteria,  while  in  its  prospective 
impact assessments, economic analysis is reflected in the assessment of the policy options 
in  terms  of  social,  economic  and  environmental  impacts.  Such  analyses  are  frequently 
constrained by the limited availability of adequate monitoring data for the programmes or 
policies in question. Based on the analysis findings, the European Commission may pursue 
a  particular  policy  option  and  either  issue  a  legislative  instrument  or  pursue  other  EU 
measures. 

The European Parliament follows a similar process for Legislative Own Initiative Reports, 
based on Article 225 of the Treaty on the Functioning of the European Union (TFEU). These 
reports are accompanied by a European Added Value Assessment (EAVA) that reviews 
the  rationale  for  the  policy  and  assesses  its  added  value.  The  assessment  follows  the 
approach  of  the  impact  assessment,  where  the  added  value  assessment  mirrors  the 
assessment of the impacts. The relevant DG of the European Commmission may respond 

136 

 
 
 
 
 
  
with  a  legislative  proposal,  which  would  then  be  subject  to  a  larger,  in-depth  impact 
assessment. 

II. 

Objectives  

This  research  paper  provides  an  economic  assessment  of  a  Legislative  Own  Initiative 
Report  for  an  EU  Scheme  on  Humanitarian  Visas  (Rapporteur  Juan  Fernando  López 
Aguilar) It feeds into an overall EU Added Value Assessment of the Legislative Initiative 
Report.  

The research paper examines two questions:   

1 – What is the impact of the status quo, i.e. the issuance of humanitarian visas by certain 
Member States in the absence of common EU standards?  
2 – What are the possible costs and benefits of the policy options for the establishment of 
EU legislation on humanitarian visas?   

The problem implicit in the topic of the research paper is the limited legal pathways for 
asylum  seekers  to  access  the  EU,  which  has  contributed  to  high  levels  of  uncontrolled 
migration across EU borders, which include asylum seekers. The inflow of asylum seekers 
reached a peak in 2015, which has been attributed to conflicts in Syria and sub-Saharan 
Africa. Since then there has been a decline in arrivals but it is possible that inflows will rise 
again. Experts attest that the increased trend in migration and asylum seekers will persist 
in  the  face  of  protracted  conflicts  around  the  world,  with  drivers  extending  to  include 
climate change (Papademetriou, 2017). 

High  levels  of  uncontrolled  inflows  of  asylum  seekers  place  severe  strain  on  the  EU, 
Member States and the asylum seekers themselves. The specifics of border control and visa 
policy  and  EU  asylum  policy  overall  are  dealt  with  by  separate  Cost  of  Non-Europe 
reports.  This  research  paper  therefore  focuses  specifically  on  three  options  for  the 
introduction  of  an  EU  humanitarian  visas  scheme,  which  are  summarized  in  Table  5. 
Throughout the report these options will be referred to as (Policy) Option 1: Visa Waiver 
(Policy) Option 2: LTV asylum visas, and (Policy) Option 3: EU asylum visas. 

Option  1  may  foresee  a  security  check  similar  to  the  European  Travel  Information  and 
Authorisation (ETIAS) System, which is expected to be in operation by 20205. Option 2 may 
call  on  a  delegation  from  the  national  asylum  authority  or  from  EASO  to  bolster  the 
capacity of the consulates. In addition, a relocation system may be envisaged to transfer 
asylum  seekers  to  the  Member  State  responsible  for  examining  the  asylum  application. 
Under  Options  2  and  3,  provision  should  be  made  for  legal  aid,  translation  and 
representation. Any of the three options may draw on cooperation with NGOs as well as 
technological advances to promote efficiency and security. 

5 For more information, please refer to this weblink: https://www.schengenvisainfo.com/etias/. 

137 

 
 
 
 
 
 
 
 
 
 
 
                                                           
Table 5: Breakdown of policy options 

Policy #  Policy option title 

1 

Visa Waiver    

2 

Limited Territorial 
Validity (LTV) 
asylum visas  

3 

EU Asylum visas 

Policy option description 
Revise the current visa lists in Regulation 539/2001 
to  de-classify  or  suspend  the  visa  requirement  for 
nationals of top refugee-producing countries.  
EU  humanitarian  visas  issued  by  Member  State 
consulates  abroad  through  harmonised  issuing 
criteria and procedures. These procedures would be 
in  line  with  Article  41  and  47  of  the  Charter  of 
Fundamental  Rights  (CFR)  and  might  include  a 
reformed set of LTV asylum visa provisions 
Full  EU  centralisation  of  decision-making  and 
distribution of applicants via specialised European 
Asylum  Support  Office  (EASO)  teams  within 
(EEAS) 
European  External  Action 
representations 
several 
adjustments and the creation of several mechanisms 
across the EU. 

Service 
Requires 

abroad. 

The assessment undertook comprehensive desk research, including documents produced 
by the EU institutions, relevant recent evaluations and impact assessments, EU databases, 
budgetary and planning documents from related programmes and agencies, reports from 
NGOs and other stakeholders, and academic literature6. The impacts are quantified and 
monetised  to  the  extent  possible,  based  on  a  robust  economic  methodology.  Chapter  2 
focuses on the costs of the statuo quo. When possible, lower and upper bounds are defined 
for quantitative estimates to reflect the underlying uncertainty. Chapter 3 reviews how the 
influx of asylum seekers to the EU may change as a result of the policy options, as well as 
the implementation costs for Member States and the EU. Chapter 4 assesses the benefits 
and costs of the identified policy options through a qualitative approach. Both monetary 
and non-monetary costs and benefits were considered. The benefits were understood to be 
a reduction in the overall negative impacts, including (but not limited to) reductions in the 
costs associated with the status quo. Both the direct and indirect costs associated with the 
status quo were considered, with a similar broad scope taken in the assessment of benefits.  

6 The review covered reports published before May 2018. 

138 

 
 
 
 
 
                                                           
Chapter 2: Impacts of the status quo 

Key findings 

•  A small share of persons globally in need of protection seek asylum in the 

EU. In 2016, this share was 3%.  

•  The assessment identified eight key impacts on persons in need of 

protection. These impacts include the financial repercussions of paying 
smugglers, heightened risks for mortality, violence and trafficking, and poor 
reception at arrival. The impacts are more severe for vulnerable groups, 
including children, who represent about half of this population. 

•  The EU and Member States experience significant direct costs due to high 
levels of emergency funding primarily to border Member States, as well as 
transfers of asylum seekers to the Member State responsible for examining 
the application for asylum.  

•  The status quo also implies high indirect costs for the EU and Member 
States, which are related to efforts to control the inflow of migrants and 
asylum seekers (e.g. border security and surveillance), as well as the numbers 
of individuals at risk of falling into the informal economy including 
organised crime.  

This chapter examines the first research question, What is the impact of the status quo, i.e. the 
issuance of humanitarian visas by certain Member States in the absence of common EU standards? 
The findings provide a foundation for the assessment of the policy options in Chapter 4.  

The status quo can be understood as the present limited availability of legal channels for 
asylum seekers in third countries to pursue asylum applications in the EU. An immediate 
consequence of the status quo is uncontrolled migration, with impacts on asylum seekers, 
Member States and the EU. The status quo is associated with significant costs, some of 
which may be partially alleviated by the policy option considered in the Legislative Own 
Initiative Report.  

This  chapter  reviews  the  key  impacts  on  individuals  (see  Section  I  below),  who  are 
primarily asylum seekers,  as well as the economic costs to Member States and the EU (see 
Sections II and III).  

I 

Individual impacts  

This  section  considers  the  perspective  of  persons  in  need  of  protection,  which  includes 
refugees  and  people  in  refugee-like  situations,  internally  displaced  people  (IDPs)  and 
individuals  seeking  asylum.    The  United  Nations  High  Commissioner  for  Refugees 
(UNHCR)  reports  an  increasing  trend  in  the  size  of  this  population,  which  has  reached 

139 

 
 
 
 
 
 
 
 
 
 
record  high  levels  globally  (UNHCR,  2017)7.  Figure  1  presents  an  overview  of  the 
population UNHCR considers to be of concern, roughly half of which are minors (UNICEF, 
2010).  

The limited legal pathways to the EU primarily affect two populations – ‘other persons of 
concern’ 8 and asylum seekers. Other persons of concern include IDPs, who remain in the 
source country where they experienced persecution. Asylum seekers to the EU account for 
3% of the population. They experience a range of impacts stemming from the journey to 
the EU and following their arrival9. An overview of the source countries of asylum seekers 
to the EU in 2016 is presented in the Annex (see Figure 9).  

Figure 1: Persons of concern in 2016 – a global perspective   

Source: Produced by the authors based on 2016 figures from the UNHCR.   

Table 6 presents an overview of the  eight different types of  impact of the status quo on 
individuals, as identified in this research.  

7 The global population of forcibly displaced individuals has almost doubled from 33.9 million in 1997 to 65.6 in 
2016 (UNHCR, 2017). Much of the increase occurred after 2012 and was driven by the crisis in Syria.  
8 These individuals include returned refugees, IDPs, returned IDPs, persons under the UNHCR’s statelessness 
mandate and others of concern. 
9 The UNHCR defines this group as persons whose application has been lodged and the outcome is pending. The 
study estimatesestimate that about two-thirds lodged an application in 2016 (the number of asylum applications 
made in Member States divided by the number of pending cases in Member States).   

140 

 
 
 
 
 
 
                                                           
Table 6: Overview of individual impacts 

Individuals 
affected 

r
e
h
t
O

s
n
o
s
r
e
p

f
o

n
r
e
c
n
o
c

U
E
e
h
t
o
t

s
r
e
k
e
e
s

m
u
l
y
s
A

Type of impact 

Assessment* 

1. Risk of continued 
persecution (do not 
seek asylum). 

2. Smuggler fees. 

3. Risk of trafficking 
and other 
exploitation. 

and 

4.  Mortality 
health. 
5. Poor reception. 

Delays 

6. 
integration. 

to 

7. Risk of entry into the 
informal market. 

8. Discrimination. 

An estimated 70% of ‘persons of concern’ 
(47.7  million)  remained  in  the  source 
country  in  201610.  These  individuals  are 
likely to be from vulnerable populations. 

EUR  3,050-32,000  per  asylum  seeker;  
Estimated  revenue  of  migrant  smuggling 
networks in the EU in 2016: EUR 3.2 billion 
79% reported at least one of four human 
trafficking and other exploitative 
practices along the Central Mediteranean 
route; 9% for the Eastern Mediterranean 
route. 
1.3-1.8% estimated risk of mortality. 

97% of arrivals to the EU in 2016 were to 
border  Member  States  (Italy  and  Greece), 
causing  work  and  cost  imbalance  and 
overload  and  ultimately  poor  reception 
conditions.  
Waiting  periods  delay 
the  eventual 
decision on an asylum seeker’s application 
and steps towards integration into society. 
For  example,  there  is  an  estimated  6-12 
month waiting period to lodge an asylum 
application. 
An estimated 24% of asylum applicants are 
not  found  to  have  a  legitimate  claim  yet 
remain in the EU. 
Lower  earnings  due  to  higher  risk  of 
assault  (2-13%)  and  lower  probability  of 
employment 
racial/ethnic 
discrimination).  

(2-8% 

for 

Source: Author’s own compilation.  
*Explanations for the figures in the table including their sources are provided below.  

Impacts on the fundamental rights of asylum seekers are significant but were considered 
to be outside the scope of this research paper. Of the individual impacts assessed, only one 
type (smuggler fees) could be monetised. Nonetheless, all of the individual impacts can be 
understood to be substantial. Each one is described in more detail below. 

10 These individuals include returned refugees, IDPs, returned IDPs, persons under the UNHCR’s statelessness 
mandate and others of concern. 

141 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
1.  Risk of continued persecution 

As illustrated in Figure 1, only a small share (4%) of persons in need of protection seek 
asylum  in  the  EU  or  in  other  countries,  with  the  vast  majority  left  behind  (71%).  The 
available evidence suggests that asylum seekers to the EU have more resources and less 
vulnerability than those who remain in the source country. The financial costs required to 
make the journey are significant (see Section 2), as are the risks faced by women and girls 
due to sexual violence and trafficking (see Section 3). The lack of safety may also impede 
other vulnerable populations, such as the elderly and/or individuals with disabilities, from 
seeking asylum.   

These assertions are reflected in the relatively advantaged demographic profile of asylum 
seekers and refugees in the EU. About 42% of asylum applicants were males between the 
ages of 18 and 34 years (Connor, 2016). An estimated half of Syrians coming to the EU at 
the height of the crisis in 2015 had a university degree (Betts & Collier, 2017). Similarly, in 
2014,  an  estimated  20%  of  refugees  aged  15  to  64  had  a  university  degree  (OECD  & 
European Commission DG Employment, 2016). Thus, there is significant selection in who 
is able to undertake the journey, while those who are more vulnerable and who have fewer 
economic  means  remain  in  the  country  where  persecution  takes  place  (Betts  &  Collier, 
2017).  

2.  Smuggler fees 

With the lack of legal channels for asylum seekers to enter the EU, many resort to irregular 
means via smuggling routes. In 2016, migrant smuggling networks generated about EUR 
3.2 billion in the EU, a decrease from the estimated EUR 5.2 billion in 2015, largely due to 
the  decline  in  arrivals  to  the  EU  (Europol,  2017)11.  Smuggling  can  be  used  to  reach  EU 
borders, as well as to reach final destinations within Europe. The costs of these routes vary 
based on an asylum seeker’s starting point, mode of transport, time of year, and even their 
race. The only constant is the level of danger and the risk of other forms of exploitation. 
To reach EU borders, sources suggest may cost anywhere from EUR 3,050 to 32,000 per 
person, depending on a number of factors (see Box 1).  

The per-capita income in source countries is important in putting these fees into context. 
Recent figures show that the average annual per-capita income in Syria was EUR 1,300, in 
Afghanistan EUR 465, and in Iraq EUR 3,815  (World Bank, 2016)12, meaning that financing 
the journey to reach the EU requires  years, if  not decades worth of  savings, and would 
present a sizeable barrier to the most vulnerable individuals in need of protection.  

11 An average figure of EUR 3.2 billion in 2016 was calculated based on the following text from Europol, 2017: 
’In 2015, migrant smuggling networks…generated an estimated EUR 4.7 billion to EUR 5.7 billion in profit. 
These profits have seen a sharp decline in 2016, dropping by nearly EUR 2 billion between 2015 and 2016.’.”  
12 Amounts converted to EUR. Latest estimates for Syria were 2010, Afghanistan and Iraq 2016. 

142 

 
 
 
 
 
 
 
 
                                                           
Box 1: What do asylum seekers pay to smugglers to reach the EU? 

Within the Central Mediterranean route, a boat from Libya to Italy can cost EUR 1,000 - 
2,00013. These costs may vary by an individual’s race. According to one news source, the 
same boat journey from Libya to Italy can cost a Syrian about EUR 2,000, a Moroccan 
EUR  1,200  and  a  sub-Saharan  African  EUR  66214.  The  EU  also  quotes  higher  fares  to 
travel by cargo vessel, with smugglers believed to have earned close to EUR 7,000 per 
person (European Commission, 2015). Within the Eastern Mediterranean route, a boat 
from Turkey to Greece could also cost between EUR 1,000 and 1,20015. Land travel via 
the Balkan route is more expensive in comparison with Europol quoting EUR 7,000 for 
many Afghan, Iraqi, Pakistani and Syrian migrants to be transported to the EU (Europol, 
2018). Once at the  Greek border, migrants  may also  be smuggled to end destinations 
such as Germany or Sweden, costing an additional EUR 1,200-5,00016. Air travel seems 
to be the most costly. Afghans were quoted as paying between EUR 10,000 and 11,000 
to get to Hungary by plane17.  Other figures quote EUR 900-4,200 per trip per individual 
from Syria, Afghanistan, Iraq, Pakistan and Morocco) (IOM, 2016). 

Smuggling  also  includes  the  additional  costs  of  travel  and  accomodation  to  the 
debarking location (such as the cost of a migrant from Nigeria or Eritria to reach Libya, 
which can reach upwards of EUR 7,00018; or a Syrian or Iraqi to reach Turkey), as well 
as the cost of accomodation while waiting for the voyage or between legs of the journey 
to Europe. Migrants without means must stay, sometimes for years, to pay off debts to 
smugglers earlier in their route or to save up for the next leg of the journey. 

Cost categories 
Travel and accomodation to debarking location  EUR 50-7,000  
Accomodation while waiting for voyage to EU 
or between legs of journey 

Cost per person 

EUR 1,000-10,00019 

Smuggler fees for entry to EU 
Smuggler fees within EU 
Total estimated cost  

EUR 1,000-10,000  
EUR 1,000-5,000  
EUR  3,050-32,000  (average  EUR 
17,525)   

13 Latza Nadeau, B., ’ConfessionsConfessions of a Human Trafficker who smuggled desperate migrants into 
Europe’Europe, The Daily Beast, 6 May 2014. https://www.thedailybeast.com/confessions-of-a-human-
trafficker-who-smuggled-desperate-migrants-into-europe  
14 Kingsley, P., ’Libya’sKingsley, Libya’s people smugglers: inside the trade that sells refugees hopes of a better life’life, 
The Guardian, 24 April 2015. https://www.theguardian.com/world/2015/apr/24/libyas-people-smugglers-
how-will-they-catch-us-theyll-soon-move-on  
15 Choros, E., ’TheThe Price of Escape: How much do smugglers charge refugees and migrants for passage to Europe?’ 
Greek Reporter, 30 March 2016. http://greece.greekreporter.com/2016/03/30/the-price-of-escape-how-much-
do-smugglers-charge-refugees-and-migrants-for-passage-to-europe/  
16 Stamouli, N., ’InsideInside the Migrant-Smuggling Trade: Escapes start at €1,000’000, The Wall Street Journal, 29 
March 20162016. https://www.wsj.com/articles/european-border-crackdown-kick-starts-migrant-smuggling-
business-1459260153  
17 Ni Chonghaile, C. & Kingsley, P., ’People smuggling: how it works, who benefits and how it can be stopped’stopped, 
The Guardian, 31 July 2015.  https://www.theguardian.com/global-development/2015/jul/31/people-
smuggling-how-works-who-benefits-and-how-to-put-stop  
18 Kingsley, P., ’Libya’s people smugglers: inside the trade that sells refugees hopes of a better life’life, The Guardian, 24 
April 2015. https://www.theguardian.com/world/2015/apr/24/libyas-people-smugglers-how-will-they-
catch-us-theyll-soon-move-on  
19 Amounts could vary based on location and length of stay. 

143 

 
 
 
 
                                                           
3.  Risk of trafficking and other exploitation 

Travel  to  the  EU  by  irregular  means  is  associated  with  a  high  risk  of  trafficking  and 
exposure  to  violence  by  criminal  networks,  particularly  for  women  and  children  (IOM, 
2016). A survey conducted by IOM found that 79% of the surveyed migrants and refugees 
in the Central Mediterranean route (primarily Italy) experienced at least one trafficking or 
other exploitative practice (IOM, 2017)20. About 90% of reported cases took place in Libya, 
which is located in the Central Mediterranean route. Other reports have underscored the 
severe exposure to violence experienced by asylum seekers traveling through Libya, with 
testimonies  of  torture,  kidnappings,  severe  detention  centres  and  gang-rape  (UNHCR, 
2017; Amnesty International, 2017). In a survey of migrants who travelled through Libya, 
84% experienced extreme violence or torture, while all but one of the women experienced 
sexual violence  (Oxfam, 2017)21. The increased numbers of Nigerian women arriving in 
Italy (growing from 1,008 in 2014 to 4,371 in 2015) is particularly concerning as 80% are 
believed to be victims of trafficking who will be drawn into the prostitution market. Other 
reports  provide  reinforcing  testimony  (European  Parliament,  2016;  UNHCR,  2017).  In 
addition, 75% of respondents from the Central Mediterranean route reported experiencing 
physical  violence,  while  36%  were  forced  to  work  (IOM,  2017).  In  the  Eastern 
Mediterranean  route,  a  lower  but  still  significant  prevalence  of  trafficking  and  other 
exploitative practices was reported, with about 9% of respondents experiencing a single 
episode. In addition, about 5% reported being forced  to work, while 1% reported being 
held  against  their  will  (IOM,  2017).  About  80%  of  those  incidences  occurred  in  Turkey. 
Another source highlights trafficking practices stemming from the crisis in Syria  (ICMPD, 
2015). 

4.  Risk of mortality and poor health  

A recent UNHCR report notes that, in 2017, ‘As European States took increased steps to 
control  access  to  their  territories,  those  seeking    international  protection  in  Europe  took 
even more dangerous journeys, sometimes with smugglers, or attempted alternative routes 
in  order  to  reach  their  intended  destinations’  (UNHCR,  2018).  These  increasingly 
dangerous journeys via irregular channels carry a high risk of mortality. A large majority 
(97% of migrants in 2017) enter the EU through the Mediterranean Sea border (IOM, 2017). 
The number of estimated dead and missing migrants increased to over 5,000 in 201622 and 
decreased  to  3,139  in  2017  (IOM)  (UNHCR).  The  main  causes  of  death  were  drowning, 
dehydration, starvation and hypothermia (IOM, 2017). These figures translate to a risk of 
mortality  of  about  1.3%  in  2016  and  1.8  in  2017%23,  showing  that  while  there  may  be  a 
decrease in overall deaths, the likelihood of dying has actually increased. 

20 In total, 5,329 interviews were conducted in Italy, Greece, Bulgaria, Hungaria, Serbia and the Former 
Yugoslav Republic of Macedonia in May 2017. 
21 These findings are based on 258 testimonies from partners of Oxfam (Doctors for Human Rights and 
Borderline Sicilia).  
22 IOM figures suggest 5,143 (https://missingmigrants.iom.int/region/mediterranean) and UNHCR figures 
suggest 5,096 dead or missing in 2016 (http://data2.unhcr.org/en/situations/mediterranean).) Reasons for the 
slight variation are variationsunknown. 
23 This figure was calculated as the number of asylum seekers killed or missing as a share of arrivals. In 2016, 
there were between 362,753 and  392,994 arrivals, with between 172,301 and 186,768 in 2017. Ranges are 
differences between UNCHR and IOM figures. Reasons for the slight variations are unknown. 

144 

 
 
 
 
                                                           
In addition to the risk of mortality, there is significant physical and psychological stress 
associated  with  the  conditions  of  such  travel.  One  2016  study  investigated  the  health 
problems of asylum seekers or refugees that had experienced an emergency room visit in 
Greece (Pfortmueller et al., 2016). While the sample was relatively young (the average age 
was 34 years), many had serious health issues. Many had to undergo surgery due to the 
trauma  experienced.  Acute  infectious  diseases  were  common,  as  were  psychiatric 
problems. Patients from Syria were more likely to have suffered from post-traumatic stress 
disorder.  

Another study assessed the stress levels of asylum seekers by analysing the concentration 
of the stress hormone cortisol in hair samples (Mewes et al., 2017). The study found similar 
concentration  levels  among  asylum  seekers  with  and  without  a  post-traumatic  stress 
disorder diagnosis, while levels were lower among permanent settled immigrants. Women 
and  victims  of  sexual  violence  in  particular  may  suffer  worse  health  impacts,  as  may 
children (Hebebrand et al., 2016).  

5.  Poor reception conditions 

The first country of arrival for most asylum seekers isItaly, Greece or Spain24. Once in the 
EU,  an  asylum  seeker  becomes  subject  to  the  Dublin  III  Regulation,  which  sets  forth  a 
hierarchy  of  criteria  to  determine  the  Member  State  responsible  for  examining  the 
application for asylum. Several factors (chiefly the criterion that the country of first arrival 
should  examine  the  asylum  application,  as  well  as  the  limited  number  of  transfers 
executed) have limited the redistribution of these asylum seekers to other Member States  
(ICF, 2015). Asylum seekers thus face a higher risk of poor reception conditions due to the 
mismatch in the number of asylum seekers and the capacity of the most impacted Member 
States  to  host  them.  Concerns  have  been  raised  about  the  procedures  and  reception 
conditions in hotspots, which were a measure taken by the EU to strengthen the capacity 
of the EU border countries (Danish Refugee Council, 2017). These concerns include delays 
in  the  conduct  of  vulnerability  screenings,  the  limited  availability  of  interpreters  and 
mediation  services,  overcrowded  facilities,  and  limited  access  to  healthcare  (Danish 
Refugee Council, 2017). 

6.  Delays in lodging an asylum application 

Under the status quo, there is often a significant delay between the time of arrival in the 
EU  and  the  lodging  of  an  application  for  asylum.  This  delay  can  hinder  the  eventual 
integration of an asylum seeker once his or her application has received a positive decision. 
For example, the average waiting period to lodge an asylum application in Greece in 2016 
was one year  (ECRE, 2016). Some delays may be attributed to the transfer procedure of the 
Dublin  system,  specifically  disagreements  between  Member  States  on  the  interpretation 
and application of the hierarchy of criteria. In total, the number of take-charge and take-
back requests in 2016 was estimated to be 12% of all asylum applications (Eurostat, 2017). 
The estimated waiting period was 10-11 months (ICF, 2015). About 12% of transfer requests 
were actually executed. Delays may also result from appeals to transfer decisions. 

24 As highlighted earlier, 97% of migrants arrived in the EU via the Mediterranean Sea in 2017. 

145 

 
 
 
 
 
 
                                                           
7.  Risk of risk of falling into the informal market 

A high share of asylum seekers are not effectively transferred to another Member State or 
their application for asylum is rejected. About 42% of requested transfers were not made 
effectively  in 2016, placing  these individuals  under the responsibility of the pre-transfer 
Member State (Eurostat, 2017). These individuals face a high risk of falling into the informal 
market. In 2016, there were an estimated 433,505 rejected asylum seekers at first instance 
(39% of the total decisions made)25. An estimated 31% of all irregular migrants leave the 
EU through forced  or voluntary means (Eurostat, 2017). We assume that  this share also 
applies to rejected asylum seekers, leaving an estimated 299,118 rejected asylum seekers in 
the EU. This is equivalent to about 24% of asylum applicants in the EU that year26. 

8.  Discrimination 

Asylum seekers and refugees experience  high levels  of discrimination in the EU, which 
may hinder their social integration and potential to contribute to the formal economy. This 
impact may stem in part from their uncontrolled arrival through irregular means, and the 
conflation of their situation with economic migrants. The discrimination they experience 
primarily relates to the grounds of race, ethnicity, religion and nationality. Discrimination 
on the grounds of race, ethnicity and religion are associated with a higher risk of assault, 
poorer mental health and lower earnings  (Van Ballegooij & Moxom, 2018).  

II 

Member State impacts 

Member  States  also  experience  impacts  from  the  status  quo,  largely  relating  to  the 
reception of asylum seekers. The main direct costs are detailed in Table 7 below. Several of 
these costs relate to the management of irregular migration.  

The OECD reports that the cost to support an asylum seeker in the first year is about EUR 
10,000  (OECD,  2017).  These  costs  typically  include  provision  for  food,  accommodation, 
medical services and education for children. Other statistics were obtained from a recent 
evaluation of the Dublin III Regulation, a central pillar of the CEAS architecture. The costs 
of the Dublin system are generally variable, and depend on the level of asylum flows.  

25 We combined estimates for the number of rejected applications at the first and final decision from 
Eurostat. There were a total of 433,505 rejected decisions as compared with 672,900 positive decisions 
in 2016. 

26 There were an estimated 1,260,910 asylum applicants to the EU in 2016 (Eurostat, 2017). 

146 

 
 
 
 
 
 
 
 
 
 
                                                           
Table 7: Overview of impacts on Member States 

Type of impact 

Assessment 

Border security and 
surveillance 
Security and terrorism 

High burden on EU border countries (e.g. Italy, 
Greece)  

See Cost of Non-Europe in the area of terrorism 

Private shipping – search 
and rescue missions 

EUR 23,000 per year or up to EUR 216,000 per 
operation27 

Provision of reception 

EUR 34 per day28 

Processing asylum 
applications 

Cost of return 

the 

into 

Risk  of  entry 
informal market 
Complementary pathways of 
admission 
Organised crime 

EUR 4,834 for each application 29 

Forced return: EUR 2,000 per individual30 
Voluntary return: EUR 560 per individual31 
An estimated 20% of arrivals fall out of the EU 
asylum system and remain in the EU 
See Table 8: Member States with humanitarian 
admission programmesTable 8 
See Section III EU impacts  

The  EU  and  Member  States  share  responsibility  for  integrated  border  control  and 
management,  for  example,  to  monitor  illegal  border-crossings  at  specific  routes  in  the 
Eastern Mediteranean and the Western Balkans. These are considered indirect costs and 
relate to actions to manage the inflow of asylum seekers and economic migrants into the 
EU  and  address  the  root  causes.  More  than  1.8  million  irregular  border  crossings  were 
detected  in  2015,  hindering  the  proper  functioning  of  the  Schengen  area  (European 
Commission, 2018). At the Member State level, this type of cost falls disproportionately on 
the border Member States, in particular Greece and Italy, which are the main countries of 
arrival. Some of the funding needs are supported by the ISF Visa and Borders Programme 
(see Section III EU impacts) but the level of national funds directed to the activity are also 
substantial, as Box 2 illustrates. 

27 The cost depends on the type of private vessel, the distance that must be taken off-course, accessibility of the 
nearest port, etc. Lower bound cost found here:https://fairplay.ihs.com/commerce/article/4266186/european-
parliament-votes-to-protect-ship-masters-during-mediterranean-rescues;  The upper-bound figure was 
calculated based off of the USD 50,000 mentioned here: https://www.reuters.com/investigates/special-
report/europe-migrants-ship/ This was multiplied by the 5 days mentioned in delays. The figure was then 
converted into EUR (note conversation rate based off of June 2018 rate).  
28 Cost of Non-Europe study in the area of asylum. 
29 Ibid. 
30 Ibid. 
31 Ibid. 

147 

 
 
 
 
 
 
 
                                                           
Box 2: What do border Member States pay to address the migrant crisis?  

Italy: Between 2011 and 2013, Italy’s expenditures to address the migrant crisis was 
estimated to be approximately EUR 5 billion, excluding EU subsidies. The table below 
notes Italy’s costs for sea rescue and reception by year. Expenditures related to external 
border control was estimated via 25% of national contributions to ISF-Borders and Visa 
Funds. This is the maximum amount, with the national contribution range typically 
between 5-25%. Here, 25% was assumed, which is the percentage that goes towards 
‘supporting and expanding the existing capacity at national level in visa policy and in 
the management of the external borders…’(European Parliament & European Council, 
2014).  

Italy expenditures for migrant crisis 
2012 

2011 

Total (EUR mln) 
Border security (%) 
Sea rescue (%) 
Accomodation (%) 
Healthcare and 
education (%) 

922 
* 
33% 
36% 
31% 

899 
* 
23% 
44% 
34% 

2013 

2014 

2015 

2016 

1,356 
* 
35% 
42% 
23% 

2,205 
* 
45% 
33% 
22% 

2,747 
0.4% 
28% 
51% 
20% 

3,441 
0.3% 
25% 
58% 
16% 

Source for border security: Programma Nazionale ISF Identificazione Delle Autorità 
Designate; Source for remaining data: Italian Ministry of Finance, Relevant factors influencing 
debt developments in Italy, May 2016; *numbers not available for these sources 

Greece: Expenditure for the control of external borders was also estimated via 25% of 
national  contributions  to  ISF-Borders  and  Visa  Funds.  The  estimated  amounts  were 
similar to those for Italy, with 2015 showing the maximum possible national expenditure 
of EUR 11.3 million, compared to EUR 10.6 million in 2016 and EUR 7.8 million in 201732. 
However, given the considerable pressure faced by Greece, more funds were allocated 
to  external  borders,  including  EUR  55.8  million  in  ISF  Emergency  Assistance  directly 
allocated  to  Greek  authorities  (European  Commission-  DG  HOME,  2017).  Costs  for 
reception, sea rescue, etc. were more difficult to quantify. However, given the similar 
figures for external border costs, Greece’s spending on rescue and reception is likely to 
be on a similar scale to that presented for Italy. 

A related issue that Member States face is the engagement of commercial ships in search 
and rescue missions of irregular migrants. Sources provide conflicting information on the 
extent of this practice. The European Commission notes that merchant ship rescue efforts 
accounted for 25% of all rescues in 2014, dropping to 8% in 2016 (European Commission, 
EPSC,  2017).  Another  publication,  however,  quoting  the  European  Community 
Shipowners’ Association (ECSA), suggests that rescue efforts of commercial ships grew to 
29% in the first half of 2015 (Pezzani & Heller, 2015). The European Commission has noted 

32 Note: 25% taken from ISF Border figures for Greece given on p. 48 
http://www.ypes.gr/UserFiles/f0ff9297-f516-40ff-a70e-eca84e2ec9b9/ISF-Programme.pdf 

148 

 
 
 
 
 
 
 
 
 
                                                           
that NGOs have become more actively engaged in search and rescue missions since mid-
2014 by moving away from Italian coasts and closer to Libyan waters.  

Figure 2: Search and rescue operations by agency/ship operator 2014-2016 (%) 

Source: European Commission, European Political Strategy Centre (EPSC), Irregular migration via the 
Central Mediterranean- from emergency responses to systemic solutions, February 2017. 

Regardless of the number of rescues, costs for merchant ships were estimated to be up to 
EUR 216,000 per rescue operation33, in addition to delays of up to five days incurred due 
to issues with the closest port not accepting rescued migrants, or because the rescue ship 
was too big to access a particular port34. A lower estimate quotes figures ranging from EUR 
23,000 to 69,000 for rescue missions in 201535. 

Member States are also looking outwards to address irregular migrant inflows, with some 
undertaking  ongoing  policy  discussions  to  establish  hotspots  in  third  countries.  For 
example, France is considering an approach to stem the flow of asylum seekers through 
Libya (Dastyari, 2017). No real figures are available to reflect the impact of such policies, 
as no economic assessments have yet been made.  

Currently, some Member States offer complementary pathways of admission to refugees. 
These  include  humanitarian  admission  programmes,  private  sponsorship  schemes  or 
facilitated family reunification schemes36. Table 8 provides an overview of some of these 
programmes  and  the  numbers  of  refugees  they  admitted  between  2013  and  2016.  For 
example, France provided more than 3,000 asylum visas to Syrian refugees, allowing them 
to travel to France and apply for asylum. These individuals were granted subsequent visas 
that permitted them to work during the asylum procedure (FRA, 2015). Other projects have 

33 Saul, J., ’In Mediterranean, commerical ships scoop up desperate human cargo’cargo, Reuters Investigates, 21 
September 2015, https://www.reuters.com/investigates/special-report/europe-migrants-ship/; USD costs of 
10,000-50,000 per day for rescue missions. Amount translated to EUR, according to 2015 exchange rate. 
34 Shettar, G., ’EuropeanEuropean Parliament votes to protect ship masters during Mediterranean rescues’rescues, 
Fairplay, 14 April 2016, https://fairplay.ihs.com/commerce/article/4266186/european-parliament-votes-to-
protect-ship-masters-during-mediterranean-rescues  
35 Ibid.Idem 
36 For an overview of these schemes, please refer to a series of scoping papers published by the European 
Resettlement Network in 2017 and 2018.  

149 

 
 
 
 
 
 
                                                           
been undertaken by national NGOs such as Sant'Egidio Humanitarian Corridors in Italy 
and the Family Migration Assistance programme run by the International Organisation on 
Migration in Germany (FRA, 2015; European Council of Refugees and Exiles, 2017).  

Table 8: Member States with humanitarian admission programmes 

Host 
country 
Austria 

Programme name 

Countries targeted 

Humanitarian Admission 
Programme 

Syria 

Germany  Humanitarian Admission 

Programmes 

Ireland 

France 

UK 

Syrian Humanitarian 
Admission Programme 
(SHAP) & Family 
Reunification HAP 
Humanitarian Admission 
Programme 
Vulnerable Persons 
Relocation Scheme 
(VPRS) 

Syria, Afghanistan, 
Palestine, Egypt, 
Libya 
SHAP- Syria 
FRHAP- all refugees 

Syria 

Syria (and, as of 
mid-2017, Iraq and 
Palestine) 

Number of refugees 
2013-2016 
1,668 

19,047 

SHAP- 119 visas 
FRHAP- 530 

3,415 

10,538 

Source:  European  Resettlement  Network  Scoping  Paper,  Humanitarian  Admission  Programmes  in 
Europe, Expanding complementary pathways of admission for persons in need of intenational protection, 2018.  

III 

EU impacts 

The refugee crisis also imposes costs at EU level. This review identified the following direct 
costs (2016 annual figures):  

•  EUR 170 million to set up the CEAS; 
•  EUR 73 million for the operation of the EASO; and 
•  EUR 2.3 billion for emergency funding for ‘hotspots’ and other supports. 

Member  States  are  expected  to  spend  about  20%  of  their  allocation  from  the  Asylum 
Migration and Integration Fund (AMIF)  on the development of the  Common European 
Asylum System (CEAS). The total level of investment was estimated to be EUR 170 million 
in 2017 (European Parliament, 2015). In addition, the European Asylum Support Office 
(EASO) spent an estimated EUR 73 million in 2017 (EASO, 2017).  

Between 2015 and 2017, EU emergency funding under the AMIF amounted to around EUR 
4.6  billion  (EUR  2.3  billion  annually),  allocated  to  14  Member  States,  EU  agencies  and 
international  organisations  (EASO,  IOM  and  the  UNCHR)  for  support  actions  in  Italy, 
Greece and Bulgaria (European Commission, 2017)37. Much of the emergency funding was 
directed towards the establishment of ‘hotspots’ to alleviate the strain on border Member 

37 Fundingfunding levels were estimated to be EUR 2.5 billion annually. 

150 

 
 
 
 
 
 
 
                                                           
States (Red Cross EU Office, 2015). About EUR 150 million was provided through AMIF 
and ISF to support the operation of hotspots in Greece (European Commission, 2016), of 
which EUR 12.7 million was designated for reception facilities (European Commission-DG 
HOME, 2016). Funding for the Emergency Support Instrument is estimated to total EUR 
700  million  over  the  2016-2019  period,  or  about  EUR  233  million  annually  (European 
Commission, 2016). These funds also support the reception of asylum seekers in countries 
with high numbers of arrivals. 

The assessment also identified a number of indirect costs stemming from the status quo. 
These costs are related to actions to stem the inflow of asylum seekers and migrants by 
addressing the the root causes, many of which lie outside the  EU’s borders. The central 
problem of the status quo touches on a host of related policies in the area of border security, 
development  cooperation,  human  trafficking  and  legal  migration.  At  present,  there  are 
significant challenges  in differentiating between asylum seekers  and economic migrants 
(who  are  subject  to  different  legal  channels),  which  may  create  uncertainty,  as  well  as 
higher costs for agencies and others interacting with these two distinct populations.   

Table 9 presents an overview of the key types of indirect impacts for the EU. Several relate 
to the management of irregular migration. Each is described in more detail below. 

Table 9: Summary of indirect impacts  for the EU (annual estimates) 

Type of impact 

1. Surveillance and 
border management. 

Total annual 
cost  
EUR 
million 

416 

Assessment 

ISF: EUR 7 million for EU actions and EUR 73 
million for emergency assistance; Frontex: 
EUR 230 million; Temporary internal border 
controls: EUR 106 million 

2 Security and 
terrorism. 
3. Third country 
agreements. 
4. Development 
cooperation. 
5. Organised crime. 

EUR 13.6 billion 

See Cost of Non-Europe on terrorism 

EUR 2.3 billion 

Emergency  Trust  Fund  for  Africa:  EUR  833 
million; Turkey agreement: EUR 1.5 billion 

EUR 2.5 billion  Development  cooperation:  EUR  1  million; 

Emergency funding: EUR 2.5 billion 

EUR 30 billion  Human  trafficking:  EUR  30  billion;  Europol 

Migrant Smuggling Centre: EUR 5 million 

Note: The cost estimates are annual estimates based on multi-year budgets spanning from 
2014 to 2019.   

1.  Surveillance and border management  

The main EU-level actors and sources of funding include the Internal Security Fund (ISF) 
Border  and  Visas  instrument  and  the  European  Border  and  Coast  Guard  Agency 
(Frontex).  Their  activities may  provide  a  barrier  to  both  illegal  economic  migration  and 
entrance to asylum seekers. 

151 

 
 
 
 
 
 
 
The 2014-2017 annual work programmes from ISF - Border and Visas provide information 
on  the  costs  of  EU  activities  promoting  the  harmonisation  of  border  control  measures 
across different actors and the Member States. 38 This paper found a stable outlay or fixed 
cost of about EUR 10 million each year for grants, procurement, training and other actions, 
of which an estimated 70% is related to border management (EUR 7 million) 39. Actual costs 
are likely to be higher, due to the requirement that Member States provide co-financing 
and other adjustments.  

The work programmes also indicate funding levels for emergency assistance, which vary 
significantly by year. In 2017, emergency assistance from ISF – Border and Visas was EUR 
73 million.  The upward trend in funding is mirrored by the increase in asylum  seekers, 
suggesting that the refugee crisis was a driver of this source of funding (see Figure 3). Italy 
and Greece were the primary recipients of this financial support in 2015 and 201640.  

Figure 3: Trends in funding levels in relation to numbers of asylum applicants  

Source: 2014-2017 work programmes for ISF –Border and Visas. 

The mandate and funding for the European Border and Coast Guard Agency (Frontex) 
has increased substantially in recent years. Since 2016, the agency supports both border 
management and return operations. In 2017, about 20% of funding for operational activities 
(total EUR 270 million) was dedicated to the return of illegal migrants (see Figure 4).  About 
5%  of  the  operational  budget  supported  risk  analyses,  the  Situation  Centre,  and  the 
European Border Surveillance System (EUROSUR), a drone system, satellite imaging and 
other technology to track migration flows into the EU. More than half of operational funds 

38 The most recent work programme provided the basis for the review, which was conducted on 9 March 2018. 
These work programmes were accessed from the DG HOME website: https://ec.europa.eu/home-
affairs/financing/fundings/security-and-safeguarding-liberties/internal-security-fund-borders/union-
actions_en. Activities for border management and the common visa policy share the same budget line. 
However, it is possible to distinguish activities supporting the different objectives through an activity-level 
review. ISF - Borders and Visa instrument has an initial allocation of EUR 2,760 million for the 2014-2020 period. 
39 This estimate is based on a review of the itemised figures included in the 2014 budget.  
40 Breakdown by country is not available for other years. Funds to Greece and Italy was 57% of the total in 2015 
and 39% of the total in 2016. 

152 

 
 
 
 
 
                                                           
(57% in 2017) supported joint operations with Member States, such as Operation Themis, 
which  provides  surveillance  and  search  and  rescue  off  the  coast  of  Italy,  and  Poseidon 
Rapid Intervention, which focuses on the border between Greece and Turkey41.  

Figure 4: Trends in funding levels for Frontex 

Source: Frontex Amended Budget 2017 N3. Table A3 Operational Activities.  

In  addition  to  external  border  controls,  some  Member  States  temporarily  reintroduced 
internal border controls within the Schengen Area as a means of controlling the inflow of 
asylum  seekers  (European  Council  of  the  European  Union,  2016).  In  March  2018,  there 
were five Member States with such measures in place (European Commission, 2017)42. A 
study  for  the  European  Parliament  estimated  that  the  economic  costs  associated  with  a 
hypothetical two-year suspension of the Schengen Area in five countries could amount to 
EUR 211.5 million over the two-year period (or about EUR 106 million annually) (EPRS, 
2016). 

2.  Security and terrorism 

The  EU  combats  terrorism  through  several  measures,  including  supporting  national 
measures to prevent radicalisation and recruitment, address terrorist financing, regulate 
the possession and acquisition of weapons, and focus on security external borders. The EU 
also actively cooperates with third countries and international organisations, and facilitates 
cooperation  between  law  enforcement  authorities  across  Member  States.  Terrorism  has 
cost the EU about EUR 13.6 billion annually 43, with about 97% coming from lost GDP and 
3% from lost lives, injuries and infrastructure damage (European Parliamentary Research 
Service Blog, 2018). 

41 Operation Themis was launched in February 2018 and replaces Operation Triton: 
http://www.dw.com/en/frontex-launches-new-eu-border-control-mission-operation-themis/a-42417610; 
Operation Poseidon began in December 2015: https://frontex.europa.eu/news/frontex-and-greece-agree-on-
operational-plan-for-poseidon-rapid-intervention-yiSxga 

42 Sweden, Denmark, Germany, Austria and France. 
43 Yearly amount calculated by adding EUR 185 billion in lost GDP and EUR 5.6 billion in lost lives, injuries and 
damages since 2004 and dividing by 14. 

153 

 
 
 
 
 
 
 
 
 
                                                           
 
3.  Third country agreements 

Agreements  with  third  countries  may  help  to  manage  irregular  inflows  to  the  EU.  A 
notable  example  is  the  EU-Turkey  Statement  issued  in  March  2016  (Council  of  the 
European  Union,  2016).  In  return  for  meeting  certain  conditions  (such  as  tighter  visa 
requirements, readmission of irregular migrants to Turkey or to the migrant’s country of 
origin, and tighter border controls), Turkey received a budget of EUR 3 billion over two 
years (or EUR 1.5 billion annually) through the legal framework known as the Facility for 
Refugees.  In  the  June  28/29  European  Council  summit,  Council  agreed  to  launch  the 
second tranche of the Facility for Refugees (European Council, 2018). It was also agreed at 
the summit to transfer EUR 500 million from the 11th EDF reserve to the EU Trust Fund for 
Africa, which already holds EUR 3.37 billion (European Commission, 2018). These funds 
are dispersed mainly through the EDF, DCI, ENI, DG HOME, and DG ECHO, and amount 
to about EUR 833 million per year. The funds support activities such as training for the 
Libyan  Coast  Guard  and  Navy  to  enhance  their  capacity  to  perform  search  and  rescue 
operations, and weaken smuggling networks. Lastly, a cooperation agreement for border 
surveillance  and  policing  was  established  between  Spain  and  Morocco  that  was  partly 
financed by the EU (ECRE, 2018). The initiative has not, however, prevented an increase in 
irregular border crossings but, rather, has left migrants vulnerable and resorting to more 
dangerous smuggling methods, as well as increasing the risk of human rights abuses and 
exploitation (Carrera et al., 2016). 

4.  EU development cooperation 

The EU has a number of instruments to foster cooperation with third countries of origin 
and facilitate the smooth transit of migratory flows, including Regional Development and 
Protection  Programmes  (RDPPs),  Mobility  Partnerships  (MPs),  Common  Agendas  on 
Migration and Mobility (CAMMs) and Visa Facilitation Agreements (VFAs) (Red Cross EU 
Office,  2015).  RDPPs,  for  example,  are  designed  to  enhance  the  capacity  of  non-EU 
countries in the regions from which many refugees originate, or through which they pass 
in  transit.  In  the  case  of  Libya,  the  EU  and  its  implementing  partners  (IOM  and  the 
UNHCR)  also  provide  external  assistance  for  voluntary  humanitarian  returns  and 
evacuations from Libya through the Emergency Transit Mechanism and Common Security 
and Defence Policy (CSDP) missions (EUNAVFOR Med Operation Sophia and  EUBAM 
Libya).  

The past decade has seen the increased use of development cooperation funds to support 
EU  migration  policy  objectives.  In  fact,  most  recently,  EU  leaders  have  emphasized  the 
importance of partnership with Africa in terms of increased development funding as well 
as through the establishment of a new framework to enable increased private investment 
from  Africans  and  Europeans  (European  Council,  2018).  The  level  of  funds  has  been 
estimated at EUR 1 million per year (European Parliament-LIBE, 2015). Relevant activities 
may  include  raising  awareness  of  illegal  migration  and  smuggling,  and  working  with 
national governments to agree return programmes. These funds however, may not always 
be complementary to internal funds for migration and asylum (e.g. AMIF or ISF), limiting 
their  overall  effectiveness  (European  Parliament-LIBE,  2015).  Some  Member  States  have 

154 

 
 
 
 
 
reduced  their  development  cooperation  budget  in  order  to  offset  the  cost  of  migrants 
arriving through irregular means, as in the case of Sweden (Betts & Collier, 2017). 

Development cooperation funds also include emergency funds targeting the stemming of 
migration flows. In total, an estimated EUR 5.1 billion was granted in 2015 and 2016, or 
about EUR 2.5 billion annually. A breakdown by instrument is presented in Figure 5. 

Figure 5: Breakdown of emergency funds for development cooperation 

Source: European Parliament, EU cooperation with third countries in the field of migration, 2015. 

5.  Organised Crime 

As described in Section I, asylum seekers often resort to smuggling networks to facilitate 
their journey to the EU. In 2016, the European Migrant Smuggling Centre was launched 
at Europol, with the objective of coordinating cross-border operations to tackle smuggling. 
The budget for this centre was not publically available. However, we estimated it based on 
the number of staff in the Centre as compared with Europol overall. The estimated annual 
cost is estimated to be EUR 5 million (Europol, s.d.)44. Asylum seekers are also at risk for 
human  trafficking  during  the  journey.  The  costs  to  the  EU  of  human  trafficking  were 
recently estimated to be at least EUR 30 billion  (Levi et al., 2013)45.  

An estimated 42% of rejected Dublin asylum applicants remain irregularly in the EU (ICF, 
2015).  In  2016,  this  translated  to  about  206,140  individuals.  Althought  difficult  to 
determine,  the  costs  these  individuals  are  likely  to  impose  a  substantial  cost  on  state 
budgets, in terms of social service utilisation and the generation of black market activities.   

44 Europol’s 2017 expenditure was expendituresEUR 118,284,720. A total of 45 staff members work in the centre, 
compared to 1,0651065 staff in the entire organisation. 
45 The authors use 2013 Eurostat data to estimate the cost per trafficked woman at EUR 307,062, which was 
multiplied by the estimatedestimate 9,528 trafficked women.  

155 

 
 
 
 
 
 
 
                                                           
Chapter 3: Potential changes in migrant influx due to the 
policy options 

Key findings 

•  Under all the policy options one may expect a significant portion of migrants 

seeking asylum in the EU through irregular means to apply for an EU 
Humanitarian Visa, thus offering a safe access route and reducing irregular 
migration flows to the EU.  

•  The level of substitution may -in principle- be up to 100%, where all asylum 
seekers who would have pursued an irregular channel now pursue the new 
legal channel. In practice however the level of substitution may be less, 
depending on the implementation of the policy, its accessibility, its 
perception of fairness. The design and the implementation of the policy 
option can therefore have an impact on the extent to which the substitution 
effect is realized. 

•  The number of people who will apply for an EU Humanitarian Visa, among 
those who would have otherwise stayed in the country of origin, is expected 
to be relatively small. This is because significant costs would remain, which 
would limit the appeal of seeking asylum in the EU, even where a legal 
channel is offered.  

This chapter investigates how the influx of migrants may change due to the policy options. 
The  investigation  is  framed  by  economic  theory  and  specifically  the  modelling  of 
individual choice. This is because change in migrant influx hinges on decisions made by 
persons  of  concern,  including  asylum  seekers.  Therefore  we  consider  how  persons  of 
concern (including asylum seekers) makes decisions in the status quo and how the policy 
options  may  affect  the  process.  With  regards  to  the  latter,  the  key  question  is:  will  the 
person in need consider the new legal channel to apply for asylum in the EU or not? Their 
response  depends  on  several  factors:  (1)  the  choice  that  would  have  been  made  in  the 
absence  of  the  policy  option;  (2)  the  extent  to  which  the  policy  option  reduces  the  cost 
(monetary and non-monetary) of seeking asylum in the EU; and (3) the willingness and 
resources of the person in  need. Thus, it is important to consider the  different types of 
costs and barriers – monetary and non-monetary - that may be faced.  

The options available to the asylum seeker are presented in Section I while a review of the 
costs presented by the policy options relative to the status quo are presented in Section II.  
Section III develops an economic framework to predict how asylum seekers would alter 
their decision-making based on the relative costs of the policy options. 

II. An asylum seeker’s decision tree    

156 

 
 
 
 
 
 
 
 
 
The  options  available  to  a  person  in  need  of  protection  are  presented  in  the  form  of  a 
decision  tree  (see  Figure  6).  Each  node  represents  a  decision  point  for  choosing  from  a 
selection of options. At the first node, for example, the person in need of protection either 
stays in the source country where persecution is experienced or seeks asylum in another 
country. In this case, the decision tree does not reflect an individual’s preferred option, but 
rather the decision that would take place  given the  practical constraints, e.g. the person 
may want to seek asylum in another country but lack the resources to do so. The decision 
tree defines three options for seeking asylum in another country – a neighbouring country, 
the EU or another country (for example, Canada or the US). Persons who are recognised as 
refugees in a neighbouring country are faced with three durable solutions, which include 
resettlement,  voluntary  repatriation  or  local  integration.  In  the  status  quo,  persons  that 
seek asylum in the EU may only do so through irregular means or through complementary 
or sponsorship pathways offered by some Member States46. Resettlement is also an option, 
as indicated in the decision tree.  

Figure 6: Decision tree for a hypothetical person in need of protection  

Source: Developed by authors. 
Note: Red lines highlight changes due to the EU scheme on humanitarian visas. 

The introduction of an EU scheme on humanitarian visas would alter the decision tree, as 
indicated by the red lines. It would add an option to a decision node and might change the 
likelihood  of  certain  decisions  being  made  at  earlier  nodes  of  the  tree.  While 
acknowledging the complexity of this decision tree, ultimately there are four key options, 
which are listed below: 

• 
• 
• 
• 

Stay in source country; 
Seek asylum in a neighboring country; 
Seek asylum in the EU via irregular means; or  
Seek asylum in the EU via regular means (only under the policy options). 

II. Relative costs of the policy options    

46 Seesee Chapter 2, Section II for a review2. 

157 

 
 
 
 
 
 
 
 
                                                           
Each  policy  option  implies  different  costs  to  the  individual.  These  costs  may  be  both 
monetary as well as non-monetary. It is also important to acknowledge that individuals 
also  face  costs  in  the  status  quo,  as  detailed  in  Chapter  2.  For  example,  the  continued 
exposure to persecution and violence in the source country can be understood as a cost. 
An individual’s preferred policy option would then be determined based on an assessment 
of  relative  costs  –  the  costs  implied  by  the  policy  option  as  compared  with  the  costs 
experienced in the status quo. While the policy option may imply lower relative costs, they 
may still exceed the individual’s resources.  

Table 10 presents a qualitative assessment of the key costs and risks faced by individuals 
under the status quo and under a EU scheme for humanitarian visas. The assessment finds 
that the seeking asylum in the EU via irregular means (as is done in the status quo) makes 
a trade-off between escaping persecution and a number of other costs such as the risk of 
trafficking and the risk of mortality. From the individauls’ standpoint, an EU scheme for 
humanitarian  visas  is  clearly  preferable  to  seeking  asylum  via  irregular  means. 
However, significant costs remain, which would limit the appeal of seeking asylum in 
the EU, even  where a legal channel is offered. The stress and  social costs (e.g.  leaving 
one’s community behind) would be high. The financial cost would be less, but may still be 
quite significant for individuals, particularly if they are from more vulnerable populations.   

Table 10: Overview of costs faced by individuals in need of protection 

Key types of 
risks/costs 

Status quo: 

Stay in source 
country 

Seek asylum in the EU 
via irregular means 

EU scheme for 
humanitarian visas 
(policy options 1-3) 

Persecution 
High 
Financial costs   Low 

Low 
Very High1 

Low 
Medium-High 

Low 

High 

Low 

Medium-High  High 

Low 

High 

Low 

High 

Risk of 
trafficking and 
other 
exploitation 
Mortality  and 
health 
Isolation 
family 
community 

from 
and 

1 In Chapter 2, we estimated these costs to be on the order of EUR 10,000-15,000. The financial costs 
and access facing individuals under a EU humanitarian visas would be less, but would vary by the 
policy option adopted.   

From the individual’s perspective, the policy options vary mainly in terms of financial costs 
and access. The main financial cost for seeking asylum to the EU via irregular means would 
be smuggler fees. Under the policy options this would include the cost of travel via normal 

158 

 
 
 
 
commercial routes (e.g. plane flight). However, the policy options may vary in terms of the 
financial cost faced by individuals. This is explored in the remainder of this section.  

Table 11 summarises the expected monetary costs faced by individuals under each of the 
policy options. An applicant could expect similar costs under Policy Options 2 (LTV visas) 
and 3 (EU Asylum visas), while costs would be lower under Policy Option 1 (visa waiver). 
For Steps 3 and 5, we based our estimates on three source countries that are most highly-
represented  in  the  asylum-seeking  population  in  the  EU  in  2017  (see  Annex,  Figure  9). 
These countries are Afghanistan, Iraq and Syria. 

Table 11: Financial costs faced by the individual per EU humanitarian visa  

Step 

Estimated cost 

n
o
i
t
p
O
y
c
i
l
o
P

r
e
v
i
a
w
a
s
i
V

:
1

n
o
i
t
p
O
y
c
i
l
o
P

m
u
l
y
s
a
V
T
L

:
2

1.Travel to 
consulate/embassy 
2.Prepare 
visa 
application  
3.Accomodation 
during 
processing 
4. Security 
screening (ETIAS) 
5.Travel to the EU 

visa 

EUR 0- 100 

EUR 80  

EUR 425-3,22547 

 

 

EUR 7 

≈  EUR  300-1000  by 
air48 
≈ EUR 3,000 by sea 
≈ EUR 154 by land49 

n
o
i
t
p
O
y
c
i
l
o
P

m
u
l
y
s
a
U
E

:
3

a
s
i
v

 

 

 

 

a
s
i
v

 

 

 

 

Note: See text below for information on the calculation of costs for each step. 

The estimation of cost for each of the five steps is described below. 

1.  Travel and accomodation to consulate/embassy 

The policy would require individuals to file an application in person, which would require 
travel to an Member State consulate (Policy Option 2) or an EEAS delegation (Policy Option 
3),  which  are  typically  based  in  main  cities  and,  indeed,  not  all.  Member  States  have 
consulates in the three countries in question. Estimates for this cost category are based on 

47 Current EU per diem rates to Afghanistan, Iraq, Syira, 2017. Conservative estimate, assuming that the average 
asylum seeker would manage to find accomodation for less per day. Rates based on standard 15-day visa 
processing but it could go up to 30-60 days, depending on the depth of the verification process.  
48 Single internet search from Afghanistan, Iraq and Syria to major EU cities  on 19– April 2018. 
49 Single internet search from Lebanon/Turkey to Greece on 26 April 2018. 

159 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
the location  of consulates/embassies in the individual’s respective country50, or even in 
neighbouring  countries51.  The  cost  is  likely  to  be  limited52,  with  the  possibility  of  costs 
rising to around an estimated EUR 100 for longer or cross-border treks by taxi. Given the 
political situations in these countries, travel would constitute a level  of danger and risk 
that could be understood as a non-monetary cost. However, this cost would arguably be 
less than the non-monetary costs for travel to the EU via irregular means due the shorter 
distance,  the  possible  reliance  on  friends  and  family  during  the  journey,  and  greater 
familiarity within one’s native country.  

2.  Prepare visa application 

Having  arrived  at  the  consulate  or  embassy,  the  individual  would  then  submit  an 
application for a humanitarian visa. It is assumed that the standard documents, costs and 
processing time needed for a Schengen visa would also apply to a humanitarian visa. These 
would include: signed visa application form (per person; parents/guardian must complete 
and sign for children), an ID photo and fingerprints (taken  at the time of submission of 
theupon application), and a EUR 80 visa fee (waived for children under six years of age). 
While  the  current  visa  fee  is  set  at  EUR  60,  it  is  currently  under  review  and  may  soon 
increase to EUR 80 to account for the influx of visas applications in recent years (European 
Commission, 2018). It is assumed thatthat this increase would be in place at the time of 
implementation  of  a  humanitarian  visa  scheme.    In  addition  to  these  documents,  the 
applicant  would  need  to  include  documentation  supporting  his  or  her  case  for  asylum. 
This paper assumes that the cost of preparing this documentation would be negligible, as 
the standard provision of a valid passport, travel medical insurance covering a minimum 
of  EUR  30,000  and  evidence  of  means  of  support  and  accomodation  (DG  HOME,  s.d.) 
would  be  waived  for  a  humanitarian  visa  application,  whose  purpose  is  to  apply  for 
asylum.   

3.  Visa processing 

The standard processing time needed for a Schengen visa could also be expected to apply 
to an EU humanitarian visa. The standard processing time is set at 15 calendar days but 
may need to increase to the 30-60 calendar days, depending on security and verification 
needs (European Commission, 2011). During this time, the visa applicant would need to 
secure  accomodation.  To  give  an  upper  bound  estimate,  current  EU  per  diem  rates  in 
Afghanistan, Iraq and Syria would add up to a sum of between EUR 2,775-3,225 for a 15-
day  stay.  However,  a  more  reasonable  assumption  would  be  that  the  applicant  would 
obtain accomodation for EUR 25 per day53 or about EUR 375 for the 15-day stay, plus about 
EUR 50 for food54. Appeals in respect of a negative decision may further extend the stay, 
leading to higher costs, although there would be no fee for such appeals. Another possible 

50 i.e. Kabul (Afghanistan), Baghdad, Erbil (Iraq), Damas (Syria).) 
51 E.g. Kuwait, Jordan, and Lebanon. 
52 E.g. tEx. ravel forums suggest that bus fares between Syria and Lebanon do not exceed EUR 15 
https://www.tripadvisor.com/ShowTopic-g294004-i2871-k3966085-Syria_Lebanon_Jordan_transportation-
Lebanon.html; Also minibuses in Afghanistan are referenced as the most affordable/common form of transport 
http://www.flyafghanistan.us/blog/2013/07/29/transportation-in-afghanistan/  
53 Single internet search on apartment/home-sharing websites in Kabul and Erbil on 28 April 2018. 
54 Estimate based on food prices in Kabul, Afghanistan 2018. 

160 

 
 
 
 
 
                                                           
cost is lost income that the individual mightmay otherwise have earned had she or he not 
travelledtravel to the consulate or embassy.  

4.  Security screening 

All  the  policy  options  consider  a  security  screening.  Under  Policy  Options  2  and  3,  this 
would occur under the existing procedures for the Schengen visa application. Each Schengen 
visa application goes through a security assessment which includes checking the SIS for any 
alerts  or  false  identities,  obtaining  the  prior  consultation  of  other  Member  States  (if 
applicable), and checking national databases in accordance with national legislation. In cases 
of  strong  suspicion,  an  applicant’s  criminal  record  may  also  be  requested  and  reviewed. 
From these assessments, it must be verified  whether the applicant represents a  “genuine, 
present,  and  sufficently  serious  threat  to  public  policy  and  public  security”  (European 
Commission, 2011). 

For  Policy  Option  1,  a  security  screening  under  a  system  such  as  the  European  Travel 
Information and Authorisation (ETIAS) System may be foreseen. The system would allow 
for security checks of individuals who do not need a visa to travel to the EU. The individual 
would need to access the internet to complete an online form prior to travel. An overview of 
the  approach  is  presented  in  Figure  7.  It  resembles  the  U.S.  Electronic  System  for  Travel 
Authorisation (ESTA), which has been in place since 2009. The system is expected to be in 
operation  by  2020  and  its  website  suggests  that  the  fee  would  be  about  EUR  7  per 
application 55.  

Figure 7: Overview of ETIAS security screening process 

Source: https://www.schengenvisainfo.com/etias/. 

5.  Travel to the EU 

If  the  humanitarian  visa  is  granted,  the  consulate  or  embassy  would  then  provide  the 
applicant with information on how the visa could be used, the destination country in the 

55 For more information, please refer to this weblink: https://www.schengenvisainfo.com/etias/. 

161 

 
 
 
 
 
 
 
                                                           
EU (whether or  not there  would be relocation), and  how the asylum application would 
proceed. If the individual accepts the terms, then the consulate, embassy or a third-party 
would provide pre-departure assistance while the individual made arrangements to travel 
to  the  EU.  Options  by  air,  sea  and/or  land  could  be  considered,  depending  on  the 
individual’s location. For the three countries of focus, the most practical and efficient mode 
of travel is by aeroplaneairplane. Standard internet searches for one-way flights from the 
major cities where consulates would be located in Afghanistan, Iraq and Syria to major EU 
cities offer a price range of EUR 300-1000 per person. Traveling by sea is the least accesible 
route,  likely  requiring  further  modes  of  transport.  Prices  for  sea  travel  from  Syria  or 
Lebanon to Turkey or Greece range from EUR 140 to 3,00056. Traveling by land could be 
another option, with bus fares from Syria through Turkey to Greece are estimated to be 
about EUR 15057. As with sea options, this would require other modes of transport. These 
costs are substantially less than the estimates for smuggler fees reviewed in Chapter 2. 

III. Substitution and income effects 

Section II finds that a EU scheme on humanitarian visas would reduce the cost faced by 
individuals to seek asylum in the EU. Following the options laid out in Section I, we can 
expect that the inflow of asylum seekers pursuing the policy option to generally consist of 
three groups: 

•  Group  A:  Individuals  who  would  have  sought  asylum  in  the  EU  via  irregular 

means in the status quo;  

•  Group B: Individuals who would have sought asylum in a neighbouring country 

in the status quo; and 

•  Group C: Individuals who would have remained in the source country in the status 

quo. 

The shift in the choice exhibited by Group A – those who would have sought asylum in the 
EU via irregular  means  – reflects a substitution effect. Instead  of pursuing the irregular 
route, they instead choose  a regular route to seek asylum in the EU. The shift in choice 
exhibited by Groups B and C – those who would not seek asylum in the EU in the status 
quo but who would if the policy option existed – can be understood as an income effect. 
These two effects are defined in the context of the model of standard consumer theory in 
economics.  More  information  about  these  two  effects  can  be  found  in  Box  3.  Economic 
theory  suggests  that  the  strength  of  substitution  and  income  effects  depends  on  the 
elasticity of demand for asylum. An elastic demand means that the consumer behaviour 
shifts substantially in response to a shift in price or cost. An inelastic demand means that 
consumer behaviour is resistant to such shifts. 

56 Murdock, H., ’From Syria to Europe, the price they pay’,pay.VOA News, 24 November 2015, 
https://www.voanews.com/a/syria-europe-refugees-cost-price/3072200.html; single internet search from 
Beirut to Greece on 28 April 2018. 
57 https://www.rome2rio.com/map/Lebanon/Greece 

162 

 
 
 
 
 
 
                                                           
Box 3: Economic theory – substitution and income effects 

According  to  economic  theory,  an  individual’s  demand  for  a  good  –  in  this  case,  the 
pursuit of asylum – varies according to its price or cost. The price (or cost) faced by an 
individual may include monetary and non-monetary components.  The reduction in the 
price  (or  cost)  of  a  good  results  in  two  different  effects.  The  definition  for  each  is 
presented below, together with its application to EU humanitarian visas.  

Substitution effect: In selecting between two similar goods, the consumer  will choose 
the less costly option. If the price of that good becomes more expensive relative to the 
other good, the consumer may decide to purchase the other good instead.  

EU humanitarian visas: In this case, the good is the same (seek asylum in the EU), but the 
means are different and where the substitution occur. Rather than pursue an irregular 
channel,  the  person  in  question  applies  for  a  humanitarian  visa,  seeing  it  as  the  least 
costly option, and applies for asylum upon arrival in the EU.  

Income effect: A consumer may purchase a certain level of a good depending on his or 
her  income.  If  the  price  of  that  good  falls,  the  purchasing  power  of  the  consumer 
increases.  The  consumer  may  choose  to  consume  more  of  that  good    given  its  lower 
price.  

EU humanitarian visas: The policy options would lower the cost of seeking asylum in the 
EU  and  consequently  increase  the  purchasing  power  for  persons  of  concern.  Some 
individuals who would have remained in the source country or a neighbouring country 
in the status quo may rather seek asylum in the EU (Groups B and C).  

Individuals in Group A seek asylum in the EU even in the face of steep financial and non-
financial costs in the status quo 58. Their behaviour suggests that their resources and need 
for protection are high and that their demand for asylum is elastic. Thus, we would expect 
a shift in their choice subsequent to the introduction of a lower cost option to seek asylum 
in the EU.  

The level of substitution may be up to 100%, where all asylum seekers who would have 
pursued an irregular channel now pursue the new legal channel. In practice however the 
level  of  substitution  may  be  less  due  to  factors  such  as  limited  awareness  of  the  legal 
channel  and  how  it  works,  as  well  as  limitations  in  accessing  it.  The  design  and 
implementation  of  the  policy  option  can  have  an  impact  on  the  extent  to  which  the 
substitution effect is realized. 

We  assume  that  individuals  who  did  not  seek  asylum  in  the  EU  in  the  status  quo  had 
comparatively lower resources or need for protection. The cost of seeking asylum in the 
EU  is  higher  for  these  individuals  and  their  demand  for  asylum  is  less  elastic,  i.e.,  less 

58 These costs are described in Chapter 3 Section II. 

163 

 
 
 
 
 
 
 
  
 
 
                                                           
sensitive  to  price  changes.  While  the  policy  option  would  reduce  the  financial  cost 
associated with seeking asylum in the EU, the financial cost may still remain high for these 
individuals. Moreover, the non-financial costs may also be substantial – for example, the 
social  costs  associated  with  leaving  one’s  community,  the  challenges  of  learning  a  new 
language and the risks of  an unknown future 59. A small share of these individuals may 
alter their behaviour and seek asylum in the EU following the introduction of the policy 
option. These individuals would represent Groups B and C. 

A useful benchmark to assess the financial costs is the average per-capita income in high 
refugee-producing countries. The average annual per-capita income in Afghanistan, Syria 
and Iraq is estimated to be EUR 465, EUR 1,300 and EUR 3,815 respectively (World Bank, 
2016)60.  In comparison, Table 11 found that the expected travel cost per person from these 
three countries ranged from EUR 300 to EUR 1,000. 

In defining these three groups and the subsequent analysis, it is important to stress that the 
approach is simplified and based on theory rather than practice. For example, the decision-
making of persons in need may take place in stages in a sequential fashion as highlighted 
to some extent in Figure 6. Also, the model assumes that individuals make decisions when 
in  practice  they  may  be  made  by  families.  Individuals  may  also  leverage  their  social 
network to mitigate the costs of accessing the legal channel – e.g., staying with friends and 
family while awaiting a decision on a visa application for Policy Options 1 or 2. 

A pilot of the preferred policy option along with a robust monitoring plan could provide 
greater insight as to how patterns of migration may change as a result of the policy and the 
driving factors. While the assessment highlights a range of possible factors (see Table 10), 
we are unable to rank  them in order of  importance.  The pilot could be undertaken in a 
well-defined, limited geographic area to allow for further investigation into the impacts of 
the  policy  option  on  migrant  inflows  and  to  inform  the  effective  scale  up  of  the  policy 
option.   

59 In economic terms, the individual’s willingness-to-pay is less than the cost of seeking asylum in the EU. Thus, 
the individual falls back on a lower-cost option, which may be to remain in the source country or the 
neighbouring country. Costs in this case may include not only financial costs but also non-financial costs.  
60 Amounts converted to EUR. Latest estimates for Syria were 2010, Afghanistan and Iraq 2016. 

164 

 
 
 
 
 
 
 
                                                           
Chapter 4: Assessment of the policy options 

Key findings 

•  All the policy options would lead to a reduction in irregular migration to the 

EU. Benefits could be gained with respect to border surveillance and 
management, reception and return costs of asylum seekers, organised crime 
and third country agreements.  

•  Policy Option 1 (visa waiver) offers the lowest set-up costs and the highest 

benefits for individual asylum seekers.  

•  Policy Option 2 (LTV asylum visas) and Policy Option 3 (EU asylum visas) 
would imply greater costs due the human resource needs to review and 
process visa applications. These policy options would offer the greatest 
benefits for the EU and Member States. The benefits would stem from the 
reduction of reception and return costs in the post-arrival phase as well as a 
greater distinction between asylum seekers and economic migrants. 

This  chapter  examines  the  second  research  question:  what  are  the  possible  costs  and 
benefits of the policy options for the establishment of EU legislation on humanitarian visas?   

The assessment of the policy options considers several components: 

•  The costs of setting up the policy options (reviewed in Section I); 
•  The benefits (or reduction in costs) from the perspective of asylum seekers; and 
•  The benefits (or reduction in costs) from the perspective of the EU and Member 

States. 

Policy Option 1 emerges as the preferred option from the perspective of asylum seekers 
considering both monetary and non-monetary factors. Policy Option 2 emerges as the best 
option  from  the  perspective  of  the  EU  and  Member  States.  While  the  expected  benefits 
would be comparable, the costs to set-up Policy Option 2 would be less. 

Section I reviews the costs of the policy options for Member States and the EU during the 
pre-arrival stage before asylum seekers reach the EU. Section II assesses the benefits of the 
policy options, considering both the pre-arrival and post-arrival stages  compared to the 
status quo.  

I Costs to set up the policy options  

This  section  reviews  the  expected  financial  costs  faced  by  the  EU  and  Member  States 
during the pre-arrival phase, to facilitate the passage of an asylum seeker to the EU through 
a legal channel. Table 12 presents an overview of the key fixed costs to set up the system 
and  variable  costs  relating  to  each  applicant.  Policy  Option  1  (visa  waiver)  would  have 

165 

 
 
 
 
 
 
 
 
 
 
 
minimal  costs,  the  key  one  being  the  ETIAS  security  screening.  The  amendment  to  the 
country list in the annex of the Visa Code would represent a small fixed cost. The overall 
(EU and Member State) level of costs is expected to be comparable between Policy Options 
2 (LTV asylum visas) and 3 (EU asylum visas), with the costs more concentrated on the EU 
under Policy Option 3.  

Table 12 Expected EU/Member State costs to set up the policy options 

Policy  
Option 1 
(Visa waiver) 

EU  MS 

Policy 
Option 2 
(LTV asylum 
visas) 
EU  Member 
State 

Policy 
Option 3 
(EU asylum 
visas) 
EU  Member 
State 

Fixed costs 

Update  of  VIS  IT  system    to  include 
humanitarian 
visa 
applicants/decisions–EU  VIS    and 
interoperability with EURODAC 
Additional  staff  hired  for  reviewing 
applications 
on 
of 
Development 
processing/determining visa statuses 
(EASO) – EUR 139,000 
in 
Training 
using/coding  humanitarian  visa 
applicants and decisions 

consular 

training 

staff 

of 

Variable costs 
 

ETIA system screening* 
Cost  of  processing  visa  applications 
including  security  screening  -  EUR 
22-174 per visa 
Legal aid and translation 
Pre-departure 
counselling 
Cost per relocation – EUR 249* 
Appeals – EUR 870 per appeal 

assistance 

and 

 

 

 

 

 

 
 

 

 

 

 

 

 

 

 

 
 

 

 
 

 
 

Note: the figures in the table, including their sources, are explained below.  
* These costs would only be incurred if included in the policy option. It is assumed that the EU would 
cover this cost.  

1.  Fixed costs 

The  introduction  of  an  EU  humanitarian  visas  scheme  (Policy  Options  2  (LTV  asylum 
visas)  and  3  (EU  asylum  visas))  would  require  updating  the  current  VIS  IT  system. 
Consulates, external border authorities and asylum authorities already have access to this 
system  (DG  HOME,  s.d.)  but  capabilities  would  need  to  be  added  to  include  the  EU 

166 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
humanitarian visa scheme and to track the applicants, number of times an individual has 
applied, etc. EURODAC would need to be interoperable with VIS in order to track when a 
humanitarian visa holder applies for asylum, as well as possible denied visa applicants at 
EU borders.  

In  addition,  the  effective  implementation  of  Policy  Options  2  and  3  would  require  the 
hiring of additional staff to facilitate the processing of visa requests. A recent evaluation 
highlighted the severe strain on Member States at present to process Schengen visas (ICF, 
2013). An expansion of their mandate to include humanitarian visas under Policy Option 
2 could exacerbate this strain. Additional staff may be hired in the consulates of Member 
States  for  Policy  Option  2  or  EEAS  delegations  for  Policy  Option  3.  Alternatively,  this 
demand may be fulfilled through delegations from the competent asylum authority in the 
Member State (Policy Option 2) or from EASO (Policy Options 2 or 3). 

EASO included 200 staff members in June 2018. At this same point in time, there were 139 
EEAS delegations worldwide (EEAS, s.d.), with an estimated 2,284 staff members working 
in these delegations at the end of 2016. The average number of staff per delegation was 
estimated to be 16 persons.  

The  costs  and  feasibility  of  hiring  additional  staff  should  be  considered  in  light  of  the 
proposed Multiannual Financial Framework (MFF) for 2021-2027, in which the budget for 
migration  and  border  issues  is  three  times  higher  than  the  current  levels61.  A    strong 
emphasis is placed on external border protection (EUR 12 billion to FRONTEX and EU-
LISA  as  well  as  EUR  9.3  billion  for  the  new  Integrated  Border  Mangaement  Fund)  as 
compared  with  the  support  for  asylum  procedures  (EUR  900  million  to  EASO).  The 
proposed budget for external border protection includes funding for 10,000 border guards. 
In  June  2018,  FRONTEX  employed  365  staff  and  1,700  border  guards  (European 
Commission,  2017).  An  alternative  scenario  could  be  to  reduce  the  number  of  border 
guards hired, and also hire additional staff for EASO and EEAS delegations. For example,  
the number of border guards hired could be reduced to 8,000 while allowing for the hiring 
of 1,000 trained and experienced staff for EASO to support the implementation of Policy 
Options 2 and 3 (a 500% staffing increase for the agency), and another 1,000 trained staff in 
the EEAS delegations or Member State consulates in the source countries. The overall costs 
for  hiring  staff  would  remain  the  same  while  the  benefits  may  be  enhanced  due  to  the  
positive implications of the policy option for external border issues (see Section II). 

Lastly,  staff  involved  with  the  EU  humanitarian  visas  scheme  would  require  training. 
EASO could develop this programme and deliver it through its platform. According to their 
2016 budget, EUR 139,000 was spent on training for EASO staff. Additional training would 
be needed for staff at the relevant consulates and embassies of the Member States, and for 
EEAS  delegations.  Member  States  may  incur  costs  for  this  training  in  terms  of  the  time 
involved  to  participate,  and  travel  and  accommodation  for  in-person  training.  The  ISF- 
Borders  and  Visa  mentions  regional  training  for  consular  officials  in  their  2014  work 

61 A budgetary increase of  funds for external borders, migration and refugee flows is proposed to grow from 
EUR 13 billion to EUR 34 billion over the funding period. http://europa.eu/rapid/press-release_MEMO-18-
4127_en.htm  

167 

 
 
 
 
 
                                                           
programme  (European  Commission,  2014).  In  total,  EUR  1.6  million  was  earmarked  for 
training and two other projects. 

2.  Variable costs 

From the perspective of the EU and the Member States, the set-up costs for Policy Option 
1 are minimal and mainly relate to the costs of security screening. With regards to Policy 
Option 2, Member State consulates already issue Schengen LTV visas, some of which are 
in high refugee-producing countries (see Table 13). It is also important to note that the visa 
application procedure includes a screening procedure62.  

Table 13: Total USV and LTV visas issued in EU Member State consulates, 2016  

Source Country 

Afghanistan 
Iraq 
Syria 

Total  USV  (including  Multiple  Entry 
Visas,  MEVs)  and  LTVs  issued  in  EU 
Member State consulates 

3,504 
36,422 
275 

Source: DG HOME, Schengen visa statistics  

An evaluation found that the costs for processing a Schengen LTV visa averaged between 
EUR 22-174 (ICF, 2013). The number of LTV visas issued has increased substantially since 
the  Visa  Code  came  into  force.  This  high  influx  has  been  challenging  for  the  system, 
resulting in cuts in staff and training, and further compounding the backlog in processing 
applications (European Commission, 2018). Policy Option 2 would there require additional 
staff supporting these consulates for effective implementation. Each source country would 
be likely to host consulates from at least one Member State increasing access for asylum 
seekers  as  well  as  distributing  the  costs  across  Member  States.  A  review  of  three  high 
refugee-producing countries confirmed this assertion (see Table 14). 

EEAS delegations do not at present issue Schengen LTV visas, but their mandate to do so 
would  cover  this  under  Policy  Option  3.  For  this  reason,  the  cost  of  visa  issuance  was 
assumed to have a higher cost under Policy Option 3 than Policy Option 2.  In addition, a 
source country would not have more than one EEAS delegation resulting in lower access 
for asylum seekers. 

The  provision  of  legal  aid  and  translation  would  facilitate  the  visa  application  process 
under Policy Options 2 and 3. These services may be delivered through cooperation with 
external service providers e.g. NGOs. 

All  policy  options  may  include  pre-departure  assistance  and  counselling,  which  is 
presently used in the resettlement process (see Figure 8). For example, the screening stage 
could draw upon the UNHCR’s Resettlement Handbook with regard to the identification 
of the most vulnerable and urgent cases, training and guidance on interviewing candidates 

62  According  to  the  Visa  application  handbook,  when  a  visa  application  is  examined,  they  assess  whether  the 
applicant presents a risk to the security or public health of the Member States (among other things also assessed). 

168 

 
 
 
 
 
 
 
 
                                                           
 
for  visas,  and  pre-departure  assistance  and  monitoring    (UNHCR,  2011).  Several  key 
differences should however be noted. First, individuals who receive an EU humanitarian 
visa would have to finance their own travel to the EU while resettled individuals would 
not. Second, the recipient of an EU humanitarian visa would lodge his or her request for 
asylum in the EU. The application would not be lodged and processed prior to travel.  

Figure 8: Six steps in the process for resettlement 

Source: 
https://www.resettlement.eu/journey/resettlement-process 

Resettlement 

European 

Network, 

The 

resettlement 

process, 

Policy Option 2 (LTV asylum visas) includes the possibility for relocation. This is important 
because not all Member States are represented in third countries, and individual asylum 
seekers may be more likely to apply for a humanitarian visa at the consulate or embassy of 
a  preferred  country  of  destination.  Table  14  indicates  the  Member  States  present  in  the 
three high refugee-producing countries that can issue visas. Thus, a relocation scheme is 
needed  to  ensure  that  all  Member  States,  including  those  not  represented  in  the  source 
country, also bear the responsibility of hosting a fair share of asylum seekers. Relocations 
would not be necessary under Policy Option 3 as the EEAS delegation would decide on the 
destination Member State.  

Relocation costs would involve a cost per transfer (assumed to be EUR 259 per individual 
(ICF, 2015)) and the number of applicants who would need to be relocated. It is expected 
that a high share will require relocation (more than 60%). 

Relocation under Policy Option 2 would differ from Dublin transfers under the status quo 
in  one  key  way.  In  the  status  quo,  there  are  significant  waiting  periods  due  to 
disagreements  between  Member  States  about  who  bears  responsibility  to  examine  the 
asylum application as well as other factors. Under Policy Option 2, however, a consensual 
agreement  can  be  reached  with  the  asylum  seeker  about  the  final  destination  prior  to 
departure.  By  knowing  and  accepting  the  final  destination  Member  State,  the  asylum 
seeker can make the decision about whether or not to embark on the journey. The costs 
associated  with  waiting  periods  for  transfer,  secondary  movements  and  multiple 
applications could potentially be eliminated.  

Table 14: Member States and EEAS representation in the three countries of focus, 2016 

Source country 
Afghanistan 

Iraq 

Syria 

Member States represented via consulate or embassy 
Czech  Republic,  Denmark,,  France,  Germany,  Italy,  the 
Netherlands, Spain  
Czech Republic, France, Germany, Greece, Hungary, Italy, 
the Netherlands, Poland, Spain  
Czech Republic, the Netherlands, Poland  

169 

 
 
 
 
 
 
 
The last category of costs reviewed were appeals to visa decisions. The cost of appeals was 
assumed  to  be  similar  to  the  transfer  appeal  cost,  which  was  estimated  at  EUR  870  per 
applicant (ICF, 2015). The rate of appeal is expected to be low, similar to the existing visa 
appeal rate of only 1.2% (ICF, 2013). Participants in the appeal process would be a member 
of  EASO,  a  consular  staff  member  from  the  Member  State  or  the  EEAS  delegation  in 
question, and a staff member of the UNHCR. Under Policy Option 2 (LTV asylum visas), 
the cost is assumed to be jointly covered by the EU and the Member State, whereas it would 
be fully covered by the EU under Policy Option 3 (EU asylum visas).  

II Benefits of the policy options from the perspective of individuals, the 
Member States and the EU 

The policy options under consideration offer several advantages over the status quo. First 
of  all,  the  policy  options  also  offer  greater  management  and  control  of  asylum  inflows. 
From  the  perspective  of  the  asylum  seekers,  the  policy  options  introduce  greater 
predictability and safety to exercise their right to seek asylum. Policy Options 2 and 3 go 
a step further to promote the distinction between asylum seekers and economic migrants, 
which can lead to a  more effective and appropriate response to mixed inflows. Under 
these two options, an asylum seeker would arrive in the EU with documentation (the visa) 
indicating that he or she is a candidate for asylum. Economic migrants would not arrive 
with  such  documentation.  This  increased  clarity  could  potentially  lead  to  behavioural 
changes among economic migrants.  

Table  14  presents  the  findings  from  the  assessment  from  the  perspective  of  the 
individual  asylum  seeker.  Under  all  cost  categories,  the  policy  options  fare  more 
positively than the status quo. In the pre-arrival stage, the greatest positive impact would 
be observed with regards to trafficking and exploitation. Benefits to health would also be 
observed  primarily  in  terms  of  reduced  mortality  risk,  but  the  mental  stress  due  to  the 
asylum application and the challenges of integration would remain.  

Some  differences  across  the  policy  options  were  noted.  First,  Policy  Option  1  was 
comparable  to  the  status  quo  in  the  post-arrival  phase.  This  is  because  asylum  seekers 
could  travel  to  the  preferred  Member  State  rather  than  in  accordance  with  a  scheme  to 
ensure  fair  burden  sharing  and  responsibility  across  the  Member  States.  Thus,  some 
Member  States  would  likely  receive  a  high  share  of  asylum  seekers  that  would  place  a 
strain  on  reception  centers  and  delay  the  integration  of  asylum  seekers.  Second,  the 
assessment of the policy options differ slightly in terms of access to the procedure. Under 
Policy Option 1, individuals do not need to apply for a visa and thus access is high while 
Policy Options 2 and 3 require visas. The places to apply for such a visa however is more 
limited for Policy Option 3 (e.g. 1 EEAS delegation in the country as opposed to more than 
one Member State consulate under Policy Option 2). Thus, we considered Policy Option 1 
to offer the greatest access while Policy Option 3 would offer the lowest access, although it 
would  certainly  be  better  than  the  status  quo  where  there  is  very  limited  access  (e.g. 
resettlement and Member State humanitarian visa schemes). 

170 

 
 
 
 
 
 
 
Table 15: Comparison of policy options with the status quo – individual’s perspective 

Stage 

Cost 

Policy Option 
1 (Visa waiver) 

+++ 
+++ 

+++ 

++ 

0 
0 
0 

l
a
v
i
r
r
a
-
e
r
P

Travel costs to EU 
Access  to  procedure 
for legal channel 
Risk of trafficking and 
other exploitation 
Risk  of  mortality  and 
poor health 
Poor reception 
Delays to integration 
Risk  of  entry 
formal market 
+ = minimal positive (cost-saving) impact  
++ = stronger positive (cost-saving) impact  
+++ = substantial positive (cost-saving) impact  
- = negative (cost increasing) impact 
0 = no change from status quo 

l
a
v
i
r
r
A

into 

Policy Option 
2 (LTV asylum 
visas) 
++ 
++ 

Policy Option 
3 (EU asylum 
visas) 
++ 
+ 

+++ 

++ 

+++ 
+++ 
++ 

+++ 

++ 

+++ 
+++ 
++ 

Table 16 presents the findings from the assessment from the perspective of the EU and 
Member States. The policy options were assessed against the set of impacts considered in 
the assessment of the status quo in Chapter 2.  

All the policy options score better than the status quo. With regards to subsidiarity, Policy 
Options  2  and  3  scored  higher  due  to  the  substantial  financial  savings  that  could  be 
expected  due  to  fewer  transfers,  appeals,  secondary  movements  and  returns.  Other 
benefits  could  also  be  expected  in  terms  of    lower  costs  related  to  the  enhanced 
management of irregular migration including lower costs for shipping, security and border 
management. Border Member States such as Italy and Greece would benefit substantially 
from  Policy  Options  2  and  3  due  to  a  fairer  sharing  of  costs  across  the  EU.  Greater 
efficiency would also be gained through  better differentiation between asylum seekers 
and economic migrants, greater control over asylum inflows and greater predictability in 
asylum  procedures.  Overall,  these  findings  suggest  that  the  scale  of  impact  would  be 
significant.  

With regard to proportionality, Policy Option 1 emerges as the strongest option given the 
higher  administrative  costs  that  would  accompany  the  introduction  of  Policy  Options  2 
and 3. A key driver of these costs  is the  human resources available, both in person and 
remotely, to review applications for EU humanitarian visas, however the number of staff 
needed is not known at this time. Given the potential financial gains, however, the new 
administrative  costs  may  well  be  justified  and  conmeasurate  with  the  objectives  to  be 
achieved. The use of remote services and staff to support the processing of visas in source 
countries may promote economies of scale and operational efficiency. Good practices may 
be gained from evidence from the six steps of the resettlement process. NGOs and other 
civil society actors may be able to contribute at specific steps, e.g. pre-departure assistance. 

171 

 
  
 
  
 
  
 
 
 
  
  
  
 
 
 
A  pilot  of  the  EU  humanitarian  visa  scheme  could  offer  greater  insight  into  the 
proportionality of the additional administrative costs. 

Table  16:  Comparison  of  policy  options  with  the  status  quo  –  Member  State  and  EU 
perspectives  

Policy Option 1 
(visa waiver) 

Policy Option 2 
(LTV asylum 
visas) 

Policy Option 3  
(EU asylum visas) 

Irregular 
migration 
Security/terrorism 
Surveillance and 
border 
management 
Private shipping – 
search and rescue 
missions 
Costs of asylum 
procedure 
Costs for return 
Uneven 
distribution of 
reception costs 
Harmonisation of 
asylum procedure 
across Member 
States 
Third country 
agreements 
Development 
cooperation 
Organised crime 

+ 

+1 

+ 

++ 

++ 

++ 

+++ 

+++ 

0 

0 

0 

0 

++ 

++ 

+ 

++ 

+ 

++ 

+ 

+++ 

+ 

+++ 

++ 

++ 

++ 

+++ 

+++ 

+ 

++ 

++ 

+++ 

+ 

+++ 

+ = minimal positive (cost-saving) impact  
++ = stronger positive (cost-saving) impact  
+++ = substantial positive (cost-saving) impact  
- = negative (cost increasing) impact 
0 = no change from status quo 
1 Assuming that a security screening process such as ETIAS is employed. 

All  policy  options  would  support  the  reduction  of  irregular  migration  to  the  EU  with 
potential  to  reduce  the  costs  associated  with  surveillance  and  border  management  and 
search and rescue operations. This reduction would stem in large part from the substitution 
effect  described  in  Chapter  3.  A  large  decrease  in  the  number  of  transits  via  the 
Mediterranean Sea and via smugglers may be expected with any of the policy options. As 
noted  earlier,  more  than  1.8  million  irregular  border  crossings  were  detected  in  2015, 
hindering the proper functioning of the Schengen area (European Commission, 2018). In 
comparison,  there  were  an  estimated  1.26  million  asylum  applications  lodged  in  2015 

172 

 
 
 
 
(Eurostat,  2015).  The  majority  of  these  applications  would  likely  have  been  made  by 
asylum seekers who traveled to the EU via an irregular channel. The shift of asylum seekers 
from  the  irregular  to  the  regular  channel  may  thus  lead  to  a  substantial  reduction  in 
irregular migration. Policy Options 2 and 3 would  go an additional step  to increase the 
distinction between asylum seekers and economic migrants prior to arrival in the EU and 
support an appropriate response for each group.   

For border security and surveillence, it is expected that Policy Options 2 and 3 would have 
a positive impact, as the EU and Member States would know the identity of the individuals 
(including name, basic information, and fingerprints in VIS and EURODAC systems), as 
well as the grounds for their claim to humanitarian help. They would also have already 
gone  through  a  form  of  security  check  before  being  issued  the  humanitarian  visa.  The 
expected  result  would  be  a  decrease  in  necessary  EU  Border  and  Coast  Guard  Agency 
(Frontex)  missions  and  national  resources  to  handle  irregular  migrants,  as  well  as  a 
decrease in the need for temporary internal border controls. As Figure 4 shows, the Frontex 
budget  has  more  than  doubled  since  2015  for  border  management  operations.  Policy 
Options 2 and 3 would allow the budget to return to 2015 figures (i.e. to reduce by over 
EUR 100 million) in addition to the decrease in the numbers of return operations needed. 
The estimated EUR 106 million for the temporary reintroduction of border controls within 
Schengen  would  also  be  an  additional  saving.  This  positive  impact  may  be  slightly 
tempered by the continued need for Frontex to handle economic migrants, as per the status 
quo,  although  these  figures  are  not  expected  to  surpass  2015  budget  levels  for  Policy 
Options 2 and 3. 

The need for private shipping search and rescue operations would presumably decrease 
under  all  three  policy  options,  given  the  expected  decrease  in  irregular  crossings. 
Assuming the 2016 number of merchant ship search and rescue operations (about eight, 
see Figure 2) and the upper bound of cost per operation (EUR 216,000, see Chapter 2), the 
result would be smoothed commercial shipping flows and a cost saving of EUR 1.7 million 
per year. This would be compounded by continued NGO involvement in search and rescue 
closer to third country borders. The decrease would also benefit border state coast guards.  

With regards to the asylum procedure, the costs would decrease under Policy Options 2 
and 3 due to the pre-arrival agreement on the Member State responsible to examine the 
claim for asylum. The expected gain would be higher for Policy Option 3 due to the direct 
travel between the source and destination country, whereas under Policy Option 2 there 
could  be  a  relocation  mechanism.  The  assessment  assumes  that  individuals  with  an  EU 
humanitarian visa (Policy Options 2 and 3) will be able to apply for asylum immediately 
upon arrival from the source country or subsequent to their expedient relocation to another 
Member  State  (should  relocation  be  included  in  the  policy).  This  would  differ  from  the 
statuo quo, where there is a high level of requested transfers, with long wait times that drive 
up costs for Member States and delay decisions for asylum applicants. The provision of 
pre-departure support, including a review of the destination country of the asylum seeker, 
would imply a level of consent, similar to resettlement. The building in of a consensual 
agreement between the EU and asylum seekers in the pre-arrival phase may also lead to a 
lower level of appeal, secondary movement and multiple applications, which have high 
associated costs (see Annex for more information). 

173 

 
 
 
 
The costs for return may decrease to some extent to due to the screening process introduced 
by the options. Policy Option 1 would offer the lowest level of screening based solely on 
security risk while Policy Options 2 and 3 would offer a higher level of screening to gather 
information to support a claim for asylum. This screening process is assumed to identify 
individuals with a strong case for asylum protection, making them more likely to receive 
a positive decision and integrate more quickly into society. Thus, the screening may result 
in a higher recognition rate in the post-arrival phase, resulting in fewer rejected asylum 
applicants and lower costs for their return to the source country. A lower rejection rate also 
implies a lower risk of irregular stay in the EU subsequently. 

 The uneven distribution of costs for reception evident under the status quo would not 
be  expected  to  improve  under  Policy  Option  1.  It  is  likely  that  asylum  seekers  will 
concentrate their arrivals on a few Member States rather than distribute evenly across the 
EU. Experience in the status quo shows that asylum applications are concentrated in a few 
Member States that are preferred over others. Under Policy Options 2 and 3, however, the 
uneven distribution may be rectified due to pre-arrival agreements regarding the Member 
State with responsibility to examine the asylum claim. This assessment is contingent on 
several features of the policy options. With regards to Policy Option 2, it is contingent on 
an effective relocation mechanism. For both Policy Options 2 and 3, the positive assessment 
hinges  on  the  development  and  utilisation  of  a  fair  and  transparent  system  to  assign 
Member State responsibility to examine asylum claims. 

The  harmonisation  of  asylum  procedures  across  Member  States  may  also  change  as  a 
result  of  the  policy  options.  No  coordination  is  required  under  Policy  Option  1  and 
therefore the situation would remain the same. However under Policy Option 2, Member 
States may need to coordinate to review and accept relocation requests. Policy Option 3 
would  lead  to  the  greatest  level  of  harmonisation  as  it  would  require  Member  State 
cooperation from the time that an application is submitted. The use of EASO support under 
Policy Options 2 and 3 could also promote harmonisation across Member States. 

The risk of security and terrorism would be mitigated under the policy options due to the 
security screening of arrivals (ETIAS for Policy Option 1 and the Schengen visa procedure 
for Policy Options 2 and 3). If Policy Option 1 is introduced without such a screening, the 
security risk may rather increase as compared with the status quo. Simply put, without such 
a procedure the option would offer no way to monitor asylum inflows nor would it provide 
grounds for the existence or validity of a humanitarian claim. Thus, individuals who are 
not asylum seekers could exploit the policy option. Policy Options 2 and 3 would lower 
the risk comparatively more due to the greater control they would exert on asylum inflows 
in terms of determining the Member State responsible for investigating the asylum claim. 

Third  country  agreement  costs  would  be  expected  to  decrease  for  all  options,  and 
particularly for Policy Options 2 and 3. With humanitarian visas, there would be less of a 
need for EU funding to control borders or manage irregular migrants, similar to the EU-
Turkey  Statement.  This  would  amount  to  a  significant  reduction  in  the  annual  EUR  1.5 
billion  provided  under  this  particular  deal.  In  addition,  training  third  country  coast 
guards/officials would be less necessary, given the expected decrease in search and rescue 
operations and irregular crossings, as experienced under the EU Emergency Trust Fund 

174 

 
 
 
 
 
for Africa. Here, only a portion of the EUR 833 million would decrease, as the fund also 
goes towards economic development and resilience programmes. Policy Option 1 would 
also benefit from these decreases, however, the EU may work to establish new agreements 
to curb possible security concerns in countries with suspended visas.  

Development  cooperation  may  go  largely  unchanged  for  Policy  Options  2  and  3,  as  it 
would still be necessary to present humanitarian visas as a safe and preferred option to 
using smugglers. This would mean that much of the estimated EUR 1 million mentioned 
in Chapter 2 would still be need for these options. This would not be the case under Policy 
Option 1, as there would be no new visa processes or benefits to champion. However, the 
estimated  EUR  2.5  billion  in  emergency  funding  aimed  at  stemming  migration  flows 
would significantly reduce in all three options.  

Finally, the EU status quo of organised crime would improve across all options (although 
more so for Policy Options 2 and 3, given the decrease in demand for smuggling and the 
consequent decrease in trafficking, torture, etc.). According to estimated costs of the status 
quo, the EU would save billions of euro on pursuing human traffickers, as well as through 
the decrease in expected irregular stay migrants expected to fuel EU black market costs. 
Policy Option 1 provides less of an improvement on the status quo, as economic migrants 
(who do not qualify for asylum) may increase and grow the informal economy. However, 
for all options, improvements could be curtailed if issues such as denied asylum requests 
or exaggerated transfer delays were to become an issue for humanitarian visa holders as 
well.  

175 

 
 
 
 
 
Conclusions 

The economic assessment of the proposal for an EU scheme on humanitarian visas offers 
several main conclusions as presented below.  

•  All  the  policy  options,  if  well-designed  and  implemented,  may  lead  to  a 
reduction in irregular migration. A large share of individuals traveling to the EU 
via  irregular  means  would  be  expected  to  pursue  the  new  legal  option  instead. 
This  would  generate  benefits  for  the  EU  and  Member  States  in  terms  of  costs 
related to surveillance and border management, search and rescue missions and 
organized  crime.  Asylum  seekers  would  also  reap  benefits  in  terms  of  reduced 
risks of mortality, violence and trafficking. A well-implemented policy option that 
offers greater access to the new legal channel could facilitate a greater decline in 
irregular migration.   

•  The number of additional asylum seekers to the EU would be relatively small. 
Under the reasonable assumption that asylum seeking is relatively “inelastic” to 
its  cost,  it  is  expected  that  the  number  of  people  who  will  apply  for  an  EU 
Humanitarian Visa, among those who would have otherwise stayed in the country 
of  origin,  is  relatively  small.  This  especially  applies  to  Policy  Options  2  (LTV 
asylum  visas)  and  3  (EU  asylum  visas).  Significant  costs  would  remain,  which 
would limit the appeal of seeking asylum in the EU, even where a legal channel is 
offered. The stress and social costs (e.g. leaving one’s community behind) would 
be  high.  The  financial  cost  would  be  less,  but  may  still  be  quite  significant  for 
individuals, particularly if they are from more vulnerable populations.   

•  Under all three policy options considered, the adverse impacts faced by asylum 
seekers in the pre-arrival stage are practically eliminated. These impacts include 
the risk of mortality, trafficking and exploitation, and payment of smuggling fees. 
The financial costs to seek asylum in the EU via any of the three policy options are 
considerably less than those of irregular entry. 

•  The costs for implementing Policy Option 1 (Visa Waivers) are minimal, while 
the costs for the other two Policy Options (LTV asylum  visas and EU asylum 
visas) are more substantial. For these two policy options, the costs primarily relate 
to upgrading information technology, increasing human resources, and providing 
training. A key constraint is the availability of trained staff in the source countries, 
as  well  as  remotely,  to  facilitate  the  process  from  visa  application  to  security 
clearance  to  departure.  Boosting  the  human  resources  of  EASO  could  facilitate 
Policy Options 2 and 3. Good practices may be gained from evidence from the six 
steps of the resettlement process. NGOs and other civil society actors may be able 
to contribute at specific steps, for example, by providing pre-departure assistance. 
The use of technology and remote staff to support the review and processing of 
visa  applications  may  also  promote  economies  of  scale  and  greater  operational 
efficiency.  

176 

 
 
 
 
 
 
 
•  Policy Options 2 and 3 (LTV asylum visas and EU asylum visas) offer greater 
financial  benefits  to  the  EU  on  a  per-asylum  seeker  basis.  These  benefits  are 
primarily  gained  from  the  following:  1)  elimination  of  the  waiting  period 
associated with Dublin transfers; 2) significant reduction in secondary movements 
and multiple applications; and 3) higher recognition rate. Policy Option 1 would 
not offer financial gains along these dimensions. 

•  A  controlled  pilot  of  the  preferred  policy  option  accompanied  by  a  robust 
monitoring plan could generate more evidence. Specfically, data generated by the 
pilot could be used to test the ‘floodgates’ hypothesis as well as review the costs 
and benefits of the policy.  

177 

 
 
Annex 

This annex provides additional information that supported the economic assessment.  

Source countries of asylum seekers to the EU 

An estimated 3% of persons of concern sought asylum in the EU in 2016 (see Chapter 2). 
Figure 9 presents a decomposition of this population by source country. The most common 
source  countries  in  2016  were  Afghanistan  (15%),  Syria  (28%)  and  Iraq  (11%).  Some 
elements  of  the  analysis  draws  on  specific  figures  from  these  three  countries,  which 
together represent over half of asylum seekers to the EU. 

Figure 9: Composition of asylum applicants to the EU in 2016, by source country 

Other
38%

Afghanistan
15%

Iraq
11%

Albania
2%

Eritria
2%

Nigeria
4%

Syria
28%

Source: Eurostat, 2017.  
NOTE: ‘Other‘ is composed of nationalities with less than 2% of the total. 

The  assessment  of  several  categories  of  benefits  related  to  the  policy  options  were 
supported  by  quantitative  estimates  (see  Table  16).  The  costs  of  asylum  procedure  was 
supported by quantitative estimates of the costs related to multiple applications and the 
costs  of  processing  an  asylum  application.  The  costs  for  returns  was  supported  by 
quantitative estimates for the cost of voluntary return.  The calculation of these estimates 
is presented below. 

Cost of multiple applications 

EU-LISA, 2017 (Eurodac Statistics) provides statistics on the number of foreign hits in EU 
Member States in 2016. Foreign hits refer to individuals who lodged an application in one 
Member State and subsequently attempted to lodge an additional application in another 
Member State. This is referred to as multiple applications. In 2016, there were an estimated 
295,171 multiple applications.  

178 

 
 
 
 
 
 
 
 
Cost of processing an asylum application 

Estimates for the cost of processing an asylum application are presented in HOME, 2013. 
An  estimate  was  constructed  for  four  anonymous  countries.  The  estimates  took  2016 
values, using the consumer price index. Table 17 provides more information. 

Table 17: Cost of processing an asylum application 

Estimate 1 
Estimate 2 
Estimate 3 
Estimate 4 
Average 

Cost, 2013 (EUR) 
2,384 
3,602 
5,200 
8,000 
4,797 

Cost, 2016 (EUR) 
2,403 
3,630 
5,241 
8,063 
4,834 

Source: DG HOME, 2013 

Cost of voluntary return 

The  cost  of  voluntary  return  was  estimated  based  on  information  from  the  Assisted 
Voluntary  Return  and  Reintegration  (AVRR)  Programme  managed  by  IOM.  The  AVVR 
2016  Key  Highlights  indicated  that,  in  2016,  98,403  individuals  received  assistance.  The 
budget  line  for  the  AVRR  programme  in  the  2018  Programme  and  Budget  was  EUR 
55,062,100. The budget was divided by the number of beneficiaries, giving an estimated 
figure of EUR 560 per voluntary return. 

179 

 
 
 
 
 
 
Bibliography 

and 

Amnesty  International,  2017.  Libya’s  dark  web  of  collusion:  Abuses  against  Europe-bound 
refugees 
[Online]  
Available 
at: 
https://www.amnesty.org/en/documents/mde19/7561/2017/en/?utm_source=ECRE+
Newsletters&utm_campaign=71969f0853-
EMAIL_CAMPAIGN_2017_12_15&utm_medium=email&utm_term=0_3ec9497afd-
71969f0853-422285373 

migrants. 

Betts,  A.  &  Collier,  P.,  2017.  Refuge-  Transforming  a  Broken  Refugee  System.  s.l.:Penguin 
Random House. 

Carrera, S. ym., 2016. EU-Morocco Cooperation on Readmission, Borders and Protection: A model 
to follow?, s.l.: CEPS Papers in Liberty and Security in Europe. 

Connor, P., 2016. Pew Research Center: 4. Asylum seeker demography: Young and male. [Online]  
Available  at:  http://www.pewglobal.org/2016/08/02/4-asylum-seeker-demography-
young-and-male/ 
[Haettu 15 March 2018]. 

Council  of  the  European  Union,  2016.  EU-Turkey  statement,  18  March  2016.  [Online]  
Available 
releases/2016/03/18/eu-turkey-statement/ 
[Haettu 6 March 2018]. 

http://www.consilium.europa.eu/en/press/press-

at: 

Danish  Refugee  Council,  2017.  Fundamental  rights  and  the  EU  Hotspot  approach.  [Online]  
Available  at:  https://reliefweb.int/report/world/fundamental-rights-and-eu-hotspot-
approach-october-2017 
[Haettu April 2018]. 

Dastyari,  A.,  2017.  Processing  Centres  in  North  Africa  are  not  the  answer  for  EU  refugees. 
[Online]  
Available  at:  https://theconversation.com/processing-centres-in-north-africa-are-not-
the-answer-for-eu-refugees-83729 
[Haettu 1 March 2018]. 

ei 

pvm 

DG  HOME, 
Available  at:  https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-
visas/visa-policy/visa_application_en 
[Haettu April 2018]. 

Application. 

Processing 

Visa 

[Online]  

of 

a 

HOME, 

DG 
Available  at:  https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-
visas/visa-policy/required_documents_en 
[Haettu April 2018]. 

documents. 

Required 

pvm 

[Online]  

ei 

ei 

HOME, 

DG 
Available  at:  https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-
visas/visa-information-system_en 
[Haettu April 2018]. 

Information 

System. 

pvm 

Visa 

[Online]  

Dutch Council for Refugee and ECRE, 2016. The DCR/ECRE desk research on application of a 
safe 
[Online]  
at: 
Available 

first  country  of  asylum  concepts 

third  country  and  a 

to  Turkey. 

180 

 
 
http://www.asylumlawdatabase.eu/sites/www.asylumlawdatabase.eu/files/aldfiles/t
urkeynote%20final%20edited%20DCR%20ECRE.pdf 

The 

2016. 

ECRE, 
Available 
DurationProcedures.pdf 
[Haettu April 2018]. 

at: 

length 

procedures 
https://www.ecre.org/wp-content/uploads/2016/10/AIDA-Brief-

Europe. 

asylum 

[Online]  

in 

of 

ECRE,  2018.  OPed:  Cooperation  with  Morocco  in  the  EU's  African  Border-  a  laboratory  of 
externalization. 
[Online]  
Available  at:  https://www.ecre.org/oped-cooperation-with-morocco-in-the-eus-african-
border-a-laboratory-of-externalization/ 
[Haettu 6 March 2018]. 

ei  pvm  EU  Delegations 

EEAS, 
Available  at:  https://eeas.europa.eu/headquarters/headquarters-homepage/2155/eu-
delegations-and-offices-around-world_en 
[Haettu April 2018]. 

and  Offices 

the  world. 

around 

[Online]  

EPRS, 2016. The Cost of Non-Schengen: Civil Liberties, Justice and Home Affairs aspects. Cost of 
Non-Europe Report, Brussels: European Added Value Unit. 

ERN,  2017.  Private  Sponsorship  in  Europe:  Expanding  complementary  pathways  for  refugee 
resettlement. 
[Online]  
Available 
at: 
http://www.resettlement.eu/sites/icmc/files/ERN%2B%20Private%20Sponsorship%20i
n%20Europe%20-
%20Expanding%20complementary%20pathways%20for%20refugee%20resettlement.pdf 
[Haettu April 2018]. 

Europe. 

ERN, 2017. Student scholarships for refugees: Expanding complementary pathways of admission 
in 
[Online]  
Available 
at: 
http://www.resettlement.eu/sites/icmc/files/ERN%2B%20Student%20Scholarships%2
0for%20Refugees%20-
%20Expanding%20complementary%20pathways%20of%20admission%20to%20Europe_0
.pdf 
[Haettu April 2018]. 

for  persons 

in  need  of 

ERN,  2018.  Humanitarian  Admission  Programmes  in  Europe:  Expanding  complementary 
pathways  of  admission 
[Online]  
Available 
at: 
http://www.resettlement.eu/sites/icmc/files/ERN%2B%20Humanitarian%20Admissio
n%20Programmes%20in%20Europe%20-
%20Expanding%20complementary%20pathways%20of%20admission%20for%20persons
%20in%20need%20of%20international%20protection.pdf 
[Haettu April 2018]. 

international  protection. 

European Asylum Support Office, 2017. EASO Statement of Revenues and Expenditures 2017. 
[Online]  
Available  at:  https://www.easo.europa.eu/sites/default/files/EASO-Budget%202017-
amendment-1.pdf 
[Haettu 12 March 2018]. 

European Commission- DG HOME, 2017. Managing Migration EU financial support to Greece. 
[Online]  

181 

 
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-

Available 
at: 
do/policies/european-agenda-
migration/20171114_managing_migration_eu_financial_support_to_greece_en.pdf 
[Haettu 4 July 2018]. 

European  Commission  DG  HOME,  2017.  Managing  Migration  EU  Financial  Support  to 
Greece. 
[Online]  
Available 
at: 
do/policies/european-agenda-
migration/20171222_eu_budget_financial_support_to_greece_en.pdf 
[Haettu 4 July 2018]. 

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-

European Commission, EPSC, 2017. Irregular migration via the Central Mediterranean: from 
emergency 
[Online]  
Available  at:  https://ec.europa.eu/epsc/sites/epsc/files/strategic_note_issue_22_0.pdf 
[Haettu April 2018]. 

solutions. 

responses 

systemic 

to 

European Commission, 2002. Study on the feasibility of processing asylum claims outside the EU 
against  the  background  of  the  Common  European  Asylum  System  and  the  goal  of  the  Common 
Asylum  Procedure,  Brussels:  European  Commission  (Directorate  General  for  Justice  and 
Home Affairs). 

European Commission, 2011. Consolidated version of the Handbook for the processing of visa 
applications and the modification of issued visa based on Commission decision C(2010) 1620 final 
of  19.3.2010  establishing  the  Handbook  for  the  processing  of  visa  applications  and  the  mod.... 
[Online]  
Available 
affairs/sites/homeaffairs/files/policies/borders/docs/c_2010_1620_en.pdf 
[Haettu 31 May 2018]. 

https://ec.europa.eu/home-

at: 

European Commission, 2012. Exploring Avenues for Protected Entry in Europe, Abbiategrasso: 
Cooperativa sociale Inlavoro ONLUS. 

European Commission, 2014. Annex to the Commission implementing decision concerning the 
adoption  of  the  work  programme  for  2014  and  the  financing  for  Union  actions  and  emergency 
assistance within the framework of the Internal Security Fund –the instrument for financial support 
for. 
[Online]  
Available 
affairs/sites/homeaffairs/files/financing/fundings/security-and-safeguarding-
liberties/internal-security-fund-borders/union-actions/docs/awp_2014_isf_b_en.pdf 
[Haettu April 2018]. 

https://ec.europa.eu/home-

at: 

European Commission, 2014. Annex to the Commission Implementing Decision concerning the 
adoption  of  the  work  programme  for  2014  and  the  financing  for  Union  actions  and  emergency 
assistance withint the framework of the ISF- the instrument for financial support borders and visa. 
[Online]  
Available 
affairs/sites/homeaffairs/files/financing/fundings/security-and-safeguarding-
liberties/internal-security-fund-borders/union-actions/docs/awp_2014_isf_b_en.pdf 
[Haettu 11 March 2018]. 

https://ec.europa.eu/home-

at: 

European Commission, 2015. Communication from the Commission to the European Parliament, 
the Council, the European Economic and Social Committee and the Committee of the Regions EU 
Action 
[Online]  
Available 
content/EN/TXT/?uri=CELEX%3A52015DC0285 

https://eur-lex.europa.eu/legal-

(2015-2020). 

smuggling 

migrant 

against 

Plan 

at: 

182 

 
[Haettu April 2018]. 

European  Commission,  2016.  Press  release:  EU-Turkey  Statement:  Questions  and  Answers. 
[Online]  
Available 
[Haettu 8 March 2018]. 

http://europa.eu/rapid/press-release_MEMO-16-963_en.htm 

at: 

European Commission, 2016. Report from the Commission to the European Parliament and the 
Council: Progress report on the implementation of the hotspot approach in Greece, Brussels: s.n. 

European Commission, 2017 e. Managing the refugee crisis: State of Play of the Implementation 
of  the  Priority  Actions  under  the  European  Agenda  on  Migration  (COM(2015)  510),  Updated 
ANNEX 
[Online]  
Available  at:  http://www.europarl.europa.eu/cmsdata/118824/financial-support%20-
ms.pdf 

(26-02-2017). 

8 

European  Commission,  2017.  Irregular  Migration  via  the  Central  Mediterranean.  [Online]  
Available  at:  https://ec.europa.eu/epsc/sites/epsc/files/strategic_note_issue_22_0.pdf 
[Haettu April 2018]. 

European Commission, 2017. Member States' notifications of the temporary reintroduction of 
border  control  at  internal  borders  pursuant  to  Article  25  et  seq  of  the  Schengen  Borders  Code, 
Brussels: 
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-
do/policies/borders-and-visas/schengen/reintroduction-border-
control/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf . 

to 

European  Commission,  2017.  Migration:  Solidarity  within  the  EU-  The  Commission's 
Contribution 
[Online]  
Available 
at: 
do/policies/european-agenda-
migration/20171207_migration_solidarity_within_the_eu_en.pdf 
[Haettu 12 March 2018]. 

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-

Agenda. 

Leaders' 

the 

European  Commission,  2017.  Relocation  and  Resettlement:  Commission  calls  on  all  Member 
States to deliver and meet obligations, Strasbourg: European Commission- Press Release. 

European Commission, 2017. Securing Europe's External Borders: A European Border and Coast 
Guard. 
[Online]  
Available 
do/policies/european-agenda-migration/20170906_ebcg_en.pdf 
[Haettu 21 June 2018]. 

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-

at: 

European  Commission,  2018.  Commission  Staff  Working  Document  Spending  Review:  A 
Modern  Budget  for  a  Union  that  Protects,  Empowers  and  Defends-  The  Multiannual  Financial 
Framework 
[Online]  
Available 
content/EN/TXT/?uri=CELEX%3A52018SC0171 
[Haettu 21 June 2018]. 

https://eur-lex.europa.eu/legal-

2021-2027. 

for 

at: 

European Commission, 2018. Commission Staff Working Document, Executive Summary of the 
Impact  Assessment  accompanying  the  document  proposal  for  a  regulation  of  the  European 
Parliament and of the Council amending Regulation (EC) No 810/2009 establishing a Community 
Code 
[Online]  
Available 
do/policies/european-agenda-migration/201780314_ec-staff-working-document-exec-
summary-impact-assessment-regulation-establishing-community-code-visas_en.pdf 
[Haettu April 2018]. 

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-

Visas. 

at: 

on 

183 

 
European Commission, 2018. EU Emergency Trust Fund for Africa: Trust Fund for Stability 
and  Addressing  Root  Causes  of  Irregular  Migration  and  Displaced  Persons  in  Africa.  [Online]  
Available  at:  https://ec.europa.eu/europeaid/sites/devco/files/eu-emergency-trust-
fund-africa-20180226_en.pdf 
[Haettu 12 March 2018]. 

European Commission, 2018. Questions and Answers: Future of EU funding for Borders and 
Migration, Brussels: European Commission. 

reception 

European Commission-DG HOME, 2016. News: 12.7 million in emergency funding to Greece 
for 
[Online]  
Available 
new/news/news/2016/20160215_1_en 
[Haettu 6 March 2018]. 

migrants 
https://ec.europa.eu/home-affairs/what-is-

facilities 
at: 

refugees. 

and 

for 

Commission-DG 

European 
Available  at:  https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-
visas/visa-policy_en 
[Haettu 26 February 2018]. 

HOME, 

Policy. 

2018. 

Visa 

[Online]  

European  Commission-EUTF,  2015.  EU  Emergency  Trust  Fund  for  Africa.  [Online]  
Available 
https://ec.europa.eu/trustfundforafrica/content/homepage_en 
[Haettu 6 March 2018]. 

at: 

European Council of Refugees and Exiles, 2017. Protection in Europe: Safe and Legal Access 
Channels, Brussels: ECRE. 

European Council of the European Union, 2016. Council Implementing Decision 2016/0140 
(NLE)  setting  out  a  Recommendation  for  temporary  internal  border  contral  in  exceptional 
circumstances  putting  the  overall  functioning  of  the  Schengen  area  at  risk,  Brussels: 
http://data.consilium.europa.eu/doc/document/ST-8835-2016-INIT/en/pdf. 

European  Council,  2016  a.  Refugee  facility  for  Turkey:  Member  states  agree  on  details  of 
financing, 
[Online]  
Available 
releases/2016/02/03/refugee-facility-for-turkey/ 

http://www.consilium.europa.eu/en/press/press-

Release.. 

Press 

at: 

European  Council, 
at: 
Available 
council/2018/06/28-29/ 
[Haettu 2 July 2018]. 

2018.  European  Council  Meeting, 

28-29/06/2018. 

[Online]  

http://www.consilium.europa.eu/en/meetings/european-

European Migration Network, 2012. Visa Policy as Migration Channel, Brussels: European 
Commission, European Migration Network. 

European Migration Network, 2016. Resettlement and Humanitarian Admission Programmes 
in Europe-what works?, Brussels: European Migration Network. 

European Parliament & European Council, 2014. Regulation (EU) No 515/2014 establishing, 
as part of the Internal Security Fund, the instrument for financial support for external borders and 
visa 
[Online]  
Available 
content/EN/TXT/?uri=celex%3A32014R0515 
[Haettu April 2018]. 

https://eur-lex.europa.eu/legal-

574/2007/EC. 

repealing 

Decision 

and 

No 

at: 

European  Parliament-  Briefing,  2016.  Towards  an  EU humanitarian  visa  scheme?,  Brussels: 
European Parliament- Citizens'Rights and Constitutional Affairs. 

184 

 
European  Parliament-  LIBE  Committee,  2014.  Humanitarian  visas:  Option  or  obligation?, 
Brussels: European Parliament. 

European  Parliament,  2015.  Asylum,  Migration  and  Integration  Fund  (AMIF).  [Online]  
Available  at:  http://www.europarl.europa.eu/EPRS/EPRS-Briefing-551316-Asylum-
Migration-and-Integration-Fund-AMIF-FINAL.pdf 
[Haettu March 2018]. 

European Parliamentary Research Service Blog, 2018. The Fight Against Terrorism: Cost of 
Non-Europe 
[Online]  
Available  at:  https://epthinktank.eu/2018/05/28/the-fight-against-terrorism-cost-of-
non-europe-report/ 
[Haettu 5 June 2018]. 

Report. 

European Parliament-FEMM, 2016. Female refugees and asylum seekers: the issue of integration, 
Brussels: European Union. 

European Parliament-LIBE, 2015. EU cooperation with third countries in the field of migration, 
Brussels: s.n. 

European Union Agency for Fundamental Rights, 2015. Legal entry channels to the EU for 
persons  in  need  of  international  protection:  a  toolbox,  Vienna:  European  Union  Agency  for 
Fundamental Rights (FRA). 

Europol,  2017.  SOCTA:  European  Union  Serious  and  Organised  Crime  Threat  Assessment 
(Crime in the age of technology), s.l.: European Police Office. 

Europol, 2018. Thousands of Euros for a life-threatening journey to the EU: migrant smugglers 
arrested 
[Online]  
Available  at:  https://www.europol.europa.eu/newsroom/news/thousands-of-euros-
for-life-threatening-journey-to-eu-migrant-smugglers-arrested-in-austria-and-romania  
[Haettu 27 April 2018]. 

Romania. 

Austria 

and 

in 

Europol, 
Available 
[Haettu 15 March 2018]. 

ei 

pvm 

at: 

Europol. 

[Online]  
https://www.europol.europa.eu/ 

FRONTEX, 2017. Risk Analysis for 2018, s.l.: European Border and Coast Guard Agency. 

Hebebrand,  J.  ym.,  2016.  A  first  assessment  of  the  needs  of  young  refugees  arriving  in 
Europe: what mental health professionals need to know. NCBI. 

ICF, 2013. Impact assessment study supporting the review of the Union's visa policy to facilitate 
legitimate travelling, s.l.: DG HOME Publications Office of the European Union. 

ICF, 2015. Evaluation of the Dublin III Regulation, Brussels: DG Migration and Home Affairs. 

ICMPD, 2015. Targeting Vulnerabilities: the impact of the Syrian war and refugee situation on 
trafficking  in  persons:  a  study  of  Syria,  Turkey,  Jordan,  Lebanon  and  Iraq.  [Online]  
Available 
Trafficking/Targeting_Vulnerabilities_EN__SOFT_.pdf 
[Haettu April 2018]. 

https://www.icmpd.org/fileadmin/ICMPD-Website/Anti-

at: 

International Labour Office, 2014. Profits and Poverty: The economics of forced labour, Geneva: 
International Labour Organisation. 

IOM (GMDAC & MCD), 2017. Missing Migrants Project. s.l.:s.n. 

IOM, 2016. Cost of Journey: Flow Monitoring Surveys, s.l.: IOM. 

185 

 
IOM, 2016. La tratta di esseri umani attraverso la rotta del mediterraneo centrale: dati, storie  e 
informazioni 
s.l.: 
http://www.italy.iom.int/sites/default/files/news-
documents/RAPPORTO_OIM_Vittime_di_tratta_0.pdf. 

dall'organizzazione 

le  migrazioni, 

internazionale 

raccolte 

per 

prevalence 

IOM,  2017.  Analysis:  Flow  monitoring  surveys-  The  human  trafficking  and  other  exploitive 
practices 
[Online]  
Available 
at: 
https://reliefweb.int/sites/reliefweb.int/files/resources/Analysis_Flow_Monitoring_an
d_Human_Trafficking_Surveys_in_the_Mediterranean_and_Beyond_14_June_2017.pdf 
[Haettu April 2018]. 

indication 

survey. 

IOM,  2017.  Assisted  Voluntary  Return  and  Reintegration  2016  Highlights.  [Online]  
Available at: https://www.iom.int/sites/default/files/our_work/DMM/AVRR/AVRR-
2016-Key-Highlights.pdf 
[Haettu April 2018]. 

Italian Government, 2014. Programma Nazionale ISF Identificazione Delle Autorità Designate , 
s.l.: s.n. 

Italian Government, 2014. Programma Nazionale ISF Identificazione Delle Autorità Designate , 
s.l.: s.n. 

Italian  Ministry  of  Finance,  2016.  Relevant  factors  influencing  debt  developments  in  Italy. 
[Online]  
at: 
Available 
http://www.ilsole24ore.com/pdf2010/Editrice/ILSOLE24ORE/ILSOLE24ORE/Online/
_Oggetti_Embedded/Documenti/2016/05/11/DOCUMENTO_Debt-Developments-
Italy.pdf  
[Haettu April 2018]. 

Levi, M., Innes, M., Reuter, P. & Gundun, R., 2013. The Economic, Financial & Social Impacts 
of Organised Crime in the EU- European Parliament's Special Committee on Organised Crime, 
Corruption 
[Online]  
Available 
at: 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/493018/IPOL-
JOIN_ET(2013)493018_EN.pdf 
[Haettu April 2018]. 

Laundering 

(CRIM). 

Money 

and 

Mewes, R. ym., 2017. Elevated hair cortisol concentrations in recently fled asylum seekers 
immigranst  and  non-immigrants.  NCBI, 
in  comparison 
Osa/vuosikerta Translational psychiatry 7(3), p. p.e.1051. 

to  permanently  settled 

Moreno-Lax, D. V., 2017. The Role of Visas for Legal Avenues. Brussels, European Parliament. 

OECD & European Commission DG Employment, 2016. How are refugees faring on the labour 
market in Europe? A first evaluation based on the 2014 EU Labour Force Survey ad hoc module, 
https://www.oecd.org/berlin/publikationen/Arbeitsmarktintegration-von-
s.l.: 
Fluechtlingen-EK-OECD-Arbeitspapier-092106.pdf. 

OECD, 
Available 
[Haettu April 2018]. 

2017. 
at: 

Migration 

Policy 
[Online]  
https://www.oecd.org/els/mig/migration-policy-debates-13.pdf 

Debates. 

and 

2018.  Total 

[Online]  
OECD, 
Available 
at: 
http://stats.oecd.org/qwids/#?x=1&y=6&f=4:1,2:1,3:51,5:3,7:2&q=4:1,36+2:1+3:51+5:3+7

(ODA+OOF+Private) 

[DAC1]. 

donor 

flows 

by 

186 

 
:1,2+1:3,4,5,6,58,7,8,9,10,11,60,12,13,14,61,15,16,17,18,62,19,63,75,20,21,22,23,24+6:2010,201
1,2012,2013,2014,2015 
[Haettu 12 03 2018]. 

2017.  Oxfam  media 

Oxfam, 
Available  at:  https://www.oxfamnovib.nl/Files/rapporten/20170808%20mb-migrants-
libya-europe-090817-en_EMBARGO.pdf 
[Haettu April 2018]. 

briefing:  You 

anymore. 

human 

aren't 

[Online]  

Papademetriou, D. G., 2017. The Migration Crisis is Over: Long Live the Migration Crisis. 
Migration Policy Institute. 

Pfortmueller, C. ym., 2016. Adult Asylum Seekers from the Middle East Including Syria in 
Central Europe: What are their Health Care Problems?. NCBI, Osa/vuosikerta PloS one, 
11(2), p.e0148196. 

Raoul Wallenberg Institute of Human Rights and Humanitarian Law, 2016. Humanitarian 
Visas Key to Improving Europe's Migration Crisis, Lund: Raoul Wallenberg Institute. 

Red  Cross-  EU  Office,  2015.  Europe  in  Crisis:  Facilitating  Access  to  Protection,  (Discarding) 
Offshore Processing and Mapping Alternatives for the Way Forward, Brussels: Red Cross. 

Statewatch,  2016.  Analysis  Why  Turkey 
Available  at:  http://www.statewatch.org/analyses/no-283-why-turkey-is-not-a-safe-
country.pdf 

is  Not  a  “Safe  Country”. 

[Online]  

2011. 

UNHCR, 
Available 
[Haettu April 2018]. 

UNHCR 
at: 

Resettlement 

[Online]  
http://www.unhcr.org/46f7c0ee2.pdf 

Handbook. 

UNHCR, 2017. Desperate Journeys: Refugees and migrants entering and crossing Europe via the 
Mediterranean and Western Balkan routes, s.l.: UNHCR. 

2017.  Global 

UNHCR, 
Available 
[Haettu April 2018]. 

Trends: 

at: 

Forced  Displacement 

[Online]  
http://www.unhcr.org/5943e8a34.pdf 

2016. 

in 

UNHCR, 2018. Desperate Journeys, s.l.: UNHCR. 

UNHCR, 
Available 
[Haettu May 2018]. 

2018. 
at: 

Mediterranean 
[Online]  
http://data2.unhcr.org/en/situations/mediterranean 

Situation. 

UNICEF, 2010. Protecting Children of Concern through a Systems Approach: Guidance for Field 
Offices. 
[Online]  
Available 
at: 
https://www.unicef.org/protection/UNHCR_Protecting_Children_of_Concern_throug
h_a_Systems_Approach_Dec_1.pdf 
[Haettu April 2018]. 

University of Oxford, 2015. Border Criminologies: Sharing the burden of rescue- Illegalised boat 
migration, the shipping industry and the costs of rescue in the Central Mediterranean. [Online]  
Available 
criminology/centreborder-criminologies/blog/2015/11/sharing-burden 
[Haettu April 2018]. 

https://www.law.ox.ac.uk/research-subject-groups/centre-

at: 

Van Ballegooij, W. & Moxom, J., 2018. EPRS Equality and the fight against xenophobia- a Cost 
of 
[Online]  
at: 
Available 

Non-Europe 

Report. 

187 

 
http://www.europarl.europa.eu/RegData/etudes/STUD/2018/615660/EPRS_STU(201
8)615660_EN.pdf 
[Haettu April 2018]. 

2016. 

Bank, 

World 
Available  at:  https://data.worldbank.org/indicator/NY.GDP.PCAP.CD?locations=SY-
AF 
[Haettu April 2018]. 

(current 

US$). 

capita 

GDP 

[Online]  

per 

188 

 
 
 
 
 
Q
A
-
0
2
-
1
8
-
8
3
3
-
E
N
N

-

to 

those  seeking 

The  EU  and  its  Member  States'  failure  to  offer  regular 
entry  pathways 
international 
protection undermines the achievement of their Treaty 
and fundamental rights obligations, resulting in 90 % of 
those  granted  international  protection  reaching  the 
European Union through irregular means. This situation 
has severe individual impacts in terms of mortality and 
damage  to  health,  negative  budgetary  and  economic 
impacts.  Finally,  EU  legislation  on  humanitarian  visas 
could  close  this  effectiveness  and  fundamental  rights 
protection  gap  by  offering  safe  entry  pathways, 
reducing  irregular  migration  and  result  in  increased 
management, coordination and efficiency in the asylum 
process, as well as promoting fair cost-sharing.  

This is a publication of the European Added Value Unit 
EPRS | European Parliamentary Research Service 

This document is prepared for, and addressed to, the Members and staff of the European 
Parliament as background material to assist them in their parliamentary work. The content of 
the document is the sole responsibility of its author(s) and any opinions expressed herein should 
not be taken to represent an official position of the Parliament. 

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ISBN 978-92-846-3106-3 | doi:10.2861/147429 |  QA-02-18-833-EN-N