Proposal for a COUNCIL IMPLEMENTING DECISION on the suspension of certain provisions of Regulation (EC) 810/2009 of the European Parliament and of the Council with respect to Iraq
Date: 2021-07-15
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU visa policy, Iraq, Schengen Agreement, administrative cooperation, admission of aliens, application of EU law, external border of the EU, foreign national, illegal migration, return migration

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   EUROPEAN COMMISSION  Brussels, 15.7.2021  COM(2021) 414 final 2021/0234 (NLE)  Proposal for a COUNCIL IMPLEMENTING DECISION on the suspension of certain provisions of Regulation (EC) 810/2009 of the European Parliament and of the Council with respect to Iraq  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

• 
Under Article 25a(2) of the Visa Code1, the Commission shall regularly assess third countries' 
cooperation on readmission and report to the Council at least once a year.  

The  Commission  adopted  its  assessment  on  10  February  2021,  based  on  2019  data  and 
information  provided  by  EU  Member  States  and  Schengen  Associated  Countries,  and 
transmitted the report2 to the Council.  

Based  on  the  above  analysis,  and  taking  into  account  the  Union’s  overall  relations  with  the 
third country concerned, the Commission may conclude that the given third country does not 
cooperate sufficiently and that action is therefore necessary. In this context, it should be noted 
that readmission of own nationals is an obligation under international law. 

In case of insufficient cooperation, the Commission, in accordance with Article 25a(5), point 
(a), of the Visa Code, shall submit proposal for a Council implementing decision suspending 
the  application  of  certain  provisions  of  the  Visa  Code  in  respect  of  nationals  of  that  third 
country. At all times, the Commission shall continue its efforts to improve cooperation with 
the third country concerned.  

 

The case of Iraq 

The  Commission  noted  in  the  above-mentioned  report  that  identification  processes  deliver 
unsatisfactory or no results for Member States representing more than two-thirds of the return 
decisions issued to  Iraqi nationals  and rarely lead to  the issuance of travel  documents.  Iraqi 
authorities cooperate only on voluntary returns and in very exceptional cases (Iraqi nationals 
convicted for a criminal offence) on forced returns. Moreover, notwithstanding the conclusion 
of the EU-Iraq Partnership and Cooperation Agreement in August 2018, the obligation under 
that agreement to readmit own nationals who are illegally present on the territory of the other 
Party is not respected. Four Member States have bilateral arrangements, which are also rarely 
respected or respected only for voluntary returns or for Iraqi nationals convicted for a criminal 
offence. 

Since 2017 when it was established, the EU and the Member States have engaged with Iraq on 
migration in the framework of the EU-Iraq Informal Migration Dialogue. In the four meetings 
that have taken place so far in the framework of that Dialogue, return and readmission have 
always  featured  high  on  the  agenda  and  the  EU  has  consistently  expressed  concern  about 
Iraq’s  unsatisfactory  level  of  cooperation  on  readmission.  In  the  last  Migration  Dialogue 
meeting (February 2021), Iraq reconfirmed that it will not cooperate on non-voluntary returns.  

Against this background, the EU has emphasised to the Iraq authorities the increasing level of 
dissatisfaction among Member States and the possible consequences of failing to improve the 
situation, including in a meeting with the Iraq Embassy in Brussels (May 2021) and through a 
joint  letter  by  the  EU  High  Representative  for  Foreign  Affairs  and  Commissioner  for 
Migration  addressed  to  the  Iraqi  Ministers  of  Foreign  Affairs,  Interior  and  Migration  and 

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Regulation  (EC)  No  810/2009  of  the  European  Parliament  and  of  the  Council  of  13  July  2009 
establishing a Community Code on Visas (Visa Code), OJ L 243, 15.9.2009, p. 1. 
COM(2021 55 final (EU Restricted). 

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Displaced  Persons  (June  2021).  A  copy  of  the  letter  was  handed  over  to  Prime  Minister 
Kadhemi on 17 June 2021.  

These steps have so far not led to concrete substantial results and sustained cooperation on the 
basis  of  the  indicators  set  out  in  Article  25a(2),  including  in  the  timely  identification  of 
persons  illegally  staying  on  the  territory  of  the  Member  States,  the  issuance  of  travel 
documents  and  the  organisation  of  return  operations.  On  that  basis,  considering  the  steps 
taken so far by the Commission to improve the level of cooperation, and taking into account 
the EU’s overall relations with  Iraq, it  is  considered that  Iraq’s cooperation with  the EU on 
readmission matters is not sufficient and that action is needed. 

 

The Union’s overall relations with Iraq  

The  Union’s  relations  with  Iraq  are  guided  by  the  Partnership  and  Cooperation  Agreement 
that  entered  into  force  in  2018.  The  EU  strategy  for  Iraq  (2018)  reaffirms  the  EU’s 
commitment  to  a  strong  EU-Iraq  partnership,  and  to  supporting  the  Iraqi  authorities  in  the 
reconstruction phase and in tackling the underlying political, social and economic drivers of 
instability  in  the  country.  The  EU  is  an  important  economic  and  security  partner  for  Iraq. 
Cooperation on migration is  comprehensive, focusing in  particular on migration governance 
including  border  management,  migration  and  development,  irregular  migration  and  return. 
These issues are discussed in the above-mentioned Informal Migration Dialogue and the last 
meeting in the framework of that Dialogue took place in February 2021.    

In  high-level  discussions  between  the  EU  and  Iraq  in  June  2021,  the  Iraqi  side  voiced 
readiness  to  engage  with  affected  Member  States  on  return  and  readmission  including 
voluntary returns. The Commission would support those efforts as a first step. 

 

The visa measures 

Scope of measures 

The  Council  implementing  decision  should  temporarily  suspend  the  application  of  certain 
provisions of the Visa Code in respect of Iraqi nationals. The suspension, however, does not 
apply to family members of (mobile) EU citizens covered by the Directive 2004/38/EC3 and 
of  third  country  nationals  enjoying  a  right  of  free  movement  equivalent  to  that  of  Union 
citizens under an agreement between the Union and its Member States on the one hand and 
the third countries concerned on the other.   

Content of the visa measures   

Iraq’s failure to cooperate on readmission justifies the activation of all the measures set out in 
point(a)  of  Article  25a(5)  of  the  Visa  Code:  suspension  of  the  possibility  of  waiving 
requirements  with  regard  to  the  documentary  evidence  to  be  submitted  by  visa  applicants 
referred  to  in  Article  14(6),  suspension  of  the  general  15  calendar  days  processing  period 
referred to in Article 23(1) (which as a consequence also excludes the application of the rule  
on the extension of this period up to a maximum of 45 days in individual cases), suspension 
of the issuing of multiple entry visas (MEVs) in accordance with Article 24(2) and (2c) and, 

3 

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of 
citizens  of  the  Union  and  their  family  members  to  move  and  reside  freely  within  the  territory  of  the 
Member  States  amending  Regulation  (EEC)  No  1612/68  and  repealing  Directives  64/221/EEC, 
68/360/EEC,  72/194/EEC,  73/148/EEC,  75/34/EEC,  75/35/EEC,  90/364/EEC,  90/365/EEC  and 
93/96/EEC (OJ L 158, 30.4.2004, p. 77). 

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suspension of the optional visa fee waiver for holders of diplomatic and service passports in 
accordance with point (b) of Article 16(5).  

Period of application of the visa measures 

The  Visa  Code  stipulates  that  the  visa  measures  shall  apply  temporarily  but  there  is  no 
obligation to indicate a specific period of application of those measures in the implementing 
decision. However, under Article 25a(6)  the Commission  shall continuously  assess progress 
in readmission cooperation on the basis of the indicators set out in Article 25a(2), including in 
the timely identification of persons illegally staying on the territory of the Member States, the 
issuance of travel documents and the organisation of return operations. The Commission shall 
report  whether  substantial  and  sustained  improvement  in  the  cooperation  with  the  third 
country concerned on readmission can be established and, taking also account of the Union's 
overall  relations  with  that  third  country,  may  submit  a  proposal  to  the  Council  to  repeal  or 
amend  the  implementing  decision.  If  by  contrast,  the  visa  measures  in  accordance  with  the 
implementing decision  have proven ineffective, it should be considered to trigger the second 
stage of the mechanism (provide for by Article 25a(5), point (b)). 

In addition, pursuant to Article 25a(7), the Commission shall  - at the latest six months after 
the entry into force of the implementing decision - report to the European Parliament and to 
the Council on the progress achieved in the given third country’s cooperation on readmission. 

• 

Consistency with existing policy provisions in the policy area 

The  proposed  decision  is  consistent  with  the  set  of  harmonised  rules  of  the  common  visa 
policy  governing  the  procedures  and  conditions  for  issuing  visas  for  intended  stays  on  the 
territory of the Member States not exceeding 90 days in any 180-day  period. 

• 

Consistency with other Union policies 

The EU promotes a comprehensive approach on migration and forced displacement, based on 
shared  values  and  responsibilities.  The  New  Pact  on  Migration  and  Asylum  foresees 
developing and deepening tailor-made comprehensive and balanced partnerships to foster co-
operation on all relevant aspects:  

– 

– 

– 

– 

– 

Providing protection to those in need of protection and support to host countries and 
communities; 

Building economic opportunity and addressing the root causes of irregular migration 
and forced displacement;  

Supporting partners to strengthen migration governance and management;  

Fostering co-operation on return and readmission;  

Developing legal pathways to Europe.  

The cooperation between Member States  and third countries on the readmission of illegally 
staying  third  country  nationals  is  an  important  element  of  this  policy.  To  reinforce  such 
comprehensive partnerships and ensure full cooperation from third countries, the EU needs to 
mobilise all available tools, including development co-operation, trade or visa. 

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2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 
establishing a Community Code on Visas (Visa Code), Article 25a(5), point (a).  

• 

n.a. 

• 

Subsidiarity (for non-exclusive competence)  

Proportionality 

The proposed measures the purpose of which is to stimulate Iraq to improve its cooperation 
on  the  readmission  of  irregular  migrants  are  proportionate  to  the  objective  pursued.  These  
measures do not  affect the possibility for the applicant to apply for and be granted visas, as 
such, but cover certain aspects of the procedure for issuing the visa or the level of the visa fee.  

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Stakeholder consultations 

Collection and use of expertise 

Impact assessment 

Regulatory fitness and simplification 

3. 

• 

n.a. 

• 

n.a. 

• 

n.a. 

• 

n.a. 

• 

n.a. 

• 

Fundamental rights 

The  proposed  measures  do  not  affect  the  possibility  to  apply  for  and  be  granted  visas  and 
respect the fundamental rights of applicants, in particular the respect for family life.    

BUDGETARY IMPLICATIONS 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Explanatory documents (for directives) 

4. 

n.a. 

5. 

• 

n.a. 

• 

n.a. 

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Detailed explanation of the specific provisions of the proposal 

• 

n.a. 

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2021/0234 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

on the suspension of certain provisions of Regulation (EC) 810/2009 of the European 
Parliament and of the Council with respect to Iraq 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union,  

Having  regard  to  Regulation  (EC)  No  810/2009  of  the  European  Parliament  and  of  the 
Council  of  13  July  2009  establishing  a  community  Code  on  Visas  (Visa  Code)4,  and  in 
particular Article 25a(5), point (a), thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

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Partnership and Cooperation Agreement between the European Union and its Member 
States, of the one part, and the Republic of Iraq, of the other part5, which entered into 
force on 1 August 2018, reiterates the customary obligation for both Parties to readmit 
their own nationals  who are illegally  present  on  the territory of the other Party  (Art. 
105 3.). Iraq does not respect that obligation, as attested by its declared position of not 
cooperating  on  non-voluntary  returns.  Member  States  also  face  poor  cooperation  on 
the part of Iraq in all aspects of the return process. 

The  Commission  has  repeatedly  called  on  Iraq  to  improve  cooperation  on  the 
readmission of illegally staying third country nationals and to give full implementation 
to  the  provisions  on  readmission  of  own  nationals  of  the  EU-Iraq  Partnership  and 
Cooperation  Agreement,  in  particular  in  the  framework  of  the  EU-Iraq  Informal 
Migration Dialogue (established 2017), as well as in oral and written exchanges with 
the Iraq government representatives, specifically  expressing growing concerns in this 
respect  and  advising  on  possible  consequences  of  failing  to  improve  cooperation  on 
readmission.  

Taking into account the steps taken, so far by the Commission to improve the level of 
cooperation  and  the  Union’s  overall  relations  with  Iraq  it  is  considered  that  Iraq’s 
cooperation  with  the  Union  on  readmission  matters  is  not  sufficient  and  that  action 
should be taken.  

The  application  of  certain  provisions  of  Regulation  (EC)  No  810/2009  should 
therefore be temporarily suspended for nationals of Iraq.  This is considered the most 
efficient  action  to  take  in  view  of  stimulating  the  Iraqi  authorities  to  undertake  the 
necessary  actions  to  improve  cooperation  on  readmission  matters.  The  temporary 
suspension does not apply to nationals of Iraq applying for a visa and who are family 
members of a Union citizen to whom Directive 2004/38/EC applies or of a national of 

OJ L 243, 15.9.2009, p. 1. 
OJ L 204  of  31.7.2012,  p. 20  (text  of  agreement),  OJ  L  203,  of  10.8.2018,  p.  1  (Council  Decision  on 
conclusion) 

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a third country enjoying a right of free movement equivalent to that of Union citizens 
under an agreement between the Union and its Member States on the one hand and a 
third country on the other.  

The  measures  temporarily  suspended  are  set  out  in  point(a)  of  Article  25a(5)  of  the 
Visa  Code:  suspension  of  the  possibility  of  waiving  requirements  with  regard  to  the 
documentary evidence to be submitted by visa applicants referred to in Article 14(6), 
suspension  of  the  general  15  calendar  days  processing  period  referred  to  in  Article 
23(1)  (which  as  a  consequence  also  excludes  the  application  of  the  rule    on  the 
extension of this period up to a maximum of 45 days in individual cases), suspension 
of  the  issuing  of  multiple  entry  visas  (MEVs)  in  accordance  with  Article  24(2)  and 
(2c)  and,  suspension  of  the  optional  visa  fee  waiver  for  holders  of  diplomatic  and 
service passports in accordance with point (b) of Article 16(5). 

Article  21(1)  of  the  Treaty  on  the  Functioning  of  the  European  Union  provides  that 
every citizen of the Union has the right to move and reside freely within the territory 
of  the  Member  States,  subject  to  the  limitations  and  conditions  laid  down  in  the 
Treaties and by the measures adopted to give them effect. Directive 2004/38/EC of the 
European  Parliament  and  of  the  Council6  gives  effect  to  those  limitations  and 
conditions.  This  Decision  does  not  affect  the  application  of  that  Directive,  which 
extends the right of free movement to family members independent of their nationality 
when joining or accompanying the Union citizen. This Decision thus does not apply to 
family  members  of  a  Union  citizen  to  whom  Directive  2004/38/EC  applies  or  of  a 
national  of  a  third  country  enjoying  a  right  of  free  movement  equivalent  to  that  of 
Union citizens under an agreement between the Union and its Member States on the 
one hand and a third country on the other. 

Given that Denmark decided to implement Regulation (EC) No 810/2009 which builds 
on  the  Schengen  acquis  in  its  national  law,  in  accordance  with  Article  4  of  Protocol 
(No 22) on the position of Denmark, annexed to the Treaty on the European Union and 
to  the  Treaty  on  the  Functioning  of  the  European  Union,  Denmark  is  bound  under 
international law to implement this Decision. 

This  Decision  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in 
which Ireland does not take part, in accordance with Council Decision 2002/192/EC7; 
Ireland is therefore not taking part in the adoption of this Decision and is not bound by 
it or subject to its application 

As regards Iceland and Norway, this Decision constitutes a development of provisions 
of  the  Schengen  acquis  within  the  meaning  of  the  Agreement  concluded  by  the 
Council  of  the  European  Union  and  the  Republic  of  Iceland  and  the  Kingdom  of 
Norway  concerning  the  latters’  association  with  the  implementation,  application  and 
development of the Schengen acquis which fall within the area referred to in Article 1, 
point B of Council Decision 1999/437/EC8. 

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of 
citizens  of  the  Union  and  their  family  members  to  move  and  reside  freely  within  the  territory  of  the 
Member  States  amending  Regulation  (EEC)  No  1612/68  and  repealing  Directives  64/221/EEC, 
68/360/EEC,  72/194/EEC,  73/148/EEC,  75/34/EEC,  75/35/EEC,  90/364/EEC,  90/365/EEC  and 
93/96/EEC (OJ L 158, 30.4.2004, p. 77). 
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some 
of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20). 
Council  Decision  1999/437/EC  of  17 May  1999  on  certain  arrangements  for  the  application  of  the 
Agreement  concluded  by  the  Council  of  the  European  Union  and  the  Republic  of  Iceland  and  the 

(5) 

(6) 

(7) 

(8) 

(9) 

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(10)  As regards Switzerland,  this Decision constitutes a development  of the provisions of 
the  Schengen  acquis  within  the  meaning  of  the  Agreement  between  the  European 
Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation’s association with the implementation, application and development of 
the  Schengen  acquis9  which  fall  within  the  area  referred  to  in  Article 1,  point  B  of 
Decision 1999/437/EC read in conjunction with Article 3 of Decision 2008/146/EC10. 

(11)  As regards Liechtenstein, this Decision constitutes a development of the provisions of 
the Schengen acquis within the meaning of the Protocol between the European Union, 
the  Principality  of 
the  European  Community, 
Liechtenstein  on  the  accession  of  the  Principality  of  Liechtenstein  to  the  Agreement 
between the European Union, the European Community and the Swiss Confederation 
on  the  Swiss  Confederation’s  association  with  the  implementation,  application  and 
development  of  the  Schengen  acquis11  which  fall  within  the  area  referred  to  in 
Article 1,  point  B  of  Decision  1999/437/EC  read  in  conjunction  with  Article 3  of 
Decision 2011/350/EU12. 

the  Swiss  Confederation  and 

(12)  This Decision constitutes an act building upon, or otherwise relating to, the Schengen 
acquis within, respectively, the meaning of Article 3(2) of the 2003 Act of Accession, 
Article  4(2)  of  the  2005  Act  of  Accession  and  Article  4(2)  of  the  2011  Act  of 
Accession.  

HAS ADOPTED THIS DECISION:  

Article 1 
Scope 

1. 

2. 

3. 

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10 

11 
12 

13 

This Decision shall apply to nationals of Iraq who are subject to the visa requirement 
pursuant  to  Regulation  (EU)  2018/1806  of  the  European  Parliament  and  of  the 
Council.13  

It  does  not  apply  to  nationals  of  Iraq  who  are  exempt  from  the  visa  requirement 
under Article 4 or Article 6 of that Regulation. 

This  Decision  does  not  apply  to  nationals  of  Iraq  applying  for  a  visa  and  who  are 
family  members  of  a  Union  citizen  to  whom  Directive  2004/38/EC  applies  or  of  a 
national  of  a  third  country  enjoying  a  right  of  free  movement  equivalent  to  that  of 

Kingdom  of  Norway  concerning  the  association  of  those  two  States  with  the  implementation, 
application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31). 
OJ L 53, 27.2.2008, p. 52. 
Council  Decision  2008/146/EC  of  28 January  2008  on  the  conclusion,  on  behalf  of  the  European 
Community, of the Agreement between the European Union, the European Community and the Swiss 
Confederation  on  the  Swiss  Confederation’s  association  with  the  implementation,  application  and 
development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1). 
OJ L 160, 18.6.2011, p. 21. 
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the  European Union, 
of the Protocol between the European Union, the European Community, the Swiss Confederation and 
the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement 
between  the  European  Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation’s  association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis,  relating  to  the  abolition  of  checks  at  internal  borders  and  movement  of  persons  (OJ  L  160, 
18.6.2011, p. 19). 
Regulation  (EU)  2018/1806  of  the  European  Parliament  and  of  the  Council  of  14  November  2018 
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  (codification)  (OJ  L  303, 
28.11.2018, p. 39). 

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Union citizens under an agreement between the Union and its Member States on the 
one hand and a third country on the other. 

Article 2  
Temporary suspension of the application of certain provisions of Regulation (EC) No 
810/2009 

The  application  of  the  following  provisions  of  Regulation  (EC)  No  810/2009  shall  be 
temporarily suspended:    

(a) 

(b) 

(c) 

(d) 

Article 14(6); 

Article 16(5), point (b); 

Article 23(1);  

Article 24(2) and (2c). 

Article 3 

Addressees 

This Decision is addressed to the Kingdom of Belgium, the Republic of Bulgaria, the Czech 
Republic, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, 
the Kingdom of Spain, the French Republic, the Republic of Croatia, the Italian Republic, the 
Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of 
Luxembourg, Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic 
of  Austria,  the  Republic  of  Poland,  the  Portuguese  Republic,  Romania,  the  Republic  of 
Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of Sweden.  

Done at Brussels, 

For the Council 
The President 

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