Tourists and Immigration Visas and Border Control under Irish and EU Law - Should Ireland join the Schengen Zone for the sake of Tourism?

Marc McDonald School of Hospitality Management and Tourism Dublin Institute of Technology marc.mcdonald@dit.ie

Introduction Law governing visas and border controls is relevant tourism because … The subject is increasing in importance because there are: More travellers More immigrants masquerading as tourists More security risks in travel since 9/11 in US

Introduction In response governments in Ireland, UK, EU and elsewhere are updating their immigration laws and introducing new security initiatives Its even entering popular consciousness with new reality TV programmes These initiatives add obstacles and to tourist travel UNWTO established in 2008 a special working committee to look at the area

Focus Law governing visas and border controls on travel into Ireland Travel inside and into Schengen Zone Travel between Ireland and UK Should Ireland join Schengen Zone?

Travel into Ireland State power to control entry/exit rooted in Constitution Conditions of entry: Valid travel document Visa if required Border controls on entry/exit Limits on use of state power based on human rights protections

Irish Visas A visa is … its purpose is ... Ireland decides who needs a visa, creates its own application procedures, issues its own visas and does not accept anyone else’s Currently, no specific Irish visa legislation, but note Immigration, Residence and Protection Bill 2008

Tourist Visas No specific tourist visa Visas are awkward to get Demanding on visa applicants Involve precise form-filling, intrusive questioning, delays/queuing, expense Visa system difficult to administer - how effective is it anyway? Even so, Ireland (like other states) is reluctant to give up what looks like a useful deterrent against illegal immigration …

Alternatives to Visas for Tourists Technological developments Machine-readable, biometric passports and visas, automated entry gates API, PNR, electronic travel authorisation New possibilities mainly assess security risks, not tourist bona fides i.e. risk of illegal immigration Removing visa requirement would mean placing greater emphasis on entry border controls and internal police controls

Irish Border Controls Generally non-nationals must arrive at authorised air/sea port, except when crossing land frontier with NI Airlines must channel to immigration officer Tourist must present to request permission to enter Legislation (Immigration Act) stipulates grounds of refusal

Irish Border Controls To gain entry tourist must: Posses valid travel document Distinction between EC and non-EC tourists Show visa if required Be able to substantiate tourism purpose if requested Not be a security, health, public policy risk No mandatory checks and importance for tourists No exit checks

Tourist Travel and the EU EU/EC law governs tourist travel inside and into EU, not national law EC law is relevant because of travel implications of EU citizenship and common market freedoms EC impact on travel involves two basic distinctions: Between tourists crossing EU’s internal and external borders Between EU citizens and non-EU citizens

Travel inside the EU EU citizen’s right of free movement depends only on possession of valid passport/official ID No stamps, no questions about … Refusals of EU citizens still allowed under EU law but must serve vital public policy, involve no nationality discrimination and act/work proportionately

Abolishing Internal Border Controls in EU Always seen as part of EC project but started as a non-EU initiative and since moved inside EU/EC legal framework - Schengen Initiative Intended to facilitate cross-border travel, including tourist movement UK and Ireland refusal to join means EU is now split into Schengen Zone and non-Schengen Zone Schengen Initiative means more than removing internal border controls

Other Elements of Schengen Common visa policy Common external borders policy Common security systems to back up operation of common visa/border policies – Schengen Information System (SIS and VIS) External dimension of Schengen – forcing non-EU states to adjust their visa policies for citizens of accession states

EU Visa Policy One visa issued by any Schengen state authorises tourist entry in all Schengen Zone Common list of non–EU states whose nationals need/do not need a Schengen visa Common visa format and procedures for issuing Schengen visas … EU visa laws operate in addition to local laws controlling outbound tourism e.g. China EU visa policy only applies to short-stays (90 days in 6 months) Stays beyond this remain subject to national laws and bi-lateral agreements

EU External Border Controls Detailed, prescriptive and mandatory legal framework Requiring ‘thorough’ checks (entry/exit) - questioning and verification … impact on tourism Mandatory separate lanes at airports for flights crossing EU external borders

EU External … Recent security initiatives: API Proposed UK introduction of API in CTA Current Spanish use of EU API law Data protection and privacy concerns

Tourism Impacts on Ireland of remaining outside Schengen Tourists from Schengen Zone subjected to Irish border controls Irish tourists travelling to Schengen Zone subjected to Schengen border controls Non-EC tourists coming from Schengen Zone need extra Irish visa Non EC tourists entering Schengen Zone from Ireland need Schengen visa

Ireland and UK – the Common Travel Area (CTA) CTA not based on any formal bi-lateral agreement Historically understood to mean (mainly) control-free and passport-free travel between both states With informal alignment of visa and border control policies In Ireland CTA only truly operated on land frontier crossing with NI

CTA Dublin airport has no separate lanes for CTA travellers and while (in theory) they do not need to show a passport, they must produce some ID to prove they do not need to show a passport! UK and Irish proposals for ‘e-borders’ End of CTA? If it ever existed?

Should Ireland join the Schengen Zone for the sake of Tourism? So far Ireland has remained outside Schengen mainly because entry would mean imposing the full set of EU external border controls on travel across the land frontier with NI Politically (against the background of the NI peace process) Irish government does not wish to create further barriers to north/south cooperation etc.

Should … Strong case needed to convince Irish government to alter its position No sign of EU pressure even though … Any tourism–related reasons? Potential benefits of: removing internal checks on intra-EU travellers recognising/issuing Schengen visas No EC checks for out-bound tourists

Should … But no one has tried to quantify: past losses from being outside Schengen future benefits from being inside Schengen Also, little/no pressure from in/out-bound tourism industry for joining Schengen Volume of illegal migration across land frontier with NI? Travel and tourism with Schengen Zone becoming more important than with CTA area?

Should … How ‘untouchable’ is the Schengen obligation to operate external border controls on land frontier with NI? Any ways round it? Softening it? So far, not much evidence of Irish government exploring softening measures Seeking (longish/experimental) transitional derogation?

Should … Possible special border zone derogation/softening along lines of existing Schengen law for ‘local border traffic’ Persuading UK to join/adhere to/be approved by Schengen external border controls, while retaining internal border checks

Conclusion Tourist travel is affected by immigration law Border controls hinder movement and full border controls hinder travel more Insisting on visas and not recognising anyone else’s also hinders travel Ireland does not take part in a major EU initiative designed to facilitate cross-border travel which obviously benefits tourists

Conclusion Participation in Schengen should make in-bound and out-bound Irish tourist travel easier The major impediment to joining Schengen is the obligation to treat the land frontier with NI as an EU external border Need for further research to determine impacts Irish government has not been pro-active in determining whether there might be any way around this