“Strict or fair”? German visa policy in Ukraine

Based on the official EU statistics for 2011–2013 and independent monitoring findings for 2013.

The visa practice of each EU Member State reflects both its administrative culture and its goodwill standards regarding the country of origin and its citizens. Regardless of the existing common EU legislative framework on visa procedure, some EU Member States introduced stricter or, on the contrary, more “human” standards and requirements for visa applications. As important parameters have to be taken into consideration: issuance of long-term visas, the number of supporting documents required for submission from certain categories of applicants, the waiving of the consular fee.

„Europe without Barriers” has monitored visa policy and practice within the EU several times. The German visa practice was recognized as “contrasting” that means when “pluses” in some elements are balanced by “minuses” in others. For instance, the German consulate has one of the highest refusal rates and requires the largest number of documents at the same time. This visa practice has clear, understandable and transparent requirements. This is the reason why Ukrainian applicants usually call German visa procedures “strict but fair”.  

German visa practice: current trends  

Germany keeps a stable number of visas issued in Ukraine in recent years (about 100.000 annually), with a growth by about 2 percent in absolute numbers of visas. While overall quantity of Schengen visas in Ukraine has been increased by 15-20 percent annually, that trend implies a reduction of the German share. Whereas 2-3 years ago Germany occupied the 2^nd position (after Poland) by absolute number of visas, today it is the 4^th, with Hungary and Czech Republic ahead^[1].

Visa type C – Short-term Schengen visa with less than 90 days in period of 180 days
MEV – Multiple-entry visas
MEVs issued for Germany: only MEVs valid for more than 1 year are included

In 2011 Germany issued 1.589.679 Schengen visas (categories A and C), in 2012

1.729.119 and in 2013  1.851.577 (categories C).

Germany operates one consulate in Kyiv and five Visa Centres (Donetsk Visa Centre doesn’t accept visa applications anymore because of the “Anti Terrorist Operation”). In 2007, Germany introduced a new practice of receiving and processing visa applications in Ukraine with the participation of Visa Facilitation Service (VFS). This company started its work in Kyiv by establishing the so-called “Visa Centres” as intermediaries between consulate and applicants and by providing information and primary processing of visa documents. The appearance of VFS Company on the Ukrainian visa service market provoked numerous questions from the civil society concerning the founders and owners of the company. But the main issue related to the right of the applicants to choose the place of submitting the documents as it was foreseen by the EU Visa Code.

The EU Visa Code establishes the right for visa applicants to choose whether to address their visa applications directly to the consular department of the Embassy or to the external provider. The latter additionally charges for visa document processing, therefore there is a significant increase of visa fee costs, despite the fact that a stable fee of 35 Euro was fixed in the Visa Facilitation Agreement.

It appears that in most cases the consulate does not ensure adherence of this provision, moreover they directly or indirectly send visa applicants to submit their application to Visa Centres.

In order to receive a comprehensive pattern of a country’s visa issuance practice it is important to combine different parameters of visa procedure and make comparison with the EC official visa statistics. The mentioned visa issuance practice monitoring, which has its methodology and is based on sociological survey (polling) of applicants near consulates, gives an opportunity to reveal more specific features of the visa practice of a country. Below are those of the German visa policy.

German visa issuance practice has 10 distinctive features:

1. Submitting documents to obtain a visa

Document submission time: Practically all applicants at the Consulate of Germany (100 percent) mentioned that they managed to submit visa documents during the time slot they had selected.   

2. Waiting

Average document procession time: 70 percent of the surveyed respondents noted that their documents were processed for 6-10 days, while 18,3 percent of the respondents received their documents after less than 5 days in procession.  

3. Confirming the purpose of a trip

Additional documents: Average number of additional documents that were submitted by the applicants to obtain visas from the Consulate of Germany was seven, while the maximum registered amount of such documents was 17.

4. What was requested and what was received?

Visa validity period: 12,2 percent of the respondents at the Consulate of Germany obtained visas for a term of over 6 months and 9,2 percent of the applicants managed to obtain yearly visas.

5. Duration of stay in comparison with other Schengen states

6. Number of entries

The survey data showed that 50,2 percent of the respondents obtained single-entry visas, while the percentage of respondents who obtained multiple-entry visas was 42,4 percent.

7. Share correlation between multiple-entry and long-term visas

8. Visas without visa fee     

According to the survey, the amount of applicants who paid consular fees to the Consulate of Germany is 67,2 percent, while 32,0 percent obtained their visa free of charge.

9. Justifying expectations

The majority of applicants (96,5 percent) expressed their overall satisfaction with the results of the application process at the Consulate of Germany.

10. What the applicants say about the visa practice of Germany

The changes in the visa regime/ in the German Visa Centres introduced on 10 June 2013 considerably simplify the visa process for all citizens of Ukraine, and not only the ones who had obtained at least two Schengen visas for the last two years. Visa applicants from all over Ukraine do not have to travel to the Consulate of Germany in Kyiv and to wait in queues.

Sometimes the consulate has not understandable requirements such as: the necessity to provide a detailed handwritten explanation of a tourist trip day by day if the person wants to go as an individual tourist; the requirement to sign a paper that will prove the husband’s ability to support his wife’s trip even though the latter has its own means, proved by submitting bank statement. 

According to the independent monitoring outcomes provided by EWB in 2011-2013, the overall rating of the German visa policy (generated on the basis of visa applicants polling by the variety of parameters) is 5 among 20 Schengen zone countries investigated. This indicates a rather positive assessment by Ukrainian applicants compared to the most other Member States.

At the same time some spectacular cases harmed the image of German visa services in Ukraine, in particular scandalous visa refusals to prominent society leaders and intellectuals.

• For instance, there is the case of the very popular writer Irena Karpa who got a visa refusal from the Consular section of the Federal Republic of Germany in June 2012 despite having expired 5 passports consecutively and being 10 years experienced traveler throughout the world.
• Another “refusal visa story” occurred with the distinguished photographer Arthur Bondar who could not present his own photo exhibition at the Berlin Browse Photo Festival due to visa refusal of the German Consular section in May 2012.
• The anti-corruption NGO leader Olexiy Khmara (Head of TORO-TI, Transparency International coordinator in Ukraine) couldn’t participate in the Anti-Corruption Coordination Meeting, held by Transparency International, in Germany in October 2011.
• Roland Mikiani, Ukrainian-Georgian civic activist, one of the project leader of “Vladometr” (“Measuring the power”) checking politicians’ activities, member of the civic movement “Chesno” (“Honestly”), providing civic audit of all members and candidates for Ukraine’s parliament, couldn’t visit his brother, legaly residing in Germany, due to two consecutive visa refusals by German consulate in 2011 and 2012.

It is worth mentioning that in most of the cases described above the consular officers granted the visas in the end after they obtained further clarification of the situation because of the refusal story. Hence, these cases show that usually only law abiding citizens suffer from visa barriers.

The described cases provoked a widespread resonance in the society and were largely broadcasted by the media. Especially in view of the Visa Facilitation Agreement, entered into force in 2008 and enhanced in 2013. The Agreement foresees simplification of a visa procedure according to such parameters as: the duration of document processing, issuance of multiple-entry and longterm visas, free-of-charge visas and minimal number of documents required for a visa.

The effective implementation of the Visa Facilitation Agreement allows the so-called “positive visa record” applicants not only to use its advantages, but also to advance the EU-Ukraine visa dialogue. Thus, it is of utmost importance that the consulates of the EU Member States adhere to the main provisions of the Agreement more accurately . Particularly considering the fact that the Agreement itself bears advisory character and its implementation depends mainly on a consulate’s good will to implement those provisions. 

The EU Visa Code and actual challenges

In 2010, visa legislation was significantly changed and amended as a result of the EU Regulation № 810/2009 establishing a Community Code on Visas (Visa Code). This document, more known as the Visa Code, was approved by the EU Council on 13^th July 2009, entered into force on 5^th April 2010 and establishes the procedures and conditions for issuing visas for short stays on the territories of Member States. In the last four years of its implementation a lot of strong as well as weak points became clear which need to be adjusted and shall be addressed by the EU Commission.

In this regard the incident which occurred with seven Ukrainian tourists, detained in Germany, will be very much expressive. It indicates the existing gaps both in the Schengen Law and in the practice of enforcement. Controversial interpretation of Schengen rules, exercised by German police during this incident, creates a potential threat to more than 300.000 of Ukrainians who hold a Schengen multiple-entry visa.

This problem can be solved by amendments to the EU Visa Code, and it will require time and political will. However, the situation requires an immediate response, so it is important to create a judicial precedent that would plainly point out the inaccuracy of German officers.

As any field of law, the Schengen law contains several “weak links” and gaps which enable ambiguous interpretation or lack of clear provisions where they are needed. One gap is the regulation of the use of multiple Schengen visas. As it is known, such visas are issued to persons who require regular travels to the EU and have documentary evidence. Most of such visas are issued to persons who have regular business connections with partners in the EU and who carry out regular trips with the aim of keeping business (professional and public) contacts. For such persons, according to EU Visa Code (art. 24.2), a multiple Schengen visa is issued for a term up to 5 years and gives the right to unlimited number of short-term visits for a period not exceeding 90 days within half a year.

Obviously, during the validity term of such visa, its owner often has the need of travelling to the EU for purposes that differ from that specified during his paper work. For example, visiting relatives, acquaintances, or tourist trip. In principle, the existing multiple Schengen visa (category C) gives the right to stay on the territory of all Schengen countries with different aims of the visit within the specified deadline.

In addition to that, the same visa can contain “The aim of the visit” in the last column “Remarks”, (Comments or Remarks), which appears, as a rule, as a digital code, without decoding, and can often be quite baffling to the owner of visa. The following notes or their lack are determined by regulatory norms of the Member States (article 9b of the EU Visa Code provides the appropriate rights to the Member States).

For example, in the column “Remarks” on Schengen visas issued by consulates of Poland, the words “cel wydania” and code 01 means “tourist trip”, 02 – “guest trip”, 03 – “participation in sporting events”, 04 – “business trip, entrepreneurial activity”, 05 – “participation in cultural activities, and international conferences”, etc. At the same time, when the citizen is crossing the border, the guard has the right to verify whether the purpose of the trip corresponds with the one mentioned when filling in the visa papers. And such a test does not cause misunderstanding in the cases of a one-time visa, but causes problems for the owners of multiple visa, who may have problems not just when crossing the border but while staying on the territory of the Schengen zone.

Thus the problem lies in the fact that the actual Schengen Law lacks clear correlation between pluralities of entries (the purpose of multiple entry visas) and plurality of purposes of the journey. Obviously, the multiplicity of the purposes arises when the traveler holds a multiple-entry visa with a long period of validity. Exactly this legal gap constituted the legal ground for the actions undertaken by the German federal police.

The legal grounds for appeal against the police actions are the following: from the legal standpoint the Schengen Law does not specify categories of visas such as “touristic”, “private” or “business”. Also in general, the EU Visa Code does not include the definition or notion of the abovementioned categories. By definition, the EU Visa Code includes category “C” of the Schengen visa for short stay visits. However, a passport cannot contain two valid visas of category “C” even if the person is constantly taking short stay trips with different purposes.

According to the EU Visa Code, potential travelers do not have the right to possess two valid visas. Therefore Ukrainian tourists do not have the possibility to apply for parallel “touristic” Schengen visa once they have in their passport another Schengen visa, even if this visa has been issued for business purposes. Theoretically, tourists could apply for a new short term Schengen visa for tourism purposes. But in such a case the valid visa shall be annulled by the consulate, which is unacceptable for tourists.

The collision between conformity of journey purposes, declared during visa application procedure, and the need of travelling to the EU with different purposes during the period of validity of the visa caused the actions of the German Federal Police. The law should provide the possibility to possess two or three valid Schengen visas parallel.

The problem mentioned above could be solved partly through the creation of a judicial precedent that would foresee appeal of the affected persons to the Court of the Federal Republic of Germany. The final solution of this problem requires amendments of the EU Visa Code.

The problem revealed has broad civil relevance, as it creates a potential threat to more than 300.000 Ukrainians who hold a Schengen multiple visa, who use those visas within the frame of the Schengen Law, which does not directly demand justification of purposes for all visits.

The Embassy of the Federal Republic of Germany made a comment with regard to the incident, as follows:

“Upon the entry into the Federal Republic of Germany with a visa issued by other than the Germany Diplomatic mission or consular institution of the EU Member State and with other purpose than indicated in the visa, the following conditions are to be met:

• visa should be used for entry to the country of visa issuance with the purpose indicated in visa;
• visa type should be proven;
• documentary evidence of the purpose of the trip to the Federal Republic of Germany must be provided.

In case the visa was not used in conformity with the purpose of its issuance and very often visa owners have the need of travelling to another country of the Schengen Agreement but with another purpose, this type of visa shall be annulled and the applicant should submit his application to the consulate of the country of destination according to his purpose of stay.”

Hence, in order to ensure friendly and understandable visa practice, political will and readiness of consular departments’ officials is not enough. It is important that actual regulations are adjusted and coordinated on the EU level as well as on the level of the EU Member States’ national legislation. It shall be stressed that on one side the right to travel for citizens who are in need of regular trips to the EU depends on accurate implementation of the EU Visa Code regulations, on the other side it could promote perception of the EU Member States, including Germany, as countries with the truly highest law standards.