1 tourists and immigration visas and border control under irish and eu law - should ireland join the...
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Tourists and Immigration
Visas and Border Control under Irish and EU Law - Should
Ireland join the Schengen Zone for the sake of Tourism?
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Marc McDonald
School of Hospitality Management and Tourism
Dublin Institute of Technology
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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
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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
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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?
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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
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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
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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 …
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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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.
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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
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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?
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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?
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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
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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
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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