European Institute

The EU’s drive to get all 27 member states included on the US Visa Waiver Programme (VWP) has run up against a wall. The view of multiple sources closely monitoring the dossier is that the US Congress will have to pass new legislation before Bulgaria, Cyprus, Poland and Romania will have any chance of joining the other EU23. Though some on Capitol Hill are sympathetic to their cause, nothing is likely to happen until 2011 at the earliest. Even if Congress changes the rules to make it easier for the EU4 to enter, they still need to be invited to join by the US administration and there is little indication that the Obama administration is interested in expanding the programme.

The VWP cannot, as the law is currently written, be extended to countries whose visa refusal rate exceeds 3%. Recently released figures from the US State Department for fiscal year 2010 provide little cause for optimism. Poland managed to reduce its rate from 13.5% to 9.8% compared to 2009 and has thereby crossed an important barrier: seven Central and Eastern European countries were added to the programme in 2008 when their rate dropped below 10%. Bulgaria’s refusal rate was 17.2%, down slightly from 17.8%, while Romania’s was 24.8%, down from 26.3% - but still a long way off the required 3%. Cyprus, whose rate rose from 1.4% to 1.7%, does meet the threshold. However, Cyprus’ entry is blocked by US concerns about its border control capacities, much of which derive from the island’s de facto partition into its Greek and Turkish Cypriot entities.

Bulgaria, Poland and Romania face one major technical obstacle that stems from Homeland Security Secretary Janet Napolitano’s decision to suspend the roll-out of the Exit system. Mandated by Congress, Exit would record biometric data - typically fingerprints and facial image - from all travellers departing US airports, the aim being to collate more accurate figures on who overstays their visit to the US. Napolitano is not convinced that Exit is worth the expense it would involve to set it up given that her department can already compile overstay figures with increasing accuracy using biographic data garnered from passenger manifests the airlines send it. Until a biometric-based exit system is in place, the visa refusal threshold will stay at 3%. If it is rolled out, an easier-to-attain 10% threshold will apply. The previous administration of George W. Bush pushed Congress to enact a 10% threshold as Bush wanted to make it easier to add Eastern European states to the VWP, largely to reward them for supporting him during the Iraq war.

There are two potential solutions that could help Poland in particular, and possibly Bulgaria and Romania, overcome this obstacle. The US Congress could scrap the mandate it has set to roll out a biometric-based Exit, or at least extend the deadline for implementing it. This would effectively raise the threshold to 10%. Alternatively, Congress could replace the visa refusal threshold with a visa overstayer threshold by stipulating, for example, that if fewer than 3% of a country’s citizens overstay their visa, they could be added. Senator Barbara Mikulski (Democrat, Maryland) is sponsoring a bill to use overstay instead of visa refusal as the key criterion, while Congressman Mike Quigley (Democrat, Illinois) has sponsored a bill that would raise the visa refusal threshold to 10%. These bills will not be passed this year but could be reintroduced in 2011 in the new Congress, which is being elected on 2 November. If this obstacle is overcome, the VWP aspirants will still have to fulfil various other criteria, such as sharing data with the US on lost and stolen passports, and having an adequate border security system. Even then inclusion is not guaranteed but rather lies at the discretion of the Obama administration.

ESTA TENSIONS GROW

Meanwhile, there is growing dismay in Europe over what increasingly looks like a progressive erosion of the visa waiver granted to the EU23. Since 8 September, all VWP travellers must pay a US$14 fee when they apply for the Electronic System of Travel Authorisation (ESTA), the granting of which is now mandatory to enter the US. The European Parliament and EU member states are beginning to pressure the EU executive to take a more robust stance in asserting the principle of visa reciprocity in its contacts with Washington. VWP membership allows citizens to visit the US for up to 90 days for business or tourism purposes without needing to apply for a visitors’ visa, which would cost them US$140. Given that US citizens visiting the EU do not need anything like an ESTA, nor do they pay any fee, the  visa waiver arrangement looks more and more lopsided.

Under the EU’s Regulation 2001/539/EC on visa reciprocity, the Commission could propose reintroducing a visa requirement for EU-bound US citizens in response to the current situation. It is reluctant to do this, however, fearful this could further aggravate tensions and trigger an all-out visa dispute. But Washington’s imposition of a US$14 fee for ESTA makes it harder for the Commission to argue, as it has done until now, that ESTA is not a visa. The US Congress, not the administration, mandated the US$14 fee, although the administration did not object to it. Ten of the fourteen dollars charged for the ESTA go towards a new fund to promote more tourism to the US, while the remainder covers the costs of operating ESTA.

EU and visa reciprocity

Apart from the US, Australia, Brazil, Brunei and Canada are the other countries with which the EU does not have full visa reciprocity, according to the Commission’s most recent report dated 19 October 2009. While the situation with the US is the most problematic, Canada’s reintroduction, in July 2009, of a visa requirement for Czech citizens has also caused tensions. Ottawa’s move came in response to a sharp increase in the number of Czech Roma applying for asylum in Canada.