Questions & Answers: Commission Guidance on travellers exempted from the temporary restriction on non-essential travel to the EU
Why is the Commission issuing new guidance?
In response to the coronavirus pandemic, the EU has put in place a restriction on non-essential travel to the EU mid-March 2020. The Commission set out categories of persons that should not be covered by these restrictions. Following a Commission proposal, the Council adopted on 30 June 2020 a recommendation on the gradual lifting of the temporary restrictions on non-essential travel into the EU, including an initial list of countries for which member states should start lifting the travel restrictions at the external borders. A coherent approach to interpreting which categories of travellers are exempted from the restrictions is essential. The guidanceSearch for available translations of the preceding link issued today intends to help Member States ensure coherent implementation.
Will the Guidance be binding?
No. This document provides guidance to help Member States implement the Council Recommendation on the temporary restriction on non-essential travel to the EU as regards exempted travellers. It lays the basis for united action, and Member States are responsible for its implementation. The Commission calls on Member States to follow the approach set out in the guidance. Good management and control of external borders is in the interest of all EU Member States.
At the same time, where the Guidance refers to EU legislation already in force, such as the Free Movement Directive, such law is fully applicable.
What are the next steps?
Where the guidance goes beyond existing obligations under EU law, it is now up to Member States to follow the approach set out in this guidance, and if necessary, to make any adjustments in handling exempted travellers to bring their practices in line with the guidance.
What restrictions on travel to the EU are currently in place and to whom do they apply?
A temporary restriction on non-essential travel to the EU is currently in place from most non-EU countries.
The Council has adopted a list of non-EU countries from where travel should be possible. The Council is keeping the current restrictions under review, and where relevant updates the list, based on the evaluation of the health situation. Travel restrictions remain in place for residents of non-EU countries that are not on this list.
In any case, the restriction is not an outright travel ban: EU citizens and long-term residents as well as their family members should be allowed to travel to Europe, even if the non-EU country where they reside is not on the list. The same applies for those who have an essential reason to come to Europe.
Will the list of non-EU countries subject to travel restrictions be revised soon? Who is responsible for updating this list?
The Council should review the list every two weeks, and where relevant, update it, after close consultation with the Commission and the relevant EU agencies and services. This does not mean that the list is adapted every two weeks, but that the situation should be reviewed in order to decide whether a change of the list seems necessary or appropriate. To this end, the European Centre for Disease Prevention and Control (ECDC) provides the Council with an updated data set for all non-EU countries every week.
Decisions on adapting the list are in the hands of Member States and Schengen Associated Countries.
Which categories of persons are exempted from the travel restrictions?
Under the Council Recommendation, where temporary travel restrictions continue to apply to a non-EU country, EU citizens and residents, as well as their family members should be exempted from the travel restriction, independent of the purpose of travel.
In addition, travel should be allowed for specific categories of travellers with an essential function or need. These include:
- Healthcare professionals, health researchers, and elderly care professionals;
- Cross-border workers;
- Seasonal agricultural workers;
- Transport personnel;
- Diplomats, staff of international organisations, military personnel and humanitarian aid workers and civil protection personnel in the exercise of their functions;
- Passengers in transit;
- Passengers travelling for imperative family reasons;
- Seafarers
- Persons in need of international protection or for other humanitarian reasons
- Non-EU nationals travelling for the purpose of study;
- Highly qualified non-EU workers if their employment is necessary from an economic perspective and the work cannot be postponed or performed abroad.
The Commission guidance of 28 October 2020 does not change this list but intends to help Members States apply it in a coordinated manner, based on a common interpretation.
Can a Member State refuse access to its territory to a traveller who should be exempted from the travel restrictions?
Yes. Under the Schengen rules, Member States should assess on a case-by-case basis whether a non-EU national is to be considered a threat to public health. In this context, Member States should ensure close cooperation between border guard authorities and transport providers.
Family members of EU citizens should be allowed to enter the EU. Who can be defined as a “family member”? Does this include unmarried partners?
In the case of EU citizens living in a Member State other than their Member State of nationality, under EU free movement law, the definition of “family member” includes:
- the spouse;
- the registered partner;
- the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner (notably underage children);
- the dependent direct relatives in the ascending line and those of the spouse or partner (notably dependent parents).
Under EU law, such family members, including partners in a registered partnership, have a right of entry into the EU to accompany or join their EU citizen family member.
In addition, Member States must facilitate, in accordance with their respective national legislation, the entry of partners with whom the EU citizen has a durable relationship, duly attested. That means that people in such durable relationships do not have an automatic right of entry but Member States should undertake an extensive examination of their personal situation.
More information on durable partners of EU citizens living in a Member State other than their Member State of nationality can be found in the 2009 Guidance for better transposition and application of the Free Movement Directive.
In the case of EU citizens living in their Member State of nationality, the Recommendation encourages Member States to apply the same definition of family members. The entry of unmarried partners (in a registered relationship or not) will be determined in accordance with the national law of the respective Member State, and the Recommendation encourages Member States to treat such unmarried partners like those of mobile EU citizens explained above.
What evidence can Member States ask unmarried partners to submit?
To assist Member States in implementing the exemptions from the travel restrictions, the guidance provides examples of possible evidence they can request unmarried partners to submit. This includes:
- joint declaration of the partners on their relationship;
- proof of previous meetings (e.g. by passport stamps, travel documents etc.);
- joint lease contract, joint bank account, common investment;
- minimum duration of the relationship if there are national criteria in this respect.
Do unmarried partners need to prove the duration of their relationship to be exempted from the travel restriction? Is there a minimum duration to be considered “durable partners”?
There is no minimum duration in the Council Recommendation for a relationship to be considered “durable”. Nevertheless, Member States can impose a minimum amount of time as a criterion for whether a partnership can be considered as durable. In this respect, the Commission, in its guidance, points out that consideration should be given to the fact that the travel restrictions have been in place for over 6 months now and will possibly continue into 2021.
Are passengers transiting through the EU covered by the travel restrictions? How long can the transit last and what evidence is required?
Non-EU nationals holding a valid entry permit for the country of destination (e.g. uniform visa), irrespective of their nationality, who need to transit via the EU should be allowed onward transit while travelling to their country of origin or EU country of residence, and allowed a reasonable/realistic duration of transit (an overnight stop might be needed). Given the reduced availability of direct commercial flights, ‘onward transit’ should cover any means of transportation.
What can be considered an “imperative family reason” and how can this be attested?
As no exhaustive list of possible imperative family reasons can be established, this category should be interpreted broadly and assessed on an individual basis. It could include travel for custodial or visiting rights for a child as well as the school attendance of a child, emergency help for a family member, wedding of the person travelling or of a close family member, birth or funeral of a family member. The possible evidence can include a wide variety of different documents, such as proof of custodial right of the child, proof of residence of the visiting parent and visited child, wedding publication and invitation, certificate of expected date of delivery, birth or death certificate.
Can Member States ask exempted travellers to take a coronavirus test and/or quarantine upon arrival?
Under the Council Recommendation, Member States can take appropriate measures such as requiring persons exempted from the travel restrictions to undergo self-isolation or similar measures when returning from a non-EU country for which the temporary travel restriction is maintained, provided that they impose the same requirements on their own nationals.
Will the Commission propose to exempt more categories of travellers from the restrictions on travel to the EU?
The Commission will keep the situation under review, including as to whether further exemptions might be required to contribute to the continuation or resumption of economic activity within the EU, while having the epidemiological situation both in the Member States and in non-EU countries in mind.
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