Appeals against visa and travel authorization refusal decisions: what will change in 2023

To date, the challenge of visa refusal decisions is "monolithic": regardless of the type of visa requested (short or long stay), it is necessary to present a compulsory prior administrative appeal (RAPO) to the Commission of appeal against decisions refusing entry visas to France (CRRV) within 2 months of notification of the refusal decision. This system has just been substantially modified by two decrees of June 29, 2022, published on July 1, 2022. This amendment has two objectives: 1 - Integrate into French law a mechanism for challenging travel authorization refusals set up by the European Travel Information and Authorization System (ETIAS - ESTA European Union) for nationals of States exempt from the visa requirement. This new mechanism will enter into force as soon as ETIAS is operational (currently scheduled for May 2023). 2 - Accelerate appeals against visa refusals, to the detriment of the guarantees offered to foreign nationals. The new rules for contesting visa refusals will apply for decisions taken as of January 1, 2023.

1. A redefinition of the compulsory prior recourses according to the type of visa or authorization.

Until now, the Appeals Commission against decisions refusing visas to enter France (CRRV) must be seized against all decisions refusing long or short-stay visas article (D. 312-3 CESEDA ).

This commission has limited power: either it considers that the refusal is justified, or it considers that the visa should have been issued and it simply recommends that the Ministry of Foreign Affairs issue the visa (D. 312-7 CESEDA).

The decrees of June 29, 2022 relating to the procedures for contesting refusals of travel authorizations and refusals of entry and residence visas in France modify the procedures for appealing against visa refusal decisions.

It will always be mandatory to present a prior appeal, but the authority in charge of this appeal and its powers will depend on the type of decision:

For long-stay visas, the Appeals Commission against decisions refusing entry visas to France (CRRV) will remain competent. The CRRV retains the same limited power: it can simply recommend to the Minister to issue a long-stay visa .

For refusals to issue short-stay visas and travel authorisations, it will now be the Deputy Director of Visas (General Directorate for Foreigners in France of the Ministry of the Interior) who will be competent. The Deputy Director will have access to a greater power since he will be able to "instruct the diplomatic or consular authority seized of the initial request to issue the short-stay visa or travel authorization requested".

2. A reduction of the prior appeal period from 2 months to 30 days.

Currently, the deadline for submitting a prior administrative appeal against a visa refusal is 2 months from receipt of the refusal decision (D. 312-4 CESEDA).

The new challenge procedure reduces this period to just 30 days from the decision to refuse to issue the visa or travel authorisation.

3. Hardening of access to the judge: strict deadlines and limitation of appeal.

Until now, the Administrative Court of Nantes - which has exclusive jurisdiction in visa matters - could be seized:

Either after an express response from the CRRV, even if it occurred several months after the prior appeal;

Or if the CRRV had implicitly rejected the request (2 months after referral).

And if the Court's judgment was unfavorable, it was possible to appeal to the Administrative Court of Appeal of Nantes.

The two decrees of June 29 considerably tighten the conditions for recourse to the judge:

The period of 2 months to seize the Court becomes unavoidable. To date, it is possible to seize the Administrative Court of Nantes either as soon as an implicit decision of rejection arises (2 months after the seisin), or within 2 months after the express response of the CRRV, even if it occurs several months after its referral. the judge: it will be mandatory to seize the Court within 2 months following the decision, whether implicit or express. And the additional "distance" appeal period becomes inapplicable. By definition, the person applying for a visa or travel authorization resides in a third country, outside of France. The general rules of administrative litigation grant these people an additional period of 2 months to appeal to the Court (article R421-7 CESEDA). The 2 decrees of June 29, 2022 set aside this additional period for appeals against visa refusals and authorizations of travel: it will be necessary to seize the Court in the 2 months which follow the decision (implicit or express) of the CRRV or the deputy director of the visas. The possibility of an appeal is removed for the appeals which concern short stay visas and travel authorizations. This means that the Administrative Court of Nantes will rule in first and last resort. After this judgment, only an appeal in cassation will be possible.

In conclusion: visa applications should be given special attention and prompt support in the event of refusal. Under the guise of simplifying procedures, new constraints are added and weigh on foreign nationals. For any questions, contact us:

Alexandre DELAVAY

E-mail : alexandre.delavay@delavay-avocat.fr

Such. : 33 66060939326