Nationality-Based Bans from the Schengen Zone: Dissecting a Populist Proposal and Its Unlawful Implementation by Poland and the Baltic States

We demonstrate that there is no legal way under current EU law to adopt a citizenship-based ban against Russians and Belarusians acquiring Schengen visas and entering EU territory. Further amending the law to allow for a citizenship-based ban could go against the core values the Union is based upon, pitting populist proposals against the Rule of Law. This is the reason behind the move by the Baltic States and Poland to implement a de facto ban at the national level illegally using Russian citizenship as a ground for refusal of entry in breach of EU law, following their defeat in Council on the matter. The necessity of other Member States and institutions of the Union to put sufficient pressure to save the Schengen system from unlawful populist fragmentation emerges as an imperative in current circumstances. The Union’s strength is precisely in its inability to act along the populist lines the ban implies, rather than one of its weaknesses, as conveyed by the alarmist agitation of the Baltic States and Poland. Central to the citizenship-based travel ban is a replacement of reason required by the Rule of Law with randomly assigned retribution, on the face of it unrelated to any legitimate aims that could be achieved by the measure. The replacement of the Rule of Law with retribution, in turn, counterproductively strengthens Putin’s totalitarian regime. Initial attempts of adding Belarusians to the proposed visa ban are particularly cynical and should receive much stricter scrutiny still, given the climate of repression in the country that is not at war with Ukraine and has not even recognized the annexation of Crimea. We demonstrate that the whole debate around the visa ban, as well as the Union’s de facto powerlessness in the face of the Member States’ arbitrary replacement of the law with hateful citizenship-based retribution is a stress test of the Rule of Law in the EU.