The immigration executive order signed by the new US President Donald Trump late January created a chain reaction throughout the world. It has been temporarily halted by a court ruling, but a new similar executive order is expected to be issued by President Trump in the coming days.
The Belgian Government expressed its disagreement with the anti-immigrant sentiment of the order stating that “Belgium will not be following this example”. Furthermore, the press reported that US Visa for Belgian Citizens could be suspended from the American visa waiver program because the country is seen as an origin country or transit point for potential terrorists. Naturally, this caused great concern in the local community.
DOES THIS CONCERN ONLY BELGIUM?
No. Firstly, it must be noted that all countries belonging to the US visa waiver program (VWP) are constantly being monitored by the US Department of Homeland Security (DHS) to ensure that nationals travelling via the VWP do not jeopardize the security of the United States. In addition, every two years a very thorough assessment is conducted to evaluate each country’s’ counterterrorism, law enforcement, immigration enforcement, passport security and border management capabilities.
Secondly, the US executive order clearly stresses that the DHS must conduct a global country-by-country review of the quality of the information provided by countries in the context of the VWP. These reviews are likely to become more rigid with the new US administration, but this will not necessarily lead to a suspension of the program.
Thirdly, in spite of the security-oriented language of the executive order, it must be noted that the VWP is a Congressional competence. Thus, it cannot be amended without Congress’s approval.
CAN THE US UNILATERALLY RESTRICT VISA FREE TRAVEL FOR EU VISA WAIVER COUNTRIES?
If such a review shows an unsatisfactory level of cooperation between Belgian and US authorities, Belgium will be asked to make extra efforts to adjust to the demands of the US. The dialogue between the two countries will continue until, ideally, an appropriate solution is found for both parties.
Whereas these bilateral talks exist and are very necessary, a third actor would come into play if a decision to suspend visa-free travel for Belgians (or any other EU nationals) were taken by the US: the European Union (EU). Indeed, Belgium is part of the EU and also of the Schengen Area. Therefore, it is subject to the common visa policy for short stays developed by the EU.
This common visa policy is based on the principle of reciprocity, which means that, usually, all countries whose nationals can travel without a visa to the EU/Schengen, must grant all EU citizens visa-free travel in return. A divergence already exists between the US and the EU on this topic. This is because, for the time being, citizens of Bulgaria, Croatia, Cyprus, Poland and Romania require a visa to travel to the US, and therefore do not enjoy similar rights as other EU nationals with respect to short-term travels to the US. Despite the substantial political and technical negotiations in the last years, the US has not moved towards lifting the visa requirements for these EU citizens.
So, stretching this defective reciprocity even further by suspending US Visa for Austrian Citizens-free travel for Belgians could not go unchallenged by a reaction at EU level.
SHOULD BELGIAN CITIZENS BE WORRIED?
In the meantime, the wisest thing to do is wait and see how discussions between the US and Belgian authorities unfold. No major developments are expected in the near future. Fragomen will nevertheless monitor this process closely and provide information about any possible changes in the visa regime.
For further information on this topic, please contact Jo Antoons, Christine Sullivan or Andreia Ghimis at Fragomen’s Brussels office.
