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Tuesday, May 21, 2024 | Back issues
Courthouse News Service Courthouse News Service

Visa Limit Doesn’t Apply to Foreign Workers in EU

(CN) - People living outside the EU but working within its borders won an exemption Thursday from strict re-entry rules that would limit them to three-month stays.

Under the EU's Schengen Agreement, foreign nationals not subject to visa requirements may move freely within Europe for a maximum of three months during the six-month period following first entry. Cross-border workers, however, can obtain local border permits entitling them to enter the neighboring member state and remain for durations determined by the two countries.

Hungary and the Ukraine agreed to let Ukrainian workers cross their common border, fixing the maximum stay at three months if the stay is uninterrupted. Hungarian law also prohibits Ukrainians from traveling outside the 18-mile border zone and deeper into Hungary.

In February 2010, border police in Hungary refused entry to Ukrainian national Oskar Shomodi who held a local border traffic permit. Officials determined Shomodi had spent 105 days in Hungary over a six-month period, exceeding his three-month allotment under the Schengen Agreement.

Shomodi sued Hungary's border police in a Hungarian court, and on appeal the country's supreme court asked the Court of Justice of the European Union whether Hungary's limit on total length of stay aligns with EU law. In its judgment Thursday, the Luxembourg-based court said the Schengen Agreement exempts local border traffic.

"[EU law] leaves to bilateral agreements the task of determining the maximum permissible duration 'of each uninterrupted stay,' subject to the three month limit," the ruling states. "That specification clearly distinguishes, as does the wording in which it is framed, between the limitation in time of local border traffic, on the one hand, and the 'Schengen limitation,' which is wholly unrelated to uninterrupted stays, on the other."

The justices also found that the spirit of the law "demands that its provisions be given an autonomous interpretation where the need arises."

"Both the objectives of that regulation and its provisions indicate that the EU legislature intended to put rules in place for local border traffic which derogate from Regulation No 562/2006," they wrote, referring to the law that lets border police refuse entry to foreign nationals who exceed the three-month limit.

"As the advocate general pointed out in point 52 of his opinion, the purpose of those rules is to enable the residents of the border areas concerned - while, at the same time, taking account of local, current and historical realities - to cross the external land borders of the European Union for legitimate economic, social, cultural or family reasons, and to do so easily - that is to say, without excessive administrative constraints - and frequently, even regularly."

The governments of Hungary and Poland had tried to emphasize the negative consequences on public order at stake, but the court noted that holders of cross-border traffic permits receive rights that are "neither unconditional nor absolute."

"In order to obtain such a permit, a person must have resided for at least one year in the border area of the neighboring country and that minimum residence requirement can be extended by a bilateral agreement," the justices wrote. "Moreover, there is nothing to prevent a bilateral agreement from specifying, as the maximum duration of uninterrupted stay, a period shorter than the three-month period laid down in [EU law], which simply marks the maximum permissible overall. Furthermore, the easing of border crossing is intended for bona fide border residents with legitimate and duly substantiated reasons for frequently crossing an external land border. In that regard, the competent authorities remain free to impose penalties on border residents who abuse or fraudulently use their local border traffic permit."

Cross-border permits furthermore entitle holders to move freely within the member state's border area for three months if the stay is uninterrupted, according to the ruling. Holders additionally have the right to a new three-month stay each time they cross back into their own countries, even if the crossings occur several times daily.

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