SAC on rules for mutual representation of states in issuing Schengen visas
The Czech Republic does not have diplomatic representation in all countries whose citizens are subject to visa requirements. The same applies to other Schengen member states. While this does not mean that citizens of those states cannot travel to the Czech Republic or other Schengen member states, they must nonetheless be prepared that the procedures for assessing their visa applications may not be carried out in a standard manner.
According to the European Visa Code Regulation (the Visa Code), Schengen member states should have consulates in all countries whose nationals are subject to visa requirements, and applicants for visa thus should not have to undertake an unreasonable effort to reach a consulate. However, the code also allows Schengen member states to enter into an agreement on the mutual representation in consular and visa matters with another Schengen member state. Such arrangements thus allow applicants to file an application for a visa in their country of residence without having to travel to a consulate in another state.
As a rule, such agreements authorise the representing state not only to accept the application, but also to attend to it, and to decide on issuing the visa. If the application is rejected and the applicant files an appeal against such a decision, the appeal procedure shall then be conducted by the administrative authorities of the state whose consulate had accepted the visa application and decided on it. The appeal procedure shall then be governed by the law of that representing state. Although it might seem that the interpretation of the Visa Code is quite clear in this respect, it is not always the case.
Recently, this issue appeared before the Supreme Administrative Court (SAC). In the dispute in question, an applicant for a Schengen visa filed the application with the Embassy of the Czech Republic in Islamabad, the reason for the application was a planned 14-day visit to Slovakia, which does not have its own embassy in Pakistan. In accordance with the Visa Code, the application was attended to by the Czech administrative authorities, which rejected it due to ambiguities. The case then proceeded to the Municipal Court in Prague, which reversed the administrative authorities’ decision because, in the court’s opinion, the embassy was not authorised to assess the reasons for rejecting the visa application and should have referred the matter to the relevant Slovak authority. The SAC disagreed with this view, referring to the Visa Code, the agreement between the Czech Republic and Slovakia, and the case law of the Court of Justice of the EU, and confirmed that the representing state is competent to issue the decision and to subsequently (judicially) review it. The SAC also answered in the affirmative the question whether such an approach was compatible with the fundamental right to effective judicial protection.
If an applicant decides to file a visa application with the consulate of a representing state and there is a bilateral agreement, they must be prepared that the application itself and any subsequent legal remedies will be dealt with by the authorities of that representing state, not of the state to which they intend to travel.
Finally, please note that applications for long-term visas cannot be filed with consulates of representing states: applicants for a long-term visa must always apply at the consulate of the state to which they wish to travel, even if this means having to travel outside their home state.