This is a very common question, especially from frequent travelers. In many cases, having to return to the home country or country of residence to file a visa application can be a real problem. So, are there any exceptions to the general rule establishing that only applications from persons who reside legally in the jurisdiction of the competent consulate should be accepted?
Art. 5 of the Schengen Visa Code (SVC) set forth the rules to establish the competent Member State’s Consulate for examining and deciding on a visa application. The Handbook for the processing of visa applications published by the European Commission in 2014 provides for some examples and clarifications on how the rules can be applied.
Generally, an application for a multiple entry visa should be processed by the Member State that constitutes the usual main destination; i.e. the Member State of the most frequent destination or in case of absence of such a destination, the Member State of the first intended trip.
As a general rule, only applications from persons who reside legally in the jurisdiction of the competent consulate should be accepted. However, an application may be accepted from a person legally present – but not residing – in the jurisdiction of the consulate where the application is submitted, if he can justify why the application could not be lodged at a consulate in his place of residence. It is for the consulate to appreciate whether the justification presented by the applicant is acceptable. “Non-residing applicant” means an applicant who resides elsewhere but is legally present within the jurisdiction of the consulate where he submits the application. “Legally present” means that the applicant is entitled to stay temporarily in the jurisdiction on the basis of the legislation of the third country where he is present either for a short stay or when he is allowed to stay for a longer period of time while maintaining his permanent residence in another third country.
Generally, a third country applicant legally present in the territory of a Member State holds a document allowing him to circulate freely (a uniform visa, a residence permit, a national long-stay visa). However, situations may arise where a person legally present does not hold a document allowing him to travel to another Member State. Under such circumstances, the general rules on competence remain applicable.
Member States are not obliged to accept visa applications that they are not competent to examine and take decisions on, where the competent Member State is not present or represented. However, taking into account that under art. 5(4) of the SVC Member States shall cooperate to prevent a situation in which an application cannot be examined and decided, a Member State may, in the absence of the normally competent Member State, agree to examine such applications in individual, exceptional circumstances and take a decision on it for humanitarian reasons and after having obtained the agreement of the normally responsible Member State.
According to the Visa Code, (Article 18 (2)), if the consulate establishes that it is not competent to deal with an application after the application has been lodged, this information shall immediately be communicated to the applicant, and the entire application (application form and supporting documents) should be returned as well as the visa fee. The applicant shall be informed of where to submit the application.
Giuditta Petreni has over 10 years of experience in assisting companies and business investors with relocation of managers and staff to Italy. Giuditta has extensive experience advising corporate and private clients on a full range of Italian immigration categories. She is fluent in Italian and English.
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