Can Third Country Nationals Be Banned From Schengen? Assessing Member State Unilateral Measures Against Russian Citizens and the Commission's Response

Russia's invasion of Ukraine in February 2022 led the European Union (EU) to take several measures to support Ukraine and sanction Russia. Still further measures have been discussed, including the question of whether Russians, and especially Russian tourists, should be banned from travelling in the Schengen area. Such a ban is supported by several member states but opposed by the majority, as well as the European Commission. Nevertheless, beginning in September 2022, the EU member states bordering Russia and Belarus—that is, Estonia, Latvia, Lithuania, Poland and Finland—have unilaterally imposed visa and entry restrictions on Russians. This article discusses the legality of those measures and assesses the Commission's response to them. It suggests that the unilateral Schengen restrictions contravene EU law and, further, that it would be legally and politically challenging to introduce a nationality-based ban mechanism into the Schengen acquis. However, despite the apparent incompatibility with EU law, the Commission has tacitly tolerated member state unilateralism. The article suggests reasons why the Commission may prefer tacit toleration to either legal accommodation or enforcement, while also sounding a note of caution about the risks to legal integrity that tacit toleration may entail.