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					AARMS                                                                                            SECURITY
Vol. 10, No. 1 (2011) 103–113



                            European Union’s visa policy
                                              LÁSZLÓ LIPICS

    Police Station, K szeg; Student at the Doctoral School of the Zrínyi Miklós National Defence University


In this article we can read about an outline of the history of the development of the
European Union’s visa policy and its place in legislation. By briefly outlining the
integrated border security system, was described the role that visa policy plays in it.
The author has established that the individual elements of the system cannot combat
illegal migration on their own; they mutually influence one another. We can read about
the future changes in visa policy, and the role of Stockholm Programme in this change.
Such as, this document promotes the conclusion of visa facilitation agreements.

Since 19 December 2009 the citizens of three Balkan countries (Macedonia, Serbia and
Montenegro) have been entitled to visa-free travel to the member states of the European
Union. (Albania, Bosnia and Herzegovina will join to the visa-free travel area from
autumn of 2010.)
    The news about the resolution appeared in the papers immediately after it was
adopted at the end of November,1 but the official version was only published mid-
December, the day before it took effect.2 Naturally, the fact that the visa requirement
exemption should only apply to holders of the new, biometric passporti (when entering
the EU or the Schengen area) was not discussed by the press in detail.
    Second reason of my article, the new Community Code on Visas,3 which has
already entered into force but has not been fully implemented has brought about a
number of changes concerning visas. For example, it should be highlighted that transit
visas have been abolished.
    It has been emphasized by the EU for a long time that its expansion and enlargement
has not stopped, it has only slowed down. This was confirmed by the Commission of
the EU in 2008 when it recommended the attention of the European Parliament and the


iBiometric passport: passport which contains a storage medium of biometric identifiers. The storage medium
shall contain primary (holder’s surname and given name, place and date of birth, sex, nationality, facial image
and signature; the type and number of the passport, the dates of its issue and expiry, the code of the issuing
state, the issuing authority; the set of data suitable for automatic processing which makes it possible to
identify the nationals and the passports) and secondary (fingerprints) identifiers. [The ones in italics are
recognised by Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security
features and biometrics in passports and travel documents issued by Member States as biometric identifiers].


Received: November 24, 2010

Address for correspondence:
LÁSZLÓ LIPICS
E-mail: laszlo_lipics@yahoo.de
L. LIPICS: European Union’s visa policy




Council to the Western Balkans.4 The process of enlargement is like a game of chess in
which the waiver of visa requirement is one move.
    My hypothesis is that the visa policy of the EU has a great impact on the other
elements of the integrated border security system. This statement makes it clear even for
those who are not experts in this field that visa policy is one of the elements of the
integrated border security system. Visa policy is closely related to migration and asylum
policy as well but we do not intend discuss these issues in this paper.

                 1. Visa policy in the legal system of the European Union

On 14 June 1985 five member states of the EU concluded an agreement in Schengenii
“on the gradual abolition of checks at their common borders”. Through this agreement,
among other long-term measures, a programme was defined to assist the security
measures the introduction of which the abolition of common borders (internal borders)
would entail. The long-term measures in the treaty laid down the programme
implementing the (compensatory) measures introduced to balance shortfall in security
due to the final elimination of border controls at the internal borders. This programme
makes it possible to abolish the controls at the internal borders entirely. Incredible as it
may be, the visa policy of the EU is based on this treaty because on 19 June 1990 the
Convention Implementing the Schengen Agreement (CISA)5 was concluded, in order to
undertake the long-term measures included in the agreement. The convention devotes a
whole chapter to visas and asserts:
    “The Contracting Parties undertake to adopt a common policy on the movement of
persons and, in particular, on the arrangements for visas. They shall assist each other to
that end. The Contracting Parties undertake to pursue through common consent the
harmonisation of their policies on visas.”
    The convention authorised the Executive Committee to precisely define the ways of
implementation. This was published in a decision,6 the annexes of which give us the list
of the states whose citizens are subject to a visa requirement, of the diplomatic, official
and service passports, the holders of which are exempt from the visa requirement and of
the countries whose citizens are subject to an airport transit visa requirement.
    Through the Amsterdam Treaty, which further enhanced the deepening of European
integration, the Schengen acquis was incorporated in the EU legislation. Visa policy,
asylum, border controls at the external borders, immigration and cooperation in civil
law issues became Community policies.

ii Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of

Germany and the French Republic on the gradual abolition of checks at their common borders.




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                                                          L. LIPICS: European Union’s visa policy




    Which EU policy covers the problem of visas? The answer to this question has been
changing together with the major treaties. Visa policy traditionally belongs to
cooperation in the field of Justice and Home Affairs, which the Treaty of Rome did not
provide for. The Maastricht Treaty signed in 1992 institutionalised this
intergovernmental cooperation, which meant the third pillar of the EU before the
Amsterdam Treaty entered into force. The third pillar defined the cooperation of
member states in nine areas, but visa policy was not mentioned in any of the titles. After
the Amsterdam Treaty entered into force, it was transferred into title IV of the first
pillar. (Visas, asylum, immigration and the free movement of persons, civil law
cooperation) and at the same time the third pillar was also renamed (Police and Judicial
Cooperation in Criminal Matters). The General Provisions of the Treaty on the
Functioning of the European Union7 modified according to the Lisbon Treaty (called by
certain sources ‘Constitution’) lists the principal areas in which shared competence
between the Union and the Member States applies:
    (a) internal market;
    (b) social policy, for the aspects defined in this Treaty;
    (c) economic, social and territorial cohesion;
    (d) agriculture and fisheries, excluding the conservation of marine biological
        resources;
    (e) environment;
    (f) consumer protection;
    (g) transport;
    (h) trans-European networks;
    (i) energy;
    (j) area of freedom, security and justice;
    (k) common safety concerns in public health matters.
    Title V of the Treaty became “Area of Freedom, Security and Justice” with such a
detailed regulation (containing the former first and third pillar areas as well) that we can
state that the pillar structure created by the Maastricht Treaty ceased to exist. Chapter 2
under this title is on “Policies on Border Checks, Asylum And Immigration”, which
includes the policy on visas as well.
    According to this document, the EU will develop a policy with a view to ensuring
the absence of any controls on persons when crossing internal borders, carrying out
checks on persons and efficient monitoring of the crossing of external borders and also
the gradual introduction of an integrated management system for external borders.




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L. LIPICS: European Union’s visa policy




    For the purposes of achieving the aims defined by the Union, it authorises the
European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, to adopt measures concerning:
    (a) the common policy on visas and other short-stay residence permits;
    (b) the checks to which persons crossing external borders are subject,
    (c) the conditions under which nationals of third countries shall have the freedom to
        travel within the Union for a short period;
    (d) any measure necessary for the gradual establishment of an integrated
        management system for external borders;
    (e) the absence of any controls on persons, whatever their nationality, when crossing
        internal borders.
    If we try to define the position of the policy on visas in a linear way, it will look the
following: The Committee of Permanent Representatives (COREPER) is subordinated
to the Justice and Home Affairs Council (JHA). The Strategic Committee on
Immigration, Frontiers and Asylum (SCIFA) functions as a sub-committee to
COREPER. Incidentally, non-EU states such as Norway, Iceland and Switzerland also
participate in the work of this committee as members of the Convention Implementing
the Schengen Agreement but they do not have a voice either in the visa policy of the EU
or in any of the scopes of authority of the committee.
    As Jana GašparoviQová and Robert Odler point it out in their article,8 community
visa policy, however, has its shortcomings, too: “...the present visa policy means
undifferentiated access. While agreements have been concluded with a number of third
countries to facilitate the issue of visas, community visa policy only offers the solution
to the problem of general visa requirement or visa exemption for third country
nationals. From a security perspective, non-visa nationals arriving from third countries
are not subject to any kind of preliminary border checks before arriving at the border.”
    The list of the countries for which visa requirements are prescribed by the EU can
be found in a Council Regulation.9 It is the task of public officials (police officers,
border guards, customs guards) who carry out border control tasks at the external
bordersiii to decide which persons they authorise to enter the European Union. For this
they have to know which countries fall under the regulation. This could be complicated

iii
  According to Article 2 (2) of Regulation (EC) No 562/2006 of the European Parliament and of the Council
of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across
borders (Schengen Borders Code) external borders are: the Member States’ land borders, including river and
lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not
internal borders. Internal borders are: the common land borders, including river and lake borders, of the
Member States, the airports of the Member States for internal flights and sea, river and lake ports of the
Member States for regular ferry connections.




106                                                                                     AARMS 10(1) (2011)
                                                                    L. LIPICS: European Union’s visa policy




because the amendments are rarely consolidated (the last time this was done was almost
three years ago),iv so border guards need to search the list if the person who wishes to
enter is from a country they rarely have travellers from. (In such cases, it is difficult not
only to establish whether there is a visa requirement but also to verify the genuineness
of the travel document, but this is not the subject matter of the present article.)
    Based on the Regulation, the European Union divides third countriesv into two large
groups. The first one includes third countries whose nationals must be in possession of
visas every time they cross the external bordersvi and other states whose nationals are
exempt from that requirement for stays of no more than three monthsvii if not engaging
in gainful employment.
    This regulation applies mainly to holders of private passports as it is allowed by the
Regulation and the member states also use the opportunity to give exemption from the
visa requirement. This circle of those enjoying this opportunity includes first of all
holders of diplomatic, service and other official passports and passports issued by
intergovernmental international organisations for their officials but it also concerns
persons in transit present in the territory of the Union for a short time such as crews of
aircraft and ships.
    However, until recently, visa nationals of third countries who are holders of
diplomatic and service passports have been able to learn which EU state they have to
apply for a visa authorising entry only from the Common Consular Instructions set up
by the Schengen Executive Committee. This is also changed by the Code of Visas
because it repeals the CCI.

                           2. The integrated border security system

The appearance of the integrated border security system in the policy of the EU fits into
the Schengen process. Based on the experience gained during the foregoing period, in
2002, the Working Party on Schengen Evaluation compiled ‘The Catalogue of
recommendations for the correct application of the Schengen acquis and best practices’.
The Integrated Border Management model presented by the Catalogue comprises four
complementary tiers.

iv January 19 2007 2001R0539 – EN – 19.01.2007 – 005.001— 1 (contains 6 amendments and 1 correction).
v “third-country national” means any person who is not a Union citizen. Every person holding the nationality
of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace
national citizenship. Consolidated Version of the Treaty Establishing the European Community. The Official
Journal of the European Communities, C 115/13 09/05/08 Article 9.
vi Visa Regulation Article 1. §1.
vii Visa Regulation Article 1. §2.




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L. LIPICS: European Union’s visa policy




    The comprehensive border management model is an important instrument in
preserving internal security and, most importantly, in preventing illegal migration. By
accepting the Integrated Border Management (IBM) model, which is in harmony with
the Hague Programme,viii the European Community created community border
policing, i.e. a completely new border control policy, thus capable of creating a uniform
system of concepts and way of thinking.
    The necessity for creating a new Hungarian border management system was
discussed by Lajos Kiss in his competition essay.10 The creation of the Hungarian
integrated border security system, however, was carried out fairly early, during the
preparation for the accession to the European Union, accepting the Community policy
concerning border security, for the creation of which the government produced a
programme,ix thus declaring its intentions. The Hungarian system seems to go beyond
the original four tiers (1. Activities in third countries, especially in countries of origin
and transit, including the collection of information by liaison officers; 2. International
border cooperation; 3. Measures at the external borders: border management; 4. Further
activities inside the territory of the Schengen States and between Schengen States;) in
being divided into several smaller sections, as follows:11
    1. political, economic and other tools of reference in handling migration;
    2. application of a uniform visa system;
    3. seconded document experts and advisors;
    4. employment of liaison officers;
    5. the responsibility of transport companies;
    6. the border control systems of transit countries affected by illegal migration;
    7. safe third countries;
    8. controls at the external borders (strict border surveillance and uniform border
        checks);
    9. the system of compensatory measures within the territory of the country;
    10. policing activities at the internal borders
    Thus, it is evident and I have also referred to this fact in the introduction to the
present article that visa policy is proclaimed to be an element of the integrated border
security system. The particular elements involved in it cannot function in isolation, i.e.
they cannot prevent illegal migration; they can only attain the desired objective, the
prevention of irregular immigration in interaction.

viii In November 2004 the European Council accepted the document titled The Hague Programme, which defines

ten priorities for the following five years in order to reinforce the field of freedom, security and justice.
ix Government Decision 2013/2001. (I.17.) on the realisation of the unified border control system in relation

to the accession to the European Union.




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                                                                    L. LIPICS: European Union’s visa policy




    The tree key factors of visa-waiver are: the consideration of the possibilities of
combating illegal immigration, the public safety considerations of the EU and the
international relations between the EU and the country concerned and within the region.
We must admit, though, that visa policy has a twofold nature; its aims include both the
fight against illegal immigration and crime (e.g. people smuggling, illegal employment,
organised crime) and the promotion of legal border crossing.x These issues will
manifest in the integrated border security system through visa policy and vice versa, i.e.
the operation of border security systems is also taken into consideration when the visa
policy is being shaped.

                            3. Changes to be expected in visa policy

Hungary sets a precedent concerning the promotion of the EU integration of the Balkan
states, also because, this region can be considered as a geostrategic element in foreign
policy. This possibility has been examined by several research institutions since 2006,
and, based on the summary of the results of the research12 the analyses are expected to
be finished in 2011. One of the conclusions drawn by this document is that it is well-
founded and practical to support the Euro-Atlantic integration of all the states of the
region continuously, without preferences. As it has been mentioned at the beginning of
this article, one of the steps towards integration is the decision about visa facilitation or,
in the present case, about the visa exemption.
    The West-Balkan countries that have started negotiations, i.e. Albania and Bosnia-
Herzegovina are likely to join the previous three states in summer 2010. The visa status
of Kosovo, however, is uncertain. It has common borders with Albania, Macedonia and
Serbia and is situated near Bosnia-Herzegovina. All these countries were given a visa
exemption for their nationals because they had made their first steps on the road
towards integration. If Kosovo does not gain a visa exemptionxi by the time the above
mentioned countries accede to the EU, its nationals will be closed up in a country with a
hardly operating state and high unemployment.




x Public Hearing on the New Community Code on Visas Wednesday, 28 February 2007, Brussels
(OJ\654298EN.doc PE 384.593v02-00) p. 2–3.
http://www.europarl.europa.eu/meetdocs/2004_2009/documents/oj/654/654298/654298en.pdf
downloaded 01.03.2010.
xi Their visa requirement results from the fact that it was not recognised by all the EU member states; See

Council Regulation (EC) No 1244/2009 of November 30 2009, Article 1.




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L. LIPICS: European Union’s visa policy




    However, the Stockholm Programme13 emphasises that the entry into force of the
new Visa Code and the gradual roll-out of VISxii will provide greater consistency and
effectiveness in the area of security. It also admits that visa policy is an important lever
of the Union’s external policies. Consequently, it must become part of a broader vision
that takes account of the different priorities of internal and external policy. In the
strategy worked out by the Swedish presidency (bearing liberalism in mind) it has also
been laid down that the conclusion of new facilitation agreements for the issuing of
visas should be promoted. The availability of biometric passports will be a precondition
for concluding such agreements, and visa facilitation negotiations will also have to
address readmission of illegal irregular immigrants.
    The new security strategy also responds to the issues raised by Jana GašparoviQová
et al. (see the chapter titled ‘A vízumpolitika az Európai Unió jogrendszerében’ [Visa
policy in the judicial system of the European Union]), by discussing the proposition that
the decision to issue a visa should gradually move from the presumption of risk
associated with the applicant’s nationality to an assessment of individual risk. This
development will necessitate the introduction of systems that allow the collection of
advance information on individuals wishing to enter the European Union.
    With regard to the programme, the Federal Ministry of the Interior of the Federal
Republic of Germany acknowledges the importance of visa policy, stating that it is closely
related to security and migration issues. It makes it possible to realise the objectives of
foreign and Community policy (e.g. West Balkan, European Neighbourhood Policy and
Eastern Partnership), which are also combined through visa policy.14
    Visa policy will probably be affected by the Visa Information System entering its
fully operational phase, as, through continuous collection and exchange of data it could
establish, in accordance with the Stockholm Programme, the reliability of individuals
and, in accordance with the regulations, the reliability of particular countries, i.e. it
could provide a kind of feedback. Similarly to the SISII programme, the greatest
disadvantage of this information system is that it is not operable. Although there is a
Council Decisionxiii about its establishment and the regulation15 is also in force, the
Commission has not defined the date on which the system should be operable.
    The introduction of automatic border control systems may also affect visa policy.
We have been informed of automatic gates, Unmanned Aerial Vehicles, even satellite


xii The Visa Information System (VIS): A system for the exchange of visa data between Member States,
which enables authorised national authorities to enter and update visa data and to consult these data
electronically. [Council Decision of 8 June 2004 establishing the Visa Information System (VIS)
(2004/512/EC)].
xiii Council Decision of 8 June 2004 establishing the Visa Information System (VIS) (2004/512/EC)




110                                                                             AARMS 10(1) (2011)
                                                          L. LIPICS: European Union’s visa policy




border surveillance tools but the Stockholm Programme emphasizes biometrics. Frontex
has already carried out an analysis of the experience related to them,16 stating that at the
Amsterdam Airport, for example, the failure rate was only 1.5%.
    The so called Blue Book,17 which offers facilitated employment visas and long-term
residence permits for highly qualified third country nationals if they wish to take up
specific professions in areas where it is considered by the Member State concerned that
there is a particular lack of available workforce, fits into the visa policy (and
immigration policy) of the EU. The most difficult application criterion to be fulfilled is
the one-year work contract or binding job offer with a salary threshold, which has be at
least 1.5 times the average gross annual salary in the Member State concerned. Another
obstacle could be the presence of free quota (if defined) in the country concerned. If the
applicant meets all the criteria, they are issued with a blue card, similar to the US green
card, which is valid for a 1–4 year period and grants entry and residence. For the first
two years the applicant has to work for the employer who made the offer; after the first
two years they can have free employment in all the member states. According to the
Directive, the deadline for the transposition of the Directive into the member states’
national law is June 19 2011.

                                           Summary

In this article, I have given an outline of the history of the development of the visa
policy of the European Union and its place in legislation. I think we can declare that
Community visa policy is also one of the instruments in a broader sense by which the
European Union intends to achieve its objectives in security policy. Furthermore, it is
closely related to its neighbourhood policy and to the development of its foreign policy
and external economic networks.
    However, I do not think that we should accept the definition formulated within the
Hungarian strategy18 concerning visa policy, according to which “visa policy and the
issuing of visas constitute the first element of migration policy.” On the basis of the
structure of the Treaty, I maintain that visa policyxiv is closely related to migration (or,
according to the Treaty, immigration)xv and asylum policy,xvi but they are coordinated,
not subordinated. If we look for subordination, visa policy is subordinated to border




xiv Treaty. Article 77. paragraph (2 a).
xv Treaty. Article 79. paragraph (1).
xvi Treaty. Article 78. paragraph (1).




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L. LIPICS: European Union’s visa policy




control policy. The second half of the sentence quoted from the government decision,
however, is true; in the Treaty, issuing visas is subject to migration policy.xvii
    By briefly outlining the integrated border security system, I have described the role
that visa policy plays in it. I have established that the individual elements of the system
cannot combat illegal migration on their own; they mutually influence one another.
    With regard to future changes in visa policy, I have stated that the greatest change
will be brought about by the liberal approach presented by the Stockholm Programme.
This document, on the one hand, promotes the conclusion of visa facilitation
agreements; on the other hand, it tends to shift the emphasis from the presumption of
risk posed by certain countries to the risk assessment related to individual applications
and border crossings.

                                              References

  1. Uniós vízummentességet kap három balkáni ország (based on a source of MTI, the Hungarian News
     Agency)        http://www.origo.hu/nagyvilag/20091130-eu-vizummentesseget-kap-harom-balkani-orszag-
     macedonia-szerbia-montenegro.html downloaded 30 November 2009.
  2. Council Regulation (EC) No 1244/2009 (of 30 November 2009) amending Regulation (EC) No 539/2001
     listing the third countries whose nationals must be in possession of visas when crossing the external
     borders and those whose nationals are exempt from that requirement, Official Journal of the European
     Union 336/1 (18.12.2009).
  3. Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009
     establishing a Community Code on Visas (Visa Code).
  4. Western Balkans: Enhancing the European perspective, Communication from the Commission to the
     European Parliament and the Council Brussels, 5.3.2008 COM(2008) 127 final.
  5. Convention of 19 June 1990 Implementing the Schengen Agreement of 14 June 1985 between the
     Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the
     French Republic on the gradual abolition of checks at their common borders.
  6. Decision of the Executive Committee SCH/Com-ex (99) 13) of 28 April 1999 (OJ L 239, 22.9.2000) on
     the definite versions of the Common manual and the Common Consular Instructions. The Official
     Journal of the of the European Union L 239/317.
  7. Consolidated Version of the Treaty on the Functioning of the European Union 09/05/08 Official Journal
     of the European Union C 115/47 Hereinafter: Treaty.
  8. JANA GAŠPAROVI\OVÁ, ROBERT ODLER: Az Európai Unió küls^ határain folytatott határmenedzsment
     integrált sratégiájának kialakulása, Pécsi Határ r Tudományos Közlemények, 2008 p. 377–384.
  9. Council Regulation (EC) No 539/2001of March 15 2001 listing the third countries whose nationals must
     be in possession of visas when crossing the external borders and those whose nationals are exempt from
     that requirement.
 10. LAJOS KISS: Az amszterdami szerz^dés hatása a magyar határ^rizeti rendszer fejlesztésére. Competition
     essay submitted under the 1998 call of the Hungarian Association of Military Science (Magyar
     Hadtudományi Társaság) (the shortened version is to be found in the Hungarian periodical Hadtudomány
     1/1999).

xvii   Treaty. Article 79. paragraph (2 a).




112                                                                                 AARMS 10(1) (2011)
                                                                    L. LIPICS: European Union’s visa policy




11. 21/2008. (OT 11.) ORFK utasítás az illegális migrációval összefügg^ jogsértések kezelésével
    kapcsolatos rend^ri feladatok végrehajtására 2. sz. melléklet Az integrált határbiztonsági rendszer és a
    Magyar Köztársaság viszonya (Appendix 2 to the Directive issued by the Hungarian National Police
    Headquarters).
12. ATTILA PÓK, MTA Társadalomkutató Központ (Institute of Social Sciences of the Hungarian Academy
    of Sciences (HAS): A balkán mint stratégiai térség Magyarország számára
    http://www.mta.hu/fileadmin/2009/strategia/Balkan.pdf downloaded 31.12.2009.
13. Brussels, 10.6.2009 COM (2009) 262 final, Communication from the Commission to the European
    Parliament and the Council, An area of freedom, security and justice serving the citizen (Stockholm
    Programme).
14. Mehrjahresprogramm 2010–2014 im JI-Bereich (Stockholmer Programm) – Punktation zu prioritären
    Anliegen des BMI.
    http://www.bmi.bund.de/cae/servlet/contentblob/594570/publicationFile/33467/positionspapier_bmi.pdf
    downloaded 01.11.2010 BMI (Ministry for Home Affairs in Germany): Programme for Justice and
    Home Affairs 2010–2014.
15. Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning
    the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas
    (VIS Regulation).
16. BIOPASS: Study on Automated Biometric Border Crossing Systems for Registered Passengers at Four
    European Airports. Frontex, Warsaw, August 2007.
17. Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country
    nationals for the purposes of highly qualified employment.
18. A Magyar Köztársaságnak a szabadság, biztonság és a jog érvényesülése térségében való
    együttmaködésére vonatkozó 2009-2014 közötti kormányzati stratégiájáról szóló 1057/2009. (IV. 24.)
    Kormányhatározat (Government Decision No. 1057/2009)




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