X and X v. Belgium: a missed opportunity for the CJEU to rule on the state’s obligations to issue humanitarian visa for those in need of protection

By Helena De Vylder, lawyer at the Flemish Integration Agency (Agentschap voor Integratie en Inburgering)

On 7 March 2017, the Court of Justice of the European Union (CJEU) gave a preliminary ruling in the case PPU X and X v. Belgium. Against the recommendations of the Advocate General, the CJEU left the responsibility for granting humanitarian visas with the Member States. It argued that, although the request for a visa was formally submitted on the basis of Article 25 Visa Code, the situation at stake fell outside the scope of the Visa Code. The applicants submitted the request with the intention to apply for asylum as soon as possible upon their arrival in Belgium and to stay there as refugees, while the Visa Code only covers short-term visa.

Facts

The applicants in the main proceedings, a married couple and three minor children, are Syrian nationals. At the Belgian Embassy in Lebanon, they submitted applications for visas with limited territorial validity on the basis of Article 25(1) Visa Code (‘humanitarian visa’). They stated that the purpose of the visas was to enable them to leave the besieged city of Aleppo in order to apply for asylum in Belgium. They claim that the EU Charter of Fundamental Rights imposes a positive obligation on the Member States to guarantee the right to asylum and that the granting of international protection is the only way to avoid any risk that Article 3 of the ECHR and Article 4 of the Charter will be infringed.

The Belgian Immigration Office rejected their applications. According to the Immigration Office, authorising the issue of an entry visa to the applicants in order for them to be able to lodge an asylum application in Belgium would be tantamount to allowing such an application to be submitted to a diplomatic post.

The applicants appealed to the Council for Alien Law Litigation. The Council argues that the applicants in the main proceedings may rely on Article 3 of the ECHR only if they are within Belgian ‘jurisdiction’. However, the referring court asks whether the implementation of the visa policy may be regarded as the exercise of jurisdiction in that sense. Moreover, the referring court asks whether a right of entry could follow, as a corollary to the obligation to take preventative measures and to the principle of non-refoulement, from Article 3 of the ECHR and, mutatis mutandis, Article 33 of the Geneva Convention.

Judgment

The CJEU reminds that the Visa Code is adopted on the basis of Article 62 of the EC Treaty pursuant to which the Council of the European Union is to adopt measures concerning visas for intended stays of no more than three months. Article 1 of the Visa Code sets out the scope of the Code which is limited to stays not exceeding 90 days in any 180-days period.

Since the applications for visas on humanitarian grounds were made with a view to applying for asylum in Belgium and thereafter being granted a residence permit with a period of validity exceeding 90 days, the CJEU holds that the applications fall outside the scope of the Visa Code. The applications therefore fall solely within the scope of national law. Moreover, since the situation is not governed by EU law, the provisions of the Charter do not apply to it.

To conclude otherwise, would be tantamount to allowing third‑country nationals to lodge applications for visas on the basis of the Visa Code in order to obtain international protection in the Member State of their choice, which would undermine the general structure of the protection system.

Moreover, the CJEU considers this conclusion to be in line with the Asylum Procedures Directive which does not oblige member states to allow third-country nationals to lodges applications for asylum at diplomatic posts and even excludes those applications from its scope. Moreover, the Dublin Regulation only imposes an obligation on member state to examine applications for asylum made within their territory.

Comment

The CJEU ruled that visa with an intent to apply for asylum fall outside the scope of EU law. For that reason, the provisions of the Charter do not apply to it. Whether Article 3 ECHR forces the Belgian government to issue the humanitarian visa, is a question left open for the national authorities to decide. Unfortunately, the Council for Alien Law Litigation decided in the meantime (judgment no. 184.913) that the applicants lost their interest. According to the Council, they had wrongly applied for a short-term visa instead of a longer-stay visa, and there is no legal obligation for the authorities to requalify their application.

The CJEU judgment is open for criticism on different levels. Whether or not the Visa Code is applicable when the applicants have the intention to apply for asylum and stay for more than three months, is a question this blogpost will not go into. Likewise, this blogpost does not aim to examine whether the EU Charter remains nonetheless applicable in that case.  Readers who want to know more about these issues, can find more information and comments on the EU Migration Law Blog, in a paper written under the auspices of the Centre for European Policy Studies, and in a blogpost in the Journal of the European Database of Asylum Law.

In order to apply for asylum, asylum seekers must reach the territory of the country they wish to request asylum. At the same time, states close borders, build walls and push migrants back in the open sea to prevent them from illegally entering their territory. Moreover, crossing EU-borders in a legal way is virtually impossible for asylum seekers. This leaves them in a catch 22-situation. For this reason, this blogpost aims to examine whether Article 3 ECHR compels the ECHR member states, including Belgium, to issue humanitarian visa of limited territorial validity when there is a risk that an applicant will be exposed to torture or inhuman or degrading treatment.

Is Article 3 ECHR applicable outside the territory of the member states?

The territorial scope of the Convention is not free from controversy. The Court will have to analyse whether the ECHR applies outside the territory of the member states and whether the positive obligation under Article 3 triggers the responsibility of the state to issue the visa.

The refusal of the visa took place at the Belgian embassy in Lebanon, while jurisdiction is primarily territorial. However, a state’s human rights obligations under the ECHR do not stop at its borders or at the borders of the members of the ECHR. In the past five years, several landmark cases have shed a light on the extent of the extraterritorial obligations of states, including the cases of Hirsi Jamaa and others v. Italy, Al Skeini and others v. the U.K. and Al Jedda v. the U.K. According to the cases of Al Skeini and Al Jedda, it is no longer required that a state has control over a territory and the power to secure all Convention rights in order for it to exercise jurisdiction. The Court replaced the need for territorial jurisdiction by the possibility of ‘state agent authority’ or ‘functional jurisdiction’. If a state agent is in a position to safeguard Convention rights, the state has jurisdiction.

In the case of Hirsi Jamaa, regarding push back operations of migrants at sea, the Court proved its willingness to extend the jurisdiction of the state based on a functional notion of jurisdiction. The Court reasoned that intercepting migrants on the high seas and returning them to Libya was in violation of int. al. Article 3 ECHR. According to the Court, jurisdiction was not just based on the de iure control according to the international law of the sea, but also the de facto control given that that the events took place entirely on board of ships of the Italian armed forces, with crews composed of Italian military personnel.

Furthermore, according to settled case law, dating back to the European Commission of Human Rights, diplomatic agents of a State exercise jurisdiction over other people or property to the extent that they exercise authority over them.

Considering that it was a Belgian embassy which refused to issue the visa, thereby denying applicants the protection against the hostilities in Aleppo, while they were in a position to safeguard at least the applicants’ rights under Article 3 ECHR, arguably the Belgian authorities have jurisdiction over the Syrian family.

The merits of the case

It is settled case law of the ECtHR that member states have the sovereign right to control the entry, residence and expulsion of aliens. However, even when states are experiencing considerable difficulties in coping with the increasing influx of migrants and asylum seekers, this cannot absolve a state from its obligations under Article 3 ECHR.

To support their claims, the family refers to the situation in Syria, and Aleppo in particular, with bombings, indiscriminate violence and direct attacks on the civilian population. They also raise the specific risk of persecution on religious grounds they face as Orthodox Christians.

Article 3 imposes obligations on the member states to prevent torture and other forms of ill-treatment. In the field of migration control, Article 3 for example implies an obligation not to expel an individual to a country where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment. (Tarakhel v. Switzerland, M.S.S. v. Belgium and Greece).

In casu, the Article 25 (1) Visa Code leaves a certain discretion to the Belgian authorities to issue a humanitarian visa. The equivocal wording says member states must only ‘exceptionally’ deliver a humanitarian visa, when they ‘consider it necessary on humanitarian grounds or […] or because of international obligations’. However, just like Article 3 prohibits states to expel individuals to countries where they run the risk of being subjected to circumstances amounting to torture or inhuman or degrading treatment, it can be argued that Article 3 limits the discretion of member states to refuse a humanitarian visa when the refusal exposes the applicants to a real risk of torture or inhuman or degrading treatment. For instance, France and Italy issue humanitarian visa for asylum seekers from specific countries in order to prevent exposing them to violations of Article 3.

For this reason, one can only agree with the views of Advocate General Mengozzi, who advised the CJEU that the state must issue the humanitarian visa. According to him, the family had no other alternatives on the basis of which the Belgian authorities could refuse to issue the visa: “Frankly, what alternatives did the applicants in the main proceedings have? Stay in Syria? Out of the question. Put themselves at the mercy of unscrupulous smugglers, risking their lives in doing so, in order to attempt to reach Italy or Greece? Intolerable. Resign themselves to becoming illegal refugees in Lebanon, with no prospect of international protection, even running the risk of being returned to Syria? Unacceptable.” (Conclusion Advocate General Mengozzi, para 157)

Conclusion

The CJEU had a window of opportunities for establishing firm standards on the obligations of states to issue humanitarian visa for those who are in need of international protection. Unfortunately, the CJEU  found an easy way out by concluding that applications for humanitarian visa with the intent to apply for asylum are a matter of national law only. However, this judgment passed the buck to the domestic courts which now need to decide whether the refusal of a humanitarian visa lives up to the standards in Article 3 ECHR. Ultimately, this question may end up before the ECtHR which will have the final say on the matter.

The content of this blog post does not reflect the official opinion of the Flemish Integration Agency. Responsibility for the views expressed herein lies entirely with the author.