May 07, 2020
By Moritz Baumgärtel
M.N. and others v. Belgium confronted the ECtHR with the question whether Article 3 of the ECHR places an obligation on State Parties to provide short-term humanitarian visas in their foreign embassies and consulates to potential asylum seekers. The Court, assembled in its Grand Chamber, found the case to be outside the jurisdiction of the Convention and thus inadmissible. While many will look at this outcome with disappointment, it is above all expected. This post provides an initial evaluation focusing on the strategic merits of the case, the issue of extra-territorial jurisdiction, and the broader question of legal pathways to asylum. The argument, in short, will be that this decision may offer a chance to come to the overdue realization that the creation of such pathways is a political question, the answer to which cannot currently be found in European human rights law.
In the summer of 2016, a Syrian family with two minor children travelled to the Belgian embassy in Beirut to submit visa applications based on Article 25(1) of the EU Visa Code, a provision that, amongst others, provides the possibility to EU Member States to issue a visa where it “considers it necessary on humanitarian grounds… or because of international obligations”. Suffering from the ravages of the Syrian civil war that had destroyed their house and left them in destitution, the family was hoping to use this pathway to leave their war-ridden hometown of Aleppo for Belgium. Once they would have reached their country of destination with their short-term visa, they were planning to apply for refugee status.
Following the initial visa application, the next sequence of events is a confusing to and fro between administrative and judicial bodies that is unusual even for Belgium, a country that has long struggled to afford vulnerable migrants with adequate legal procedures. Not all the details are relevant for this analysis. In short, the Aliens Office (Office des étrangers) rejected the application arguing that the visas requested by the claimants were meant for short-term stays devoid of any intention to settle permanently, as the goal of lodging an asylum claim suggested. The Aliens Appeals Board (Conseil du Contentieux des Etrangers) disagreed with the decision and asked the Aliens Office to reconsider it given the perilous situation in Syria. The standoff went on for several more rounds as the administrative body refusing to change its position even in the face of judicial opposition. The Board, in turn, restated its decision and order directly the issuance of a laissez-passer. All to no avail, with the legal claim of the applicants eventually being denied by the Court of Appeal in early 2017. The reason is telling: somewhere along the way, the claimants and the lawyers had failed to keep up with the proceedings and, having missed to file a request, had lost legal standing (see para. 22).
The application reached the Strasbourg Court in January 2018. The Second Section relinquished its jurisdiction in favour of the Grand Chamber in November of the same year. The hearing before the Court took place on 24 April 2019, featuring third party interventions by 11 states and six NGOs.
Contextualising the strategic value of cases related to humanitarian visas
Legal commentaries usually begin by clarifying the jurisprudential aspects of a ruling to then proceed to offer some perspectives on its broader context and implications. I want to reverse this generally sensible sequence in this instance due to the exceptionally political character of the issue at stake.
First, it is important to bear in mind the limited protection that the Court has historically afforded to vulnerable migrants. The fact that this is a general observation does not make it any less true, with Marie-Bénédicte Dembour’s seminal When Humans Become Migrants demonstrating the point forcefully. While not as frequently discussed, there are plausible reasons for its deferential attitude, most notably the politicized nature of immigration combined with the fact, as I argue in Demanding Rights, that high-stakes cases like M.N. regularly appear in the Court’s docket. The consequence is that even an exceptionally “progressive” Court (a label that is certainly not applicable to it presently) would pick its battles, which is an insight that necessarily defeats any “entrenched expectation” that it “would proceed steadily further on the dynamic jurisprudential path”. That is not to say that the Court is useless or that we should not harbour any expectations. It is important to stress, however, that most attempts at bringing about meaningful change will not be successful. Crucially, there are also massive discrepancies between cases in terms of their strategic value.
Turning to the cases on humanitarian visas specifically, I shall put my cards on the table right away: I never saw the strategic promise in them. In X and X, the CJEU was confronted with essentially the same factual situation, with the applicants arguing that Article 25(1) of the Visa Code offered them a legal pathway if read in conjunction with Articles 4 and 8 of the EU Charter of Fundamental Rights. The Court rejected this claim unequivocally, not even being shy to put forward the consequentialist argument that judging otherwise would “undermine the general structure of the [Dublin] system”. Rather than constituting a missed opportunity, the Court turned down what is best described as a “gotcha” argument; how likely was it that the Dublin system, a regulatory walking dead that has managed to “survive” much tougher political and legal onslaughts, would be defeated using an obscure provision in the Visa Code? Even then, it would have probably led to legislative overturn of the Visa Code, which would not have helped anyone.
M.N. is somewhat better in the sense that it presented the issue as “a question of principle” on Article 3 ECHR, the most important human rights provisions in asylum-related matters. That said, the case is still hugely political, with different commentators all highlighting that it presented a “dilemma” to the ECtHR. Imagine for a moment that it had found in favour of the applicants. Not only had there been a massive backlash from both governments and large parts of society (which may be acceptable if the outcome is worthwhile) but it is unlikely that an aftermath of the uproar would have seen migrants benefit in practice. Instead of systematizing legal pathways, EU states could have fortified or even closed “at risk” embassies and consulates. Perhaps it would already have sufficed to create a pre-vetting system to ensure that potential asylum seekers would not be able to apply for a visa in the first place. In any case, discretionary visa policies that could have created an inroad for M.N.-type applications would probably have disappeared altogether.
To clarify, my critical attitude here does not pertain to the applicants and their representatives who have every right to leave no stone unturned to defend their interests. This judgment constitutes a painful defeat for them. However, when looked upon from the strategic perspective that legal scholars and commentators normally take, M.N. had relatively little to offer realistically speaking. Without much to gain, we should also have our doubts whether much was lost.
The contentious question of (extra-territorial) jurisdiction
Setting aside the issue of humanitarian visas, the decision does raise some interesting aspects that could be pertinent for other cases. Above all, it reveals how the ECtHR conceptualizes extraterritorial jurisdiction, which is a question that warrants closer scrutiny also from a legal point of view.
As said, the Grand Chamber declared the case inadmissible, holding that the applicants and their claim did not fall within Belgium’s jurisdiction in respect to Article 3 and 13. The reasoning provided is generally short of surprises, with the Court asserting that a State Party’s jurisdictional competence in Article 1 is “primarily territorial” (in line with the infamous Bankovic case, see para. 98), with any extraterritorial effect being contingent on “exceptional circumstances” (para. 102). Most of them are not applicable here for obvious reasons―most notably, perhaps, the claimants had not sought the protection of the embassy but freely entered and left the premises (para. 118). The question was rather whether extraterritorial jurisdiction had been exercised given that “the Belgian authorities took decisions concerning the conditions for entry to Belgian ‘territory’ and, in so doing, exercised a public power” (para. 112). The Court’s answer is negative as, first, the exercise of administrative control by the Belgian State over its embassy was in itself “not sufficient” to bring about jurisdiction (para. 119). The fact that the visa application led to intricate administrative and judicial proceedings did not make a difference either as the applicants had “no connection with the State concerned except for proceedings which they themselves freely initiated, and without the choice of this State, namely Belgium, being imposed by any treaty obligation” (para. 122). The Court ends this passage with consequentialist arguments that seem unrelated and, therefore, will be picked up it in the next section.
Observers familiar with the case law on migrants’ rights know that the question of extraterritorial jurisdiction is becoming increasingly important as states externalize their migration and border control. The issue is bound to reappear in a major way in the currently pending case of S.S. concerning Italy’s potential responsibility for “pull-back” operations by the Libyan Coast Guard. In what is probably a part of the exemplary preparation of this case by the Global Legal Action Network, lead counsel Violeta Moreno-Lax published an extensive article last month outlining her vision for an “architecture of functional jurisdiction” in such cases. At the heart of her conception lies the idea that jurisdiction is grounded in a “sovereign-authority nexus” that ties the state to the individual in a specific situation. Territoriality is hereby secondary as it merely creates a presumption of such a link, with the actual trigger being the “exercise of public powers” by a state.
While drafted with S.S. in mind, Moreno-Lax’s comprehensive framework can serve as a useful lens for analysing other cases including M.N. Indeed, in stressing that “public powers” are exercised only when the jurisdictional link between the state and the individual is “effectuated” rather than merely “claimed” (p. 397), she seems to take an approach to jurisdiction that is comparable to the Grand Chamber’s. However, she also points out that executive and judicial activity, if part of a wider policy that (as a whole) has a foreseeable impact, will trigger the Court’s jurisdiction. In M.N., it could reasonably be argued that the conduct of the administration was reflective of a general policy that seeks to restrict immigration, amongst others through a systematic denial of short-term visas. The striking refusal to implement the initial decisions of the Aliens Appeals Board could further serve as proof of a sufficiently high “degree of state deliberation and volition”, which Moreno-Lax considers a prerequisite for jurisdictionally relevant state action (p. 403).
Pondering these questions illustrates how difficult it is to draw jurisdictional lines even when taking a more principled approach. Because of such complications, it was suggested prior to this ruling that the state’s obligations could be delimited elsewhere, for example in reference to the notion of vulnerability. While I am generally in favour of this proposition, I doubt whether this was a better option here considering that the Court is currently far away from the vulnerability principle in a reliable fashion. In fact, I would tend to think that the ECtHR found a decent “way out” in basing its reasoning on Abdul Wahab Khan to claim that bringing proceedings does not, taken alone, create a jurisdictional link (para. 123). It is worthwhile to revert once again to S.S. where, as Moreno-Lax convincingly shows, the jurisdictional link between Italy and the respective applicants is much firmer. For this reason, I also do not believe that the outcome in M.N. should necessarily be taken as a bad sign for this upcoming case.
The lack of legal pathways based on European human rights law
Even if the strategic value of M.N. is marginal and its jurisdictional claim relatively thin, the decision will (and should) still be given some consideration for one reason: it quashes the “best” hope that European human rights law can deliver safe pathways for asylum seekers. Lingering in the minds of many observers will be Advocate-General Mengozzi’s eloquent Opinion in X and X, where he drew the attention of the CJEU to the possibility of using the Visa Code to establish “a humanitarian pathway” that would “restate… respect for the humanitarian values and human rights… [and] offer the applicants… the hope of being spared further suffering and inhuman treatment” (paras. 167-168). Mengozzi explicitly addressed the lack of any viable alternatives to insist that legal access routes were needed unless human rights guarantees were to become “theoretical or illusory” (paras. 157-158). Without legal pathways, asylum seekers such as the claimants in X and X and M.N. are effectively “expelled from humanity” or, to be more precise, from the European legal order, which may well represent their only realistic chance to adequate protection.
Commentators hoping for “a reasonable judgment” will be disappointed and perhaps even outraged by the Grand Chamber’s clumsy treatment of this sensitive issue. Having distinguished M.N. from Abdul Wahab Khan, the Court remarks that finding in favour of the applicants “would… have the effect of negating the well-established principle… according to which the States Parties, subject to their treaty obligations, including the Convention, have the right to control the entry, residence and expulsion of aliens” (para. 124). While the Court frequently deploys this “human rights reversal”, it is ironic how easily it glosses over the fact that in cases such as the present, states like Belgium are ultimately released of any treaty obligations. Adding insult to injury, the Court goes on to explain that its decision “does not prejudice the endeavours made by the States Parties to facilitate access to asylum procedures through their embassies and/or consular representations” (para. 126). This aside became necessary only after its recent judgment in N.D. and N.T. where the Court―to the surprise of many but in hindsight rather randomly (?)―had entertained the thought that migrants could potentially come under the jurisdiction of Spain through its embassies and consulates. It is now clear that they did not. Rather, the (essentially unproven) availability of “legal avenues” worked exclusively to the detriment of the applicants as they came to justify them being subjected to a “hot return” by the Spanish border guards to Morocco (para 231).
Unempathetic as it may be, there are precedents for the denial of legal pathways to protection. One of them is the much-celebrated Hirsi judgment where the Court―even as it found jurisdiction and violations of various rights including Article 3―did not ask the Italian government to offer asylum procedures to the applicants who had been pushed back but, startlingly, to obtain assurances from the Libyan authorities that they would be treated humanely (see para. 211). In the search for legal pathways, the road via the European courts was probably always bound to be a dead end. Whilst this is a sad conclusion, I also believe that not all is lost. The suffering created by a lack of legal access routes, which drives the smuggling business, will continue to be held against the European states. Their ranks are not closed either. Three states were conspicuously absent from the 11 state party interveners in M.N.: Greece, Italy and Spain, those frontline states most disadvantaged by the current system. More importantly, an increasing number of communities and local authorities is calling for locally organised resettlement. Such bottom-up initiatives, while incremental and arguably less spectacular than litigation, deserve attention and sustained support. Perhaps M.N. will come to be the point in which these strategies gathered momentum as we finally let go of certain illusions.
Moritz Baumgärtel is Assistant Professor at the Faculty of Law, Economics and Governance of Utrecht University and at University College Roosevelt in Middelburg, as well as a fellow of the Netherlands Institute of Human Rights. He is the author of Demanding Rights: Europe’s Supranational Courts and the Dilemma of Migrant Vulnerability (Cambridge University Press, 2019).