Belgium - Council of Alien Law Litigation, 8 December 2016, no 179 108

Country of Decision:
Country of Applicant:
Date of Decision:
08-12-2016
Citation:
no 179 108
Court Name:
Council of Alien Law Litigation
National / Other Legislative Provisions:
Belgium - 39/82 and 39/84 of the Law of 15 December 1980
Belgium - Article 185 Law 15 September 2006
Belgium - Article 11 Law 6 May 2009
Belgium - Article 22 8 May 2013
Belgium - Article 43 of the Regulation of CALL procedures
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Headnote: 
The Belgian Council for Alien Law Litigation has referred the following questions to the Court of Justice on the application and interpretation to be given to Article 25(1) of the Visa Code:
 
1. Do  “international obligations” as specified in Article 25(1) (a) of the Visa Code, concern the set of rights guaranteed under the EU Charter, in particular those guaranteed under Articles 4 and 18, and do they also cover the obligations under the ECHR and Article 33 Refugee Convention, which the Member States are bound by?
 
2. A. In view of the answer to question 1, is Article 25(1)(a) of the Visa Code to be interpreted in the sense that, subject to the margin of appreciation the Member State has in the case,  that the requested visa Member State, is obliged to issue the requested visa where a violation of Article 4 and/or 18 Charter rights or another international obligation is proven?
 
B. Does the existence of ties between the person requesting the visa and the requested Member State (for example family links, host families, sponsors etc) have any consequence on the answer to this question?
 
Facts: 

The case relates to a Syrian couple and their three infant children who live in Aleppo and are of Orthodox Christian faith. The applicants had travelled to the Belgian embassy in Lebanon and Beirut and had applied for a limited territorial validity visa relying on Article 25 of the Visa Code on two occasions. On the second occasion they successfully registered their visa application and returned to Syria. However the application was met with a refusal under Article 32(1)(b) of the Code by the Belgian national authority on grounds that the applicants had the intention of applying for asylum in Belgium, that their stay would extend beyond 90 days, that to use such a procedure for asylum purposes would create a flood gate scenario and that embassies were not designated as authorities in which an applicant for asylum could in fact apply for asylum.

The applicants appealed to the Council of Alien Law Litigation (CALL) to suspend the refusal decision in a procedure known as the ‘extremely urgent necessity’ procedure. 

Decision & Reasoning: 

The CALL turns first to the point raised by the State concerning the inadmissibility of requests to suspend in the urgent procedure beyond the limited cases of a decision on removal or refoulement where the execution is imminent, as prescribed by Article 39/82 (1,3 and 4) of the Article of the Law of 15 December 1980. The CALL identifies two potential readings. The first implies that the CALL has a general competence to rule on a suspension request introduced in the urgent procedure for all acts which are liable to being annulled, thus a refusal to issue a visa would also be liable to suspension in the urgent procedure. The second implies that there is a difference between a return decision and imminent refoulement compared to a visa refusal and that the urgent procedure only applies to the former. If this reading is correct the CALL questions whether it would violate the Belgian Constitution’s provisions on non-discrimination. The CALL therefore decides to refer a preliminary question to the Constitutional Court on the compatibility of such a second reading with the Constitution and Article 47 of the Charter of Fundamental Rights.  Whilst such a question is pending the CALL decides to set aside the State’s argument and examine the case as if the urgent procedure was applicable to the applicants’ request.

The CALL, therefore, looks at the conditions of extreme urgency. It finds that the main question posed to them concerns the substance of international obligations under Article 25 (1)(a) of the Visa Code. Apart from Recital 29 of the Visa Code referring to the ECHR and the Charter, the CALL underlines that neither the Code nor a Council Decision of 19 March 2010 on visas provides any clarification on this point.

Secondly the CALL turns to the extra-territorial application of the ECHR and asks whether a visa request can be seen to fall under the effective control test as reiterated frequently by the ECtHR in its case law (i.e Al- Skeini, Bankovic). Similarly the CALL is hesitant as to whether the right of entry flows from the principle of non-refoulement and the obligation to prevent an Article 3 violation as well as the scope of application of Article 33 of the 1951 Refugee Convention. The CALL refers extensively to academic literature as well as the UK House of Lords case in the European Roma Rights Centre and Judge Pinto De Albuquerque’s opinion in Hirsi Jamaa who states that the positive obligations under Article 3 require States to issue a visa where there is a real risk of inhuman treatment to the applicant.

The CALL then turns to the extraterritorial scope of the Charter, noting that nowhere in the Charter nor in the Treaties is it specified that it is territorially limited. Given that the introduction and refusal of the visa was done on the basis of the Visa Code the CALL finds that EU law applies (Article 51(1) of the Charter). Thus Article 4 of the Charter should be taken into account in cases which concern visa requests under the Visa Code. With regards to Article 18 of the Charter the CALL finds the content of the article to be influenced by secondary EU law, namely the Asylum Procedures Directive which restricts its application to the territory, border, territorial waters and transit zones of Member States. The CALL questions the application of 18 in light of the territorial application of the APD but also in light of academic argumentation advancing that the right to asylum under the Charter is a distinct, autonomous and far reaching concept which should be taken into account when examining visa requests under the Visa Code. The CALL highlights that the CJEU has yet to provide any clarity on the content and reach of Article 18.

Lastly, the CALL turns to Article 25(1) of the Visa Code and the CJEU’s ruling in Koushkaki. The CALL states that if international obligations were to prevail in the application of Article 25 it is still questionable what weight is to be given to Member State’s margin of appreciation in the Article. Argumentation put forward by academics states that the binding nature of international obligations coupled with the Charter implies that the word “shall” in Article 25 prevails over any margin of appreciation which can be read into “considers it necessary.” In addition the CALL finds the definition to be attributed to Article 32(1) of the Code unclear. One reading of the article could be to refuse a limited territorial visa on grounds enumerated by Article 32(1) on another reading these grounds could be set aside in the case of a visa being requested under Article 25(1).

The CALL, therefore, finds that a solid understanding of the content and weight of Articles 25(1) and 32(1) of the Visa Code read in conjunction with Article 4 and 18 of the Charter is needed. Many doubts exist concerning the Articles application and thus a preliminary reference under Article 267 TFEU is required. The facts of the case also mean that the CALL submits the preliminary reference to the CJEU under the urgent procedure.

Outcome: 
The Council for Alien Law Litigation suspended proceedings in the case and referred preliminary references to both the Belgian Constitutional Court and the Court of Justice of the EU.
 
To the Constitutional Court the CALL referred the following question:
 
Does Article 39/82 para 1 and 4 of the Law of 15 December 1980 violate Articles 10,11 and 13 of the Constitution read either in conjunction or not in conjunction with Article 47 of the Charter in so far as the suspension request for ‘extremely urgent necessity’ can only be introduced by third country nationals who are subject to a return decision or refoulement where the execution is imminent and not by third country nationals who are the subject of another act of the administrative authority which is susceptible to being annulled by virtue of Article 39/2 para 2 of the 1980 Law.
 
To the CJEU the CALL referred the following:
 
1. Do  “international obligations” as specified in Article 25§1 a) of the Visa Code, concern the set of rights guaranteed under the EU Charter, in particular those guaranteed under Articles 4 and 18, and do they also cover the obligations under the ECHR and Article 33 Refugee Convention, which the Member States are bound by?
 
2. A. In view of the answer to question 1, is Article 25§1 a) of the Visa Code to be interpreted in the sense that, subject to the margin of appreciation the Member State has in the case,  that the requested visa Member State, is obliged to issue the requested visa where a violation of Article 4 and/or 18 Charter rights or another international obligation is proven?
 
B. Does the existence of ties between the person requesting the visa and the requested Member State (for example family links, host families, sponsors etc) have any consequence on the answer to this question?
 
Subsequent Proceedings : 

The CALL proceedings have subsequently been suspended pending the preliminary reference before both the Constitutional Court and the Court of Justice of the European Union (C-638/16 PPU).

Observations/Comments: 

Prior to this referral the Belgian authorities have come under attack in a series of suspensive requests brought before the CALL in a case which similarly concerns a Syrian family from Aleppo who requested a limited territorial visa under Article 25(1)(a) of the Visa Code. In the Council of Alien Law Litigation, No. 176 577, 20 October 2016 decision, the Council suspends the State’s decision to reject a short term visa request and orders the State to provide a visa to the applicants within 48 hours. A later decision of the Court of Appeal of Brussels from the 7th December (2016/KR/199) confirmed a previous ruling from the Tribunal of First Instance condemning the State to a fine of 1,000 euros per day per applicant for the time the visas were not issued. The Belgian government has appealed the CALL's decision to the Court of Cassation and the decision is still pending. 

Other sources cited: 
Articles 25(1) and 32(1) 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)

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Case Law Cited: 

ECtHR - Auad v. Bulgaria, no. 46390/10, 11 October 2011

ECtHR - Al-Skeini and Others v. United Kingdom [GC], (no. 55721/07)

CJEU - C- 84/12, Rahmanian Koushkaki v Bundesrepublik Deutschland

Belgium - CCE, n°127 514, 28 July 2014

Belgium - CCE, n°150 974 18 August 2015

ECtHR - Savriddin Dzhurayev v. Russia, Application No. 71386/10, UP

UK - R (European Roma Rights Centre & Ors) v Immigration Officer at Prague Airport & Anor [2005] 2 AC 1

ECtHR - Al-Saadoon and Mufdhi v United Kingdom, Application No. 61498/08

ECtHR - Bankovic and Others v Belgium and 16 other Contracting States [GC], Application No. 52207/99

Belgium - CCE, n°165 490 11 April 2016

Belgium - CCE no 166234, 21 April 2016

Belgium - CCE, n°165 207, 11 May 2016

Belgium - CCE, n°170 076, 17 June 2016

Belgium - CCE, n°175 553 29 September 2016

Belgium - Constitutional Court, n°13/2016 27 January 2016

Belgium - CCE, n°163 536 4 March 2016

Belgium - CCE, n°161 335 3 February 2016

Belgium - CCE, n°176 899 26 October 2016

Belgium - CCE, n°144 128 24 April 2015

Belgium - CCE, n°149 140 6 July 2015

Belgium - CCE, n°161 135 1 February 2016

US - Sale v. Haitian Centers Council, Inc. 509 U.S. 155 (1993)