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Belgium - Council of Alien Law Litigation, 8 December 2016, no 179 108
International Law > 1951 Refugee Convention > Art 33
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 4
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 18
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 24
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council
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
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.
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.
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).
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.
G.S. GOODWIN-GILL et J. McADAM, The Refugee in International Law, Oxford, Oxford University Press, 2007, 371 et 395-387; J. HATHAWAY, The Rights of Refugees Under International Law, Cambridge, Cambridge University Press, 2005, 160-171 et 307-342; G. NOLL, “Seeking Asylum at Embassies: A Right to Entry under International Law?”, IJRL 2005, 542- 573; G. NOLL, “Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones”, EJML 2003, 303-341; K. WOUTERS, International Legal Standards for the Protection from Refoulement, Antwerpen, Intersentia, 2009, 53-56 et 18-22; T. GAMMELTOFTHANSEN, Access to Asylum: International Refugee Law and the Globalisation of Migration Control, Cambridge, Cambridge University Press, 2011, 284p; A. FRANCIS, “Bringing Protection Home: Healing the Schism Between International Obligations and National Safeguards Created by Extraterritorial Processing”, IJRL 2008, 273-313; V. MORENO-LAX, “(Extraterritorial) Entry Controls and (Extraterritorial) Non-Refoulement in EU law”, dans M. MAES, M.-C. FOBLETS, Ph. DE BRUYCKER, D. VANHEULE, J. WOUTERS et N. SMITH, The External Dimensions of EU Asylum and Migration Law and Policy, Bruxelles, Bruylant, 2011, 415-481; V. MORENO-LAX, “Must EU Border Have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers’ Sanctions with EU Member States’ Obligations to Provide International Protection to Refugees, EJML 2008, 315-364; E. LAUTERPACHT et D. BETHLEHEM, “The Scope and Content of the Principle of Non-Refoulement: Opinion”, in E. FELLER, V. TÜRK et F. NICHOLSON, Refugee Protection in International Law, Cambridge, Cambridge University Press, 2003, 87-177; W. KÄLIN, M. CARONI, et L. HEIM, “Article 33, para. 1 Prohibition of Expulsion or Return (‘Refoulement’)”, dans A. ZIMMERMAN (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, Oxford, Oxford University Press, 2011, 1327-1395; B. RYAN et V. MITSILEGAL, Extraterritorial Immigration Control, Leiden, Martinus Nijhoff Publishers, 2010, 446p; N. MOLE, Le droit d’asile et la Convention européenne des droits de l’Homme, Dossiers sur les droits de l’homme, no 9 (révisé), AIRE Centre, Londres, Royaume-Uni, Editions du Conseil de l’Europe, 1997/2001, p.38; G. NOLL, J. FAGERLUND et F. LIEBAUT, Study on the Feasibility of Processing Asylum Claims Outside the EU Against the Background of the Common European Asylum System and the Goal of a Common Asylum Procedure, European Community, Brussels, 2002, 295p.; T. GAMMELTOFT-HANSEN et J. HATHAWAY, 'Non-refoulement in a World of Cooperative Deterrence', Columbia Journal of Transnational Law, 53(1), 2015. M.T. GIL-BAZO, “The Charter of Fundamental Rights of the European Union and the Right to Be Granted Asylum in the Union’s Law”, Refugee Survey Quarterly 2008, 33-52; C. LADEBURGER, “L’apport de la charte dans le domaine des droits civils et politiques”, dans J.-Y. CARLIER et O. DE SCHUTTER, La Charte des droits fondamentaux de l’Union européenne. Son apport à la protection des droits de l’Homme en Europe, Bruxelles, Bruylant, 2002, 105-116; J.-Y. CARLIER, “La place des ressortissants de pays tiers dans la Charte”, dans J.-Y. CARLIER et O. DE SCHUTTER, La Charte des droits fondamentaux de l’Union européenne. Son apport à la protection des droits de l’Homme en Europe, Bruxelles, Bruylant, 2002, 179-200 ; M.E. WIJNKOOP, “Zoeken, genieten, krijgen en/of garanderen. Het recht op asiel nader beschouwd”, A&MR 2013, 327-336; M. den HEIJER, “Article 18 – Right to Asylum” dans S. PEERS, T. HERVEY, J. KENNER et A. WARD, The EU Charter of Fundamental Rights, a commentary, Oxford, Hart Publishing, 2014, 519-541 ; H. BATTJES, European Asylum Law and International Law, Leiden, Martinus Nijhoff Publishers, 2006, 111-114; G.S. GOODWIN-GILL en J. McADAM, The Refugee in International Law, Oxford, Oxford University Press, 2007, 367-368; S. DA LOMBA, The Right to Seek Refugee Status in the European Union, Antwerp, Intersentia, 2004, 9; S. PEERS, V. MORENO-LAX, M. GARLICK et E. GUILD (eds), EU Immigration and Asylum Law – Text and Commentary, Second revised edition, Volume 3: S. PEERS, T. HERVEY, J. KENNER et A. WARD, The EU Charter of Fundamental Rights, a commentary, Oxford, Hart Publishing, 2014, 1657 - 1683. S. PEERS, (2014), “External processing of applications for international protection in the EU”, EU Law Analysis; S. PEERS, (2014), “Do potential asylum-seekers have the right to a Schengen visa?”, EU Law Analysis; S. PEERS, V. MORENO-LAX, M. GARLICK et E. GUILD (eds), EU Immigration and Asylum Law – Text and Commentary, Second revised edition, Volume 3: EU Asylum Law, Leiden, Brill Nijhoff, 2015, 669-671. (U. IBEN JENSEN, Humanitarian visa: option or obligation, Study for the European Parliament DG Internal Policies - Policy, Department C: Citizens' Rights And Constitutional Affaires - Civil Liberties, Justice And Home Affairs, Brussels, European Union, www.europarl.europa.eu/studies, 2014.
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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
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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
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Belgium - CCE, n°165 207, 11 May 2016
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Belgium - CCE, n°161 335 3 February 2016
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