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CJEU - C-638/16 X and X, 7 March 2017
The Syrian family's application for a Humanitarian Visa at the Belgian embassy in Lebanon fell outside the scope of the Visa Code, even if formally submitted on the basis of its Article 25(1)(a), because the purpose of the application (that is, to apply for asylum upon arrival to Belgium) differs from that of a short-term visa.
The case referred to the Court concerns 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 Beirut and had applied for a limited territorial validity visa relying on Article 25(1)(a) of the Visa Code on two occasions. On the second occasion they successfully registered their visa application and returned to Syria. After their return, the Syrian border with Lebanon was closed and remained closed during the proceedings.
On 18 October 2016, the application was met with a refusal under Article 32(1)(b) of the Visa
Code by the Belgian national authority on the following grounds:
- The applicants’ stay would extend beyond 90 days since they had the intention of applying for asylum in Belgium;
- Such a visa request fell under domestic law;
- Article 3 ECHR and Article 33 of the 1951 Geneva Convention relate to the prohibition of non-refoulement and not to the admittance of persons onto the territory;
- To use the visa procedure for asylum purposes would create a floodgate scenario and embassies are not designated as authorities in which an applicant for asylum could in fact apply for asylum.
The applicants later appealed the Belgian Secretary of State’s decision to the Council of Alien Law Litigation (‘CALL’). They argued the positive obligations to protect those at risk of inhumane treatment under Articles 4 and 18 of the EU Charter of Fundamental Rights (‘Charter’) and Article 3 of the European Convention of Human Rights (‘ECHR’) and that the granting of international protection is the sole means by which to vindicate these rights. The Belgian State had not taken into account the risks that they were subjected to in the visa refusal and that the conditions amounting to an exception humanitarian situation meant that Belgium was obliged to deliver a visa under Article 25(1)(a) of the Code.
In the appeal, the CALL considered the applicability of EU law and the Charter outside the territory of EU Member States, the definition to be given to the term ‘international obligations’ and the potential discretion that Member States may have under Article 25(1)(a) to give or not to give a LTV. Suspending the national proceedings the CALL referred the following questions to the CJEU:
Do the ‘international obligations’, referred to in Article 25(1)(a) of Regulation No 810/2009 1 of 13 July 2009 establishing a Community Code on Visas cover all the rights guaranteed by the Charter of Fundamental Rights of the European Union, including, in particular, those guaranteed by Articles 4 and 18, and do they also cover obligations which bind the Member States, in the light of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 33 of the Geneva Convention Relating to the Status of Refugees?
In view of the answer given to the first question, must Article 25(1)(a) of Regulation No 810/2009 of 13 July 2009 establishing a Community Code on Visas be interpreted as meaning that, subject to its discretion with regard to the circumstances of the case, a Member State to which an application for a visa with limited territorial validity has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 of the Charter of Fundamental Rights of the European Union or another international obligation by which it is bound is detected?
Does the existence of links between the applicant and the Member State to which the visa application has been made (for example, family connections, host families, guarantors and sponsors) affect the answer to that question?
The CJEU first underlines that the Visa Code was adopted on the basis of Article 62(2)(a) and (b) (ii) of the EC Treaty, providing for a harmonised regime for visas for intended stays of no more than three months, otherwise known as Limited Territorial Visas ('LTV'). Since the purpose of the individuals application for a LTV was to apply for asylum upon arrival to Belgium this went beyond the purpose of a short term visa application. Therefore, notwithstanding that the applicants formally submitted their visa application on the basis of its Article 25 their requests fell outside the scope of the Visa Code. Indeed, the Belgian authorities were wrong to describe the applications as LTV.
The CJEU further held that since no measure has been adopted, to date, by the EU legislature on the basis of Article 79(2)(a) TFEU (long-term visas and residence permits on humanitarian grounds), the present case fell solely within the scope of national law. For that reason, the provisions of the Charter do not apply in the case in question.
Furthermore, the Court advanced that concluding 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 Dublin Regulation. Moreover, noting that the Visa Code was not intended to harmonise the law of Member States on international protection, the CJEU further highlights that the Asylum Procedures Directive specifically restricts its application to applications made in the territory, including at the border, in the territorial waters or transit zones of Member States. It explicitly excludes applications made representations of Member States outside their territory.
The CJEU lastly holds that MS remain competent to issue humanitarian visas if national law so requires.
Article 1 of 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), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, must be interpreted as meaning that an application for a visa with limited territorial validity made on humanitarian grounds by a third-country national, on the basis of Article 25 of the code, to the representation of the Member State of destination that is within the territory of a third country, with a view to lodging, immediately upon his or her arrival in that Member State, an application for international protection and, thereafter, to staying in that Member State for more than 90 days in a 180-day period, does not fall within the scope of that code but, as European Union law currently stands, solely within that of national law.
The Grand Chamber's judgment was preceded by an Opinion from the Advocate General ('AG') Mengozzi who, contrary to the Court, found that the applicants request did fall within the Visa Code. According to the AG this was evident from the form the applicants used to request the visa and the procedure the Belgian authorities undertook to deny the visa. The later intention to apply for asylum once on the Belgian territory did nothing to change the applicants’ LTV requests into long term visas or place them outside the scope of Union law. Moreover, the AG found that the obligations within the Charter do not fall within the term ‘international obligations’ as specified in Article 25(1)(a) but that since the delivery or refusal of a LTV means that Member States are acting in the area of EU legislation, they are obliged to respect the rights guaranteed in the Charter.
With regards to Member State discretion when issuing a LTV visa the AG holds that States must assess whether the refusal to issue a visa under Article 25 of the Visa Code leads to an infringement of its obligations under the Charter, namely the right to human dignity, the right to life, the right to integrity, the prohibition of inhumane treatment as well as the best interests of the child. According to the AG, therefore, Member States must issue a LTV under Article 25(1)(a) if there exists serious reasons to believe that the refusal of a visa will directly lead to the applicant being exposed to an Article 4 Charter violation.
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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) - Recital 29, Articles 1(1), 2, 25, 32(1)(b).