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

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.