CJEU AG Opinion in Case C-638/16 PPU X. and X. v. État Belge

Tuesday, February 7, 2017

On 7 February 2017, Advocate General (AG) Mengozzi issued an Opinion in case C-638/16 PPU X. and X. v. État Belge. He stated that Member States must issue a humanitarian visa where it is shown that a refusal would place persons at risk of torture or inhuman or degrading treatment.

In casu a Syrian couple with three children from Aleppo applied for a short term visa on the basis of Article 25(1) of the Visa Code at the Belgian Embassy in Lebanon in October 2016. The Aliens Office refused the application arguing that the family intended to stay longer than the 90-day period required by the Visa Code since the family expressed its wish to apply for international protection after arrival in Belgium. The Belgian Council on Alien Law Litigation (CALL) referred two prejudicial questions to the CJEU asking for an interpretation of the Visa Code and Article 4 and 18 of the Charter of Fundamental Rights concerning prohibition on torture and right to asylum.

The AG is of the opinion that the family’s situation is governed by the Visa Code both ratione personae and ratione materiae. Since their situation falls under the Visa Code, and therefore European Union law, the AG states that the CJEU is competent to rule on the preliminary questions.

The first preliminary question asked whether the reference to ‘international obligations’ in Article 25(1) of the Visa Code included the Charter, the ECHR and Article 33 of the 1951 Geneva Convention. The AG reasons that the contentious decisions of the Aliens Office are based on the Visa Code, which is a part of EU law in the sense of Article 51(1) of the Charter and therefore subject to the obligations in the Charter which are to be respected by Member States’ authorities irrespective of any territorial criterion. The AG furthermore opines that it is not necessary to address Article 3 ECHR and 33 of the 1951 Convention separately since Articles 4 and 18 of the Charter offer at least equal protection.

The second question addressed by the AG demands whether Member States, having a margin of discretion on issuing visas, are obliged to issue a visa on the basis of Article 25(1) if there is a clear risk of a violation of Article 4 and/or 18 of the Charter or another international obligation and whether the existence of ties between the applicants in the Member State in questions are relevant. The AG states that refusing a visa in casu could directly lead to a breach of Article 4 of the Charter and that applying the Visa Code does not exempt the Member States from their positive obligation under Article 4. The margin of discretion enjoyed by Member States must be exercised within the framework of EU law including the Charter. Due to the absolute nature of the right enshrined in Article 4, the AG deems ties between the applicant and the Member States irrelevant. The AG thus concludes that the Member State must issue a visa. The AG stresses that the proposed reasoning is the only one which does justice to the EU’s values.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Inhuman or degrading treatment or punishment