CJEU - C-638/16 X and X, 7 March 2017

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:

Question 1:

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?

Question 1A:

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?

Question 1B:

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?