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

Tuesday, March 7, 2017

On 7 March 2017, the CJEU gave a preliminary ruling in case PPU X and X v.État Belge, which related to the interpretation of Article 25(1) of the Visa Code and the existence of an obligation under EU law to issue humanitarian visas. The Court disagreed with the opinion of AG Mengozzi, who had argued that the situation at stake fell under the Visa Code and that Member States were obliged under EU law to issue humanitarian visas when the refusal to issue such a document would expose the applicants to a violation of Article 4 of the EU Charter of Fundamental Rights (CFR).

The CJEU ruled that the situation at stake fell outside the scope of the Visa Code, even if formally submitted on the basis of its Article 25, because the purpose of the application (that is, to apply for asylum upon arrival to Belgium) differs from that of a short-term visa. Also, it argued 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 asylum system. MS remain, however, competent to issue humanitarian visas if national law so requires.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.