CJEU judgment in Case C-84/12 Koushkaki, 19 December 2013

Monday, February 3, 2014

(Area of freedom, security and justice – Regulation (EC) No 810/2009 – Articles 21(1), 32(1) and 35(6) – Procedures and conditions for issuing uniform visas – Obligation to issue a visa – Assessment of the risk of illegal immigration – Intention of the applicant to leave the territory of the Member States before the expiry of the visa applied for – Reasonable doubt – Discretion of the competent authorities)

Facts of the case

The case concerns an Iranian national whose Schengen visa application to Germany was refused due to significant doubt as to his intention to return to Iran before the expiry of the visa. On appeal, the Verwaltungsgericht Berlin (Berlin Administrative Court, Germany) requested the CJEU to clarify the conditions for the refusal of such a visa.

Questions referred for a preliminary ruling

In order for the court to direct the defendant to issue a Schengen visa to the applicant, must the court be satisfied that, pursuant to Article 21(1) of the Visa Code, the applicant intends to leave the territory of the Member States before the expiry of the visa applied for, or is it sufficient if the court, after examining Article 32(1)(b) of the Visa Code, has no doubts based on special circumstances as to the applicant's stated intention to leave the territory of the Member States before the expiry of the visa applied for?

Does the Visa Code establish a non-discretionary right to the issue of a Schengen visa if the entry conditions, in particular those of Article 21(1) of the Visa Code, are satisfied and there are no grounds for refusing the visa pursuant to Article 32(1) of the Visa Code?

Does the Visa Code preclude a national provision whereby a foreigner may, in accordance with Regulation (EC) No 810/2009, be issued with a visa for transit through or an intended stay in the territory of the Schengen States of no more than three months within a six-month period from the date of first entry (Schengen visa)?

Consideration of the questions referred

Taking the second question first, the CJEU ruled that a Schengen visa may be refused only on the grounds expressly provided for in the EU Visa Code. The possibility that a national authority, if it wants to refuse a visa, may apply a reason other than one of the grounds for refusal listed in the Visa Code, is held to be unacceptable by the CJEU. Such an option would jeopardise the harmonised system of visa control across the Member States and obstruct the aim of facilitating legitimate travel to the EU. According to the CJEU, permitting reliance on non-listed grounds for refusal would also encourage ‘visa-shopping’, whereby applicants would look for the Member States that stick to the listed grounds.

As to the first question, the CJEU clarifies that, under the Visa Code, a visa may be refused where there is reasonable doubt as to the applicant’s intention to leave the territory of the Member States before the expiry of the visa. It is not necessary for the authority to be certain of the applicant’s intention to remain. Relevant factors to consider when ascertaining the applicant’s intention include the general situation in the applicant’s country of residence and the applicant’s individual characteristics.

Turning to the third question, the CJEU held that such a provision is permissible as long as it can be interpreted in a way consistent with the CJEU’s response to the second question. I.e. the provision must mean that the competent authorities cannot refuse to issue a uniform visa unless one of the grounds for refusal of a visa provided for in the Visa Code is applicable.

Professor Steve Peers, in his article ‘Do potential asylum - seekers have the right to a Schengen visa?’, suggests that the judgment raises questions about the grounds to refuse visa applications made by potential asylum-seekers. He notes that potential applicants for international protection ‘might well apply for a visa with the intention of leaving the country of origin in order to apply for asylum in the country which issues the visa’. He warns that to dispel reasonable doubt as to their intentions to return, potential asylum-seekers would need to be dishonest, but that ‘Article 31 of the Geneva Convention implicitly makes clear that the need to flee persecution justifies breaches of immigration law’.

Professor Peers highlights the other conditions for visas which many asylum seekers may find difficult to meet, namely holding a valid travel document, having subsistence, and not being listed on the Schengen Information System. Despite this, the Professor submits that if his reasoning is correct, ‘the Koushkaki judgment has opened a significant crack in the wall of 'Fortress Europe' for would-be asylum-seekers’.

Read the judgment and official press release of the CJEU, and Professor Peers’ blog article.

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

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