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By Dr. Violeta Moreno-Lax, Lecturer in Law, Queen Mary University of London

This is the first part of a two-part blog. See here for part II.

Part I

On 7 February 2017, Advocate General Mengozzi handed down his Opinion in the case of X, X v État belge, regarding the right to visas of limited territorial validity (LTV) on humanitarian grounds when there is a risk that an applicant will be exposed to torture or inhuman or degrading treatment. The Advocate General’s opinion was handed down against the backdrop of difficult negotiations between the European Parliament and the Council on provisions for humanitarian visas in the recast Community Code on Visas. This blog post, published in two parts, was prepared before Advocate General Mengozzi handed down his Opinion in X, X, but it takes into account this opinion. It was presented at the 2nd Annual Conference of the ODYSSEUS Network on 10 February 2017.

This post draws on Chapters 4 (visas), 7 (EU Charter), 8 (non-refoulement), 9 (asylum), and 10 (remedies) of Accessing Asylum in Europe (OUP, forthcoming in 2017), and takes account of previous research here, here, here, and here (see further Academia).

Introduction: Background Discussions on Humanitarian Visas

Discussions on humanitarian visas are not new. The measure was thoroughly examined in a study for the European Commission in 2002, resurfacing again in the context of the 2006 Green Paper on Asylum, and becoming the object of specific attention in the 2009 Stockholm Programme. A commitment to the development of a dedicated EU system of facilitated admission for asylum-seeking purposes was reiterated in 2013 in the Task Force Mediterranean Communication, propounding a ‘holistic approach’ to deal with maritime crossings and death at sea, including the opening of ‘legal channels to safely access the European Union to be explored’. Momentum was somewhat lost thereafter, with the Commission establishing that protected-entry procedures ‘could complement resettlement, starting with a coordinated approach to humanitarian visas and common guidelines’ in its 2014 Communication on An Open and Secure Europe. But neither the guidelines nor the coordinated approach have ever materialized. The focus has, instead, been on (voluntary) resettlement—particularly after the EU-Turkey Statement was adopted in 2016. In fact, the reference to humanitarian visas disappeared from the 2015 European Agenda on Migration, where legal channels for access to asylum were replaced with increased border control and cooperation with third countries to ‘prevent hazardous journeys’. The timid approach of the Commission and its stagnation in a permanent exploratory phase of ‘ways to promote a coordinated European approach’ regarding ‘humanitarian permits’ thus persists in the run up Towards a Reform of the Common European Asylum System.

In parallel, the negotiations on the recast Community Code on Visas, at the height of the so-called ‘refugee crisis’, have provided new impetus for further exchanges on this count, leading, however, to a polarization of political positions. While the European Parliament wants to clarify the regime applicable to humanitarian visas on the basis of existing provisions on Limited Territorial Validity visas (LTVs) in the current version of the Code, the prevailing view at the Council opposes such a move—against the backdrop of The Bratislava Roadmap insisting on border protection to ‘further bring down [the] number of irregular migrants’, and without consideration of international protection needs. Yet, within the Council, there are also stark divisions, with some of the ‘first entry’ Member States being quite vocal on the urgency of finding a ‘solution’ to boat arrivals. Most notably, the current Maltese Presidency has advocated for the ‘opening up [of] humanitarian corridors to allow people fleeing conflict to cross the Mediterranean’. The idea is for the EU to ‘organize humanitarian safe passages…that would get recognized asylum-seekers to Europe safely’, avoiding drowning and loss of life at sea—5,083 died last year, surpassing the record figure of 3,777 reached in 2015, according to IOM.

In the meantime, some Member States maintain measures for humanitarian admission as part of either ad hoc or more formalised resettlement or evacuation programmes, as a recent European Migration Network survey reveals. However, these are normally considered discretionary and managed largely ex gratia. The Belgian programme of humanitarian visas for family members of beneficiaries of international protection residing in Belgium, that provides the background to this post, is no exception in this regard. So, the question of whether there is ever, if at all, an obligation to allow entry through the issuance of a (LTV) visa under EU law is particularly relevant.

Request for preliminary ruling in Case PPU C-638/16 X, X v État belge

Case PPU C-638 X, X v Belgium revolves around the request for a Schengen visa by a family with two minor children of a young age from Aleppo, submitting an application under Article 25 of the Community Code on Visas (CCV) on account of humanitarian considerations, to allow the family to travel to Belgium and request asylum there. They assert the derelict situation obtaining in Syria, generally, and in Aleppo, in particular, with bombings and indiscriminate violence adding to direct attacks on the civil population by terrorist groups, government forces, and other fighting factions, as proof of the ‘extreme emergency’ situation in which they are immersed—as documented by Amnesty International and denounced by the UN and Ban Ki-Moon himself, qualifying Aleppo ‘as synonym for hell’. They also raise the specific risk of persecution they face as Christians on religious grounds, and adduce evidence of past ill-treatment suffered by X at the hands of militia captors, who only liberated him upon ransom. These circumstances have not been disputed by the Belgian government (Conseil de contentieux des étrangers de Belgique Arrêt 179 108 du 8 décembre 2016) and are supported by statistics in Belgium, reaching a figure of 97.6% positive recognition rates for Syrians of the total 2,792 requests filed in 2015.

The situation in neighbouring countries, including Lebanon—where the visa was requested—Jordan and Turkey, was also presented as substantiating the family’s plight. Lebanon has terminated the registration process of refugees run since the beginning of the Syrian war, is not a Contracting Party to the 1951 Refugee Convention (CSR51), and is not providing adequate assistance to current asylum seekers, hosting, as it is, the equivalent of 25% of its own population in Syrian exiles. Its Minister of Labour has actually called for the expulsion of Syrians to avoid clashes with the local population, inciting harassment against the displaced, with the Foreign Minister concurring that ‘the only sustainable solution to the crisis of the Syrian exodus to Lebanon is to return back the displaced persons to their homeland’. Jordan, in turn, housing over half a million Syrians and equally a non-party to the 1951 Convention, has closed its borders to further refugees, and has recently been accused of orchestrating an ‘ejection campaign’ back to Syria. Finally, regarding Turkey, with nearly 3 million registered refugees, reliable sources have reported that ‘Turkish border guards are shooting and beating Syrian asylum seekers trying to reach Turkey’. The Turkish-Syrian passage is also closed and there are plans for a new border wall to stop crossings. Erdogan’s forces have allegedly contributed to the degradation of the situation in Syria by bombing Kurdish militia, disregarding risks for civilians. In addition, as Amnesty International deplores, incidents of refoulement and illegal mass returns to Syria are on the rise since the conclusion of the EU-Turkey deal. Thus, none of these countries of transit towards the EU (and Belgium, in the present case) can be considered ‘safe third countries’ pursuant to the Union’s own definition in the Asylum Procedures Directive (APD), requiring the absence of refoulement/ill-treatment risks and, crucially, ‘the possibility…to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’ (Article 38(1)(e) APD). Qualification of Turkey, Jordan or Lebanon as ‘first countries of asylum’ is unjustified as well, considering the situation of refugees there—far from amounting to ‘sufficient protection…including benefiting from the principle of non-refoulement’ in substantive and procedural terms (Article 35 APD).

Against this backdrop, the situation of the claimants, from both an individual and general perspective, taking account of subjective and objective factors together (Article 4 Qualification Directive), leaves no room to doubt that, if allowed to claim asylum, they would prima facie qualify as either refugees or beneficiaries of subsidiary protection—like 97.6% of Syrian claimants in Belgium in 2015 and 98% in EU-28 over the same period. This is also the view of the referring court, which however expresses doubts as to the extent of obligations under the Visa Code in these circumstances, regarding in particular two concrete points referred to the CJEU for a preliminary ruling:

  1. Do the ‘international obligations’, referred to in Article 25(1)(a) CCV cover all the rights guaranteed by the EU Charter of Fundamental Rights (CFR), including, in particular, those guaranteed by Articles 4 and 18, and do they also cover obligations in the light of the ECHR and Article 33 of the Geneva Convention?
  1. A. In such case, must Article 25(1)(a) CCV 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 LTV visa has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 CFR or another international obligation by which it is bound is detected?
  1. B. Does the existence of links between the applicant and the Member State to which the visa application has been made (for example, family connections) affect the answer to that question?

The key issues to elucidate are therefore the applicability of the CCV to the case, the remit of LTV provisions, and the extent of protection obligations to asylum and non-refoulement in the (extraterritorial) visa-issuing context.

The Applicability of the CCV in International Protection Situations: LTVs

As Article 1 CCV makes clear, the Regulation establishes the procedures and conditions for issuing short-term visas under EU law and applies to ‘any third country national who must be in possession of a visa when crossing the external borders of the Member States’ according to the Visa Regulation 539/2001—which concerns all refugee-producing countries, including Syria. The motives underpinning the visa application are irrelevant at this juncture—they serve to assess the merits of the application (Article 21 CCV), but do not by themselves determine the applicability of the Visa Code per se (concurring: Mengozzi, para. 49 ff).

Contrary to the Belgian government’s allegations in X, X, the applicants’ intentions cannot alter the nature or subject of their claim, nor can they legally transform their application into one for a long-stay visa, thereby removing the applicants from the scope of application of the Visa Code. This would be tantamount to accepting, for instance, that failed asylum seekers were ab initio excluded from the remit of the Qualification Directive and the Asylum Procedures Directive because ex post, upon determination of their claims, it has been concluded that they did not qualify for refugee status or subsidiary protection. The fact that an application for either a visa or for international protection under EU law is dismissed on the merits (or even at the admissibility stage) cannot be confounded with the determination of whether the rules of the relevant instruments (i.e. the CCV or the QD+APD) apply to and govern the examination of the claim. The applicants’ circumstances (including motives and intentions) can therefore lead to the rejection of the application, but do not constitute a reason for the a priori non-application of the rules—that would be very dangerous, leading to a legal black-hole on imputed grounds, negating the rule of law. In fact, the linking factor to the QD+APD is simply that the person be an ‘applicant’, that is, ‘a third-country national…who has made an application for international protection in respect of which a final decision has not yet been taken’ (Article 2(i) QD). Similarly, regarding the CCV, its rules apply to any ‘application’ meaning ‘an application for a visa’ submitted by a ‘third-country national’, that is, ‘any person who is not a citizen of the Union’ whose entry is subject to obtaining a visa (Article 2(10) and 2(1) CCV).

On that basis, Schengen visas are conceived of as ‘authorisations issued by a Member State with a view to transit through or stay in the territory of the Member States of a duration of no more than three months in any six-month period’ (Article 2(2) CCV). But, crucially, there is no discretion to ‘refuse…to issue such a visa to an applicant unless one of the grounds for refusal…listed in [the CCV] provisions can be applied to that applicant’ (Koushkaki, para. 63). So, although visas are not issued ‘as of right’ to those requesting them, neither can they be considered as completely dependent on Member State whims. Sovereign discretion is delimited and constrained by EU law.

Arguably, this applies to the LTV provisions in the Code. The only difference with ‘normal’ visas, as to its effects, is that LTVs grant access to the territory of the issuing Member State only—instead of to the entire Schengen zone (Article 2(4) CCV). Otherwise, it appears that LTVs ‘shall be issued’ when the criteria of Article 25 CCV are met (Concurring: Peers). That provision foresees that ‘on humanitarian grounds…or because of international obligations’ it may be ‘necessary’ for Member States ‘to derogate from the principle that the entry conditions laid down in Article [6(1)] of the Schengen Borders Code must be fulfilled’. In fact, the Schengen Borders Code (SBC) applies ‘without prejudice to…the rights of refugees and persons requesting international protection’ (Article 3(b) SBC). The exception to entry rules on account of ‘humanitarian grounds…or because of international obligations’ is explicitly contemplated in the body of the Code (Article 6(5)(c) SBC)—to which visa rules explicitly refer (Article 21 CCV).

Yet, the Belgian government’s interpretation highlights the discretionary elements of Article 25 CCV’s formulation. The wording is indeed equivocal and could lead to opposing constructions. While the text stipulates that a LTV ‘shall be issued… for reasons of national interest or because of international obligations’, it also indicates that this be ‘exceptionally’ and only ‘when…a Member State considers it necessary’. Thus, whether there is an obligation to issue a LTV under certain circumstances, and whether such circumstances must be appraised in light of fundamental rights is open to contention. That there is a margin of appreciation seems undisputable. What remains to be clarified is the extent to which this margin is subject to and structured by the ‘humanitarian grounds’ and ‘international obligations’ mentioned therein.

Leaving momentarily aside the issue of the extent of the margin of appreciation, it is advanced that the effect of Article 25 CCV is to carve out an exception to ‘normal’ exclusion rules defined in Article 32 CCV, enumerating the circumstances in which a visa should ‘normally’ be denied. Rules on visa refusals under Article 32 CCV (i.e. the rule) should be interpreted as being ‘neutralized’ by Article 25 CCV (i.e. the exception). They apply ‘without prejudice to Article 25(1) [CCV]’. Article 25 CCV should thus be taken to create a parallel, exceptional regime to cater for Member State obligations arising, inter alia, in the context of ‘the right to asylum and to international protection’, as established in the Schengen Code. Indeed, Article 14(1) SBC encloses the twin provision of Article 32 CCV, requiring Member States to refuse entry to the Schengen zone to third-country nationals not fulfilling the normal conditions for admission, but indicating—as Article 32 CCV does in the framework of the visa-issuing procedure—that this be ‘without prejudice to the application of special provisions concerning [refugees]’. So, as much as refusals of entry are subject to respect for ‘the Charter of Fundamental Rights [CFR]…relevant international law, including…the Geneva Convention, [and] obligations related to access to international protection, in particular the principle of non-refoulement’ (Article 4 SBC), so too are visa rejections, as per the terms of the CCV Preamble (Recital 29).

So, coming back to the point on discretion, whatever the margin of manoeuvre allowed to Member States under Article 25 CCV, it must be concluded that it remains subject to the fundamental rights acquis, as foreseen by Recital 29 CCV. In any case, subjection to primary law (including fundamental rights) within the EU legal order does not require specific assertion to this effect. Its primacy is constitutionally scheduled in the Treaties and in case law. Hence, whether the term ‘international obligations’ used in Article 25(1)(a) CCV implicitly encompasses CFR obligations, as per Question 1 of the referring court, is not crucial (similarly: Mengozzi, para. 73 ff). The very structure of internal EU sources mandates subordination of rules of secondary law to the dispositions of primary law. As the Court of Justice (ECJ/CJEU) has consistently held, where ‘the wording of secondary law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the [EU] Treaty’ (Ordre des Barreaux, para. 28). This same tenet has been reiterated in the asylum context, with NS & ME making clear that ‘Member States must…make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the EU legal order or with the other general principles of EU law’ (NS & ME, para. 77). This is in line with the place reserved to fundamental rights within the hierarchy of sources, as founding values of the Union (Article 2 TEU) and as standards of validity/legality of EU acts (Article 6 TEU and 263 TFEU).

Consequently, the fact that the Visa Manual fails to contemplate the situation of asylum seekers as specific scenarios in which the issuance of a LTV may be justified is without consequence. Whether the list of examples provided therein is intended to be exhaustive is also irrelevant, as is the legal nature of the Manual (as either binding or non-binding). Being an act of the European Commission, its interpretation and application remains subject to the Treaties (and the Charter). And neither the Manual nor, ultimately, the Visa Code can limit the effect of primary law (Siples, para. 17).

The applicability of the CCV to X and X’s plight, as third-country nationals from a country requiring visas for entry into Schengen territory and the fact that the LTV provision and the margin of appreciation under Article 25 CCV must be interpreted in light of (and in line with) primary law, should, therefore, be beyond doubt. What remains to be determined is the extent of that margin, which in turn depends on the determination of the precise scope of application of EU fundamental rights, so as to provide a complete answer to the first question referred to the CJEU. This issue will be fully assessed in Part II of this post.