Adjudicating old questions in refugee law: MN and Others v Belgium and the limits of extraterritorial refoulement
Thomas Gammeltoft-Hansen is a professor with special responsibilities in migration and refugee law at the Faculty of Law, University of Copenhagen and Nikolas Feith Tan is a researcher at the Danish Institute for Human Rights.
On 5 May 2020, the Grand Chamber of the European Court of Human Rights (ECtHR) handed down its long-awaited decision in MN and Others v. Belgium, a case testing whether a Syrian family’s humanitarian visa application at the Belgian embassy in Beirut triggered the state’s human rights law obligations. In a majority decision, the Court held that the process of applying for a visa in person did not bring the applicants within European Convention on Human Rights (ECHR) jurisdiction, declaring the case inadmissible.
The decision has already been the subject of a number of scholarly reactions, ranging from reflections on refugees’ exclusion from the international legal order (here), the strategic value of the case and implications for legal pathways to protection (here), the exercise of public powers and conduct of diplomatic agents (here) and a comparison of the approaches of the Inter-American and European human rights courts’ on diplomatic asylum (here).
But the underlying question – whether asylum-seekers applying for a visa at an embassy or consulate trigger the non-refoulement principle – is also a long-standing and contested issue in refugee law scholarship. Following a short recapitulation of the facts and conclusions of the ECtHR, we address the contribution of MN and Others to this question and suggest some implications for future extraterritorial jurisdiction jurisprudence.
The Case: A Syrian family applies for humanitarian visas at the Belgian embassy in Beirut
In August 2016, the applicants, a Syrian couple from Aleppo with two children, traveled to the Belgian Embassy in Beirut and applied for visas with limited territorial validity under Article 25 of the EU Visa Code, which provides for the issue of a 90-day visa for humanitarian reasons. The applicants intended to enter Belgium and apply for asylum.
The Belgian Aliens Office rejected their requests and the applicants appealed the decision to the Council for Alien Law Litigation (CALL). The appellate body found that the situation in Aleppo reached the threshold of Article 3 ECHR and returned the case to the Aliens Office, which once more rejected the applicants visa requests. Following further national judicial proceedings, the applicants began proceedings before the ECtHR claiming breaches of Articles 3 and 13, as well as Article 6. On 20 November 2018, the Chamber relinquished jurisdiction in favour of the Grand Chamber. Eleven governments intervened on the side of Belgium, arguing that ECHR jurisdiction did not extend to the applicants, and perhaps signaling the significant political interest in the outcome.
The facts in the present case are of course broadly similar to X. and X. v Belgium before the Court of Justice of the European Union (CJEU; see analysis here and here). The opinion of Advocate General Mengozzi raised attention among both refugee advocates and governments. Stressing the dramatic situation in Syria, he concluded that Belgium was required to grant a humanitarian visa where refusal would expose the applicants to a real risk of serious harm in breach of Article 4 of the Charter (see work supporting the Advocate General’s findings here and here). The eventual decision of the CJEU in that case, however, significantly departed from the AG’s opinion and summarily concluded that applications for humanitarian visas is a national issue outside EU law, thereby bypassing any considerations in regard to the Charter of Fundamental Rights.
Such an escape is not available to the European Court of Human Rights. In MN and Others the Grand Chamber thus went on to consider the issue in more substance, and from the perspective of the court’s evolving jurisprudence on extraterritorial jurisdiction. The end result did not change the position of the applicants – the Grand Chamber held that the relationship between the applicants and the Belgian state was not such as to bring the family within Belgium’s ECHR jurisdiction. As well as hammering home the limits of ECHR jurisdiction as primarily territorial and applying extraterritorially only in certain, exceptional circumstances, the Grand Chamber further confirms that neither the physical presence of asylum seekers in an embassy or consulate nor the handling of a visa application by national authorities trigger ECHR jurisdiction, in and of themselves.
Thus, with respect to their presence at the embassy, the Court found: ‘at no time did the diplomatic agents exercise de facto control over the applicants. The latter freely chose to present themselves at the Belgian Embassy in Beirut, and to submit their visa applications there – as indeed they could have chosen to approach any other embassy; they had then been free to leave the premises of the Belgian Embassy without any hindrance’ (para 118).
With respect to the handling of visa applications, the Grand Chamber held that the bringing of national proceedings was incapable of ‘creating an exceptional circumstance which was sufficient to trigger, unilaterally, an extraterritorial jurisdictional link between the applicants and Belgium’ (para 121).
More generally, the judgment seems to align with what appears to be a recent restrictive trend in the Court’s rulings on migration issues. In Ilias and Ahmed v. Hungary weakened Article 5 protection in regard to migrant detention. In N.D. and N.T. v Spain the ECtHR limited the prohibition against collective expulsion. With MN and Others settling the question of extraterritorial jurisdiction for visa applications in the negative, this trio of Grand Chamber judgments point to a new and more cautious direction of the Court in regard to migration-related rights under the ECHR.
Looking back: Non-refoulement and visa applications
For years refugee law scholars have weighed in on the applicability or otherwise of the non-refoulement obligation when an asylum seeker applies for a visa at an embassy or consulate. Indeed, the question goes well beyond the issuing of humanitarian visas, as visa requirements generally are one of the oldest and most established forms of migration control. In the absence of an international court or dedicated treaty committee to support the international refugee law regime, differing interpretations have persisted in the academic literature, often bolstering analysis of the limited national and international case law specifically on this issue with interpretations of the wider jurisprudence on extraterritorial jurisdiction jurisprudence and more principled argumentation.
Moreno-Lax, for instance, has argued that as a state has ‘complete authority and control to interfere with the regular admission to its territory of any particular alien concerned’, the decision to reject a visa triggers a state’s jurisdiction as well as the non-refoulement principle. More directly challenging existing jurisprudence, others have argued in favour of a ‘functional’ (Baxewanos) or ‘public powers’ (De Leo and Ruiz Ramos) approach to extraterritorial jurisdiction encompassing visa situations. Lauterpacht and Bethlehem go even further suggesting that Article 33 of the Refugee Convention may apply in circumstances where asylum seekers take up refuge in diplomatic missions of another state located in their country of origin. Less expensively, Noll concludes that, in exceptional situations, extraterritorial jurisdiction may be enlivened in cases of humanitarian visa applications, on the basis of a number of factors drawn from Soering. More pessimistically, Gammeltoft-Hansen has suggested that while jurisdiction may be established, refusal to grant a visa is in and of itself generally unlikely to establish a sufficient causal link to a future breach.
It is this context that MN and Others enters into and for better or worse provides another ‘waypoint’ in the complex interpretation of the non-refoulement principle’s extraterritorial reach and application. In line with the CJEU in X. and X. v Belgium and state practice, the Court in MN and Others supports a restrictive application of extraterritorial jurisdiction in visa application cases. The argumentation, however, differs from each of the positions summarised above. The Grand Chamber found that the act of submitting a visa application was insufficient to ‘trigger an extraterritorial jurisdictional link between the applicants and Belgium’ (para 121). Here the Court relied on its 2014 decision in Abdul Wahab Khan v United Kingdom, in which the applicant unsuccessfully argued that the launching of administrative proceedings in the UK from Pakistan reached the jurisdictional threshold. The Court in MN and Others thus emphatically rejects a jurisdictional link based on the launching of administrative proceedings alone, stating that such construction of jurisdiction would enshrine:
…a near-universal application of the Convention on the basis of the unilateral choices of any individual, irrespective of where in the world they find themselves, and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment contrary to the Convention outside their jurisdiction… If the fact that a State Party rules on an immigration application is sufficient to bring the individual making the application under its jurisdiction, precisely such an obligation would be created. (para. 123).
As emphasised by other commentators, the final conclusion by the Court is hardly surprising considering both the general trajectory of the Court’s jurisprudence and the political context of the case. More generally, the decision highlights that the increasing and often celebrated role of general human rights courts and bodies providing a form of surrogate adjudication in the area of asylum remains a double-edged sword for the ongoing development of legal interpretation.
Looking forward: A wider setback for future jurisprudence on extraterritorial jurisdiction?
The expected nature of the inadmissibility decision notwithstanding, refugee lawyers should nonetheless pay attention to particular reasoning of the Grand Chamber’s in MN and Others, which might have wider detrimental effects on the Court’s future jurisprudence on extraterritorial jurisdiction in several respects.
First, the emphasis on the exceptional nature of extraterritorial jurisdiction appears to be particularly pointed in this judgment (paras 98–101). The Grand Chamber does not simply insert the usual disclaimer that a State’s jurisdictional competence for the purpose of Article 1 is ‘primarily territorial’ (para. 98). It also revives the old all-or-nothing approach set out in Bankovic, arguing that any extraterritorial exercise of jurisdiction is ‘as a general rule, defined and limited by the sovereign territorial rights of the other relevant States’ (para. 99). To our knowledge, it is the first time that the Court cites this particular passage from Bankovic, and it is bound to raise questions in relation to the Court’s subsequent jurisprudence, which generally applies a less rigid understanding of the concept. Nor does it reflect a proper reading of the public international law concept of jurisdiction that the Court seeks to invoke. The law of jurisdiction, as Milanovic reminds us, is after all entirely occupied with exceptions to the principle of territoriality.
Second, MN and Others did not usefully develop the ‘public powers’ doctrine introduced in Al-Skeini and Other v United Kingdom. The Court did acknowledge Belgium’s exercise of ‘public powers’ in taking a decision on the applicants’ visa application, but this was not sufficient to trigger jurisdiction, either territorially (para 112) or extraterritorially (para 122). As Stoyanova has recently pointed out, ‘the role of ‘public powers’ continues to be unclear for triggering the jurisdiction threshold. Based on M.N. and Others v Belgium, it seems though that it cannot be an independent model without any additional elements of personal or territorial physical control.’ Such a reading clearly goes against other, more optimistic assessments of the public powers doctrine to situations of migration control.
Third, the Court in MN and Others seems to circumscribe the situations in which the conduct of a state’s diplomatic agents triggers jurisdiction over aliens to a relationship of physical control. Existing jurisprudence has established ECHR jurisdiction where diplomatic or consular agents exercise physical power or control over persons. In W.M. v. Denmark, notably, the Commission found that Danish diplomatic agents’ handing over of an East German national who had sought protection to DDR police and subsequent detention triggered jurisdiction, though the case was deemed inadmissible as no violations could be attributed to Denmark. Similarly, the UK Court of Appeal held that ECHR jurisdiction was triggered when asylum seekers in Australia escaped detention and took refuge in the British consulate in Melbourne. As noted above, the Grand Chamber in MN and Others distinguished the above caselaw, finding that ‘at no time did the diplomatic agents exercise de facto control over the applicants’, noting the free choice of the applicants to select, enter and leave the Belgian embassy in Beirut (para 118).
Finally, the Grand Chamber rather obliquely referred to the availability of legal pathways to protection relied upon in its recent decision in N.D. and N.T. v Spain, mentioned above, which concerned two Mali and Côte d’Ivoire nationals who attempted to enter the Spanish enclave of Melilla from Morocco by climbing the fence as part of a large group of migrants. They reached Spanish territory but were subject to ‘hot return’ to Moroccan officials by the Spanish Guardia Civil. The Grand Chamber held no violation of Article 4 of Protocol No. 4 (prohibition of collective expulsion), finding that the applicants had placed themselves in danger, used a large group to enter illegally and did not use legal pathways available to them, including via a nearby Spanish consulate. While the Court in ND and NT v Spain insisted that such legal pathways be genuine and effective (paras 209-210), MN and Others confirms that legal pathways such as humanitarian visas are not in fact governed by the ECHR.