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

This is the second part of a two-part blog. See here for part I.

Part II

Drawing on Part I of this post, the object of Part II is to determine the extent of the margin of appreciation available to Member States under Article 25 CCV. On the basis of the conclusion from Part I that the Community Code on Visas (CCV) applies to X and X (Case PPU C-638 X, X v Belgium), what remains to be established to answer thoroughly the questions of the referring court is the applicability of the Charter of Fundamental Rights (CFR) and the consequences ensuing in such situation.

LTVs (Limited Territorial Validity visas), Extraterritoriality, and the Charter of Fundamental Rights

I have argued elsewhere that ‘jurisdiction’ has no bearing in the interpretation of the scope of application of the EU Charter (concurring: Mengozzi, para. 75 ff). Statist notions of ‘sovereign authority’ and ‘effective control’, as they operate in the framework of the ECHR, are inapplicable within EU law. The only threshold criterion for the application of the Charter relates to the ‘EU-relevant’ nature of the situation at stake. If there is a connecting link making EU law relevant to the case, then the Charter provisions apply as well. This is the conclusion of Fransson, establishing that ‘situations cannot exist which are covered in that way by European Union law without…fundamental rights being applicable. The applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter’ (para. 21).

Thus, territoriality plays no role in this regard. What counts is whether the EU or the Member States are acting within the remit of EU law. Charter provisions are addressed to ‘the institutions, bodies, offices and agencies of the Union…and to the Member States only when they are implementing Union law’. As a result, they ‘shall’ respect Charter rights and principles, promoting the application thereof within the realm of their respective powers (Article 51(1) CFR).

Following the Charter Explanations, the issuance or refusal of visas under the CCV amounts to a clear instance of ‘implementing EU law’, as it entails direct application of an EU Regulation to the case at hand. Indeed, as per the CJEU, a ‘Regulation is binding “in its entirety” for Member States. In consequence, it cannot be accepted that a Member State should apply in an incomplete or selective manner provisions of a [EU] Regulation so as to render abortive certain aspects of [EU] legislation which it has opposed or which it considers contrary to its national interests’ (Commission v. Italy, para. 20). Consequently, where activities covered by the Visa Code take place (e.g. consideration of LTV requests under Article 25 CCV), a fortiori the guarantees therein become applicable as well (as per Recital 29 CCV. See Part I of this post).

Even the use of an option/derogation/exception provided for by the CCV—such as that contemplated in the wording of Article 25(1)(a), employing the terms ‘when…consider[ing] it necessary’—is covered by this notion (concurring: Mengozzi, para. 80 ff). Borrowing from the CJEU, a ‘discretionary power’ conferred on the Member States by an instrument of EU law forms part of the system regulated thereby and, as such, ‘a Member State which exercises that discretionary power must be considered as implementing EU law within the meaning of Article 51(1) of the Charter’ (NS & ME, para. 68). Thus, the applicability of the CCV and the Charter provisions to the case of X, X cannot be disclaimed.

LTVs and EU Non-Refoulement

The principle of non-refoulement forms part of the fundamental rights acquis as an absolute protection; the substance of Article 3 ECHR has been ‘absorbed’ within the EU legal order in several guises. Non-refoulement forms part of the general principles of EU law (Elgafaji, para. 28), it has been codified in primary law in Articles 4 and 19 CFR, and it has equally entered the text of EU acts of secondary law regarding external borders (Articles 3(b) and 4 SBC). The principle thus penetrates the Union system all-pervasively—in line with its standing as a canon of customary international law (Bethlehem/Lauterpacht), if not a jus cogens norm (Allain).

Focusing on its concrete manifestation as a rule of primary law, drawing on the Charter Explanations, Article 4 CFR must be read as including the substance of the protection enshrined in Article 3 ECHR (and, it is posited, also that of Article 33 CSR51). This ‘cumulative standards’ approach (Accessing Asylum in Europe, ch. 7) understands Charter provisions to ‘reaffirm’ individual rights ‘as they result, in particular, from the constitutional traditions and international obligations common to the Member States’, including those flowing from the ECHR and the CSR51—this is the interpretative technique generally followed in EU asylum case law (e.g. Abdulla, paras 51-53). Following AG Trstenjak in her Opinion on N.S., ‘[e]ven though an infringement of the Geneva Convention or the ECHR…must be distinguished strictly, de jure, from any associated infringement of EU law, there is, as a rule, a de facto parallel in such a case between the infringement of the Geneva Convention or the ECHR and the infringement of EU law’ (para. 153)—accordingly, Member States’ ‘legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions’ (mutatis mutandis, Amuur, para. 43; confirmed: M.S.S., para. 216).

Therefore, ratione materiae, any measure ‘the effect of which is to prevent migrants from reaching the borders of the State [concerned]’ may amount to refoulement if it exposes the applicant to ill-treatment (Hirsi, para. 180; confirmed: Sharifi, paras 112 and 115). There is no need to prove direct causation, as the matter is one of prospective harm; foreseeability of a ‘real risk’ suffices in this regard. So, a visa refusal the consequence of which is to prevent access to safety may well impinge upon Article 3 ECHR and Article 4 CFR. The fact that the applicant may have (in the abstract) a possibility to address her request to a different State is immaterial, particularly because ‘this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in’ (Amuur, para. 48; confirmed: M.S.S., para. 216)—as is the case of X and X.

Yet, any restrictions ratione loci or ratione personae attached to Article 3 ECHR or Article 33 CSR51 are not transposable to Article 4 CFR in disregard of its specific design (see, resisting similarly limitative transplants from IHL, focusing instead on the text/context/purpose of EU law: Diakité and commentary). The protection against refoulement envisaged in the Charter covers everyone without exception (unlike Article 33 CSR51), and its territorial reach depends only on Article 51 CFR. As noted by Mengozzi (paras 97-101), the ECHR (and arguably also the CSR51) work as minimum floors of protection below which the CFR cannot fall, but they should not be taken to prevent the more extensive protection that EU law can and does provide in several respects (Article 52(3) CFR; cf. Elgafaji vs. Article 3 ECHR case law prior to Sufi & Elmi). The incorporation of foreign, unwritten limitations into the text of the Charter would violate the principles of legality and narrow interpretation of exceptions under EU law (Article 52(1) CFR) and go equally against the autonomous construction of EU notions as per the independent requirements of the system, constraining their application on the basis of restrictions imposed elsewhere and for purposes alien to the CFR—whose ultimate goal is explicitly to ‘strengthen the protection of fundamental rights’ (Recital 4).  

Yet, as evidenced during discussions at the 2nd Annual Conference of the Odysseus Network, there are some who insist that the phrase: ‘the meaning and scope of [CFR] rights [which correspond to ECHR rights] shall be the same as those laid down by the [ECHR]’ in Article 52(3) CFR mandates incorporation within the remit of application of Article 4 CFR of the territorial restrictions applicable to Article 3 ECHR due to Article 1 ECHR. This, however, would negate the specific nature and objectives of the Charter within the (separate) EU legal order and break the coherence governing the entire fragmenting the territorial scope of Charter provisions depending on exogenous conditions originating in a different legal regime, so that CFR rights drawing on ECHR rights would depend on Article 1 ECHR to define their scope of territorial application, while the remit ratione loci of other CFR provisions would be determined by Article 51 CFR alone. This would negate the explicit terms of Article 51 CFR, which, as its title clearly indicates, is the lex specialis, within the Charter system, governing its (entire) ‘field of application’. Constraining the territorial application of Article 4 CFR to Article 1 ECHR through a selective interpretation of Article 52(3) CFR (which explicitly foresees that ‘this provision shall not prevent EU law providing more extensive protection’), sidelining the literal tenor of Article 51 CFR, constitutes a contra legem interpretation that is unsustainable under EU law. Paraphrasing the Strasbourg Court, to accept this and ‘to afford [Article 4 CFR in line with Article 1 ECHR dispositions] a strictly territorial scope, would result in a discrepancy between the scope of application of the [Charter] as such [as governed by Article 51 CFR] and that of [Article 4 CFR], which would go against the principle [of coherence]’, demanding that the Charter ‘be interpreted as a whole’ (Hirsi, para. 178).

A similar move was attempted in the context of the Bank Saderat Iran case, where the General Court refused the import of limitations ensuing from Article 34 ECHR in the interpretation of CFR provisions (in an extraterritorial case), chiefly on the ground that ‘Article 34 ECHR is a procedural provision which is not applicable to procedures before the Courts of the European Union’ (para. 36). The same should occur regarding the import of Article 1 ECHR constraints on Article 3 ECHR (and equivalent interpretations of Article 33 CSR51) when appraising visa-issuing proceedings under the CFR.

Otherwise, if the CJEU decided to break the coherence of Charter provisions and accept a reduction of the scope of application of Article 4 CFR through the back door, it would still be confronted with the fact that visa issuance is one of the undisputed legal bases granting extraterritorial de jure jurisdiction to Member States that the Strasbourg Court has consistently acknowledged as triggering the action of Article 1 ECHR. Indeed, ‘recognised instances of the extra-territorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad… In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant State’ (Bankovic, para. 73; confirmed: Al-Skeini, para. 134). And, according to Article 5(d) Vienna Convention on Consular Relations, visa issuance cannot but be considered part and parcel of those ‘activities’, being explicitly listed as consular functions exercised on behalf of the issuing State, as a manifestation of its sovereign right to control entry by foreigners into territorial domain. Thus, even if the territorial scope of Article 4 CFR was to be subjected to Article 1 ECHR, the applicability of EU non-refoulement to the case of X, X would be inescapable (in this line: Spijkerboer/Brouwer/Al Tamimi).

Regarding the possible margin of appreciation left to Member States to assess the circumstances in which the refusal of a LTV may lead to refoulement, in light of the circumstances (general and personal) of the applicants in X, X, this is non-existent in the present case—considering the dire situation in Aleppo, Syria, and neighbouring States. Generally, as AG Mengozzi underlines (paras 121, 129, 131), the exercise of discretionary clauses in EU instruments is subject to Member State obligations under the Charter. Thus, before refusing a visa under Article 32 CCV, account must be taken of the consequences, in light, especially, of the (absolute) prohibition of refoulement under Article 4 CFR. If the refusal may lead to a ‘real risk’ of exposing the applicant to irreversible harm, the option to issue a LTV contemplated in Article 25 CCV turns into an obligation to deliver one to avoid the risk from materialising (concurring: Mengozzi, para. 132 ff). If there are no other practicable alternatives to ensure (in law and in practice) the effet utile of non-refoulement, the issuance of a LTV becomes compulsory. Any other construction would render ‘practically impossible or excessively difficult the exercise of rights conferred by [Union] law’ (Unibet, para. 43), contrary to the aspiration of the Charter to ‘guarantee real and effective…protection’ (mutatis mutandis, Von Colson, para. 23).

In such cases, a negative obligation not to refouler enjoins Member States to engage in positive action. As adjudged in Căldăraru (paras 90 and 94), ‘it follows from the case-law of the ECtHR that Article 3 ECHR imposes, on the authorities of the [Member] State[s]…a positive obligation’ to ensure compliance with the prohibition of ill-treatment, which applies in relation to Article 4 CFR as well (as the provision shares the same ‘meaning and scope’ ratione materiae pursuant to Article 52(3) CFR).

In these circumstances, like in similar scenarios governed by the principle of mutual trust, the requirement to comply with fundamental rights requires Member States to set their reciprocal confidence aside so as to honour absolute obligations under the CFR (NS & ME, paras 79-86 and 94-98). Mutual trust cannot ‘undo’ CFR duties, nor can it modify their nature and extent. So, an interpretation that would make observance of international obligations into ‘exceptions’ to the system of inter-State confidence (to be narrowly construed) would amount to putting the cart before the horses, ignoring the hierarchy of sources within Union law (Kadi I, paras 169-170). It is the margin of appreciation of Member States that is subordinate to compliance with CFR duties, not the scope of CFR provisions which are subject to sovereign discretion. EU countries do have an ‘undeniable sovereign right to control aliens’ entry into and residence in their territory’, but that right ‘must be exercised in accordance with [CFR obligations]’ (mutatis mutandis, Amuur, para. 41).

Accordingly, the reply to Question 2 must be in the affirmative, so that Article 25(1)(a) CCV be interpreted as meaning that a Member State to which an application for a LTV visa has been made is required to issue the visa applied for, where a real risk of infringement of Article 4 CFR is detected (Mengozzi, paras 3 and 163).

To that end (and in accordance with the rights to good administration and effective judicial protection in Articles 41 and 47 CFR), national authorities must take account of both the general and particular circumstances of the applicant concerned (Article 4 QD), relying on published sources and taking proactive steps to ascertain the reality of the risks faced by the him/her, ‘carrying out a thorough and individualised examination of the situation of the person concerned’ (Tarakhel, para. 104; Article 4 SBC), ‘before any individual measure which would affect him or her adversely is taken’ (MM, para. 83). Knowledge of the circumstances will otherwise be imputed on the Member State (M.S.S., para. 358; Hirsi, para. 121; NS & ME, para. 88; Mengozzi, para. 140 ff) and failure to adopt preventative means to spare the applicant from foreseeable harm will amount to a violation of the CFR.

The absence of links between the applicant and the Member State to which the visa application is made has no effect in this constellation (concurring: Mengozzi, para. 161). As much as ‘[t]he source of the risk does nothing to alter the level of protection guaranteed by [non-refoulement]’, neither does the concurrence of additional connecting factors to the requested Member State (Tarakhel, para. 104). Requiring additional criteria would actually amount to indirectly introducing a (prohibited) limitation to non-refoulement (cf. Article 52(1) CFR), upsetting its absolute nature.

LTVs and the EU Right to Asylum

Space constraints impede the thorough examination of the additional effect on LTVs of the right to asylum enshrined in Article 18 CFR. I invite readers to peruse ch. 9 of Accessing Asylum in Europe for a detailed account. Suffice it to note here that the principle of effectiveness pleads against a reductionist construction of Article 18 CFR that would render the protection it affords redundant or subsumed within Article 4 or 19 CFR. Its content shall be appraised as being distinct from a (reiterative) protection against refoulement. That it entails a right to recognition for one of the international protection statuses recognised within EU law should be beyond doubt (Article 78 TFEU). Both Articles 13 and 18 QD use the imperative ‘shall’ to establish the obligation on Member States to accord asylum to those qualifying under the Qualification Directive (QD) provisions—an issue that the CJEU has also clarified, noting that ‘[u]nder Article 13 of the Directive, the Member State is required to grant refugee status to the applicant if he qualifies…’ (Abdulla, para. 62), applying the same logic to Article 18 QD, according to which ‘Member States are to grant that status to a third-country national eligible for subsidiary protection’ (M’Bodj, para. 29). In this framework, the QD provisions should be considered to constitute concrete specifications of the right to asylum in the CFR (mutatis mutandis, Mangold)—which, however, do not exhaust its independent substance.

The personal scope of the EU right to asylum, despite the absence of a subject in the wording of the Charter provision, should be considered to cover third-country nationals generally (in line with the Asylum Protocol and as confirmed by the CEAS instruments adopted so far). And territorially speaking, the remit ratione loci of Article 18 CFR should not vary from that of the (entire) Charter. Here again, the principle of coherence points in this direction, as does the fact that Article 51 CFR is a horizontal provision governing the ‘field of application’ of the Charter as a whole.

If this is true, the exercise of the right to asylum must be made possible, both in law and in practice—regardless of territorial considerations. There must be a legal means to ensure safe and regular access to asylum for refugee visa applicants, as in X, X, to be capable of effectively enjoying their entitlement to international protection under EU law. Depriving the claimants of a legal channel to exercise what is their legitimate right under the Charter cannot be considered a good faith interpretation / application of the CFR provisions (similarly: Mengozzi, para. 163).

Conclusions and Implications

Several conclusions derive from the foregoing analysis that can be briefly recounted:

1. First of all, there is a pressing need to de-politicize refugee / asylum seeker rights and interpret / apply them as any other of the subjective entitlements deriving from the EU acquis;

2. In this line, EU law interpreters / implementers ought to stop importing legal categories / limitations from exogenous systems and treat the CFR as first rank primary law, faithfully adhering to its provisions, in light of their object and purpose (as made explicit in its Preamble and the Charter Explanations);

3. Relatedly, since the EU is not a State, the import of statist notions of sovereignty and territory as litmus tests determining the applicability of Charter protections is unwarranted;

4. The scope of application of EU rights is the same as that of EU law generally, as determined by the Court (Fransson);

5. And the applicability of EU law (simply) depends on the concurrence of a connecting factor / relevant link that renders the particular situation ‘EU-relevant’;

6. Therefore, measures of EU border and pre-border control remain subject to compliance with EU fundamental rights, including in the context of visa-issuing procedures under the CCV;

7. So, where the CCV applies, the CFR follows, and, with it, so does EU protection against refoulement under Article 4 CFR (as well as the right to asylum in Article 18 CFR);

8. As a result, when contemplating the denial of a visa under Article 32 CCV, where this could lead to a ‘real risk’ of a prospective violation of Charter rights (especially those of an absolute nature), the faculty foreseen in Article 25 CCV must be used to deliver a LTV to ensure protection in conformity with CFR standards;

9. Indeed, where there are no other legal and practicable alternatives, as in the case of X and X (Mengozzi, para. 157), positive action must be adopted by the Member States to ‘guarantee not rights that are theoretical or illusory but rights that are practical and effective’ (Artico, para. 33);

10. The ‘floodgates’ point raised by the Belgian government is irrelevant in this context—regardless of its hypothetical potential side-effect as an incentive to step up international assistance to Lebanon and ensure effective protection within the region of origin (cf. Spijkerboer/Brouwer/Al Tamimi, para. 5.2). There are several reasons buttressing this conclusion—some of which have already been identified by Mengozzi himself (para. 169 ff):

10.1 The point is empirically unsubstantiated, as demonstrated by the numbers concerned in past experiences with evacuation and resettlement schemes. Plus, in the remote case of a mass influx deriving from an application of Article 25 CCV in line with the CFR, the Temporary Protection Directive provides the tools to cope with the issue. The clogging of Member State embassies is anyway improvable. The number of visas issued daily in EU-28 is in the thousands, with the system having never collapsed on that account—according to the European Commission, in 2015 alone, Member States managed to issue a total ‘14.3 million visas for short stays’ without incidents. But if a rationalization of the LTV system was desired nonetheless, the CCV provides tailor-made options to this effect, leaving ample freedom for Member States to manage applications electronically, for instance, or with the collaboration of honorary consuls or via Common Application Centres (Article 40 ff CCV), which would allow coordination with Dublin rules.

10.2 Yet, the floodgates argument is misplaced on a more fundamental level. It reifies beneficiaries of Charter entitlements reducing them to a ‘mass’ or a collective figure, diminishing the agency and dignity of rights-bearers. Above all, the fear of numbers does not constitute a legal argument, let alone one capable of warranting the limitation of absolute rights. In truth, compliance with the CFR is not optional or open to negotiation (Article 6 TEU and Article 51 CFR), and given the ‘absolute character’ of the rights concerned, even a mass influx or other commensurate difficulties ‘cannot absolve a State of its obligations under [the relevant] provision[s]’ (Hirsi, paras 122-23). Potential ‘problems with managing migratory flows cannot justify recourse to practices which are not compatible with the State’s obligations…’ (Hirsi, paras 179). Thus, the CJEU, when deciding on X, X should strictly adhere to EU law (Article 19 TEU), avoiding political or ideologically motivated temptations.

Click here for Part I of this blog post.