General background
On 12 December 2016, the European Court of Justice (ECJ) received a request for a preliminary ruling from the Belgian Council for asylum and immigration proceedings. The case concerned a Syrian family living in Aleppo, Syria. Relying on Article 25(1)(a) of the EU Visa Code, the family applied for humanitarian visas with limited territorial validity at the Belgian Embassy in Beirut on 12 October 2016 (para 19).
According to the applicants, the purpose of applying for humanitarian visas was to allow them to enter Belgium and to seek asylum there (para 20). During the main proceedings before the Belgian Immigration Office, the applicants claimed, among other things, that one of them had been subjected to torture and abducted by a terrorist group. The applicants further emphasized the risk of persecution due to the family’s Orthodox Christian beliefs. They also claimed that the closure of the borders between Syria and Lebanon had made it impossible for them to register as refugees in neighbouring countries (paras 20-21).
On 18 October 2016, the Belgian Immigration Office rejected their applications inter alia on the grounds that the family intended to stay in Belgium longer than the Visa Code permits, and also that the situation fell outside the territorial scope of the European Convention on Human Rights (ECHR), therefore Article 3 therein could not be invoked. In addition, the Belgian Immigration Office stated that Belgian diplomatic posts are not authorised to issue entry visas in order to enable the applicants to seek asylum in Belgium. The Belgian Immigration Office reasoned that such an authorisation would be equivalent to allowing asylum applications to be submitted to diplomatic posts (para 21).
The applicants challenged the decision and the case was subsequently brought before a Belgian national court. The applicants claimed that in order to respect Article 3 ECHR and article 4 of the EU Charter of Fundamental Rights (the Charter), the Belgian authorities were obliged to grant them international protection (para 22). The Belgian State did not consider itself to be under any obligation to admit third-country nationals into its territory, neither under Article 3 ECHR, nor under Article 33 of the Geneva Convention.
In this context, the Council for asylum and immigration proceedings referred questions regarding the interpretation of Article 25(1)(a) of the Visa Code, in the light of the ECHR and Article 33 of the Geneva Convention, to the ECJ for a preliminary ruling (paras 23-28).
Decision and reasoning
The request for a preliminary ruling was granted on 15 December 2016, and the case was subsequently assigned to the Grand Chamber (para 34). In its judgment, the Grand Chamber recalled that the objective of the Visa Code is to regulate short term visits or transits through member states (para 41). The applicants’ intention to apply for asylum in Belgium, with the purpose of obtaining a residence permit that would last for more than 90 days, did thereby not correspond with the definition of “visa” as enshrined in the Visa Code (para 42).
The Court also found that, even though Article 25 of the Code allows for the issuing of visas on humanitarian grounds, the nature of the Syrian family’s application, fell outside the scope of the code. This reasoning was based on the fact that the purpose of the application was not to attain a short term visa (para 47), and more importantly that there are no measures adopted under EU law that regulate the issuing of long term visas or of permanent residence permits. The issue therefore falls exclusively under the scope of national law (paras 41-44).
In the light of this, the Court held that since the issue in the main proceedings of the case at hand was not governed by EU law, Articles 4 and 18 of the Charter could not apply to the situation either (para 45). It was also stressed that allowing for visa applications through diplomatic posts, with the intention to seek asylum in a member state, would indirectly allow third country nationals to seek asylum through the representations of member states within the territory of another state (para 49). Imposing such an obligation on member states would undermine the entire purpose of the Dublin III Regulation (para 49).
Comments
This judgment has been subject to criticism for multiple reasons. There is no mentioning of Article 3 ECHR in the ECJ judgment. Presumably, the Court did not proceed to interpret the Article in question since it had already found that the main issue of the situation was governed by national law. This point was e.g. raised by Helena De Vylder, lawyer at the Flemish Integration Agency. She emphasised that since the ruling is silent in regard of Article 3 ECHR, the interpretation of the provision was left open, which means that the issue must be decided by the national authorities of the case.
As De Vylder also points out, the Court missed an opportunity to clarify the definition and the scope of member states’ obligations to issue ‘humanitarian visas’. In addition, the outcome of the case reaffirms the paradoxical situation in which those seeking asylum must enter the territory of a member state in order to lodge asylum applications, while EU members states simultaneously make it more and more difficult to enter the Union. De Vylder refers to this as a Catch 22-situation. Moreover, the uncertainty created by not providing guidance as to the interpretation of ‘humanitarian visas’ might lead to disparities in the application of the Visa Code.
It is important to note that the ECJ ruled against the opinion of the Advocate General in this case. Advocate General Mengozzi firmly recommended the issuing of visas on humanitarian grounds to the Syrian family since they had no other options open to them. This opinion has also been supported by inter alia a Senior Policy Officer at the NGO the European Council on Refugees and Exiles, Caoimhe Sheridan and Coordinator Amanda Taylor. In an article for the European Database of Asylum Law, Sheridan and Taylor argue that the ECJ took an easy way out in ruling that the issue of the case fell outside the scope of the Visa Code, and by extension EU law in general.
In the article, the authors argue that the issue did indeed fall within the scope of the EU’s competence. To support their arguments the authors make references to other cases (see e.g. Åkerberg Fransson, Siragusa, and IBV v Région wallonne) which the Court could have relied on in order to reach such a conclusion. Similarly to De Vylder, Sheridan and Taylor point out that this would have contributed to a much-needed clarification of EU law in this regard. In the light of this, it seems as if the ECJ could have reached a different conclusion by relying on its previous case law. However, because of the technical and succinct nature of the judgment, it is difficult to distinguish why the Court did not do so. Having said that, it would perhaps not have been appropriate for the Court to be more elaborate on the subject matter of the case, since it found that the main issue fell outside the scope of EU law. Furthermore, future cases may allow the Court to clarify its position.
Sahel Noroozi, Nathalie Holvik and Lara Bianchet
EU Law | Örebro universitet 
In the case of granting an asylum in Belgium while using Belgium diplomatic post, I have to agree with the authors’ comments ad criticism that followed this judgment. Even if EU Visa Code has a different purpose regarding grant of a stay in Belgium, in my opinion, applicants relying on Article 3 of the ECHR should be able to apply for the asylum if there are no other possible means to do so. I think it follows from EU’s Member States obligations to the ECHR and nevertheless, EU’s respect for the latter, which can be seen in the European Court of Justice Jurisprudence in previous rulings. The Court should have made a better clarification on the link between the ECHR and the EU Charter of fundamental rights on such a matter, but unfortunately, arguments on that were absent.
Furthermore, even if EU Visa Code could not be applied in above-mentioned case neither the Court, neither the authors of the post made a reference to a possible option for an asylum seeker in this complex situation. If there is no possibility to apply for in neighboring state and no possibility to apply for an asylum seeker through Diplomatic posts of an EU Member State while relying on the Article 3 of the ECHR, what are the possible ways to do so? Thus, the post and judgment lack the latter described reference.
The question remains on why the Court of Justice decided to take the easy way out by ruling that the issue fell outside the scope of the Visa Code. The Court of Justice had the opportunity to improve the asylum policy in Europe, in a time where it is needed, but decided not to. I do agree with the authors of the post that the judgement was technical and succinct which they often are when the issue concerns a sensitive area.
The Court of Justice decided to not rule with the opinion of Advocate General Mengozzi, which is a clear sign of taking the easy way out since Mengozzi was of the opinion to grant the issuing of visas on humanitarian grounds. As we all know, the opinion of the Advocate General is in no way binding to the Court of Justice, it is only advisory. Nevertheless, the Court of Justice does often follow the opinion of the Advocate General because it is seen as very influential. As stated in another post on this blog (“The role of the Advocate General and the development of direct effect”, August 13, 2012, https://eulaworebro.wordpress.com/2012/08/13/the-role-of-the-advocate-general-and-the-development-of-direct-effect/), even though the Court of Justice decided the opposite of Mengozzi in this particular case, the opinion does give a different argumentation which is important for the development of EU law. I believe it is especially important, as stated above, concerning sensitive areas such as asylum policy.
What is interesting in X and X v. Belgium is that the CJEU had the opportunity to rule that Article 25(1)(a) of the Visa Code could obliged Member States to issues humanitarian visas for those who run a risk of being subjected to inhuman treatment or torture. Unlike the Advocate General Mengozzi opinion, that concluded EU Charter trigger an obligation for Member States to issues a humanitarian visa, the CJEU reasoned that the EU Charter could not trigger such obligation because the situation did not fall within the scope of EU law. Why did the Advocate General and CJEU came to the opposite conclusion in the case?
From my point of view I think that the questions itself was controversial, the judgement would have be criticized even if the CJEU would have reached the same conclusion as Advocate General. As the CJEU reasoned, such obligation would require that Member State de facto need to allow applications for international protection to Member States embassies in third-countries and if third-country nationals was allowed to lodge application for such visas it would undermine the purpose of the Dublin III Regulation. Accordingly, it seems as if the CJEU left the responsibility for granting humanitarian visas to Member States themselves.
However, from a humanitarian perspective the criticisms of the judgment are justified. According to me, the problem with the CJEU conclusion, that the situation did not fall within the scope of EU Visa Code, is the consequence it will have on asylum seekers. I believe that the paradoxical situation explain by De Vylder illustrate that, namely, those seeking asylum must enter the territory of a member state while the member state make it more and more difficult to enter the European Union.