Who Wins with the Recent Ruling on the Humanitarian Visa?

In March 2017 an EU Court ruled that the decision to issue humanitarian visa was in the power of member states. Some have celebrated, but what are the consequences?

Wikimedia Commons, Author: Cédric Puisney

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In October 2016 a Christian Syrian family from Aleppo arrived to the Belgian Embassy in Beirut and applied for an EU Schengen visa with limited territorial validity for humanitarian purposes (further as humanitarian visa) so they could arrive legally in Belgium and apply for asylum there. In Aleppo the family lived in fear that they would be persecuted for their religious beliefs, and testified that one family member had already been abducted and tortured. In addition, they said it was impossible for them to register as refugees in neighboring countries, due to the closure of the Lebanese-Syrian border. 1

Their visa application was refused and their appeal eventually led Belgium to request a preliminary ruling from the Court of Justice of the European Union (CJEU). 2

The central question for the CJEU was to explain, if the EU Visa Code 3 obliges member states to issue humanitarian visas.  In particular, the applicants pointed to Articles 4 and 18 of the EU Charter of Fundamental Rights (prohibition of torture and right to asylum), 4 and Article 33 of the Geneva Refugee Convention (principle of non-refoulement) 5 as the provisions that should guarantee their rights and constitute such an obligation. 6

Humanitarian visas and their position in relation to EU Asylum Acquis

The dispute in X. and X. vs Belgium, as the case came to be known, was not centered on whether the family was eligible for international protection. The fundamental question was if people with genuine claims for international protection have any right under EU law to legally travel to EU territory before applying for asylum? 7

The EU and its member States are bound by the Geneva Refugee Convention and have to provide asylum or subsidiary protection to persons who qualify for the status. Currently however, asylum procedures can only be initiated in the territories of member states. So for the majority of today’s asylum-seekers this means travelling to the EU through many countries, often irregularly and dangerously.

The Geneva Refugee Convention provides asylum-seekers with the right to be recognized as refugees once they have fulfilled the conditions. The Convention also recognizes that in their quest to to find protection, refugees may violate the immigration rules of countries and so provides for their non-punishment for doing so. The Convention is however silent on a refugee’s right to be granted a visa or another means of assurance to assist in their safe journey to a state that can provide protection. Currently, the majority of refugees arrive to Europe irregularly.

The EU Asylum Acquis has not solved the refugee arrival issue either. Thus, the provision of legal ways for refugees to enter the EU has remained the jurisdiction of member states.

For a long time, refugee rights’ advocates have argued that to fully honor international obligations, EU member states should establish legal ways for refugees to travel to the EU and apply for asylum. Failure to do so would result in refugees taking dangerous and illegal journeys to reach the EU and turning to smugglers when no other options exist.

Two-thirds of the world’s refugees live in the least developed countries, and only 6% of them are in Europe. UNHCR estimates that almost 1.2 million people need to be resettled. 8

Solidarity is at the heart of the international refugee regime – and humanitarian admissions and resettlement schemes are a way to show it. 9

Persistent, long-lasting, violent conflicts have prevented many people from returning home for years (Afghanistan, Syria, Somalia), and resettlement options are still on short supply. This has influenced the proposal of alternative options on how best to ensure refugee protections, such as international quota regime, legal admission schemes for studying or working in a host country and, among others, the humanitarian visa. Brazil has recently successfully implemented a humanitarian visa scheme for Syrians. 10

In contrast, the EU has seen a rather steady decline of humanitarian visa   – while in 2012 close to 300,000 were issued, in 2015 the number dropped to 109,500. 11

A 2014 study for the European Parliament LIBE Committee found that almost 16 member states used the humanitarian visa option to facilitate refugees’ safe arrivals. 12

Yet the author concludes that member states were already reluctant to support EU wide initiatives to use this type of visa for refugees’ regular admissions, preferring to maintain jurisdiction of issuance of such visas. The study concluded that the Visa Code lacked clear guidelines regarding member states’ obligations to issue humanitarian visas, 13 and then encouraged member states to develop a coordinated approach to humanitarian visa, and expand their use of this tool. The appeal to member states to establish refugees’ safe and legal entrance into the EU, through the use of humanitarian visas has become a principal stance of the European Parliament. 14

In principle, the Commission can propose an EU-wide humanitarian visa scheme to member states, however given the current political climate it is unlikely that it will do so. In June 2016, the European Commission proposed the establishment of an EU-wide resettlement scheme, however member states were and are far from agreeing on any such scheme. In addition, resettlement under the EU-Turkey statement (which, according to another recent surprise ruling by General Court of the EU is not an “EU agreement”) 15 has only been occurring very slowly, well below original expectations.

Importantly, the Commission, along with 14 other states, including all four Visegrad countries, has pushed back against an proposed obligation to issue humanitarian visas under the Visa Code in the X. and X. v. Belgium case.

The ruling

Advocate General Mengozzi 16 argued that article 25(1)(a) of the EU Visa Code does in fact imply member states’ obligation to issue humanitarian visa. 17

According to Mengozzi, if there are substantial grounds to believe that a member state’s refusal to issue a document will consequently expose an applicant  to any treatment prohibited by Article 4 of the Charter of Fundamental Rights, by depriving him/her of a legal route to exercise his right to seek international protection, member states are obliged to issue the visa.

In particular, Mengozzi recalled the humanitarian obligations cemented in the founding values of the EU and its member states, which should be the guiding principles in the application of EU law. He also acknowledged, that his opinion sharply contrasted with interventions presented by member states. 18

There have been several other scholars deriving positive obligations from the Visa Code’s wording. 19

However, the CJEU ruled that the issuance of humanitarian visa applications as a path to lodging an asylum application does not fall within the scope of the EU Visa Code as EU law currently stands, but solely within the scope of national law. 20

Thus, the CJEU threw an abstract ball back to the member states, and given their interventions in the case, they do indeed consider this ruling a victory. 21

Who Won?

Some governments have warned the CJEU that a positive ruling in this case would constitute “fatal consequences for the EU.” In the meantime, during the first few months of 2017, irregular journeys have already had fatal consequences for as many as 537 people in the Mediterranean. 22

Whose responsibility and whose victory has this been?

National responsibility could be triggered by individuals filing claims in both the national courts and the European Court of Human Rights (ECtHR), as the CJEU did not clear the states of having any responsibilities in this regard. In an ideal world, the member states would be inspired to either amend EU Law or their national legislations in order to truly act in international solidarity and honor the founding principles and values of the EU.

I cannot help but agree with the concerns raised by the Advocate General Mengozzi: “It is, in my view, crucial that, at a time when borders are closing and walls are being built, the member states do not escape their responsibilities, as they follow from EU law or, if you will allow me the expression, their EU law and our EU law.”

Notes:

  1. CJEU case no. C-638/16 PPU, § 20.
  2. Case C-638/16 PPU.
  3. Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code).
  4. Charter of Fundamental Rights of the European Union, http://bit.ly/1LjeYKz (accessed on March 30, 2017).
  5. The 1951 Refugee Convention, The UNHCR, http://bit.ly/2ah31bH (accessed on March 30, 2017).
  6. Questions referred:

    Do the ‘international obligations’, referred to in Article 25(1)(a) of Regulation No 810/2009 1 of 13 July 2009 establishing a Community Code on Visas cover all the rights guaranteed by the Charter of Fundamental Rights of the European Union, including, in particular, those guaranteed by Articles 4 and 18, and do they also cover obligations which bind the Member States, in the light of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 33 of the Geneva Convention Relating to the Status of Refugees?

    1) In view of the answer given to the first question, must Article 25(1)(a) of Regulation No 810/2009 of 13 July 2009 establishing a Community Code on Visas 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 visa with limited territorial validity has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 of the Charter of Fundamental Rights of the European Union or another international obligation by which it is bound is detected?

    2) Does the existence of links between the applicant and the Member State to which the visa application has been made (for example, family connections, host families, guarantors and sponsors) affect the answer to that question?

  7. § 33 of the ruling
  8. Global Resettlement Needs 2017, UNHCR, http://bit.ly/1YoTO3e (accessed on March 30, 2017).
  9. Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, (D): „The Conference, considering that many persons still leave their country of origin for reasons of persecution and are entitled to special protection on account of their position, recommends that Governments continue to receive refugees in their territories and that they act in concert in a true spirit of international cooperation in order that these refugees may find asylum and the possibility of resettlement.
  10. As reported in this article, Brazil has welcomed more than 8000 Syrian refugees under humanitarian admission scheme in 2013-2016. Fernando Brigidi de Mello, “Brazil has open arms to welcome refugees”, Brazil Talk, January 18, 2016, http://bit.ly/2nB9w14 (accessed on March 30, 2017).
  11. Towards and EU humanitarian visa scheme?, Briefing, European Parliament, Policy Department for Citizen’s Rights and Constitutional Affairs, June 2016, http://bit.ly/2p1WR7p (accessed on March 30, 2017).
  12. Humanitarian Visa: Option or Obligation?, European Parliament, Directorate – General for Internal Policies, Policy Department, Citizen’s Rights and Constitutional Affairs, Study for the LIBE Committee, 2014, http://bit.ly/18STww7 (accessed on March 30, 2017).
  13. The study finds “that the obligation under Article 25 (1) to issue LTV visas on, inter alia, humanitarian grounds or because of international refugee and human rights obligations is not sufficiently ensured through, or enshrined in, formal procedures”.
  14. See inter alia European Parliament resolution on the situation in the Mediterranean and the need for a holistic EU approach to migration, April 12, 2016, http://bit.ly/2nBIpDp (accessed on March 30, 2017).
  15. General Court of the EU, Press Release no. 19/17, Luxembourg, February 28, 2017, http://bit.ly/2lWZPrr (accessed on March 30, 2017).
  16. The main role of CJEU is to interpret the EU law to make sure it is applied in the same way in all Member States. Each MS nominates 1 judge per country. assist the Court. They are responsible for presenting, with complete impartiality and independence, an ‘opinion’ in the cases assigned to them. More on the functioning of the Court see http://bit.ly/2p3OsNU (accessed on March 30, 2017).
  17. Opinion of Advocate General Mengozzi delivered on February 7, 2017, http://bit.ly/2ow3bDA (accessed on March 30, 2017).
  18. Ibid., § 5 and 6:

    [5] Striking a particularly alarmist tone, the Czech Government warned the Court at the hearing of the ‘fatal’ consequences for the EU which would result from a judgment to the effect that the Member States are obliged to issue humanitarian visas under Article 25(1)(a) of the Visa Code.

    [6] Although the European Union is going through a difficult period, I do not share that fear. It is, on the contrary, as in the main proceedings, the refusal to recognise a legal access route to the right to international protection on the territory of the Member States ‐ which unfortunately often forces nationals of third countries seeking such protection to join, risking their lives in doing so, the current flow of illegal immigrants to EU’s borders — which seems to me to be particularly worrying, in the light, inter alia, of the humanitarian values and respect for human rights on which European construction is founded. Need it be recalled that, as Articles 2 and 3 of the EU Treaty state respectively, the Union ‘is founded on the values of respect for human dignity … and respect for human rights’ and its ‘aim is to promote … its values’, including in its relations with the wider world?

  19. Peers, Steve, Do potential asylum seekers have the right to Schengen visa?, EU Law Analysis, January 20, 2014, http://bit.ly/2p2avHB (accessed on March 30, 2017), or Spijkerboer, T.,  Brouwer, E, and Al Tamimi, Y., Advice in Case C-638/16 PPU on prejudicial questions concerning humanitarian visa, published 5 January 2017.
  20. CJEU Ruling: “Article 1 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, must be interpreted as meaning that an application for a visa with limited territorial validity made on humanitarian grounds by a third-country national, on the basis of Article 25 of the code, to the representation of the Member State of destination that is within the territory of a third country, with a view to lodging, immediately upon his or her arrival in that Member State, an application for international protection and, thereafter, to staying in that Member State for more than 90 days in a 180-day period, does not fall within the scope of that code but, as European Union law currently stands, solely within that of national law.”
  21. Theo Francken´s Twitter account, Twitter, March 7, 2017, http://bit.ly/2ovN7BA (accessed on March 30, 2017).
  22. UNHCR Data, Europe, Mediterranean, http://bit.ly/2j556O2 (accessed on March 30, 2017).
Zuzana Števulová

Zuzana Števulová

is directress of the Slovak civic association Human Rights League.