When there is a reason to believe that persons seeking international protection are at risk of torture or inhuman or degrading treatment, member states must issue a visa on humanitarian grounds. It is irrelevant whether or not there are ties between the person concerned and the requested member state or whether the former is seeking to submit a request for asylum.
In response to a question on the subject of a Syrian family seeking asylum in Belgium, Advocate General Paolo Mengozzi reached this conclusion, which he presented to the Court of Justice of the EU (C-638/16 PPU) on Tuesday 7 February. Although the judges decided to follow this approach, there are significant implications from it on European Union asylum policy and migration crisis management.
The Court’s opinion was sought as a matter of urgency by the Belgian Asylum and Immigration Board, which had itself been approached by the Syrian family. The latter refused to grant a visa from the Belgian Embassy in Beirut, Lebanon. This request sought to obtain visas for family members with limited territorial validity, pursuant to the EU Visa Code to enable the family to leave the besieged city of Aleppo, with a view to making an asylum application in Belgium.
The rejection of the request from the Aliens’ Office in Belgium was for two reasons. It took the view that, by applying for a visa with limited territorial validity with a view to making an asylum application in Belgium, the Syrian Christian family in question clearly intended to stay for more than 90 days in Belgium. The Office also claims that member states are not obliged to admit into their territory all persons finding themselves in a “catastrophic situation”. The Belgian authorities also argued that the case is also only covered by national law, which lawyers from the European Commission also maintained.
This line of defence was overruled by the Advocate General. The latter holds that the situation of the Syrian family in question is governed by the Visa Code and, therefore, by EU law.
He also takes the view that, by adopting a decision under the Visa Code, the authorities of a Member State are implementing EU law and are therefore required to respect the rights guaranteed by the EU Charter of Fundamental Rights, which applies to anyone subject to a decision or act (territoriality criteria therefore does not apply).
The Advocate General therefore states that it is untenable to argue that member states are not simply allowed under the EU law to award such visas. This law obviously allows for a certain room for manoeuvre from which member states can draw to reach their decisions. The latter therefore have other obligations, particularly that of awarding a humanitarian visa in a situation where there is a proven risk of torture or degrading treatment (article four of the Charter). According to Mr Mengozzi, this obligation makes it incumbent on them, irrespective of the existence or not of ties between the person and member state in question.
How can this kind of legal interpretation for the Syrian family concerned be applied? According to the Advocate General this family should be granted a humanitarian visa because it was not just in a “catastrophic” but “apocalyptic” situation. He believes that it is undeniable that the family was exposed to real dangers of suffering from extremely inhumane treatment and that refusal would deny them a legal way of exercising their right to seek international protection in Belgium.
According to the press agency, Belga, the Federal Secretary of State for Asylum and Migration in Belgium, Theo Francken, was quick to respond and did not conceal his disapproval of the opinion of the Advocate General or his concern about the possible approach the Court may decide to follow, “I am able to point out that 13 member states and the European Commission back our point of view and are aware of the significant import of this precedent. They have clearly spoken against this kind of ruling”. He added that, “I am confident that the common decision of the 15 judges of the Court will correctly evaluate the scope and impact of this case”. (Original version in French by Jan Kordys)