On Tuesday 7 March, to the disappointment of NGOs but to the great relief of many governments, particularly the Belgian government, the Court of Justice of the European Union concluded that Member States are not required, under EU law, to grant a humanitarian visa to persons who wish to enter their territory with a view to applying for asylum, even if these people face inhumane and degrading conditions.
Theo Francken, the Belgian Secretary of State for Asylum and Migration greeted this as a “victory”, shortly after the announcement of the ruling on this case (C-638/16 PPU), which is strongly emblematic of EU asylum policy. He thanked “the 13 member states and the European Commission”, which supported his line of defence at the Court and said that, “the Court of Justice of the European Union is very clear: we cannot oblige member states of the European Union to grant humanitarian visas because this is a discretional power of the member states themselves”.
This case involved a Syrian family that requested a visa from the Belgian Embassy in Beirut in order to travel to Belgium to seek asylum there. The European judges effectively held that the authorities of this country had the right to refuse such a request. They pointed out that although these requests for a visa were for humanitarian reason (short-term and with limited territorial validity) and were formally submitted on the basis of the Union visa code, they are not, nevertheless, covered by the scope of application.
The reason for this is that the family sought to use the Union code, which only covers short stays, with the intention of seeking asylum in Belgium and, therefore, a permit for a long-term stay (in excess of 90 days). Moreover, so far, the Union legislator has not yet adopted any act involving the granting, by the member states, of visas or permits for long-term leave to remain to nationals from third countries, for humanitarian reasons. Subsequently, only national law can apply in this kind of case, as argued by the Belgian state and Commission. The member states therefore remain free to evaluate the humanitarian nature of the requests and are in charge of controlling access to their territory and asylum procedures.
Although, for Mr Francken, this was ultimately just a question relating to common sense, his reaction does, nevertheless, demonstrate that this decision had created apprehension and was not necessarily predetermined in advance. The trouble had been created by Advocate General Paolo Mengozzi, who decided in February last that when there is reason to believe that a person seeking international protection is exposed to the risk of torture and inhumane or degrading treatment, a member state should grant them a humanitarian visa, irrespective of whether there are links between this state and individual or whether the latter is in fact seeking to submit a request for asylum (see EUROPE 11720).
The Court therefore rejected this line, to the great regret of certain NGOs (Amnesty international, CIRÉ, CNCD-11.11.11., League of Human Rights, Médecins du Monde, Vluchtelingenwerk Vlaanderen, 11.11.11), which interpret it as, “a missed historic opportunity to reaffirm the values of the European union based on fundamental rights”, as well as the European Parliament. The latter argued in favour of including the possibility of consulates and embassies granting humanitarian visas to people submitting a request for international protection, into EU law (see EUROPE 11514, 11513).
This question is currently the subject of negotiations between the European institutions as part of the reform on the Union visa code. Eva Joly MEP (Greens/EFA, France), argued that the Court ruling, “reaffirms our convictions that European legislation on humanitarian visas is indispensable and we expect the member states to follow suit instead of attempting, in vain, and in breach of international law, to send back those fleeing war and violence”. (Original version in French by Jan Kordys)