ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG HERE
By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf
The opinion of AG Mengozzi in the case of X and X v. Belgium, so far only available in French, has created quite a stir throughout the European Union. In a nutshell, the AG found that, when third country nationals apply for a visa with limited territorial validity (‘LTV’) under Article 25 of the Visa Code with the aim of applying for international protection once they have arrived in a Member State’s territory, the Member State’s immigration authority should take the circumstances of the applicant into account and assess whether a refusal would lead to an infringement of the applicant’s rights as protected by the Charter of Fundamental Rights. Although the AG makes an effort to cover all the arguments brought up by the parties, this blogpost focuses mainly on the issues directly related to the margin of discretion left to the Member States by Article 25(1) of the Visa Code.
Although an AG’s opinion is not binding on the Court, it is widely acknowledged and documented that opinions do indeed influence the Court’s decision in a majority of cases. If the Court were to follow the opinion of AG Mengozzi in this particular case, this could have a serious impact on the legal landscape and context of EU immigration and asylum law. Coming at a time in which migration and asylum are topics often used to manipulate the political opinion of the electorate both in Europe and in the world, the opinion could serve as a wake-up callas it recalibrates the EU’s migration and asylum policy on the fundamental values it is constructed on: respect for human rights and obligations stemming from international treaties.
However, in the light of the ongoing and already difficult negotiations on the future of the Common European Asylum System (‘CEAS’), this time it is more likely that the Court will find it opportune to come to a conclusion that diverges from the AG’s Opinion with regard to some of the legal aspects of the case.
Facts of the case legal framework and questions referred to the Court
On 12 October 2016, a Syrian family of 5 (two parents and three small children) living in Aleppo applied for a visa with limited territorial validity ex Article 25(1) of the EU Visa Code at the Belgian embassy in Beirut (Lebanon). On their application form, they state that the aim of their trip is to apply for asylum once in Belgium, as their situation was untenable as an Orthodox Christian family in a city occupied by ISIS. The family then returned to Aleppo and waited for the decision on their visa application. Shortly after their return, the Syrian border with Lebanon was closed; it remained closed during the procedure as described below.
On 18 October 2016, the Belgian Aliens’ Office (the ‘Office’) refused the visa application based on Article 32(1)(b) of the Visa Code. The Office held that the family clearly had the intention to stay on Belgium’s territory after the expiry of the visa they applied for since they had specified that they would apply for asylum once in Belgium. The visa application would therefore fall under Belgian national law, according to the Office. It further held that neither Article 3 ECHR nor Article 33 of the 1951 Geneva Convention on the Status of Refugees provides for an obligation to admit foreigners on the territory of the States party to the Convention, even if these foreigners live in ‘catastrophic circumstances’, but that these articles merely provide for a prohibition of ‘refoulement’. According to the principle of non-refoulement, States party to the Convention may not remove a person to another State if the person concerned faces a real risk of being persecuted or subjected to torture or to inhuman or degrading treatment in the country to which he is returned. The Office argued that this principle only applies to persons that are already within the Belgian (territorial) jurisdiction. It also argued that Belgian law does not allow its diplomatic posts to accept applications for international protection from third country nationals, and that granting a visa to the applicants in order for them to apply for international protection once on Belgian soil would circumvent the limitation of the competences of the Belgian diplomatic posts.
The Syrian family appealed to the Belgian Asylum and Immigration Board (the ‘referring Court’), arguing that Article 18 of the Charter (Right to Asylum) obliges the Member States to ensure the right to asylum, and that granting international protection to the applicants is the only way in which the Belgian authorities can avoid the risk of an infringement of Article 3 of the ECHR which corresponds to Article 4 of the Charter. The applicants further argued that the Aliens’ Office had erroneously not taken Article 3 ECHR into account in the assessment of their visa application, and that if it had done so, it should have come to the conclusion that the conditions for a visa with limited territorial validity based on Article 25 of the Visa Code are met.
The referring Court considers that the application of Article 4 of the Charter, according to Article 51 of the Charter, solely depends on the application of EU law by Member States’ authorities, a condition that is fulfilled when they assess a visa application according to the Visa Code.
It is within this framework that the referring court asked for guidance as to the margin of discretion left to the Member States in their decisions based on Article 25(1) of the Visa Code, taking into account the article’s reference to international obligations and in the light of the Charter.
Opinion of AG Mengozzi
The main issue at stake
AG Mengozzi was thus confronted with the task to assist the CJEU in the interpretation of Article 25(1) of the Visa Code, and more specifically in answering the question of whether Member States’ immigration authorities may refuse an application for a visa with limited territorial validity under Article 25(1) of the Visa Code if this application is made in order to apply for asylum on arrival in the Member State. The Belgian government, supported by the Commission and a number of Member States that joined the hearing on 30 January 2017, argued mainly that the visa application falls under Belgian national law, as the application should be regarded as having been made for a stay for more than three months – thereby excluding the application of the Visa Code. The argument is that the Belgian migration authorities are therefore not bound by the Charter of Fundamental Rights. Other relevant international treaties do not impose an obligation on States to allow foreigners to enter their territory in order to apply for international protection. For the same reason, the Court is also not competent to look into the questions referred to it. In his Opinion, analyzed in detail below, the AG disagrees with the Belgian government, and concludes that because of the applicability of the Visa Code the applicants fall within the scope of the Charter. The Charter, according to the AG, does not allow Member States’ authorities to refuse an application for a visa with limited territorial validity if such a refusal would lead to the applicants’ running a substantial risk of having their rights, as guaranteed by the Charter, infringed upon in their country of residence.
Applicability of the Visa Code to visa applications that will lead to stays longer than 3 months
In his opinion of 7 February 2017, AG Mengozzi deals with the issues of the competence of the Court and the applicability of the Charter jointly. He first finds that X and X applied for a visa with limited territorial validity for a stay not exceeding three months in accordance with the Visa Code. The AG further points out that during the whole of the application procedure the Belgian authorities assessed the application under the Visa Code, that the authorities based their decision on Article 32(1)(b) of the Visa Code and that their decision to refuse the application was composed according to their own ‘decision form for short stay visas’. The AG concludes that it was therefore clear to all that the application was regarded as an application for a short stay visa in accordance with the Visa Code.
Contrary to what several Member States had argued before the Court, the AG highlights that nothing in the Visa Code justifies a conclusion that the applicants’ intention to apply for asylum once on Belgian territory could change either the nature or the subject of their application, or transform the application into an application for a stay longer than three months. For the same reason, the AG disagrees with the Belgian government that it is not possible to apply for a visa with limited territorial application, and he further underpins his position by pointing out that the standard application form annexed to the Code refers to ‘Schengen visa’ without making any distinction between the types of visa that can be applied for. Furthermore, the 21st question of the application form asks the applicant to specify the reasons for the journey. This question in principle allows for the applicant to motivate his application with a wish to apply for asylum in the Member State he intends to travel to. In any case, according to the AG, even if the Visa Code did not allow for an application for a visa with limited territorial application, the fact that the applicants applied for a visa that is regulated in the Visa Code automatically guarantees the application of the Charter.
Applicability of Article 25(1) of the Visa Code
With regard to the applicability of Article 25 of the Visa Code, the Belgian government also argued that this Article only allows Member States to derogate from the imperative reasons to refuse a visa as listed in Article 32(1)(a), and not if there are reasonable doubts as to the intention of the applicant to leave the territory of the Member State before the expiry of the visa applied for as stipulated in Article 32(1)(b). However, AG Mengozzi’s analysis of the wording of Article 25(1) of the Visa Code leads to the exact opposite conclusion, as he points out that this article allows the Member States, among others, to issue a new visa during the same six-month period to an applicant who has already used a visa allowing for a stay of three months during that six-month period. Therefore, Article 25(1) allows Member States’ authorities to issue a LTV, even if they have serious doubts as to whether the applicant will leave the territory after the expiry of the visa or if other reasons to refuse a visa as listed under Article 32 exist. This is also in line with the Commission’s Handbook the AG already referred to. The AG thus concludes that Member States must assess an applicant’s appeal to Article 25 of the Visa Code, even in cases in which they find reasons to refuse an application for a visa according to Article 32.
Furthermore, the applicants’ extended stay in Belgium would not be based on the initial visa that allowed them to enter Belgian territory, but on their status as applicants for international protection in accordance with Article 9(1) of Directive 2013/32. The applicants’ intentions to stay longer than three months could therefore at the very most be regarded as a reason to refuse a visa in accordance with the Visa Code, but it could certainly not be a reason for the non-application of the Code (and as a consequence thereof, the non-applicability of the Charter). The AG continues that this is exactly the question that lies at the heart of this case: Can Member States refuse visas with limited territorial application in cases such as the one at hand considering the reference Article 25 of the Visa Code makes to obligations under international law?
The scope of the Charter of Fundamental Rights
The AG thus turns to answering the questions referred to the Court. According to the AG, the ‘international obligations’ mentioned by Article 25 of the Visa Code do not include obligations stemming from the Charter of Fundamental Rights of the EU. However, due to Article 51 of the Charter Member States’ authorities are bound by the Charter when applying EU law, such as the Visa Code or Regulation 539/2001, which lists the third countries whose nationals must be in possession of visas when crossing the external borders of the EU. Therefore, the Belgian migration authorities were bound by the Charter when deciding on X and X’s application for a visa with limited territorial application under Article 25 of the Visa Code, even if this Article grants a margin of discretion to the said authorities. Here, the AG refers to the Court ruling in the case of N.S. and others, and the Handbook for the processing of visa applications and the modification of issued visas, published by the Commission in 2010.
The AG also is of the opinion, contrary to what the Belgian government argued based on Article 52(3) of the Charter, that the territorial limitation of Article 1 of the ECHR should not be applicable to the Charter, as the aim of Article 52(3) of the Charter is to guarantee a minimum standard of protection by referring to the ECHR, whereas it also clearly states that this minimum standard does not prevent Union law from providing a more extensive protection. Furthermore, the AG repeats that Article 51 of the Charter clearly defines that the provisions of the Charter are addressed to the institutions and bodies of the EU and to the Member States when they are implementing EU law. Finally, the AG also argues that even if the Charter had a limited application in general, Article 4 of the Charter is drafted in such a way as to provide for a universal application. The AG therefore finds it unnecessary to delve further into the content of the ‘international obligations’ referred to by Article 25(1) of the Visa Code, and continues to analyze the discretion of the Member States under that Article in the light of the Charter.
Member States’ margin of discretion under Article 25(1) of the Visa Code
AG Mengozzi then admits that Article 25 of the Visa Code leaves a certain margin of discretion to the Member States in their assessment of the arguments the applicant has brought forward in his appeal to Article 25. To the AG, it is clear that the applicants’ situation is one that justifies the issuance of a visa with limited territorial validity on humanitarian grounds. However, in case the Member State would not agree, the AG specifies that, since the Member States are applying EU law when assessing an appeal to Article 25 of the Visa Code, their discretion is limited by Union Law. Thus, according to the AG, a Member State has to assess whether the refusal to issue a visa under Article 25 of the Visa Code leads to an infringement of its obligations under the Charter. As the referring court has asked for guidance on the interpretation of Article 25 of the Visa Code in the light of Article 4 of the Charter, the AG then analyses the scope and content of Article 4 of the Charter in the light of the case law of the ECtHR on Article 3 ECHR (Mahmut Kaya v. Turkey, El-Masri v. Macedonia and Nasr et Ghali c. Italie). This leads the AG to conclude that the Member States are under a positive obligation to take reasonable measures to prevent the materialization of a risk of torture or inhuman or degrading treatment of which they know or of which they should have known. Therefore, Member States’ authorities must inform themselves with regard to the situation in the country of origin of an applicant before deciding to apply one of the reasons for refusal of a visa as listed under Article 32(1). The AG points in the direction of official EU sources such as the Commissions ECHO factsheet on the crisis in Syria and other countries that are in a dire situation, but also to reports published by NGOs working in the field as sources of information that need to be taken into account by the Member States’ authorities in taking a decision under the Visa Code.
Practical implications for the application of X and X
In this particular case, the AG finds that a refusal to issue a visa with limited territorial validity will expose the applicants to a substantial risk of having their rights as protected by Articles 1 (right to human dignity), 2 (right to life), 3 (right to the integrity of the person), 4 (prohibition of torture and inhuman and degrading treatment), and 24(2) (the child’s best interest) of the Charter. He also points out that the Belgian authorities were aware of the apocalyptical or ‘catastrophic’ situation in Aleppo, according to the file sent in by the referring court. The argument of the Belgian authorities that the applicants could have applied for international protection in Lebanon is parred by the AG by referring to the decision of the Lebanese government to suspend the registration of newly arriving asylum seekers in the autumn of 2015 – a decision that was still in place when the Belgian authorities took their decision. Furthermore, the situation of asylum seekers or refugees living in the neighboring countries of Syria are reported to be disastrous and their standard of life far below the minimum standards foreseen in applicable international human rights law instruments. The AG therefore concludes that the refusal of the Belgian authorities to issue the applicants with a visa of limited territorial validity infringes Article 4 of the Charter.
To sum it up, AG Mengozzi argues that Member States’ immigration authorities’ discretion under Article 25(1) of the Visa Code is limited by the Charter of Fundamental Rights. If the authorities have substantial reasons to believe that the refusal of an LTV will expose an applicant to torture or to inhuman or degrading treatment or punishment, they are obliged to issue an LTV.
AG Mengozzi’s compelling Opinion, which he bases not only on standing case-law (not only of the ECtHR but also of the CJEU in recent cases like Koushkaki, Aranyosi and Căldăraru or Petruhhin), gives hope to those who live in truly untenable circumstances but who are unable to reach an EU Member State’s territory in order to file an application for international protection. At a time in which some of the Member States have a 98% recognition rate for Syrian asylum seekers from Aleppo, denying protection to those who would like to file an application for international protection but who are unable or unwilling to try and reach Europe’s shores by crossing the Mediterranean in a dinghy, any other conclusion would have raised serious doubts with regard to the EU’s commitment to refugee and human rights law.
This is not to say that it is probable that the Court will simply rule that because of the applicability of the Charter to visa applications made in accordance with the Visa Code, Member States are under an obligation to issue LTVs to third country nationals who want to come to any EU Member State to file an application for international protection. Not only would such a ruling in the current political climate be unfeasible, it would also be contrary to applicable EU asylum law, as the AG also mentions in his Opinion.
A decision of this nature would endanger the functioning of the Dublin system, as asylum seekers in desperate situations could simply file a visa application anywhere in the world, which would then have to be accepted if there is a risk of a violation of article 4 of the Charter. As, according to article 12(2) of the Dublin regulation, the possession of a valid visa triggers the respective State’s responsibility to treat the asylum claim, this means that ‘asylum shopping’ (i.e. choosing the country which suits you best) would become possible again. It is unlikely that the Court would expose the Common European Asylum System to the risk of a collapse – especially not at a time in which all of the EU’s efforts are directed at saving the already failing system, instead of trying to find an alternative that would work. Such an interpretation could further instigate EU Member States to close down their consulates and embassies in areas with a high risk of conflicts and persecutions.
However, it should be possible for the Court to strike a balance between the two interests. If it formulated its ruling in such a way as to highlight the exceptionality of the circumstances that would force Member States to apply Article 25(1) of the Visa Code to issue LTVs despite the fact that there might be reasons to refuse a visa according to Article 32 of the Visa Code, the EU would honor its obligations under international and European refugee and human rights law, without endangering the functioning of the CEAS. Such a ruling would boost the image of the EU as an advocate of human rights, an image that has been seriously battered by many of the recent EU actions in this policy field.
No doubt Member States will argue that such a ruling would ‘open the floodgates’ and paralyze the already strained asylum systems of the Member States. However, until the European Union has created effective legal pathways to Europe, as it has obliged itself to do, people in need of international protection will continue trying to use other ways to save themselves and their loved ones – whether the Member States like it or not.