One of the forms of extraterritorial control allowing European Union Member States to reduce the migration flow is the adoption of restrictive visa policies. Some of the States have adopted resettlement programmes regulating humanitarian visas based on their own policies of international protection (1). However, the jurisprudence on EU level has not been welcoming to such kind of visas, what has certain implications on the international protection regime such as violation of refugees’ rights and the principle of non-refoulment.
In the case X. and X. v. Belgium, the applicants were a Syrian married couple and their three young, minor children living in Aleppo. On 12 October 2016, the applicants submitted applications for visas with limited territorial validity (LTV) on the basis of Article 25(1)(a) of the Visa Code, at the Belgian Embassy in Beirut (Lebanon) with a purpose of applying for asylum in Belgium immediately upon their arrival. The Belgian authorities refused their applications and asked some preliminary questions on the interpretation of Art. 25 of the Visa Code to the Court of Justice of the European Union (CJEU). The CJEU stated that applications for humanitarian visas fall solely within the scope of national law, and not under the Visa Code or EU law. It also held that allowing third‑country nationals to lodge applications for visas from outside Europe would undermine the whole Dublin system(2). As to the CJEU, ‘even if foreseen in Arts 1, 19 and 25 of the Visa Code and in that respect, “subject to a harmonised set of rules”, the decision on issuing LTV visas on humanitarian grounds shall become beyond the scope of the implementation of EU law if those grounds can be interpreted as grounds for applying for asylum in the receiving State’ (3). But why would a person even apply to the humanitarian visa if doesn’t need protection in the receiving State?
A few years after the CJEU ruled the above decision, the European Court of Human Rights (ECtHR) was confronted with the very similar case on a humanitarian visa. In the case of M.N. and Others v. Belgium, another Syrian family was rejected a humanitarian visa. Here the Court elaborated more on the issue of jurisdiction and distinguished this case from a number of cases where it established the exceptions approving the extraterritorial jurisdiction of States (4). The Court was ultimately persuaded that the facts that the Belgian authorities exercised a public power by taking the relevant decision and that that decision had an impact on the situation of applicants abroad are not sufficient to bring the applicants under Belgium’s “territorial” jurisdiction within the meaning of Article 1 of the Convention (5). The Court also considered that to find otherwise would amount to create an unlimited obligation on the States to allow entry to any individual, irrespective of where in the world they find themselves (6).
However, in the abovementioned judgements, Courts depart from the jurisprudence established on EU level. For example, in Rahmanian Koushkaki v. Bundesrepublik, the CJEU ruled out the possibility that States may refuse to issue a uniform visa unless one of the grounds for refusal stipulated in the Visa Code applied (7). Further, in the Banković and Others, the ECtHR had recognised that other instances of the extraterritorial exercise of jurisdiction by a State could exist in cases concerning acts or omissions by diplomatic or consular agents where they were exercising a governmental function (8). In the key case of Al-Skeini and Others v. the United Kingdom, the ECtHR held:
“…the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others” (9)
Moreover, the provision of Dublin III Regulation which provides that ‘Member States shall examine any application for international protection [lodged] on the territory of any one of them, including at the border or in the transit zones’(10) doesn’t necessarily exclude the possibility to apply for a humanitarian visa because when applying for a humanitarian visa the applicant aims to get a consequent legal opportunity to apply for asylum on the territory of a Member State. Furthermore, the prohibition of getting humanitarian visas outside EU, in fact, leaves people no other chance to get protection but via smugglers. In other words, not giving refugees a viable legal alternative has the opposite effects: an increase in demand for the services of smugglers and increase of migration. The unavailability of applying to humanitarian visa and reaching the Member State legally not only incentivizes refugees to find smugglers but also boosts a smuggling economy which leads to more, instead of to less migration (11). As a consequence of the increase of the people trying to reach Europe with the help of human smugglers, the number of border deaths increases (12).
Practically, by rejecting the visa applications, Belgium in both cases violates the non-refoulment principle which obliges a State not to return (directly or indirectly) a person to a country where there is a risk of persecution. In M.N. and Others, the ECtHR held that for the violation of non-refoulment to occur the removal should be conducted from a Member State’s territory or at its border. This technical approach of the Court doesn’t take into account the reality which the applicants are forced to face without international protection.
In accordance with a principle established with the ECtHR’s case-law that the Convention is “a living instrument which must be interpreted in the light of present-day conditions”, and considering the existing practice of Belgian authorities, the ECtHR could easily recognize its competence in the case at hand. Similarly, the CJEU should have recognized the issue of humanitarian visas falling under the scope of the EU law as the humanitarian ground itself is a concept of EU law (13).
To conclude, the discussed judgements illustrate how the refugees outside the EU don’t have guaranteed their right to be safe from serious human rights violations through the application of the EU law provisions on humanitarian visas. In fact, being placed under the jurisdiction of a Member State through contact with its public agents does not make that State responsible for the protection of the applicant under the framework of EU law. Therefore, because of the discussed judgements the position of third-country nationals as holders of a right to non-refoulment according to the international legal regime on refugees is, unfortunately, weakened instead of being reinforced (14).
- European Migration Network (EMN), Resettlement and Humanitarian Admission Programmes in Europe – what works?, 9 November 2016
- X and X v. État belge, C‑638/16 PPU, CJEU, 7 March 2017
- Sílvia Morgades-Gil, Humanitarian Visas and EU Law: Do States Have Limits to Their Discretionary Power to Issue Humanitarian Visas? European Forum, 15 October 2017, at 1011
- M.N. and Others v. Belgium [GC], ECtHR App no. 3599/18, 5 March 2020, paras 96-109
- Ibid, para 112
- Ibid, para 123
- Rahmanian Koushkaki v. Bundesrepublik Deutschland, C-84/12, CJEU, 19 December 2013, paras 58-60.
- Bankovic and Others v. Belgium and 16 other States [GC] ECtHR, App no. 52207/99, 12 December 2001, para 77
- Al-Skeini and Others v. the United Kingdom [GC] ECtHR, App no. 55721/07, 7 July 2011, para 134
- Council of the European Union, Regulation (EU) No 604/2013 (recast), 29 June 2013, art. 3(1)
- Den Heijer, Rijpma and Spijkerboer, ‘Coersion, Prohibition, And Great Expectations: The Continuing Failure of the Common European Asylum System’ (2016) Common Market Law Review, 53:607-642 at 13
- Ibid, at 8
- Sílvia Morgades-Gil n(3), at 1014
- Ibid, at 1016
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LLM in International Human Rights Law at Lund University