by Teresa Alves, masters' student at University of Minho

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The judgment in Case C-638/16 PPU, delivered by the Court of Justice of the European Union, on 7^th March 2017[i] could represent a milestone in the history of the European Union, opening the door to an important legal path of access to international protection in the Member States and improving the Europe’s asylum policy. Particularly in a context of migration crisis that the European Union is trying to solve, adopting different measures. These measures include strengthening border controls, preventing human trafficking and trying to dismantle illegal forms of access to Member States’ borders through organized networks. Another measure is the EU-Turkey Statement that, despite some legal doubts, intends, not only, but also, to create a legal path of access to international protection in the Member States.

The story dates back to October 2016, when a Syrian family (mother, father – married to one another – and their three young children, from Aleppo) applied for a humanitarian visa at the embassy of Belgium in Lebanon. They hoped, with this, to legally enter in Belgium and to request asylum. They claimed that one of them had been abducted by an armed group, beaten and tortured, before being released on payment of a ransom. They emphasized, specially, the deterioration of the security situation in Syria, in general, and in Aleppo, in particular, as well as the fact that, as Orthodox Christians, they were at risk of persecution because of their religious beliefs. This family added that they could not register as refugees in neighboring countries, particularly in view of the fact that the Lebanese-Syrian border had been closed in the meantime.

The competent Belgian authorities promptly rejected the request, explaining that (i) the applicants planned to remain in Belgium for more than 90 days, and under the Visas Code, in accordance with Article 1, the issue of transit visas or visas within the territory of the Member States shall not exceed 90 days in a period of 180 days; (iii) in addition, Article 3 of the ECHR, according to which «no one shall be subjected to torture or inhuman or degrading treatment or punishment», shall not require States Parties to admit «persons living a catastrophic situation» and, lastly, they considered that (iii) Belgian diplomatic posts are not part of the authorities to which a foreigner may apply for asylum. For the reason that, authorizing an entry visa to the applicants in the main proceedings, for the purpose of submitting an application for asylum in Belgium, would be equivalent to allowing them to request this application for asylum in the diplomatic post.

The family appealed against the decision before the Conseil du Contentieux des Étrangers (Council for asylum and immigration proceedings, Belgium), which decided to refer to the Court of Justice questions relating to the granting of humanitarian visas. That is, «must Article 25(1)(a) of the Visa Code 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 or another international obligation by which it is bound is established?», «Does the existence of links between the applicant and the Member State to which the visa application was made (for example, family connections) affect the answer to that question?».

According to the opinion of the Advocate General Paolo Mengozzi, the authorities of a Member State when adopting a decision in accordance with Article 25 of the Visa Code, are applying Union law within the meaning of Article 51 (1) of the Charter and are therefore obliged to respect the rights guaranteed by it[ii].

Mr. Mengozzi held that «this conclusion stems from the text of the Visa Code itself, recital 29 of which makes that code under the aegis of fundamental rights and the principles of the Charter». He also argued  that in the foreword to the Handbook on the handling of visa applications and the amendment of visas issued, the European Commission confirms the need to respect fundamental rights, emphasizing that these rights, «as enshrined in particular in the Charter», should be assured «to any person applying for a visa and that the processing of visa applications should fully [comply] with the prohibition of inhuman and degrading treatment and the prohibition of discrimination enshrined in Articles 3 and 14 of [ECHR] and Articles 4 and 21 of [the Charter]». Irrespective of whether or not there are links between the person and the Member State applied to.

Thus, the AG suggested that Article 25, paragraph 1, point a) of the Visa Code, should be interpreted as meaning that the expression «international obligations does not cover the Charter, but Member States are required to comply with it when examining, on the basis of that provision, a visa application in support of which humanitarian reasons are invoked, and when they take a decision on such a request.

For Mr. Mengozzi, the definition and scope of the expression «humanitarian reasons» cannot be left to the discretion of the Member States. He reasoned that although it is not defined by the Visa Code, it is a concept of Union law, «since Article 25 (1) of this Code does not refer in any way to the national law of the Member States». In addition, the Advocate General considers the expression very broad, and without wishing to define such reasons, he considers that there is no doubt that the grounds relied on by the appellants in the main proceedings before the Belgian authorities fall under the scope of humanitarian considerations within the meaning of Article 25 (1) (a) of the Visa Code.

In view of the information available on the situation in Syria, the Advocate General considers that the Belgian State could not conclude that it was exempted from fulfilling its obligations under Article 4 of the Charter. Decisions to reject authorizations for humanitarian reasons only leave the applicants in the main proceedings the choice between exposing themselves to the dangers and inhuman treatment referred to above, which may even lead to death, or submit to other types of equivalent treatment, trying to come illegally in the territory of a Member State for their request for international protection.

However, the opinion of the Advocate General is not binding and although it influences around 77% of the decisions of the Court of Justice (fonte da informação?), in this case, this did not happened at this time. The CJEU concluded the case by determining that Article 1 of the Visa Code must be interpreted as meaning that a visa application under the terms in examination is not covered by the application of that code but, in the current state exclusively by national law. In the Court’s view, it is important to note that «to conclude otherwise would mean that Member States are required, on the basis of the Visa Code, de facto to allow third-country nationals to submit applications for international protection to the representations of Member States that are within the territory of a third country». The CJEU also underlines that it «should be noted that the measures adopted by the European Union on the basis of Article 78 TFEU, that govern the procedures for applications for international protection, do not impose such an obligation and, on the contrary, exclude from their scope applications made to the representations of Member States». Further, the Court recalls that it is evident from Article 3 (1) and (2) of Directive 2013/32 that it applies to applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, but not to requests for diplomatic or territorial asylum submitted to the representations of Member States. Similarly, the Court declares that it follows from Articles 1 and 3 of Regulation No 604/2013 that it only imposes an obligation on Member States to examine an application for international protection made on the territory of a Member State, including at the border or in the transit zones, and that the procedures laid down in that regulation applies exclusively to such applications for international protection.

At the same time, the Court added that, to conclude otherwise, when the Visa Code is intended for the issuing of visas for stays on the territories of Member States not exceeding 90 days in any 180-day period, would be the same as «to allowing third‑country nationals to lodge applications for visas on the basis of the Visa Code in order to obtain international protection in the Member State of their choice, which would undermine the general structure of the system established by Regulation No 604/2013».

We agree with the Advocate General’s interpretation. And regarding the latter articles we think that Article 78 TFEU doesn’t exclude from its scope applications made to the representations of Member States in a third country. Respecting to Directive 2013/32 and Dublin III Regulation, that are part of the Common European Asylum System, we wonder if the Court concedes that this laws aren’t efficient. One of them was, in recent times, suspended (Dublin III Regulation) because it isn’t able to efficiently answer the large number of asylum requests; the other (Directive) has been reformulated, but not completely improved; and both have been subject of harsh criticism since their origin, with several appeals for a new reform, able to create another but better Common European Asylum System. This judgment could have helped that process. But, unfortunately, the Court decided to keep this Asylum System, already proved to be unsuccessful, through a simplistic, technocratic and bureaucratic interpretation of Union Law, leaving the fundamental rights in a second plan, as if they were the last choice.

[i] ECLI:EU:C:2017:173. http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d53374d213c7304463b9e6eb84426e004d.e34KaxiLc3qMb40Rch0SaxyLaxz0?text=&docid=188626&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=194401

[ii] ECLI:EU:C:2017:93. Opinion delivered on 07/02/2017. http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d53374d213c7304463b9e6eb84426e004d.e34KaxiLc3qMb40Rch0SaxyLaxz0?text=&docid=187561&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=194401