By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf
On 7 March 2017, the CJEU announced its judgement in case C-638/16 PPU (X and X / Belgium) and dashed all hopes for an extensive interpretation of the EU Visa Code in the light of the EU Charter of Fundamental Rights. To summarize the facts of the case, X and X and their three small children are an Orthodox Christian family living in rebel-held Aleppo. In October 2016 X leaves Aleppo to apply for a visa with limited territorial validity ex Article 25(1) of the EU Visa Code at the Belgian embassy in Beirut (Lebanon). The application states that the aim of entry into Belgium is to apply for asylum. X returns to his family in Aleppo immediately after lodging the application. Less than a week later, they are served with a negative decision from the Belgian authorities, against which they appeal. The court of appeal refers the case to the Court of Justice for a preliminary ruling on the interpretation of Article 25 of the Visa Code. In its rather short judgment the CJEU determines, contrary to what AG Mengozzi (see detailed analyses of this Opinion here and also here) argued with regard to this case, that the applications of X and X fall outside the scope of the EU Visa Code, even if they were formally submitted on its basis.
The Court first reiterates that Regulation 810/2009 establishing a Community Code on Visas (Visa Code) was adopted on the basis of Art. 62 EC Treaty, pursuant to which the Council had the competence to adopt measures on visas for intended stays of no more than three months. The visa applications in question, however, were for visas with limited territorial validity with a view to a future application for asylum in Belgium. Hence, the applicants’ intended stay was not limited to 90 days – and their visa-application should not be considered under the Visa Code, but under national law. As the application thus falls outside the scope of EU law, according to the Court, the Charter of Fundamental Rights is not applicable either.
In the last sentences of its judgment, the Court also adds that allowing third country nationals to lodge applications for visas in order to apply for international protection in the Member State of their choice would undermine the Dublin system. With this remark, inserted as if it were an afterthought, the Court seems to reveal the true motivation behind the ruling in X and X: to save an already failing system…
Humanitarian visa vis-a-vis Dublin system
The CJEU’s judgement in X and X was awaited with impatience by many active in the field of refugee protection. Heartened by AG Mengozzi’s Opinion, some saw this as an opportunity for the Court to confirm the EU’s dedication to the promotion and protection of human rights within the EU and beyond, and to decide that the Charter of Fundamental Rights is applicable to visa applications made by potential applicants for international protection. Member States and the Commission had vehemently argued on the other hand that such a ruling would endanger the operation of the painstakingly constructed (though clearly malfunctioning) Dublin system, and that it would open the floodgates to thousands of applicants for international protection, that would otherwise not have reached the EU.
The Dublin system, based on Regulation 604/2003, provides the criteria and mechanisms for determining the Member State responsible for the assessment of an asylum application made by a third-country national or a stateless person in one of the Member States of the EU. These criteria do not take the wish of the applicant into account, but are instead based on events like through which Member State the applicant entered the EU, or in which Member State of the EU the applicant was previous to the application a legal resident.
The Dublin system, branded as the ‘cornerstone of the Common European Asylum System’, is put in place to prevent asylum seekers to engage in ‘asylum shopping’ by applying for international protection in the country that is most attractive to them for various reasons – which can be the level of reception conditions and/or the spectrum and content of the rights pertaining to an international protection status – or to apply for asylum in multiple Member States. However, even data published by the European Asylum Support Office (EASO) show that the costly system does not quite lead to the desired results, and that numerous asylum seekers prefer to abscond and disappear into illegality, rather than to be transferred to a Member State in which they do not want to live. Nevertheless, the Member States are not really open to discuss an alternative system, and their efforts are directed at saving the system – apparently at all costs. The Court chose to indulge these concerns and take the politically easy way out by ruling that EU law (including the Charter) is not applicable to visa applications that would lead to a stay of more than 90 days – instead of ruling for the application of the Visa Code and thus also the Charter of Fundamental Rights, as it would then have been confronted with the impossible task of having to interpret the Charter in a way that would not have a negative effect on the functioning of the Dublin system.
This restrictive interpretation of the scope of the Charter is a disappointing decision of the CJEU for those active in the field of human rights and refugee protection. It is difficult to understand why the Court shies away from ruling for the applicability of the Charter, for extending the protection of the Charter to those so obviously in need of protection, especially in a time that the EU’s asylum policy and actions have raised so many doubts about the EU’s self-professed dedication to human rights. But next to being disappointing, the judgment also fails to convince on a number of instances. These will be discussed below, in the order followed in the judgment.
Competence of the court
When considering the Court’s deliberations in its decision on jurisdiction, the ruling on the substance of the case becomes even more puzzling. The defending Belgian government asserted at the hearing that the CJEU would not have jurisdiction to answer the question referred to it, as in its view the applicant’s visa application should be considered as an application for a visa sanctioning a stay of more than 90 days, so that the application does not have any connection with EU law. The Commission did not contest the jurisdiction of the Court, but subscribed to the defendant’s main idea.
The Court disagreed with the defendant and, invoking its earlier rulings in cases like Wojciechowski and the case-law cited therein, decided that it indeed has jurisdiction to answer the referring court’s request. In the invoked cases, the Court has previously decided to decline jurisdiction where it was obvious from the circumstances of the case that EU law was not applicable. The Court continues its decision in X and X by ruling that, since the visa-application in question was submitted on the basis of humanitarian grounds as per Article 25 of the Visa Code, the Wojciechowski case law does not apply and the Court indeed has jurisdiction.
In other words, the Court does not agree with the Belgian government, which argues that it is obvious that visa-applications submitted under the Visa Code should not be dealt with under EU law if the applicants’ aim is to prolong their legal stay beyond 90 days on arrival in the Member State they applied to through an application for international protection.
Applicability of the Visa Code
The Court then turns to the substantive questions referred to it, and answers these questions in merely 14 paragraphs – or even fewer, once the introductory paragraphs are deducted. Considering the implications of the judgment, and the polemic surrounding this specific case and the EU asylum system as a whole, it would have been beneficial to have a deeper insight in the arguments and reasoning of the Court.
The Court’s decision starts with a reference to Article 62 (2)(a) and (b)(ii) of the EC Treaty on which the Visa Code was based, which (unlike Article 79 (2) (a) TFEU) limits the competence of the Council to adopting measures regarding the issuance of visas for intended stays of no more than three months. This is followed by a reference to Article 1 of the Visa Code, which states that the objective of the Code is to establish the procedures and conditions for issuing visas for intended stays on the territory of the Member States not exceeding 90 days in any 180 day period, and to Article 2(2)(a) and (b) of the Visa Code defining the concept of ‘visa’ as ‘an authorization issued by a Member State’ with a view to ‘stay on the territory of the Member States for a duration of no more than 90 days in any 180‑day period’.
The Court concludes that, since the objective of the applicants in the main proceedings is to apply for international protection upon arrival in that Member State with the visa they applied for and therefore ultimately to stay in Belgium for more than 90 days, their visa application falls outside the scope of the Visa Code described above.
The Court thus did not consider the fact that, although in principle the scope of the Visa Code is limited to the establishment of the procedure and the conditions for issuing visas for intended stays on the territory of the Member States not exceeding 90 days in any 180 day period, the Visa Code also allows for exceptions to this principle in Article 25 (1)(b). With regard to visas with limited territorial validity, this Article provides that in exceptional circumstances (‘for reasons deemed justified by the consulate’) a Member State’s authorities may allow applicants that have already stayed within the territory of that Member State for three months in a given period of six months to stay on the territory of that Member States for another three months. Thus, Article 25 (1)(b) stretches the scope of ‘visa’ under the Visa Code as defined in the Code’s Article 2 (2)(a) beyond the ‘authorization for an intended stay of a duration of no more than three months in any six-month period’. This is exactly the definition on which the Court relies when it concludes that the answer to the question of the applicability of the Visa Code to the visa application of X and X should be negative (see the last sentence of paragraph 51 of the judgment). The Court could, based on the Visa Code, just as well have decided that, in exceptional circumstances, the Code foresees the issuance of visas that will allow the applicant to stay for more than 90 days in any six-month period and that, therefore, the definition of ‘visa’ should – especially under Article 25 of the Visa Code – not be interpreted restrictively.
To be clear: This would not automatically lead to X and X, and applicants in like circumstances, being granted a visa, it would merely ensure that their application would be decided according to the provisions of the Visa Code. This in turn would guarantee the application of the Charter of Fundamental Rights according to standing case law of the Court in cases like Fransson.
That the Court is keen to avoid such a conclusion is clear from the argument brought forth in the statement of the Court in paragraphs 46 and 47 of the judgment, where the Court finds that its decision to rule for the non-applicability of the Visa Code does not run contrary to the distinct requirement of the Visa Code to refuse a visa in case there are doubts with regard to the applicant’s intention to leave the territory of the Member State after the expiry of the visa – a refusal that would be taken as a result of the application of the Visa Code, not as a result of its non-applicability.
However, the Court’s ruling boils down to exactly that; just imagine for a moment that the applicants did not state their motive in applying for a short stay visa to be to apply for international protection on arrival in Belgium; they could claim they would only be visiting Belgium’s beautiful sights, as any potential tourist would also do. Under these circumstances, the competent Belgian authorities would have been certainly justified to doubt the applicants’ intention to leave Belgium and go back to Aleppo after having seen the sights (and who could even expect them to do so?). In such a scenario, the authorities would only be able to refuse the visa-application under Article 32 of the Visa Code – thus forcing them to take into account Article 25 of the Visa Code as well as the whole of the Charter, including its Articles 4 and 18.
The European Agenda on Migration: no time for human rights…
Unfortunately, since the Court decided against the applicability of the Visa Code in the case of X and X, it was not required to look further into the question of whether Member States’ authorities should assess applications made under Article 25 of the Visa Code in the light of Articles 4 and/or 18 of the Charter of Fundamental Rights or any other international obligation by which they are bound. The important question of the extent to which Articles 4 and 18 of the Charter of Fundamental Rights could impose a positive obligation on Member States’ authorities to issue humanitarian visas to persons still present in their own country, an issue which is given a prominent place in AG Mengozzi’s Opinion, is therefore left untouched by the Court.
Unfortunately, again, it seems that similar decisions are taken by the Court on a regular basis these days. On 28 February 2017, the Court decided in an equally controversial and important case that it had no competence to look into the question of the legality of what has become known as the EU-Turkey deal under Article 263 TFEU. Apparently, the text of the invitations with which the European Council’s administration invited the Members of the European Council to working lunches and working sessions –in their function as Members of the European Council or as Heads of State and Government of the Member States depending on the setting, but never as both at the same time – was reason to make the Court decide that the European Council was not the author of the EU-Turkey statement, notwithstanding the many references in the statement itself to actions the EU would undertake in return for Turkey’s role as gatekeeper for Europe. Even the fact that the EU institutions feel bound by the promises made by the Heads of State and Government of the Member States (not acting together as institution of the EU, according to the Court) does not seem to matter to the Court. With this –procedural- move, the Court has again discharged itself of its task of reviewing in depth the legality of the acts of the EU’s institutions, bodies, offices and agencies intended to produce legal effect vis-à-vis third parties. For a more detailed discussion in German of this decision of the Court, see here.
It seems that the Court agrees with some other institutions of the EU that times of crisis require robust measures – and that at such times the EU’s commitment to human rights can be put on hold. This notion is fortified by the remarks made by the Court, seemingly as an afterthought, in paragraphs 48 and 49 of the judgment in the case of X and X, where the Court notes that a decision to allow third-country nationals to lodging applications for visas on the basis of the Visa Code in order to apply for international protection in the Member State to which they will travel would undermine the general structure of the Dublin system. However, even from data regularly published on the site of the EASO it is quite clear that the Dublin system fails, and that it definitively is not able to guarantee effective access to an assessment of applicants’ protection needs. The Court thus choses to bypass the Charter of Fundamental Rights of the EU in order to save an already failed system – but one that Member States are unwilling to change.
The future of humanitarian visas after X and X
According to a recent research by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, currently 16 EU Member States either have or have had some form of scheme governing humanitarian visas. Astonishingly, however, the same study shows that in times of crisis the number of visas with limited territorial validity issued for humanitarian reasons decreases dramatically. The plea of X and X and others that are in a similar situation should animate the Commission to come up with a viable proposal for EU legislation governing the issuance by Member States of long-term visas and residence permits to third-country nationals on humanitarian grounds, which the EU is competent to adopt according to Article 79 (2) of the TFEU.
The fate of X and X and other prospective applicants for international protection
The Court’s ruling that visa-applications of prospective applicants for international protection should be dealt with under national law has the – above discussed – effect that the Charter of Fundamental Rights does not apply to such applications nor the procedure with which they are assessed. However, though national authorities and courts of all Member States of the EU are still bound by the ECHR and other relevant international law when applying national immigration and asylum law, their scope of application may not reach as far as the Charter would have reached, and at present is regarded as applicable to potential applicants for international protection that have not yet entered the territories of the states bound by them.
For the applicants in this concrete case, X and X and their three children, the decision of the Court means more concretely that their visa-application will presently be dealt with under Belgian law. This also means that, even though their application does not come within the ambit of the Charter of Fundamental Rights of the EU according to the CJEU’s ruling in their case, Belgium is still bound by the ECHR in the application of its national laws. However, considering the recent developments in Belgian asylum policy and the country’s record with regard to the assessment of asylum applications, it is doubtful whether this should be considered as a reason to hope for a decision that would allow X and X to enter Belgium. Thus, the Court’s ruling has the disappointing consequence that X and X will most probably remain in Aleppo, facing inhuman treatment and forcing them to consider other, perhaps less legal, pathways into Europe for the sake of their future and that of their children.