[German version below]
The latest paper in the E-Paper series Saar Briefs analyses the Judgment „X and X v Belgium“, in which the CJEU, contrary to the Opinion of Advocate General Mengozzi, rejected a Member State’s obligation flowing from the EU Charter of Fundamental Rights in conjunction with the EU Visa Code to grant humanitarian entry visas to Syrian refugees to facilitate their asylum application in the EU. A detailed discussion of the Opinion and the Judgment including an evaluation of the latter’s implications for the current and future EU Migration and Refugee policy will be published in German in the second issue of the ZEuS 2017 (Zeitschrift für Europarechtliche Studien) under the title: „Kein legaler Zugangsweg in die EU durch humanitäre Visa – Einordnung des Verfahrens „X und X gegen Belgien“ in die Europäische Migrations- und Flüchtlingspolitik“ („No legal access to the EU through humanitarian visas – placement of the procedure “X and X v Belgium” in the European Migration and Refugee Policy“). (Prospectively June 2017)

Der englischsprachige Beitrag in der E-Paper Serie Saar Briefs analysiert das Urteil „X und X gegen Belgien” vom 7.3.2017, in dem der EuGH – entgegen den Schlussanträgen von Generalanwalt Mengozzi – eine aus der EU-Grundrechte-Charta i.V.m. dem EU-Visakodex folgende Pflicht der Mitgliedstaaten zur Erteilung humanitärer Einreisevisa an syrische Flüchtlinge zur Asylantragstellung in der EU ablehnte. Eine ausführliche Auseinandersetzung mit den Schlussanträgen und dem Urteil einschließlich einer Einordnung in die derzeitige und künftige EU-Flüchtlings- und Migrationspolitik wird auf Deutsch unter dem Titel „Kein legaler Zugangsweg in die EU durch humanitäre Visa – Einordnung des Verfahrens „X und X gegen Belgien“ in die Europäische Migrations- und Flüchtlingspolitik“ in der zweiten ZEuS-Ausgabe 2017 (Zeitschrift für Europarechtliche Studien) erscheinen. (vsl. Juni 2017).

An article by Kristina Müller*, PhD candidate and Research Associate at the Chair for EU Law, Public International Law and Public Law of Prof. Dr. Thomas Giegerich.

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A. Introduction

In its judgment X and X v Belgium[1] the European Court of Justice (CJEU) refrained from introducing a new approach to the European Asylum Policy as supported by Advocate General Mengozzi[2]. In his Opinion the Advocate General (AG) had argued that the Visa Code[3] in conjunction with Art. 4 of the Charter of Fundamental Rights (CFR)[4] obligated Member States to issue humanitarian visas to potential asylum seekers if a refusal would expose them to a real risk of treatment violating Art. 4 CFR and deprive them of a legal route to exercise their right to seek international protection[5] in the EU.[6]

While AG Mengozzi stressed the dramatic situation in Syria and reminded the Union and its Member States of their humanitarian values and human rights foundations,[7] the judgment is confined to an unemotional and, above all, short interpretation of the provisions of the Visa Code. No mention is made of the humanitarian disaster in Syria and its neighbouring countries or the ensuing challenges for the EU.[8] The Grand Chamber already rejects the applicability of the Visa Code and of EU Law – including the CFR – altogether. According to the Court, visa applications lodged to seek asylum inside the territory of a Member State are governed exclusively by national law.

Following an overview of the factual and legal background of the case (A), the Court’s reasoning will be presented (B) and analysed (C) with a view to determining whether the CJEU’s restrictive interpretation was legally required or rather directed by the desired outcome.[9]

B. Factual and legal background

The preliminary ruling originated in main proceedings concerning a Syrian family (a couple with three minor children) from Aleppo.

In October 2016 they applied for visas on the basis of the Visa Code at the Belgian Embassy in Beirut (Lebanon). They declared that they wanted to leave the besieged city of Aleppo to apply for asylum in Belgium stressing, inter alia, the precarious security situation in Syria and that it was impossible for them to register as refugees in neighbouring countries.[10]

The issuing of the desired visas is regulated by Art. 25 (1) (a) Visa Code. The provision stipulates that a visa with limited territorial validity shall be issued exceptionally, “when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations.” Art. 32 (1) (b) Visa Code foresees, inter alia, that without prejudice to Art. 25 (1), a visa shall be refused if there are reasonable doubts regarding the applicant’s intention to leave the territory of the Member State before the expiry of the visa applied for.

The Belgian Immigration Office rejected the applications pursuant to Art. 32 (1) (b) Visa Code arguing, among others, that the applicants in the main proceedings intended to overstay the maximum visa duration of 90 days in any 180-day period (Art. 1 (1)[11] Art. 2 no. 2 (a)[12] Visa Code).[13] The applicants challenged these decisions and the referring court (Conseil du Contentieux des Étrangers), in essence, asked the CJEU whether the risk of an infringement of Art. 4 CFR imposed an obligation on Member States to issue visas under the Visa Code.[14]

C. The Reasoning of the CJEU

By rejecting the applicability of the Code, the Court did not have to delve into the scope of positive extraterritorial obligations flowing from the CFR. It underpinned its interpretation of the pertinent Visa Code provisions (I) with systemic arguments relating to the structure of (EU) refugee law (II, III).

I. Applicability of the Visa Code

The CJEU took the stance that, even if formally submitted on the basis of Article 25 (1) (a) Visa Code, the applications fell outside the scope of the Code since the applicants’ real purpose was to stay longer than 90 days in Belgium by seeking asylum and receiving a long-term residence permit. According to the Court the EU visa regime, however, only regulated Member States’ authorisations to stay up to 90 days in any 180-day period.[15] This followed from the Code’s legal basis in primary law[16] and Art. 1 (1), Art. 2 no. 2 (a), (b) Visa Code[17].[18] In the absence of other pertinent EU legal acts governing the granting of long-term visas and residence permits on humanitarian grounds (as foreseen in Art. 79 (2) (a) TFEU), the Court held that the provisions of the CFR (in particular Art. 4 and 18) were not applicable.[19] This is because, according to Art. 51 (1) CFR, Member States are only bound by the Charter when implementing EU law.

In the Court’s view, this result was not called into question by Article 32 (1) (b) Visa Code which qualified doubts as to the applicant’s intention not to overstay as a ground for visa refusal rather than inapplicability of the Code, since the constellation at issue was not characterized by such doubts, but by the applicants actually not seeking short-term visas.[20]

II. Dublin Argument

The Court further argues that allowing third-country nationals to lodge applications for visas with a view to seek international protection in that Member State would lead to a situation where – contravening the general structure of the Dublin III regulation[21] – protection seekers were free to choose the country responsible for processing their claim.[22]

III. De Facto Right to Seek Asylum at Representations of the Member States

Lastly, the Court points out that concluding otherwise would de facto obligate Member States to receive asylum applications at their representations in third countries. In that regard it is emphasised that EU legal acts governing the procedures for granting international protection, namely the Dublin III Regulation[23] and the Asylum Procedures Directive[24], exclude from their scope such extraterritorial applications.[25]

The CJEU concludes that the Belgian authorities were wrong to classify the applications in question as applications for short-term visas.[26]

D. Analysis

In the following the main arguments put forward by the CJEU will be evaluated.

I. Applicability of the Visa Code

Although the Court is right in pointing to the applicants’ desire to stay in Belgium for longer than the maximum visa duration, the conclusion drawn is not convincing. It is not the applicants’ purpose to obtain long-term visas, but rather to stay legally in Belgian territory as asylum seekers (cf. Art. 9 (1) Asylum Procedures Directive) and later as persons with international protection status.[27] This aim however, is only attainable after having received short-term entry visas. Accordingly the applicants’ real (intermediate) purpose necessarily is the granting of such visas. The CJEU’s argument concerning Art. 32 (1) (b) Visa Code[28] is therefore equally unconvincing. Further, it should be emphasised that humanitarian visas may be issued irrespective of the grounds for refusal laid down in Art. 32 Visa Code.[29] Lastly, attention was drawn to the absurd result that if the applicants would not have revealed their intention to seek asylum, their situation would have raised doubts within the meaning of Art. 32 (1) (b) resulting in the applicability of the Code and consequently of the CFR.[30] In the Court’s construction the wish to seek international protection is stigmatised as an abuse of rights excluding a person from the benefits enshrined in the Visa Code. All in all, the better arguments are in support of regarding “ulterior motives” only as relevant when assessing the substance of an application, not when determining the Visa Code’s applicability.[31] If that is done however, the CFR will apply alongside the Visa Code.

II. Dublin Argument

Regarding the Dublin argument, the CJEU evidently had Art. 12 (2) Dublin III Regulation in mind. That provision places the responsibility for examining an asylum application of a person in possession of a valid visa on the issuing Member State. While it is true that under the Dublin System asylum seekers are not entitled to choose the country responsible for processing their claims, allowing humanitarian visas to facilitate the lodging of international protection claims would not contravene the system. Art. 12 (2) with its legal consequences pertains to the objective criteria to distribute responsibility among Dublin States. Accordingly, the situation of an individual choosing the representation of a certain Member State[32] is as compatible with the Dublin System as migrants influencing Member States’ responsibility by choosing a certain flight route (cf. Art. 13 (1) Dublin III Regulation). The fact that Member States might come under a human rights obligation to issue humanitarian visas (thereby incurring responsibility for processing asylum applications) is not contrary to the system either, but a consequence of higher-ranking human rights provisions potentially modifying the application of secondary law criteria.[33]

III. De Facto Right to Seek Asylum at Representations of the Member States

The CJEU’s approach to argue against an EU right to seek asylum at Member States’ representations by referring to Art. 1 (3) Dublin III Regulation[34] and Art. Art. 3 (1), (2) Asylum Procedures Directive[35] is equally not compelling. These legal acts regulate the Member States‘ procedure when processing claims for international protection. Their limited territorial scope does not preclude Member States‘ representations examining visa applications from assessing the protection need of a visa applicant as laid down in the Qualification Directive[36] whose territorial scope is not limited. [37]

It is questionable whether an obligation to take into consideration protection needs of visa applicants would actually amount to the de facto introduction of an internationally[38] and nationally not recognised right to seek asylum at embassies.[39] It could be argued in support that the issuing of visas constitutes the preliminary stage for an asylum application. What militates against this assumption is that the asylum authorities within the Member States would retain the exclusive competence to decide on the entitlement to international protection. No binding force would ensue from the extraterritorial representations’ decisions to issue visas in light of applicants’ international protection needs.

E. Concluding remarks

Considering the foregoing, the CJEU could have easily affirmed the applicability of the Visa Code. In that case however, the Court would have been obliged to confront the question whether positive obligations to issue visas for third-country nationals in clear need of protection derive from the extraterritorially[40] applicable Art. 4 CFR[41] – a step with politically explosive force particularly in times of growing EU-scepticism.

It is hard to avoid the impression that the CJEU evaded the difficult task of reconciling inalienable human rights with the doubtlessly limited reception capacities of the Member States by resorting to an allegedly compelling interpretation of secondary law.[42] This is understandable and lamentable at the same time. The affirmation of an additional legal pathway to the EU could have diversified approaches to cope with the migratory pressure[43] and counterbalanced the ever more restrictive policies to manage migration to the EU. It would not only have protected individuals in clear need of such protection but also reinforced the Union’s aim to promote respect for human dignity and human rights in its relations with the wider world.[44]

* Ass. iur. Kristina Müller is a PhD candidate and was a Research Associate at the Chair for EU Law, Public International Law and Public Law of Prof. Dr. Thomas Giegerich.

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[1]           CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:173.

[2]           Opinion AG Mengozzi of 7.2.2017 to CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:93.

[3]           Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), OJ L 243, 15.9.2009, p.1 as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, OJ L 182 of 29.6.2013, p. 1

[4]           Charter of Fundamental Rights of the European Union, 12.12.2007, OJ  C 303 of 14.12.2007, p. 1.

[5]           According to Art. 2 (a) Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) (Qualification Directive) international protection means refugee status and subsidiary protection status.

[6]           Opinion AG Mengozzi of 7.2.2017 to CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:93, para 176.

[7]           Opinion AG Mengozzi of 7.2.2017 to CJEU, Judgment of 7.3.2017, Case. C-638/16 PPU, X and X, ECLI:EU:C:2017:93, paras. 6 et seq. and 165.

[8]           Zoeteweij-Turhan/Progin-Theuerkauf, CJEU Case C-638/16 PPU, X and X – Dashed hopes for a legal pathway to Europe, European Law Blog of 10.3.2017, available at http://europeanlawblog.eu/2017/03/10/cjeu-case-c-63816-ppu-x-and-x-dashed-hopes-for-a-legal-pathway-to-europe/(last accessed 24.04.2017), mindful of the importance of the judgment, would have wished for a deeper insight into the Court’s arguments and reasoning.

[9]           Zoeteweij-Turhan/Progin-Theuerkauf, (Fn. 8), assume that the CJEU primarily wanted to maintain the anyway dysfunctional Dublin system.

[10]          CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:173, paras. 19 et seq.

[11]          According to that provision the Visa Code establishes 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.

[12]          Defines visa as an authorisation issued by a Member State with a view to (…) an intended stay on the territory of the Member States of a duration of no more than 90 days in any 180-day period.

[13]          Opinion AG Mengozzi to CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:93, para. 33.

[14]          For the complete preliminary questions see: Preliminary Reference of the Conseil du Contentieux des Étrangers (Belgium), lodged on 12.12.2016, Case C-638/16, X and X/État Belge, OJ C 38/24 of 6.2.2017, p. 18.

[15]          CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:173, paras. 41-43.

[16]          Art. 62 (2) (b) (ii) of the EC Treaty foresaw that the Council of the European Union adopt measures concerning visas for intended stays of no more than three months.

[17]          See above fn. 11, 12.

[18]          CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:173, para. 40 et seq.

[19]          Ibid., paras. 44, 45.

[20]          Ibid., paras. 46 et seq.

[21]          Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), OJ L 180 of 29.6.2013, p. 31.

[22]          CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:173, para. 48.

[23]          Art. 1 and Art. 3 Dublin III Regulation oblige Member States to examine applications only when lodged on their territory.

[24]          Art. 3 (1), (2) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (Asylum Procedures Directive), OJ L 180 of 29.6.2013, p. 60, defines the scope of the directive as applying to all 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 representations of Member States.

[25]          CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:173, para. 49.

[26]          Ibid., para. 50.

[27]          In that vein: Opinion AG Mengozzi of 7.2.2017 to CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:93, para. 53.

[28]          CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:173, paras. 46  et seq.

[29]          See Opinion AG Mengozzi to CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:93, para. 132; Peers, External processing of applications for international protection in the EU, EU Law Analysis Blog of 24.4.2014: „[…] LTV visa can be issued where the usual conditions for issuing a visa are not met, for instance where there is insufficient evidence of an intention to return to the country of origin. Obviously, where a person has a genuine protection need, a reluctance to return to her country of origin is perfectly understandable; indeed, it is built into the very definition of refugee or subsidiary protection status (ie a well-founded fear of suffering persecution or serious harm in that country).“

[30]          Zoeteweij-Turhan/Progin-Theuerkauf, (Fn. 8).

[31]          In that vein: Moreno-Lax, Asylum Visas as an Obligation under EU Law: Case PPU C-638/16 X, X v État belge (Part I), EU Migration Law Blog of 16.2.2017, available at http://eumigrationlawblog.eu/asylum-visas-as-an-obligation-under-eu-law-case-ppu-c-63816-x-x-v-etat-belge/ (last accessed 24.4.2017), following the Opinion of AG Mengozzi to CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:93, paras. 49 et seqq.; Ziebritzki, Humanitäre Visa für Flüchtlinge, Teil 2: wirklich keine Angelegenheit der EU?, VerfBlog of 9.3.2017, available at http://verfassungsblog.de/humanitaere-visa-fuer-fluechtlinge-teil-2-wirklich-keine-angelegenheit-der-eu/(last accessed 24.4.2017).

[32]          Which is hard enough to reach in a situation of war/conflict. See Opinion AG Mengozzi to CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:93, para. 174: “In extreme conditions such as those that the applicants in the main proceedings have endured, their option to choose is as limited as the option of the Member States of the Mediterranean Basin to turn themselves into landlocked countries.”

[33]          Here by an obligation to issue visas based on Art. 4 CFR in conjunction with Art. 12 (2) Dublin III Regulation. This has been established for the Dublin Regulation at the latest since CJEU, Joint Cases C-411/10 and C-493/10, N.S. and others, ECLI:EU:C:2011:865. See Art. 3 (2) subpara. 2 Dublin III Regulation.

[34]          Art. 1 (3) Dublin III Regulation.

[35]          Art. 3 (1), (2) Asylum Procedures Directive.

[36]          Directive 2011/95/EU of 13.12.2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337 of 20.12.2011, p. 9.

[37]          See also Peers, (fn. 29).

[38]          See extensively on this issue Noll, Seeking Asylum at Embassies: A Right to Entry under International Law?, International Refugee Law 2005, pp. 542-573.

[39]          See with additional references Goodwin-Gill/McAdam, The Refugee in International Law, 3. edition 2011, pp. 370 et seq.

[40]          The better arguments support the unlimited territorial scope of the CFR. Cf. Opinion AG Mengozzi to CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:93, para. 89 and 94 et seqq.; Directorate General for Internal Policies (European Parliament), Humanitarian Visas: option or obligation?, p. 28, available at: http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509986/IPOL_STU(2014)509986_EN.pdf, (last accessed 24.4.2017).

[41]          That being the claim of the Attorney General: Opinion AG Mengozzi of 7.2.2017 to CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:93, paras. 6, 139, 140, 155, 174. Concerning the legal admissibility of such an obligation, see also Directorate General for Internal Policies, (fn. 40), p. 27; Moreno-Lax, Asylum Visas as an Obligation under EU Law: Case PPU C-638/16 X, X v État belge (Part II), EU Migration Law Blog of 21.2.2017, accessible at http://eumigrationlawblog.eu/asylum-visas-as-an-obligation-under-eu-law-case-ppu-c-63816-x-x-v-etat-belge-part-ii/, (last accessed 28.3.2017) . Ziebritzki, (Fn. 31), qualifies answering the question of the positive obligations’ range as legally and politically most exciting, yet difficult.

[42]          With regard to the necessary and possible balancing exercise see Zoeteweij-Turhan/Progin-Theuerkauf, AG Mengozzi’s Opinion on granting visas to Syrians from Aleppo: wishful thinking?, EU Law Blog of 14.2.2017, available at http://europeanlawblog.eu/2017/02/14/ag-mengozzis-opinion-on-granting-visa-to-syrians-from-aleppo-wishful-thinking/, (last accessed 24.4.2017).

[43]          Rapporteur López Aguilar, Report on the proposal for a regulation of the European Parliament and of the Council on the Union Code on Visas (Visa Code) (recast), COM(2014)164, Doc. A8-0145/2016 , p. 103. The Report has been transferred to the European Parliament for it to adopt its position at first reading.

[44]          Art. 2, Art. 3 (1), Art. 21 (1),  (2) (b), (c) TEU; See the question of AG Mengozzi in his Opinion to CJEU, Judgment of 7.3.2017, Case C-638/16 PPU, X and X, ECLI:EU:C:2017:93, para. 6.

Suggested Citation: Müller, Kristina, No Legal Pathway for Asylum Seekers to the EU through Humanitarian Visas: The case of X and X v Belgium before the CJEU, jean-monnet-saar 2017, DOI: 10.17176/20220422-161655-0