Court of Justice of the EU rules that Member States are not required to grant humanitarian visas under EU law
In its judgement delivered today, the Court of Justice has ruled that Member States are not required – under EU law – to grant a humanitarian visa to persons who wish to enter their territory with a view to applying for asylum. However, they are free to do so on the basis of their national law.
Case C-C-638/16 PPU X. and X. v. État Belge
In October 2016, a Syrian couple with three minor children, living in Aleppo (Syria), applied for humanitarian visas at the Belgian embassy in Lebanon. The purpose of the applications was to obtain visas with limited territorial validity, on the basis of the EU Visa Code, in order to enable them to leave Syria and apply for asylum in Belgium.
These applications were rejected by the Belgian Immigration Office, arguing that by seeking to obtain these visas, the family clearly intended to stay longer than 90 days in Belgium (contrary to the Visa Code) and that granting them the visas would amount to allowing them to make an asylum application to a diplomatic post.
The Syrian family has challenged the refusal decision before the Council for Alien Law Litigation (CALL). They submit that the EU Charter of Fundamental Rights and the ECHR impose a positive obligation on the Member States to guarantee the right to asylum, and that the granting of international protection is the only way to avoid any risk that the prohibition of torture and inhuman or degrading treatment or punishment will be infringed.
The CALL decided to refer the matter to the Court of Justice of the EU.
Judgement of the Court of Justice
On 7 March 2017, the Court has ruled that Member States are not required – under EU law – to grant a humanitarian visa to persons who wish to enter their territory with a view to applying for asylum. However, they are free to do so on the basis of their national law.
The Court considers that EU law establishes only the procedures and conditions for issuing visas for transit through or intended stays on the territory of the Member States not exceeding 90 days. The Syrian family, however, submitted applications for visas on humanitarian grounds with a view to apply for asylum in Belgium (and thus, for a residence permit exceeding 90 days). Therefore, even if the applications were submitted on the basis of the Visa Code, they fall outside its scope.
Furthermore, no measures have been adopted, to date, by the EU legislature, with regard to the issuing by Member States of long-term visas and residence permits to third country nationals on humanitarian grounds. The applications of the Syrian family thus fall solely within the scope of the national law. Therefore, since the situation is not governed by EU law, the provisions of the Charter do not apply.
For further information, see the press release of the Court of Justice of the EU.
The full text of the judgement is available here.