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European Union: Court of Justice Rules Member States Not Required Under EU Law to Issue Humanitarian Visas

(Mar. 14, 2017) On March 7, 2017, the European Court of Justice (ECJ) held that Member States are not obligated under European Union law to issue humanitarian visas to asylum seekers, because such applications fall within the scope of national law. (Case C-638/16, X and X v. État belge (Mar. 7, 2017), CURIA.)

Facts of the Case

On October 12, 2016, the petitioners, a Syrian family from Aleppo, submitted an application for a visa with limited territorial validity at the Belgian Embassy in Beirut, Lebanon, on the basis of article 25, paragraph 1(a), of the EU Visa Code. In their application, they stated that the purpose was to subsequently apply for asylum in Belgium to enable them to leave the besieged city of Aleppo.  (Case C-638/16, supra, at 19 & 20; 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), 2009 O.J. (L 243) 1, EUR-LEX, as amended by Regulation (EU) No. 610/2013, 2013 O.J. (L 182) 1), EUR-LEX.)

The Belgian Immigration Office rejected the visa application and stated that the applicants intended to stay more than 90 days in Belgium and that Belgian diplomatic offices were not authorized to accept asylum applications. (Case C-638/16, supra, at 21.)  The applicants challenged the decision before a Belgian court. The court requested a preliminary ruling from the ECJ as to whether the “international obligations” referred to in article 25, paragraph1(a), of the Visa Code cover, inter alia, all the rights guaranteed by the EU Charter of Fundamental Rights (EU Charter) and whether the Member States have discretion to issue a visa if it is considered “necessary under international obligations.”  (Id. at 28.)

The Ruling

In its ruling, the ECJ first noted that the EU Visa Code only deals with the procedures and conditions for issuing visas for transit through or intended stays in the territory of the Member States not exceeding 90 days in any 180-day period. (Id. at 41.)  It declared that the applicants submitted applications for visas on humanitarian grounds and that the residence permits they were ultimately seeking would have therefore exceeded 90 days.  (Id. at 42.)  It concluded that even though the application was formally submitted on the basis of article 25, paragraph 1, of the Visa Code, it fell outside the scope of that Code.  (Id. at 43; EU Visa Code, art. 1 ¶ 1.)

The ECJ stated that the EU legislature has not yet adopted any measures with regard to long-term visas and residence permits for third-country nationals on humanitarian grounds. It held that the question of whether or not to issue a humanitarian visa is therefore only covered by national law.  (Case C-638/16, supra, at 44.)  As the situation at issue fell within the scope of national law, the provisions of the EU Charter, as mentioned by the referring Belgian court, were not applicable.  (Id. at 45.)

The ECJ added that allowing third-country nationals to lodge applications on the basis of the Visa Code in order to seek asylum in the Member State of their choice would undermine the general structure of the system established by EU law for short-term visas. (Id. at 48.)