Members states must issue visas on humanitarian grounds where substantial grounds have been shown for believing that a refusal would place persons seeking international protection at risk of torture or inhuman or degrading treatment.
This was the opinion announced today, Tuesday 7 February, by the Advocate General Paolo Mengozzi, who added that it is irrelevant whether or not there are ties between the person concerned and the requested EU member state.
This follows a complaint against the Belgian state by a Syrian family. On 12 October 2016, a Syrian couple and their three young children, Syrian nationals living in Aleppo (Syria), applied to the Belgian Embassy in Beirut (Lebanon) for visas. They returned to Syria on 13 October 2016. Their applications were for visas with limited territorial validity, pursuant to the EU Visa Code, to enable the family to leave the besieged city of Aleppo, with a view to making an asylum application in Belgium.
One of the applicants claims, inter alia, to have been taken by an armed group, beaten and tortured and finally released on payment of a ransom. The couple maintains that the security situation in Syria in general, and in Aleppo in particular, has deteriorated and point out that, as Orthodox Christians, they are at risk of persecution on account of their religious beliefs. They add that it is impossible for them to register as refugees in the neighbouring countries because, among other reasons, the border between Lebanon and Syria has in the meantime been closed.
On 18 October 2016, the Office des étrangers (Aliens’ Office) (Belgium) refused those applications. It took the view that, by applying for a visa with limited territorial validity with a view to making an asylum application in Belgium, the Syrian family in question clearly intended to stay for more than 90 days in Belgium. Moreover, the Office claims in particular that Member States are not obliged to admit into their territory all persons finding themselves in a catastrophic situation.
The Syrian family brought proceedings before the Conseil du contentieux des étrangers (Belgian Asylum and Immigration Board) seeking suspension of operation of the decisions refusing to grant visas. That court decided that it was necessary, as a matter of urgency, to make a reference to the Court of Justice concerning the interpretation of the Visa Code and of Articles 4 (prohibiting torture and inhuman or degrading treatment) and Article 18 (the right to asylum) of the Charter of Fundamental Rights of the European Union.
The EU Court of Justice Charter.Advocate General Mengozzi took the view that, by adopting a decision under the Visa Code, the authorities of a Member State are implementing EU law and are therefore required to respect the rights guaranteed by the Charter, which all Member State authorities acting in the context of EU law are required to observe, is enjoyed by the addressees of the measures adopted by such an authority, irrespective of any territorial criterion.
The Advocate General considers that a Member State is required to issue a visa on humanitarian grounds in a situation where there is a serious risk of breach of Article 4 of the Charter in particular, irrespective of whether there are any links between the person concerned and the requested Member State.
The Advocate General does not accept an interpretation of the Visa Code to the effect that the code merely empowers Member States to issue such visas. His position is based both on the wording and structure of the provisions of the Visa Code and on the need for the Member States, in the exercise of their discretion, to respect the rights guaranteed by the Charter when applying those provisions.
In the view of the Advocate General, there is no doubt that the applicants were exposed in Syria, at the very least, to a genuine risk of extremely serious inhuman treatment which clearly falls within the scope of the prohibition laid down in Article 4 of the Charter. In the light, inter alia, of the information available on the situation in Syria, the Belgian State was not entitled to conclude that it was exempted from its positive obligation under Article 4 of the Charter.