The Court of Justice of the European Union (CJEU) has ruled that European Union Member States are not required to grant humanitarian visas to those seeking asylum, even where there is risk of torture or inhuman treatment.
The case was brought by a couple and their three young children from Aleppo, Syria who applied for a humanitarian visa under the EU Visa Code from the Belgian embassy in Lebanon. They hoped to obtain visas with limited territorial validity with a view to applying for asylum in Belgium. The application was rejected by the Belgian Foreigners’ Office alleging that the couple planned to break the visa’s 90-day limit.
The family challenged the refusal decision before the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings (CCE), Belgium). They submitted that the EU Charter of Fundamental Rights and the European Convention of Human Rights (ECHR) impose a positive obligation on the Member States to guarantee the right to asylum. They also claimed 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 CCE referred this to the CJEU.
Firstly, the Court held that the applications fell outside the scope of the EU Visa Code as the family intended to exceed the 90 day period. Further, the Court found that no measure had 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. Accordingly, the applications of the Syrian family fell solely within the scope of national law. As the situation was not governed by EU law, the Charter did not apply.
The Court felt that using the short-term visa programme for the purpose of seeking asylum in a Member State of choice would undermine the structure of the system for determining which State is responsible for examining an application for international protection. Member States are, however, entitled to issue humanitarian visas if national law so requires.
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