Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The decision relates to the interpretation of Article 25(1) of the Visa Code and the existence of an obligation under EU law to issue humanitarian visas.
A married couple — and their three young, minor children are Syrian nationals who live in Aleppo (Syria). In 2016 they submitted, at the Belgian Embassy in Beirut (Lebanon), on the basis of Article 25(1)(a) of the Visa Code, applications for visas with limited territorial validity, before returning to Syria on the following day.
The applicants stated that the purpose of the visas they were seeking to obtain was to enable them to leave the besieged city of Aleppo in order to apply for asylum in Belgium. One of the applicants in the main proceedings claimed, inter alia, to have been abducted by a terrorist group, then beaten and tortured, and finally released following the payment of a ransom. The applicants in the main proceedings emphasised, in particular, the precarious security situation in Syria in general and in Aleppo especially, and the fact that, being Orthodox Christians, they were at risk of persecution on account of their religious beliefs. They added that it was impossible for them to register as refugees in neighbouring countries, due to the closure of the border between Lebanon and Syria.
The Office des Étrangers (Immigration Office, Belgium) rejected their applications and a couple appeals.
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The Court noted that it is apparent from the order for reference and from the material in the file before the Court that the applicants in the main proceedings submitted applications for visas on humanitarian grounds, based on Article 25 of the Visa Code, at the Belgian embassy in Lebanon, with a view to applying for asylum in Belgium immediately upon their arrival in that Member State and, thereafter, to being granted a residence permit with a period of validity not limited to 90 days. The Court stated in accordance with Article 1 of the Visa Code, such applications, even if formally submitted on the basis of Article 25 of that code, fall outside the scope of that code, in particular Article 25(1)(a) thereof, the interpretation of which is sought by the referring court in connection with the concept of ‘international obligations’ mentioned in that provision.
In addition, since no measure has been adopted, to date, by the EU legislature on the basis of Article 79(2)(a) TFEU, with regard to the conditions governing the issue by Member States of long-term visas and residence permits to third-country nationals on humanitarian grounds, the applications at issue in the main proceedings fall solely within the scope of national law. Subsequently, since the situation at issue in the main proceedings is not, therefore, governed by EU law, the provisions of the Charter, in particular, Articles 4 and 18 thereof, referred to in the questions of the referring court, do not apply to it.
The Court concludes that to conclude otherwise would allow third-country nationals to lodge applications for visas on the basis of the Visa Code in order to obtain international protection in the Member State of their choice, which would undermine the general structure of the system established by Regulation No 604/2013. MS remain, however, competent to issue humanitarian visas if national law so requires.
Article 1 of 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), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, must be interpreted as meaning that an application for a visa with limited territorial validity made on humanitarian grounds by a third-country national, on the basis of Article 25 of the code, to the representation of the Member State of destination that is within the territory of a third country, with a view to lodging, immediately upon his or her arrival in that Member State, an application for international protection and, thereafter, to staying in that Member State for more than 90 days in a 180-day period, does not fall within the scope of that code but, as European Union law currently stands, solely within that of national law.
Visa Code Regulation (EC) No 810/2009
Schengen Borders Code Regulation (EU) 2016/399