Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Applicability – Yes or no? Issuing of a visa on humanitarian grounds or because of international obligations

Third country nationals submitted, at the Belgian Embassy in Beirut, on the basis of Article 25(1)(a) of the Visa Code, applications for visas with limited territorial validity.

Article 1 of the Visa Code provides that “visa” means an authorisation issued by a Member State with a view to transit through or an intended stay on the territory of the Member States of a duration of no more than 90 days in any 180-day period.

Article 25(1)(a) of the Visa Code states that a visa with limited territorial validity shall be issued exceptionally, when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations,(...)". 

In support of their visa applications, they stated that the purpose of the visas they were seeking to obtain was to enable them to leave their country of origin in order to apply for asylum in Belgium. They claimed, they were at risk of persecution on account of their religious beliefs and it is impossible for them to register as refugees in neighbouring countries.

They also claimed that Article 18 of the Charter imposes 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 Article 3 of the ECHR and Article 4 of the Charter will be infringed. They also referred to Article 33 of the Geneva Convention as international obligation mentioned in Article 25(1)(a) of the Visa Code.

Is the Charter applicable in this case?

No - only when national law provides a separate basis for visa application under humanitarian grounds

In the judgment C‑638/16 PPU, X and X v État Belge, the Court of Justice of the EU stated that "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".

In the operative part of the judgement the Court held that Article 1 of the Visa Code, must be interpreted as meaning that an application for a visa with limited territorial validity made on humanitarian grounds by the foreigner, 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.

Since the present situation is not governed by EU law, the provisions of the Charter, in particular, Articles 4 and 18 thereof, do not apply to it.