Maéva Despaux, PhD Candidate in Asylum and Human Rights Law – Université Toulouse 1 Capitole / Universitat Pompeu Fabra, Barcelona

                I.            Introduction

According to Professor François Crépeau, “migration is a journey in search of dignity”. Considering the extremely perilous paths followed by protection seekers[1] to reach Europe, the development of legal and safe pathways such as “humanitarian” or “asylum visas” appears to be the only condition in which such dignity can be acceptably protected.

Beyond concerns about the political will (or lack thereof) to develop a policy on this regard at the European level, a question remains of whether European Human Rights Law recognises the right to obtain humanitarian visas and the respective obligation of the States to provide them.

In the case X. and X. v. Belgium of 7 March 2017, the Court of justice of the European Union (CJEU), stated that applications for humanitarian visas fall solely within the scope of national law, and not under EU law, in such a way that the Charter of Fundamental rights of the EU does not apply. This assessment, far from closing the debate on humanitarian visas, generated strong criticism (see for example here and here) and can be considered as a missed opportunity to address the question. Today, it is in turn for the European Court of Human Rights (ECtHR, or the Court) to be confronted with the question of humanitarian visas in the pending Grand Chamber case M. N. and Others v. Belgium. The case stems from the refusal of Belgian authorities to grant a visa on account of humanitarian considerations to a Syrian family residing in Syria who applied for humanitarian visas at the Belgian consulate in Lebanon.

The case raises fundamental issues involving all the Contracting States of the European Convention on Human Rights (ECHR or the Convention), as demonstrated by the fact that no less than 11 countries intervened in the proceedings as third-parties. Indeed, both the competence of the Court over persons who are neither on the territory nor citizens of a Contracting State, and the existence of an obligation to issue visas for humanitarian reasons under the Convention are in question.

After a description of the facts of the case (II), the post will examine the issue of whether Belgium exercised its extraterritorial jurisdiction through the acts of its consular agents (III) and the existence of a positive obligation for Belgium to deliver a humanitarian visa under Article 3 of the Convention (IV). It will then provide some remarks on the importance of a decision recognizing the Court’s competence and the existence of an obligation under Article 3 (V).

             II.            Case overview

Just as X. and X. v. Belgium, the case concerns a family from Aleppo who, on 22 August 2016, submitted a visa application to the Belgian consulate of Beirut under Article 25 of the Community Code on Visas (CCV) on account of humanitarian considerations, and subsequently returned to Syria. The family, which included two young children, wished to travel to Belgium and request asylum there. Belgian friends had committed to support them upon their arrival in the country.

 On 13 September 2016, the Office des étrangers (OE), competent to examine visa applications, refused to deliver their visa.  On 7 October 2016, the Conseil du Contentieux des Etrangers (“CCE”, the administrative jurisdiction competent for immigration and asylum) suspended the execution of the OE’s decision as a matter of urgency on account of the political and security situation in Aleppo and the risk of violation of Article 3 of the ECHR, while imposing the State to take a new decision within 48 hours. The CCE ultimately ordered the issuance of visas or laissez-passer to the family. However, the Belgian authorities refused to enforce the decisions of the CCE, and the question was submitted to the civil jurisdictions. On 25 October 2016, the Tribunal of first instance of Brussels ordered the State to abide by the CCE’s decision and imposed a penalty. The execution of the Tribunal’s decision was lately suspended by the Court of Appeals following the unilateral application of the Belgian State (for a more detailed account of the facts of the case, see Statement of facts). Considering exhausted all internal remedies, on 10 January 2018 the applicants lodged an application before the European Court of Human Rights.

In their application before the ECtHR, the applicants alleged that the refusal by the Belgian authorities to execute the CCE’s decision of 7 October 2016 determined a violation of Article 3 (Prohibition of torture) and Article 13 (Right to an effective remedy) of the ECHR. They also complained about the violation of Articles 6§1 (Right to a fair trial) and 13 of the ECHR due to the failure of the Belgian authorities to enforce the CCE’s decision.

The Grand Chamber held a hearing on 24 April 2019.

         III.            The crucial recognition of Belgium’s jurisdiction through the acts of its consular agents

At the hearing, on the question of whether Syrian nationals applying for a visa at the Belgian consulate in Lebanon fall under the extraterritorial jurisdiction of Belgium, the respondent State, as well as the third-party States intervening in the proceedings, expressed their concern as to the answer that will be given to a “question de principe[2]. They warned the Court that recognising that the applicants were under the jurisdiction of Belgium in the present case is “une des limites qu’il ne faudrait pas franchir[3]. Concretely, it “ferait tomber tous les habitants de la planète sous juridiction belge[4] so long as they apply for a visa in a Belgian Embassy or Consulate and get their visa refused.

However, it is unsure whether the Court’s decision should be motivated by hypothetical consequences over a legal reasoning built on its jurisprudential construction, particularly when an alleged violation of the absolute right protected by Article 3 is concerned. This later consideration should be kept in mind whilst asserting the competence of the ECtHR.

While the CJEU’s answer to the question of its competence in its decision X. and X. v. Belgium was guided by the scope of application of EU law, the ECtHR establishes its competence in accordance with the scope of application of the Convention, which, as per Article 1 ECHR, corresponds to the jurisdiction of the Contracting States.

According to its well-established case law, the Court considers the notion of jurisdiction to be “essentially territorial” (see Banković and Others v. Belgium and Others, §§61 and 67 and Al-Skeini and Others v. the United Kingdom, §131). However, it has admitted the exercise by a State of “extraterritorial jurisdiction” in specific cases through the acts of its authorities which produce effects outside its own territory (see Al-Skeini, §133). State’s jurisdiction may arise from the activities of its diplomatic or consular agents abroad, in particular where those agents exercise authority and control over other persons.

The situation in M.N. differs from cases previously brought in front of the Court. Indeed, in X. v. Germany and X. v. the United Kingdom, the applicants were nationals of Contracting States who complained about the actions of diplomatic and consular agents of their country of origin. In M. v. Denmark, on the contrary, the applicants were not nationals of the Contracting State of which they deemed the actions of the diplomatic agents unlawful. However, this case concerned persons who were forced to leave the Danish Embassy in which they had found refuge. In M.N.,the applicants do not appear to have been forced out of the Belgian consulate. As a result, as far as the visa application and the complaint under Article 3 are concerned, the Court could be reluctant to recognise the exercise by Belgium of its jurisdiction. On the other hand, it might be worth noticing that there existed a practice of Belgium to deliver humanitarian visas on the basis of Article 25 of the CCV for protection seekers (see the Myria report). In 2015 and 2016, several hundreds of Syrians obtained a short-term humanitarian visa for Belgium (ibid., p.25-26).

In accordance with a principle firmly rooted in the Court’s case-law that the Convention is “a living instrument which must be interpreted in the light of present-day conditions” (see Soering v. the United Kingdom, §102), and considering the existing practice of Belgian authorities, it cannot be excluded that the ECtHR could recognize its competence in the case at hand.

          IV.            The substantial question of Belgium’s obligations under Article 3 of the ECHR

In the eventuality of the recognition that the Belgian State exercised its jurisdiction over the applicants, the issue at stake is whether the European Convention on Human Rights includes a right to be admitted to a territory in view of applying for asylum.

In the present case, the applicants submitted a request for humanitarian visas under Article 25 of the CCV. The Belgian State argues that this provision does not impose an obligation to issue such visas for protection seekers and suggests that the Syrian family should have applied for long-term visas.

Interestingly, following the decision X. and X. v. Belgium of the CJEU, the European Parliament requested the European Commission on the 16th of October 2018 to submit a proposal for a Regulation establishing Humanitarian Visas for protection seekers.Just in time for the hearing of the M.N. case in front of the ECtHR, the Commission reacted to this resolution on 1 April 2019, refusing to submit said proposal, stating “qu’il n’était pas politiquement possible de créer un droit subjectif de demander l’admission et d’être admis ou une obligation incombant aux États membres d’admettre une personne ayant besoin de la protection internationale[5]. However, it is doubtful that such a legal initiative would create a subjective right to be admitted on a territory in view of applying for asylum, and not merely implement an existing right under European Human Rights Law.

Article 3 of the ECtHR (prohibition of torture and inhuman and degrading treatment) enshrines the principle of non-refoulement as it obliges States not to remove an alien where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to that article in the receiving country (see Hirsi Jamaa and Others v. Italy, §114). Furthermore, Article 3 entails positive obligations for States, including in the context of migrations (see for instance M.A. and Others v. Lithuania). Judge Pinto de Albuquerque stated that “if a person in danger of being tortured in his or her country asks for asylum in an embassy of a State bound by the [ECtHR], a visa to enter the territory of that State has to be granted”. In the present case, considering that the Belgian State was aware of the situation in Aleppo at the time, the applicants, supported by third-party interveners, claim that the refusal to issue a visa engaged Belgium’s responsibility under Article 3.

              V.            Conclusion

The present analysis reveals that the M.N. case involves a dilemma for the European Court of Human Rights, between the opportunity to answer a question of principle on humanitarian visas and the limits deriving by its own role.

In this regard, it is worth remembering the intervention of the Ordre des barreaux francophones et germanophoes de Belgique (OBFG) represented by Maître Krenc during the hearing. Maître Krenc emphasised that the issue at stake was not one of the scope of the Convention that has to be answered in abstracto and erga omnes by the Court but, instead, “une occasion unique de donner plein effet à la subsidiarité[6]. Indeed, both questions of the exercise by Belgium of its jurisdiction and of the existence of a positive obligation for Belgian authorities to deliver the contentious visas have already been answered positively by the domestic courts on three occasions (decisions of the CCE), those decisions being motivated by the respect for Article 3 of the ECtHR. As a result, the Belgian State would be here contesting the decisions of its own judge, a national judge to which the ECtHR should give its full support in keeping with his role of interpreter and guardian of the Convention.

Additionally, it is worth remembering that, as stated above, there existed a practice of Belgium to deliver humanitarian visas for protection seekers. The M.N. case intervenes in the context of a scandal surrounding the attribution of humanitarian visas in Belgium, involving a criminal investigation (see here and here). In this context, the performance of a scrutiny by the ECtHR, without directly affecting Belgium’s immigration policy, would certainly constitute a safeguard against arbitrariness.

However, as the Court’s role is to deal with cases in concreto, insofar as the visa application and the complaint under Article 3 are concerned, it could be reluctant to recognise the exercise by Belgium of its jurisdiction (although this interpretation of the Convention as a “living instrument” would not conflict with its existing case-law). If the ECtHR does find itself competent to rule, positive obligations could stem from Article 3 of the ECHR, and this would be a welcome outcome, as it would ensure that the issuance of humanitarian visas by Contracting States cease being entirely discretionary.

[1] The term “protection seekers” is used in this blog post not only to designate asylum seekers outside their country of origin but also to capture their “plight during (or while attempting) flight” when in search of an international protection (see Moreno-Lax V., Accessing Asylum in Europe: Extraterritorial Border Controls and Refugee Rights under EU Law, Oxford, New York: Oxford University Press, coll. Oxford Studies in European Law, 2017, p. 2).

[2] Translation: “question of principle”.

[3] Translation: “the red line that must not be crossed”.

[4] Translation: “would mean that all the inhabitants of the world would fall under Belgian jurisdiction”

[5] Emphasis added. Translation: “that it was not politically possible to create a subjective right to ask for admission and be admitted or an obligation for Member States to admit a person in need of international protection”.

[6] Translation: “a unique opportunity to give full effect to the principle of subsidiarity”.