Advocate General Mengozzi of the European Court of Justice announced in a press release, 7 February 2017, that “Members States must issue a visa 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.”
The advocate’s opinion further states that “it is irrelevant whether or not there are ties between the person concerned and the requested Member State.”
The announcement follows a complaint against the Belgian state by a Syrian family, which applied for visas at the Belgian Embassy in Beirut (Lebanon) on 12 October 2016. The following day the couple, including their three children, returned to Syria and were granted a visa with territorial validity, pursuant to the EU Visa Code. The visa would allow the family to leave the besieged city of Aleppo and enable them to apply for asylum in Belgium. As Orthodox Christians the family sought to apply for asylum on the basis of religious persecution and for having been subjected to abuse and torture by armed groups. In addition, the family mentioned the continuous deterioration of the security situation in Syria.
The applications were refused by the Belgian Immigration Office on 18 October 2016. The Office justified the decision on the ground that the Syrian family in question clearly intended to stay for more than 90 days in Belgium and by stating that “[m]ember States are not obliged to admit into their territory all persons finding themselves in a catastrophic situation.”
The decision was challenged by the family and brought before the Belgian Asylum and Immigration Board which 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 final ruling on the case is pending.
Advocate General Paolo Mengozzi expressed in his advice that the situation of the Syrian family is governed by the Visa Code and, therefore, by EU law. Hence, member states are bound to the fundamental rights laid down in the Charter and have to act according to it irrespective of any territorial criterion. In the Advocate’s opinion, this requires member states 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’s comments are not binding. Nevertheless, they are usually followed by the court which is due to rule on the test case in the next few weeks. The ruling is expected to affect policy across all EU member states. Critics fear that this could open up a new route for refugees to come to Europe, while proponents of the advocate’s opinion hope for a long-awaited legal pathway for refugees that could stop the death toll along migration routes and in the Mediterranean Sea.