Belgium: Right To International Protection for Refugees Undermined by ECtHR

In a case involving Belgium's refusal to grant humanitarian visas to a Syrian family, the European Court of Human Rights stated that Belgium was not obliged to comply with the European Convention of Human Rights as the family applied outside of Belgium.

In 2016, a Syrian family with two children tried to escape the war raging at Alep. Forced into exile, the parents managed to submit visa applications to the Belgium Embassy in Beirut, Lebanon. After the Belgium State refused to deliver the visas, the family decided to appeal this decision before the Aliens Litigation Council and won. In spite of the judicial decision, which ordered Belgium to issue the visas, the competent authorities continue to refuse to deliver them. The family eventually turned to the European Court of Human rights. The Belgium League of Human Rights (LDH) and the International Federation for Human Rights (Fédération internationale des droits humains, FIDH), as well as 11 member states, intervened to defend the Syrian family.

The three key questions

The Court had to decide on three questions:

  • Was the Belgium State obliged to comply with the European Convention of Human Rights (ECHR) even though the family was not on its territory when they applied for asylum?
  • Did Belgium violate Article 3 of the ECHR (which prohibits torture, inhuman and degrading treatment) by leaving this family "under fire" in Alep, without helping them and with a full knowledge of the consequences of the refusal?
  • Was the right of the family to access justice (Article 6) violated by the Belgium state, which ignored the decision of the Aliens Litigation Council by continuing to refuse to grant visas to the family?

Court says no, but only to the first question

On 5 May 2020, the Grand Chamber of the European Court of Human Rights stated that the family's request was inadmissible.

The Court recalls that Article 1 of the ECHR (obligation to respect human rights) limits its scope of application to individuals who are subject to the jurisdiction of a State party to the convention. In this particular case, the Court found that the applicants were not subject to Belgium’s jurisdiction. The Court considers that the right to be free from inhuman and degrading treatment is broadly reserved for people who have already reached Europe. The Court found that Article 6 § 1 of the Convention (right to a fair trial) does not apply in this particular case: entry into the Belgium’s territory, which would have resulted from the granting of visas, does not bring into play a “civil” right within the meaning of Article 6 § 1 (rather it is an administrative right).

NGOs put forward counter arguments

In its voluntary intervention before the Court, LDH and FIDH rather argued that, first and foremost, Article 1 did apply in this case. Indeed, a state which receives an application for entry or residency on its territory necessarily exercises its own jurisdiction when dealing with this application, whether the state acts through its Embassy or not. If there is a risk of treatment contrary to Article 3, the state must take the appropriate measures to protect the person at risk. Given the circumstances of this particular case, such measures can involve granting a visa for entry or finding an alternative solution.

Secondly, the NGOs argue that Article 6 could apply from the moment civil courts dealt with the case (in order to obtain the enforcement of administrative decisions which ordered Belgium to grant visas).

All we can do is lament this wasted opportunity. In recent years, thousands of people have died trying to reach Europe. The Court could have ended this tragedy by reminding European States of their obligation to allow people who want to escape torture, inhuman and degrading treatment (prohibited by the Article 3 of the ECHR), to legally enter their territories.

In concrete terms, people who are at risk of torture and death in their home country only have two options: illegal roads and smugglers, or humanitarian visas that allow them to leave their home country legally and apply for asylum (but having the visa granted it is not guaranteed). Yet, all European states are punishing illegal immigration and closing their borders. Therefore, humanitarian visas remain the only legal channel possible. Without them, the right to asylum is just a fine principle with no substance at all.

Claiming that Belgium was not accountable because this family was not on its territory amounts to agreeing that people exposed to death and inhumane treatment must turn to smugglers and human traffickers and take perilous roads of exile in order to claim their right to protection. This is simply unacceptable. Although the decision issued by the Court might have a legal basis, it does not settle the question of the collective responsibility of party states to the Convention to uphold their commitment and provide protection to populations fleeing unbearable conditions in their home country.

Signatories :

Ligue des droits humains

Fédération internationale pour les droits humains