Visa Refusal Must Be Subject to Judicial Review, Top EU Court Rules

The highest court of the European Union has found that Poland's justice system does not properly protect the right of judicial review in Schengen visa cases.

The Court of Justice of the European Union (CJEU) has ruled that foreign nationals should be given an opportunity to ask for a judicial review of the decision refusing them a visa. The court relied on the Schengen Visa Code and EU Charter of Fundamental Rights to reach its opinion.

Right to judicial review

The case, Soufiane El Hassani v Minister Spraw Zagranicznych, concerns a Moroccan national who was refused a Schengen visa by the Polish Consul in Rabat. The Moroccan, assisted by lawyers from Liberties member the Helsinki Foundation for Human rights, went to the Provincial Administrative Court in Warsaw to file a complaint against the decision. The court rejected the complaint, holding that Polish law provides no possibility of a judicial review of such a decision.

The foreigner then appealed to the Supreme Administrative Court, alleging a violation of the right to legal review as guaranteed by the EU Charter of Fundamental Rights. This court, for its part, made a request for a preliminary ruling to the CJEU.

Poland's justice system is lacking

In its judgment, the CJEU held that Article 47 of the Charter guaranteed everyone the right to have their case heard by an independent and impartial tribunal. The CJEU also explained that the concept of independence, which is “inherent in the task of adjudication”, requires above all that an adjudicating body should act “as a third party in relation to the authority which adopted the contested decision”.

Poland is one of the few EU countries that provided no remedy that would allow judicial review in cases involving Schengen visas issued by a consul. This situation led to objections made by the European Commission, which participated in the case in support of the foreign national’s case.

The judgment in case C-403/16, Soufiane El Hassani v. the Minister of Foreign Affairs, can be accessed here.

In September 2017, the ECJ Advocate General has also delivered an opinion in this case.