In a much awaited ruling, the scope of which extends beyond the Belgian context, the Grand Chamber of the European Court of Justice (ECJ) ruled that EU member states were not obliged to provide humanitarian visas to every person who must run away from inhuman and degrading situations.
This ruling is very disappointing and goes against the advocate general’s opinion. It also sends a worrying message that the European Union and its member states are constantly increasing border controls and restraining access to their territory to migrants and refugees.
The ECJ has just missed a historic opportunity to reaffirm the EU's values and its commitment to fundamental rights.
Belgium shuts the door
The case stems from a preliminary ruling that the Belgium Litigation Council (CCE) referred to, which was to decide the case of a Syrian family who had been denied a humanitarian visa by the Belgian government.
This case is very similar to another, which was highly publicized at the end of 2016, concerning an Aleppo family that the Belgian state refused to provide humanitarian visas to, even though the state was required to do so by a judicial decision, under a penalty payment.
As a result of this case, Belgium had sought a number of recourses, as it did not want to "set a precedent" and open its gates to all refugees who were in the same situation. The secretary of state for asylum and migration, Theo Francken, was at this time hiding behind his statutory discretion. This case had also raised a number of reactions from many EU member states and the European Commission, which supported Belgium's position.
AG's opposing view
The European Court of Justice ruled on the issue of delivering humanitarian visas, which are provided for in European law under conditions where people are exposed to a serious danger in their country of origin and when they have no other means but to use illegal and highly dangerous ways to reach Europe (in 2016, more than 5000 deaths were recorded in the Mediterranean sea alone).
On February 7, the advocate general of the Court of Justice, Paolo Mengozzi, issued conclusions of great relevance that strongly opposed the reasoning of the Belgium state in this case.
According to Mengozzi, EU states do not have room for maneuver when it comes to issue visas to people who are applying for international protection and when substantial grounds are shown for believing that denying them such a protection will result in exposing them to torture or degrading and inhuman treatment (under Article 4 of the EU Charter of Fundamental Rights).
This should apply whether or not these persons have a link with the EU country and regardless of the condition that they should be present on the territory or at the border of the European state in question. From a legal point of view, the advocate general’s opinion is exemplary and fair, as it takes into account the humanist values on which the EU was founded.
ECJ goes its own, troubling way
The European Court of Justice decided not to follow the advocate general’s opinion and ruled that EU states cannot be required to issue humanitarian visas. As a result, EU states remain free in the way they asses the humanitarian nature of each application, and responsible for supervising the access to their territory and the asylum application procedures.
This ruling, which was delivered by 15 judges, clearly reflects a context of political crisis in which European leaders opt for policies of "externalizing" asylum and closing borders, as migrants are seen as a threat that sates should protect themselves from.
We deplore this ruling and do not share the Court’s analysis, which will once again allow European states, including Belgium, to refuse to issue humanitarian visas to people who are at grave risks. As a consequence, these people will continue to have no other choice but to put their lives in danger in order to reach the European territory so they can be protected.
Belgium must show humanity
If humanitarian visas are not established as a legal and safe way to access territory, asylum itself cannot be implemented. Yet this right is enshrined in the 1951 Geneva Convention, the Universal Declaration of Human Rights and the EU Charter of Fundamental Rights.
With such a legal reasoning it provided in this case, the European Court of Justice is "burying" this fundamental right a little deeper.
Although this ruling does not require Belgium to issue humanitarian visas, including to Aleppo Syrian families, the state is still required to review each case on a individual basis, taking into consideration any individual circumstances, including links between the applicants and our country (the existence of family members, host family or private support in the country).
We are urging the Belgian state to implement assessment criteria for the evaluation of applications, in order to avoid arbitrariness. Most importantly, we are calling on Belgium to process the applications with all the humanity and solidarity that such procedures require.