Humanitarian visa: Does the suspended step of the stork become a hunting permit ?
ECtHR – Article 1 ECHR – Extraterritorial jurisdiction – Inadmissibility – Humanitarian visa – Article 6 ECHR – Civil rights – Asylum seekers’ access to the EU – Access to justice
The European Court of Human Rights declared the case M.N. and others v. Belgium inadmissible by excluding that Belgium exercised extraterritorial jurisdiction over a family of Syrians requesting humanitarian visas from the Belgian embassy in Beirut. With its assessment as to jurisdiction, the Court insists upon keeping the status quo of access to asylum procedures.
Jean-Yves Carlier, Laura Cools, Eleonora Frasca, Francesco Gatta, Sylvie Sarolea
A. Facts and Ruling
On 5 May 2020, the Grand Chamber of the European Court of Human Rights (further: ECtHR) issued its long awaited decision in the case of M.N. and Others against Belgium. This case deals with the refusal by the Belgian authorities to issue humanitarian visas to a Syrian family, requested at an embassy with the view to reach Belgium in a legal and safe way in order to apply for asylum upon arrival in Belgium.
1. Main facts
On 22 August 2016, a Syrian couple from Aleppo travelled to the Belgian embassy in Beirut (Lebanon) to submit visa applications. The family, including two children, requested limited territorial validity (LTV) visas (commonly named “humanitarian visas”) on the basis of Article 25(1)(a) of the EU Visa Code. According to the latter provision, an EU Member State shall, by way of exception, issue an LTV visa when it considers it “necessary on humanitarian grounds, for reasons of national interest or because of international obligations”. The applicants based their claim upon such humanitarian grounds by referring to their situation of absolute emergency, in terms of both security and living conditions, due to the armed conflict in Syria and especially the intensive bombardment of Aleppo. In their application, the family also informed the authorities of their intention to apply for asylum upon their arrival in Belgium. It might be worth noticing here that, in 2015, Belgium had granted refugee status to the vast majority of Syrian asylum-seekers and that the family was in contact with a Belgian family willing to host them. Moreover, according to a study by the Belgian federal migration agency (Myria), several hundreds of short-stay visas have been issued on humanitarian grounds to Syrian asylum-seekers in 2015 and 2016 until the CJEU judgement of 7 March 2017 (which ruled that Article 25(1)(a) of the EU Visa Code did not apply to humanitarian visas delivered to asylum seekers).
On 13 September 2016, the Belgian Aliens Office refused to grant the visas to the applicants. The office argued that the applicants’ intention to apply for asylum upon arrival excluded them from the scope of this type of visa, which is intended only for persons willing to stay for a short period, having no intention of settling permanently in the state of destination.
The applicants challenged this decision under the extremely urgent procedure before the Aliens Appeals Board (AAB) which, on 7 October 2016, referring to the political and security situation in Aleppo and the risk of a violation of Article 3 ECHR, ordered a stay of execution of the refusal decision by the Aliens Office and instructed the Belgian State to take new decision within 48 hours. However, by decision of 10 October 2016, the Aliens Office again refused to issue the requested visas. On 20 October 2016, in view of the imminent danger faced by the applicants, the Aliens Appeals Board ordered the State to issue the applicants, within 48 hours, with laissez-passer or visa valid for three months. Again, the Belgian authorities refused to issue these visas. The applicants brought proceedings before the civil courts in order to obtain the execution of the AAB decision of 20 October 2016. Although the Tribunal of first instance of Brussels ordered the State to comply with this decision on 25 October 2016, the execution claim was eventually denied by the Brussels Court of Appeal’s judgement of 30 June 2017.
Considering that they exhausted all domestic remedies in this long legal battle before Belgian courts, on 10 January 2018, the applicants lodged an application before the ECtHR on 10 January 2018. They alleged that the refusal to execute the AAB’s decision to issue the visas, and thus to provide them with a legal pathway out of the heavily besieged Aleppo, constitutes a violation of Articles 3, 6 and 13 ECHR.
2. Decision of the Court
The ECtHR’s judgement in M.N. and others v. Belgium represents the most recent, yet significant, ruling in an ongoing conversation on the extraterritorial reach of the ECHR and the territorial delimitation of States’ obligations, a debate which is becoming increasingly important in the context of forced migration and the externalisation of migration and border control. In the present case, the ECtHR concluded that the application was not admissible because Belgium had no jurisdiction over the applicants submitting their application at the Belgian embassy in Lebanon. As follows from Article 1 ECHR, the Convention rights only apply to persons who find themselves within the jurisdiction of the States Parties to the Convention, the exercise of which is the threshold criterion for the applicability of the ECHR (Catan and Others v. Moldova and Russia, §103).
After a first section focusing on jurisdiction and the extraterritorial application of the ECHR, a discussion on subsidiarity follows in which the scope of Article 6 (1) ECHR is analysed. The Court decision is then put into the larger context of access to asylum procedures and lack of legal pathways to international protection in Europe. Conclusive remarks on access to justice end this caselaw commentary.
The extra-territorial reach of the ECHR (Article 1 and 3 ECHR)
As a matter of well-established ECtHR case-law, jurisdiction is “primarily territorial”; meaning that in principle, a State Party only exercises jurisdiction over persons within its territory. In exceptional circumstances however, acts performed or producing effects outside their territories can also constitute an exercise of (extraterritorial) jurisdiction (Bankovic and Others v. Belgium and Others, §67; Al Skeini and Others v. the United Kingdom, §131). In the present case, the Court first observed that the mere fact that the national authorities took a series of decisions concerning the conditions for entry into Belgian territory is not sufficient to bring the applicants under Belgium’s “territorial” jurisdiction. Therefore, the Court assessed whether there were other exceptional circumstances which could lead to the conclusion that Belgium was exercising extraterritorial control over the applicants.
In its previous rulings, the ECtHR interpreted these exceptional circumstances as including, broadly speaking, situations in which a State exercises effective control over an area outside of its own territory (which is most frequently the case in the context of military conflicts, e.g. Al Skeini) and/or situations in which State agents exercise (physical) control over a person outside of their territory (e.g. Öcalan v. Turkey). In this regard, it is worth noticing that the ECtHR has also recognised that “the acts of diplomatic and consular agents, who are present on foreign territory […], may amount to an exercise of jurisdiction when these agents exert authority and control over others” (Al Skeini, §134).
However, in deciding on the M.N. and others v. Belgium case, the Court concluded that none of these exceptional circumstances applied, inter alia because the diplomatic agents never exercised any de facto control over the applicants, who freely chose to report themselves to the Belgian Embassy in Beirut and who were free to enter and leave the premises of the Embassy at all times. The Court further specified that the possible exercise of administrative control exercised by Belgium over the premises of its embassy, is not in and by itself sufficient to bring the applicants within Belgium’s jurisdiction. It also rejected any comparison with its caselaw on non-refoulement, which concerns aliens who have been found on a State Party’s territory.
In other cases, the ECtHR also ruled that a “jurisdictional link” may be created when a State initiates a criminal investigation outside of its territory (Güzelyurtlu and Others v. Cyprus and Turkey). However, in the present case, the Court has specified that this does not apply to administrative proceedings, initiated by private individuals who have no other connection with the State. In casu, submitting a visa application cannot create an exceptional circumstance that would be sufficient to trigger, unilaterally, an extraterritorial jurisdictional link (see also Abdul Wahab Khan v. the United Kingdom). The Court added that:
“to find otherwise would amount to enshrining a near‑universal application of the Convention on the basis of the unilateral choices of any individual, irrespective of where in the world they find themselves, and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment contrary to the Convention outside their jurisdiction” (§123).
Moreover, the Court notes that such an interpretation of States’ jurisdiction:
“would also have the effect of negating the well-established principle of public international law, recognised by the Court, according to which the States Parties […] have the right to control the entry, residence and expulsion of aliens” (§124).
This final statement is yet another example of what Dembour has referred to as the “human rights reversal” or “Strasbourg reversal”, frequently deployed by the Court in migration issues which are likely to interfere with States’ sovereignty. Indeed, in cases concerning migrant applicants, the Court’s reasoning takes as a starting point the principle that States have the right to exclude migrants, whereas in (nearly all) other cases, it starts from the Convention human right at stake. Recent cases such as ND and NT v. Spain and Asady and others v. Slvoakia , are illustrative examples of the Court’s reluctance to provide migrant with protection, at least at the EU borders. However, in this case, it could be argued that the Court’s reticence relates first and foremost to the scope of application of the ECHR. The very fact that the ECtHR rules on the extent of the Court’s own competence before adjudicating on the substance could lead to this conclusion.
As stated above, the M.N. decision must be seen in the broader context of States trying to escape responsibility by externalising their borders and migration control, which can be defined as:
“extraterritorial State actions to preventing migrants, including asylum seekers, from entering the legal jurisdictions or territories of destination countries or regions or making them legally inadmissible without individually considering the merits of their protection claims” (See Frelick et al.).
In most cases, externalisation policies and practices may more or less explicitly seek to prevent the entry of refugees and other migrants into Europe. Through cases like Hirsi Jamaa and Others v. Italy, M.A. and Others v. Lithuania and the present M.N. case, the ECtHR is gradually developing its case-law on the responsibility of States Parties for such actions.
This cannot be analysed separately from the discussion on extraterritorial jurisdiction in (forced) migration matters. The next milestone in the ECtHR’s case-law to look out for in this context is the currently pending case of S.S. and Others v. Italy. In this case, the ECtHR is invited to rule on Italy’s potential responsibility for “pull-back” operations carried out by the Libyan Coast Guard in coordination with the Italian authorities. Moreno-Lax has now called upon the Court to deploy a functional concept of jurisdiction in such cases. Thereby, rather than being based upon territorial links, jurisdiction would be grounded in a “sovereign-authority nexus” between the State and the individual in a specific situation. Consequently, jurisdiction would no longer be triggered primarily by territoriality, but by the “exercise of power by a state”.
A matter of subsidiarity? The argument raised by the Belgian Bar Council of French-speaking and German-speaking Lawyers (Articles 6(1) and 13 ECHR)
The applicants have tried to draw attention to the domestic proceedings, focusing on what happened inside the Belgian administrative and civil courts, rather than in the embassy in Lebanon. In such context, they highlight the subsidiary role of the ECtHR, called to intervene when national authorities have repeatedly failed to ensure the respect of the rights protected by the Convention.
It is primarily the duty of a State to guarantee these rights and this is what has been actually done by the Belgian judicial authorities, who positively acknowledged the risks faced by the applicants and ordered to issue a visa in their favour, in order to allow their entry into the national territory.
But this decision remained un-executed. Accordingly, the applicants requested the ECtHR to declare a violation of Article 6(1) ECHR due to the failure of the Belgian State to enforce the Brussels Court of Appeal’s judgment of 7 December 2016, which ordered to execute the decision of the Aliens Appeals Board concerning the issuing of the so-called humanitarian visas. They argued, moreover, that this also amounted to a violation of the right to an effective remedy under the terms of Article 13 ECHR.
The Court framed the issue within the scope of Article 6 alone, thus considering the grievance under Article 13 to be absorbed therein. As Article 6 ECHR applies to “civil rights and obligations”, the ECtHR sought to identify the applicants’ rights at stake: the core question concerned the right to have a judicial decision enforced (§129), but a judicial decision regarding what right exactly? Which is the nature of the right at issue and does Article 6 cover it?
A right to entry to territory and Article 6 ECHR: civil vs political rights
The applicants argued that Belgium violated their «subjective civil right» (§133) to benefit from the enforcement of a binding decision, pronounced by the judiciary and vested with a mandatory and immediately enforceable power. They also referred to their right to obtain compensation for the damage resulting from the non-execution of the judgment, as the Brussels Court of Appeal also established specific penalties for non-compliance (ibid).
The Belgian Government, by contrast, claimed that such complaint is incompatible ratione materiae with Article 6 ECHR as the right invoked by the applicants, even if seemingly a civil right, is actually of a political nature and falls outside the scope of application of that provision. The actual content of the Syrian family’s complaint relies on the decision whether to grant a visa and, thereby, the decision to admit them or not into the Belgian territory. What the applicants are actually invoking, in other words, is a political right related to migration control, which is a domain falling outside the scope of Article 6.
In assessing the nature of the right involved, the Grand Chamber first specified that the Belgian authorities had «a discretionary power of assessment in deciding whether or not to issue short-stay visas» (§135). Then, it added that Article 6 may only apply to such discretionary procedure if the advantage or privilege sought by the applicants gives rise to a civil right once obtained (§136).
The Court shared the Government’s views on the nature of the right at stake: what is under dispute, in essence, is the admission into the Belgian territory. That is, ultimately, the outcome the applicants were seeking to obtain and that would have resulted from the granting of the visas they requested. Conceived in such terms, this does not entail “a civil right” within the meaning of Article 6 ECHR. In this respect the Grand Chamber clarifies that, in general, «every other decision relating to immigration and the entry, residence and removal of aliens» falls outside the scope of Article 6, as confirmed by «settled case-law » (§137).
By way of example, in the case of Maaouia v. France, – which, contrary to M.N. and Others, did not concern the entry of an alien into the national territory but his or her right to stay and to appeal against an expulsion order – the Court pointed out that litigation concerning immigration control is outside the scope of Article 6, in so far as it relates to acts that are governed by public law and represent the exercise of public-authority prerogatives. It added that the fact that such acts may have financial or family implications for those concerned could not suffice to bring them within the civil limb of Article 6(1). Similarly, in the case Mamatkulov and Askarov v. Turkey, the Court excluded the applicability of Article 6 to extradition proceedings.
In M.N. and Others, ultimately, the Grand Chamber looked at the substance of the matter and at the merits of the dispute. What is at stake, essentially, is the decision refusing to issue a visa and, thereby, the non-admission into the national territory. This is a political right and an immigration-related issue, as such not covered by Article 6 ECHR.
Contextualisation: the lack of a “genuine and effective access to means of legal entry” for asylum seekers
The ECtHR’s decision raises the issue of legal access to international protection in the EU. To conclude its assessment as to jurisdiction, the Court notes that «this conclusion does not prejudice the endeavours made by States Parties to facilitate access to asylum procedures through their embassies and/or consular representation» (§126). This sentence is a key to understand the context behind the case. While in the ND and NT v. Spain, the Court referred to border procedures and concluded, after a formalistic assessment, in favour of the existence of such access to Spain (§222), in M.N. and Others v. Belgium, without undertaking any assessment, the Court includes a persuasive recommendation (or a positive obligation?) for States Parties to provide for “genuine and effective access to means of legal entry” into their territories.
Obiter dicta are particularly common in areas in which the law is developing: it is indisputable that humanitarian visas, both as a discretionary practice and as a tool of protection, have been the bone of contention between guardians f State sovereignty and international protection advocates. As a matter of fact, the issue of humanitarian visas attracted considerable attention from European Institutions (among which it remains a source of major disagreement), Courts (the CJEU as well as national judges), civil society organisations (e.g. the Humanitarian corridors programme), lawyers, as well as legal doctrine (as witnessed by the breadth and depth of the contributions to the book Humanitarian Admission to Europe, edited by Foblets and Leboeuf). Humanitarian visas are also referred to in the New York Declaration and the Global Compact on Refugees which reflect the need to establish and expand legal pathways.
Visa rules in general, and humanitarian visas in particular, lie at the core of a paradox: under international migration law, the human right to leave any country, including one’s own, is not accompanied by the corollary right of entering any other country. A metaphor often used by Jean-Yves Carlier, quoting the title of a movie, describes this paradox as the Suspended Step of the Stork. Individuals who seek asylum, de facto, can only exercise their right once they have set foot in the territory of the State where protection is sought or once they have reached the border (M.A. and Others v. Lithuania).
The key issues at stake in M.N. and Others v. Belgium lie within this paradox. In the overwhelming majority of cases, migrants are only untitled to exercise their right to asylum when they reached the territory of the protecting State. This explains why many try to reach the European soil by risking their lives at sea (see S.S. and Others v. Italy, pending) and why some attempt to enter the European Union by “forcing the system” (§ 201, ND and NT v. Spain). That is also why asylum is often referred to as territorial as opposed to extraterritorial asylum, the latter being strongly disputed as for the scope of application of the principle of non-refoulement.
For those who do not embark on dangerous journeys, applying for a humanitarian admission program can be the only safe option. The EU Visa Code regulates the procedures and conditions for third-country nationals’ short-term stays in the EU. The “intention to return to the country of origin” appears as one of the conditions, among others, to be met in order to qualify for the issuance of a short-stay visa. The application of an asylum seeker could not logically meet this condition, otherwise the asylum claim would be deprived of its raison d'être. By way of exception, Article 25 of the Visa Code provides for visa "issued for humanitarian reasons or by virtue of international obligations”. However, Article 25 has been the object of an intense debate: the lack of further legislation, which would make explicit the rules of application and its content, has left Member States with a wide margin of discretion over its use.
The European Parliament has proven to be particularly sensitive to the issue and initiated a dialogue with a view to reforming and strengthening the Visa Code (Humanitarian visas: option or obligation?) for the benefit of greater legislative coherence by combining the subject of humanitarian visas (access) with that of asylum procedures (after access). A first reform of the Visa Code was not successful because of disagreement between the Council and the Parliament on the opportunity to highlight the potential of humanitarian visas as "safe passage" for those in need of international protection. Before the Commission withdrew its proposal in July 2018, the Council launched an ultimatum to the European Parliament and suggested to address the humanitarian visa issue“in a joint declaration” outside the Visa Code.
In March 2017, the CJEU further made the interpretation of the legal framework more complex with its decision in X and X. Widely commented (including in a previous edition of the Cahier de l’EDEM), this Court’s decision upheld that the issuing of humanitarian visas to asylum seekers falls outside the scope of the Visa Code and therefore of EU law, including the Charter of Fundamental Rights.
The European Parliament then exercised its right of “pre-initiative” (limited to the possibility to suggest to the Commission to table a legislative proposal) with the adoption of a December 2018 resolution. When the Parliament’s legislative impulse is left without follow-up, the Commission must give reasons thereto (Article 225 TFEU). At present, the Commission’s reply has not been made public. A press release from a European Affairs news agency states, however, that “the Commission believes it has already fulfilled its duties in the field of humanitarian visas with the Proposal on European Resettlement”. This proposal, as many others reforming the EU asylum legislation, is currently in a deadlock. Although they look like a developing and promising tool, resettlement efforts remain extremely limited in scope and numbers. The reality is that the European Union lacks a genuine and effective access to means of legal entry for asylum seekers. Few initiatives exist, scattered among Member States, and the ones coordinated at the European level are set-up on a voluntary basis. Although these are unprecedent circumstances, the COVID-19 pandemic has accentuated the volatility and limits of existing means to access asylum. The European Commission itself testifies that the pandemic has had a disruptive effect
By excluding the applicability of the Convention and declaring the application inadmissible, the ECtHR is consolidating a prudent and yet conservative approach towards the conditions to trigger extraterritorial jurisdiction. This is the same cautious approach displayed by the CJEU in cases related to the external dimension of migration law, a field where European integration is not yet achieved and lacks thematic and institutional unity. While the protection of human rights within Europe continues to evolve, the strict interpretation of extraterritorial jurisdiction bars any kind of protection at the doors of Europe. However, with its obiter dictum, the Court timidly acknowledges the harsh reality of access to asylum procedures and suggests that the responsibility to establish and implement safe access to asylum - rebus sic stantibus – lies with States Parties.
Within the European Union legal order, a comprehensive reform of humanitarian visas could overcome the asylum paradox and reconcile the Common European Asylum System with the rights enshrined in the Charter of Fundamental Rights, as suggested by Advocate General Mengozzi in his opinion delivered in the X and X case. If the purpose of any human rights system is to protect rights which “are not theoretical or illusory, but real and effective”, one might ask: will the ECtHR go any further, in the near future, and decide to analyse, in concreto, the existence and the effectiveness of safe access to asylum procedures in Europe? If so, will the Court conclude otherwise as for the application of the non-refoulment principle when protection seekers are gently knocking at Europe’s doors?
Conclusion: is access to asylum the same as access to justice?
While denying access to asylum procedures, the Court also denies access to justice. Justice requires a place where the absolute human rights (e.g. the protection against refoulement) could be claimed and guaranteed. However, this place is mainly surrounded by gateways (borders, waterway, fences, airports), some of which are locked to asylum seekers and extremely dangerous (for an in-depth discussion see Sarolea). The universality and effectiveness of human rights remains under question when asylum seekers are denied access to institutions – in this case, to the Belgian State – which, in principle, should be the corner stone of human rights protection.
C. Suggested Reading
To read the case : ECtHR [GC], Decision on admissibility of 5 May 2020, M.N. and others v. Belgium, Appl. no. 3559/18
Case law :
ECtHR [GC], Judgment of 29 January 2019, Güzelyurtlu and Others v. Cyprus and Turkey, App. no. 36925/07
ECtHR, Judgment of 11 December 2018, M.A. and Others v. Lithuania, Application no. 59793/17.
CJEU [GC], Judgment of 7 March 2017, Case C-638/16 PPU, X and X v État belge, EU:C:2017:173
Opinion of Advocate General Mengozzi, delivered on 7 February 2017, Case C-638/16 PPU, X and X v État belge, EU:C:2017:93
ECtHR, Decision on admissibility of 28 January 2014, Abdul Wahab Khan v. the United Kingdom, App. no. 11987/11
ECtHR [GC], Judgment of 7 June 2011, Al Skeini and Others v. the United Kingdom App. no. 55721/07
ECtHR [GC], Judgment of 4 February 2005, Mamatkulov and Askarov v. Turkey, App. no.s 46827/99 and 46951/99
ECtHR [GC], Judgment of 12 December 2001, Bankovic and Others v. Belgium and Others, App. no. 5507/99
ECtHR, Judgment of 5 October 2000, Maaouia v. France, App. no. 39652/98
S. Sarolea, Is access to asylum the same as access to justice?, in M.-C. Foblets, L. Leboeuf (Eds.), Humanitarian Admission to Europe: The Law Between Promises and Constraints, Nomos/Hart, Baden-Baden/Oxford, 2020, pp. 115 - 154
E. Lenain, « Il était une fois, un visa obligatoire qui n’existait pas. Quand les Cours européennes dansent la polka autour des lacunes du droit », La Revue des droits de l’homme, Vol. 2020, n. 17, pp. 1-13.
V. Moreno-Lax, « The Architecture of Functional Jurisdiction: Unpacking Contactless Control—On Public Powers, S.S. and Others v. Italy, and the “Operational Model” », German Law Journal, 2020, Vol. 21, n. 3, pp. 385 – 416.
F.L. Gatta, « Legal avenues to access international protection in the European Union: past actions and future perspectives », European Journal of Human Rights (JEDH), Vol. 2018, n. 3, pp. 163 – 201.
J.-Y. Carlier, L. Leboeuf, « Le visa humanitaire et la jouissance effective de l’essentiel des droits : une voie moyenne? À propos de l’affaire X. et X. », eumigrationlawblog.eu, 27 February 2017
S. Sarolea, J.-Y. Carlier, L. Leboeuf, « Délivrer un visa humanitaire visant à obtenir une protection internationale au titre de l’asile ne relève pas du droit de l’Union : X. et X., ou quand le silence est signe de faiblesse », Cahiers de l’EDEM, March 2017
M.-B. Dembour, When Humans Become Migrants. Study of the European Court of Human Rights with an Inter-American Counterpoint, Oxford, Oxford University Press, 2015.
To cite this contribution: J.-Y. Carlier, L. Cools, E. Frasca, F. Gatta, S. Sarolea, Humanitarian visa: does the suspended step of the stork become a hunting permit?, Cahiers de l’EDEM, June 2020
 For a commentary see: L. Leboeuf, « Interdiction des expulsions collectives et mesures d’expulsions immédiates et systématiques : la Cour européenne des droits de l’homme entre équilibrisme et contorsions », Cahiers de l’EDEM, mars 2020.
 For a commentary of this case and a comparison with ND and NT v. Spain see : F.L. Gatta, ‘Tell me your story, but hurry up because I have to expel you’ – Asady and Others v. Slovakia: how to (quickly) conduct individual interviews and (not) apply the ND & NT “own culpable conduct” test to collective expulsions, Strasbourg Observer, 6 May 2020.