A “way out” of the human rights situation in Libya: the humanitarian visa as a tool to guarantee the rights to health and to family unity.
Humanitarian Visa – Article 25 Visa Code – Best interests of the child – Family unity – Right to health – Libya.
In the case X v. Ministry of Foreign Affairs and Ministry of Health the Ordinary Tribunal of Rome ordered the issuing of a visa on humanitarian grounds pursuant to Article 25(1)(a) of the EU Visa Code in favour of a Nigerian unaccompanied minor in Libya who was in urgent need of medical treatment, in this way allowing him to legally and safely travel to Italy, have access to a proper health care and join the mother who was residing there. The Italian judges ruled that, under certain circumstances, the provision of the Visa Code regarding the humanitarian visa may be directly invoked before the domestic jurisdictions and immediately applied, without needing further implementing acts and notwithstanding the possible denial of a visa by the diplomatic authorities. The issuing of the humanitarian visa represents for the minor the “way out” of his situation in Libya and becomes a tool to guarantee the effective protection of the rights to family unity and to health.
Francesco Luigi Gatta
A. Facts and Ruling
The case concerns the action brought by a Nigerian national, legally residing in Italy, in order to allow the son, unaccompanied minor in Libya, to be legally transferred to Italy, join her and re-establish the family unity.
The applicant resides in Italy holding a residence permit on humanitarian grounds pursuant to the Legislative Decree no. 286/98 (so-called Italian Immigration Code), which does not allow family reunification. Her son left Nigeria at the age of 14, with a view to joining the mother in Italy. Facilitated by smugglers’ and traffickers’ networks, he reached Libya in 2016 and unsuccessfully tried to set sail for the Italian coasts. He was intercepted by the Libyan Coast Guard and later put in detention.
The minor, lacking identity documents, was located and identified by the staff of the International Organization for Migration (IOM) operating in Libya, which put him in contact with the mother in Italy and highlighted his situation of specific vulnerability and urgent need for protection. Indeed, as explained in the minor’s ad hoc evaluation (IOM Best Interests Determination Report), due to an accident, the boy suffered from serious injuries to his leg and needed urgent surgery and medical treatment. Given that neither Nigeria (country of origin) nor Libya (country of transit) would have had the capacity to provide the minor with adequate medical care, the IOM concluded that the one and only solution in the minor’s best interests would have been to transfer him to Italy, where he would have been able to join the mother and undergo the medical treatment he needed.
To this end, an application for an entry visa was introduced at the Italian embassy of Tripoli, which, however, denied the request, leaving the minor in the impossibility to legally reach Italy.
Action brought before the Italian judges, decision and reasoning
The mother brought an action before the Tribunale Ordinario di Roma – Sezione Diritti della Persona e Immigrazione (Ordinary Tribunal of Rome – Person’s rights and Immigration Section) pursuant to Article 700 of the Italian Code of Civil Procedure, which provides for the possibility to obtain an urgent measure, delivered following an expedited judicial proceeding, in order to protect a right that might be jeopardized by an “imminent and irreparable prejudice”.
In her application, in particular, the mother claimed a way to provide her son with a legal and safe transfer to Italy, so as to guarantee the right to family unity, the minor’s best interests and his effective protection, also and especially in terms of access to the urgent medical care he needed. To this end, the applicant requested the Italian Ministry of Foreign Affairs (Italian Embassy in Tripoli) to issue either an entry visa on healthcare and medical grounds, pursuant to the Italian Immigration Code, or a visa with limited territorial validity on humanitarian grounds, pursuant to Article 25 of Regulation EC 810/09 (Visa Code).
The Italian Court, despite the lack of identity documents of the minor and relying on the identification and the evaluation made by the IOM, declared the application admissible and, in consideration of the circumstances of the case and the special situation of vulnerability of the applicant’s son, ordered the Italian Ministry to immediately issue a humanitarian visa in his favour pursuant to Article 25 of the Visa Code.
For the Italian judges, in particular, the impossibility to receive adequate medical treatment in Nigeria and in Libya, the deteriorated human rights situation in the latter country, the necessity to re-establish the unity of the family, especially in light of the minor’s health conditions, fully justify the issuing of the humanitarian visa, which, in this way, represents a mean to guarantee the family reunification, the medical treatment and the rehabilitation process of the son in line with his best interests.
The human rights situation of migrants in Libya
With its decision, first of all, the Court of Rome confirms the seriousness of the human rights situation of migrants in Libya. In a context of great instability and insecurity of the country, the judges highlight the widespread conditions of precariousness and extreme vulnerability of aliens that are on the Libyan territory in transit to Europe, in a framework of severe deterioration of human rights standards.
This is not the first judicial assertion of the serious human rights violations suffered by migrants in Libya. As for Italy, in 2017, for the first time, the Assize Court of Milan acknowledged the inhuman and degrading conditions of the Libyan migration detention centres, sentencing a Somali national to life imprisonment for the crimes committed as member of the criminal network which managed the detention centres of Bani Walid and Sabratha, located near the Libyan coasts. In 2018, the Assize Court of Agrigento, Sicily, further confirmed the atrocities perpetrated in the Libyan detention centres by condemning a Gambian national to 10 years of imprisonment for holding migrants in slavery in the detention centre of Sabratha.
At the international level, the situation in Libya has been referred to the International Criminal Court (ICC) by the United Nations Security Council (Resolution 1970(2011)) and is currently under investigations for war crimes and crimes against the humanity. The Prosecutor of the ICC has reiterated on many occasions the existence in Libya of a situation of systematic violation of human rights of migrants, with inhuman and unlawful practices that include torture, slavery and forced labour, rape and sexual violence, human trafficking and arbitrary and indefinite detention.
The risks faced by migrants in Libya had been acknowledged also by the European Court of Human Rights (ECtHR), in particular in a number of cases against Italy. First addressed in 2010 in Hussun, the issue of migrants’ human rights in Libya was later analysed by the Grand Chamber in its 2012 landmark judgment Hirsi. More recently, in 2018, another application was introduced with regard to the so-called “pull-back” practices by the Libyan coastguard – trained and equipped by Italy under an agreement signed in 2017 – which prevents migrants from heading to Europe and takes them back to Libya where they experience torture and inhumane and degrading treatment (S.S. and Others v. Italy, no. 21660/18). The applicants invoke several violations of the ECHR, including a breach of Article 2 (right to life), 3 (prohibition of torture) and 4 (prohibition of slavery and forced labour).
The Court of Justice of the EU (CJEU), for its part, has indirectly confirmed the situation of systematic infringements of human rights in Libya with some decisions adopted in the framework of the EU’s Libya sanctions regime (SH, 2019).
Such judicial confirmations of the human rights situation in Libya represent a relevant element for conducting legal and political considerations on the involvement of the EU and some Member States (like Italy) with this country to manage migration, also inducing a reflection in terms of their potential international responsibility for human rights violation. In this sense, emblematically, in 2019 the Office of the Prosecutor of ICC has received a communication regarding the alleged commission of crimes against humanity by the EU and its Member States in the framework of the migration policy conducted in the Mediterranean and in Libya between 2014 and 2019.
Humanitarian visas: the debate in Europe
The case at hand is of particular interest also with regard to the debate concerning the issue of the legal avenues to access international protection in the EU and, more specifically, the so-called “humanitarian visa” as provided for in the Visa Code, which enables Member States to issue particular visas with limited territorial validity (LTV) based on humanitarian grounds.
More specifically, under Article 25(1)(a) of the Visa Code, LTV visas may be “exceptionally” issued “when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations”. An intense debate in Europe has recently arisen from this provision, focusing, in particular, on the question as whether Member States, under EU law, have an obligation or a mere faculty to issue a visa for humanitarian grounds in favour of an asylum seeker whose fundamental rights are seriously at stake. The debate has been especially fuelled by the involvement of the two European courts.
The CJEU, indeed, dealt with the issue of humanitarian visas in X and X v. Belgium, a case involving a Syrian family, which, at the Belgian embassy in Lebanon, requested LTV visas on humanitarian grounds ex Article 25(1)(a) of the Visa Code, in this way intending to legally reach Belgium and then, once on the EU’s territory, apply for asylum. The applicants claimed that Member States have an obligation to issue a visa for humanitarian grounds according to the Visa Code as interpreted in light of the human rights obligations arising from the EU Charter of fundamental rights (namely, Articles 4 and 18) and the ECHR (namely, Article 3). This view was also supported by the Advocate General Mengozzi in his opinion.
The CJEU, on the contrary, concluded that requests for visas for humanitarian grounds with the view to apply for asylum fall outside the scope of EU law, with the consequence that the EU Charter does not apply and the decision on whether to issue a humanitarian visa – even in cases of possible risks for the applicant’s fundamental rights – is left open for the national authorities to decide.
While the CJEU has already made its decision, the ECtHR is dealing with the issue of humanitarian visas in the case M.N. and Others v. Belgium, currently pending before the Grand Chamber. The factual background is very similar to the one of X and X, involving, once again, the request for a humanitarian visa submitted by a Syrian family outside the EU, at the Belgian embassy in Lebanon. The Court of Strasbourg will have to decide whether the denial of the requested humanitarian visa is compatible with the ECHR and, more specifically, with its Articles 1 (obligation to respect human rights), 3 (prohibition of torture), 6 (right to a fair trial) and 13 (right to an effective remedy).
The debate on humanitarian visas has also involved the EU institutions and, above all, the European Parliament (EP), which has been particularly active in addressing the issue of the lack of legal and safe avenues for asylum seekers to access international protection in the EU (among others, resolutions 2014/2907(RSP) of 17 December 2014; 2015/2095(INI) of 12 April 2016; 2015/2342(INI) of 5 April 2017).
The EP, in particular, following the judgment in X and X – where the CJEU ruled that requests for humanitarian visas with the view to apply for asylum “as European Union law currently stands” fall outside the scope of EU law – has launched an initiative aimed at establishing a proper and specific legal regime for the issuing of humanitarian visas at EU level, to this end asking the Commission in a resolution of December 2018 to put forward a legislative proposal for a regulation establishing a “European humanitarian visa” based on common rules and procedures. The Commission did not follow up on the EP’s request, with the consequence that, for the time being, the humanitarian visa still lacks a comprehensive, clear and specific normative regime under EU law.
It is, however, precisely in light of such legal vacuum that the decision of the Italian Court gains particular importance. In addition to the lack of a specific and precise legal framework at the EU level, Italy does not have a normative regime regarding humanitarian visas. Nevertheless, despite the lack of specific EU and domestic provisions, the Tribunal of Rome makes use of the humanitarian visa as regulated under Article 25 of the Visa Code, acknowledging the direct and immediate applicability of such provision.
According to the Italian Court, indeed, this provision may be directly invoked before – and immediately applied by – the national judge, when the national diplomatic authorities refuse or do not proceed with the issuing of a visa for humanitarian grounds requested pursuant to Article 25 of the Visa Code. This may represent an interesting precedent, which potentially offers a concrete solution for migrants and asylum seekers to legally reach the European territory, especially those who have familiar ties with persons already residing in the EU.
Humanitarian visa as a tool to guarantee the rights to health and to family unity
Finally, the decision of the Tribunal of Rome is relevant as it directly connects the issuing of the humanitarian visa with the rights to health and to family unity. The request made by the applicant for a visa under Article 25(1)(a) of the Visa Code in favour of his son, indeed, was based on these fundamental rights, which, as the Court of Rome observes, are of utmost importance under both domestic and supranational legal sources (i.e. the Italian Constitution and the related case-law of the Italian Constitutional Court, the Italian legislation implementing the EU qualification and procedure directives, the ECHR and the 1989 UN Convention on the Rights of the Child).
In consideration of the relevant national, European and international legal frameworks and in light of the peculiar circumstances of the case, the Court of Rome affirms that the rights to family unity and to health can only be effectively guaranteed by taking the minor back to his mother in Italy, where he will also be able to receive an appropriate medical care.
The Italian judges, in particular, reach this conclusion by carefully considering a number of reports and materials concerning the situation in Nigeria and Libya issued by trustworthy international bodies and NGOs (i.e. Amnesty International, Human Rights Watch, IOM, UNHCR and the Prosecutor of the ICC). The provided evidence clearly highlights how neither of the two countries offers an adequate environment for the growth and the development of the minor. The issuing of the humanitarian visa, therefore, becomes here the only “way out”, representing the only available tool for the mother and her son to be reunited and for the latter to be medically treated in a proper way.
C. Suggested Reading
To read the case : Ordinary Tribunal of Rome, 21 February 2019, X v. Ministry of Foreign Affairs and Ministry of Health (synthesis and English translation)
Case law :
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. », Omnia, 27 février 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, mars 2017
F.L. Gatta, « Legal avenues to access international protection in the European Union: past actions and future perspectives », Journal Européen des Droits de l'Homme – European Journal of Human Rights (JEDH), Vol. 2018, n. 3, pp. 163 – 201
Other materials :
European Parliament, resolution of 11 December 2018 with recommendations to the Commission on Humanitarian Visas (2018/2271(INL))
European Asylum Support Office (Easo), Practical guide on the best interests of the child in asylum procedures, EASO Practical Guide Series, 2019
Unhcr, Desperate and dangerous: report on the human rights situation of migrants and refugees in Libya, UNHCR, 20 December 2018
To cite this contribution : F.L. Gatta, “A “way out” of the human rights situation in Libya: the humanitarian visa as a tool to guarantee the rights to health and to family unity”, Cahiers de l’EDEM, August 2019