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The Future of Humanitarianism? - Humanitarian Visas in the European Union in light of CJEU Case C-638/16 X and X

Coghlan, Ebba LU (2018) JURM02 20181
Department of Law
Faculty of Law
Abstract
In December 2016, a Belgian court referred questions to the Court of Justice of the European Union (CJEU) concerning the issuance of humanitarian visas to a Christian Syrian family. The central question in the case is whether inter-national treaties and Union law oblige EU Member States to allow their consulates and embassies to issue humanitarian visas. This thesis discusses the outcome of that judgement, and the Opinion of Advocate General Mengozzi, in an attempt to understand what the future for humanitarian visas in the EU might hold.

Humanitarian visas are constructed as to provide safe and legal access to a state’s territory, allowing the final asylum claim determination procedure to take place on the territory of the potential... (More)
In December 2016, a Belgian court referred questions to the Court of Justice of the European Union (CJEU) concerning the issuance of humanitarian visas to a Christian Syrian family. The central question in the case is whether inter-national treaties and Union law oblige EU Member States to allow their consulates and embassies to issue humanitarian visas. This thesis discusses the outcome of that judgement, and the Opinion of Advocate General Mengozzi, in an attempt to understand what the future for humanitarian visas in the EU might hold.

Humanitarian visas are constructed as to provide safe and legal access to a state’s territory, allowing the final asylum claim determination procedure to take place on the territory of the potential host state. Currently in the EU, however, a prerequisite for seeking asylum is to be on a Member States’ terri-tory, which has resulted in an estimated 90% of all asylum seekers entering the Europe in an irregular way.

As argued by the Advocate General in X and X, the Visa Code, which establishes the harmonised procedures and conditions for issuing Schengen visas for short stays or transits in the Schengen Area, could offer such humanitarian visas, through so called LTVs, or visas with limited territorial validity. Ac-cording to the Visa Code, such visas may be offered in exceptional circumstances, when a Member State considers it necessary to derogate from the common entry conditions for reasons of national interest, on humanitarian grounds or because of its international obligations.

The essential difference between Advocate General Mengozzi’s Opinion and the Court’s judgement is whether or not the situation before the referring court can be considered an application for a visa with limited territorial validity in accordance with the Visa Code. For, if the situation falls within the scope of the Visa Code, this would oblige Member State authorities to act in accordance with the rights guaranteed under the Charter and ECHR. If the opposite conclusion is reached, however, not only does the situation before the referred court fall outside the scope of the Visa Code, but also outside the scope of EU law.

For while the Court considers it apparent that as the purpose of the application differs from that of a short-term visa, thus falling outside the scope of the EU law, the Advocate General reaches a very different conclusion. Contrary to the Court, Advocate General Mengozzi considers that the situation in the national court falls within the scope of the Visa Code, and that it must be covered by the humanitarian grounds in Article 25 of the Visa Code. Further, Mengozzi argues that EU law requires Member States to issue an LTV visa, if the alleged humanitarian grounds are well-founded.

After the judgement, some academics have accused the Court of ‘taking the politically easy way out’ and indulging the concerns of the Member States. Further, some have expressed confusion as to why the Court has shied away from extending the applicability of the Charter to those in need of its protection, especially at a time when EU asylum policy has raised questions concerning the Union’s “self-professed dedication to human rights”. It seems that the future for humanitarian visas in the European Union is at a crossroads. (Less)
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author
Coghlan, Ebba LU
supervisor
organization
course
JURM02 20181
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
EU law, Migration law
language
English
id
8940962
date added to LUP
2018-06-13 10:40:31
date last changed
2018-06-13 10:40:31
@misc{8940962,
  abstract     = {In December 2016, a Belgian court referred questions to the Court of Justice of the European Union (CJEU) concerning the issuance of humanitarian visas to a Christian Syrian family. The central question in the case is whether inter-national treaties and Union law oblige EU Member States to allow their consulates and embassies to issue humanitarian visas. This thesis discusses the outcome of that judgement, and the Opinion of Advocate General Mengozzi, in an attempt to understand what the future for humanitarian visas in the EU might hold. 

Humanitarian visas are constructed as to provide safe and legal access to a state’s territory, allowing the final asylum claim determination procedure to take place on the territory of the potential host state. Currently in the EU, however, a prerequisite for seeking asylum is to be on a Member States’ terri-tory, which has resulted in an estimated 90% of all asylum seekers entering the Europe in an irregular way. 

As argued by the Advocate General in X and X, the Visa Code, which establishes the harmonised procedures and conditions for issuing Schengen visas for short stays or transits in the Schengen Area, could offer such humanitarian visas, through so called LTVs, or visas with limited territorial validity. Ac-cording to the Visa Code, such visas may be offered in exceptional circumstances, when a Member State considers it necessary to derogate from the common entry conditions for reasons of national interest, on humanitarian grounds or because of its international obligations. 

The essential difference between Advocate General Mengozzi’s Opinion and the Court’s judgement is whether or not the situation before the referring court can be considered an application for a visa with limited territorial validity in accordance with the Visa Code. For, if the situation falls within the scope of the Visa Code, this would oblige Member State authorities to act in accordance with the rights guaranteed under the Charter and ECHR. If the opposite conclusion is reached, however, not only does the situation before the referred court fall outside the scope of the Visa Code, but also outside the scope of EU law. 

For while the Court considers it apparent that as the purpose of the application differs from that of a short-term visa, thus falling outside the scope of the EU law, the Advocate General reaches a very different conclusion. Contrary to the Court, Advocate General Mengozzi considers that the situation in the national court falls within the scope of the Visa Code, and that it must be covered by the humanitarian grounds in Article 25 of the Visa Code. Further, Mengozzi argues that EU law requires Member States to issue an LTV visa, if the alleged humanitarian grounds are well-founded.

After the judgement, some academics have accused the Court of ‘taking the politically easy way out’ and indulging the concerns of the Member States. Further, some have expressed confusion as to why the Court has shied away from extending the applicability of the Charter to those in need of its protection, especially at a time when EU asylum policy has raised questions concerning the Union’s “self-professed dedication to human rights”. It seems that the future for humanitarian visas in the European Union is at a crossroads.},
  author       = {Coghlan, Ebba},
  keyword      = {EU law,Migration law},
  language     = {eng},
  note         = {Student Paper},
  title        = {The Future of Humanitarianism? - Humanitarian Visas in the European Union in light of CJEU Case C-638/16 X and X},
  year         = {2018},
}