« X and X v Belgium » : the need for EU legislation on humanitarian visa

This article examines the recent judgment of the Court of Justice of the European Union in the case of X and X v. Belgium (C-638/16 PPU). The issue at stake concerns an application for a visa with limited territorial validity (LTV) requested by a Syrian family at the Belgian embassy in Beirut in order to apply for asylum in Belgium. The article discusses the different interpretations given by the Advocate General and the Court of Justice and agrees with the AG that the EU Charter of Fundamental Rights leaves a limited margin of discretion to Member Sates and imposes a positive obligation to issue a LTV Visa in cases like X and X. It also concludes that the judgment in question clearly shows the need for the EU to adopt legislation regulating the issuance of humanitarian visas under the Visa Code.


I. Introduction
With the war in Syria still raging, and the turbulence in other parts of the world persisting or flaring up, it would not be wise to consider the «refugee crisis' to be a thing of the past.The declining number of applicants for international protection that Europe has received over the last couple of months masks the fact that the number of people in need of international protection is still growing -but they are unable to reach the territories of the European countries to lodge their asylum claim.Access to European territories is prevented through measures such as the contested EU-Turkey deal 1 and the EU's endorsement of a similar deal between Italy and Libya, both cleverly concocted in such a way as to circumvent the scrutiny of the Court of Justice of the European Union 2 .While other avenues are looked into in order to have the illegitimacy of such measures declared by an international or national court of law, their execution in practice currently leads to literary millions of people being unable to flee persecution and inhuman treatment.It is in this context that the case of X and X needs to be analyzed.This article endeavors to do exactly that.
In a nutshell, the case of X and X concerns a Christian Syrian family that sought to flee the city of Aleppo that was, at the time of their application, still under ISIS occupation.Since all other routes of escape were closed, they planned to directly travel to Belgium on a visa with limited territorial validity to apply for international protection on arrival in Belgium.When their visa application was rejected by the Belgian authorities X and X appealed against the decision, which led to the Belgian court of appeal sending a request for a preliminary ruling to the Court of Justice of the European Union (CJEU).The CJEU was asked to interpret various provisions of the EU Visa Code in order to determine whether an application for a visa with limited territorial validity such as the one made by X and X falls within the scope of the Code, and as a result thereof within the scope of application of the Charter of Fundamental Rights of the European Union (the Charter).Notwithstanding the affirmative Opinion of Advocate General Mengozzi in this case, the Court came to the conclusion that the Visa Code (and therefore the Charter) does not apply to such applications.
The decision of the Court and the discussion surrounding the case reveals the need for EU legislation that provides people in clear need of international protection with a legal pathway to Europe.Though binding instruments of EU law allow Member States to issue visa with limited territorial validity on humanitarian grounds, the concept of humanitarian grounds is not further defined in EU law.
-Additionally, the relevant legal instruents are drafted in such a way that uncertainty remains with regard to the oblige- tory nature of the provisions governing the issuance of a visa on humanitarian grounds.
This article examines the Court's ruling in X and X against the background of the lack of EU legislation governing the issuance of visas on humanitarian grounds.It does so by first analyzing and commenting on the Court's decision in X and X, and the issues that arise from the conclusion of the CJEU that national (Belgian) law is applicable to their visa application.Following this analysis is an overview of the EU and international legal framework for the international protection of people that flee persecution and inhuman treatment.This overview leads to the conclusion that summarizes the findings of the authors and argues that there is a need for legislation governing the issuance of visas on humanitarian grounds in a distinctive and unambiguous way, a need that is evidenced by the outcome of the case of X and X, and that the EU would do well if steps were taken to make the necessary amendments to the applicable legislation, as suggested by NGOs, academics and the European Parliament.
II. X and X v. Belgium: out of sight, out of mind?
The following paragraphs analyze the events and legal arguments leading up to the decision of the CJEU in the case of X and X v. Belgium 3 , and the consequences of this decision for the applicants.A more detailed clarification of the provisions of the EU Visa Code will follow in the third part of this contribution.

Facts of the case
On 12 October 2016, a Syrian family of 5 (two parents and three small children) living in Aleppo applied for a visa with limited territorial validity ex Article 25(1) of the EU Visa Code at the Belgian embassy in Beirut (Lebanon).On their application form, X and X stated that the aim of their trip was to apply for asylum once in Belgium.Shortly after their return to Aleppo, where they would wait for the decision on the visa-application, the Syrian border with Lebanon was closed for an undetermined period of time.On 18 October 2016, the Belgian Aliens' Office (the «Office») refused the visa application based on Article 32(1)(b) of the Visa Code, based on the presumption that the family clearly had the intention to stay on Belgium's territory after the expiry of the visa they applied for.The Office's subsequent assessment of the visa application under Belgian law led to a rejection of the application, as the Office argued that Belgian law does not allow diplomatic posts to accept applications for international protection from third country nationals, and that further neither Belgian law nor applicable international refugee or human rights law imposes an obligation on the Belgian authorities to admit foreigners on Belgian territory, even if these foreigners live in catastrophic circumstancees.
In appeal, X and X argue that Member State authorities are obliged to take Articles 4 and 18 of the Charter of Fundamental Rights of the European Union («the Charter») into account when assessing visa applications made under the EU Visa Code, and that this should result in a positive decision on their application for a visa with limited territorial validity applications such as the one made by X and X, as they should be regarded as an application for a visa that would allow a stay of more than three months.Such visa fall outside the scope of the Visa Code, thereby also excluding an application of the Charter according to Article 51 of the Charter, and should therefore be dealt with under national law.

AG Mengozzi's Opinion
In his Opinion4 , Advocate General Mengozzi first deals with the arguments made by the Belgian government and the Commission, as the success of these arguments would lead to a lack of jurisdiction on the side of the Court.The AG argues primarily that nothing in the Visa Code justifies a conclusion that the applicant's intention to seek international protection once on the territory of a Member State changes the nature or the subject of his or her application for a visa with limited territorial validity (LTV), or transform this application into an application for an authorization of a stay of longer than three months.The AG interprets Article 25(1) of the Visa Code as allowing Member States' authorities to issue an LTV, even if they have serious doubts as to whether the applicant will leave the territory after the expiry of the visa or if other reasons to refuse a visa as listed under Article 32 exist.The AG underpins this argument further by reasoning that the applicants extended stay in Belgium would anyway be based on their status as applicants for international protection in accordance with Article 9(1) of Directive 2013/32, and no longer on the Visa Code.Therefore, the AG argues that the applicants' intentions to stay longer than three months could at the very most be regarded as a reason to refuse a visa under Article 32 of the Visa Code, but could certainly not be a reason for the non-application of the Code.This is, according to the AG, also evident from the fact that during the whole of the application and appeals procedure the Belgian authorities assessed X and X's application under the Visa Code -and that the reason for the refusal of the LTV was based on Article 32(1)(b) of the same Code.
The AG also disagrees with the argument brought forward by the Belgian government that it is not possible to apply for a visa with limited territorial application by pointing out that the standard application form annexed to the Code refers to «Schengen visa» without making any distinction between the types of visa that can be applied for, and that in any case the fact that the applicants applied for a Towards the end of the ruling, the Court adds that sanctioning the use of the provisions of the Visa Code for applications for visas that would allow the visa-holder to apply for international protection in the Member State of their choice would undermine the Dublin system.With this remark, inserted as if it were an afterthought, the Court seems to reveal the true motivation behind the ruling in X and X: to save an already failing system as illustrated in the previous section (2).

X and X: practical implications of the ruling
Apart from the implications for similar cases and the issue of humanitarian visas under EU law in general, a subject that is discussed in more detail further on in this contribution, the immediate consequence of the Court's ruling in the case of X and X is that their visa application has to be assessed under Belgian law.Belgian law does not provide prospective applicants for international protection with the opportunity to apply for international protection from abroad.An application has to be made either from within Belgium or at the Belgian border 7 .X and X could therefore not apply for asylum at the Belgian representations in a third 7 Office of the commissioner general for refugees and stateless persons, Asylum in Belgium -Information brochure for asylumseekers regarding the asylum procedure and reception provided in Belgium, 2014.
country.It is exactly for this reason that they applied for a visa to be allowed entry into Belgium, in order to file their asylum claim at the offices of the Immigration Office in Brussels.They could have applied for a touristic Schengen visa, but instead they choose to be honest and specified their intention of applying for international protection as the reason for their visa application.
According ian visa therefore does not offer persons that wish to file an application for asylum in Belgium with a legal pathway to do so.
Resettlement through humanitarian visas is therefore often less contentious than the admittance of persons that wish to apply for international protection with a humanitarian visa.In the particular case of X and X, the above leads to the conclusion that, considering that their status has not yet been determined, they would not be eligible for a humanitarian visa under Belgian law.

III. Access to international protection under international and European law
In the light of X and X's case the questions that arise naturally are: how does the EU law respond to people in need of international protection?Does the EU provide people that want to flee persecution and inhumane treatment with opportunities to claim international protection in the EU from abroad, or does a person have to be on EU territory in order to claim asylum?With the coming into force of the Lisbon Treaty in 2009, a vital question that needs to be added is: how is Article 18 of the Charter, which guarantees the right to asylum, substantiated in secondary EU law, and does it find application in practice or does the right to asylum only exist on paper?The below paragraphs analyse the current framework on access to international protection under EU law, to find answer the above questions.

The Geneva Convention and the ECHR: non-refoulement of refugees
To place the discussion of the EU law on international protection in the appropri-ate frame, a very brief introduction to the applicable norms of international law should be given.It is commonly known that the Convention Relating to the Status of Refugees, signed in 1951 in Geneva and therefore often referred to as the «Geneva (Refugee) Convention', forms the backbone of the framework of asylum and refugee law at the international level.
Central provisions of the Convention for the purpose of this article are Articles 1A(2) of the Refugee Convention, defining which persons are refugees 10 , and Article 33(1) of the Convention which provides that no contracting state shall expel or return («refouler») a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.Articles 2-34 define the benefits (access to education, labor, health care, etc.) associated to the status of refugee.These secondary rights fall outside the scope of this article.
With regard to the European region, the ECHR is applicable to all actions of the states that are party to the Convention, including those with regard to foreigners within their jurisdiction.Though the Convention does not specifically regulate international protection or foreigners' access to a State's territory, the ECHR is interpreted to provide for limitations on the right of states to turn foreigners away 10 According to this Article, a refugee is any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.obligations adhering to a strict territorial application of the principle, and that States should always consider the human rights implications of their actions and decisions even if the impact would not take place on their territory.However, despite this discourse, it is impossible to deny that the debate on extraterritorial application of the principle of nonrefoulement is ongoing.The case of X and X fuelled this discussion, which as a result of the decision of the Court in this case flared up once more.

EU asylum law
Though the EU is neither party to the Geneva Convention nor (yet) to the ECHR, all of its Member States are.The obligations under the two legal instruments are implemented in EU law by a number of EU legal acts, of which only those that are relevant for the topic at hand are mentioned here.
Under the Procedures Directive asylum seekers may apply for international protection within the territory of a Member States and at its borders, transit zones and territorial waters13 , whereas the determination of the State responsible to process an asylum claim is set out in Article 7 to 11 of Regulation 604/2011 (better known as the «Dublin» Regulation).
In practice, the criterion that applies in the majority of cases is Art.13 14 , establishing that the country responsible for examining an asylum application will be the first Member State where the asylum applicant has irregularly entered into the EU.This system both places an unfair burden on frontline States and makes Dublin a coercive system, that does not take individual preferences and choices into account, apart from a few exceptional cases.Apart from that, the whole system is, despite the high costs incurred through the application thereof 15 , highly inefficient, as the number of asylum seekers actually transferred with Dublin procedures is much smaller than the number of applications for international protection lodged and assessed in another Member State than the one that would be responsible for their application according to the Dublin rules 16 .Potential sending Member States either do not want to take the trouble to start a transfer procedure, or requested Member States find a reason to deny responsibility for the applicant.One could argue that this system, which clearly does not serve the objectives with which it was adopted in the first place, leads to an unnecessary constraint of the rights of the affected applicants for international protection.This conclusion is also reached by various authorities, including legal scholars 17 , the European Commission and other experts 20 .
It is however not only the Dublin system that limits access to international protection.The system has been supplemented by socalled non-entrées measures 21 that are part of the EU external policy.These measures were introduced as part of a policy that aimed at strengthening external borders as well as at facilitating the access to international protection 22 .However, the EU has limited itself to focusing only on the first objective; the deal with Turkey is only the last episode of a long sequence of measures (such as readmission agreements, the increasingly prohibitory and exclusionary role of Frontex, carrier sanctions, stricter visa policies) that were introduced to strengthen the external borders 23 .By contrast, much weak efforts have been made with regard to the development of legal pathways to access international protection under EU law, and no steps are taken to activate legislation that has already been adopted such as the Temporary Protecto be applied in full.».on the other hand would make it impossible for these people to access international protection in the view of the lack of other, more tailored, pathways to international protection.

Humanitarian visa policies: EU and Member States practices
In general, visas are among the most efficient and primary instruments to implement and outsource border controls 27 .In the context of the European Union, they have also added a vital dimension to the external policy of the EU, with visa liberalization or facilitation being used as incentives for third countries to cooperate with the European Union in its migration management 28 .This has as its effect that third countries bordering the European Union amend their immigration laws reflecting EU norms, thus functioning as a buffer for the European Union, as occurred in Balkans countries in the course of the last decade 29 .The EU visa policy is therefore an essential instrument in the EU migration management toolkit.
Though the regulation of the movement of third country nationals did not belong to the competences of the EU initially, the EU acquired competence in this field .This makes it increasingly difficult for potential refugees to obtain a visa sanctioning their regular entry into the country where they wish to make their application for international protection 33 .This does not need to be like this per se.
Visas policies can also be implemented to the benefit of protection seekers.Such a visa policy could, for example ease, suspend or lift visas obligations for nationals of countries from which high number of recognized refugees originate.This might be a temporary or permanent measure to allow people in need of protection to safely and legally reach the EU.Alternatively, protected entry mechanisms could The CCV provides also a further visa establishing in Art. 25 that States may issue visas on humanitarian grounds with territorial limited validity (LTV), i.e. providing the beneficiary only the right to stay in the country issuing the visa.This is the type of visa that Syrian applicants requested at Belgium embassy in the case at stake in X and X. 37 This is the case of LTV in Italy and short/long term visa issued in France, see Jensen, 2012, respectively at 44 and 45. 38 Noll, G, et al, 2003, cit., at 216. humanitarian visa procedure, as it resulted in the arrival of more applicants for international protection than their domestic asylum system -and their domestic politics -was able to handle 39 .This short overview of Member State laws and practices with regard to humanitarian visas clearly shows that there is no consistency among the Member States in this respect.This results in a situation in which persons in need of international protection might feel that they participate in a lottery when they choose for the legal pathway to access international protection in Europe -and that this, in its turn, inspires many of them to attempt a risky journey to the borders of Europe rather than putting their hopes on an equally risky walk on the legal pathway.The existing wide divergences among Member States laws and practices in regard of humanitarian visas has a number of negative consequences in terms of different waiting times, uncertain outcome of the application depending on the Member State processing the request, possibilities of protection while the examination is conducted, etc.In addition, the exercise of broad discretionary powers by consular or other responsible authorities seems a common trend and this 39 This is the case for Switzerland and Austria, for example.puts at risk basic principles of EU administrative law, such as fairness, good administration, legal certainty or legitimate expectations.The overview should therefore also serve as an argument for the EU policy makers and legislators to kick off a genuine discussion about the introducetion of a clear legislative framework on humanitarian visas in EU law, in order to harmonize or even uniformalise Member State practices in this respect.

Towards an EU humanitarian visa scheme?
In this regard, it is worth noting that in 2014 the EU Commission adopted a proposal to reform the Visa Code, albeit that the proposed reform was limited to financial, technical and logistic aspects 40 .By contrast, in its 2016 report on that proposal the European Parliament seized the opportunity to stress the protective function of visas, in line with its previous positions on the need to create legal pathways to the EU 41 .To this end the EP proposed a number of amendments of the proposed recast Visa Code with the view to develop the humanitarian potential of the Visa Code 42 .(Amendment 7) and lists expressly a number of international obligations that bind Member States activity.
The EP's position would clearly take the EU one step closer to a humane asylum system, as it would fill a crucial gap in the field of EU asylum law, and it would contribute to address the above-mentioned issues of national divergences on humanitarian visas.Yet, it has to be underlined that since March 2016 the legislative process regarding the proposal to amend the Visa Code seems to have stalled.It is to be hoped that the case of X and X, which once again brought this lacuna in the EU's visa and asylum law to the footlight, will spur the EU legislator to take up this issue once more.

IV. Reflections on the need for a more humane EU asylum system
Without simply claiming that the Court should have ruled for the applicants' right to a humanitarian visa under EU law, the Court's ruling in X and X is disheartening for a number of reasons.
First of all, the Court's finding that the intend of the applicants to apply for international protection on arrival in Belgium modifies the nature of their application for a short-stay visa into an application for a visa sanctioning a stay for more than ninety days within a 180-day period is perplexing.Especially when one considers that Article 32(1)(b) of the Visa Code unambiguously provides that Member States' authorities are to refuse a visa if there are reasonable doubts as to the applicant's intention to leave the territory of the Member States before the expiry of the visa applied for, one would expect more of an explanation from the Court to 31 32 33 underpin its decision for the non-applicability of the Visa Code to X and X's visa-application, and its blunt finding that such a ruling does not run contrary to Article 32 of the Visa Code.Claiming that a certain finding, which seemingly runs contrary to an explicit provision of EU law, actually does not run contrary to this provision is, on its own, not convincing.
In the context of the case of X and X, it only serves to strengthen the impression that the Court is eager to reach a certain conclusion without being able to base this conclusion firmly on EU law.
The Court's focus on the intent of the applicants is furthermore problematic as it seems to communicate to applicants that it does not pay off to be honest to the authorities with regard to the reason behind their application.If X and X would have been dishonest about their intentions, if they would have stated that the aim of their visit to Belgium was purely touristic, the authorities would have, in this particular context, still have ample reason to doubt the intention of the applicants to leave the territory of the Member State before the expiry of the visa.whatever happens beyond the borders of the European Union.This is however not compatible with obligations stemming from relevant provisions of international and European law, as interpreted by leading experts 49 .Such an interpretation of the responsibility of the EU also runs contrary to the role of human rights advocate that the European Union has increasingly assumed through the years, and its declaration 50 that it is committed to the defense of the universal and indivisible nature of human rights not only internally but also in its external actions.

V. Concluding remarks
Cases like X and X, and the decision of the Court in the EU-Turkey deal, showcase the need for the EU to thoroughly recalibrate its asylum and migration policy and law.Judgments that only postpone the inevitable choice that the European Union (Member States) will eventually have to make between an endorsement of truly universal human rights or the restriction of these rights to its own happy few serve only to conceal the urgent nature and the necessity to make this choice.Dependence on third countries willingness to help keeping the refugees afar, or on systems that have already failed, only prolong the hibernation of the European Union, up to a point where the «season» will already be over.One step in the right direction would be to adopt legislation unambiguously regulating the issuance of humanitarian visas under the Visa Code, such as the European Parliament's amendments to the Recast Visa Code proposal, which has dropped to the bottom of the political agenda.Another step would be the abolition of the Dublin System and its replacement with a system that is based on internal and external solidarity and the universality of basic human rights 51 .Such steps and measures are often thought to only benefit applicants for and beneficiaries of international protection -and therefore they are often regarded as superfluous.However, also the European Union as a whole and its Member States individually could gain on their implementation.First of all, it would be a proof of the EU's commitment to its own principles and values as laid down inter alia in Articles 2 and 3 of the TEU, and would serve the consistency of the various policies of the European Union.This, in its turn, would help the European Union to enhance its credibility and to command respect internationally.Second, it shows the voters in the Member States that the European Union stands for its principle and that it knows what it needs to do, even when what needs to be done requires some explaining.The European Union will be able to regain the trust of the voters.The European public sphere is largely divid- ed, and voters have lost faith in the vigor and drive of the European Union as they only hear their politicians speaking about «crisis» and «threats», without being able to show the way forward.The proposal and adoption of measures, in line with international legal obligations, that tap into the public conscience will restore voters' trust in the vision of the European Union legislator and institutions and will restore the peace in the Member States of the European Union, thereby also creating the right momentum for a successful implementation of these measures.Third, it serves the objectives of quicker procedures in the substance of the applications for international protection, a quicker and more successful integration of those whose applications have been successful as these beneficiaries' personal circumstances have been taken into accountwhich in its turn will help to decrease the costs of the procedure and the integration process.These are but a few of the benefits that would befall to all that are affected by the situation as it is nowand as it could be, as soon as politicians and legislators are willing to finally let go of a failing system and as soon as they are ready to invest in solutions that would create a Common European Asylum System that becomes a Union that is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity.52 37

51
See for experts' suggestions on the replacement of the Dublin system for example Guild, Costello, Garlick and Moreno-Lax, Enhancing the Common European Asylum System and Alternatives to Dublin, CEPS Papers in Liberty and Security in Europe No 83/September 2015; or the report of the Parliamentary Assembly of the Council of Europe (Doc.13592, Reference 4083), Committee on Migration, Refugees and Displaced Persons, «After Dublin -the urgent need for a real European asylum system» on the 3 October 2014.
to a study carried out by the European Migration Network (EMN) in 2012, Belgium was one of the EU Mem- ber States have had schemes for issuing national humanitarian visas.This study showed that, at least in December 2009, the Belgian authorities delivered humanitarian visas to prominent persons, such as foreign opposition leaders, or persons on behalf of which the Belgian authorities had been contacted by the UNHCR 8 .The same European Migration Network reported in 2017 with regard to 2016 that the Belgian authorities had continued making use of the possibility to issue humanitarian visas, and that in that year almost 1000 humanitarian visa were issued, mainly to Syrians who had made their application through the embassy in Lebanon.However, these visas were issued in order to implement a humanitarian resettlement scheme and involved persons that were already recognized as refugees before being issued with a humanitarian visa 9 .This type of humanitar-9 This is not the case in all EU Member States, but the criteria that a person has to have been recognized as refugee before he/she can be issued with a humanitarian visa does apply in Belgium; See EMN, Resettlement and Humanitarian Admission Programmes in Europe -what works?, November 2016, p. 5. 14 15 49 G. Goodwin-Gill and J. McAdam, The Refugee in International Law, 3rd Ed.Oxford: Oxford University Press, 2007, p. 201-267; R. Wilde, The extraterritorial application of international human rights law on civil and political rights', in N. Rodley and S. Sheeran (eds.),Routledge Handbook on Human Rights, London: Routledge, chapter 35. 50European Union, Human rights.