(CN) – Rejecting the advice of its magistrate, the European Court of Justice on Tuesday ruled EU states aren’t required to issue humanitarian visas to potential asylum seekers but may do so if their national laws allow it.
The EU high court’s ruling stems from the case of a family of Syrian refugees who fled Aleppo for the Belgium embassy in Lebanon. The family applied for visas to travel to Belgium with the goal of seeking asylum once they were safely in the EU.
The family – all Orthodox Christians – say they have been targeted and persecuted in Syria because of their beliefs, and an armed group kidnapped and tortured one of the family members before releasing them for ransom.
Belgian officials denied the family’s visa application, finding that their intention of seeking asylum meant they intended to remain in Belgium beyond the 90 days allowed under the visa. Furthermore, the officials said no EU member states are required to issue visas to people facing danger in their home nations.
The family appealed to Belgium’s asylum and immigration board, which sent an expedited request to the EU high court for its interpretation on visa law – whether it applies to the family – and the constitutional guarantees of the right to asylum and prohibition of torture and inhuman treatment.
In an advisory opinion for the Luxembourg-based court last month, Advocate General Paolo Mengozzi said member states have an obligation to issue visas for humanitarian reasons when asylum seeker face torture or worse if they return to their home nations.
Mengozzi’s opinion is not binding on the court, however, which ruled Tuesday that EU visa law doesn’t say a word about humanitarian visas. And EU lawmakers have never offered any legislation on requiring member states to issue visas for humanitarian reasons. Accordingly, the family’s application is controlled solely by Belgian law, the court wrote in a 7-page order.
Furthermore, the court said using the visa system – intended for 90-day visits for business or pleasure – to obtain international protection in the member state of the applicant’s choosing would undermine the entire structure of visa law.
“It is also important to note that to conclude otherwise would mean that member states are required, on the basis of the visa code, de facto to allow third-country nationals to submit applications for international protection to the representations of member states that are within the territory of a third country. Indeed, whereas the visa code is not intended to harmonize the laws of member states on international protection, it should be noted that the measures adopted by the European Union on the basis of laws that govern the procedures for applications for international protection do not impose such an obligation and, on the contrary, exclude from their scope applications made to the representations of member states,” the court wrote.
“Accordingly, it is apparent that the directive applies to applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the member states, but not to requests for diplomatic or territorial asylum submitted to the representations of member states," the court continued. "Similarly, it follows that the regulation only imposes an obligation on member states to examine any application for international protection made on the territory of a member state, including at the border or in the transit zones, and that the procedures laid down in that regulation apply exclusively to such applications for international protection."
The court’s decision is binding on the Belgian asylum and immigration board, which will decide the family’s case.