The extraterritorial application of the EU Charter in Syria: To the Union and Beyond? – Michael Rhimes

10 March 2017 by Guest Contributor

1) The Situation

“no one leaves home unless

home is the mouth of a shark

you only run for the border

when you see the whole city running as well”

• Warsan Shire

Shire’s words are the background to the recent case of C-638/16 X and X. So much was recognized by Advocate General Mengozzi, who concluded his Opinion as follows:

“175. Before concluding, allow me to draw your attention to how much the whole world, in particular here in Europe, was outraged and profoundly moved to see, two years ago, the lifeless body of the young boy Alan, washed up on a beach, after his family had attempted, by means of smugglers and an overcrowded makeshift vessel full of Syrian refugees, to reach, via Turkey, the Greek island of Kos. Of the four family members, only his father survived the capsizing. It is commendable and salutary to be outraged. In the present case, the Court nevertheless has the opportunity to go further, as I invite it to, by enshrining the legal access route to international protection which stems from Article 25(1)(a) of the Visa Code. Make no mistake: it is not because emotion dictates this, but because EU law demands it.”

In greater detail, X and X, the X Family, are a Syrian family with three children. They are Orthodox Christians from Aleppo. One claims to have been beaten and tortured by a terrorist group, and released for ransom. They seek to claim asylum in Belgium. But they want to reach Belgium lawfully – and safely.

So they say “Belgium, give us a visa, so we can travel to Belgium, and claim asylum there”.

Their “alternatives” are either to stay in Syria where they were exposed to possible torture and ransoms, or to risk life and limb by completing the exodus unlawfully, huddled in dinghies, to the profit of the traffickers.

So the X family travelled to Lebanon and claimed a visa in the Belgian embassy in Beirut. This was likely a far from easy journey of more than 200 miles through war-torn Syria and through the closed border with Lebanon. Lebanon, which is not a signatory of the Refugee Convention of 1951, returned them to Syria.

The Belgian authorities’ response was that they were not required to grant the visas as they were obliged by neither EU nor human rights law so to do.

Were they correct in saying so? The Court of Justice of the European Union (CJEU) reached a different view to the Opinion of Advocate General Mengozzi. According to the CJEU in X and X, the Belgian authorities were correct. Yet according to the Advocate General Mengozzi they were wrong.

This post offers a summary of the legal issues raised in the judgment and the Opinion, with particular emphasis on the question of extra-territoriality.

2) The issues, the CJEU’s judgment, and the Advocate General’s Opinion

There are two principal issues in this case. The first concerns whether the Visa Code allowed Belgium to grant the X Family the visa they sought (the Visa point). The second issue concerned the question of whether fundamental rights under the EU Charter, which include the right to remain free from torture and other degrading treatment in Article 4, positively required Belgium to grant it (the Charter point).

The Advocate General opined that the Visa Code not only allowed Belgium to grant the X family a visa, but that the EU Charter on Fundamental Rights required it in situations where there was a real risk that the individuals in question would be exposed to treatment contrary to Article 4, which included the prospect of crossing the Mediterranean by boat in perilous conditions. This involved an interesting discussion of whether the Charter applies extraterritorially, as Belgium would have to give effect to Charter rights when considering visa applications from Syrian nationals in Beirut, and where the treatment contrary to Art 4 of the Charter would likely take place outside the Union.

The Court, however, held that the Visa Code did not govern the situation at hand. In effect, because the X family were intending to stay in Belgium for longer than 90 days, the X Family were not really asking for a short-term visa within the definition of the Visa Code, but a long-term humanitarian visa which fell outside the scope of EU law. As such, the Charter point was not relevant, and Belgium was required to refuse the application for a “visa” under the Visa Code.

For those interested in the extra-territoriality of the EU Charter, skip to part 4.

3) The Visa Point: The CJEU

The Visa Code, in Art 25, provides for the granting of humanitarian visas. This provision specifies that a visa with limited territorial validity

“shall be issued exceptionally…when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations…”.

The X Family sought to rely on this provision to obtain a visa.

The problem was that the Visa Code makes it very clear that visas are limited to a period of three months. Thus, Art 1(1) provides that that Code governs “visas not exceeding three months in any six-month period.” Similarly, Art 2(2)(a) defines a visa as “an authorization issued by a Member State with a view to … an intended stay….of a duration of no more than three months…”.

Yet, it was clear that the X Family sought to remain on Belgian territory in excess of 90 days – indeed that was the entire point of them fleeing to Belgium (see [42] of the judgment)

Thus, the Court held that because the X family sought to remain on Belgian territory in excess of 90 days, they could not grant the “visa” under the Visa Code. This was buttressed by three further points.

First, Art 32 of the Visa Code which provides, as part of the conditions in which a visa must be refused, that “if there are reasonable doubts as to … [the] intention to leave the territory of the Member States before the expiry of the visa applied for” a visa must be denied. ([46] – [47])

Second, it was also supported by the EC Treaty, which is now the TFEU. The Visa Code was enacted on the basis of EC Art 62(2)(b)(ii) which confers power to the Council to adopt “rules on visas for intended stays of no more than three months”. It would therefore go beyond the legal basis of the Visa Code to allow Member States to grant visas in excess of that three month period.

The last point was, in effect, that the conclusion was supported by Union legislation. First, to allow the granting of humanitarian visas in order to claim asylum would undermine Regulation 604/2013. This Regulation, which “lays down the criteria and mechanisms for determining the Member State responsible for examining an application” for asylum, would be frustrated if those seeking asylum could bypass those criteria by selecting which Embassy they place their request for a humanitarian visa. ([48]) Second, that EU does not cover the “visa” the X Family sought is confirmed by Directive 2013/32 which, in Article 3 entitled “scope”, provides that it applies to “applications … made in the territory… in the territorial waters or transit zones of Member States” but specifically excludes “requests for … asylum submitted to representations of Member States”. In a similar vein, Regulation 604/2013, in Art 1 and Art 3, only makes mention of it applying to “applications … made in the territory… in the territorial waters or transit zones of Member States” ([49]). The “visa” application at hand, made at the Belgian representation in Beirut, fell outside the scope of EU law

The CJEU concluded that, in reality, what the X Family was seeking was not a short term visa under the Visa Code.([43] and [47] of the judgment). Rather, what the X Family sought was a long-term stay. This corresponds to Art 79(2)(a) TFEU which, under the umbrella of a “common immigration policy”, allows the EU Parliament and Council to set down “…standards on the issue by Member States of long-term visas”. Yet, at the material time, no such standards had been laid down. The net effect was the EU law did not cover the request of the X Family, and, as such, Belgium was required, as a matter of EU law, to refuse it.

Of course, as the Court pointed out, this did not mean that the Belgian state had to refuse the visa application. It simply meant that it could not be granted as a matter of EU law. The Belgian authorities would have been free, as a matter of national law, to grant the visa application if they so chose (final sentence of [44]).

The Advocate General did not accept this reasoning, although the reasons why turn on some fine-grained questions of interpretation of the Visa Code. For those interested, see [109] – [119]. I turn now to the more interesting Charter point.

4) The Charter point

The X Family were not only saying “Belgium, you can grant me a visa” they were also saying “Belgium you must grant me a visa because of your EU and international human rights obligations”.

The obligations in question included the right to remain free from torture and degrading human treatment under Article 4 of the Charter, and Article 18 of the Charter which guarantees the right to claim asylum in accordance with the 1951 Refugee Convention.

The application of the Charter is worth dividing into three parts.

a)   Was the Charter engaged?

The Charter only applies in the scope of EU law (C‑617/10 Åklagaren, [21]). What does this mean in practice? This can be very straightforward. In a case now before the Supreme Court of the United Kingdom, Benkharbouche [2015] EWCA Civ 33, the claimant sued the Sudanese Embassy in London for breaching her rights under the Working Time Directive. That is a secondary norm of Union law, and, as such, her claim clearly fell within the scope of Union law. The question of whether a given case falls within the scope of Union that can also be more difficult, however. In C‑198/13 Hernandez, the CJEU held that a technical provision that granted compensation to an individual for irregularities in judicial proceedings to enforce employment rights was not an action which fell within the scope of EU labour law. It was, rather, an idiosyncratic provision of Spanish law which granted compensation from the State to the employer (not the employee), which the employee could then claim by way of subrogation from the State. What falls within the scope of EU law, therefore, is a fact-sensitive question (Hernandez, [37]).

Of course, according to the Court, there was no question of the Charter applying. This was because the territorial access which the X Family was seeking was not covered by EU law.

The Advocate General, however, had no difficulty in concluding that the granting of visas under the Visa Code was an act which fell within the scope of EU law as, for the reasons in [109] – [119], he opined that the X Family’s request could indeed fall within the Visa Code. Moreover, the granting of a visa under Art 25 of the visa Code was, in effect, a decision to grant a document allowing the crossing of the external borders of the Member States under a harmonized scheme of EU law [80]. The fact that Member States enjoy some discretion in determine who to grant humanitarian visas to did not detract from this; that discretion was an integral part of the Visa Code, and was exercised in the context of a common visa policy [83].

The Charter, therefore, applied [88].

b)   Extraterritoriality

The above analysis is relatively anodyne. What is more novel is the question of extraterritoriality. This arises because the X Family were at risk of torture and degrading treatment in Syria. The Advocate General thought that this was irrelevant. The Charter applies in the scope of EU law, regardless of any condition of territoriality. [89].

He opined that this conclusion is the necessary corollary of the Åklagaren principle that “situations cannot exist which are covered in that way by EU law without those fundamental rights being applicable.” [91]. The Charter applies by virtue of EU law applying – there is no superadded condition of territoriality. In other words, it is EU law itself that “activates” the Charter, and not the connection to EU soil. To hold otherwise would also have the effect of removing the common visa policy from the purview of fundamental rights protection [93].

The advocate general then went further. To understand what he said, it is necessary to recall two points, in nutshell form. First, EU law provides at least equivalent protection to the European Convention on Human Rights (ECHR), yet it may provide more (Art 52(3) of the Charter, see my post here). Second, the European Court of Human Rights has found that the ECHR States are required to respect the ECHR rights of an individual extraterritorially in situations “whenever”, broadly speaking, “the State through its agents exercises control and authority over an individual” (See Al Skeini v United Kingdom [137] but see, more generally, [130] – [142])

He said that unlike the ECHR which requires an individual to be under the control/authority of the State, the EU applies even when there is no such control or authority. [94] On his view, therefore, the EU Charter applies extraterritorially, but under more lax conditions than the ECHR.

This is because the ECHR has a jurisdictional limit, as Article 1 requires states to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. No similar jurisdictional limit is to be found in the Charter. On the contrary, as I explained above, fundamental rights being inextricably woven into the normative fabric of the Union, the Charter applies by mere virtue of the fact that EU law applies. That, in his view, is the only criterion. There is no superadded territorial/jurisdictional one.

The Belgian state, however, argued that the equivalence between the ECHR and the rights contained in the Charter means that the limitations in the ECHR rights (i.e. the jurisdictional limit in Art 1) should also apply to those in the Charter.

To this, the Advocate General responded, amongst other things, that i) this does not change the fact that the Charter does not contain any such jurisdictional condition as the ECHR does in Art 1 ii) that the Charter may well provide a higher level of protection than the ECHR and iii) the right in question – the universal injunction against torture – was clearly a right which admitted of no territorial limit. ([97] – [101])

c)   Level of Protection and the scope of Art 4 of the Charter

The Advocate General further opined that the Belgian state was positively obliged to grant the X Family a visa. He reasoned that Art 25 was not a mere discretionary permission or Member State faculty to grant a visa to those whose humanitarian plights deserved it. Rather, the grant of a humanitarian visa takes place in the scope of EU law, and, as such, the Member State must grant a visa in situations where rights provided under the Charter would be infringed [127] and [132].

This is in part because of the mandatory language of Art 25 (“shall be issued exceptionally” [125]) and in part because of the fact that Member State discretion under Art 25 is, according to the Advocate General, to be exercised consistently with the fundamental rights that obtain under the Charter [129]. Thus, if the exercise of discretion would lead to the violation of fundamental rights, the Member State must abstain from exercising that discretion in such a manner [132].

Again, this is not particularly novel. What certainly is more interesting is what the Advocate General considered to fall within the right to remain free from torture in Art 4 of the Charter. That right, opined the Advocate General, includes a positive obligation to take reasonable measures to prevent individuals from being subjected to substantial risks of torture or degrading treatment, even if that torture or treatment is perpetrated by private individuals, in situations where the Member State knew or ought to have known of that risk. [139]

It is a matter for the national courts to determine whether this is or is not satisfied on the facts. The assessment of the likelihood of being subjected to torture would be carried out, by national courts, with regard to relevant and credible sources, such as NGOs and UN reports [142] whilst being mindful of the difficulties inherent in accurate and reliable reporting in unstable situations like in Aleppo [143, 144].

But the Advocate General nonetheless proceeded to note that, according to clear and established facts, Belgium must have known of the risk to which the Family X was exposed by denying the visa under Art 25. [145] – [149]. Critically, this degrading treatment was a real risk both if they were to stay in Syria [149] but also if they were to make the journey from Syria to flee the horrors of the raging civil war [151]. In the Advocate General’s words:

It is very well documented that Syrian nationals, including those seeking international protection, who manage, in desperation, to somehow negotiate, with the help of unscrupulous traffickers, a sea crossing to the European Union risking their lives in the process are — if they do not drown or die from other causes — beaten, attacked and/or abandoned in drifting makeshift vessels until, in the best-case scenario, they are rescued by coastguards or by NGOs which have chartered search and rescue vessels. [150]

In other words, the Advocate General recognized a duty to prevent, in the context of the Visa Code, the inhumane conditions of either i) remaining in Syria and most likely being subjected to torture and beatings or ii) fleeing Syria and attempting to reach the Union unlawfully, by granting a humanitarian visa so they could i) leave Syria and ii) reach the Union lawfully. Thus, in the words of the Advocate General, there is an obligation to grant a humanitarian visa:

if there are substantial grounds to believe that the refusal to issue that document will have the direct consequence of exposing that national to treatment prohibited by Article 4 of the Charter, by depriving that national of a legal route to exercise his right to seek international protection in that Member State.

Subject to verification by the national court as to whether those criteria were satisfied, the Belgian state would have had to issue a humanitarian visa for the X Family.

5) Reflections on extraterritoriality

The approach of the CJEU and the Advocate General are highly different. Partly by their very nature and partly because of the legal solution they reached, they raise different issues and, perhaps, to some extent, respond to different concerns.

The issue of extraterritoriality was not raised by the CJEU as it was not necessary. But if the volume of judgments of the ECHR on this matter is any indicator, it is surely an issue that, someday, will have to be decided by the CJEU.

That, no doubt, will turn on what, exactly, it means for Charter rights, as per Art 52(3), to have the same “meaning and scope” as those in the ECHR (See the interesting passage of [101] in the Advocate General’s Opinion).

Does that “scope” refer to the territorial scope of the ECHR? If so, the Charter rights are likely to apply, as the ECHR does, abroad. Does that “scope” also refer to the jurisdictional limit in Art 1 ECHR which seems to be absent from the Charter? If so, it seems likely that there is a superadded jurisdictional condition to the applicability of Charter rights. If not, does the “meaning” of a right in the ECHR encompass that jurisdictional limit in Art 1 of the ECHR?

These (admittedly somewhat Delphic) musings are not that easy to answer. Interesting questions await.

Michael Rhimes is a fourth référendaire (administrateur juriste) to Judge Christopher Vajda at the Court of Justice of the European Union. The views expressed in this piece are strictly personal.