Humanitarian Visas for International Protection Purposes

It is no revelation that access to the European Union is almost illusory for many third-country nationals in need of international protection. On the one hand, irregular channels are rendered more and more difficult as externalized migration controls proliferate. On the other hand, the very few safe and legal pathways that exist are utterly underdeveloped and are set up on a complete voluntary and discretionary basis. When feasible, third-country nationals have applied for “derogatory” humanitarian visas. They request, within EU Member States’ diplomatic or consular representations, a visa on the basis of their need of international protection, in order to be granted legal access to the issuing State’s territory precisely to apply for international protection upon arrival. The focal point is whether States can be required to issue these visas in order to comply with their human rights obligations. Following the same path as the Court of Justice of the European Union in the case of X and X v. État belge (2017), the European Court of Human Rights (“ECtHR”) found that States do not hold any obligation in the context of humanitarian visa proceedings, in the case of M.N. and Others v. Belgium (2020). This contribution demonstrates that the ECtHR’s reasoning is unconvincing.

Jurisdiction on the Basis of States’ de jure Control

The case of M.N., brought before the ECtHR, concerned applications for humanitarian visas submitted by a Syrian family within the premises of the Belgian embassy in Beirut. The case confronted the ECtHR with the question whether Article 3 of the ECHR places an obligation on States to provide humanitarian visas for international protection purposes. The Court dodged the question, holding that the proceedings did not bring the applicants within Belgium’s jurisdiction under Article 1 ECHR. Among others, the Court held that: a) the mere fact that “decisions taken at national level had an impact on the situation of persons resident abroad” was not sufficient (para. 112); b) and that, at no time did the diplomatic agents exercise de facto control over the applicants who

“freely chose to present themselves at the Belgian embassy in Beirut […] – as indeed they could have chosen to approach any other embassy, they were then free to leave the premises of the Belgian embassy without any hindrance” (para. 118).

The reasoning of the Court is overly restrictive. First, the cases mainly relied upon (i.e., Banković, at paras. 98, 99, 102 and 112, and Abdul Wahab Khan at para. 123) are irrelevant because their facts differ considerably from the situation of humanitarian visa applications, and because the Banković decision displays an outdated jurisdictional approach. Second, several other cases, in which the States’ legal, procedural and institutional control over a situation or over a person abroad was emphasized upon for the purpose of establishing their jurisdiction, present a stronger relevance in the context of humanitarian visa proceedings. For instance, in Nada v. Switzerland, the Court held that, because the ban on entering and transiting through Switzerland – which had been imposed on the applicant as a result of the addition of his name to the list annexed to the Federal Taliban Ordinance – related to national legislative norms, the measures at issue were taken in the exercise of jurisdiction by Switzerland (paras. 121—122). In a series of cases, the ECtHR also found that the “push back” of asylum seekers at States’ borders, with a risk of refoulement to their country of origin, triggers States’ jurisdiction, with respect to the applicants’ right to non-refoulement. There, the Court emphasized the exclusive legal and procedural control exercised by the national authorities, underlying that the events concerned the procedures and decision-making followed in respect of border checks, granting or refusing entry into the territory, which were exclusively conducted by the States’ officials and regulated by domestic and EU law. (see M.K. and Others v. Poland, paras. 130—131; D.A. and Others v. Poland, para. 33; M.A. and Others v. Lithuania, para. 70; A.B. and Others v. Poland, paras. 34—43). Many other cases – which cannot all be developed here – also reflect an expansive understanding of jurisdiction that takes into account legal and procedural means through which governmental powers are manifested (see, e.g., Kovačič and Others v. Slovenia; X. and Y. v. Switzerland; Vasiliciuc v. the Republic of Moldova; Castano v. Belgium; H.F. and Others v. France).

The Court could thus have concluded that States deciding upon humanitarian visa applications exercise their jurisdiction with respect to the applicant’s right of non-refoulement because of the exclusive legal and procedural control which they exert over the proceedings and over the ensuing applicants’ legal situation. The current configuration of humanitarian visa proceedings indeed entails that EU Member States exercise a complete de jure control over the entire procedure which exclusively falls under the realm of their domestic legal, administrative and judicial system, leaving them with the exclusive and discretionary decision-making power.

No Universal Application of Human Rights, Nor an Unlimited Obligation to Grant Entry

In M.N., the ECtHR underlined that establishing States’ jurisdiction:

“would amount to enshrining a near‑universal application of the Convention on the basis of the unilateral choices of any individual, irrespective of where in the world they find themselves, and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment contrary to the Convention outside their jurisdiction” (para. 123).

This argument of the Court, echoing States’ commonly invoked immigration concerns that such obligations would overwhelm their consular or diplomatic premises with an uncontrolled flow of applications, does not hold water in any respect.

First, it is key to understand that States’ obligations in the context of humanitarian visa applications necessarily come within the specific framework of the norm of non-refoulement (notably deriving from Articles 2 and 3 ECHR). Traditionally applied as entailing a negative obligation not to send back, States’ obligation of non-refoulement imposes a duty to prevent that individuals falling within their jurisdictional reach be exposed to certain risks of harm that would occur abroad. The ECtHR reiterates that

“in so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment” (e.g., Soering v. the United Kingdom, para. 91).

In non-refoulement cases, the risks of harm against which protection is sought arises from the jurisdiction of another State and does not emanate from the sending State – not from its territory, nor from public or private individuals falling under its extraterritorial control. The liability itself, nonetheless, rests on the jurisdictional control exercised over the person at risk and on the foreseeability of the risk of harm: it falls under the State’s control to adopt a decision or to carry out an action that might expose the person to the risk of harm which it knows or should have known, or to undertake all it can to avoid such an exposure.

It arises from international jurisprudence (for instance, in the context of interception at sea, or refusals at the borders) that the norm of non-refoulement seeks to encompass any (territorial or extraterritorial) scenario in which States carry out actions or adopt decisions as part of proceedings in which the plight and situation of one individual in particular are at stake, and which might expose this person to certain foreseeable risks of harm abroad. According to the ECtHR,

“deportation, extradition, or any other measure to remove an alien may give rise to an issue under Article 3” (e.g., Ilias and Ahmed v. Hungary, para. 126).

The Committee of Ministers of the Council of Europe also explains in a resolution from 1967 that States should

“ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to, or remain in, a territory where he would be in danger of persecution” (Resolution (67) 14, p. 23).

For its part, the Human Rights Committee stated that

“if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant” (Kindler v. Canada, para. 6.2; see also Munaf v. Romania, para. 14.2).

Hence, States’ potential obligations towards humanitarian visa applicants are necessarily embedded within their specific duty of non-refoulement. In fact, the applicants seek protection from risks of harm which would stem from another country, and which constitute those “humanitarian” reasons on the basis of which international protection claims will eventually be lodged and assessed. Visa refusals can be a “measure” or a “decision” which could expose the applicants to those foreseeable risks.

This clarification allows to dismantle the risk of a “near-universal” application of human rights law, raised by the ECtHR. It is because States are deliberately engaged into such an individualized procedure relating to the situation of one specifically identified individual (or a family), as part of which they sovereignly adopt a decision exclusively following their national laws and regulations, the outcome of which might be the exposure to foreseeable and real risks of harm abroad, that their jurisdiction should be triggered with respect to the applicant’s right of non-refoulement. In other words, the specific legal and practical circumstances surrounding humanitarian visa proceedings allow to concretely conceptualize the substance of States’ obligations. States’ obligations are strictly individualized and not triggered towards an unidentified and potentially wide number of persons “irrespective of where in the world they find themselves”. Moreover, the norm of non-refoulement can only be triggered when certain material requirements relating to the nature of the risks of harm are met, so that States’ jurisdiction would not be triggered towards any individual who “might be at risk” of ill-treatment.

Second, the ECtHR completely ignored the practical reality behind humanitarian visa applications. Introducing a visa application requires the presentation of a series of documents supporting the case which can be very challenging to gather for asylum seekers. Moreover, the applicants may need to travel to the competent consulate or embassy, which entails additional costs and can be highly dangerous for protection seekers. In particular, many embassies or consulates are closed in contexts of conflicts, so that the crossing of international borders might be highly inevitable. Thus, applying for humanitarian visas constitutes for many third-country nationals an unfeasible or unrealistic alternative. In this regard, in February 2024, the Brussels Court of first instance ordered Belgium to allow applicants stranded in the Gaza strip to submit their humanitarian visa applications per email (see, related to this: CJEU, Afrin v. Belgium).

Finally, the Court suggests that establishing jurisdiction would automatically impose on States an “unlimited obligation to allow entry” into their territory. However, the triggering of States’ obligation of non-refoulement does not systemically mean that they hold an obligation to grant the requested visas. Whereas States can be required to allow entry into their territory in order to ensure an effective protection from refoulement, States’ positive obligation to protect only requires them to adopt measures that are reasonable and do not impose an impossible or disproportionate burden on them. Depending on the circumstances, there may be other solutions at the States’ disposal, such as the relocation of the applicants to another country or another region, as long as they provide them with an effective protection. The issuance of humanitarian visas may not always be the most reasonable alternative.

Despite the flaws in the ECtHR’s reasoning – marked by the political sensibilities around States’ obligations to protect those who are kept away from their borders – many restrictive passages of the case of M.N. and Others v. Belgium are, however, still referred to in more recent case-law, which ignores States’ obligations in extraterritorial contexts (see, e.g., H.F. and Others v. France, Duarte Agostinho and Others v. Portugal and 32 Others).