Humanitarian visas and EU law: do states have limits to their discretionary power to issue humanitarian visas?

Abstract

In a context of serious humanitarian and human security concerns raised by large-scale forced migration arriving at the borders of European countries from the Middle East and Africa, the Court of Justice of the European Union has restrictively interpreted the rules on visas with limited territorial validity included in the Community Code on Visas. In its judgment in the case of X and X v. État belge (judgment of 7 March 2017, case C-638/16 PPU [GC]), the Court radically moved away from the opinion of the AG Mengozzi, who considered that a legal way already existed in the Code “in order to recognise a legal access route to the right to international protection”. For the Court, Art. 25 of the Code on Visas does not establish any obligation for States to issue an LTV visa on humanitarian grounds, or an international obligation according to EU law because they are outside the scope of the implementation of EU law. In this Insight, some of the arguments providing the basis for the Court’s judgment will be discussed: First, the idea that Schengen visas with limited territorial validity, issued on humanitarian grounds or due to international obligations, are outside the scope of implementation of EU law, which leaves aside the application of the Charter of Fundamental Rights of the European Union in these cases. Second, the suggested idea that some degree of discretion on the part of States is not consistent with a limitation of this margin of discretion according to the European standards of human rights.