Following a complaint against the state of Belgium by a Syrian family, the Advocate General Paolo Mengozzi announced on 7 February 2017 that where substantial grounds have been shown for believing that a refusal would place the person seeking international protection at risk of inhuman, degrading treatment or torture, member states must issue entry visas on humanitarian grounds. He added that it is immaterial whether or not there are ties between the person concerned and the EU Member State in which entry is sought.
On 12 October 2016, a Syrian family with three young children, living in Aleppo in Syria, applied to the Belgian Embassy for visas. Their applications were made for visas with limited validity, to enable the family to leave the city of Aleppo, with a view to making an asylum application in Belgium.
Their applications were made on the grounds that one of the applicants had been taken by an armed group, was beaten and tortured and finally released on payment of a ransom. They argued that the security situation in Syria in general, and in Aleppo in particular, had deteriorated and as Orthodox Christians, they were at risk of persecution on account of their religious beliefs. They added that it was impossible for them to register as refugees in the neighbouring countries because the border between Lebanon and Syria had in the meantime been closed.
On 18 October 2016, the Office des étrangers (Belgium) refused those applications. It had decided that by applying for a visa with limited validity with a view to making an asylum application in Belgium, the Syrian family clearly intended to stay for more than 90 days in Belgium, which was in breach of the visa conditions. Furthermore, the Office claimed that Member States are not obliged to grant entry to all individuals from war zones. Consequently a legal challenge was triggered.
The Conseil du contentieux des étrangers (Belgian Asylum and Immigration Board) decided that it was necessary, as a matter of urgency, to make a reference to the Court of Justice concerning the interpretation of the Visa Code and of Article 4 (prohibiting torture and inhuman or degrading treatment) and Article 18 (the right to asylum) of the Charter of Fundamental Rights of the European Union "the Charter."
The Advocate General said that, given the current situation in Syria, "the Belgian State was not entitled to conclude that it was exempted from its positive obligation under Article 4 of the Charter." The Advocate General deemed that a Member State was required to issue a visa on humanitarian grounds in a situation where there is a serious risk of breach of Article 4 of the Charter, regardless of whether there are any links between the person concerned and the requested Member State.
Many EU states say they are already struggling to process and care for hundreds of thousand of migrants from the Middle East and North Africa who make the perilous journey to the European Union, then apply for asylum on arrival. Belgian authorities argued that giving visas to people from war zones would encourage still more arrivals.
However, the Advocate General's position is based both on the wording and structure of the Visa Code provisions and on the need for the Member States to exercise their discretion in respect to the rights guaranteed by the Charter when applying those provisions.
The Advocate General's comments are not binding but are usually followed by the court which is due to rule on a test case in the next few weeks that could affect policy across all EU Member States.