Court says EU states can withhold humanitarian visas. What's next for migrants?

In the face of rising populism and anti-migrant sentiment across Europe, a ruling by the European Court of Justice that European states are not obliged to issue humanitarian visas has left conservatives cheering – and migrant rights groups disheartened. But refugee advocates say it may still be possible to forge a legal pathway for migrants.

On Tuesday, the ECJ ruled that European Union law does not require member states to grant short-term humanitarian visas to people they expect to apply for asylum once they arrive in the EU. All that EU law covers, the Court wrote in its decision, is short-term transit stays of 90 days or less. Member states can still choose to issue these visas themselves, while international law requires European countries to grant asylum to people who are already on European soil.

Observers agree that the Court ruled on the merits in determining this case. Nevertheless, some are concerned that this stance makes the process of seeking asylum more dangerous and increases the pressure on border states. In a context where member states are increasingly circumspect about granting humanitarian visas, they suggest that the EU still has an important role to play in protecting migrant rights.

“If the EU is – as it insists – simultaneously committed to avoiding the need for refugees to risk their lives on the Mediterranean and to living up to its legal and political commitments to protect refugees, then humanitarian visas provide an important means to close the yawning gap between rhetoric and reality,” writes James Hathaway, a law professor at the University of Michigan who directs the Program in Refugee and Asylum Law, in an email to The Christian Science Monitor.

The Court’s ruling comes in response to Belgium’s decision to refuse humanitarian visas to a Syrian family of Orthodox Christians. In October, the family journeyed to Lebanon and applied for visas at the Belgian embassy, saying they faced persecution and risks to their lives at home. The family then returned home to wait for their visas, which never arrived. The Belgian government declined to issue the travel documents on the grounds that the Syrian family planned to apply for asylum upon arrival in Belgium.

Technically, that leaves their case outside the remit of European law.

“This visa code is a legal instrument that is supposed to harmonize … the policies of all the member states with regard to short-term visas,” explains Galina Cornelisse, associate professor at Vrije University in Amsterdam, Netherlands who specializes in EU migration law, in a phone conversation with the Monitor. If people are planning to stay, that means it is “not short term, so that falls outside of this instrument,” she adds.

The decision was supported by EU member states, 14 of which submitted opinions in favor of letting individual states decide whether or not to grant humanitarian visas. 

For many of those states, the current system, known as the Dublin Agreement, which requires refugees to seek asylum in the first European country they arrive at, restricts the flow of refugees. That’s a benefit they wouldn’t enjoy if refugees could apply for visas at any European embassy they chose, explains Benjamin Ward, deputy director of the Europe and Central Asia division for Human Rights Watch, a New York-based NGO that advocates for human rights worldwide, in an email to the Monitor.

That may have influenced the Court’s decision, Professor Hathaway indicates.

“There is undoubtedly a 'realpolitik' backdrop to the ruling of the European Court: with so many states formally opposed to the notion that they should be required to offer humanitarian visas to facilitate arrival into the EU, the Court was probably inclined to tread softly,” he writes.

And as Professor Cornelisse explains, the Court is not a supreme court of Europe, but is dependent on national courts to bring cases.

“It has to tread this balance – if it’s going too far, too often, national judges will probably not ask it questions anymore,” she says.

Member states can still choose to issue humanitarian visas, should they wish to. But in the face of rising populism and growing anti-migrant sentiment across the continent, few countries may be willing to take in more refugees if not compelled to do so by European law. European governments have already started moving away from issuing such visas, Mr. Ward indicates. 

In a recent Chatham House survey, 10,000 people in 10 European states were asked to agree or disagree with this statement: "All further migration from mainly Muslim countries should be stopped." An average of 55 percent agreed, 25 percent neither agreed nor disagreed and 20 percent disagreed. 

As a result, migrants will likely continue to face perilous sea voyages and smuggling in their efforts to reach Europe, rights groups suggest. More than 5,000 people drowned in the Mediterranean last year en route to Europe, according to the UN.

That plight may have been precisely what the Court’s top lawyer, ECJ Advocate General Paolo Mengozzi, was trying to avoid when he issued his recommendation for the case last month. In his view, EU member countries are obliged to issue a visa if refusing would place the applicant’s life in danger or subject them to “torture or inhuman or degrading treatment.”

But refugees who hope to travel safely to Europe may have other avenues they can pursue.

“The judgment doesn’t say that human rights do not play a role or anything,” Cornelisse points out. Instead, she suggests, the Court is saying, “This particular instrument is not applicable.”

For one, the assumption in the case is that migrants will use their time in a European country on a humanitarian visa to apply for asylum in that country, though they could equally well apply for a shorter visa and then use it to transit to another country, like Canada, for instance, that was willing to accept them. In view of this case, the European legislature might be compelled to act on its stated commitment to protect refugees. And it may also be possible to find legal recourse elsewhere in the EU’s justice system, Cornelisse says: namely, at the European Court of Human Rights.

“The court just declares that EU law is not applicable here,” Cornelisse concludes. “That’s based on an assumption that in this case might be true, but clever lawyers might come up with something different.”