The European Convention on Human Rights does not apply to visa applications submitted to embassies and consulates

JUDGMENT

GRAND CHAMBER

M.N. and others v. Belgium 05.05.2020 (no. 3599/18)

see here

SUMMARY

The case concerned a couple of Syrian nationals and their two children, who were refused the shortterm visas that they had requested from the Belgian Embassy in Beirut with a view to applying for asylum in Belgium.

The applicants claimed that there had been a breach of their rights under Articles 3 (prohibition of
torture and inhuman or degrading treatment), 13 (right to an effective remedy) and 6 § 1 (right to a
fair hearing) of the European Convention on Human Rights.

The Court reiterated that Article 1 (obligation to respect human rights) of the European Convention
limited its scope to persons within the jurisdiction of the States Parties to the Convention. In the
present case, it noted that the applicants were not within Belgium’s jurisdiction in respect of the
circumstances complained of under Articles 3 and 13 of the Convention.

The Court also considered that Article 6 § 1 of the Convention was inapplicable in the present case.
The entry to Belgian territory which would have resulted from the visas being issued did not engage
a “civil” right within the meaning of Article 6 § 1.

Lastly, the Court noted that this conclusion did not prejudice the endeavours being made by the
States Parties to facilitate access to asylum procedures through their embassies and/or consular
representations.

PROVISIONS

Article 1

Article 3

Article 13

Article 6

PRINCIPAL FACTS

The applicants are a couple and their two children, all Syrian nationals. They live in Aleppo (Syria).
On 22 August 2016 they went to the Belgian Embassy in Beirut to submit applications for short-stay
visas, with a view to subsequently claiming asylum in Belgium. The applicants, basing their request
on Article 25 of the Community Code on Visas, cited pressing humanitarian reasons.

On 13 September 2016 the Alien’s Office (OE) refused to issue the requested visas. The applicants
appealed to the Aliens Appeals Board (CCE) under the extremely urgent procedure. On 7 October
2016 the CCE ordered a stay of execution of the OE’s decisions. It instructed the State to take new
decisions.

On 10 and 17 October 2016 the OE issued new decisions refusing to grant the visas, execution of
which was again stayed by the CCE. On 20 October 2016 the CCE instructed the State to issue the
applicants, within 48 hours, with laissez-passers or visas, valid for three months, in order to protect
their interests. The applicants then lodged applications for judicial review of the OE’s decisions (of
10 and 17 October 2016), but these were dismissed by the CCE on the grounds that the decisions of
13 September 2016 refusing to issue the visas had become final.

Since the Belgian authorities refused to execute the Aliens Appeal Board’s judgment of 7 October
2016, the applicants then brought proceedings before the Brussels French-language Court of First
Instance (TPI), which ordered the State to comply with that judgment, subject to a penalty for
non-compliance. On 7 December 2016 the Brussels Court of Appeal delivered a judgment upholding the order that the State was to execute the CCE’s judgment of 20 October 2016, again subject to
penalties for non-compliance. However, given the outcome of the applications for judicial review before the CCE, the Court of Appeal held on 30 June 2017 that the judgment of 7 December 2016
was no longer relevant and that no penalties were due.

THE DECISION OF THE COURT…

Articles 3 (prohibition of torture and of inhuman or degrading treatment) and 13 (right to an
effective remedy)

Article 1 of the Convention limits its scope to persons within the jurisdiction of the States Parties to
the Convention. The Court had therefore to determine whether the applicants were within
Belgium’s jurisdiction.

The Court noted that that the contested decisions had been taken by the Belgian authorities in
Belgium. They were issued in response to visa applications submitted by the applicants to the
consular services of the Belgian Embassy in Beirut, with a view to obtaining authorisation to enter
Belgium so that they could claim asylum in that country and avoid treatment in breach of Article 3 of
the Convention to which they alleged that they were exposed in Aleppo. The decisions refusing to
grant the requested visas subsequently passed through the embassy’s consular services, which
notified the applicants. The Court accepted that in ruling on the applicants’ visa applications, the
Belgian authorities had taken decisions concerning the conditions for entry to Belgian territory and,
in so doing, had exercised a public power. In itself, however, this finding was not sufficient to bring
the applicants under Belgium’s “territorial” jurisdiction within the meaning of Article 1 of the
Convention.

In order to determine whether the Convention applied to the present case, the Court had to
examine whether exceptional circumstances existed which could lead to a conclusion that Belgium
had exercised extraterritorial jurisdiction in respect of the applicants. This was primarily a question
of fact, which required it to explore the nature of the link between the applicants and the
respondent State and to ascertain whether the latter had effectively exercised authority or control
over them.

In this connection, the Court specified that it was irrelevant that the diplomatic agents had had, as in
the present case, merely a “letter-box” role, or to ascertain who had been responsible for taking the
decisions, whether the Belgian authorities in the national territory or the diplomatic agents in post
abroad.

The Court noted that the applicants had never been within Belgium’s national territory; that they did
not claim to have any pre-existing ties of family or private life with that country; that they were not
Belgian nationals seeking to benefit from the protection of their embassy; and that the diplomatic
agents had at no time exercised de facto control over the applicants. They had freely chosen to
present themselves at the Belgian Embassy in Beirut, as indeed they could have approached any
other embassy, and to submit their visa applications there. They had then been free to leave the
premises of the Belgian Embassy without any hindrance.

The Court reiterated that the applicants’ situation was fundamentally different from the numerous
expulsion cases that it had examined since the Soering judgment, in which it had accepted that a

State Party’s responsibility could be engaged under Article 3 of the Convention when a State’s
decision to remove an individual exposed him or her to a genuine risk of being subjected to
treatment in breach of Article 3 in the country of destination. Unlike the applicants, individuals in
cases involving removal from a State’s territory were, in theory, on the territory of the State
concerned or at its border and thus clearly fell within its jurisdiction.

Lastly, the Court examined whether the fact of having brought proceedings at national level was
capable of creating an exceptional circumstance which was sufficient to trigger, unilaterally, an
extraterritorial jurisdictional link between the applicants and Belgium within the meaning of Article 1
of the Convention.

In the case of Abdul Wahab Khan, the Court had clearly held that the mere fact that an applicant
brought proceedings in a State Party with which he had no connecting tie could not suffice to
establish that State’s jurisdiction over him. The Court considered that to find otherwise 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 found 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.

In the Court’s opinion, such an extension of the Convention’s scope of application would also have
the effect of negating the well-established principle of public international law, recognised by the
Court, according to which the States Parties, subject to their treaty obligations, including the
Convention, had the right to control the entry, residence and expulsion of aliens. In this context, the
Court noted that that the Court of Justice of the European Union had held in a similar case that, as
EU law currently stood, the issuing of long-stay visas fell solely within the scope of the Member
States’ national law.

In consequence, the Court considered that the applicants had not been within Belgium’s jurisdiction
as regards the circumstances in respect of which they complained under Articles 3 and 13 of the
Convention.

Finally, the Court noted that this conclusion did not prejudice the endeavours being made by the
States Parties to facilitate access to asylum procedures through their embassies and/or consular
representations (see N.D. and N.T. v. Spain, § 222).

Article 6 § 1 (right to a fair hearing)

The Belgian Government argued that the applicants’ complaint, which formally concerned the failure
to comply with the judgment of 7 December 2016 ordering the Belgian State to execute, subject to
daily penalties, the CCE’s judgment of 20 October 2016, had in reality concerned the decisions on
whether to grant the visas and, in consequence, a political right to which Article 6 § 1 of the
Convention did not apply.

The applicants submitted that their complaint concerned a subjective civil right, recognised by the
Brussels Court of Appeal’s judgment of 7 December 2016, namely the right to secure the execution
of a binding and enforceable judgment and to have the damage resulting from its non-execution
brought to an end.

The Court was of the view that the entry to Belgian territory which would have resulted from the
visas being issued did not engage a “civil” right within the meaning of Article 6 § 1 of the Convention,
as was also the case in respect of every other decision relating to immigration and the entry,
residence and removal of aliens. It was settled case-law that these areas were outside the scope of
Article 6 of the Convention.

Admittedly, the proceedings subsequently pursued by the applicants before the Brussels Court of
Appeal to secure execution of the CCE’s judgment of 20 October 2016 had concerned the State’s
refusal to execute a decision delivered by an administrative court, and the court of appeal, in
establishing its jurisdiction under domestic law, had held that the dispute before it concerned a civil
right. That being stated, the Court found that the object of those proceedings had been solely to
continue the proceedings to challenge the merits of the authorities’ decisions refusing to issue the
visas. In any event, the Court considered that the underlying proceedings did not become “civil”
merely because their execution was sought before the courts and they gave rise to a judicial
decision.

Accordingly, Article 6 § 1 of the Convention was not applicable in the present case.


ECHRCaseLaw

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