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While there are humanitarian programs based on the national law of Member States, the European Union does not have a legal framework specific to the issue of humanitarian visas, even though the Community Code on Visas and the Schengen Borders Code allow to issue a limited territorial visa “for humanitarian reasons”.
AEDH has regularly pleaded against the European Union’s refusal to integrate these visas into its corpus. In the same area, the judgment of the Court of Justice of 7 March 2017 (Case C 638/16 PPU – X, X against Belgian State) contradicts the brilliant conclusions of the General Advocate Paolo Mengozzi and refuses to a Syrian couple the right to apply for a humanitarian visa to Belgium has been very commented by multiple organisations for the defence of human rights .
A legal and safe access route
The possibility of creating a Community humanitarian visa allowing an asylum seeker to go to the territory of a Member State in order to apply for international protection is a fight that the European Parliament really cares about. However, this project was blocked by the Commission and the Council multiple times.
Since 2014, in the context of the visa reform and then in an own-initiative report, Juan Fernando Lopez Aguilar has been promoting this project and is arguing, step-by-step, on the imperative need to put in place this means which would give all its scope to European asylum law. Indeed, the aim is to provide asylum seekers with access to the EU territory in a legal and secure way, knowing that 90% of asylum seekers arrive in Europe in an irregular manner and through dangerous pathways – reflected in the number of deaths each year.
But obstinacy pays off and, on 6 December 2017, the LIBE Committee won the right to draw up a legislative initiative report on humanitarian visas. The draft report presented to the LIBE Committee by Juan Fernando López Aguilar on 22 June 2018 should be submitted to the plenary by November.
In addition to the guarantee of the legal and safe access route, the LIBE Committee believes that the European humanitarian visa would limit fragmentation tendencies as States develop their own procedures for humanitarian admission. This risk of fragmentation presents an undeniable contradiction with the goal, constantly repeated, of establishing a common asylum system for all Member States. Rightly, it highlights the paradox faced by asylum seekers: the Common European Asylum System (CEAS) only applies in the territory of the Member States but there are no legal ways to access this territory in order to apply for asylum.
The initiative of the European Parliament aims to obtain the publication by the Commission, “before 31 March 2019, of a proposal for a regulation creating a European humanitarian visa”, in accordance with the recommendations adopted by the elected representatives.
That Regulation should therefore lay down the conditions and procedures for issuing visas to persons applying for international protection in order to enable them to enter the territory of a State lawfully for the sole purpose of being able to lodge such an application.
The concrete proposals of the Parliament
The report therefore proposes the conditions and procedures for the issuance of this viaticum: the submission of an application at a consulate or embassy of a Member State, the interview of the applicant, a reply within 15 days following the submission of the application, a written and motivated decision concerning the result of the application, the possibility for the seeker to appeal against a negative decision, etc. Once this humanitarian visa has been issued by a Member State, the beneficiary may enter the territory of that State for the only purpose of applying for international protection.
The report also deals with the question of the administrative management of requests for these titles: assessment by competent and trained staff on relevant issues, post based in embassies or consulates, ability to manage certain aspects of the process through an outside service, safeguards for the protection of personal data or further cooperation with ad hoc bodies such as UN agencies and, in particular, UNHCR.
The creation of a Community humanitarian visa would be a first step towards the organization of a legal route of access to the European territory, but European politicians believe that it should also allow recognition of consular decisions of Member States when allowing a national long-stay visa.
In some countries, such as Germany, Belgium and France, there are national long-stay visas granted according to criteria specific to each Member State. In doing so, the beneficiary of such visa cannot move freely within the Schengen area since its validity is limited to the territory of the Member State of issue, which may constitute an obstacle for the asylum seeker in the case of a family reunion.
With the adoption of such a regulation, would be confirmed “the added value of Union action, in terms of respect for Union values, including fundamental rights, mutual trust between Member States, and the confidence of asylum seekers in the system, but also legal certainty, predictability, the uniform application of the rules, the realization of economies of scale”, to quote some arguments developed by Juan Fernando López Aguilar.
To go further:
Click here to access the European Parliament report