Do Potential Asylum - Seekers Convey The Correct To A Schengen Visa?

By Steve Peers

In its recent judgment inwards Koushkaki, the Court of Justice clarified roughly telephone commutation questions regarding the physical care for of applying for a Schengen visa, inwards lawsuit ruling that applicants receive got a right to a visa if they run across the necessary conditions. In doing so, it implicitly raised farther questions close the grounds to reject visa applications made past times potential asylum-seekers.

The judgment

Mr. Koushkaki, an Iranian citizen living inwards Iran, applied to the High German government for a Schengen visa to vist Germany. The High German government refused, on the grounds that he did non receive got proof of subsistence for his remain or return. These are with the weather for entry laid out inwards the Schengen Borders Code, too also apply to the number of Schengen visas nether the European Union visa code.

So Mr. Koushkaki applied again, this fourth dimension explaining that he wished to see his brother, who resided inwards Federal Republic of Federal Republic of Germany afterward obtaining asylum there. This minute application was in i lawsuit again rejected, this fourth dimension on the grounds that Mr. Koushkaki had non shown an intention to return. Mr. Koushkaki challenged this decision, too the national court, believing that the government had refused Mr. Koushkaki on grounds non referred to inwards the visa code, asked the Court of Justice (inter alia) whether Mr. Koushkaki had the right to a visa if the weather inwards the code were satisfied too none of the grounds for refusal listed inwards the code were applicable.

The Advocate-General took the theater stance that at that spot was no right to a Schengen visa, but the Court took a dissimilar approach. It reworded the national court's primary question, answering instead the enquiry whether the listing of grounds for refusal of a visa laid out inwards the Code was exhuastive. In the Court's view, the listing was exhaustive, taking describe of piece of work concern human relationship of the wording, context and objectives of the Code.

First of all, the wording of the Code was ambiguous. Secondly, the context included: a reference to solely those grounds for refusal listed inwards the code; a criterion shape for giving reasons for a rejection of a visa application which provided for no other reasons for refusal too those listed inwards the Code; the wording of the legislation establishing the Visa Information System; too the link betwixt the grounds for refusal of a visa application too the grounds for revocation or annulment of a visa which has already been issued. Since a Member State tin annul or revoke a visa issued past times roughly other Member State, this presupposed that the 'conditions for the number of uniform visas are harmonised', hence at that spot could hold upward no differences betwixt Member US equally to the grounds to reject a visa.

As for the objectives of the visa code, the preamble to the code states that it aims to 'establish the weather for the number of uniform visas'. Also, the preamble refers to 'the facilitation of legitimate travel', which would hold upward jeopardised if Member US could add together their ain grounds for refusal of a visa application. So would the objective of 'preventing dissimilar handling of visa applicants', also referred to inwards the preamble. Such variations inwards national do would also encourage 'visa shopping', ie applications beingness to the Member State with the most favourable rules (leading to what a labour or fellowship lawyer would telephone outcry upward a 'race to the bottom').

Having said that, the CJEU did emphasise that Member States' government had a lot of discretion inwards applying the criterion criteria. They receive got to consider the 'personality of the applicant', his or her integration inwards the soil of origin, the 'political, social too economical province of affairs of that country' too the possible threat to world policy, internal security, world wellness or international relations of the Member States. Some of these factors are not, inwards fact, expressly referred to inwards the visa code.

The Court of Justice too hence addressed the national court's other questions. It clarified that at that spot demand solely hold upward 'reasonable doubt', non certainty, that an applicant had the intention of leaving the soil when the visa expired, too spelled out the criteria which had to hold upward taken into account. Finally, it required the national courtroom to translate national police pull consistently with the judgment, even though that national law provided for balance discretion to reject visa applications.

Comments

The Court's judgment is sure relevant past times analogy to applications for most of the diverse forms of short-stay visa referred to inwards the visa code: airdrome transit visas, multiple-entry visas too visas with limited territorial validity. It is doubtful whether it applies to the number of visas equally the border, since the code says that such visas 'may' hold upward issued if the relevant weather are met. More obviously, the judgment is relevant past times analogy to the Schengen Borders Code, given the like wording too context of the rules on refusal of entry inwards the latter code, along with the purpose of a like criterion shape to give reasons to refused applicants.

It is also arguable that the judgment applies past times analogy to roughly or all of the EU's legal migration legislation: indeed the same High German courtroom has sent questions to the Court of Justice on just this point, equally regards the students' Directive (Ben Alaya).

On the telephone commutation enquiry of the 'right' to a Schengen visa, the Court's ruling is welcome too its reasoning is convincing, inwards low-cal of the construction too objectives of the visa code. It is notable that the Court sets out its ruling inwards technical language, referring to the exhaustive nature of the listing of grounds for refusal, rather than a 'right to a visa'. But this is a distinction without a difference: national government must withal number the visa if the weather are satisfied. As Mary Poppins powerfulness say, the dissimilar wording is only a 'spoonful of sugar' to assist the national government receive got the Court's ruling.

Anyway, equally the CJEU makes clear, those government receive got a lot of discretion left when they apply those criteria. As noted above, roughly of the factors referred to past times the Court are non referred to in the Code. In particular, assessment of the applicant's 'personality' sure requires a psychiatrist, but it is doubtful that many consulates employ whatsoever of them.  

The seat of potential asylum-seekers

According to the UN (Geneva) Convention on refugee status, a somebody cannot hold upward considered a refugee until he or she is exterior the soil of origin. But of course of report a somebody fearing persecution on Convention grounds (or needing subsidiary protection) powerfulness good apply for a visa with the intention of leaving the soil of root inwards guild to apply for asylum inwards the soil which issues the visa.

On the facts of the Koushkaki case, it is strking that when Mr. Koushkaki mentioned that his blood brother had obtained asylum inwards Germany, the High German government refused his application for a visa on the grounds that he had non proved his intention to return. Since Mr. Koushkaki powerfulness hold upward assumed to receive got had life experiences comparable to his brother's, the national government powerfulness good receive got feared that he intended to apply for asylum inwards Germany. (Incidentally, the Dublin rules would receive got allocated Federal Republic of Federal Republic of Germany responsibleness for his claim, if the High German government had given him a visa).

Can potential asylum-seekers rely on this ruling to insist on the right to a Schengen visa? The telephone commutation occupation is that they do non receive got an intention to exit the soil which powerfulness number the visa to them. They would demand to offering plenty evidence that they do receive got such an intention to dispel whatsoever reasonable doubts of the national authorities. While such evidence powerfulness non hold upward offered honestly, Article 31 of the Geneva Convention implicitly makes clear that the demand to flee persecution justifies breaches of immigration law.

While Article 21(1) of the visa code refers to a demand to create upward one's heed whether an applicant presents a 'risk of illegal immigration', this clause should non hold upward used against potential asylum-seekers, since they receive got the right to remain inwards the territory (subject to the weather inwards the asylum procedures Directive), too the case-law of the CJEU on the Returns Directive confirms that they cannot hold upward considered to hold upward irregular migrants.

Potential asylum-seekers would also receive got to run across the other relevant conditions, such equally belongings a valid move document, having subsistence, too non beingness listed on the Schengen Information System. For many, these weather volition hold upward difficult to fulfil.

However, as suggested above, following Koushkaki it could hold upward argued that Member US are obliged to number a visa with limited territorial validity (ie valid inwards i Member State only: this is adept plenty for an asylum-seeker to flee persecution, provided that the Member State concerned complies with its obligations towards asylum-seekers).  Such visas 'shall' hold upward issued if the Member State 'considers it necessary on humanitarian grounds, for reasons of national involvement or because of international obligations', to derogate from the rules inwards the Schengen Borders Code (among other things). Arguably the binding nature of the relevant international obligations, along with the European Union Charter of Fundamental Rights too the purpose of the discussion 'shall', override the discretion suggested past times the words 'consider it necessary'.

If this declaration is correct, too hence the Koushkaki judgment has opened a pregnant scissure inwards the wall of 'Fortress Europe' for would-be asylum-seekers.

Barnard & Peers: chapter 26

Share this post