Opinion of the Advocate General — ECLI:EU:C:2017:93
Date: 2017-02-07
Language of the case: French
Subject matter: Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights;Border checks
Procedure: Preliminary reference - urgent procedure
Origin: Belgium

summary executions and deliberate targeting of [civilians]’. Moreover, with respect to Aleppo, the Commission stated that the intensity of the bombardments and clashes had resulted in countless civilian victims and left more than two million people without water or electricity, in fear of being besieged and subjected, to continuous airstrikes. 147. A few weeks later, the United Nations Security Council stated that it was ‘alarmed by the continued deterioration of the devastating humanitarian situation in Aleppo’, (59) expressed outrage ‘at the unacceptable and escalating level of violence and the killing of … tens of thousands of child[ren]’ and ‘gravely distressed by the continued deterioration of the devastating humanitarian situation in Syria, and by the [number of persons] needing urgent humanitarian assistance, including medical assistance’. (60) The United Nations Security Council also stressed the need to ‘ceas[e] all attacks against civilians and civilian objects, including those involving attacks on schools, medical facilities, … indiscriminate shelling by mortars, car bombs, suicide attacks … the use of starvation of civilians as a method of combat, including by the besiegement of populated areas, and the widespread use of torture, ill-treatment, arbitrary executions, … enforced disappearances, sexual … violence, as well as all grave violations and abuses committed against children’. (61) 148. Next, at the time that the Belgian State was due to adopt the contested decision, the Belgian authorities were not only informed about the general situation of the extreme vulnerability of Syrian civilians described above, but could not reasonably have been unaware, as is apparent from the material in the file of the main proceedings, of the specific circumstances of the applicants in the main proceedings. It is common ground that the five applicants in the main proceedings (a) were all resident in the besieged city of Aleppo, (62) three of them being young children, the eldest sibling being only 10 years old, (b) that they are of Christian faith, the children having been baptised as Orthodox Christians, and that, accordingly, the applicants belong to a group of persons in relation to whom there are substantial grounds to believe that it is targeted and has been targeted, if not persecuted, by various armed groups in Syria (63) and (c) that they submitted documents in support of their visa application, which were not disputed before the referring court, specifically substantiating the fact that the family had been the victim of various acts of violence by armed groups operating in Aleppo, in particular that the father of the family was taken hostage by one of those armed groups, during which he was beaten and tortured, before finally being released following payment of a ransom. 149. In the light of that evidence, it cannot be denied that the applicants in the main proceedings were exposed in Syria, at the very least, to genuine risks of inhuman treatment of an extremely grave nature clearly falling within the scope of the prohibition laid down in Article 4 of the Charter. 150. Moreover, in adopting the contested decisions, the Belgian State knew or ought to have known that the foreseeable consequences of that decision left the applicants in the main proceedings only the choice between exposing themselves to the dangers, suffering and inhuman treatment mentioned previously, liable even to result in their deaths, or to submit themselves to other types of equivalent treatment, in attempting to reach illegally the territory of a Member State in order to lodge their application for international protection there. It is very well documented that Syrian nationals, including those seeking international protection, who manage, in desperation, to somehow negotiate, (64) with the help of unscrupulous traffickers, a sea crossing to the European Union risking their lives in the process are — if they do not drown or die from other causes — beaten, attacked and/or abandoned in drifting makeshift vessels (65) until, in the best-case scenario, they are rescued by coastguards or by NGOs which have chartered search and rescue vessels. (66) 151. There can be no doubt, in my view, that such treatment is prohibited by Article 4 of the Charter. 152. Accordingly, there were serious grounds to believe that the refusal by the Belgian State to issue a visa with limited territorial validity would directly encourage the applicants in the main proceedings, unless they stayed in Syria, to have to expose themselves, in desperation, to physical and mental pain, risking their lives in doing so, in order to exercise the right to international protection to which they lay claim. (67) That a Member State could, in such circumstances, refrain from taking the measures within its power to avoid exposing third-country nationals seeking international protection to such risks also constitutes, in my view, an infringement of Article 4 of the Charter. 153. In the circumstances of the main proceedings, that assessment does not appear to me to be in any way undermined by the argument that the applicants in the main proceedings could have found refuge in neighbouring Lebanon, where the consulate of the Kingdom of Belgium with which they sought the application of Article 25(1) of the Visa Code is located. 154. It is true that, since the beginning of the conflict in Syria, over one million Syrians have been registered by the United Nations High Commissioner for Refugees (HCR) as refugees in Lebanon. (68) However, in May 2015, the Lebanese Government notified the HCR that registration of new Syrian refugees would be suspended. (69) That suspension was still applicable at the time that the Belgian State was due to adopt the contested decisions, as the applicants in the main proceedings pointed out before the referring court. Lebanon is not a contracting party to the Geneva Convention (70) and new, unregistered refugees, deprived of the possibility of obtaining the status of asylum seekers in that country, ran the risk of being arrested and detained for staying illegally, (71) as the applicants in the main proceedings submitted indeed before both the referring court and the Court. That group of persons, to which the applicants in the main proceedings were thus likely to belong if they went to Lebanon in breach of Lebanese legislation, are therefore in a more precarious situation than registered refugees, who very often live in basic shelter, such as garages or mere tents, in a country where there is no official camp, (72) and whose access to food and water, healthcare and education is extremely difficult if not precarious. (73) Moreover, the international press and several NGOs reported during 2016 repeated acts of violence against Syrian refugees resulting notably from the growing tensions with the local population, particularly in the poorest regions of the country. (74) Certain human rights observers even stated in 2016 that the situation in all the host countries neighbouring Syria had become so untenable that many Syrians were returning to Syria, risking their lives in doing so, including in areas where fighting continued to rage. (75) Lastly, as regards particularly the situation of Christians, like the applicants in the main proceedings, representatives of intergovernmental organisations and NGOs echoed the fears of ostracism, intimidation and serious violence as regards that religious minority both in Lebanon and other neighbouring countries, such as Jordan, including even in refugee camps. (76) 155. In the light of those circumstances, which the Belgian State knew or ought to have known about when it adopted the contested decisions, that Member State could not therefore invoke a hypothetical argument that it was under no obligation to issue a visa with limited territorial validity on the ground that the applicants in the main proceedings could have exercised their right to seek and obtain international protection in Lebanon. It is clearly apparent in my view that such a right could not be exercised specifically and actually in that country by Syrians who fled Syria after May 2015. Accordingly, even if the Belgian State had pleaded that it was possible for the applicants in the main proceedings to go to Lebanon, I consider that, in the light of the available information on the situation in that country, the Belgian State would not have been entitled to conclude that it was exempt from satisfying its positive obligation under Article 4 of the Charter. (77) 156. At the time of adopting the contested decisions, the Belgian State should therefore have reached the conclusion that, by refusing to recognise the need to issue a visa with limited territorial validity on the humanitarian grounds invoked by the applicants in the main proceedings and by applying the grounds for refusal listed in Article 32(1) of the Visa Code, there were very substantial grounds to believe that it was exposing the applicants in the main proceedings to a genuine risk of suffering treatment prohibited by Article 4 of the Charter. 157. Frankly, what alternatives did the applicants in the main proceedings have? Stay in Syria? Out of the question. Put themselves at the mercy of unscrupulous smugglers, risking their lives in doing so, in order to attempt to reach Italy or Greece? Intolerable. Resign themselves to becoming illegal refugees in Lebanon, with no prospect of international protection, even running the risk of being returned to Syria? Unacceptable. 158. To paraphrase the European Court of Human Rights, the purpose of the Charter is to protect rights which are not theoretical or illusory, but real and effective. (78) 159. It cannot be denied, in the light of the information in the file in the main proceedings, that the applicants in the main proceedings would have obtained the international protection that they seek if they had succeeded in overcoming the obstacles of an illegal journey, which would have been as dangerous as it was exhausting, and managed in spite of everything to reach Belgium. (79) The refusal to issue the visa sought thus has the direct consequence of encouraging the applicants in the main proceedings to put their lives at risk, including those of their three young children, to exercise their right to international protection. 160. In view of the Visa Code and the commitments undertaken by the Member States, that consequence cannot be tolerated. At the very least, it is contrary to the right guaranteed by Article 4 of the Charter. (80) 161. In the light of the absolute nature of that right, it is clear that the absence of family links or of any other nature of the applicants in the main proceedings in Belgium is a factor which does not affect the answer to be given to the second question referred. 162. Whilst not ruling out that the refusal of the Belgian authorities to grant the protection sought by the applicants in the main proceedings also infringes the right enshrined in Article 18 of the Charter, I consider, in the light of all the foregoing considerations, that it is not necessary to adjudicate on that question. 163. Accordingly, I propose that the Court answer the second question submitted by the referring court as follows: Article 25(1)(a) of the Visa Code must be interpreted as meaning that, in the light of the circumstances of the main proceedings, the Member State applied to by a third-country national in order to issue that national a visa with limited territorial validity on humanitarian grounds is required to issue such a visa if there are substantial grounds to believe that the refusal to issue that document will have the direct consequence of exposing that national to treatment prohibited by Article 4 of the Charter, by depriving that national of a legal route to exercise his right to seek international protection in that Member State. 164. It goes without saying that this proposal has been carefully considered. 165. First of all, it turns out, in my view, to be the only proposal befitting the ‘universal values of the inviolable and inalienable rights of the human person’ (81) on which European construction is founded and which the European Union and its Member States defend and promote, both on their territory and in their relations with third countries. (82) In its case-law, the Court has made a significant contribution to the strengthening of those values, often placing itself in a role of guardian of the fundamental rights of individuals, particularly those of the most vulnerable, including third-country nationals needing international protection. (83) Those values must have meaning, be given concrete expression and guide the application of EU law where the latter provides the conditions to honour those values, as is the case here in respect of Article 25(1)(a) of the Visa Code. In my view, it is the credibility of the Union and of its Member States which is at stake. 166. One thing struck me whilst re-reading the case-law of the European Court of Human Rights for the purposes of dealing with the present case: the findings of that court relating to the situations — always horrible and tragic — in which the liability of a contracting party to the ECHR has been established for failure to fulfil its positive obligation under Article 3 of the ECHR, are systematically findings made ex post, most often where the treatment in question has been fatal for the victims. That is probably connected, at least in part, with the nature of the procedure before the European Court of Human Rights and the need, before a case is referred to it, to exhaust domestic remedies. The fact remains that, in those cases, preventive measures were never adopted and the irreparable was unfortunately committed. 167. On the contrary, in the present case — and this is obviously one of the reasons that led the Court to trigger the urgent preliminary ruling procedure — all hope for the applicants in the main proceedings has not, thus far, been lost. The proposal that I have just submitted to the Court demonstrates indeed that there is a humanitarian path, within the framework of EU law, which requires the Member States to prevent manifest infringements of the absolute rights of persons seeking international protection before it is too late. 168. The Court thus has the opportunity not only to restate, I hope vigorously, respect for the humanitarian values and human rights that the EU and its Member States have committed themselves to honouring, but also, and above all, to offer the applicants in the main proceedings the hope of being spared further suffering and inhuman treatment. 169. That guidance does not mean, to relay the argument of the Belgian State set out in the contested decisions, that the Member States are forced to admit into their territory ‘all persons experiencing a catastrophic situation’, which would amount to authorising the entry of ‘all people from developing countries and those at war or ravaged by natural catastrophes’. 170. It is, on the contrary, and I insist, a matter of honouring, in the noblest sense of that term, on indisputable humanitarian grounds, the obligations which stem from Article 25(1)(a) of the Visa Code and from Article 4 of the Charter, in order to enable the applicants in the main proceedings, including, I recall, three young children, to exercise their right to international protection, failing which they would be directly exposed to treatment prohibited by Article 4 of the Charter, treatment that the Member State in question knew about or ought to have known about when adopting the decisions not to issue the visa applied for. 171. Admittedly, the circle of persons concerned may prove to be wider than that which is currently the case in the practice of the Member States. That argument is however irrelevant in the light of the obligation to respect, in all circumstances, fundamental rights of an absolute nature, including the right enshrined in Article 4 of the Charter. The exceptional nature of a procedure is not, in terms of principles, inconsistent with an influx — even a significant one — of individuals. Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, (84) provides an illustration of this. The mechanism that that directive establishes also constitutes a procedure ‘of exceptional character’ aimed at providing persons fleeing areas of armed conflict or victims of systematic or generalised violations of human rights with immediate and temporary protection in the territory of the Member States. (85) 172. Moreover, the spectre, raised by a large number of the governments which participated at the hearing before the Court, of the Member States’ consular representations being overwhelmed by an uncontrolled flood of applications for humanitarian visas lodged on the basis of the Visa Code must, in my view, be nuanced. Apart from the fact that that argument is clearly not of a legal nature, the practical obstacles to lodging such applications must certainly not be underestimated, even if I not do not condone them. The situation of the applicants in the main proceedings provides a remarkable illustration of this. They were obliged to obtain an appointment at the consulate of the Kingdom of Belgium in Lebanon, a prerequisite for being granted safe passage of 48 hours on the Lebanese territory after May 2015, (86) travel hundreds of kilometres in a country at war and in chaos to arrive in Beirut and present themselves in person at that consulate, in order to satisfy the requirement of the latter (87) and, finally, to return to Syria to wait for the decision of the Belgian authorities! Moreover, although it is highly probable that that the applicants in the main proceedings applied to the consulate of the Kingdom of Belgium in Beirut after becoming aware of the highly-publicised operation during which, in the summer of 2015, several hundred Syrian nationals, of Christian faith and from Aleppo, were issued visas with limited territorial validity by the Belgian authorities, (88) the Belgian Government has not reported a massive influx of applications of that type, overwhelming its diplomatic representations in the States neighbouring Syria, following that operation. 173. Next, the proposal that I made in point 163 of this Opinion is also entirely consistent with the objectives of fighting against the smuggling and trafficking of human beings, the prevention of illegal immigration and organised crime networks. (89) By offering a legal access route to international protection under certain circumstances, under the supervision of the authorities of the Member States, my interpretation of Article 25(1)(a) of the Visa Code makes it possible, at least partially, to prevent persons seeking such protection, including in particular women and children, being snatched and exploited by criminal networks smuggling and trafficking migrants. (90) Conversely, as I have already highlighted, refusing to issue a visa with limited territorial validity in the circumstances of the main proceedings ultimately amounts to directly encouraging the applicants in the main proceedings, in order to be able to claim the right to international protection on the territory of a Member State, to trust their lives with those against whom the EU and its Member States are currently deploying, particularly in the Mediterranean, considerable operational and financial efforts to curb and dismantle criminal activities! 174. Lastly, the interpretation advocated here of Article 25(1)(a) of the Visa Code ensures, all things considered, respect for ‘the principle of solidarity and fair sharing of responsibility … between the Member States’, which must govern all Union policies on border checks, asylum and immigration, in accordance with Article 80 TFEU. (91) In that regard, and to restrict myself to a single point, the objection of the Belgian Government, that to accept that a Member State is required under certain circumstances to issue a visa under Article 25(1)(a) of the Visa Code would amount to authorising a person to choose the Member State in which that person wants his application for protection to be examined, seems to me frankly uncalled for. In extreme conditions such as those that the applicants in the main proceedings have endured, their option to choose is as limited as the option of the Member States of the Mediterranean Basin to turn themselves into landlocked countries. In any event, the Belgian Government’s argument cannot prevail over the absolute nature of the right guaranteed by Article 4 of the Charter and the positive obligation which that article imposes on the Member States. 175. Before concluding, allow me to draw your attention to how much the whole world, in particular here in Europe, was outraged and profoundly moved to see, two years ago, the lifeless body of the young boy Alan, washed up on a beach, after his family had attempted, by means of smugglers and an overcrowded makeshift vessel full of Syrian refugees, to reach, via Turkey, the Greek island of Kos. Of the four family members, only his father survived the capsizing. It is commendable and salutary to be outraged. In the present case, the Court nevertheless has the opportunity to go further, as I invite it to, by enshrining the legal access route to international protection which stems from Article 25(1)(a) of the Visa Code. Make no mistake: it is not because emotion dictates this, but because EU law demands it. Conclusion 176. In the light of all the foregoing considerations, I propose that the Court answer the questions referred by the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) (Belgium) as follows: (1) Article 25(1)(a) of Regulation (EC) No 810/2009 of the Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas must be interpreted as meaning that the expression ‘international obligations’ which appears in the wording of that provision does not cover the Charter of Fundamental Rights of the European Union. When examining, on the basis of Article 25(1)(a) of Regulation No 810/2009, a visa application in support of which humanitarian grounds are invoked, and when adopting a decision in relation to such an application, the Member States must comply with the provisions of the Charter of Fundamental Rights. (2) Article 25(1)(a) of Regulation No 810/2009 must be interpreted as meaning that a Member State applied to by a third-country national in order to issue that national a visa with limited territorial validity on humanitarian grounds is required to issue such a visa if, in the light of the circumstances of the case, there are substantial grounds to believe that a refusal to issue that document will have the direct consequence of exposing that national to treatment prohibited by Article 4 of the Charter of Fundamental Rights, by depriving that national of a legal route to exercise his right to seek international protection in that Member State. The fact that such a national does not have family links or links of another nature with the Member State applied to does not affect that answer. 1 Original language: French. 2 OJ 2009 L 243, p. 1. 3 See Report of the European Parliament on the proposal for a regulation of the European Parliament and of the Council on the Union Code on Visas (COM(2014)164), document A8-0145/2016, of 22 April 2016. 4 In the explanatory statement of the amendments proposed by the Parliament relating to ‘humanitarian visas’, the rapporteur states (p. 100) that he chose ‘a prudent and legally sound approach based on strengthening and developing existing provisions in the [current] text’ of the Visa Code (italics added). 5 OJ 2008 L 218, p. 60. 6 OJ 2013 L 180, p. 60. 7 OJ 2016 L 77, p. 1. 8 See, to that effect, judgment of 10 April 2012, Vo (C‑83/12 PPU, EU:C:2012:202, paragraph 36). 9 The aspect of the Belgian Government’s line of argument concerning the relationship between Articles 25(1) and 32 of the Visa Code will be dealt with in point 111 et seq. of this Opinion. 10 It is not however apparent from the documents in the file whether the applications of the applicants in the main proceedings were deemed admissible ‘by way of derogation’ ‘on humanitarian grounds’, pursuant to Article 19(4) of the Visa Code. 11 On the relationship between those two articles, see point 111 et seq. of this Opinion. 12 See judgments of 8 November 2012, Iida (C‑40/11, EU:C:2012:691, paragraphs 80 and 81), and of 8 May 2013, Ymeraga and Others (C‑87/12, EU:C:2013:291, paragraph 42). 13 Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34). 14 Council Directive of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12). 15 See judgment of 8 May 2013, Ymeraga and Others (C‑87/12, EU:C:2013:291, paragraphs 24 to 33), in which the Court found, first, that Directive 2003/86 was not applicable to the members of Mr Ymeraga’s family on the basis that Mr Ymeraga was a Luxembourg national and, second, that Directive 2004/38 was not applicable to them given that Mr Ymeraga had not exercised his right to freedom of movement. See also, judgment of 8 November 2012, Iida (C‑40/11, EU:C:2012:691, paragraphs 61 and 65), in which the Court held that Directive 2004/83, relied on by Mr Iida in order to obtain a ‘residence card of a family member of a Union citizen’ on the basis of German law, did not apply to his situation, since he was neither accompanying nor joining the member of his family, a Union citizen, who exercised her right of freedom of movement. 16 Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81, p. 1). 17 In accordance with Article 1(1) and the list set out in Annex I to Regulation No 539/2001. 18 See judgment of 19 December 2013, Koushkaki (C‑84/12, EU:C:2013:862, paragraph 65). 19 In that regard, I would merely observe that, contrary to what that government appears to suggest, the applicants in the main proceedings did not lodge requests for diplomatic asylum, which, as provided in Article 3(2) of Directive 2013/32, fall outside the scope of that directive and that of the Common European Asylum System. By contrast, those applicants claim infringement of their right to asylum, as guaranteed by Article 18 of the Charter, on account of the Belgian authorities’ refusal to grant them entry, a refusal which deprives them of a legal access route to the international protection granted under that system. It cannot therefore be ruled out that the situation of the applicants in the main proceedings may be regarded as being connected with EU law also on account of their status of potential beneficiaries of such protection. 20 See, to that effect, judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 21). 21 In accordance with The Hague Programme: strengthening freedom, security and justice in the European Union (OJ 2005 C 53, p. 1). See recital 3 of the Visa Code. 22 See point 59 above. 23 See to that effect, also, judgment of 26 September 2013, IBV & Cie (C‑195/12, EU:C:2013:598, paragraphs 48, 49 and 61). 24 Regarding the scope of the harmonisation pursued with the Visa Code, see judgments of 10 April 2012, Vo (C‑83/12 PPU, EU:C:2012:202, paragraph 42), and of 19 December 2013, Koushkaki (C‑84/12, EU:C:2013:862, paragraphs 49 and 50). 25 As provided in recital 29 of the Visa Code, that code ‘respects fundamental rights and observes the principles recognised in particular by the [ECHR] and by the Charter’. 26 Consolidated Version based on the Commission’s Decision of 19 March 2010, establishing the Handbook for the processing of visa applications and the modification of issued visas (C(2010) 1620 final) and the Commission’s Implementing Decisions of 4 August 2011, (C(2011) 5501 final) and of 29 April 2014, C(2014) 2727. That manual contains instructions (guidelines, best practices and recommendations) for the performance of tasks of Member States’ consular staff and staff of other authorities responsible for examining and taking decisions on visa applications, as well as tasks of staff of the authorities responsible for modifying issued visas. 27 See judgments of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 21), and of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281, paragraph 34). 28 It goes without saying that, if such parallelism is respected, there can be no question of the Charter creating new EU powers or a modification of the existing powers, for the purposes of Article 51(2) of the Charter. 29 On the interpretation of Article 1 of the ECHR, see, inter alia, ECtHR, 12 December 2001, Bankovic and Others v. Belgium and Others (CE:ECHR:2001:1212DEC005220799, paragraphs 61 and 67), ECtHR, 29 March 2010, Medvedyev and Others v. France and Spain (CE:ECHR:2010:00329JUD000339403, paragraphs 63 and 64), ECtHR, 7 July 2011, Al-Skeini and Others v. United Kingdom (CE:ECHR:2011:0707JUD005572107), and ECtHR, 23 February 2012 (version corrected on 16 November 2016), Hirsi Jamaa and Others v. Italy (CE:ECHR:2012:0223JUD002776509, paragraph 72). 30 Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17). In accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, those explanations must be taken into consideration for the purpose of interpreting the Charter. See, also, judgment of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84, paragraph 47 and the case-law cited). 31 The explanations relating to Article 52(3) of the Charter specify that ‘the legislator, in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR’. 32 The explanations relating to Article 52(3) of the Charter specify, in this respect, that the accepted limitations to the rights provided for by the ECHR ‘are … made applicable for the rights covered by this paragraph, without thereby adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union’. 33 That question will be examined in the context of the analysis of the second question referred. 34 The Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) states that it is apparent from the case-law of the European Court of Human Rights that the concept of ‘jurisdiction’ for the purposes of Article 1 of the ECHR is principally territorial, the scope of that convention, save in exceptional circumstances, being limited ratione loci to the territories of the Contracting States (see, inter alia, ECtHR, 12 December 2001, Bankovic and Others v. Belgium and Others (CE:ECHR:2001:1212DEC005220799, paragraphs 61 and 67), ECtHR, 29 March 2010, Medvedyev and Others v. France and Spain (CE:ECHR:2010:00329JUD000339403, paragraphs 63 and 64), ECtHR, 7 July 2011, Al-Skeini and Others v. United Kingdom (CE:ECHR:2011:0707JUD005572107), and ECtHR, 23 February 2012 (version corrected on 16 November 2016), Hirsi Jamaa v. Italy (CE:ECHR:2012:0223JUD002776509, paragraph 72)). A territoriality condition also allegedly applies, according to the referring court, to Article 33 of the Geneva Convention. 35 It is entirely logical that Article 25(1)(a)(i) of the Visa Code does not refer to Article 6(1)(b) of the Schengen Borders Code, which requires third-country nationals to be in possession of a valid visa. 36 See points 49 to 51 of this Opinion. 37 Cited in footnote 26, point 9.1.2, p. 80. 38 See judgment of 19 December 2013, Koushkaki (C‑84/12, EU:C:2013:862, paragraph 37). 39 See, inter alia, the versions of that article in German (‘wird … erteilt’), Spanish (‘se expedirá’), Italian (‘sono rilasciati’), Portuguese (‘é emitido’), Finnish (‘myönnetään’), Swedish (‘ska … utfärdas’) and French (‘est délivré’). 40 See points 82 and 83 of this Opinion. 41 I would point out that, in accordance with Article 25(2) of the Visa Code, that visa may also, exceptionally, be recognised as valid for the territory of more than one Member State. 42 The absolute nature of the right enshrined in Article 4 of the Charter, which is closely connected to that of respect for human dignity, has been noted by the Court. See, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 85), and of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630, paragraph 56). 43 See, to that effect, the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) and judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 86). 44 Judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 87). 45 See, judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 87), and, by analogy ECtHR, 13 December 2012, El-Masri v. The former Yugoslav Republic of Macedonia (CE:ECHR:2012:1213JUD003963009, paragraph 195 and the case-law cited). 46 See, by analogy ECtHR, 23 February 2012 (version corrected on 16 November 2016), Hirsi Jamaa and Others v. Italy (CE:ECHR:2012:0223JUD002776509, paragraph 122). 47 See inter alia, by analogy ECtHR, 28 March 2000, Mahmut Kaya v. Turkey (CE:ECHR:2000:0328JUD002253593, paragraph 115), ECtHR, 13 December 2012, El-Masri v. The former Yugoslav Republic of Macedonia, (CE:ECHR:2012:1213JUD003963009, paragraph 198), ECtHR, 25 April 2013, Savriddin Dzhurayev v. Russia (CE:ECHR:2013:0425JUD007138610, paragraph 179), and ECtHR, 23 February 2016, Nasr and Ghali v. Italy (CE:ECHR:2016:0223JUD004488309, paragraph 283). 48 See inter alia, by analogy, ECtHR, 28 March 2000, Mahmut Kaya v. Turkey (CE:ECHR:2000:0328JUD002253593, paragraph 115), ECtHR, 13 December 2012, El-Masri v. The former Yugoslav Republic of Macedonia (CE:ECHR:2012:1213JUD003963009, paragraph 198), and ECtHR, 23 February 2016, Nasr and Ghali v. Italy (CE:ECHR:2016:0223JUD004488309, paragraph 283). 49 See, inter alia, to that effect ECtHR, 13 December 2012, El-Masri v. The former Yugoslav Republic of Macedonia (CE:ECHR:2012:1213JUD003963009, paragraph 213). See, also ECtHR, 23 February 2016, Nasr and Ghali v. Italy (CE:ECHR:2016:0223JUD004488309, paragraph 289). 50 See inter alia, to that effect, ECtHR, 13 December 2012, El-Masri v. The former Yugoslav Republic of Macedonia (CE:ECHR:2012:1213JUD003963009, paragraph 213), and ECtHR, 23 February 2016, Nasr and Ghali v. Italy (CE:ECHR:2016:0223JUD004488309, paragraph 289). 51 See, by analogy, to that effect, ECtHR, 13 December 2012, El-Masri v. The former Yugoslav Republic of Macedonia, (CE:ECHR:2012:1213JUD003963009, paragraph 212 and the case-law cited). 52 See, to that effect, by analogy, ECtHR, 13 December 2012, El-Masri v. The former Yugoslav Republic of Macedonia (CE:ECHR:2012:1213JUD003963009, paragraph 214). 53 See, inter alia, by analogy to that effect, ECtHR, 28 February 2008, Saadi v. Italy (CE:ECHR:2008:0228JUD003720106, paragraphs 131 and 143), ECtHR, 17 July 2008, M.S.S. v. Belgium and Greece, (CE:ECHR:2011:0121JUD003069609, paragraphs 227 and 255), ECtHR, 23 February 2012 (version corrected on 16 November 2016), Hirsi Jamaa and Others v. Italy (CE:ECHR:2012:0223JUD002776509, paragraphs 116 and 118), and ECtHR, 23 August 2016, J.K. and Others v. Sweden (CE:ECHR:2016:0823JUD005916612, paragraph 90). In another context, see also, to that effect, judgment of 6 September 2016, Petruhhin (C‑182/15, EU:C:2016:630, paragraph 59 and the case-law cited). 54 See, by analogy, ECtHR, 3 July 2014, Georgia v. Russia (I), (CE:ECHR:2014:0703JUD001325507, paragraph 138), and ECtHR, 23 August 2016, J.K. and Others v. Sweden (CE:ECHR:2016:0823JUD005916612, paragraphs 88 and 90). 55 See, by analogy, ECtHR, 23 August 2016, J.K. and Others v. Sweden (CE:ECHR:2016:0823JUD005916612, paragraph 89). 56 In the judgment of 21 January 2011, M.S.S. v. Belgium and Greece (CE:ECHR:2011:0121JUD003069609, paragraph 366), the European Court of Human Rights held that the Kingdom of Belgium had infringed the positive obligation laid down in Article 3 of the ECHR after finding that, at the time of adopting the measure in question in that case, the ‘facts were well known … and were freely ascertainable from a wide number of sources’. 57 See Conseil du contentieux des étrangers (Council for asylum and immigration proceedings), judgment No 175973 du 7 October 2016, X/III v. the Belgian State, p. 8. See, also Conseil du contentieux des étrangers (Council for asylum and immigration proceedings), judgment No 176363 of 14 October 2016, X/I v. the Belgian State, p. 8. 58 See European Commission, Humanitarian Aid and Civil Protection, ECHO Factsheet, Syria crisis, September 2016, available at http://ec.europa.eu/echo/files/aid/countries/factsheets/syria_en.pdf#view=fit. 59 Resolution 2328 (2016) adopted by the United Nations Security Council on 19 December 2016. 60 Resolution 2332 (2016) adopted by the United Nations Security Council on 21 December 2016. 61 Resolution 2332 (2016) adopted by the United Nations Security Council on 21 December 2016. 62 According to information published on 20 October 2016 by the French section of Amnesty International, between 19 September and 16 October 2016, Alep was subjected to at least 600 airstrikes, during which hundreds of civilians were killed, thousands were injured and tens of key infrastructure items were destroyed or damaged: See, Amnesty International: https://www.amnesty.fr/conflits-armes-et-populations/actualites/alep--de-nouvelles-preuves-de-crimes-de-guerre 63 See, among the various sources, Rand, S., ‘Syria: Church on Its Knees’, Open Doors Advocacy Report, May 2012, available at https://www.opendoorsuk.org/pray/documents/Syria_Advocacy_Report.pdf, Eghdamian, K., ‘Religious Plurality and the Politics of Representation in Refugee Camps: Accounting for the Lived Experiences of Syrian Refugees Living in Zaatari’, Oxford Monitor of Forced Migration, No 1, 2014, p. 38, and the comments of the representative of the United Nations High Commissioner for Refugees in April 2016: http://www.thewhig.com/2016/04/03/syrian-christian-refugees-persecuted. In the chapter relating to Syria of its 2016 annual report, the United States Commission for International Religious Freedom (USCIRF) recalls that it found in December 2015 that the armed group Daesch/Islamic State was committing a genocide against several religious minorities, including Syrian Christians: See http://www.uscirf.gov/sites/default/files/USCIRF_AR_2016_Tier1_2_Syria.pdf 64 According to a 2016 study of the International Organisation for Migration (IOM), regarding over 6000 Syrian and Iraqi nationals who had arrived in Europe, the price of passage to Europe ranged between approximately USD 1000 and USD 5000 per person: see http://migration.iom.int/docs/Analysis_Flow_Monitoring_Surveys_in_the_Mediterranean_and_Beyond_8_December_2016.pdf 65 Often mere rubber dinghies. 66 According to the NGO Médecins Sans Frontières (MSF), almost 5 000 men, women and children died in 2016 while trying to cross the Mediterranean Sea. Those data are mere estimates since numerous bodies have never been recovered. MSF chartered three vessels in 2015 and 2016 for maritime search and rescue missions and most of those saved came from Syria: see http://www.msf.fr/actualite/dossiers/operations-recherche-et-sauvetage-migrants-en-mediterranee. According to the UN High Commissioner for Refugees, between January and November 2016, over 350 000 persons arrived by sea in Greece and Italy, most of them Syrian nationals. Estimates of the number of deaths and disappearances in the Mediterranean Sea are approximately the same as those of MSF. See the documents accessible at: http://data.unhcr.org/mediterranean/regional.php. In its resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration, the European Parliament observed that ‘criminal networks and smugglers exploit the desperation of people trying to enter the Union while fleeing persecution or war’, ‘safe and legal routes for refugees to access the Union are limited, and many continue to take the risk of embarking on dangerous routes’: see http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2016-0102+0+DOC+XML+V0//FR 67 In a report of 8 May 2015 (Doc. A/HRC/29/36, paragraph 34), the United Nations Special Rapporteur on the human rights of migrants stated that the refusal to ensure legal entry into the European Union constituted in itself a ‘key driver’ of the ‘root causes’ of individuals seeking international protection using smugglers to escape a humanitarian crisis: see www.ohchr.org/EN/HRBodies/HRC/.../A_HRC_29_36_FRE.DOCX. 68 See https://data.unhcr.org/syrianrefugees/country.php?id= 122. 69 See HCR, Vulnerability Assessment of Syrian Refugees in Lebanon, 2016, p. 13. Those measures are expressly intended to reduce the flow of refugees to Lebanon: see http://www.lemonde.fr/proche-orient/article/2015/01/05/le-liban-regule-l-entree-des-refugies-Syrian-en-leur-imposant-d-obtenir-un-visa_4549504_3218.html. 70 So far as this point is relevant, I would point out that, even if a third State has ratified the Geneva Convention, that would not mean that there is a conclusive presumption that that country observes that convention and fundamental rights as regards individuals seeking international protection and asylum seekers: see judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 102 to 104). 71 See, inter alia, Human Rights Watch, World Report, 2016, Lebanon, https://www.hrw.org/world-report/2016/country-chapters/lebanon. See, also, Janmyr, M., ‘Precarity in Exile: the Legal Status of Syrian Refugees in Lebanon’, Refugee Survey Quaterly, No 4, 2016, pp. 58 to 78. 72 See European Commission, Humanitarian Aid and Civil Protection, ECHO Factsheet, Syria crisis, September 2016, available at http://ec.europa.eu/echo/files/aid/countries/factsheets/syria_en.pdf#view=fit. 73 According to the HCR study, Vulnerability Assessment of Syrian Refugees in Lebanon, pp. 3 and 35, 42% of families have shelter that does not meet minimum humanitarian standards, while nearly half of children between aged 6 and 14 do not attend school and suffer numerous illnesses and infections. Only 15% of Syrian children in Lebanon receive enough food to meet the World Health Organisation’s standards. 74 See, inter alia, http://observers.france24.com/fr/20160708-tensions-latentes-entre-libanais-syriens-camp-refugie-incendie and http://www.al-monitor.com/pulse/originals/2016/09/lebanon-plan-return-syrian-refugees.html. See, also, Balouziyeh, J.M.B., Hope and Future. The Story of Syrian Refugees, Time Books, 2016, pp. 56 and 57. 75 See Amnesty International, ‘Five Years of Crisis, Five Million Syrian Refugees’, 30 March 2016, https://www/amnesty.org/en/latest/news/2016/03. 76 Eghdamian, K., ‘Religious Plurality and the Politics of Representation in Refugee Camps: Accounting for the Lived Experiences of Syrian Refugees Living in Zaatari’, Oxford Monitor of Forced Migration, No 1, 2014, p. 38, and Johnston, G., ‘Syrian Christian refugees persecuted’, 3 April 2016, http://www.thewhig.com/2016/04/03/syrian-christian-refugees-persecuted. 77 See, to that effect, ECtHR, 23 February 2012 (version corrected on 16 November 2016), Hirsi Jamaa and Others v. Italy (CE:ECHR:2012:0223JUD002776509, paragraphs 146 to 158), establishing the liability of the Italian State under Article 3 of the ECHR for having failed to ensure that nationals expelled to an intermediary third county, which has not ratified the Geneva Convention, enjoyed sufficient guarantees to avoid the risk that they would be arbitrarily returned to their countries of origin, having regard in particular to the fact that there was no asylum procedure in the intermediary third county and that it was impossible to have the status of refugee granted by the HCR recognised by the authorities of that country. 78 See, inter alia, recent case-law recalling this, ECtHR, 1 June 2010 (version corrected on 3 June 2010), Gäfgen v. Germany (CE:ECHR:2010:0601JUD002297805, paragraph 123), and ECtHR, 26 April 2016, Murray v. Netherlands (CE:ECHR:2016:0426JUD001051110, paragraph 104). 79 Relying on information from the Commissariat général aux réfugiés et aux apatrides (Commissioner General for Refugees and Stateless Persons) in Belgium, the applicants in the main proceedings claimed before the referring court, without being contradicted by the Belgian State, that, in 2015, nearly 98% of the decisions of the Commissariat général aux réfugiés et aux apatrides resulted in the granting of international protection. It appears that the vast majority arrived illegally. 80 See, to that effect, by analogy, the concurring opinion of Judge Pinto De Albuquerque delivered in the judgment of the ECtHR, 23 February 2012 (version corrected on 16 November 2016), Hirsi Jamaa and Others v. Italy (CE:ECHR:2012:0223JUD002776509, paragraph 73). 81 Preamble to the EU Treaty. 82 I would point out that, as provided in Article 3(1) and (5) TEU ‘the Union's aim is to promote peace [and] its values …’, and that it ‘uphold[s] and promote[s] its values’, ‘in its relations with the wider world’, by contributing to ‘the protection of human rights, in particular the rights of the child …’ (italics added). As provided in Article 4 TEU, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties and are to refrain from any measure which could jeopardise the attainment of the Union’s objectives. 83 See, in particular, judgment of 17 February 2009, Elgafaji (C‑465/07, EU:C:2009:94), as regards access to subsidiary protection of a national from a country where an internal armed conflict is raging which generates indiscriminate violence, judgments of 5 September 2012, Y and Z (C‑71/11 and C‑99/11, EU:C:2012:518), and of 7 November 2013, X and Others (C‑199/12 to C‑201/12, EU:C:2013:720), concerning access to refugee status for third-country nationals in relation to whom it is established that the return to their country of origin will expose them to a genuine risk of persecution because of their religious practice or their homosexuality. 84 OJ 2001 L 212, p. 12. 85 The fact that the procedure provided for in Directive 2001/55 has not been triggered for Syrian nationals, however surprising that may seem, is not decisive in terms of the legal argument that has just been set out. 86 On those conditions, see, inter alia, https://www.refugees-lebanon.org/en/news/35/qa-on-new-entry--renewal-procedures-for-syrians-in-lebanon 87 It is apparent from the material in the file that the initial application made on behalf of the applicants in the main proceedings by their lawyer with the consulate of the Kingdom of Belgium in Lebanon was considered inadmissible to the extent that the applicants in the main proceedings had not travelled in person to that consulate. 88 On that operation, see, inter alia, http://www.lesoir.be/930953/article/actualite/ belgique/2015-07-08/belgique-secouru-244-chretiens-alep and http://www.myria.be/fr/donnees-sur-la-migration/asile-et-protection-internationale/visas-humanitaires 89 Those objectives appear in Articles 79 and 83 TFEU, respectively. 90 In its communication of 10 February 2016 to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration (COM(2016) 85 final), the Commission states (p. 2) that ‘we must move beyond dealing with the consequences of unmanaged and irregular flows of persons, to real preparedness to manage such flows and towards managed and legal means of entry [into the European Union] for those in need of protection …’. Similarly, in its resolution of 12 April 2016 (point R) on the situation in the Mediterranean and the need for a holistic EU approach to migration, the Parliament specifically highlights the fact that ensuring that asylum seekers and refugees are able to use ‘safe and legal routes’ to access the Union may enable the Union and the Member States to ‘undermine the business model of the smugglers’. See, to that effect, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2016-0102+0+DOC+XML+V0//EN. 91 See judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 93).