M.N. and Others v Belgium: no ECHR protection from refoulement by issuing visas

 With its inadmissibility decision in M.N. and Others v Belgium delivered on 5 May 2020, the Grand Chamber of the ECtHR made it clear that individuals who apply for visas at embassies with the intention to seek protection, do not fall within the jurisdiction of the ECHR State Parties in the sense of Article 1 ECHR. As a consequence, the protection from non-refoulement under Article 3 cannot be triggered.  This is a decision preceded by the CJEU judgment in X. and X. v Belgium that had a similar negative result, but on different grounds. As opposed to the ECHR, the EU Charter arguably has no jurisdictional threshold, but the Charter’s triggering does require that the EU member state implements EU law. This condition was not satisfied since CJEU found that an application for a visa on humanitarian grounds was not within the scope of EU. With M.N. and Others v Belgium it became clear that neither is it within the scope of Council of Europe human rights law, since the jurisdiction threshold cannot be met and the affected individuals cannot be thus constituted as holders of rights under Article 3 ECHR.

The applicants in M.N. and Others v Belgium were a married couple and their two minor children, all Syrian nationals, who travelled to the Belgium embassy in Beirut to submit applications for visa with limited territorial validity on the basis of Article 25 of the EU Visa Code. These were refused since the applicants had the intention to lodge asylum applications on arrival and, as the national administrative body reasoned, they could accordingly not make use of this type of visa. There were multiple appeals at national level, some of which successful for the applicants, including a judgment ordering the Belgium authorities to issue visas. This judgment, however, could not be enforced by the applicants.

The applicants complained to the Strasbourg Court that the visa refusal has exposed them to a situation incompatible with Article 3 ECHR. They also argued that Belgium was in violation of Article 6 (the right to fair trial) since they could not pursue the execution of the national court’s judgment that instructed Belgium to actually issue them with visas. Not surprisingly, the Grand Chamber found that Article 6 was not applicable since issues of entry, residence and removal of aliens, as ‘every other decision relating to immigration’ do not engage civil rights within the meaning of Article 6 (para 137). This has been the established practice of the Court. 

M.N. and Others v Belgium, however, did offer the Court the first opportunity to rule on the relevance of Article 3 and the therein implied non-refoulement obligation, to visa applications at embassies. Could the ECtHR, however, expand the extraterritorial reach of the non-refoulement obligation to such an extent, given the strong opposition by states (many of whom submitted third-party comments), the explicit rejection by states to accept such an obligation as a matter of European law and the X. and X. v Belgium judgment (where, as argued by Spijkerboer, as a matter of formal legal argumentation the CJEU could have easier reached a different conclusion under EU law)? In this sense, the outcome could be assessed as expected (see also Baumgärtel who also assesses it as expected).

Once triggered, the non-refoulement obligation does imply a whole set of procedural guarantees (the issuing of humanitarian visas raises a gamut of legal and practical problems.). In this sense, the jurisdictional hurdle posed by Article 1 ECHR was the way to avoid ‘passing the boundary of material justice’ (see Noll). I would like to focus on two aspects of the ECtHR’s assessment as to the issue of jurisdiction in M.N. and Others v Belgium: the first one concerns ‘public powers’ and the second one concerns ‘actions and omissions of diplomatic and consular officials’.

‘Public powers’

In Al-Skeni and Other v United Kingdom the Court held that it has recognized:

[…] the exercise of extraterritorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government. Thus, where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial function on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State. (para 135)

Uncertainty has persisted whether the exercise of ‘public powers’ is a separate and independent basis for jurisdiction under Article 1 (i.e. whether it is an autonomous model). Different interpretations have emerged. Besson, for example, considers that the ‘public power’ requirement is one of the three constitutive elements of jurisdiction in all models (including the personal model and the spatial model). This relates to her argument that the jurisdictional clause in Article 1 ECHR ‘conditions the applicability of those rights and duties on political and legal circumstances where a certain relationship exists between rights-holder and state parties’. The position that the exercise of ‘public powers’ is a necessary constitutive element in the spatial model of extraterritorial jurisdiction, is supported by Bankovic and Others v. Belgium and Others (para 71). Therein the Court reasoned that through effective control over an area and ‘its inhabitants’, the state exercises ‘public powers’, which in its entirety amounts to jurisdiction in the sense of Article 1 ECHR. In contrast, Al-Skeini can support an argument that the ‘public powers’ requirement is relevant to the personal model of extraterritorial jurisdiction (see Milanovic). In the reasoning to the particular facts in Al-Skeini (para 149), the exercise of ‘public powers’ appears to be an additional requirement that needs to be fulfilled for triggering the personal model. Overall, the case law pertaining to ‘public powers’ has been limited and many questions have remained unresolved, including the relevance of the elements of spatial and personal control and their interaction.

What contribution has M.N. and Others v Belgium made for addressing this uncertainty? First, the Court openly observed that ‘in ruling on the applicant’s visa applications, the Belgium authorities took decisions concerning the conditions for entry to Belgium “territory” [it is hard to understand why this word is in inverted commas] and, in so doing, exercised a public power.’ (para 112) However, this could not be enough for passing the jurisdictional threshold (even though the requirements in the above cited para 135 from Al-Skeini, i.e. consent of the territorial state, an agreement and exclusive attribution, will likely be fulfilled in the case of embassies). If it were, as the Court continued to reason in para 112, this would lead to a situation where decisions taken at national level that have an impact on persons abroad, bring these persons within the state jurisdiction. This is a situation that the Court cannot accept.

The reasoning in the part of the judgment where the ECtHR recapitulated general principles regarding jurisdiction, does not seem to support an understanding that the ‘public powers’ can be a separate model. Rather, the Court assumes that since a state had control over an area, it exercised public powers: ‘[…] a State was exercising its jurisdiction extraterritorially, when, in an area outside its national territory, it exercised public powers such as authority and responsibility in respect of the maintenance of security.’ (para 104) Somehow inconsistently, this statement is followed by citation to cases, like X. and Y. v Switzerland and Drozd and Janousek v France and Spain where no issue of control over an area arise, and like Al-Skeni and Others where the core issue was arguably control over the persons.

In sum, the role of ‘public powers’ continues to be unclear for triggering the jurisdiction threshold. Based on M.N. and Others v Belgium, it seems though that it cannot be an independent model without any additional elements of personal or territorial physical control.   

‘actions and omissions of diplomatic and consular officials’

In Al Skeini, the Court explained that ‘it is clear that acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others’ (para 134). M.N. and Others v Belgium confirmed this, but it also introduced a distinction and an important clarification in this respect (para 106). The distinction is between ‘State’s nationals or their property’, on the one hand, and ‘certain persons’ over whom a State exercises physical power and control, on the other. As the Court highlighted, the applicants did not belong to the first group (i.e. they were not Belgium nationals) (para 118). Neither did ‘the diplomatic agents exercised de facto control’ over them (para 118), which ultimately made impossible for jurisdiction to arise from the actions or omissions of Belgium diplomatic or consular officials. The mere ‘administrative control’ of Belgium over its embassies was found insufficient (para 119).

The mere fact that the applicants brought proceedings at domestic level to ensure their entry in the country, was also found insufficient to bring them within the Belgium jurisdiction (para 121-123). On this point, the Court had to distinguish the case from other judgments where ‘procedural’ control (see Besson) was found sufficient. The basis for the distinction was that, as opposed to other judgments where ‘procedural’ control triggered Article 1 (e.g. Güzelyurtle and Others v Cyprus and Turkey), an application for a visa is a unilateral choice of the individual. As the Court, noted such a choice cannot create a jurisdictional link (para 123). 

To further support this conclusion, the Court could not miss adding that a different finding would negate ‘the well-established principle of public international law, […] according to which the State Parties, subject to their treaty obligations, including the Convention, have the right to control the entry, residence and expulsion of aliens’ (para 124). What is interesting here is the final note after this addition: ‘Lastly, the Court notes that this conclusion does not prejudice the endeavors made by States Parties to facilitate access to asylum procedures through their embassies and/or consular representations’ (para 126).

This final note was necessary in light of the Grand Chamber’s reasoning in N.D. and N.T. v Spain, where the applicants argued that they were subjected to a collective expulsion after their immediate return to Morocco. The Court found that the applicants were within the Spanish jurisdiction (they were on Spanish territory) and that they were indeed subjected to an ‘expulsion’ within the meaning of Article 4 Protocol 4. The final issue that had to be resolved was whether the ‘expulsion’ was ‘collective’. The Court made the answer to this question dependent on whether there were ‘genuine and effective means of legal entry’ (para 201), such as border procedures and visa applications at embassies and consulates (para 212 and 222), that the applicants could effectively make use of. While a stronger emphasis was placed on the availability of border procedures, the Court in N.D. and N.T. v Spain also reasoned that the applicants could have taken advantage of existing procedures for claiming international protection at Spanish embassies and consulates (para 223-228). This gave the basis for the Court to eventually conclude that the absence of individual identification and assessment of the applicants’ circumstances could be justified, and was thus not ‘collective’ in violation of the prohibition of collective expulsion, since the applicants did not take advantage of existing legal entry procedures.

How to square these pronouncements from N.D. and N.T. v Spain and M.N. and Others v Belgium? If procedures for humanitarian visas are available, this can be used to the applicants’ detriment in the assessment of the prohibition on ‘collective expulsions’. This is despite the fact that the availability of such procedures (and any relevant procedural safeguards) is not a matter of individual rights corresponding to ECHR obligations since the affected individuals are not within the States’ jurisdiction in the sense of Article 1.

Conclusion

On the specific issue of humanitarian visas, the reasoning of the Court is formally convincing and politically unsurprising.  On the political side, after the encouraging  Hirsi and Other v Italy judgment, the tendency in Strasbourg has not been particularly favorable in the area of migration  (see for example the approach to immigration detention). On the legal side, the facilitation of access to asylum procedures through embassies and/or consular representations remains a matter of state discretion and the attempt to place it within the framework of human rights law (in the form of an individual entitlement corresponding to a concrete obligation upon the state) was unsuccessful. If the Court were to follow the applicants’ arguments, this would have implied an extension of principles established in the previous judgments. The Court did not allow such an extension and managed to distinguish the case from previous cases involving embassies. It did not limit the triggering of human rights law obligations in the context of activities of embassies and consulates to nationals. In case of non-nationals, however, it explicitly imposed a requirement of ‘de facto control’ and ‘physical power’ over them, so that jurisdiction can be triggered. It remains to be contested how this requirement will operate in future cases. In this sense, if the reasoning of the Grand Chamber (see in particular the last sentence in para 118) is strictly followed, there might be a limited opening for a different approach.

If the outcome of the judgment is juxtaposed against the reality characterized with massive loss of life since, as it is often noted, there are no legal channels for asylum-seekers to travel and enter countries of protection, a disappointment appears inevitable. The political rhetoric has been that saving lives is a priority. Yet, placing this tragic reality within the confines of human rights law is not without difficulties (beside the difficulty raised by the jurisdiction threshold). Attempts to identity a concrete positive obligations upon states, including an obligation to issue visas, face challenges (see the article The Right to Life published in the Border Justice special issue of the German Law Journal).