ECHR: Grand Chamber hearing in the case of M.N. and Others v. Belgium on 24 April 2019 [refusing of visas with a view to applying for asylum in Belgium on humanitarian grounds]

The applicants, M.N., B.H., O.N. and T.N., a married couple and their two children, are Syrian nationals who were born in 1978, 1984, 2011 and 2008 respectively and live in Aleppo (Syria). On 13 September 2016 the Belgian Aliens Office (OE) refused to issue the visas that they had requested, on humanitarian grounds, from the Belgian Consulate in Beirut. However, on 7 October 2016, the Aliens Appeals Board (CCE), acting under the extremely urgent procedure, ordered a stay of execution of the Aliens Office’s decisions. It held that, having regard to the political and security situation in Aleppo, there was a serious risk of a violation of Article 3 of the European Convention of Human Rights. The Aliens Appeal Board instructed the State to take new decisions within 48 hours. The Aliens Office subsequently issued two new decisions refusing the visa requests, execution of which was again suspended by the CCE on 20 October 2016. The CCE instructed the State to issue the applicants with a laissez-passer or visas that were valid for 3 months in order to protect their interests. In the meantime, the applicants lodged applications for judicial review of the OE’s decisions, 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, 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 application was lodged with the European Court of Human Rights on 10 January 2018.

On 26 April 2018 the Belgium Government was given notice of the application, with questions from the Court.

Relying on Article 1 (obligation to respect human rights) of the European Convention of Human Rights, as well as Articles 3 (prohibition of inhuman or degrading treatment ), 6 § 1 (right to a fair trial) and 13 (right to an effective remedy), the applicants complain about the Belgian authorities’ refusal to execute the measures ordered by the Aliens Appeal Board in its judgment of 7 October 2016, alleging that they were maintained in a situation contrary to Article 3 of the Convention with no possibility of remedying it effectively. They also complain that, as a result of the court of appeal’s judgment of 30 June 2017, it was impossible for them to pursue, through the courts, the execution of the measures ordered by the Aliens Appeal Board.

Following the communication of the application, 11 States were given leave to intervene in the procedure before the Court, in accordance with Rule 44 § 3 (a) of the Rules of Court: Austria, the Czech Republic, Croatia, Denmark, France, Germany, Latvia, the Netherlands, Slovakia, and the United Kingdom. Several national and international non-governmental organisations were also given leave to intervene in the procedure before the Court: the Human Rights League (LDH), the International Federation of Human Rights Leagues (FIDH), the Centre for Advice on Individual Rights in Europe (the AIRE Centre), the European Council on Refugees and Exiles (ECRE), the International Commission of Jurists, the Dutch Council for Refugees, and the Bar Council of French-speaking and Germanspeaking Lawyers of Belgium (OBFG).

On 20 November 2018 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber.

Press Release ECHR 111 29/03/2019 – M.N. and Others v. Belgium (application no. 3599/18)