CJEU: Joined Cases C-225&226/19 – Statement of reasons necessary when refusing a visa application

Tuesday, November 24, 2020

On 24 November 2020, the Court of Justice delivered a preliminary ruling in the Grand Chamber case of R.N.N.S., K.A. v. Minister van Buitenlandse Zaken (Joined Cases C-225/19 and C-226/19), regarding the interpretation of Articles 32(1)(a)(vi) and 32(3) of the Visa Code, in light of Article 41 and 47 of the Charter of Fundamental Rights of the European Union.
R.N.N.S., an Egyptian national, and K.A., a Syrian national, saw their visa applications rejected, on the basis of Article 32(1)(a)(vi) Visa Code (Regulation 810/2009), as well as a subsequent objection and appeal against those decisions. The notification of refusal only indicated that the applications were refused for reasons of, inter alia, constituting a threat to public policy, internal security or public health by another Member State. R.N.N.S. was also informed that the objecting Member State against his application was Hungary.
In this context, the referring courts asked, first, whether a rejecting Member State, following the objection of another Member State to the issuance of a visa, is required to communicate (i) the identity of the objecting Member State, (ii) the latter’s substantive reasons for the rejection and (iii) the available remedies against that decision. Secondly, it asked whether, where an appeal is lodged against that decision, the courts of the rejecting Member State must be able to examine the substantive legality of the objection raised by that other Member State.
In its assessment, the CJEU points out that the right to good administration as a general principle of EU law, requires the administration to give reasons for its decisions. Furthermore, it underlines that the Visa Code presupposes that the conditions for the issuing of visa are harmonised and that the refusal based on Article 32(1)(a)(vi) is, therefore, legitimate.   
It reiterates that Article 47 of the Charter requires that a person who is concerned by a decision, must be able (i) to ascertain the specific grounds on which the refusal is based and (ii) to identify the Member States that objected to the application. Where appropriate, the refusal must be accompanied by the essence of the reasons for the objection. 

Furthermore, the CJEU emphasizes that Article 32(3) Visa Code, read in the light of Article 47 of the Charter, requires the judicial review of the rejection decision to include both a formal examination of the grounds of Article 32(1) and the legality of that decision, considering all relevant elements that the national authority took into account for its decision. At the same time, the CJEU notes, that same judicial review is limited because of the broad discretion that the national authorities enjoy with respect to the conditions for applying the refusal grounds and asserting the relevant facts. 
Finally, the CJEU clarifies that the substantive review of the other Member State’s objection must be done by the courts of the objecting state, while it is the refusing authority that must indicate which authority of the objecting Member State must inform the applicant on the available remedies in the objecting Member State. In that regard, the Court notes that the national courts of the refusing Member State must be able to verify the correct application of the prior consultation procedure, under Article 22 Visa Code, and the respect of the procedural guarantees, while the courts of the objecting Member State are tasked with reviewing the substantive legality of the objection.  

Photo: Transparency International, March 2013, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

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