This project concerns preliminary questions to the Court of Justice (CJEU) from the district court in Utrecht in a visa case (Case C-680/17). The case concerns the request of Sri Lankan nationals for a Schengenvisa for the Netherlands. On the basis of a bilateral agreement they needed to apply for this visa at VSF Global (a private organisation), which decides on visa application on behalf of Switzerland, which decides in its turn on behalf of the Netherlands. The visa were refused by VSF Global. The applicants submitted an objection against this rejection in the Netherlands. The Dutch authorities declared this objection inadmissible. They stated that they do not have the authority to decide on the visa applications. The applicants appealed this decision before the district court. The court asks the CJEU amongst others whether the right to an effective remedy as guaranteed by Article 47 of the Charter is respected, if the decision to reject an application for a visa can only be appealed before an administrative or judicial body in the State, which has taken this decision on behalf of another State.

The expert opinion of the Migration Law Clinic answers the preliminary questions on the  basis of an analysis of the objectives of the Visa Code and the EU right to an effective remedy. It addresses the practice of visa representation and the practical complications caused by the fact that the decision to refuse a visa should be appealed before the courts of the representing Member State. This includes laguage barriers, high court fees and lack of access to legal aid. The expert opinion concludes that the sponsor should be able to appeal the refusal of the visa in his/her own name. It also argues that the represented Member State remains responsible for the visa decision either alone or together with the representing Member State and would thus be competent to hear the appeal against the decision to refuse the visa. It finally contended that, if the CJEU would find that only the courts of the representing Member State are competent to hear the appeal against the decision to refuse the visa, several conditions should be met by these courts. This includes an effective hearing, information in the language the applicant understands, proportionate court fees, access to legal aid and the exchange of necessary information between the represented and representing Member State.

The expert opinion of the Migration Law Clinic can be downloaded here: 2018-03-29 Expert opinion MLC.

The CJEU held a hearing in the case on 6 December 2018. AG Sharpston issued her conclusion on 28 March 2019. She suggested the CJEU to answer the questions generally in line with the Migration Law Clinic expert opinion. However, the CJEU did not follow AG Sharpston’s decision and ruled in a judgment of 29 July 2019 that the sponsor does not have a right to appeal in their own name against the refusal of the visa application. The representing Member State is the competent to decide on the appeal against the decision to refuse a visa. According to the CJEU, this does not violate the EU right to an effective remedy.