Access to legal remedies against a visa refusal based on an objection of another Member State

This project concerns several cases (Cases C-226/19 and C-225/19), in which a short term visa for the Netherlands was rejected automatically on the basis of an objection by an (unknown) EU Member State. The question addressed in this project is whether this automatic refusal is in conformity with EU law, specifically the Visa Code and Articles 41 (the right to good administration) and 47 (the right to an effective remedy) of the EU Charter of Fundamental Rights. Are Member States required on the basis of the principle of mutual trust to automatically accept the objection of another EU Member State? Is the right to an effective remedy respected, taking into account that the applicant does often not know which Member State objected against the grant of a visa nor for what reasons the objection was made.

On March 2019 the district court of Haarlem referred preliminary questions in these cases:

In the case of an appeal as referred to in Article 32(3) of the Visa Code  against a final decision refusing a visa on the ground referred to in Article 32(1)(a)(vi) of the Visa Code, can it be said that there is an effective remedy within the meaning of Article 47 of the EU Charter under the following circumstances:

– where, in its reasons for the decision, the Member State merely stated: ‘you are regarded by one or more Member States as a threat to public policy, internal security, public health as defined in Article 2.19 or 2.21 of the Schengen Borders Code, or to the international relations of one or more Member States’;

– where, in the decision or in the appeal, the Member State does not state which specific ground or grounds of those four grounds set out in Article 32(1)(a)(vi) of the Visa Code is being invoked;

– where, in the appeal, the Member State does not provide any further substantive information or substantiation of the ground or grounds on which the objection of the other Member State (or Member States) is based?

In the circumstances outlined in Question 1, can there be said to be good administration within the meaning of Article 41 of the EU Charter, in particular, because of the duty of the services concerned to give reasons for their decisions?

(a) Should Questions 1 and 2 be answered differently if, in the final decision on the visa, the Member State refers to an actual and sufficiently clearly specified possibility of appeal in the other Member State against the specifically named authority responsible in that other Member State (or Member States) that has (or have) raised the objection referred to in Article 32(1)(a)(vi) of the Visa Code, in which that ground for refusal can be examined?

(b) Does an affirmative answer to Question 1 in connection with Question 3(a) require that the decision in the appeal in and against the Member State that made the final decision be suspended until the applicant has had the opportunity to make use of the option of appealing in the other Member State (or Member States) and, if the applicant does make use of that option, until the (final) decision on that appeal has been obtained?

For the purpose of answering the questions, does it matter whether (the authority in) the Member State (or Member States) that has (or have) objected to the issuing of the visa can be given the opportunity, in the appeal against the final decision on the visa, to act as second defendant and on that basis to be given the opportunity to introduce a substantiation of the ground or grounds on which its objection is based?

The case is still pending before the CJEU. The expert opinion of the Migration Law Clinic will be published when the CJEU has issued its judgment.