In a judgment of 29 July 2019 the Court of Justice answered preliminary questions referred by the district court of Utrecht, the Netherlands (Case C-680/17). The Migration Law Clinic had issued an expert opinion in this case, which was sent to the CJEU.
The case concerned 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 asked 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 CJEU ruled that the sponsor does not have a right to appeal in their own name against the refusal of the visa application. Moreover, only the court of the representing Member State is 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.
In its judgment the CJEU takes a different approach than the expert opinion of the Migration Law Clinic. This expert opinion concluded that the sponsor should be able to appeal the refusal of the visa in his/her own name. It also argued 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 CJEU also did not follow the conclusion of AG Sharpston of 28 March 2019, which was largely in line with the Migration Law Clinic expert opinion.
The expert opinion of the Migration Law Clinic can be downloaded here: 2018-03-29 Expert opinion MLC.