Humanitarian visa as a pathway to apply for international protection

Humanitarian visas allow people in need of international protection to enter a country, where they will be able to apply for asylum, including through accelerated procedures.

From August 2020 Lithuania issued more than 800 humanitarian visas to members of Belarus opposition. According to the Migration Department, between 2020 and 2023, 757 Belarussians applied for international protection and roughly half of them were successful, a few dozen applications were rejected, a few dozen cases discontinued and the remaining few hundred are still under consideration.

Unfortunately issuing of Lithuanian humanitarian visas came to a complete halt in 2022. People fleeing persecution must risk their lives by crossing the border illegally.

A study prepared for the EU Parliament in 2014 suggests that Article 25 (1) of the Visa Code obliges Member States to issue LTV visas on, inter alia, humanitarian grounds or because of international obligations to the extent this follows from the Member States’ refugee and human rights obligations, and thus that the discretion left to the Member States is limited by their refugee and human rights obligations.

The European Parliament’s resolution of 12 April 2016 on the situation in the Mediterranean) and the need for a holistic EU approach to migration (2015/2095(INI) stressed that humanitarian visas provide persons in need of international protection with a means of accessing a third country in order to apply for asylum. Therefore, it called on Member States to use any existing possibilities to provide humanitarian visas, particularly for vulnerable persons, notably at Union embassies and consular offices in countries of origin or transit countries.

On 7 March 2017, the Court of Justice of the European Union adopted its judgment in Case C-638/16 PPU X and X v État belge, according to which Member States are not required, under EU law, to grant a humanitarian visa to persons who wish to enter their territory with a view to applying for asylum, but they remain free to do so on the basis of their national law. In September 2017, following the deadlock in trilogue negotiations, due to the Commission and Council’s opposition to including provisions for a humanitarian visa, Parliament withdrew its amendments.

This CJEU deliberation on the extend of the EU law does not override the conclusion that international obligations of individual states limit their discretion of refusing to open legal pathway to apply for international protection. Right to life and protection against torture and degrading treatments are absolute rights. No circumstance justifies a qualification or limitation of absolute rights. If necessary evidence clearly indicates prima facie threat to life or inhuman treatment in case of refusal of visa, no decision to refuse a humanitarian visa can be justified by lack of domestic procedures or practices.

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