A. The International Commitment to Enhance Availability of Pathways for Regular Migration

The development of legal pathways to serve as alternatives to perilous trips—managed by ruthless traffickers and smugglers—for vulnerable people attempting to safely access the territory of a host country is a specific commitment solemnly declared in the 2016 “New York Declaration for Refugees and Migrants” by all the UN Member States, willing to achieve such a goal also in cooperation with the civil society and the private sector. It specifically calls for “a deeper interaction between Governments and civil society to find responses to the challenges and the opportunities posed by international migration,” a “multi-stakeholder alliance.”^{Footnote 1}

The same objective is expressly reaffirmed and developed within the Global Compact for Safe, Orderly and Regular Migration, the non-legally binding cooperative framework adopted during the intergovernmental conference held in Marrakech on December 10, 2018, which was formally endorsed some days later by the General Assembly on its seventy-third session.Footnote ²

Among its different “cross-cutting and interdependent guiding principles” (point 15),Footnote ³ the Global Compact specifically promotes a “whole-of-society” approach (litt. j), in the shared idea that safe, orderly and regular migration “works for all well when it takes place in a well-informed, planned and consensual manner” (point 13), in a spirit of “win-win cooperation, to address the challenges and the opportunities of migration in all its dimensions through shared responsibility and innovative solutions” (point 14), that should be consistent with international law (point 15, litt. d). The Global Compact clearly calls for a broad partnership with States and all the relevant stakeholders in migration governance, such as: Migrants and civil society; migrant and diaspora organizations; faith-based organizations; local authorities and communities; the private sector; trade unions; parliamentarians; national human rights institutions; the International Red Cross and Red Crescent Movement; academia; and the media (points 15, litt. j and 44).

Such an approach encourages a sort of new “active and dialectic perspective” in migration related aspects between, on the one hand, the States—traditionally conceived both as the primary subjects of international law and primary duty-bearers—and, on the other hand, all the different “forces that hustle international law,”Footnote ⁴ which might be referred to generally as non-State actors, but also as “ancillary duty-bearers.” The specified common aim is to an open confrontation at all levels on alternative legal solutions to a phenomenon which is inherently transnational in nature and, as such, requires “consensus, collective ownership, joint implementation” (point 15, litt. b). This approach reconsiders the role of non-State actors in shaping innovative solutions to respect, fulfill, and protect the fundamental human rights of all migrants irrespective of their migration status (litt. f ), while promoting the security and prosperity of all the communities involved. The private sector and civil society are identified as the closer entities to these migrant communities who would require an intervention, as the subsidiarity principle openly vindicates. In particular, civil society can operate at the same level in which the individuals live and cohabitate, enabling them to properly understand the actual situation of these migrants—in respect of the fulfilment and protection of fundamental rights—and to identify the most vulnerable groups within a community and advocate more effectively the needs of such communities which are considered as the collective dimension “in which alone the free and full development” of the personality of any individual is possible. From this basic principle, solemnly confirmed in the 1948 Universal Declaration of Human Rights —specifically, Article 29, paragraph 1—and re-affirmed fifty years later in a specific declaration adopted per consensus by the General Assembly,Footnote ⁵ it follows that all members of society, individuals, families, local communities, non-governmental organizations, civil society organizations, and the private business sector should be globally involved, through the States, in collective negotiations to share best practices and elaborate common rules. These should be agreed upon jointly in compliance with international law and in a manner conducive to respecting the fundamental rights of all migrants and their communities of origin, transit, and destination.

In the same vein, one of the main specific purposes of this multi-actors’ approach sketched in the Global Compact consists of developing or building upon “existing national and regional practices for admission and stay of appropriate duration based on compassionate, humanitarian or other considerations for migrants compelled to leave their countries … such as by providing humanitarian visas, private sponsorships …” (point 21, litt. g), in order to allow these migrants to safely enter a host country and, at the same time, to empower them “to become active members of society and promoting the reciprocal engagement of receiving communities and migrants in the exercise of their rights and obligations towards each other” (point 32, describing the following objective 16). Finally, all the States committed themselves to fulfill these—and other—objectives and implement them at the global, regional, and local levels, “taking into account different national realities … and respecting national policies and priorities,” while reaffirming their will to implement it “in a manner that is consistent with our [States’] rights and obligations under international law” (point 41).

Along the same lines, a recent and fruitful private initiative sponsoring a safe alternative pathway spread from Italy. It currently represents an exceptional legal corridor for migrants that is jointly agreed upon by the Italian Government and different faith-based organizations. The beneficiaries are persons in a situation of vulnerability allowed to (i) enter the country safely after a security screening—completed in advance by the Italian authorities on the basis of the information gathered in the host State—and to (ii) be materially supported by the same sponsors during the crucial initial phase of integration.

The scope of this Article is to understand to what extent such a practice for admission and stay of vulnerable people—which is currently restricted to a relatively small number of beneficiaries—could potentially be extended to other communities and States—namely, EU Member States—so as to become a general and uniform alternative model for the willing States and civil society that co-operate together to develop a multi-stakeholders’ action at different levels and in compliance with international law rules, as upheld in the Global Compact.

B. Best Practice of Private Sponsorship Comes to Italy: Aims and Formal Legal Basis

Among the good practices adopted to allow persons requiring international protection to reach the country of destination in full legality and safety, the well-established Canadian model of private sponsorshipsFootnote ⁶ has inspired in Italy a rather sui generis initiative to enable the entrance of at least 3,100 refugees over a period of three and a half years. For the most part, the beneficiaries are Syrian citizens, coming from Lebanon, that have been recently joined by other vulnerable people arriving from Ethiopian camps while fleeing from the neighboring countries in the Horn of Africa—Eritrea, South Sudan, Somalia, and Niger.

These legal alternative pathways, referred to by their sponsors as “humanitarian corridors,”Footnote ⁷ have been opened on the basis of three hybrid Memoranda of Understanding (“MoU”).

The first Memorandum was concluded on December 15, 2015, by the Italian Ministries for Foreign and Internal Affairs, on the institutional side, and the Community of Sant’Egidio, the Federation of Protestant Churches, and the Waldesian Board on the private side. The Memorandum aimed to open humanitarian corridors with priority from Lebanon.Footnote ⁸

The second Memorandum was adopted on January 12, 2017, by the Italian Ministries of Foreign and Internal Affairs, on the one hand, and on the other hand, the Italian Bishops’ Conference—CEI, acting through the Caritas and the Migrantes Foundation—and the same Community of Sant’Egidio, on the sponsors’ side, aiming to extend the initiative to the refugee camps in Ethiopia as well.Footnote ⁹

All the involved associations are bearing entirely the costs connected with these laudable and courageous initiatives. These pilot-projects have been both confirmed and extended after they first successfully passed a sustainability assessment test. The commitment to double the efforts has been upheld by the same ecumenical associations that have promoted the first two projects. In particular, on November 7, 2017, just some days after the arrival of the sixteenth refugees’ flight which reached the first 1,000 beneficiaries, the Foreign and Internal Ministries, the Community of Sant’Egidio, the Federation of Protestant Churches, and the Waldesian Board confirmed the first MoU to bring to Italy—for the most part from Lebanese camps—another 1,000 people in two years on a condition of “vulnerability.” Similarly, on May 3, 2019, the second MoU—between CEI and Community of Sant’Egidio—was extended for further 600 visas from Ethiopia, Niger, and Jordan.Footnote ¹⁰

At the moment, the Italian projects involve relatively small numbers when compared to the overall needs. Nonetheless, on the one hand, more than 2,000 safe entries were already made possible “par avion” from Lebanon and Ethiopia and are even now comparable to the resettlement quotas registered in other Member States. On the other hand, the model offers remarkable potential of expansion and represents “a challenge for Governments and the EU to go further.”Footnote ¹¹ The example of Canada may be relevant in this regard as well. Despite its different critical aspects and the still pending demand for reform,Footnote ¹² between November 2015 and July 2017, this system allowed almost 19,000 Syrian citizens to join the country through private sponsorships,Footnote ¹³ activated by both associations and individuals meeting basic requirements identified by the State in a clear, transparent, and easily accessible way.Footnote ¹⁴

The Italian agreements have set up highly peculiar procedures for the protected entry of refugees and migrants,Footnote ¹⁵ as already evident from the definition of the main intended goals. The first common objective is to ensure the arrival in Italy of “potential beneficiaries of international protection, and more specifically of the most vulnerable subjects” in a legal and safe manner from third party countries where they are located, at the expense of the abovementioned religious communities (Article 2 of the first, second and third MoU). In addition, these memoranda also ensure the first reception, by these same communities, in a way that may effectively support the process of “socio-cultural integration for an adequate length of time” (Article 4, second paragraph of the three MoUs).

A further aim of the three agreements is to “stabilize in Italy” the beneficiaries who also can profit from the necessary legal assistance from sponsors and to request international protection once the migrants have arrived in the country. The project, as such, looks at “excluding or limiting any secondary and voluntary movement” towards other countries,Footnote ¹⁶ because—as detailed below—potential beneficiaries are required to express a clear and univocal intention to that effect already in the selection phase. When these vulnerable people arrive, their dossiers are transmitted to the Italian delegation in the country of first asylum—Lebanon or Ethiopia—and then subjected to security checks by the Italian Ministries of Foreign and Internal Affairs. In the absence of any ground for rejection, the Italian authorities may issue a temporary visa and allow beneficiaries to fly safely to Italy. Once arrived in the country, NGOs launch the reception and integration phase that they have been granted for at least one year, at their total expense, while at the same time commencing the formal procedure for requesting international protection to Italian authorities (Article 4, litt. d of the first MoU and point 11, litt. c of the initial recitals of the second MoU, and points 10 litt. d and 11 of the third MoU).

As for the legal basis for allowing the issuance of the visa, each Memoranda makes reference to Article 25 of the Regulation (EC) No. 810/2009—the so-called Visa Code.Footnote ¹⁷ This provision derogates from the principle of fulfillment of the conditions of the Schengen Borders Code,Footnote ¹⁸ thus allowing each Member State to issue a visa where national authorities deem it necessary “for humanitarian reasons or national interest reasons or by virtue of international obligations.” Such a visa has a “limited territorial validity” (“LTV”) within national borders for no more than 90 days, over a total period of 180 days, with the exception of cases where other Member States have agreed to extend its validity to their territories.Footnote ¹⁹

In particular, following the judgment X and X v. Belgium rendered by the EU Court of Justice on March 7, 2017, and even after the amendments recently introduced to the Visa Code by Regulation (EU) 2019/1155 of 20 June 2019,Footnote ²⁰ it seems to be appropriate to avoid maintaining at present the reference to Article 25 of the Visa Code in the Italian Memoranda for reasons that will be clarified below. Moreover, there are already clear obligations binding both States and non-State actors stemming from international general law and treaties that constitute an adequate legal basis, which seem to indicate that reference to that provision appears not only risky, but also redundant.

C. The Beneficiaries of a Sui Generis Protection

The Memoranda leaves the selection of the potential beneficiaries to the NGOs themselves, who autonomously prepare for each applicant an individual dossier by collecting the necessary information directly on the ground, particularly in the Lebanese and Eritrean camps where the refugees have found shelter. Therefore, the sponsors—present in the camps and fully aware of the context in which they are operating—have the responsibility to examine the potential beneficiaries and restrict them to a list of candidates in accordance with the criteria set out in the Memoranda (Article 3 of all the MoUs).

Beneficiaries may not only be those “persons considered by the UNHCR as deserving, at least prima facie, the recognition of the status of refugee” pursuant to the 1951 Geneva Convention—and its 1967 implementing Protocol. Therefore, the beneficiary could not only be the person that “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable or, owing to such fear, is unwilling to avail himself/herself of the protection of that country; or who, not having a nationality and being outside the country of his/her former habitual residence is unable or, owing to such fear, is unwilling to return to it” (Article 1A(2) of the 1951 Geneva Convention as modified by Article 1(2) of the 1967 Protocol), but also those individuals potentially seeking protection because of their condition of objective vulnerability (Article 3, litt. a of all the MoUs).

Indeed, the project falls within the already known scheme of Protected Entry Procedures (“PEPs”), that are supplementary to the system set out by the 1951 Geneva Convention, in order to ensure an alternative legal pathway to persons in need and objectively vulnerable that do not fall within the definition of “refugees or who lack the recognition of such a status. This may happen not only in the manifold cases connected to situations of humanitarian emergencies that are different from persecution as intended in the Convention, but also, for example, as a consequence of restrictive policies introduced by the shelter State. A similar situation has occurred in Lebanon—a State that is not a party to the Convention—in 2015, when the government asked to “de-register” the refugees that arrived in the country after January 5, 2015 and suspend new registrations.Footnote ²¹

Compared to similar practices, the Italian Memoranda expand the categories of the hypothetically vulnerable beneficiaries. With reference to this concept, however, it is possible to find some differences between the two agreements.

The first Memorandum provides for an extension of the protection to two different groups of people. First, those persons for whom “there are reasonable grounds to believe that, in case of return to their countries of origin, they would suffer significant damage also as a consequence of a situation of armed conflict, endemic violence or systemic violation of human rights” (common Article 3, litt. b). This provision recalls and combines the definitions of beneficiaries of subsidiary and temporary protection laid down in the EU legislation, respectively, in the “Qualification” and “Temporary Protection” Directives.Footnote ²² The second group that may get an extension are those who, even where not included in the abovementioned categories, “lie in a situation of particular vulnerability for their personal situation, age or health conditions” including, inter alia, “single women with children, women victims of human trafficking, unaccompanied minors, elderly people,” disabled or traumatized persons, and people with serious medical needs (Article 3, litt. c).

Conversely, the second and third Memoranda provide for the extension to other categories of migrants not otherwise covered by the Geneva Convention. Differently from the first MoU, the second and the third generically deal with all those persons finding themselves in conditions of serious “vulnerability determined by their personal situation, age or state of health,” without any indication—not even by way of illustration—on the causes determining those conditions or on the specific underprivileged categories (Article 3, litt. b).

Notwithstanding these differences that may further expand the subjective scope of application of the second and third Memorandum and that may make the selection by the sponsor even more flexible, all the Memoranda specify that the identification of the beneficiaries has to take into account “in a complementary yet not substitutive manner” additional factors. In doing so, it is possible to include in the program persons who can benefit in Italy from the hospitality offered—formally, by individuals, churches, or associations that provide for the conditions for their first reception (Article 3, litt. d)—and/or who have relatives or social communities able to host them in Italy, and for this reason who have declared the will to establish and integrate themselves in the country (Article 3, litt. e). The ultimate aim of this provision is to “facilitate the identification of pathways to integration and to exclude secondary voluntary movement” (Article 3, last para. of all MoUs).Footnote ²³

As a consequence, the peculiar nature of humanitarian corridors as a Protected Entry Procedure stands out. They represent, indeed, a laudable initiative by private associations with recognized expertise in the field to provide for an alternative, legal, and safe pathway for single and well-identified individuals—not for multitudes or groups, such as in the case of resettlement. The sponsors select the beneficiaries of protection directly, with no delegation to other departments or international organizations. In addition, those procedures attribute a special relevance to the own will of refugees and migrants—as expressed well before the departure and directly shared with the promoting and “future hosts”—to be steadily and permanently integrated in the country where they will present their request for protection. Another aim is the exclusion of secondary and voluntary movements from the country of reception where pathways of integration already exist or where there are members of the family or other hosted communities with a lasting presence on the territory, or both.

The sui generis nature of the project is evident, not only because it represents an uncommon “model of public mobilization of the civil society in synergy with the State,”Footnote ²⁴ but also because it is rather different from any other protected entry procedures.Footnote ²⁵

D. The Compatibility of the Model with Article 25 of the Visa Code After the X and X v. Belgium Judgment

Almost three-and-a-half years since the conclusion of the first Memorandum, it is possible to define it as a success story. More than 2,000 persons in need of protection arrived in Italy through safe flights and have been hosted by the participating communities—which have worked on the integration of the beneficiaries—for the most part represented by families with children and persons needing medical care. Even though it is probably too early to predict the overall outcomes, as of today, the project has been functioning according to its initial objectives. Both the legal and safe arrival—on the one hand—and the first inclusion in communities spread all over Italy instead of in confined and isolated areas—on the other hand—have been realized, even if on a small scale. Against this background, the aim of this study, as already mentioned, is to verify, first, if the model may be exported on a larger scale in other EU States and, second, if the paradigm needs to be adapted to reach this goal.

With regard to the first issue, the Italian best practice has already spread to France. On March 14, 2017, the Ministries of Foreign and Internal Affairs, on the institutional side, and the Community of Sant’Egidio, working as a promoter, the Fédération protestante de France, the Fédération de l’Entraide protestante, the Conférence des évêques de France et le Secours catholique—Caritas, on the ecumenical side, have signed a Memorandum. This agreement brings to France and French Territories Syrian and Iraqi families who have fled to Lebanon; the program had more than 360 arrivals in the span of eighteen months.Footnote ²⁶ Other Member States—namely, Germany and Spain—have also devoted their attention to the project. Finally, Belgium, Andorra, the Holy Seat and the Republic of San Marino also have hosted some Syrian families, while the Polish Bishops’ Conference has manifested its interest in participating.Footnote ²⁷

With the second issue—regarding the possibility to adjust the model for a uniform European format—it seems doubtful that the Memoranda will be appropriate to maintain its actual legal basis, Article 25 Visa Code, after the interpretation given to this provision by Court of Justice of the European Union (“CJEU”) in March 2017 in the aforementioned case X and X v. Belgium. In this case, the judges excluded its application to a situation potentially falling within the scope of the Italian Memoranda that was explicitly based exactly on that provision of the Visa Code.

In fact, the judges in Luxembourg in the abovementioned decision have established that a Member State —in the case at hand, Belgium— may refuse, without even providing for a justification, a request for an LTV visa presented for humanitarian reasons. In X and X v. Belgium, a request for an LTV visa to the Belgian diplomatic premise in Lebanon by a family —including three minors— of Syrian Orthodox-Christian refugees subject to persecution in Aleppo was denied. The denial was based on the statement added to the visa application form that further international protection was intended to be requested once the family had arrived in Belgium.

In fact, according to the CJEU, a similar request would imply the family’s will to remain on the Belgian territory well over the ninety days permitted by the Visa Code. Consequently, not only the Code itself, but also European Union law would be inapplicable, not to mention the standards of protection provided for in the Charter of Fundamental Rights (“the Charter”), particularly in Articles 4 and 18, respectively recognizing the prohibition of torture and inhuman and degrading treatments, as well as the right to asylum.

Even if the motives underpinning the application for an LTV do not determine the applicability of the Visa Code per se, the CJEU comes to this—indeed questionable—conclusion following a rather intricate and non-linear reasoning. The express intention to formally request international protection incorporated in an LTV application is interpreted as inapplicable to the Visa Code, but not as a possible reason of rejection of the same application, pursuant to Article 32(1)b, as argued by the Advocate General. According to the judges in Luxembourg, the request should be re-qualified as a long-term visa because of the disclosed intention to ask for international protection once arrived in Belgium, and therefore to remain for longer than ninety days. Based on these assumptions, and considering that the competence in the field of defining uniform criteria for the issuance of a visa or long-term residence permits provided for in Article 79 (2)a of the Treaty on the Functioning of the European Union (“TFEU”) has not yet been exercised by the Union, the Court finds that the competence still falls within the Member States’ discretion, leaving them free to grant or refuse the visa.Footnote ²⁸

The CJEU thus affirms the inapplicability of EU law with reference to temporary visas for humanitarian reasons and therefore the unfeasibility to base on EU law and, particularly, on Articles 4 and 18 of the Charter, the obligation for a Member State to grant a LTV to persons that, in case of refusal, would find themselves exposed to a clear danger of persecution on the basis of religious beliefs or inhumane and degrading treatment in a third country.

This is an inadmissible outcome that openly contradicts the objectives of the Visa Code, which according to its preamble are “aimed at facilitating legitimate travel and tackling illegal immigration through further harmonization of national legislation and handling practices at local consular missions” (recital no 3), and at respecting “fundamental rights and observes the principles recognized in particular by the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union” (recital no 29). Such interpretation seems to run counter to the previous extensive and significant jurisprudence of the Court in Luxembourg on the interpretative canons to be followed in the exegesis of secondary Union law;Footnote ²⁹ it also contradicts the 1969 Vienna Convention on the Law of Treaties (Articles 31–32).

It is highly disappointing that in the analyzed judgment, the Court has moved away from the long and passionate opinion rendered by the Advocate General Mengozzi, who stood for the application of Article 25 of the Visa Code and of the Charter of Fundamental Rights. In moving away from the previous positions, the CJEU has deluded expectations for a courageous and consistent stance, that the Union did not uphold, on the prevalence of the human rights of migrants in conditions of extreme vulnerability and in urgent need of protection over the opposing security and protectionist approaches maintained by the States.

The real reasons hindering the application by the CJEU of Article 25 of the Visa Code seem concealed in the final paragraphs of the judgment rendered by the Court.Footnote ³⁰ Both the judges in Luxembourg and the Member States were concerned that diplomatic representations of Member States in third countries would have been immediately inundated by an overflow of requests of LTVs, and they would not have been prepared for that. In addition, the Court did not want to favor the phenomenon of so-called asylum shopping—for example, the possibility for potential beneficiaries of protection to pick and choose the Member State from which they would request international protection. An opposite decision, the CJEU admits, would have probably caused the collapse of the—already shaky—Dublin system that Member States are stubbornly conforming to.

Against this background, the process of amending the Visa Code, which started in 2014 after a troubled evolution with different deadlocks and policy re-definition, has registered an acceleration in the first months of 2019. The resulting Regulation (EU) 2019/1155, approved by the Parliament and the Council on June 26, 2019, brings together visa policy and re-admission cooperation with third countries but does not contain any specific provision on the duty to grant humanitarian visas to people fleeing from persecution and torture that ask protection of the diplomatic premises of the Member States abroad, as the European Parliament proposed to the Commission.Footnote ³¹ The new framework instead establishes stricter conditions for processing visas in cases where a third country does not cooperate satisfactorily on readmission. In fact, some provisions—such as those related to the visa fees, the time taken to issue decisions on applications, and the length of time for which multiple entry visas are valid—may be adapted depending on whether a given non-EU country cooperates “sufficiently,” or alternatively “insufficiently,” on readmitting irregular migrants, following a “full and objective assessment” carried out by the European Commission every year. With specific reference to Article 25, the only effect generated by this new approach consists of the introduction of Article 25(a), on the basis of which States could be authorized to restrict the granting of an LTV to asylum seekers or people in need of international protection even more. In fact, where there is a lack of cooperation by certain third countries to re-admit those of their nationals who have been apprehended in an “irregular situation,” and where there is a failure by those third countries to cooperate effectively in the return process, a restrictive and temporary application of Article 25—including paragraph 1—is applied. It is a sort of EU unilateral system of incentives and sanctions at the same time to enhance third countries’ cooperation on re-admission of irregular migrants. Such a scheme, which unfortunately appears more politically oriented than human rights based, will most probably become a bounce back primarily for the vulnerable people fleeing persecutions from those same countries that are not cooperative at all.

Although the legal community is waiting for a specific future act dedicated to alternative legal pathways including humanitarian visas, at present, Article 25 remains the only EU rule that admits the possibility of granting a visa “when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations.” Within the legal framework applicable from 2020, two specific points of the amended Visa Code timidly suggest a possible positive future reading of the provision. In particular, an explicit reference to the duty of the States to act in full compliance with the Charter when applying such an act has been introduced to Article 1 at paragraph 4; moreover, in case of a declaration of refusal of the LTV, paragraph 2 of Article 32 has been replaced in order to grant both the notification of the exact reasons on which such a decision was rendered and an effective appeal.

Nonetheless, the unclear stance of the EU legislators towards humanitarian safe ways in redefining the content of Article 25 of the Visa Code, as well as the legal nationalism in the backdrop of the analyzed CJEU interpretation thereof, both suggest to avoid maintaining at present the reference to such provisions in the Italian MoU. This suggestion comes especially because of the essential role played in these agreements by the express will of the beneficiary to indefinitely settle and remain in the territory of the issuing State to apply for international protection.Footnote ³² In this vein, it is indicative that the MoU concluded in France some days after the judgment rendered by the Court of Justice does not mention Article 25 of the Visa Code as its legal foundation, even if there is no specific legal framework mentioned either.

E. International Law as the Proper Legal Basis

The substantial concern with embracing the CJEU interpretation is that humanitarian visas should not be a matter of discretion for the States once the conditions exist to grant temporary protection from serious risk of persecution, torture, or cruel and inhuman treatments, if not of death. The legal basis for imposing the obligation on any State to grant a visa in said conditions is already provided for by international law, both general and conventional. The Court in Luxembourg should have affirmed the duty of the Belgian authority to grant an LTV visa “by virtue of international obligations” recalled in the same Article 25 of the Visa Code. Instead, it did not even decide on the specific issue, punctually raised by the referring judge.

More precisely, pursuant to such obligations, it should have been an affirmed duty for a EU Member State to grant an LTV visa requested to the consular representation abroad—Lebanon—by the Christian Orthodox Syrian family, which included underage children, that was being persecuted due to their religious beliefs in Syria. This is true especially when considering that the refusal of such a permit might have led to a real risk of irreparable harm, either in the country to which the applicants found refuge or in any country to which the persons may subsequently be expelled.

In particular, reference should have to be made unquestionably to the principle of non-refoulement—and, therefore, in primis, to Articles 31 and 33 of the 1951 Geneva Convention. Despite practices of “obstructing asylum”Footnote ³³ followed by many States and aimed at factually impeding the access on the territory to exclude ex ante the possibility of requesting international protection, some authors have held that the prohibition of non-refoulement shall conversely imply an obligation of admission and temporary stay.Footnote ³⁴ Admission and temporary stay have to be intended as instrumental to the protection of the applicant until the State has verified for each request the alleged circumstances as ensured by the Convention or, as long as the State has ascertained that the person would not be exposed “in any manner whatsoever” to the risk of persecution, in the country towards which the person in question would be refoulet.

This extensive interpretation of the principle of non-refoulement—and its extraterritorial effect—is strongly supported by different general rules of international law, such as customs and principles, as well as by treaty provisions on human rights.Footnote ³⁵ Reference is made to the right to life, as codified in Article 6 of the 1966 Covenant on Civil and Political Rights,Footnote ³⁶ which, in its subsequent Article 7, provides for the prohibition of torture and other cruel, inhumane, or degrading treatment, as already mentioned.

With regard to the first provision, in the recent General Comment No. 36, the Human Rights Committee expressly specifies that “the duty to protect the right to life requires the Member States to take special measures towards persons in situation of vulnerability … [such as] unaccompanied migrant minors … asylum seekers, refugee.”Footnote ³⁷ The Committee upholds a broad interpretation of “the obligation not to extradite, deport or otherwise transfer pursuant to Article 6 of the Covenant,” postulating that it “may be broader than the scope of the principle of non-refoulement under international refugee law, since it may also require the protection of aliens not entitled to refugee status.”

With specific reference to the interconnected prohibition of torture, it has become a rule of such a fundamental character for the entire international community to be afforded an absolute, imperative, and non-derogable nature, binding upon all States, including those who did not ratify the 1984 Convention on the Prohibition of Torture and Cruel, Inhuman or Degrading Treatments or Punishment (“CAT”).Footnote ³⁸ The same Convention includes the refoulement within the conducts expressly prohibited in Article 3, to which the new General Comment No. 4 adopted by the CAT Committee has been devoted. General Comment No. 4 confirms that the principle of non-refoulement “is similarly absolute” and must be applied by any State party “in any territory under its jurisdiction or any area under its control and authority” to citizens or non-citizens “without discrimination subject to the de jure or de facto control,” as established by the so-called passport cases decided by the Committee interpreting the same concept of jurisdiction under the Covenant on Civil and Political Rights.Footnote ³⁹

The same principle is recalled by the European Convention on Human Rights (“ECHR”) as interpreted and applied under the lens of a large body of case-law of the Court in Strasbourg,Footnote ⁴⁰ primarily relating to the prohibition of torture and inhumane and degrading treatments, and to its extra-territorial effects as enshrined in Article 3—and affirmed clearly in the Hirsi caseFootnote ⁴¹—as well as in Article 4 of Protocol No. 4 to the ECHR, expressly devoted to the principle of non-refoulement. Under the ECHR system, conventional standards are applicable to those individuals that are subject to the jurisdiction of the State Party—for example, to those who are under its direct and effective control.Footnote ⁴² Subjection to such a kind of control has been referred by the European Commission of Human RightsFootnote ⁴³ and the European Court in Strasbourg to actions performed by diplomatic and consular representatives abroad, as in Assanidze, where it was affirmed that “in certain exceptional cases, jurisdiction is assumed on the basis of non-territorial factors such as the activities performed by diplomatic and consular representatives of State.”Footnote ⁴⁴

Other important obligations for the States relate to: The right of respect for the family life and the principle of the best interest of the child—upon which the 1989 New York Convention has been built;Footnote ⁴⁵ and the right of any individual to an effective remedy, which represents a basic principle—nonetheless violated by the Belgian State when refusing the visa request in the aforementioned case—recognized at different levels, not only regionally—as the Charter and the ECHR—but also globally—in different international law instruments—and locally—domestic legal orders of the States.Footnote ⁴⁶

All the above-mentioned principles and provisions could have justified the necessity to grant an LTV under Article 25 Visa Code in the context of X and X v. Belgium. Even if there has been no dictum by the CJEU on the specific issue, the margin of discretion by Member States cannot be exercised in any way without respect for the limits posed by obligations arising from international law. By holding to a formalistic interpretation of European law without even considering the stronger duties derived from the international legal order, the judges in Luxembourg preferred to support an overly fragile reading, particularly if measured on the basis of “humanitarian values and of the respect of human rights on the basis of which the European construction is built … as affirmed in Articles 2 and 3 of the Treaty on the European Union, respectively.”Footnote ⁴⁷

F. Open Issues for the Spread of a Virtuous Practice in Europe

The Court in Luxembourg has certainly lost a chance to use an already existing normative tool in order to harmonize very fragmented national practices. At present, Member States govern the granting of visas for humanitarian reasons, whether for a short or long term, in a discretional and non-univocal way.Footnote ⁴⁸ These same practices, where well managed, would conversely ensure the host State the remarkable advantage to monitor, and select, prior to the departure those subjects who have been already identified and registered by the public authority as granting greater chances to become fully integrated in their State. Precisely, a specific warranty comes from their explicit will to establish themselves in the national community—even before the selection process starts—and the further requirement of the already existing links with the host communities. Moreover, in some cases, together with the sponsors, the beneficiaries can prove the presence on the territory of already established members of their families, to whom they would nevertheless have the right to be reunited with, as a “corollary of the more general right to respect of familiar life.”Footnote ⁴⁹

Nevertheless, some questions are still open with regards to extending the scope of application of the already adopted MoU. Particularly, a first issue connected to the successful outcome of those virtuous projects is the identification of the States, be they transit or host States, that would be best suited to implement them.

Under a second perspective, the definition of the concretely applicable selection criteria and procedures should not be completely delegated to private parties, in case of generalized extensions of the project to a larger number of sponsors, who lack expertise, that may be interested in exploring the possibility of open humanitarian corridors.Footnote ⁵⁰

To reach this goal, both the States and non-State actors should start encouraging a new narrative on migrations through the diffusion and sharing of the successful methods currently used for integration. This would also allow a better harmonization of arrangements for the admission of refugees by pursuing their integration according to an “adoption-like” model, not intended as a direct intervention by the State, but rather as a “a whole-of-society” action supported by the guidance of public authorities.Footnote ⁵¹ Such a guidance should be possibly established at different levels, both national and European, according to the paradigm of a “multi-stakeholder alliance” suggested in the Global Compact and supported by the General Assembly of the United Nations; far from diminishing the role of States as primary subjects and responsibility bearers under international law, the alternative and flexible solutions indicated by non-State actors would conversely require the States “to respect and enforce” human rights at national and regional level even more effectively.Footnote ⁵² It would be, indeed, desirable to direct the recast of the relevant EU law, still under way, to this end,Footnote ⁵³ because “to be a credible alternative to illegal migration and the territorial seeking of protection, Protected Entry Procedures must be utilized widely and function in a predictable and uniform manner,”Footnote ⁵⁴ as suggested by the Italian sponsors since the first MoU (point 7).

Humanitarian visas are clearly one of the tools that countries could use to enable people in need to access international protection legally and safely. There is currently no harmonization at the EU level of PEPs and no legal framework at the Union level for humanitarian visas for vulnerable people seeking international protection. Pending a structural reform,Footnote ⁵⁵ the involvement of the third sector may have a decisive role in solving the impasse that European governments and EU organs are currently unable to jointly overcome, even though single countries are showing a greater commitment. As such, humanitarian corridors represent a possibility within the wider framework of intermediary options between an unconditional opening and the closure of all channels for a regular entry. This peculiar pathway should be reinforced with the supporting role of the State: It is the subject that is primarily obliged to respect international law and protect fundamental human rights in order to provide for the right “environment that facilitate implementation of these responsibilities,” while avoiding—on the one hand—impeding on civil society in order to fulfill their common obligations and—on the other hand—preventing the vulnerable migrants from accessing the protection rights that are already recognized at different normative levels.Footnote ⁵⁶

It is thus crucial to immediately start a serious and de-politicized reflection on the reopening of all the existing legal channels of entry—in order to rescue those who cannot wait until an indefinite tomorrowFootnote ⁵⁷—in full respect of the principle of solidarity among Member States called to share responsibilities and resources pursuant to Article 80 of the TFEU,Footnote ⁵⁸ particularly when the protection of “rights which are not theoretical or illusory, but real”Footnote ⁵⁹ needs to be accessible, actionable, and effective in practice. Furthermore, States are not alone and should confront the civil society to find flexible solutions—as the best practice of the Italian humanitarian corridors shows—in line with the shared purpose of a sustainable development for all under a new dynamic and dialectic perspective characterizing the same nature of the modern international legal order.Footnote ⁶⁰