Refusal of visa vs. right to court: ECJ’s ruling

The European Court of Justice has entered a judgment in a case of a foreign national who was refused a Schengen visa. The ECJ relied on the Schengen Visa Code and EU Charter of Fundamental Rights and ruled that at a certain stage of the proceedings brought in visa cases, a foreign national should be given an opportunity to ask for a judicial appeal against a decision refusing them a visa.
The case concerns a Moroccan national who was refused a Schengen visa by the Polish Consul in Rabat. The Moroccan, assisted by HFHR lawyers, lodged a complaint against the decision with the Provincial Administrative Court in Warsaw. PAC rejected the complaint, holding that Polish law provides no possibility of a judicial review of such a decision. The foreigner appealed to the Supreme Administrative Court, alleging a violation of the right to a court guaranteed by the EU Charter of Fundamental Rights. SAC, on its part, made a request for a preliminary ruling to the ECJ.

In its judgment, the ECJ held that Article 47 of the Charter guaranteed everyone the right to have their case heard by an independent and impartial tribunal. The ECJ also explained that the concept of independence, which is “inherent in the task of adjudication”, requires above all that an adjudicating body should act “as a third party in relation to the authority which adopted the contested decision”.

Poland is one of the few EU countries that provided no remedy that would allow a judicial review in cases involving Schengen visas issued by a consul. This situation led to objections made by the European Commission, which participated in the case supporting the foreign national’s case.

The judgment in case C-403/16, Soufiane El Hassani v. the Minister of Foreign Affairs, can be accessed here.

In September 2017, the ECJ Advocate General has also delivered an opinion in this case.