Grand Chamber of the European Court of Human Rights hands down important judgment on extraterritoriality

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The Grand Chamber of the European Court of Human Rights has delivered its long-awaited judgment in the case of MN v. Belgium (appln no. 3599/18). The case is the latest stage in long-running litigation which has already resulted in a judgment of the Grand Chamber of the Court of Justice of the European Union: Case C-638/16 PPU X and X. The case concerns a family of Syrian asylum-seekers, resident in Aleppo. They travelled to Beirut in the Lebanon. There, they made an application at the Belgian Consulate for EU visitor visas. The purpose of the application was for the family to travel to Belgium, where they would then make applications for asylum. The family returned to Aleppo and the applications were refused by e-mail shortly afterwards.

The family claimed that the refusal of the visas exposed them to prolonged Article 3 ill-treatment in Syria. The question, therefore, was whether, when making the visa applications in the Belgian consulate in Beirut, they were within the jurisdiction of Belgium for the purposes of Article 1 of the European Convention on Human Rights.

The Grand Chamber of the Strasbourg Court has now handed down its judgment, declaring the judgment inadmissible. After a comprehensive review of the case-law, the Court found that the relevant decisions were taken by the Belgian authorities in Belgium: [110]. In making decisions on entry into Belgium, the authorities exercised a public power; but in itself, this was not sufficient to bring the applicants within Belgium’s territorial jurisdiction: [112]. The mere fact that national decisions had an impact on the situation of persons resident abroad was not enough to establish jurisdiction: [112]. As such it was necessary to establish whether there were exceptional circumstances which could lead to a finding that extraterritorial jurisdiction was established: [113]. This was primarily a question of fact to be determined by examining the nature of the link between the applicants and Belgium, and examining whether the state effectively exercised control or authority over them: [113]. There was no indication of such control on the facts of the case: [114]-[118]. Administrative control, even if it were established, would not suffice: [119]. Nor would the bringing of domestic proceedings to challenge the decisions in Belgium: [121]. To find otherwise would “amount to enshrining a near-universal application of the Convention on the basis of the unilateral choices of any individual, irrespective of where in the world they find themselves, and therefore to create an unlimited obligation on the Contracting State to allow entry to an individual who might be at risk of ill-treatment contrary to the Convention outside their jurisdiction”: [123]. Such a situation would also negate the well-established principle of international law that States Parties to the Convention have the right to control the entry, residence and expulsion of aliens: [124].

The case is extremely significant for the purposes of fixing the limits of jurisdiction under Article 1 of the Convention. 11 contracting states to the Convention intervened, all to oppose the argument that the applicants were within the jurisdiction of Belgium. A number of NGOs intervened to support the applicants’ position. At the hearing, the United Kingdom presented a joint position on Article 1 jurisdiction on behalf of itself, France, Norway and Latvia.

The webcast of the hearing can be found here. Press coverage of the hearing can be found here.

David Blundell QC represented the United Kingdom, led by First Treasury Counsel, Sir James Eadie QC, and the then Attorney General, Geoffrey Cox QC MP.

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