You apply for a visa to one State, but the obstacle comes from another. Who must explain the refusal, and which court can review the objection? Understanding this situation requires separating the final decision from the consultation between States that precedes it.
A key authority is the Court of Justice’s Grand Chamber judgment of 24 November 2020, joined Cases C‑225/19 and C‑226/19, R.N.N.S. and K.A., ECLI:EU:C:2020:951. This is a 2020 precedent, useful for explaining an applicant’s safeguards when a refusal follows another Member State’s objection.
Two applications, two objections
The disputes concerned applications for visas for family visits submitted to the Netherlands authorities by an Egyptian man and a Syrian woman. During the prior consultation under Article 22 of the Visa Code, Hungary objected in the first case and Germany in the second.
The form then in use grouped several grounds under a single box. The applicants argued that they could not effectively understand and challenge the refusal. The Dutch authority maintained, among other things, that it could not review the substance of the other States’ objections. Those were the parties’ positions. The Court interpreted EU law; it did not itself issue visas or annul the national refusals.
What information must accompany the refusal?
Interpreting Article 32(2) and (3) of Regulation No 810/2009, in the version examined, in the light of Article 47 of the Charter, the Court required identification of the Member State that objected, the specific ground of refusal based on that objection and, where appropriate, the essence of the reasons for the objection.
The applicant must also be told which authority to contact to find out about the remedies available in the objecting State. This does not promise unrestricted access to every document: the Court’s formulation concerns information that makes legal protection practical.
What can the court review?
The courts of the State refusing the visa cannot review the substantive legality of another State’s objection. That limit does not make review of the refusal a mere formality.
As paragraphs 48–54 explain, the court can check whether consultation was properly conducted, whether the applicant was correctly identified as the person concerned by the objection, and whether procedural safeguards, including reasons, were respected. Procedural rules must provide a concrete opportunity to exercise rights, taking account of the separate forum for challenging the substance of the objection.
An objection is not the same as a SIS alert
This judgment concerns an objection raised during prior consultation, linked to Article 32(1)(a)(vi) of the Visa Code. A SIS alert for refusal of entry is addressed separately under point (v). These situations should not be conflated, even though both may appear in a Schengen file.
The judgment does not establish a general rule for every national visa, residence permit or regularisation procedure. The Court also mentions the form’s amendment by Regulation 2019/1155: the old box discussed in the facts should not be presented as guidance for reading all current forms.
Where to start in an individual case
A useful method is to separate four elements: the authority that refused the visa, the State that objected, the specific ground communicated, and the authority identified for information about remedies. Link these to notifications, dates and documents concerning the applicant’s identity.
This is a way of analysing the file, not a promise that a visa will be granted. Knowing who decided what helps identify the relevant challenge and avoids asking a court to carry out a review that belongs elsewhere.
Avv. Fabio Loscerbo
Avvocato Cassazionista
Iscritto nel Registro dei rappresentanti di interessi della Camera dei deputati in materia di Immigrazione
Lobbista registrato presso il Registro per la Trasparenza dell’Unione europea n. 280782895721-36 in materia di Migrazione e Asilo
ORCID: 0009-0004-7030-0428
Article prepared with the assistance of AI tools, under the author’s direction, review and editorial responsibility.
via Avv. Fabio Loscerbo https://ift.tt/bma9GjU
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