No jumping the queue

AN UNEASY paradox underlies asylum policy in Europe. As signatories to the Refugee Convention of 1951, all European Union countries must allow foreigners on their territory to apply for protection. But none is obliged to help them arrive in the first place. As most war-torn places are some distance from Europe, asylum-seekers must endure dangerous journeys, and rapacious people-smugglers thrive.

Resettling refugees directly from countries that host lots of them, such as Turkey, Lebanon and Kenya, is another option. A third is to issue humanitarian visas, which entitle the bearer to travel safely to his or her destination before claiming asylum. But European governments hand them out sparingly, and there is little legal clarity surrounding their use. Advocates for refugees hoped that the European Court of Justice might change that in a ruling this week.

The case before the court involved a family of five Christians from Aleppo, in Syria, who applied for humanitarian visas at the Belgian embassy in Beirut last October. Belgian officials refused to consider the bid because the family intended to stay in the country longer than the permitted 90 days. But in February the court’s advocate-general said the visa application should fall under the EU’s Charter of Fundamental Rights, which protects against the sort of violent treatment the family claim to have suffered in Syria. That would have obliged Belgium to grant the visas—and could have opened the door to thousands more such applications from would-be refugees. Yet although the court usually follows the advocate-general’s reasoning, this time it demurred, ruling that it was up to national governments whether or not to issue humanitarian visas.

NGOs, as well as the UN’s refugee body, see humanitarian visas as a useful alternative to the cumbersome process of resettlement. Brazil, among other countries, has begun to issue them to Syrians. Yet many EU governments, 13 of which backed Belgium’s case, insist that the EU visa code was never intended to impose humanitarian obligations on national authorities—and after the 2015-16 refugee crisis, there is little appetite for more generosity. After the ruling Theo Francken, Belgium’s outspoken immigration minister, celebrated his victory over the NGOs he said were trying to extend Europe’s borders to its embassies abroad.

Advocates themselves lamented what they consider a missed chance to save lives and dent trafficking. Yet, says Elizabeth Collett of the Migration Policy Institute Europe, a think-tank, they may have dodged a bullet. Had the court ruled the other way, governments would quickly have tightened EU visa law further. Worse, governments that have been quietly admitting certain groups on humanitarian grounds (such as staff employed by their armed forces abroad, who face retribution from enemies) might have pulled back under the glare of the spotlight. The fight to find new ways to safety for refugees will continue: the European Parliament wants to clarify the conditions under which humanitarian visas can be issued, though governments are wary. But for now, the smugglers’ business model is safe.