Case C‑14/23

XXX

v

État belge, represented by the Secrétaire d’État à l’Asile et la Migration

(Request for a preliminary ruling from the Conseil d’État (Belgium))

Judgment of the Court (Fifth Chamber) of 29 July 2024

(Reference for a preliminary ruling – Immigration policy – Directive (EU) 2016/801 – Conditions of entry and residence of third-country nationals for the purposes of studies – Article 20(2)(f) – Application for admission to the territory of a Member State for the purposes of studies – Other purposes – Refusal of a visa – Grounds for rejection of the application – Failure to transpose – General principle that abusive practices are prohibited – Article 34(5) – Procedural autonomy of the Member States – Fundamental right to an effective judicial remedy – Article 47 of the Charter of Fundamental Rights of the European Union)

1. Border controls, asylum and immigration – Immigration policy – Entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing – Directive 2016/801 – Grounds for rejection of the application for admission – Purposes of residence other than those indicated in the application for admission – Failure to transpose that ground into national law – Refusal of a visa for the purposes of studies on account of a lack of genuine intention to study on the part of the applicant – Whether permissible – Application of the general principle of EU law prohibiting abusive practices

   (European Parliament and Council Directive 2016/801, Arts 3(3), 5(3), 7, 11, 20(2)(f) and 24)

   (see paragraphs 35-39, 41, 47, 48, 50, 51, 53-55, 58, operative part 1)

2. Border controls, asylum and immigration – Immigration policy – Entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing – Directive 2016/801 – Procedural guarantees and transparency – Refusal of a visa for the purposes of studies – Obligation for the Member States to provide for a procedure ensuring there is a judicial remedy against that decision – National law providing merely for a right to bring an action for annulment – Whether permissible – Conditions

   (Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2016/801, Art. 34(5))

   (see paragraphs 60-67, operative part 2)

Résumé

Ruling on a request for a preliminary ruling from the Conseil d’État (Council of State, Belgium), the Court of Justice rules, first, on the power of a Member State to refuse a third-country national a visa for the purposes of studies in the event that that national has no genuine intention to study and, second, on the scope of the judicial review of that decision in the light of the procedural guarantees provided for in Directive 2016/801. ( 1 )

In August 2020, the appellant in the main proceedings, a third-country national, submitted an application for a visa in order to study in Belgium. She was refused that visa on the ground that it was apparent from inconsistencies in her study plan that she did not have any genuine intention of pursuing her studies in Belgium. The appellant in the main proceedings then sought the annulment of that decision before the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium). After that court dismissed her application, she brought an appeal on a point of law before the referring court.

In the context of that appeal, the appellant in the main proceedings claims, inter alia, that the provision of Directive 2016/801 that allows Member States to reject an application for admission where it is established that the third-country national would reside for purposes other than those for which he or she applies to be admitted had not been transposed into Belgian law. ( 2 ) Furthermore, she maintains that the review procedures implemented by the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings), which merely consist in a review of legality, infringe the requirements under EU law. ( 3 )

Since it had doubts as to the possibility of rejecting, in such circumstances, the application for admission to Belgian territory and as to the scope of judicial review of the decision rejecting such an application, the referring court decided to refer the matter to the Court for a preliminary ruling.

Findings of the Court

In the first place, the Court finds that, pursuant to Article 5(3) of Directive 2016/801, Member States are required to issue a residence permit for the purposes of studies to an applicant who has satisfied the requirements set out in that directive. ( 4 ) None of those requirements expressly refers to the existence of a genuine intention to study in the territory of the Member State concerned.

That said, according to a general principle of EU law, EU law cannot be relied on for abusive or fraudulent ends. Consequently, a Member State must refuse to grant the benefit of the provisions of that law where they are relied upon not with a view to achieving the objectives of those provisions but with the aim of benefiting from an advantage in EU law although the conditions for benefiting from that advantage are fulfilled only formally.

Thus, although Article 20(2)(f) of Directive 2016/801 provides that the Member State concerned may reject an application for admission to the territory where it has evidence or serious and objective grounds to establish that the third-country national would be staying for purposes other than those for which he or she is seeking admission, that provision does not exclude the application of the general principle of EU law that abusive practices are prohibited, since the application of that principle is not – as the provisions of a directive are – subject to a requirement of transposition.

Therefore, where an application for admission for study purposes is at issue, the finding of an abusive practice requires it to be established that the third-country national concerned submitted his or her application for admission without having a genuine intention to pursue, as a main activity, a full-time course of study leading to a higher education qualification recognised by that Member State.

However, an application for admission can be rejected only if that abuse is sufficiently apparent from all the relevant information available to the competent authorities. In that context, since the circumstances based on which it may be concluded that an application for admission for study purposes is abusive are necessarily specific to each individual case, an exhaustive list of the relevant factors in that regard cannot be established. Accordingly, the potentially abusive nature of such an application cannot be presumed in the light of certain factors, but must be assessed on a case-by-case basis, following an individual assessment of all the circumstances specific to each application. In that regard, it is for the competent authorities to carry out all appropriate checks and to request the evidence in order to carry out an individual assessment of that application, if necessary by requesting the applicant to provide further details and explanations in that regard.

In any event, the fact that the third-country national who has submitted the application for admission for study purposes also intends to pursue another activity in the territory of the Member State concerned, in particular if that activity does not affect the pursuit of studies, as a main activity, justifying that application, cannot necessarily be regarded as indicative of an abusive practice. By contrast, inconsistencies in the applicant’s planned studies may constitute one of the objective circumstances contributing to the finding of an abusive practice, on the ground that the applicant’s application is, in fact, aimed at purposes other than the pursuit of studies, provided that those inconsistencies are sufficiently apparent and that they are assessed in the light of all the specific circumstances of the particular case. Thus, a circumstance which may be regarded as ordinary in the course of higher education, such as a change of direction, is not in itself sufficient to establish the lack of a genuine intention to study in the territory of that Member State. Similarly, the mere fact that the studies envisaged are not directly linked to the professional objectives pursued does not necessarily indicate a lack of intention actually to pursue the studies on which the application for admission is based.

In the second place, as regards judicial review of the decision rejecting an application for admission, the Court recalls, first of all, that the characteristics of the appeal procedure envisaged in Article 34(5) of Directive 2016/801 must be determined in a manner that is consistent with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Thus, it is apparent from the need, arising from Article 47 of the Charter, to ensure that the action brought against the initial administrative decision rejecting that application of the party concerned is effective that, in the event of its annulment, a new decision is adopted within a short period of time and that it complies with the assessment contained in the judgment annulling that decision.

It follows that, as regards applications for admission to the territory of a Member State for the purposes of studies, the fact that the court hearing the case has jurisdiction only to rule on the annulment of the decision of the competent authorities rejecting such an application, without being able to substitute its own assessment for that of those authorities or adopt a new decision, is sufficient, in principle, to satisfy the requirements of Article 47 of the Charter, provided that those authorities are bound by the assessment contained in the judgment annulling that decision. Furthermore, in such a situation, it must be ensured that the conditions under which the action is brought and, where appropriate, the judgment adopted at the end of that action are such that they allow, in principle, a new decision to be adopted within a short period of time, in such a way that a sufficiently diligent third-country national can benefit from the full effectiveness of the rights which he or she derives from Directive 2016/801.

( 1 ) Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (OJ 2016 L 132, p. 21).

( 2 ) Under Article 20(2)(f) of Directive 2016/801, a Member State may reject an application where it has evidence or serious and objective grounds to establish that the third-country national would reside for purposes other than those for which he or she applies to be admitted.

( 3 ) Article 34(5) of Directive 2016/801 requires Member States to provide that an action may be brought against decisions rejecting applications for admission.

( 4 ) See Articles 7 and 11 of Directive 2016/801.