Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Outcome of the decision
The applicant appealed to the District Court of The Hague against a decision of the lower Court, which had not accepted his claim against the rejection of a short-stay visa by the administrative authority. The authority affirmed that the applicant represented a threat to public health and no exceptional circumstance could be detected in the specific case that would have allowed him to enter the country despite the general closing of national borders due to the spread of Covid-19. The applicant complained about a lack of motivation of the authority’s statements and the inadequate balance of interest carried out, which led to a disproportionate decision, also given the fact that the respondent refrained from a hearing. According to the Court, the authority was entitled to refuse a visa request for reasons of public interest (in this case, protection of public health) and, in fact, the challenged rejection was proportional to the worrying epidemic situation at the time of the decision. No violation of the hearing obligation could be detected, the rejection of the visa request was justified and proportional, thus the appeal was considered unfounded.
Facts of the case
The plaintiff, a man born in Pakistan, filed an application for a short-stay visa in the Netherlands on October 11, 2019. The administrative authority rejected his request, because the purpose and circumstances of the intended stay had not been sufficiently demonstrated. Thus, he issued a claim with the Administrative Court, which upheld the authority’s rejection. However, in the proceedings the administrative authority based its rejection of the visa request on new reasons: according to the respondent, the claimant represented a threat to public health, due to the new traveling restrictions implemented by the government to limit the spread of Covid-19. The respondent declined to be heard as a hearing would not have changed these findings. The applicant appealed against this first-instance decision.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
According to the Court, the administrative authority was allowed to use a new ground for refusal because of the wide margin of discretion with regard to the assessment of the relevant facts on which the decision is based. Furthermore, the Dutch government had decided to close its borders starting March 19, 2020 to non-essential journeys of people coming from outside the European Union in order to protect public health. According to the Court, it was not demonstrated that the claimant fell under the exception categories provided by the government, of travelers with an essential function. In this view the administrative authority was not wrong to consider the applicant a potential threat to public health. The applicant’s arguments that he did not represent any threat because he was not infected could not be subscribed by the Court. Given the nature of the pandemic and the high infection rates, a traveler entering the country from abroad could actually represent a concrete potential threat to citizens’ health. At the time of the contested decision, the authority was therefore entitled to reject the claimant's application without assessing in detail whether there was a concrete threat in the specific case involving that individual. The nature of the virus and the associated risks justified the categorical rejection of his visa request, which was considered proportional. Furthermore, no violation of the hearing obligation could be detected if the respondents refrained from a hearing, since a hearing can be omitted if it would not change in any case the findings of the respondent. This consideration was not altered by the fact that the contested decision was based on a different legal ground than that of the first decision.
Conclusions of the deciding body
The claim was considered unfounded, since, according to the Court, the administrative authority was entitled to reject the applicant’s request for a short-stay visa for reasons of public health. Indeed, the Court concluded that this rejection was proportional to the emergency situation that the country was facing at the time of the dispute. The ban on entering the country was fully justified by the urgent need to limit the worrying spread of Covid-19. The Court rejected the claim.
Fundamental Right(s) involved
- Right to access to justice, to a fair trial and to jury trial
- Immigrants’ rights
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court did not explicitly apply a specific balancing technique; however, by reading the reasoning on which the decision is based it can be inferred that the Court implicitly used the principles of reasonableness and proportionality in its decision. Indeed, the Court considered the severe epidemic circumstances existing at the time of the dispute, which required an urgent and consistent limitation of international mobility to protect citizens’ right to health and life. Given this, the Court upheld the authority’s decision and rejected the applicant’s claim, demonstrating that the decision of the administrative authority to reject the short-stay visa request was reasonable and proportional and did not cause any intolerable encroachment on the applicant’s fundamental rights.