ABSTRACT
This chapter examines whether the European Convention on Human Rights (ECHR) provides individuals with a right to obtain entry visas to access the territory of a Contracting State and, once there, exercise Convention rights. The analysis begins by highlighting that, under Article 1 of the Convention, States are bound to secure rights only to persons within their jurisdiction, which is primarily territorial. Consequently, aliens outside a State's borders generally fall outside its jurisdiction, and the Convention remains silent on how individuals may lawfully enter that territory. Against this backdrop, the chapter explores three main dimensions. First, it shows that the Court's case-law confirms the non-existence of a universal human right to obtain an entry visa: decades of case-law affirm States’ sovereign prerogative to control immigration, and the Court has rejected arguments based on humanitarian grounds or risk of ill-treatment abroad, clarifying that visa refusals do not engage ECHR obligations absent a jurisdictional link. Second, the chapter addresses circumstances where entry visas become instrumental for exercising specific Convention rights, notably the right to family life under Article 8. While the ECHR does not impose a general duty to authorise family reunification, positive obligations may arise when refusal of entry would rupture established family life within the State. The Court applies a case-specific proportionality test, considering factors such as settled status, presence of children and obstacles to family life abroad. Procedural safeguards – flexibility, promptness and individualised assessment – are in any case essential in visa-related decisions. Third, the chapter analyses the role of visas in assessing the legality of migration control measures. Recent case-law, indeed, introduced the notion that applicants must use ‘available legal entry options’ to benefit from certain protections, such as the prohibition of collective expulsion. However, the Court increasingly evaluates the actual accessibility of such options, marking a shift toward a more pragmatic approach. In conclusion, the ECHR does not confer a substantive right to obtain an entry visa. Visa policies remain within States’ sovereignty, tempered only by limited positive obligations and procedural guarantees in specific contexts. This State-centric paradigm underscores the Convention's inability to fully safeguard access to territory, even when essential for protecting fundamental rights.
