The accommodation of asylum seekers in the transit zone of Röszke, on the Serbian-Hungarian border, must be qualified as illegal "detention", said Advocate General Priit Pikamäe of the EU Court of Justice in his opinion delivered on Thursday 23 April (cases C-924 and 925/19).
Arriving via Serbia, two Iranians and two Afghans applied for asylum in Hungary and were then placed in the Röszke transit zone. Their applications were deemed inadmissible because, under Hungarian law, asylum applications from persons arriving from a 'safe transit country' such as Serbia must be rejected without examination on the merits.
Belgrade refused to readmit these persons, arguing that they had not illegally entered Hungary, so the conditions for the application of the EU/Serbia Agreement on readmission had not been met. Hungary ordered the removal of the four migrants to Iran and Afghanistan.
The Iranian and Afghan nationals then lodged an appeal with the Hungarian courts to have it established, after the Serbian refusal of their readmission, that Hungary should have examined their initial asylum application on its merits and that the conditions of their accommodation in the transit zone of Röszke constitute illegal 'detention' within the meaning of the 'reception' directive (2013/33/EU).
In his Opinion, the Advocate General points out that the Asylum Procedures Directive (2013/32/EU), which lists all the grounds for inadmissibility of an asylum application, is in conflict with Hungarian legislation providing for a ground of inadmissibility based on the 'safe transit country' (Case C-564/18).
Secondly, the Advocate General considers that the concept of 'safe country of transit' is similar, but not equivalent, to that of 'safe third country' in the Asylum Procedures Directive. The legal effects of Serbia's failure to readmit asylum seekers should therefore, in his view, be covered by this directive which, in the event of a 'safe third country' refusing readmission of the applicant, requires Member States to ensure that the asylum application is examined (Article 38).
He also noted that the European Court of Human Rights had ruled that the accommodation of two migrants in the Röszke transit zone did not constitute a deprivation of the "rights to liberty and security" (Ilias and Ahmed/Hungary case) within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
He nevertheless considers that the Court of Justice of the EU is empowered to interpret autonomously the provisions of the EU Charter of Fundamental Rights relating to the above-mentioned rights. And in his view, the Court should offer asylum seekers in the transit zone a higher level of protection than that guaranteed by the ECHR.
Finally, the Advocate General is of the opinion that, in the area of the Röszke transit zone, the isolation and restrictions on the freedom of movement of asylum seekers are such that they are subject to detention. He notes in particular the existence of fences around and in the area that physically cut off migrants from the outside world. They are also deprived of their freedom of movement: they have contact with persons from outside, including their lawyers, only after prior authorization and in a space reserved for that purpose, where they are brought under police escort. Moreover, leaving the transit zone is synonymous with renouncing the possibility of obtaining the asylum sought.
In this context, the provisions of the Reception Conditions Directive governing the detention of asylum seekers have not been complied with, so the detention of the asylum seekers in question must be qualified as illegal, says Mr Pikamäe.
See the Opinion of the Advocate General: https://bit.ly/3bAeT5C (Original version in French by Mathieu Bion)