Placing asylum seekers and nationals of non-Member States subject to a return decision in the transit zone of Röszke on the Serbo-Hungarian border must be qualified as detention, the Court of Justice of the European Union confirmed in a judgment handed down on Thursday 14 May (Cases C-924 and 925/19).
The case concerns the asylum applications of Afghans and Iranians who arrived in Hungary from Serbia and were then placed in the Röszke transit zone where they are not permitted to move freely. These applications were found inadmissible under Hungarian law, and the applicants were returned to their respective countries.
Relying on the reasoning of the Advocate General (see EUROPE 12473/23), the Court examines the Return Directive (2008/115), the Procedures Directive (2013/32) and the Reception Directive (2013/33). According to it, the conditions prevailing in the Hungarian transit zone constitute a deprivation of liberty: the persons concerned cannot legally leave this zone voluntarily, in particular to go to Serbia.
According to the European judge, neither an asylum seeker nor a third-country national who is the subject of a return decision may be detained for the sole reason that they cannot support themselves.
The prior adoption of a reasoned administrative decision is necessary, and this decision must be subject to judicial review. If, on completion of its review, the national court finds that the detention measure in question infringes EU law, it may order the immediate release of the persons concerned or an alternative measure to detention.
For a migrant subject to a return decision, detention in a transit zone may not exceed 18 months. For a migrant who has lodged an asylum application, detention in a transit zone may not exceed 4 weeks from the filing of the application, the Court ruled. Beyond that, the Member State concerned must authorise them to enter its territory, grant them a financial allowance for housing or accommodation and process their application in accordance with the ordinary law procedure.
Furthermore, the Court confirms that the Procedures Directive precludes Hungarian legislation providing for a ground for inadmissibility of an asylum application based on the concept of a “safe country of transit”, in this instance Serbia (Case C-564/18). The persons concerned will be able to lodge a subsequent application for asylum, and the competent Hungarian authorities will have to consider this judgment as a new element inherent in the procedure.
See the judgment of the Court: https://bit.ly/2Z16fJY (Original version in French by Mathieu Bion)