Hungary has failed to fulfil its obligations under EU law in a substantial part of its national legislation on asylum procedures and the return of illegally staying non-Member State nationals, the Advocate-General of the Court of Justice of the EU said in his Opinion of Thursday 25 June (Case C-808/18).
In particular, the infringement consists of “the breach of ensuring effective access to the asylum procedure, and for breach of the procedural safeguards relating to applications for international protection, to the unlawful detention of applicants for that protection in transit zones and to the unlawful removal of illegally staying third-country nationals”, added the Advocate General.
At the end of 2018, the Commission brought a very broad action for failure to fulfil obligations against Hungary, seeking a declaration that new Hungarian laws on asylum and migration, some of which were adopted in 2017, were in breach of EU law, in particular the ‘common procedures for granting and withdrawing international protection’ (2013/32/EU), ‘reception of asylum seekers’ (2013/33/EU) and ‘return of illegally staying third-country nationals’ (2008/115/EEC). This included the operation of procedures in transit zones.
In amending some of its laws, Hungary had determined in part that the migration crisis of 2015 justified a derogation from the rules on “border procedure” in order to maintain public order and safeguard internal security.
The Court had already condemned Hungary last month over the Röszke camp on the border with Serbia, where asylum seekers had been illegally detained. It indicated that they should be released, which Budapest accepted (see EUROPE 12487/23).
In his Opinion of 25 June, Advocate-General Priit Pikamäe examines the other general aspects of the Hungarian legislation and finds that the obligation under Hungarian law for applicants for international protection to travel to one of the two transit zones on the Serbo-Hungarian border in order to submit their applications, combined with the drastic limitation of the number of persons authorised to enter those zones, prevents those applicants from submitting their applications in a meaningful way.
Deprived of the rights resulting from the ‘Procedures for Granting and Withdrawing Protection’ Directive, since they are in areas still outside the EU, these applicants are thus obliged to endure a wait of 11 to 18 months before they can actually be admitted to a transit zone and are able to submit their application. The Advocate-General therefore considers that the procedure implemented by the Hungarian asylum authority in transit zones falls within the scope of the ‘border procedure’, which is provided for by the abovementioned Procedures Directive (2013/33/EU). The rules of border procedures must therefore “imperatively be applied”.
And while Member States using the “border procedure” can decide on the admissibility of an application for international protection in a transit zone, in substance, they can only do so “in a specified number of cases”.
Hungarian law also fails to comply with the “border procedure” requirement that applicants for international protection cannot be held in a transit zone for more than four weeks.
Another point analysed: the Advocate-General reiterates that the Procedures Directive grants applicants for international protection a right to remain in the territory of a Member State until the expiry of the period prescribed for lodging an appeal against the administrative decision rejecting their application or until a decision is taken on that appeal. However, Hungarian law is not sufficiently clear on this effective right of asylum seekers to remain on Hungarian territory either.
The action also relates to Hungarian legislation on the return of illegally resident nationals, which the Advocate-General also does not consider to be in conformity with EU law.
Link to the press release: https://bit.ly/3ewxQb6 (Original version in French by Solenn Paulic)