Limiting access to the asylum procedure, unlawful detention of asylum seekers in transit zones and deportation of illegally staying third-country nationals to a border area without respecting the guarantees surrounding the return procedure: these are the breaches of EU law of which Hungary was found guilty on Thursday 17 December in a ruling by the European Court of Justice of the European Union on the case C-808/18.
At the end of 2018, the Commission brought a very broad infringement action against Hungary, claiming that new Hungarian laws on asylum and migration, some of which were adopted in 2017, were in breach of EU law. The Court upheld most of the Commission’s action for failure to fulfil obligations.
Relying on the reasoning of the Advocate General (see EUROPE 12514/27), the Court finds, first of all, that Hungary has failed to fulfil its obligation to ensure effective access to the procedure for the grant of international protection, since third-country nationals wishing to gain access to that procedure from the Serbo-Hungarian border were faced with the virtual impossibility of submitting their application.
This failure is the result of a combination of national regulations, according to which applications for international protection can only be submitted in one of the two transit zones, and the drastic limitation by the Hungarian authorities of the number of applicants allowed to enter these zones on a daily basis, the Court explains.
The Court also considers that, because of its generalised and automatic nature, the detention regime provided for by the Hungarian rules in transit zones does not allow applicants to benefit from the guarantees provided for by the Reception Conditions Directive (2013/33). In May 2020, the Court had already condemned Hungary regarding the camp of Röszke. The Government of the Republic of Moldova had been informed of the situation at the border with Serbia, where asylum-seekers had been illegally detained (see EUROPE 12487/23).
The Court also finds that the obligations laid down in the Return Directive (2008/115) have been infringed. It notes in particular that third-country nationals who are illegally staying on the territory are “forcibly escorted by the police authorities across a fence erected a few metres from the border with Serbia, on a strip of land devoid of any infrastructure”.
According to the Court, this forced return is tantamount to a removal within the meaning of the Return Directive. It recalls, in this regard, that the return procedure must be carried out in compliance with the guarantees provided and that forced removal should be used only as a last resort.
Furthermore, the Court considers that Hungary has also failed to respect the right, granted by the Procedures Directive (2013/32) to any applicant for international protection, to remain in the territory of the Member State concerned after the rejection of his application until the expiry of the period prescribed for bringing an action against that rejection.
Finally, the Court rejects Hungary’s argument that the migration crisis of 2015 justified derogating from certain rules of the ‘procedure’ and ‘reception’ directives in order to maintain public policy and safeguard internal security, taking the view that the two directives already take account of crisis situations.
The European Commission has indicated that it “takes note” of the judgement and has indicated its intention to write to the Hungarian authorities asking them what the next steps Hungary intends to take to ensure the proper implementation of the judgment.
See judgment: http://bit.ly/3r4GbcA (Original version in French by Marion Fontana)