Hungary cannot reject an application for international protection on the grounds that it has been filed by an organisation assisting a migrant who does not meet the criteria for protection.
This is the message delivered by Advocate General Athanasios Rantos in his Opinion delivered on Thursday 25 February (aff. C-821/19), by proposing to the judges of the Court of Justice of the EU to declare illegal the ground of inadmissibility of the asylum application in question invoked by the Hungarian government in this case. These provisions violate the current Procedures Directive and the exercise of rights by applicants for international protection.
In a press release, the Court recalls that, through a reform in 2018, Hungary has made it more difficult to access international protection procedures and to carry out activities aimed at providing advice and guidance to applicants for such protection.
On the one hand, Hungary has introduced a new ground of inadmissibility for applications for international protection relating to the applicant’s passage through a safe transit country prior to arrival on Hungarian territory.
Secondly, Hungary has criminalised the activity of organisations aimed at enabling the initiation of international protection proceedings by persons who do not meet the national criteria for the granting of such protection and has also provided for restrictions on persons prosecuted or punished for such an offence, described as ‘aiding illegal immigration’.
In a judgment in the case of a Syrian national of Kurdish origin who had arrived in Hungary from Serbia (see EUROPE 12451/37), the Court of Justice had already ruled in March 2020 on the subject of an application for inadmissibility on the grounds of passage through a safe country of transit, the Advocate General recalled.
On the assistance provided to asylum seekers, the latter seems to legitimise the objective by criminalising these organisations: the Advocate General recognises that this can have a deterrent effect on NGOs and individuals who know that coming from a safe country is very unlikely to receive a positive response.
However, Mr Rantos says that the sanctions imposed on these associations are not fair, as the mere fact that the national authority rejects an unfounded asylum application is in itself a sanction.
And the Advocate General points out that it is precisely the legitimate aim of organisations to try to change laws. He therefore considers that these associations, even though they are aware of the low chances of obtaining asylum for the people they represent, can continue their activities and that the criminalisation of these activities is not justified.
On the other hand, according to Mr Rantos, Hungary is within its legal right when it provides that persons subject to criminal proceedings for the facilitation of illegal immigration are prohibited from entering a perimeter located within eight kilometres of the external border of Hungarian territory.
The rules do not contravene EU law, as they are only intended to enable the police authorities to prohibit persons suspected of having committed offences from entering places connected with those offences, the Advocate General considers.
See the conclusions: https://bit.ly/3aSSBOy (Original version in French by Solenn Paulic)