The Court of Justice of the European Union ruled in favour of the European Commission against the Hungarian State in a judgment rendered on Tuesday 16 November. The Court ruled (Case C-821/19) that the Hungarian law, which criminally sanctions the activity of organisations aiming to enable the opening of an international protection procedure by persons who do not meet the national criteria for granting such protection, violates EU law, in particular the Asylum Procedures Directive (2013/32/EU) and the Reception of Asylum Seekers Directive (2013/33/EU).
In 2018, Hungary had amended some laws concerning measures against irregular immigration, including provisions introducing a new ground for inadmissibility of asylum applications. It also criminalised organising activities facilitating the lodging of asylum applications by persons who are not entitled to asylum under Hungarian law. These laws, which were presented as a means of combating irregular immigration, were dubbed “anti-Soros laws” because they targeted foreign NGOs allegedly funded by the billionaire George Soros. They also provided for restrictions on the freedom of movement of those suspected of assisting those who could not be granted asylum.
The Court therefore ruled on Tuesday that Hungary had failed to fulfil its obligations under the Procedures Directive by allowing an application for international protection to be rejected as inadmissible on the ground that the applicant arrived on its territory via a State in which that person was not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed.
The Procedures Directive sets out a list of the situations in which Member States may consider an application for international protection to be inadmissible and the ground for inadmissibility introduced by the Hungarian legislation corresponds to none of those situations, the Court explains.
It also found that Hungary had failed to fulfil its obligations under the Asylum Procedures and Reception of Asylum Seekers Directives by criminalising the actions of any person who, in connection with an organising activity, provides assistance in respect of the making or lodging of an application for asylum in its territory, where it can be proved beyond all reasonable doubt that that person knew that that application would not be accepted under Hungarian law.
The Hungarian law restricts both the rights of access to and communication with applicants for international protection and the effectiveness of the guaranteed right of the asylum seeker to consult a legal adviser or other counsellor at his/her own expense.
The Court also notes that the Hungarian legislation suppresses actions which cannot be regarded as a fraudulent or abusive practice. In essence, as soon as it can be proved that the person concerned was aware that the individual he or she assisted could not obtain refugee status, any assistance provided is likely to be criminally sanctioned, even if this assistance is provided in compliance with procedural rules.
This would expose “anyone who assists in making or submitting an application for asylum to criminal prosecution”. For their part, applicants would be deprived of assistance to challenge the legality of the applicable national rules at a later stage of the asylum procedure.
The Court also concludes that this regulation therefore requires persons wishing to provide such assistance to consider, at the time the application is made or submitted, whether the application is likely to succeed under Hungarian law. Such control cannot be expected from these people, which is not their job.
This regulation may therefore act as a strong disincentive for anyone to provide assistance when the sole purpose of such assistance is to enable the third country national to exercise his or her fundamental right to seek asylum in a Member State.
The Hungarian government took note of the judgment, but said it reserved the right to take further action against these foreign NGOs, stating they were financed, in particular, by Mr Soros, to “promote” migration.
Link to the judgment: https://bit.ly/3ngVPlf (Original version in French by Solenn Paulic)