ECJ vs. Hungary: closure of the Roszke transit area

On May 2020, Hungary decided after much deliberation to close definitely the transit area of several hundred square meters of Roszke on the southern Hungary-Serbia frontier, where were located refugees mainly from the Middle East, attending at length that their applications for asylum were examined. This decision was taken by Hungary on request of an ECJ ruling that was previously delivered in relation to the Hungarian legislation on the right to asylum and the return of illegally staying third-country nationals.

The Luxembourg- based ECJ ruled that asylum seekers that were kept blocked without a valid reason or illegally in the transit area, had to be released free immediately. In particular, the European Union defined the permanence of asylum seekers in that transit camp as an arbitrary detention. In fact, with also the contribution of some NGO’s, which defended the civil rights of the migrants before the Court, for example the Hungarian Helsinki Committee, the harmful living conditions of the concerned asylum seekers were raised to issue and also their time of stay within the camps was denounced. People were “detained” without a formal decision and with insufficient process safeguards. More, they were obstructed for months or longer than one year, while the EU ruled that asylum seekers may not be detained for more than 4 weeks.

The transit zone involved was established in 2015 to restrict the entry of migrants into the country via the so-called Balkan route. It was then that the transit zone was immediately criticized by human rights groups due to the deplorable conditions to which the migrants were subjected. In particular, Human Rights Watch described the living situation of the Roszke border camp as inhuman, because individuals had to live starving and without medical care in humble containers. Generally, it was very dirty and overcrowded. Migrants, who were held behind a barbed wire, were constantly under control of armed officers and could apply for asylum just restrictively.

Exactly, the closure of the transit zones occurred following the joint legal battle between an Afghan and an Iran family, which arrived on the border from Serbia and were held in the transit zone over a year awaiting a decision on their action before court, where they were represented by lawyers from the Helsinki Committee.

Like all other asylum-seekers present on the Serbian-Hungarian border, both families had been confined there pending the outcome of their asylum application, issued in December 2018 and February 2019 respectively. Particularly, the families were first obliged to stay in the sector of the transit zone reserved for applicants for asylum. Later, after seven months, they were required to stay in the sector of that zone that is reserved for third-country nationals whose asylum applications have been rejected.

Unfortunately, pursuant to Hungarian law, those applications for international protections were dismissed as inadmissible. On the contrary, Hungary adopted decisions requiring the applicants to return to Serbia. However, Serbia refused to readmit the persons concerned into its territory, on the ground that the conditions set out in the Agreement on readmission concluded with the EU were not met. Therefore, the Hungarian authorities amended the country of destination mentioned in the initial return decisions, replacing it with the respective country of origin of the persons concerned, Afghanistan and Iran. Afterwards, although there are no provisions under Hungarian law that provides for such a remedy, the two families brought an action before a Hungarian court for annulment of the decisions rejecting their objections to those amending decisions. Further, they asked the asylum authority to conduct a new asylum procedure and brought further actions because they were unable to act relating to their detention and continuing presence in the Roskne transit zone.

The Court examined first the situations of the persons concerned in the Roszke transit zone, in the light of the rules governing both the detention of applicants for international protection and that of illegally staying third-country nationals. It resulted, as already mentioned, that the detaining of the persons concerned in that transit zone must be regarded as a detention measure. The Court underlined that detention refers to a coercive measure which presupposes the deprivation of the freedom of movement of the person and the isolation of that person from the rest of the population, by requiring him or her to remain all the time within a limited and closed area. It is possible to argue about a deprivation of liberty, because the persons concerned could not lawfully leave that zone of their own free will in any direction whatsoever. In particular, they may not leave the zone for Serbia next to them, because such an attempt would be considered on the one side unlawful by the Serbian authorities and would therefore expose them to heavy penalties. On the other side, they may risk losing any chance of obtaining refugee status in Hungary.

Secondly, the Court examined whether the detention complies with the requirements set by the EU law. As regards the requirements related to detention, according to Article 8 of the “Reception” Directive and Article 15 of the “Return” Directive respectively, neither an applicant for international protection nor a third-country national who is the subject of a return decision may be detained solely on the ground that he or she cannot meet his or her own needs. These Articles defend the subjects from being preclude without the prior adoption of a reasoned decision ordering that detention. More, the need for and the proportionality of such detention must be first examined.

As regards the continuation of detention, or more specifically its duration, the Court held, concerning applicants for international protection, that Article 9 of the “Reception” Directive does not require Member States to lay down a maximum period for the detention of the applicants. However, their national law must ensure that the detention lasts only for as long as the ground for detention remains applicable and that the administrative procedures associated with that ground are executed diligently. On the contrary, according to Art.15 of the “Return” Directive, the detentions may not exceed 18 months and may be maintained only as long as removal arrangements are ongoing and are executed with due diligence.

Importantly, regarding the detentions of applicants for international protection in the particular context of a transit zone, it is also necessary to take into account Art.43 of the “Procedures” Directive. Il follows from that provision that Member States may require, as in this case, applicants for international protection to stay at their border or in one of their transit zones in order to examine whether their applications are admissible. As mentioned upon, a decision must nevertheless be adopted within four weeks the application was lodged. If the member state concerned fails to do this, it must grant the applicant the right to enter its territory and process his or her application according to the ordinary procedure of civil law.

Then, the Court held that the lawfulness of a detention measure, such as the detention of a person in a transit zone, must be amenable to judicial review under Article 9 of the “Reception” Directive and Article 15 of the “Return” Directive respectively. If no national rules provide for such a review, it operates the principle of the primacy of EU law and the right to effective judicial protection. As in accordance to the principle, if the national court considers that the detention measure at issue is contrary to EU law, the court must be able to substitute the measure that was adopted by the administrative authority and order the immediate release of the persons concerned, or possibly an alternative measure to detention. Furthermore, an applicant for international protection whose detention has ended must be able to rely on the material reception conditions to which he or she is entitled during the examination of his or her application. In particular, as appears from Article 17 of the “Reception” Directive, if the applicant has no means of subsistence, he or she is entitled to either a financial allowance enabling him or her to find accommodation or to housing in kind.

More, the Court ruled on the jurisdiction of the national court to hear an action for annulment brought by the persons concerned against the decision rejecting their objections to the amendment of the country of return. The Court stated this must be regarded as a new return decision, because of the its significance. Under Article 13 of the “Return” Directive, the addresses of such a detention must then have the effective remedy against it, which must also be consistent with the right to effective judicial protection guaranteed by Article 46 of the Charter of Fundamental Rights of the European Union. To that end, the addressee of a return decision must at a certain stage of the procedure be able to challenge its lawfulness before at least one judicial body.

Lastly, the legal case makes clear that it is not possible under European law to make access to international protection conditional on the waiver of personal freedom. In fact, consistent with the Orban government, asylum seekers were free to leave the transit areas, provided that they renounced to the possibility of obtaining asylum in Hungary and returned to Serbia. During the judgement was also established the illegality of a Hungarian rule, that was introduced into national law in July in 2018. The law set out that applications for international protection submitted by migrants from a “safe transit country” in which he or she is not exposed to persecution or to a risk of serious harm, or in which there is a sufficient degree of protection guaranteed, are generally considered inadmissible. Serbia was in fact deemed as such, therefore Hungary used to reject necessarily all requests who reached Hungary by crossing that country. It is apparent in such a case from the “Procedures” Directive, in conjunction with Article 18 of the Charter, which guarantees the right to asylum, that the authority which has rejected the asylum applications as such is not required to review that. Nevertheless, the persons concerned may still lodge a new application which will be classified as a “subsequent application” for the purpose of the “Procedures Directive”.

Obviously, the ECJ ruling is a significant victory for all those that were previously locked in metal containers in the transit areas. At the same time, as the Helsinki Committee commented, it also represents a victory for the future of the European system, as it strengthens essential human rights and asylum guarantees. For this, it reminds to the episode that occurred in summer 2018, when it seemed that also Germany intended to adopt a similar model of transit zones as Hungary on the Austrian border. In addition, in November 2019, the European Court of Human Rights welcomed ambiguously the appeal by Hungary against two Bengali citizens, who complained about their illegal detention at the border and their subsequent rejection to Serbia.

Actually, before following the EU procedures, Hungary had refused first the order of the ECJ and proved some resistance. Indeed, at time of the closure of the transit areas, what the EU community would have not expected from Hungary, the Undersecretary of the President of the Council of Hungary Gerely Guyas admitted that the Hungarian government did not agree with the unfortunate judgement of the ECJ, because the transit zone was a solution that guaranteed the possibility of filing asylum requests, while at the same it protected Hungary’s borders and, therefore, Europe’s external borders as well. However, at the end, Guyas added that because Hungary is a member state of EU, they would of course respect the ruling of the ECJ.

After the closure of the transit area, migrants living already on the frontier were admitted into the Hungarian territory. The Chief of Staff of Prime Minister Viktor Orban declared indeed that ca.280 asylum seekers would have been transferred to further Hungarian reception centers. In this regard, always the Helsinki Committee reported that many people, including several minor children, were obliged to move during night, even before the official announcement on the closure of the transit area by the Hungarian government.

It should also be said that Hungary decided subsequently to close two access points to its territory, making so the asylum application process for other migrants trying to enter Hungary from Serbia more difficult. In fact, it was registered that from January to April 2020, Budapest has already rejected more than 2000 migrants directly on their entry into transit areas, although international law clearly provides for the examination of the merits of each individual request for protection. In return, the Court attempted to restore respect for the right of asylum though a derogation from the usual procedure, allowing applicants who had been refused their applications on the basis of the mentioned unlawful rule to submit an application for an ex novo protection.

In specific, Hungary underlined that now, once the transit areas have been physically closed, asylum applications must be submitted at consulates in neighboring countries outside the EU. Consulates may even reject the asylum requests without allowing applicants any access to their territory, what would represent a severe violation of the Geneva Convention.

The exact reasons why Hungary decided to close the transit areas are unknown. Presumably, according to international observers, Hungary complied at a later time with the conditions requested by the EU in order not to lose the funds from the Community.

In conclusion, the ca. 300 persons that were released got definitely important achievements, but unfortunately the ECJ judgement will not have a positive impact on the situation on the Hungarian-Serbian border for the rest of the refugee and migrant population, for which remain difficult to be sheltered by the Hungarian authorities and get the asylum in the EU because of their severe, often unlawful, practices.