Asylum seekers arriving through Serbia cannot be rejected automatically

Key success at the European Court of Justice

The Court of Justice of the European Union (CJEU) ruled to declare a provision of the Hungarian asylum act, introduced in July 2018 as contrary to EU law. The Hungarian regulation introduced a new inadmissibility concept, the ‘safe transit country’ based on which asylum seekers have been automatically rejected without an in-merit examination of their application since the summer of 2018. Not only has the Syrian Kurd client of the Hungarian Helsinki Committee won at the Court, but others treated alike have been given the chance of a fair asylum procedure in Hungary.

Amendments to the Hungarian Asylum Act entered into force on 1 July 2018 that put asylum seekers in an absurdly difficult situation. The Hungarian Helsinki Committee has warned from the outset that these changes are in breach of EU law.

The amendment introduced a new ground to declare applications inadmissible, resulting in the rejection of applications without an in-merit examination. EU law allows for inadmissibility procedures based on an exhaustive list of grounds. For example, if the applicant has already been granted protection elsewhere, or if, he/she is submitting another application without any significantly new circumstance after his/her application for asylum has previously been rejected.

However, the Hungarian legislation has created a new ground to declare an application inadmissible, which does not exist in EU law. According to it, an applicant who travelled through a country where they are not exposed to persecution or serious harm, or who had adequate protection in that country could also be rejected without an in-merit examination.

Asylum can only be sought in one of the two transit zones in Hungary, both to which entry is only possible from Serbia. As a result of the new inadmissibility ground, almost all applicants were rejected without an in-merit examination of why they had to flee their homes.

This is what happened to our client in the summer of 2018. He was never questioned by the Hungarian authorities about why he had to flee Syria or whether he could return to his war-torn country without risk of persecution or serious harm. The Hungarian authority was only interested in whether he travelled through Serbia. As all asylum seekers in the transit zones travelled through Serbia, the Hungarian authorities produced rejection decisions and expulsion orders automatically.

The HHC provided legal representation to the Syrian Kurd LH. In the course of the judicial review of his rejection decision, we drew the attention of the Budapest Administrative and Labour Court to the apparent contradiction between domestic and EU legislation. The judge of the case asked the Court of Justice of the European Union to clarify the matter. For the same reason, the European Commission also launched an infringement procedure against Hungary.

The CJEU judgment in the LH case reiterated our position and clarified that the new Hungarian inadmissibility ground is in breach of EU law and cannot be applied anymore.

“Since the introduction of the law, we have been saying that the new regulation is contrary to EU law. We have also referred to this in Hungarian court proceedings. Nonetheless, the asylum authority has enforced the illegal legislation en masse. It is important that today’s judgment is not only about LH, but also about those hundreds who are currently waiting in metal containers surrounded by barbed wire to finally have their case examined by the Hungarian authorities. Our success today is also an important victory for them,” said Barbara Pohárnok, attorney, legal representative of LH, assessing the judgment.

In the case of another asylum-seeking client of the Hungarian Helsinki Committee  the CJEU also delivered its decision on 19 March. That case concerned the domestic court’s right to change the decision of the asylum authority. The Court ruled, in line with its previous Torubarov judgment where the HHC provided legal representation too, a domestic court must grant protection to the applicant in case a previous instruction of the court was ignored by the asylum authority..

These two judgments also ruled certain short procedural deadlines as contrary to EU law, providing Hungarian judges the opportunity to examine appeals longer than provided for by domestic law in case it is needed for delivering a judgment.