National security grounds for exclusion from international protection as a Carte Blanche: Hungarian asylum provisions not compliant with EU law

Our new information update identifies five main points where Hungarian asylum legislation and practice regarding exclusion from international protection on national security grounds contradict EU law and jurisprudence.

In summary:
1. The Hungarian law does not provide any reasoning as to the national security risk allegedly presented by the person concerned. This is contrary to Art. 47 of the Charter, and violates the provisions of the Procedures Directive ensuring the enforcement of the right to an effective remedy and, in particular, the rights of the defence (Arts. 46(3), 11(2), 45(1), (3) and Preamble (20) of the Procedures Directive);
2. The mere access by the courts to the classified data provided by the Hungarian law does not on its own guarantee the respect of the applicant’s rights of the defence. Furthermore, it violates the rights of access to information and data underlying the decision on exclusion (Arts. 12(1)(d), 23(1) and 45(4) of the Procedures Directive);
3. Due to the binding nature of the security agencies’ opinion over the asylum authority, a decision on an exclusion is ultimately made by the security agencies. This diverges with the requirement that the determining authority is responsible for the examination of the recognition, refusal or withdrawal of
international protection (Art. 4 of the Procedures Directive);
4. The automatic rulings of the Hungarian asylum authority when delivering exclusion decisions on national security grounds violates the requirement of individual assessment, including the examination of proportionality (Arts. 4, 10(3), 14(4)(a) and Art. 17(1)(d) of the Qualifications Directive;
Preamble (20) of the Procedures Directive); and
5. Non-transposition of Art. 14(6) of Qualification Directive as interpreted by the CJEU in the M case.

You can read the update here.