The Opinion of the UN Working Group on Arbitrary Detention on the Transit Zone

On 22 May 2020, the UN Working Group on Arbitrary Detention (WGAD), delivered its Opinion No. 22/2020 based on an individual complaint of an asylum seeker Saman Ahmed Haman kept in the transit zone at the Hungarian-Serbian border for one year and 7 months. The Working Group concluded that “the detention of Mr. Hamad was arbitrary and falls within category IV (when asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy).”

As a preliminary matter, the WGAD examined whether Mr. Hamad was deprived of liberty during his stay in the transit zone, as this was the core of the disagreement between the applicant and the Government. When making this determination the WGAD considered, inter alia, whether the person has freely consented to the confinement measures, what the limitations are on the person’s physical movements, on receiving visits and having various other means of communication with the outside world, the modalities of the imposed daily regime and the level of security around the place.

The WGAD noted that the CJEU provided the most up to date examination of these facts, which led to the conclusion that the situation of isolation and the high degree of restriction of freedom of movement of asylum seekers amounts to deprivation of liberty in its recent judgement. Concurring with these findings, the WGAD also referred to its recent observations from its 2018 visit to Hungary and the findings of the Council of Europe Anti-Torture Committee following its visit to the transit zones in 2017.

Finally, the WGAD could not accept the Government’s argument that the asylum seekers are free to leave the transit zone at any stage during their asylum process; neither could it accept the argument that the asylum seekers enter the zone freely. As the WGAD has stated previously, while the deprivation of liberty occurs when a person is held without free consent, it is “paramount that the element of voluntariness is not abused and that any claim that an individual is at a certain place at his or her own free will is indeed the case”. In the present  case, all those entering Hungary from the Serbian side and wishing to apply for asylum had no choice but to remain in the transit zone until their asylum claims had been processed. The WGAD cannot accept that an individual who either must agree to remain in the transit zone or lose the possibility of lodging an asylum application could be described as freely consenting to stay in the transit zone.

The WGAD therefore concluded that Mr Hamad was deprived of his liberty and detained for the sole reason of submitting his asylum application. Moreover, the Hungarian authorities had failed to justify why such a deprivation was reasonable, necessary, and proportionate. As such, the placement of individuals in the transit zone amounted to arbitrary detention in contravention of Articles 3, 8, 9 and 14 UDHR and Article 9 ICCPR.