On 14 May 2020, the Court of Justice of the European Union published its judgment in the joined cases C-924/19 and 925/19 concerning, inter alia, the accommodation of asylum seekers in the Röszke transit zone at the Hungarian-Serbian border and the grounds of inadmissibility for asylum applications.
The applicants are Afghan and Iranian nationals who lodged applications for asylum from the Röszke transit zone after arriving in Hungary from Serbia. Their applications were dismissed as inadmissible and they were requested to return to Serbia. After Serbia refused the applicants’ readmission, the Hungarian authorities changed the country of destination in the return decisions to the applicants’ respective countries of origin without examining the merits of the applications. The applicants brought an action for, inter alia, the annulment of their return decisions. During these proceedings, they were obliged to remain in the transit zone. The referring Court stayed proceedings and referred several questions to the CJEU. The opinion of Advocate General Pikamäe was published on 23 April 2020.
The Court, first addressing the question concerning the applicants’ right to an effective remedy, noted, inter alia, that a decision amending the country of destination mentioned in the initial return decision is so substantial that it must be regarded as a new return decision. And the addressees of such a decision must then have an effective remedy against it before a judicial body pursuant to Article 13 Directive 2008/115 and Article 47 of the Charter. An appeal brought before the asylum authority does not satisfy this requirement without a guarantee of a subsequent judicial review.
Addressing the first question, the Court observed that transiting through a third country in which the applicants had not been exposed to persecution or a serious risk of harm is not sufficient to constitute a connection within the meaning of Article 38 Directive 2013/32. Article 33 Directive 2013/32 must therefore be interpreted as precluding national legislation which allows the rejection as inadmissible of an application for international protection on such grounds.
Examining the consequences of Serbia’s refusal to readmit the applicants and Hungary’s obligation to examine subsequent applications, the Court observed, inter alia, that it is clear from Article 33 (2) (d) Directive 2013/32 that a subsequent application for international protection may be declared inadmissible where no new elements or findings are presented. Referring to its previous case law, the Court concluded that the existence of a judgment finding national legislation to be incompatible with Union law in respect of grounds of inadmissibility must be classified as a new element relating to the examination of an application for international protection, pursuant to Article 33 (2) (d).
On questions three and four, the Court observed that the applicants were required to stay permanently in the transit zone and were unable to leave without exposure to penalties or the potential loss of the chance to obtain refugee status. As such, the obligation on a third-country national to remain permanently in a transit zone with a restricted and closed perimeter, within which the movements of this national are limited and monitored appears to be a deprivation of liberty, characteristic of “detention” within the meaning of Directives 2013/32 and 2013/33. Furthermore, the Court clarified that while under Article 43 2013/32, States may require applicants of IP to stay in transit zone pending an examination of the admissibility of their applications, a decision must be adopted within four weeks, failing which an applicant must be granted the right to enter the territory. Moreover, a detention decision must be ordered in writing, indicating the reasons and law upon which the order is based.
Based on an unofficial translation by the EWLU team.
Photo: (CC) katarina_dzurekova, January 2015