Hungary's border fence – Photo: wikipedia

Having "to remain in one of the transit zones ... constitutes detention", ECJ says

EU court: Hungary failing to fulfil obligation to protect asylum-seekers

Hungary has failed to fulfil its obligation under EU law to grant international protection to illegal migrants from third countries, the Court of Justice of the European Union in Luxembourg ruled.

The European Commission launched an infringement procedure against Hungary over the transit zones established along its southern border and its changes to refugee procedures in 2015. According to the EC, Hungary failed to provide guarantees against holding asylum-seekers in detention unlawfully in the transit zones as well as guarantees concerning procedures under which illegal migrants were expelled.

In its Thursday ruling, the court said Hungary had failed to provide full access to international protection because illegal migrants in the transit zones “were in practice confronted with the virtual impossibility of making their application” for asylum in Hungary. Member states must ensure third-country citizens an opportunity to apply for asylum “as soon as they declare their wish” to do so, including at the borders, the court said.

The court also established that applicants had been required “to remain in one of the transit zones for the duration of the procedure for examination of their application”, adding that it “constitutes detention” under the EU’s Reception Directive “without observance of the guarantees which must normally govern it”.     The court rejected the Hungarian side’s argument that deviation from the Directive was justified by the migration crisis, in which consideration was given to public order and domestic security.

The court rule that Hungary also failed to meet its obligations under the Return Directive, as the country’s rules allow for forcible removal of illegal entrants from territory. Neither did it make it possible for applicants to stay in the country until an appeals procedure was completed, the court said.

According to the court’s ruling, restricting access to international protection, unlawfully detaining asylum-seekers in transit zones, and escorting illegal migrants back to the border “without prior compliance with the procedures and safeguards provided for in that directive” altogether constitute infringement of the EU’s laws.

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