A – pyrrhic? – victory concerning detention in transit zones and procedural rights: FMS & FMZ and the legislation adopted by Hungary in its wake
On 14 May 2020 the Grand Chamber of the CJEU delivered its judgment in the urgent preliminary ruling procedures concerning an Afghan couple (FMS and FNZ) and an Iranian father and son (SA and SA junior) all being held in the transit zone of Röszke in Hungary. The judgment (of which no English text exists yet) is of major importance for several reasons: it confirms that holding of asylum applicants at the external border in the transit zone is detention, clarifies that such detention must be necessary and proportionate, be ordered in a formal decision and entail judicial review and must not go beyond the limits of the border procedure as defined by the Asylum Procedures Directive. It also rejects the extension of the inadmissibility grounds of the Procedures Directive, by adding the new ground of “safe transit country”.
Interestingly, it makes evident that the judgment of the Grand Chamber in the Ilias and Ahmed case of the ECtHR adopted in November 2019 was wrong in evaluating the facts and finding that the “waiting” in the transit zone was not detention and makes clear that the ECtHR judgment now is largely irrelevant as it would only apply to border-procedure cases which are absent from Hungary’s practice since 2017. This blog post reviews the judgment (I) as well as the Hungarian Government’s reaction to it (II) with the adoption of a procedure which presumes that asylum seekers get legal access to Hungary after applying for a travel document at Hungary’s embassies outside of the Schengen area.
I. The essence of the judgment
All the four persons submitted an asylum application to the Hungarian refugee authority which were found inadmissible as the applicant “arrived through a country where he or she is not exposed to persecution … or to serious harm…, or in the country through which the applicant arrived in Hungary provides an adequate level of protection.” (Section 52 (2) f of the Act LXXX of 2007). Therefore the applicants were subjected to a return decision to Serbia and placed into “aliens detention”, still in Röszke, but in another segment of the transit zone. Serbia denied their readmission on the basis of the EU-Serbia readmission agreement of 2007 claiming that the persons had not “illegally” entered the territory of Hungary when they were admitted to the transit zone by the Hungarian authorities. Thereafter the return decision was changed without any hearing or scrutiny of the applicability of the non-refoulement rule and the new countries designated were Afghanistan and Iran respectively.
The Szeged Court raised five questions. The first asked whether the new inadmissibility ground of the safe transit country was compatible with article 33 of the procedures Directive. The second set related to the relationship of inadmissibility and the denial by that third state to readmit the person. Third, the CJEU was to decide if holding of persons under the asylum procedure in the transit zone amounted to detention and if so, what the preconditions and time limits of such detention were. The fourth question also dealt with detention, but here in the context of the Return Directive. Finally, the fifth question asked what qualifies as effective remedy in the context of changing the destination country in a return case.
1. Safe transit country
In respect of the new inadmissibility ground, the Government could not entertain any hopes as, less than two month before, the CJEU found the new inadmissibility ground of the safe transit country incompatible with the Procedures Directive in the case LH (no English text is available). The lines of argument in both judgments are (occasionally literally) the same. The Hungarian rule on safe transit countries does not incorporate a prohibition from refoulement from that country into yet another country, does not define what adequate protection means, and does not meet the criteria enshrined in Article 38 para 2. Both judgments stress that mere transit through a country does not constitute a “connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country.” (Paragraph 159 of FMS, paragraph 50 of LH Paragraph). Both judgments note that the Hungarian rules make no room for individual scrutiny of the safety of the country in respect of the applicant. (FMS § 158, LH § 48). Finally, in both cases, the court restates the obvious: that the Hungarian rules cannot be interpreted as applying Article 35 of the Procedures Directive on the first country of asylum. (FMS § 161-163, LH § 52-54).
2. Subsequent procedure
In responding to the second set of questions for a preliminary ruling, the Court only gave a partial answer. It declined to clarify whether in the new procedure, started after the inadmissibility ground of the safe transit country was disqualified, the domestic court may still find inadmissibility on other (for example safe third country) grounds. Nor did the Court decide if the actual readmission is a precondition of adopting an inadmissibility decision or the prospect of readmission may be clarified after the decision. Then it engaged the thorny issue of tackling final judgments that were based on the impermissible ground of the safe transit country, in other words on a rule of domestic law that was found to be incompatible with EU law. The Court refrained from suggesting that all such decisions be considered void or ought to be ex officio reviewed. Relying on Kempter and the cases cited therein, it stressed the principle of legal certainty as a ground for not requiring the authority or the domestic court to review its own earlier decision. However, the affected person must have the right to submit a new application and in that case, the application must not be treated as a subsequent application without new elements, as the judgment of the CJEU disqualifying the inadmissibility ground is a new element (FMS, § 195). The Court also notes that the domestic court reviewing the legality of the expulsion decision can revisit the refusal of the application for international protection and review its validity. (FMS, § 199).
The Court’s view on the practice of holding people for many months, occasionally for more than a year, in the transit zone was awaited with excitement. As I have shown elsewhere detention has always been the Achilles heel of the Hungarian asylum system, generating a long list of ECtHR judgments condemning the ever changing – but never human rights conformant – practice. Since the extension of the fiction of “crisis situation caused by mass immigration” to the whole territory of the country in 2017, practically everyone who intends to apply for asylum and has no right to stay in Hungary is forced to pass through the fence with Serbia wherefrom she can approach the transit zone container and apply for international protection. That moment the detention starts and lasts until the final judgment in the case – unless the person voluntarily (and illegally) returns to Serbia. The period extends to several hundred days.
In light of these developments, it was of paramount importance how the CJEU would assess this practice. Almost a hundred paragraphs were devoted to the issue, half of the substantive part of the judgment. The Court is sympathetic with the aspirations of states intending to detain asylum seekers – as was the ECtHR in the Ilias and Ahmed case – and offers interpretations that may not find support across liberal academia. But eventually, it firmly and unequivocally rejected the present practice of the Hungarian government.
There is however a restrictive feature of the Court’s position on detention when it refuses to accept that an absolute time limit to detention of asylum seekers ought to be set in contrast to the maximum 18 months under article 15 of the Return Directive. This amounts to a licence to long-lasting detention, provided the conditions set by the Court are met. The Court is at pains to identify those conditions in such a way as to avoid endless detention in practice. One can pinpoint seven conditions of a justified detention: it is not based on the fact that the applicant does not have means to support herself/himself (§ 256); it has been established in an individual assessment that less coercive alternatives to detention would not be effective (§ 258); therefore detention must be necessary (as no alternatives exist) and proportionate to the aims (§ 258); detention must be based on an administrative or judicial decision (§ 259); a court review of the administrative decision ordering detention must be available (§§ 260-261); there must be effective procedural guarantees enabling the termination of detention when it is no longer necessary or proportionate (§ 264); detention may only last while the grounds justifying it exist and finally the authorities must exercise due diligence in procedures affecting those grounds. (§ 265)
Applying these qualitative criteria may be more demanding than observing a fixed maximum length, but the emphasis on alternatives, necessity and proportionality are a welcome difference from the jurisprudence of the ECtHR which still insists that “Article 5 § 1 (f) does not demand that detention be reasonably considered necessary” as the Guide on Article 5 produced by the ECtHR, published in 2020 April puts it.
The contrast with the ECtHR decision in Ilias & Ahmed
When it comes to the actual assessment of the Hungarian measures, the Court fully identifies with the critics of that practice. First, it expands the definition given in Article (2) h of the Reception Conditions Directive and concludes that detention “constitutes a coercive measure which deprives the applicants of their freedom of movement and isolates them from the rest of the population, by requiring them to remain continuously within a restricted and closed area”. Applying that definition to the situation in the transit zone, the Court concludes that holding the applicants there amounts to detention as the definition applies and the third country nationals “cannot leave the zone voluntarily in any direction”. (§ 230)
That finding is in welcome contrast to the evaluation by the Grand Chamber of the ECtHR in Ilias and Ahmed of the facts prevailing in the transit zone. The Strasbourg Court accepted the fiction promoted by the Hungarian Government, according to which applicants in the transit zone are not detained as they can leave it towards Serbia at will. The judgment of the ECtHR bleeds from two incurable wounds: first the court itself admits that “It is probable that the applicants had no legal right to enter Serbia…[but] .. the de facto possibility of them leaving the transit zone for Serbia existed, not only in theory but also in practice”. (Para 237 of Ilias and Ahmed). That de facto possibility entailed a clear breach of Serbian law and was not a right of the applicant, therefore they could only regain their liberty at the expense of a crime or misdemeanour. That is no better argument than claiming that prisoners who de facto can escape the jail are in fact not detained. The second wound hides in the fact that the Court itself acknowledged that return to Serbia entails the risk of chain-refoulement and exposure to treatment contrary to Article 3 of the ECHR, nevertheless it expected applicants to take that risk in order to regain their liberty.
In the FMS case the Court made it clear, that since (re-)entry into Serbia is impossible without the threat of sanctions one must not assume that the applicants had a de facto possibility to leave the Röszke transit zone. (FMS, § 229) It noted that the regime of accommodation in the transit zone did not differ from a system of detention – therefore it amounted to detention.(§ 231)
After pronouncing that the “detention” has the same meaning in the Return Directive as well (§ 231), the Court scrutinised whether it could be justified under the border procedure rules or under Article 15 of the Return Directive. First it found that detention in the transit zone does not qualify as border procedure, as that could not last for more than four weeks (§ 246). Then it stressed that detention there is neither in conformity with the Return Directive as the alternatives to it were not examined, so its necessity was not proven, neither was its proportionality, especially as no separate resolution on detention has ever been taken. (§ 275) Illegality of the detention also flows from the lack of proper habeas corpus (§ 277) and from the fact that it could exceed 18 months (§ 281).
The dire situation of the Hungarian rule of law is reflected by the fact that the Court – just like in the Torubarov case – felt it necessary to equip the domestic courts with a power they did not have under Hungarian law: to review and if needed to end detention even when no separate habeas corpus exists under the national law (§ 291) and to adopt provisional measures securing material reception conditions for those freed from detention. (§ 301)
4. Scope of the return and asylum directives
The general restrictive direction of the judgment is reflected in the position, already taken in Gnandi, according to which the stay of the applicant becomes illegal after the first instance rejection of the application for international protection. The awkward position adopted in Gnandi was that the person is staying illegally, but still has a right to remain if that is provided in national law (Gnandi, § 43). In FMS, the Court took the same position ignoring a major difference between the two cases. Gnandi had an in-merit assessment of his application for protection, including a full appeal and found not to be in need of international protection. FMS and the other three persons in this case never had the essence of their claim investigated. No authority ever denied that they were refugees. The inadmissibility of their application was derived from a procedural rule, which eventually was found to be in breach of the applicable EU law. Nevertheless, the Court maintains its confusing doctrine, denying the bona fide nature of an application, the merit of which had never been scrutinized. It accepts that after the first administrative decision, during the appeal phase the applicant is within the scope of the Return Directive and the Procedures Directive as well as the Reception Conditions directive. At the same time, it admits at least that Article 15 of the Return Directive allowing detention cannot be applied in respect of the applicant as long as the appeal procedure goes on (FMS, § 213).
5. Change of destination country
A change in the destination country of a return decision (expulsion) may have fatal consequences. The Court flatly refused the Government’s argument that the change is nothing more than a decision on removal, implementing a return decision (§ 120) and made clear that a change in the destination country amounts to a new return decision against which the applicant must have effective remedy – not last to check if return would amount to refoulement. (§ 116 and 118-119).
II. The adoption of a new system by Hungary in reaction to the judgment
As the transit zones and the fence with Serbia and Croatia constitute core pillars of the anti-migration securitising discourse pursued since 2015, it was no surprise that the government’s immediate reaction was “no pasaran”. According to the Government’s homepage, the Chief Security Advisor to the Prime Minister, Mr Bakondi on the main public television channel offered the following comment to the judgment: “the ‘non-governmental organisations organised by George Soros’, left-wing liberal parties and the apparatus of the European Union have made every effort to enable migrants to transit through Hungary and to eliminate border controls, meaning to enforce the interests and political goals of others instead of the will of the Hungarian people” and therefore “Hungary does not wish to change its tried and tested migration policy”. The Minister for Justice essentially joined the choir by stating that the European Court wants “to force Hungary to let immigrants in uncontrolled and to allow their continued residence in the country. This is unacceptable and contrary to Hungary’s Fundamental Law.” Hopefully, the account of the judgment above made it clear that this was not the Court’s intention.
The steel-hard words notwithstanding, the Government adopted dramatic changes under the special legal order in force. By government decree 233/2020 (V.26), it created a system totally different from the Asylum Act of LXXX of 2007 and also from the system operated in times of the – fictitious – crisis situation caused by mass migration. The essence of the system introduced is that asylum applications cannot be submitted unless someone is already enjoying subsidiary protection in Hungary, is a family member of a person enjoying international protection in Hungary, or is subjected to a law enforcement measure affecting her liberty. Yes, asylum application cannot be submitted at all beyond these three particular situations! Neither in the country, nor in the transit zone, nor at the border or anywhere on the globe.
But there is more: the new scheme introduces also a move of undefined legal nature, called “declaration of intent”. That declaration may only be submitted at an embassy of Hungary (not at a consulate or commercial representation!) located outside the Schengen area. In Sub-Saharan Africa, Hungary has three embassies in Abuja, Nairobi and Pretoria. The person seeking asylum in Hungary must appear in person at the embassy, let her photo be taken, produce documents about her identity and – if the Hungarian authority so decides – participate in a “remote hearing” with the asylum authority. Within 60 days the asylum authority (in Hungary) “informs” the embassy whether to issue or not an unspecified “travel document” to the person. With that travel document the persecuted person is supposed to make her way to Hungary, where at the border she must declare her intention to apply for asylum and, once encountering the asylum authority within Hungary, she then becomes an asylum applicant exercising the rights of asylum seekers. Those who irregularly show up at the border (without a previous declaration of intent) are “directed” to the embassy in the neighbouring state from which the person “illegally” entered.
The decree excludes the application of the border procedure and the airport procedure otherwise applicable during the crisis situation caused by mass migration. The transit zones have been closed, their inhabitants transferred either to open reception centres or to alien policing closed institutions if already in the phase of removal after a rejection of the asylum application. Why were the transit zones closed when the Court did not order that? Because after four weeks those in the border procedure ought to be given entry into Hungary, and that is what the Government intends to avoid at any cost. Prime Minister Orbán in his weekly public radio interview a week after the judgment of the CJEU left no doubts as to his intentions:
“So if someone wants to come to Hungary, they should go along to our embassy in Belgrade, or any other Hungarian embassy, and submit their request there. When they arrive in order to enter Hungary, they can wait somewhere outside the fence – but under no circumstances in the territory of Hungary. Then the Hungarian authorities will make a ruling and we will notify them. This is the new order. I think this is worse for migrants than it was earlier, but if the Brussels bureaucrats want it that way, then we will satisfy that demand.”
In the end, this did not exactly become the new order as the adopted rules envisage an asylum procedure within Hungary once the letter of intent led to the issuance of a travel document. According to bill T – 10748 pending in Parliament, exactly the same rules should become law after the end of the state of danger and the revocation of the special legal order, and remain in force until the end of 2020.
The list of the critical questions raised by the Decree cannot be reviewed due to its length: how does the “travel document” to be issued relate to a humanitarian visa, or a Schengen visa, especially when access to Hungary presumes transit through other countries? From which moment is the asylum acquis applicable? The Qualification Directive does not incorporate the clear territorial limitations the Procedures Directive and the Reception Conditions directive do. How would the Dublin system function in a case where the admitted person has family members in other EU states bound by the regulation? Which is the moment from which the person making the declaration of intent is under Hungarian jurisdiction and therefore beneficiary of Hungary’s human rights obligations? Why would the states tolerate the presence of persons who after irregular entry into Hungary are “directed” from Hungary to these countries (primarily Ukraine, Romania, Serbia, Croatia)? All that should be analysed in the context of X and X v Belgium, M.N. and others v Belgium and N.D and N.T v Spain. Let us stop here, although there are many more lacunae in the system.
As to the clearly illegal features of the system: as it stands now, it does not allow persons who are regularly in Hungary to submit an asylum application from within Hungary. That defies the basic principles of international refugee and EU asylum law. The procedure to be followed before arrival to Hungary in most likelihood breaches general principles of law, including the right to effective remedy, as well as the duty to cooperate between states and it entails a more than serious threat of refoulement.
Conclusion: A Pyrrhic victory?
Whose pyrrhic victory you may ask? Is it the CJEU’s, forcing on Hungary an interpretation its government does not wish to accept and so in response erects even more hurdles in front of the asylum seeker? Is it Hungary’s which, in the wake of the judgment, creates a “system” which is even less tenable than the one criticised in the judgment and thereby sews the seeds of even more confrontation with the EU, UNHCR, the NGO sector, the Pope and anyone who takes to heart the moral duty of assisting those in need of protection?
Still, on balance, the Grand Chamber judgment is important as it serves as clear guidance to the rest of the EU. Demanding that detention be necessary and proportional (and not only non-arbitrary), fixing – again – that no member States may invent additional inadmissibility grounds, openly taking issue with the European Court of Human Rights as to the nature of the transit zone regime are steps in the direction of preserving the values enshrined in Article 2 TEU. The Court was not as brave as to declare that asylum detention must not last indefinitely even if the grounds are there; it did not change its doctrine and demand the automatic review of administrative decisions adopted according to a domestic rule that is incompatible with EU law, true. But for a commentator who is witnessing the eradication of refugee protection in his country, even those modest gestures are a source of comfort.