LH v Bevándorlási és Menekültügyi Hivatal [Hungary]
The CJEU ruled on the compatibility of short time limits in appeals against inadmissibility decisions with the requirements of the right to effective remedy provided in the recast Asylum Procedures Directive, Article 46(3)
This request for a preliminary ruling concerns the interpretation of Articles 33 and 46 (3) of Directive 2013/32/EU, as well as Article 47 of the EU Charter. This request was made in the context of a dispute between LH and the Bevándorlási és Menekültügyi Hivatal (Immigration and Asylum Office, Hungary) following the latter's decision to reject the request of LH for international protection as inadmissible, without examination on the merits, and to order his removal, accompanied by a ban on entry and stay for a period of two years.
The CJEU also ruled on the transposition in the national legislation of the safe third country and first country of asylum concepts as defined in the APD. The Court noted that Hungarian legislation provides only partly the conditions of art. 38 revised Directive 2013/32 and ruled that ‘it is only where national legislation which has the effect of dismissing an application for international protection as inadmissible satisfies all of the conditions set out in Article 38 of Directive 2013/32 that such legislation could constitute an application of the ground of inadmissibility laid down in Article 33(2)(c) of that directive.’ (par. 33 - 56). The national legislation is compliant only with some of the principles and the Court highlighted that the conditions of Article 38 are cumulative. Moreover, the Court noted that in the present case the connection between the applicant for international protection and the third country concerned, that the national legislation at issue in the main proceedings establishes, is based simply on the applicant’s transit through the territory of that country. The Court found that ‘the application of the ground of inadmissibility laid down in the national legislation at issue in the main proceedings is not subject to the applicant for international protection benefiting, in the country concerned, from refugee status or otherwise sufficient protection, with the result that it there is no need to examine the need for protection in the European Union’, consequently the concept of first country of asylum was also not transposed in the national legislation.
The referring court considered that it is impossible to give a complete examination in line with substantive and procedural safeguards within a time limit of 8 days, as provided by national law, compared to 60 days in the regular procedure.
The CJEU observed that the recast Asylum Procedures Directive, Article 46, does not lay down harmonised rules on time limits for decisions, but it authorises the Member States to set such time limits, as well as detailed procedural rules in accordance with the principles of procedural autonomy, equivalence and effectiveness. The CJEU also noted that a court hearing an appeal against a decision rejecting an application as inadmissible must carry out a full and ex nunc examination as referred in the recast Asylum Procedures Directive, Article 46(3), not necessarily involving a substantive examination of the need for international protection.
Regarding the 8-day time limit, the CJEU held that it cannot be ruled out that such a time limit might be sufficient in clearly inadmissible cases but may be insufficient for the court to provide all the relevant substantive and procedural guarantees of an effective remedy, including the right to an interpreter, the possibility of communicating with the UNHCR, the right to access information, the right to free legal assistance and representation and the specific needs of vulnerable persons.
The CJEU also noted that where the time limit is insufficient, the principle of effectiveness of EU law obliges the court to disapply the national legislation that imposed the time limit.
Thus, the CJEU ruled that the recast Asylum Procedures Directive, Article 46(3) precludes national law that provides time limits to review a case, if in that timeframe the court may not guarantee the procedural guarantees and the effective implementation of EU law.
Assessment of Application; Effective remedy; Safe Country concept/Safe Country of Origin/ Safe third country; Second Instance determination;
European Union, Court of Justice of the European Union [CJEU], LH v Bevándorlási és Menekültügyi Hivatal [Hungary], C‑564/18, EU:C:2020:218, 19 March 2020. Link redirects to the English summary in the EASO Case Law Database.