FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság
CJEU rules that placing those subject to a return decision in the Röszke transit zone at the Serbian-Hungarian border must be classified as ‘detention’
According to Press Release No 60/20 of the CJEU :
Afghan nationals (Case C-924/19 PPU) and Iranian nationals (Case C-925/19 PPU), who arrived in Hungary via Serbia, lodged applications for asylum from the Röszke transit zone, on the Serbian-Hungarian border. Pursuant to Hungarian law, those applications were dismissed as inadmissible and decisions requiring the applicants to return to Serbia were adopted. However, Serbia refused to readmit the persons concerned into its territory, on the ground that the conditions set out in the Agreement on readmission concluded with the EU were not met. Following that decision of Serbia, the Hungarian authorities did not examine the substance of the applications referred to above, but amended the country of destination mentioned in the initial return decisions, replacing it with the respective country of origin of the persons concerned. Those persons then lodged objections against the amending decisions which were rejected. Although no provision is made for such a remedy under Hungarian law, the applicants brought an action before a Hungarian court for annulment of the decisions rejecting their objections to those amending decisions and to have the asylum authority ordered to conduct a new asylum procedure. They also brought actions for failure to act relating to their detention and continuing presence in the Röszke transit zone. They were first obliged to stay in the sector of that transit zone reserved for applicants for asylum before being required, several months later, to stay in the sector of that zone that is reserved for third-country nationals whose asylum applications have been rejected, the sector which they are currently in.
The Court first held that detaining the persons concerned in that transit zone must be regarded as a detention measure. According to the Court, the conditions prevailing in the Röszke transit zone amount to a deprivation of liberty, inter alia because the persons concerned cannot lawfully leave that zone of their own free will in any direction whatsoever. In particular, they may not leave that zone for Serbia since such an attempt (i) would be considered unlawful by the Serbian authorities and would therefore expose them to penalties and (ii) might result in their losing any chance of obtaining refugee status in Hungary.
As regards the requirements related to detention, the Court held that, under Article 8 of the ‘Reception’ Directive and Article 15 of the ‘Return’ Directive respectively, neither an applicant for international protection nor a third-country national who is the subject of a return decision may be detained solely on the ground that he or she cannot meet his or her own needs. It added that Articles 8 and 9 of the ‘Reception’ Directive and Article 15 of the ‘Return’ Directive respectively preclude an applicant for international protection or a third-country national who is the subject of a return decision from being detained without the prior adoption of a reasoned decision ordering that detention and without the need for and proportionality of such a measure having been examined.
The Court also provided clarification on the requirements related to the continuation of detention and, more specifically, to the duration of detention. As regards applicants for international protection, it held that Article 9 of the ‘Reception’ Directive does not require Member States to lay down a maximum period for continuing to detain such applicants. By contrast, in the case of third-country nationals who are the subject of a return decision, it is apparent from Article 15 of the ‘Return’ Directive that their detention - even where it is extended - may not exceed 18 months and may be maintained only as long as removal arrangements are ongoing and are executed with due diligence.
Furthermore, as regards the detention of applicants for international protection in the particular context of a transit zone, it is also necessary to take account of Article 43 of the ‘Procedures’ Directive. […] although the Member States may, in the context of a procedure referred to in that Article 43, detain applicants for international protection who present themselves at their borders, that detention may not under any circumstances exceed four weeks from the date on which the application was lodged.
Lastly, the Court held that the lawfulness of a detention measure, such as the detention of a person in a transit zone, must be amenable to judicial review under Article 9 of the ‘Reception’ Directive and Article 15 of the ‘Return’ Directive respectively. […] Moreover, if, following its review, the national court considers that the detention measure at issue is contrary to EU law, that court must be able to substitute its decision for that of the administrative authority which adopted the measure and order the immediate release of the persons concerned, or possibly an alternative measure to detention.
Access to procedures; Asylum Procedures/Special Procedures; Border procedures; Detention/ Alternatives to Detention; Effective remedy; Non-refoulement; Reception/Accommodation; Safe Country concept/Safe Country of Origin/ Safe third country;
European Union, Court of Justice of the European Union [CJEU], FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság, C-924/19
C-925/19, ECLI:EU:C:2020:367, 14 May 2020. Link redirects to the English summary in the EASO Case Law Database.