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Council of Europe
Country of Decision : Council of Europe
Court Name : CoE: European Court of Human Rights [ECHR]
Date of decision : 08/07/2021
Type : Judgment
ECLI :
Case Number/Citation/ Document Symbol : No 12625/17

Shahzad vs Hungary

According to the ECtHR's press release of 8 July 2021:

"The applicant, Khurram Shahzad, is a Pakistani national who was born in 1986 and lives in Gujrat (Pakistan). The applicant left Pakistan in about 2008-09 owing to alleged ill-treatment by the Pakistani military. He entered Greece but was unable to enter other European countries. In 2016 he arrived in Serbia via North Macedonia. According to the applicant he applied for asylum in Serbia unsuccessfully. He attempted to enter Hungary to claim asylum. He was returned. He stayed in the Subotica area and tried to enter Hungary several times, in vain. On 11 August 2016 the applicant again crossed the border irregularly with a group of others. Several hours later he and the other members of the group were apprehended by Hungarian police and removed to the other side of the border fence between Hungary and Serbia. No formal decision had been taken. Video footage showed the applicant and the others being left at the Serbian side of the border fence. The only way for the applicant to enter Hungary lawfully was through two transit zones. According to the applicant, access to them at the time was limited to 15 people. Asylum-seekers also had to register with one of the migrants (“the list manager”) before entry (he was refused once for being a single man). There was no official procedure for registering names on the waiting list and then allowing people from that list to enter the transit zone. As the applicant was unable to enter Hungary he stayed in Serbia. In late 2016 the applicant returned to Pakistan voluntarily. The Court found that despite having been removed to the strip of land on the other side of the border fence, which was technically Hungarian territory bordering on Serbia, the applicant had been expelled within the meaning of Article 4 of Protocol No. 4. The Court reiterated that the decisive criterion for an expulsion to be characterised as “collective” was the absence of “a reasonable and objective examination of the particular case of each individual alien of the group”. There were possible exceptions depending on the conduct of the individuals involved. It was not in dispute between the parties that the applicant had not been identified or had his situation ascertained before removal to Serbia. For the Court, the remaining question was whether this had been a result of his own conduct. The Court noted that the applicant had entered Hungary as part of a group. However, the Government had not argued that that had created a disruptive situation or a public-safety risk. There had been sufficient Government agents to control the situation; in any case the applicant and his companions had not used force or resisted. The Court reiterated that with regard to Contracting States like Hungary, which had an external Schengen Area border, the effectiveness of the Convention rights required that those States made available genuine and effective means of legal entry, in particular border procedures for arrivals at the border. In the applicant’s case, the access points available had been located 40 and 84 km away from where he had been returned to Serbia. The applicant argued that those zones had been inaccessible for him owing to the daily limit on entrants and the need to register beforehand. The Court considered that due to the daily admission limits, which had been quite low, and lack of any formal procedure accompanied by appropriate safeguards governing the admission of migrants Hungary had failed to provide an effective means of entry. As a result, the Court found that the applicant’s expulsion had been “collective” leading to a violation of his rights."

Access to procedures; Return/Removal/Deportation;

Return Directive (Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals); Revised Asylum Procedures Directive (Directive 2013/32/EU on common procedures for granting and withdrawing international protection) and/or APD 2005/85/CE; Revised Reception Conditions Directive (Directive 2013/33/EU laying down standards for the reception of applicants for international protection) and/or RCD 2003/9/CE;

EASO IDS

Council of Europe,CoE: European Court of Human Rights [ECHR], Shahzad vs Hungary, 08/07/2021
The ECtHR held that the applicant, a Pakistani national, was subjected to a collective expulsion when entering Hungary from Serbia.

https://caselaw.easo.europa.eu/pages/viewcaselaw.aspx?CaseLawID=1872

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