The placing of asylum seekers or third-country nationals who are the subject of a return decision in the Röszke transit zone at the Serbian-Hungarian border must be classified as ‘detention’

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Press and Information

Court of Justice of the European Union

PRESS RELEASE No 60/20

Luxembourg, 14 May 2020

Judgment in Joined Cases C-924/19 PPU and C-925/19 PPU

FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi

Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság

The placing of asylum seekers or third-country nationals who are the subject of a

return decision in the Röszke transit zone at the Serbian-Hungarian border must be

classified as ‘detention’

If, following judicial review of the lawfulness of such detention, it is established that the persons

concerned have been detained for no valid reason, the court hearing the case must release them

with immediate effect

In the judgment in Országos Idegenrendézeti Żigazgatóság Dél-alföldi Regionális Igazgatóság (C-

924/19 PPU and C-925/19 PPU), delivered on 14 May 2020 in the context of the urgent preliminary

ruling procedure, the Grand Chamber of the Court ruled on a number of questions relating to the

interpretation of Directives 2008/115

(‘the “Return” Directive’), 2013/32

(‘the “Procedures”

Directive’) and Directive 2013/33

(‘the “Reception” Directive’), in relation to the Hungarian

legislation on the right to asylum and the return of illegally staying third-country nationals.

In the present case, 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.

In the first place, the Court examined the situation of the persons concerned in the Röszke transit

zone, in the light of the rules governing both the detention of applicants for international protection

(the ‘Procedures’ and ‘Reception’ Directives) and that of illegally staying third-country nationals

(‘the Return Directive’). In that regard, the Court first held that detaining the persons concerned

in that transit zone must be regarded as a detention measure. In reaching that conclusion, it

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and

procedures in Member States for returning illegally staying third country nationals (OJ 2008 L 348, p. 98).

Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for

granting and withdrawing international protection (OJ 2013 L 180, p. 60).

Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the

reception of applicants for international protection (OJ 2013 L 180, p. 96).

Agreement between the European Community and the Republic of Serbia on the readmission of persons residing

without authorisation, annexed to the Council Decision of 8 November 2007 (OJ 2007 L 334, p. 45).

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stated that the concept of ‘detention’, which has the same meaning in the context of the various

directives cited above, refers to a coercive measure which presupposes the deprivation, and not a

mere restriction, of the freedom of movement of the person concerned and isolates that person

from the rest of the population, by requiring him or her to remain at all times within a limited and

closed area. 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.

The Court then examined whether that detention complies with the requirements imposed by EU

law. 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. However, their national law must

ensure that the detention lasts only for as long as the ground for detention remains applicable and

that the administrative procedures associated with that ground are executed diligently. 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. It follows from that provision that Member States may require applicants for international

protection to stay at their borders or in one of their transit zones in order, inter alia, to examine,

before taking a decision on the rights of entry of those applicants into their territory, whether their

applications are admissible. A decision must nevertheless be adopted within four weeks, failing

which the Member State concerned must grant the applicant the right to enter its territory and

process his or her application according to the ordinary procedure of civil law. Therefore, 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. Therefore, in the absence of national

rules providing for such a review, the principle of the primacy of EU law and the right to effective

judicial protection require the national court hearing the case to declare that it has jurisdiction to

rule on the matter. 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.

Furthermore, an applicant for international protection whose detention, which has been found to be

unlawful, has ended must be able to rely on the material reception conditions to which he or she is

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entitled during the examination of his or her application. In particular, it is apparent from Article 17

of the ‘Reception’ Directive that, if the applicant has no means of subsistence, he or she is entitled

to either a financial allowance enabling him or her to find accommodation, or to housing in kind. To

that end, Article 26 of the ‘Reception’ Directive requires that such an applicant be able to bring an

action before a court aimed at guaranteeing that right to accommodation, that court having the

possibility of granting interim measures pending its final decision. If no other court has jurisdiction

under national law, the principle of primacy of EU law and the right to effective judicial protection

require, once again, the court seised to declare that it has jurisdiction to hear the action aimed at

guaranteeing that right to accommodation.

In the second place, the Court ruled on the jurisdiction of the national court to hear an action for

annulment brought by the persons concerned against the decisions rejecting their objections to the

amendment of the country of return. In that regard, the Court stated that a decision amending the

country of destination mentioned in the initial return decision is so substantial that it must be

regarded as a new return decision. Under Article 13 of the ‘Return’ Directive, the addressees of

such a decision must then have an effective remedy against it, which must also be consistent with

the right to effective judicial protection guaranteed by Article 47 of the Charter of Fundamental

Rights of the European Union (‘the Charter’). To that end, the Court observed that, although

Member States may make provision for return decisions to be challenged before authorities other

than judicial authorities, the addressee of a return decision adopted by an administrative authority

must however, at a certain stage of the procedure, be able to challenge its lawfulness before at

least one judicial body. In the present case, the Court observed that the persons concerned could

challenge the decisions taken by the aliens policing authority amending their country of return only

by lodging an objection before the asylum authority and that no subsequent judicial review was

guaranteed. The asylum authority, which operates under the authority of the minister for policing, is

part of the executive, so that it does not satisfy the condition of independence required of a court

for the purpose of Article 47 of the Charter. In such circumstances, the principle of the primacy of

EU law, as well as the right to effective judicial protection, require the national court hearing the

case to declare that it has jurisdiction to hear the action seeking to challenge a return decision

amending the initial country of destination, by disapplying, if necessary, any national provision

which might prohibit it from doing so.

In the third place, the Court examined the ground of inadmissibility laid down in the Hungarian

legislation used to justify the rejection of the applications for asylum. That legislation allows such

rejection where the applicant has arrived in Hungary via a country classified as a ‘safe transit

country’ in which he or she is not exposed to persecution or to a risk of serious harm, or in which a

sufficient degree of protection is guaranteed. Recalling its recent case-law,

the Court stated that

such a ground is contrary to Article 33 of the ‘Procedures’ Directive, before specifying the

consequences thereof for the asylum procedure, in so far as the rejection of the asylum

applications of the persons concerned, which is based on that unlawful ground, has already been

confirmed by a final judicial decision. According to the Court, in such a case, it is apparent from the

‘Procedures’ Directive, in conjunction, in particular, with Article 18 of the Charter, which guarantees

the right to asylum, that the authority which has rejected the asylum applications is not required to

review them of its own motion. However, the persons concerned may still lodge a new application,

which will be classified as a ‘subsequent application’ for the purpose of the ‘Procedures’ Directive.

In that regard, although Article 33 of that directive provides that a subsequent application which

does not refer to any new elements or findings may be regarded as inadmissible, the existence of

a judgment of the Court finding that a ground of inadmissibility provided for in national legislation is

contrary to EU law must be regarded as a new element. In addition, more generally, the Court held

that the ground of inadmissibility provided for in Article 33 of that directive is not applicable where

the asylum authority finds that the definitive rejection of the first application for asylum was contrary

to EU law. That is necessarily the case where that conflict arises, as in the present case, from a

judgment of the Court of Justice or where it has been found incidentally by a national court.

Case: C-564/18 Bevándorlási és Menekültügyi Hivatal (Tompa).

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NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes

which have been brought before them, to refer questions to the Court of Justice about the interpretation of

European Union law or the validity of a European Union act. The Court of Justice does not decide the

dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s

decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.

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