Author
A new inadmissibility ground, a hybrid of the concepts of ‘safe third country’ and ‘first country of asylum’, was in effect from 1 July 2018[1] to 1 January 2023. Once an asylum application was lodged, the authorities systematically denied international protection to those who had arrived via Serbia, declaring these applications inadmissible under the new rules.[2] The applicant could rebut the NDGAP’s presumption of inadmissibility in 3 days, after which the NDGAP would deliver a decision.[3] In case the NDGAP decided the application is inadmissible, it also ordered the applicant’s expulsion, launching an alien policing procedure.
This inadmissibility ground was not compatible with current EU law as it arbitrarily mixes rules pertaining to inadmissibility based on the concept of ‘safe third country’ and that of ‘first country of asylum’. Article 33(2) of the recast Asylum Procedures Directive provides an exhaustive list of inadmissibility grounds, which does not include such a hybrid form. The Metropolitan Administrative and Labour Court turned to the CJEU, requesting a preliminary ruling on whether the July 2018 amendments to the Asylum Act violate the EU asylum acquis.[4] On 19 March 2020, the CJEU issued a judgement ruling that the new inadmissibility ground is against EU law, reiterating the stance of the HHC on this matter.[5]
Serbia has not readmitted any third-country national who does not have a valid visa or residence permit to stay in Serbia since October 2015, therefore the application of this inadmissibility ground was clearly malevolent.
The NDGAP did not examine whether Serbia would be willing to readmit the applicant before issuing an inadmissibility decision based on this hybrid ground, despite this being a condition for a country to be considered a first country of asylum, according to Article 35 of the recast Asylum Procedures Directive. In all final inadmissibility cases based on the hybrid of the concepts of safe third country and first country of asylum, the NDGAP would not withdraw its inadmissibility decision despite the fact that Serbia officially refused to admit the applicants back. Instead, the NDGAP’s alien policing department began an arbitrary practice of modifying internally the expulsion order issued by the NDGAP’s asylum department by changing the destination country from Serbia to the country of origin of the applicants. Against such internal modification no effective legal remedy is available under domestic legislation. This means that Hungary not only automatically rejected all asylum claims, but it also expelled asylum seekers to their countries of origin (such as Afghanistan) without ever assessing their protection claims in substance[6] According to the TCN Act, such modification of an expulsion order cannot be challenged at the court, however the HHC submitted an appeal and the Szeged Administrative and Labour court accepted it and referred a preliminary reference to the CJEU. On 14 May 2020, the CJEU issued a judgement[7] in which it ruled among other things that this inadmissibility ground is unlawful, that asylum-seekers have a right to continue their asylum procedures once a third country refuses to take them back and that the lack of judicial oversight over the immigration authority’s arbitrary decisions on changing the destination of expulsion breaches the right to an effective remedy.[8]
[1] Section 51(2)(f), and newly introduced Section 51(12) Asylum Act.
[2] FRA, Periodic data collection on the migration situation in the EU, November 2018, available at: https://bit.ly/2To4QI2.
[3] Section 51(12) Asylum Act.
[4] CJEU, Case C-564/18 LH, Reference of 7 September 2018.
[5] CJEU, C-564/18, 19 March 2020, LH v Bevándorlási és Menekültügyi Hivatal, available at: http://bit.ly/3Y64eHC.
[6] HHC, One year after. How legal changes resulted in blanket rejections, refoulement and systemic starvation in detention, 1 July 2019, available at: http://bit.ly/35V44Yn.
[7] CJEU, joint cases C-924/19 and C-925/19 PPU, 14 May 2020, available at: http://bit.ly/3lSJWDO.
[8] For further information, see previous updates of this report here: https://bit.ly/41vZs9h.