The case concerned the interpretation of Article 33(2) and Article 46(3) of Directive 2013/32/EU (the recast Asylum Procedures Directive - APD), read in the light of Article 47 of the EU Charter of Fundamental Rights (EU Charter).

LH, a Syrian national applied for international protection in Hungary's transit zone in July 2018. The Immigration and Asylum Office rejected the application pursuant to Article 51 (2)(f) of the Law on the right to asylum as inadmissible without examining the substance of the application and found that the principle of non-refoulement did not apply to the applicant. The Immigration and Asylum Office issued a return decision requiring the person to leave the EU and return to Serbia, a removal order, and a two-year entry ban. LH appealed the decision before the Administrative Labour Court in Budapest, Hungary. The court noted that the list of inadmissibility grounds in Article 33(2) of the recast APD is exhaustive and was uncertain whether national legislation had introduced a new ground of inadmissibility, which could be contrary to EU law. The court also noted that national legislation provided a time limit of eight days for deciding appeals against inadmissibility decisions, and casted doubts on its compatibility with Article 31(2) of the recast APD and Article 47 of the EU Charter. Against this context, the Budapest Administrative and Labour Court stayed the proceedings and referred two questions to the CJEU.

The referring court asked whether Article 33 of Directive 2013/32 must be interpreted as not precluding national legislation which allows the rejection as inadmissible of an application for international protection because the applicant arrived on the territory of the Member State concerned via a State in which that person is not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed.

The CJEU recalled that Article 33(2) of the recast APD sets out an exhaustive list of situations in which Member States may consider an application for international protection as inadmissible. It then analysed whether the Hungarian national provision implemented one of the grounds of inadmissibility provided under Article 33(2) of the recast APD.  

It noted that the provision referred to two different situations giving rise to inadmissibility: 1) applicants arrive in Hungary via a State where they are not exposed to persecution or a risk of serious harm, and 2) applicants arrive in Hungary via a State in which a sufficient degree of protection is guaranteed. Given the content of the national provision, the court clarified that the grounds of inadmissibility set out in the respective legislation could constitute only the implementation of the concepts of first country of asylum and the safe third country pursuant to Article 33(2)(b) or (c) of the recast APD. Citing the Opinion of Advocate General, the court held that the application of the concept of a safe third country is subject to the cumulative satisfaction of all the conditions set out in Article 38(1) to (4) of the recast APD. In this respect, the court observed that the first situation envisaged in the national provision only applied some of the principles set in Article 38(1), and that the requirement of compliance with the principle of non-refoulement in the third country was absent.  On the second situation, the court held that it was for the referring court to ascertain the content of the ‘sufficient degree of protection' in the third country concerned and whether the principles laid down in Article 38(1) of the recast APD are complied with.                                            

Next, the court examined the conditions set out in Article 38(2) of the recast APD. It noted that the national provision established that a connection between the applicant and the third country was based simply on the applicant's transit through the territory of that third country.  The court concluded that transit alone was not capable of constituting ‘connection' within the meaning of Article 38(2)(a) of the recast APD. The court ruled that the connection must be sufficient to make the applicant's return to that third country reasonable. In addition, the court noted, aligning with the considerations of the Advocate General, that the obligation imposed on Member States to lay down rules to apply the concept of safe third country would be devoid of any purpose if transiting through the third country constituted a sufficient or significant connection to apply the concept.

Moreover, the court ruled that the national legislation could not be considered to implement the concept of first country of asylum since the situations envisaged did not include a situation in which the applicant would be recognised as refugee in that country and could avail himself to that protection or he would benefit otherwise of sufficient protection, including the principle of non-refoulement, given that the person will be readmitted to that country.

Since it cannot be regard as implementing one of the grounds of inadmissibility, the court concluded that Article 33 of the recast APD must be interpreted as precluding national legislation ' which allows an application for international protection to be rejected as inadmissible on the ground that the applicant arrived on the territory of the Member State concerned via a State in which that person was not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed'.

The second question concerned whether Article 46(3) of the recast APD read in conjunction with Article 47 of the EU Charter, must be interpreted as precluding national legislation that sets an eight-day time limit for a court to decide an appeal against an inadmissibility decision. Whilst the initial question referred to Article 31 of the recast APD, the CJEU clarified that it concerned the interpretation of Article 46 of the recast APD.

The CJEU observed that Article 46 does not lay down harmonised rules on time limits for decisions, but it authorises Member States to set such time limits. In this respect, the court recalled that the principle of procedural autonomy applies, provided that the principles of equivalence and effectiveness are respected. The court held that the requirements of a full and ex nunc examination may not necessarily entail a substantive examination of for international protection but only the admissibility of the application for international protection. In such a case, it reminded that an appeal directed against a decision to reject an application as inadmissible on grounds of applying the concepts of a first country of asylum or safe third country require a full and up-to-date examination in order to determine whether the applicant will benefit of sufficient protection in that third country or whether that country could be considered as a safe third country for the applicant. Such determination includes also an assessment of each of the cumulative conditions provided for those grounds of inadmissibility. 

The court recalled that, a national court must disapply the national legislation imposing the time limit as imperative when that is incompatible with the principle of effectiveness. However, in  light of recital 18 of the recast APD, the court reiterated that the obligation for the court to disapply incompatible national legislation cannot exempt it from any obligation to act expeditiously but it simply requires that that court regard the time limit imposed on it as indicative and to adopt a decision as soon as possible when such a time limit is exceeded.

The CJEU concluded that Article 46 (3) of the recast APD, read in view of Article 47 of the EU Charter, must be interpreted as precluding national legislation which provides a time limit of eight-day for a court to decide an appeal against a decision to reject an application as inadmissible when that court is unable to ensure the effectiveness of the substantive rules and procedural guarantees of the applicant, within such time limit.