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The Grand Chamber of the CJEU ruled that Hungary failed to fulfil its obligations under EU law, under the Asylum Procedures Directive, the Reception Conditions Directive and the Return Directive. According to the CJEU Press Release:
"In the first place, the Court holds that Hungary has failed to fulfil its obligation to ensure effective access to the procedure for granting international protection, in so far as third country nationals wishing to access, from the Serbian-Hungarian border, that procedure were in practice confronted with the virtual impossibility of making their application. That failure stems from a combination of the national legislation, according to which applications for international protection may, as a general rule, be made only in one of the two transit zones, and a consistent and generalised administrative practice, established by the Hungarian authorities, consisting in drastically limiting the number of applicants authorised to enter those zones each day. For the Court, the existence of that practice has been sufficiently demonstrated by the Commission, which relied on a number of international reports. In that context, the Court recalls that the making of an application for international protection, prior to its registration, lodging and examination, is an essential step in the procedure for granting that protection and that Member States cannot delay it unjustifiably. On the contrary, Member States must ensure that the persons concerned are able to make an application, including at the borders, as soon as they declare their wish of doing so.
In the second place, the Court confirms, as it has recently held, that the obligation on applicants for international protection to remain in one of the transit zones for the duration of the procedure for examination of their application constitutes detention, within the meaning of the Reception Directive. That matter having been clarified, the Court finds that this system of detention was established outside the cases set out in EU law and without observance of the guarantees which must normally govern it.
After all, first, the Court recalls that the situations in which the detention of an applicant for international protection is authorised are listed exhaustively in the Reception Directive. After analysing each of those situations, however, it concludes that the Hungarian system is not covered by any of them. The Court examines in particular the situation in which a Member State may detain an applicant for international protection in order to rule on his or her right of entry into its territory, that detention being able to take place in the context of procedures applied at the border, with a view to verifying, before granting a right of entry, whether the application is not inadmissible or whether it is unfounded for certain specific reasons. The Court considers, however, that the conditions in which detention is authorised in the context of those border procedures are not fulfilled in this case.
Second, the Court emphasises that the Procedures and Reception Directives require, inter alia, that detention be ordered in writing with reasons, that the specific needs of applicants identified as vulnerable and in need of special procedural guarantees be taken into account, in order that they receive ‘adequate support’, and that minors be placed in detention only as a last resort. Owing, in particular, to its systematic and automatic nature, however, the detention regime provided for under the Hungarian legislation in the transit zones, which concerns all applicants other than unaccompanied minors under 14 years of age, does not allow applicants to enjoy those guarantees.
Moreover, the Court rejects Hungary’s argument that the migration crisis justified derogating from certain rules in the Procedures and Reception Directives, with a view to maintaining public order and preserving internal security, in accordance with Article 72 TFEU. In that regard, it recalls that that article must be interpreted strictly and considers that Hungary does not demonstrate sufficiently its necessity of having had recourse to it. In addition, the Court points out that the Procedures and Reception Directives already take into account the situation where a Member State must face a very significant increase in the number of applications for international protection, since they provide, by specific provisions, for the possibility of departing from some of the rules imposed in normal times.
In the third place, the Court holds that Hungary has failed to fulfil its obligations under the Return Directive, in so far as the Hungarian legislation allows for the removal of thirdcountry nationals who are staying illegally in the territory without prior compliance with the procedures and safeguards provided for in that directive. On that point, the Court notes that those nationals are forcibly escorted, by the police, from the other side of a fence erected a few metres from the border with Serbia, to a strip of land devoid of any infrastructure. According to the Court, such forced deportation is equivalent to removal, within the meaning of the Return Directive, the persons concerned in practice having no choice other than leaving Hungarian territory afterwards and going to Serbia. In that context, the Court recalls that an illegally staying thirdcountry national falling within the scope of the Return Directive must be the subject of a return procedure, in compliance with the substantive and procedural safeguards established by that directive, before his or her removal, where appropriate, is carried out, it being understood that forced removal is to take place only as a last resort. Furthermore, for reasons similar to those set out above, the Court rejects Hungary’s line of argument according to which it was allowed, pursuant to Article 72 TFEU, to derogate from the substantive and procedural safeguards established by the Return Directive.
In the fourth place, the Court considers that Hungary has not respected the right, conferred, in principle, by the Procedures Directive on any applicant for international protection, to remain in the territory of the Member State concerned after the rejection of his or her application, until the time limit within which to bring an appeal against that rejection or, if an appeal has been brought, until a decision has been taken on it. After all, the Court notes that, when a ‘crisis situation caused by mass immigration’ has been declared, the Hungarian legislation makes the exercise of that right subject to detailed rules not in conformity with EU law, in particular the obligation to remain in the transit zones, which resembles detention contrary to the Procedures and Reception Directives. On the other hand, when such a situation has not been declared, the exercise of that right is made subject to conditions which, while not necessarily contrary to EU law, are not defined in a sufficiently clear and precise manner to enable the persons concerned to ascertain the exact extent of their right and the compatibility of those conditions with the Procedures and Reception Directives to be assessed."
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