An Afghan national was detained pending his asylum proceedings. The applicant crossed the border with Hungary clandestinely and submitted an asylum request on 29 August 2014. On the same day the asylum authority commenced the asylum proceedings and ordered his detention relying on section 31/A (1) (a) and (c) of the Asylum Act, to clarify the applicant’s identity as he did not have travel documents, lacked connections in the country or subsistence resources, and there was a risk of absconding. He was granted a residence permit on humanitarian grounds for the duration of the asylum proceedings. The Nyírbátor District Court prolonged his detention two times. The applicant was released on 26 November 2014. The applicant received refugee status in Hungary.

The applicant complained under Article 5(1) of the European Convention that his asylum detention was unlawful.

The Hungarian Government argued that the applicant’s detention fell under Article 5(1)(f) of the European Convention as he was detained pending the determination of his right to enter and stay in Hungary. The ECtHR did not accept that detention was meant to prevent unauthorised entry to the country, considering that the applicant was provided with a residence permit on humanitarian grounds in line with the national law and he had this permit throughout the asylum proceedings.

The court also noted that detention did not fall under Article 5(1)(b), for non-compliance with the lawful order of a court or in order to secure the fulfilment of an obligation prescribed by law.

Thus, the court found a violation of Article 5(1) of the European Convention.