The applicants are seven Yemeni nationals who live in Vienna (Austria) and three Afghan nationals who live in Hamburg (Germany). They are two families. The case concerns the applicants’ alleged collective expulsion from Hungary to Serbia without an individualised assessment of their situation. They were stopped in Budapest International Airport in April 2019 arriving from Istanbul in the case of the Yemeni applicants (no. 56417/19), and December 2019 arriving from Dubai (United Arab Emirates) in the case of the Afghan applicants (no. 44245/20). They attempted to enter Hungary using falsified travel documents. After they had requested asylum, the Hungarian authorities removed them to Serbia.

Relying on Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) and Article 3 (prohibition of inhuman and degrading treatment) of the European Convention, the applicants complained that they were part of a collective expulsion, and that they were expelled to Serbia, which did not have an adequate asylum procedure, without an assessment of their risk of ill-treatment there.

The court highlighted that a Member State cannot deny an asylum-seeker access to its territory or remove him or her, even on the assumption that that person might be able to return through some other means of entry, without a proper evaluation of the risks that such a denial or removal might have for his or her rights protected under that provision. The court found a violation of article 3 ECHR (procedural aspect) due to the national authorities’ failure to examine whether the applicants would have access to adequate asylum procedure in Serbia in line with the protection requested against refoulement.

With regard to Article 4 of Protocol 4 of the European Convention (Prohibition of collective expulsion of aliens), the court found a violation due to the collective nature of the removal without applicants being afforded effective opportunity to submit arguments against removal. The court explained that the decisive criterion in order for an expulsion to be characterised as “collective” is the absence of “a reasonable and objective examination of the particular case of each individual alien of the group”. The court noted that in the present case the applicants were removed on the basis of section 5(1b) of the State Border Act, which authorised the police to apprehend foreign nationals staying illegally on Hungarian territory and escort them through the nearest gate in the border fence, except when they were suspected of having committed an offence. In view of the fact that some applicants were suspected of having committed criminal offences because of their use of counterfeit travel documents, national authorities could not provide a lawful basis for their removal. Moreover, the Government confirmed that no expulsion order had been issued against the applicants, and that they had been removed to Serbia on the basis of the general measure provided for in section 5(1b) of the State Border Act. In view of the above, the court considered that the applicants were removed to Serbia without being provided with the opportunity to submit arguments against their removal. As such, their removal had a collective nature. The court added that the Government’s reliance on a derogation based on Article 2(2)(a) of the Return Directive had no bearing on the outcome, and was, moreover, dismissed by the CJEU, which also found that removals under section 5(1b) of the State Border Act failed to observe the safeguards set out in that Directive.

Along with consultation of CEAS, the ECtHR consulted the CJEU judgments European Commission v Hungary, C-808/18, ECLI:EU:C:2020:493, 17 December 2020 (Grand Chamber) and Ministerio Fiscal [Spain] v V.L., C-36/20 PPU, ECLI:EU:C:2020:331, 25 June 2020.