The applicants are an Afghan family. The father and mother moved to Iran where their four children were born. They fled Iran in 2016 and travelled to Hungary, where they applied for asylum on 9 January 2019. They were held in the Röszke transit zone. On 12 February 2019 their requests were dismissed as inadmissible and their removal to Serbia, considered a “safe transit country”, was ordered. The asylum authority considered that the non-refoulement principle would not be violated in their case.

The applicants challenged the decision in court, which found the decision lawful.

On 2 April 2019 Serbia refused to readmit the applicants and consequently the asylum authority changed the destination country to Afghanistan. The applicants challenged this change by making reference to the recast Asylum Procedures Directive and stating that since Serbia refused to readmit them, the asylum authority should have withdrawn its inadmissibility decision and examine their application for asylum on the merits. Their complaint was rejected as unfounded on 3 May 2019.

On 6 May 2019, they were informed that they were to be removed to Afghanistan on 7 May 2019 on a flight organised by Frontex. The applicants lodged a request with the ECtHR for an interim measure based on Rule 39. On 7 May 2019, UNHCR sent a letter to the immigration authority stating that the applicants’ removal would amount to refoulement.

The rest of the facts were disputed between the parties, with the applicants stating that they had been subjected to a collective expulsion to Serbia as the oldest son was forced to sign a declaration for the family stating that they wished to go to Serbia, and they were taken to the border and ordered to walk towards Serbia in the dark while nobody waited for them there. The Government stated that the family submitted in writing that they wished to voluntarily depart to Serbia and they left the transit zone willingly.

The applicants complained before the ECtHR that they had been subjected to a collective expulsion in violation of Article 4 of Protocol No. 4 to the Convention.

The court cited its previous case law, specifically the judgments in Ilias and Ahmed v. Hungary (Grand Chamber, 2019), M.A. v. Belgium (2020) and M.K. and Others v. Poland, reiterating that Article 4 of Protocol No. 4 requires the authorities to examine the personal circumstances of the person concerned by a potential expulsion and to take decisions on a case-by-case basis, through a procedure which allows the person to present arguments against the expulsion. The court added that for accompanied minors, the requirements of Article 4 of Protocol No. 4 might be met, if the adults accompanying them had an opportunity to raise their arguments against their joint expulsion in a meaningful and effective manner. The court noted that in order to determine whether the case was examined individually, it considers the “general context at the material time”, in addition to the particular circumstances of the expulsion, such as the applicants’ difficulties in contacting a lawyer, the fact that the decisions directing expulsion made no reference to their application for asylum or that the asylum procedure was still pending.

In the applicants’ case, the ECtHR found that the applicants’ removal violated Article 4 of Protocol No. 4 to the Convention.

The court noted that several circumstances were relevant in determining whether the national authorities examined the applicants’ individual situations before their removal. The court observed that the removal to Serbia was not based on any formal decision issued by the authorities. The court also noted that there was no indication that the authorities considered, in a genuine and effective manner, the applicants’ individual circumstances before removing them since Serbia has refused the readmission, which rendered their entry to Serbia unlawful.

The court also added that the applicants were not given the possibility to submit or to have examined arguments against their expulsion to Serbia.

Finally, the court added that States have the right to establish and implement their own immigration policies while at the same time noting that problems related to managing migratory flows cannot justify a State’s recourse to practices incompatible with its obligations under the Convention.