Effective access to international protection – detention of asylum seekers: judgment of the CJEU in the case of Commission v. Hungary

In the case of Commission v. Hungary (17.12.2020, C-808/18) the CJEU again addressed a number of issues in connection with the treatment of asylum-seekers in transit zones located in the immediate vicinity of the Serbian-Hungarian border. From a Convention perspective, two specific aspects are worth highlighting.

First, in interpreting the relevant provisions of the Procedure Directive (no. 2013/32) the CJEU stresses the need for the domestic authorities to ensure effective access to procedures for international protection:

Article 6 of Directive 2013/32 requires Member States to ensure that the persons concerned are able to exercise in an effective manner the right to make an application for international protection, including at their borders, as soon as they declare their wish of doing so, so that that application is registered and can be lodged and examined in effective observance of the time limits laid down by that directive. (§ 106)

This concern about ensuring effective access to procedures for international protection appears to be common to the two European Courts. For it lies also at the heart of the recent judgment in the case of N.D. and N.T. v. Spain (13.2.2020, nos. 8675/15 and 8697/15) in which the European Court of Human Rights ruled:

With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4(1) of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. … However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points. (§§ 209-210)

In this context, both Courts also concur in considering that an application for international protection is deemed to have been made as soon as the person concerned has declared, to one of the competent authorities, his or her wish to receive international protection, without the declaration of that wish being subject to any administrative formality whatsoever (see §§ 96-97 of the CJEU ruling and § 180 of N.D. and N.T.).

Secondly, the CJEU also confirmed its assessment, made in FMS and Others, C-924/19 PPU and C-925/19 PPU (see below, the post on this judgment), according to which the conditions prevailing in the transit zones of Röszke and Tompa amounted to detention, within the meaning of Article 2(h) of the Reception Directive (2013/33). This is in contrast with ECHR 21.11.2019, Ilias and Ahmed v. Hungary (no. 47287/15), § 249, in which the ECHR found that restrictions in such transit zones could only amount to a deprivation of liberty within the meaning of Article 5 of the Convention if they exceeded what was strictly necessary for the purpose of examining the application for international protection of the person concerned. The implications of this difference are explained below, in the post devoted to FMS and Others.