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CJEU rules placing foreigners in Hungary transit zone constitutes ʼdetentionʼ

The Court of Justice of the European Union (CJEU) on Thursday ruled that the placement of a number of foreign nationals in Hungaryʼs transit zone on its border with Serbia constitutes "detention", according to a report by Hungarian news agency MTI.

Migrants on the Hungarian border in 2015. (Image by Fotosr52 / Shutterstock.com)

"The placing of asylum seekers or third-country nationals who are the subject of a return decision in the Röszke transit zone at the Serbian Hungarian border must be classified as ʼdetentionʼ," the CJEU said.

"The conditions prevailing in the Röszke transit zone amount to a deprivation of liberty, inter alia because the persons concerned cannot lawfully leave that zone of their own free will in any direction whatsoever," the court added.

The case involves two Iranian and two Afghan nationals who arrived in Hungary from Serbia in late 2018 and early 2019.

The foreign nationals submitted asylum applications to the Hungarian authorities, but these were rejected on the basis of provisions in Hungarian law that declare inadmissible applications by persons who arrive in Hungary after having passed through a "safe transit country" .

Serbia refused to readmit the foreign nationals and the Hungarian authorities ordered their removal to their respective countries.

The foreign nationals brought their case before the local Hungarian court, arguing that the Hungarian authorities should have resumed the procedure to examine their asylum applications after Serbiaʼs refusal to readmit them.

They also argued that the conditions of the accommodation in the transit zone constituted unlawful detention.

The CJEU said in its ruling that EU directives on asylum "preclude an applicant for international protection or a third-country national who is the subject of a return decision from being detained without the prior adoption of a reasoned decision ordering that detention and without the need for and proportionality of such a measure having been examined".

The court acknowledged that member states may detain applicants for international protection who present themselves at their borders under provisions in an EU directive on border procedures, but it said "that detention may not under any circumstances exceed four weeks from the date on which the application was lodged".