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Hungary - Szeged District Court, 13 November 2015, 17.Ir.261/2015/5
Country of Decision:
Country of Applicant:
Date of Decision:
13-11-2015
Citation:
17.Ir.261/2015/5
Court Name:
Szeged District Court
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008 > Article 5
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008 > Article 9
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008 > Article 15 > 1.
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008 > Article 5
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008 > Article 9
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008 > Article 15 > 1.
National / Other Legislative Provisions:
Hungary - Fundamental Law of Hungary- Art. XIV
Hungary - Fundamental Law of Hungary- Art. XIV(2)
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 51(1)
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 52
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 52/A
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 54(6)
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 54(8)
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 58(2)
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 65(1)(c)
Hungary - Act CXL of 2004 on the General Rules of Administrative Proceedings and Services
Hungary - Government Decree 191/2015 (VII.21) on national designation of safe countries of origin and safe third countries
Hungary - Fundamental Law of Hungary- Art. XIV(2)
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 51(1)
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 52
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 52/A
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 54(6)
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 54(8)
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 58(2)
Hungary - Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals – Art. 65(1)(c)
Hungary - Act CXL of 2004 on the General Rules of Administrative Proceedings and Services
Hungary - Government Decree 191/2015 (VII.21) on national designation of safe countries of origin and safe third countries
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Headnote:
The Iraqi Kurdish Applicant was placed in immigration detention, while waiting for the recipient statement of the Serbian authority on the basis of the readmission agreement. After the Serbian authority rejected the deportation towards Serbia, the OIN modified its decision regarding deportation towards the place of origin, to Iraq and prolonged the immigration detention of the Applicant.
The Court ruled that deportation towards Iraq cannot be carried out because of the prohibition of non-refoulement and terminated the immigration detention of the Applicant.
Facts:
The Iraqi Kurdish Applicant faced a real risk of persecution on account of personal relationships with a Kurdish woman outside of marriage, which was later made publicly known, and on account of his brother joining military forces which supported the opposition, the power of the President of the Iraqi Kurdistan Region, Masud Barzami. In Iraq, people who are against the regime are publicly executed. Overall, the life of the Applicant was in danger so he decided to escape and move to Finland, where one of his brothers lived.
The Applicant illegally crossed the border of Hungary but he did not apply for international protection (asylum). The Iraqi Kurdish Applicant was found guilty of illegal border crossing and he was expelled from the territory of Hungary for 2 years. The Office of Immigration and Nationality (OIN) suspended the enforcement of its decision and placed the Iraqi Kurdish Applicant under immigration detention on September 2015, while waiting for the recipient statement of the Serbian authority on the basis of the readmission agreement. After the Serbian authority rejected the deportation towards Serbia on November 2015, the OIN modified its decision regarding deportation towards the place of origin, to Iraq and prolonged the immigration detention of the Applicant. Furthermore, the OIN enclosed a statement emphasizing that with regards to Iraq, there is no prohibition of non-refoulement.
The Applicant submitted an appeal to the Court in which he requested the termination of his immigration detention and the rejection of the OIN’s order.
According to the reasoning of the Applicant, the OIN did not fully explore the facts of the case, and gathered evidence in order to find out whether the expulsion order can be carried out in respect of the Applicant. In addition, the OIN neither acquired objective, and current country information, nor personalised the data.
The Applicant highlighted the opinion of the Law Interpretation Group of the Supreme Court of Hungary according to which immigration detention may only be maintained if substantial actions are taken in order to enforce the expulsion order.
Decision & Reasoning:
The Court found the Applicant’s claim unfounded. The Court noted that the subject of the procedure was only to determine whether the immigration detention shall be maintained or terminated.
The Court highlighted that under immigration laws, detention ordered shall be terminated immediately when it becomes evident that the expulsion or transfer cannot be executed and the immigration authority shall designate a compulsory place of confinement for the Applicant.
The Court found that the OIN did not indicate in its decision the safe place in Iraq where the Applicant shall be deported. The Court ruled that Iraq cannot be considered as a safe country of origin based on the laws of Hungary in force (Government decree 191/2015) and the report of the European Council and the Country Information Service issued on 26 June 2015. Based on the above-mentioned, the Court ruled that Iraq is not a safe country of origin and the prohibition of non-refoulement is applicable.
The Court referred to the resolution of the Law Interpretation Group of the Supreme Court of Hungary according to which the prohibition of non-refoulement may be examined in relation to the termination of immigration detention.
The Court concluded that the Applicant’s deportation towards Serbia failed, and deportation towards Iraq cannot be carried out because of the prohibition of non-refoulement. For this reason, the Court came to the conclusion that the immigration detention of the Applicant shall be terminated.
Outcome:
The Court terminated the immigration detention of the Applicant.
Other sources cited:
Resolution of the Law Interpretation Group of the Supreme Court of Hungary 2012 El.II.F.1/9
Report of the European Council and the Country Information Service, 26 June 2015
