CJEU: Advocate General Opinion on Hungary’s provisions relating to a ‘safe transit country’

Thursday, December 5, 2019

On 5 December 2019, Advocate General (AG) Bobek delivered his opinion on Hungary’s provisions relating to the notion of a ‘safe transit country’ and domestic time limits for the judicial review of inadmissible applications in respect of LH v. Bevándorlási és Menekültügyi Hivatal (C-564/18).

The case concerned the inadmissible application for international protection submitted by a Syrian Kurd on the basis that the applicant should return to the country he had travelled through, namely Serbia. The applicant challenged the decision of the Immigration and Asylum Office claiming that the stated inadmissibility ground infringed upon EU law. The Budapest Administrative and Labour Court submitted a reference for a preliminary ruling on that question, as well as on the effectiveness of the 8-day time limit to complete the judicial examination of the contested decision.

The AG first stated that the inadmissibility grounds of Article 33(2) of Directive 2013/32 are listed exhaustively in that provision on the basis of a textual interpretation they introduce an exception to the general obligation to examine all cases under Recital 43 and must, thus, be interpreted restrictively. Assessing whether the ‘safe transit country’ ground could fall under any of the existing relevant grounds provided in Articles 35 and 38, the AG noted that the requirement of sufficient and readily available protection of Article 35 cannot be founded on the sole possibility of an application for international protection while in transit.

In respect of the safe third country concept, several principles, rules and guarantees are required under Articles 33(2) (c) and 38, including the obligation of Member States to establish rules assessing the connection of an applicant with that safe third country. Since elaborate rules to establish connection are needed, a mere transit from a country would not be sufficient enough to provide the basis of such a connection. Similarly, the existence of specific procedures and remedies under Article 38 also points to a need for a notion that is more meaningful than a simple act of transit – a point that is also supported by UNHCR. Consequently, Article 33 of Directive 2013/32 should preclude national legislation stipulating that an application by an individual arriving in a Member State through a safe third country is to be considered inadmissible.

On the question of the 8-day limit to review the inadmissibility finding, the AG noted that even if EU law allows Member States not to provide for a full review of an admissibility decision on its merits that should not mean that it also allows for a lesser quality of review. Applicants enjoy the same guarantees under Article 46 of Directive 2013/32 whether it’s a review of admissibility or of merits. In the instant case, a series of strict time limits should be considered as affecting the quality of the applicant’s submissions and the work of the judge, including any possibility for a meaningful review of the applicant’s particular circumstances. The AG opined that the national judge must disapply the domestic provision and resolves the case as quickly as possible.

Thank you to Stavros Papageorgopoulos, Legal Officer at ECRE, for assisting us with the summary.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



Effective remedy (right to)
Inadmissible application
Safe third country