CJEU - Joined Cases C-924/19 PPU and C-925/19 PPU, FMS and Others v Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság, 14 May 2020

The Court answered the preliminary questions in the order that they are being summarised here.

Fifth question – the nature of and remedy against an administrative amendment of the destination country in a return decision under the Return Directive

The Court first looked into whether the amendment of the destination country included in a return order is among the decisions that Article 13 of Directive 2008/115 (Return Directive – RD) provides an effective remedy against. In this regard, it considered that the change of the destination country in the return decision is such a substantial modification that it should be regarded as a new return decision [116]. It did not agree with Hungary’s argument that the order with the modified destination was a removal order following a return order, since the former has to comply with the latter’s content, i.e., destination country. [120]. This finding is supported by the obligation of Member States to comply with the fundamental rights of the returnees, in line with the principle of non-refoulement [122].

On the nature of the remedy that would be available in this case under Article 13 RD, the Court noted that the characteristics of such a remedy should comply with Article 47 of the Charter of Fundamental Rights of the EU (CFREU), even if that provision permits the challenge to be brought before non-judicial authorities [128]. Consequently, national legislation that does not permit a challenge against a return decision to be addressed before a judicial body is against Article 13 RD and Article 47 CFREU [130]. In the cases at issue, the appeal against the modified return decision could be lodged with the asylum authority and the outcome would not be subject to any further review. However, such authority cannot be considered as impartial and independent, and a review before a CFREU-compliant judicial body should be available [134-136].

Lastly, where national law does not allow for a judicial review in a manner that complies with the EU law, the primacy of the latter and the guarantees of Article 47 CFREU require that domestic courts disapply the national legislation at stake [146-147]. The national court is therefore required to declare itself competent to hear and decide the appeals brought by the applicants against the asylum authority’s rejection of their objections against the modified return decisions.

First question – the inadmissibility ground of safe transit country under EU law

The Court explicitly referred to its previous judgment in C-564/18, where it had ruled on the exhaustive nature of the inadmissibility grounds listed under Article 33 (2) of Directive 2013/32 (Asylum Procedures Directive – APD).

The Court reiterated that the legislation at issue does not comply with the requirement of non-refoulement and there is no indication regarding the content of adequate protection in the safe transit country [153-155]. Moreover, the mere transit of a person through a third country cannot be considered as a ‘connection’ under Article 38 (2) and that sole element of transit cannot satisfy the obligations of national authorities to individually consider the safety of the third country and the significance of the connecting link under that same provision [156-158]. Lastly, the safe transit country concept cannot be based on Article 35 either, as it is not conditional on the applicant’s benefit from international protection or generally sufficient protection against refoulement, which is a requirement under that Article [161-163].

Second question – the consequences and procedure following an inadmissibility decision that was issued on a ground that was subsequently found to be unlawful under EU law

The Court stated that national authorities are required to disapply national legislation that is contrary to a directly applicable provision of EU law, such as Article 33 APD [183]. However, the administrative decision that was issued on the basis of the national law that was later found to be inapplicable as contravening EU law cannot be expected to be reversed, if it has become final [185]. Following an extensive analysis of the res judicata principle in EU law [186-187], the Court concluded that an asylum authority is not required to re-examine on its own motion an application for international protection which has been rejected as inadmissible, that rejection has been confirmed by a judicial decision and that decision has been found to contravene EU law following subsequent CJEU jurisprudence [190].

The Court confirmed that that new application will be considered as a subsequent application within the meaning of Article 2 (q) of the APD [192]. However, when deciding on the existence of new elements that may justify that subsequent application under Article 33 (2) (d), the authorities shall regard a CJEU judgment ruling on the incompatibility of national legislation with EU law as a new element, even if the applicant has not explicitly referred to it [193-195]. To accept otherwise is to deprive the right of applicants to international protection, as expressed in Article 18 CFREU and Directives 2011/95 and 2013/32, from its effectiveness [196]. In order to avoid the continuous violation of EU law, Article 33 2 (d) APD will not be applicable to a subsequent application when the determining authority finds that the final rejection of the first application is contrary to EU law [197-198].

Third and fourth questions – the transit zone as a place of detention under EU law

• Detention under Article 43 APD

The Court first clarified that the meaning of detention, under both Directive 2013/33 (Reception Conditions Directive – RCD) and the RD, is a measure of last resort that does not merely restrict the individual’s freedom of movement but deprives them of their liberty [216-225]. It further held that the situation at the Röszke transit zone resembles a detention regime, as the applicants are confined  without any lawful possibility to leave the area of their own will; entering Serbia could incur penalties for unlawful entry, while the act of leaving the designated transit zones can negatively affect their asylum procedure under Hungarian law [227-230]. It further noted the site’s characteristics, including the closed perimeter of the zone, the high fences and the barbed wire [226], and concluded that the applicants’ placement in the transit zone constitutes detention under the aforementioned Directives [231].

In its examination of Article 43 APD, which in certain cases allows the stay of applicants in border or transit zones while their asylum application is being examined, the Court noted that this provision relates to the possibility for detention pending entry under Article 8 (3) (c) RCD [238]. The stay at these zones, however, cannot exceed a period of four weeks, which according to the Court starts from the lodging of the asylum application under Article 6 (2) APD [240-241]. Any extension beyond those four weeks is only possible under Article 43 (2) APD if there is a massive influx of applicants and the latter are accommodated in accordance with Articles 17 and 18 RCD [244-245]. The Court concluded that asylum applicants cannot be detained in transit zones for more than four weeks, even in the event of arrivals involving a large number of the third-country nationals or stateless persons.

• Detention under Articles 8 and 9 RCD

The Court first noted that Article 8 (3) RCD provides an exhaustive list of grounds for detention and does not include any ground relating to the applicants’ inability to support themselves [250-251]. Even if other grounds of detention may be applicable (e.g. under criminal law), the objective of the Directive must always be respected [252]. Under the RCD, Member States are required to provide material reception conditions to applicants who cannot ensure an adequate standard of living for themselves; detaining them for this reason would undermine the very essence of that Directive [253-256].

Regarding the imposition of a detention measure, Article 8 (2) and (3) and Article 9 (2) RCD preclude detention without any reasoning or any assessment of the measure’s proportionality and necessity, including in the form of a written judicial or administrative decision [257-259]. A possibility for judicial review should always be provided under Article 9(3) and (5) RCD [260-261]. On the duration of detention, the Court noted that there is no provision in the RCD laying down a maximum duration limit but the applicants’ right to liberty is only respected if effective procedural guarantees under Article 6 CFREU are in place [264]. In the absence of a time limit the detention should be terminated as soon as it is no longer necessary or proportionate, with the authorities acting with all due diligence. Consequently, the absence of a time-limit that, if exceeded, would render detention automatically unlawful is not contrary to Article 9 RCD, as long as the aforementioned conditions are respected [265].

• Detention under the RD

Similar to its assessment on detention under the RCD, the Court held that a detention measure under the RD is permissible only if the removal process risks being jeopardized; no detention can be imposed solely because the applicant is not able to support themselves [269-270]. The measure may be imposed only following an individualized assessment of the measure’s proportionality and necessity and in the form of a written decision stating the reasons for the detention [274-275]. A judicial review of the measure should always be available [276-277]. Article 15 (1) and (4) RD imply that detention may last only for as long as the removal process is taking place but Article 15 (5) and (6) RD additionally require Member States to set a maximum period of detention and a possible extension for up to a further 12 months in specific cases. Therefore, national legislation that does not set a time limit which, if exceeded automatically renders the detention unlawful, and ensures that detention is maintained only for the purpose/procedure of removal is contrary to the Return Directive [279-280].

• The lawfulness of detention under EU law

The Court lastly considered whether a detention that is unlawful under EU law may require under Article 47 CFREU that domestic courts oblige the national authorities to provide the applicant with appropriate accommodation. It first noted that the absence of judicial review in national legislation is not only contrary to the RCD and RD provisions but also contravenes Article 47 CFREU and domestic courts are required to disapply any such legislation that hinders judicial review [290-291].

Secondly, where detention is unlawful, the national court must be able to issue its own decision ordering the release of the person, or an alternative measure if the detention ground is valid but the measure is disproportionate. In the present case, the Hungarian courts can order the immediate release of the applicants if their placement in the transit zone is found to be unlawful [293-294]. Regarding the possibility for courts to order the applicants’ placement in accommodation, the Court noted that the applicant is still an asylum applicant after their release from detention and they are benefitting from Article 17 RCD [295]. Moreover, an appeal is provided under Article 26 RCD against decisions affecting reception conditions provision, while courts are generally required to grant interim measures in cases covered by EU law, in order to fully ensure the effectiveness of the individuals’ rights [296-298]. Lastly, the primacy of EU law and the right to effective judicial protection, require domestic courts to declare themselves competent to hear and decide on any action relating to the granting of interim accommodation measures if no other court has jurisdiction under national law [299].