Luxembourg: Administrative Tribunal annuls Dublin transfer to Hungary

Thursday, September 17, 2015

In decision no. 36966 of the Administrative Tribunal of the Grand-Duchy of Luxembourg of 17 September 2015, the decision to transfer an Afghan asylum seeker to Hungary was annulled on the basis of systemic deficiencies in the asylum procedure and reception conditions there.
The applicant claimed asylum in Luxembourg in July 2015, having illegally entered Hungary in May 2015, and claimed asylum there. The national authorities decided on 3 September 2015 that Hungary was responsible for examining his asylum claim pursuant to the Dublin III Regulation, considering that it had tacitly accepted their ‘take charge’ request, and proposed to remove him to Hungary without delay.

The applicant requested an annulment of this decision due to the conditions in Hungary, arguing that the discretionary clause in Article 17 should have been invoked. The Tribunal considered it well supported by the applicant’s evidence in the form of article and reports that there were systemic failures in Hungary. These indicate that Hungary was overwhelmed by the numbers seeking international protection and was no longer able to meet its obligations. It could neither ensure timely and effective access to the asylum procedure nor offer adequate reception, which was equally applicable to Dublin returnees. The Tribunal noted that Hungary had introduced a draconian regime hostile to international protection, including physical construction of fences, deployment of the army, criminalisation of illegal entry, listing Serbia as a safe third country and automatically rejecting asylum claims on this basis, as well as extremely accelerated procedures which did not respect asylum seekers’ basic rights.

Beyond the information provided by the applicant, the Tribunal could not ignore the situation in Hungary as documented by the media and publicly condemned by the Minister of Foreign Affairs. It concluded that there are currently systemic failures in the asylum procedures and reception conditions for applicants in Hungary, likely to involve a risk of inhuman or degrading treatment contrary to Article 4 of the Charter, which meant that transfer to Hungary, would violate Article 3(2), paragraph 2 of the Dublin III Regulation. It annulled the first instance decision, sending the case back to the first instance authority, with no need for any further analysis of whether the Article 17(1) sovereignty clause should be applied.

The judgment cites numerous reports of the Hungarian Helsinki Committee and an AIDA news report on amendments to the Hungarian asylum law amongst other sources.
Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Frank Wies, ELENA national coordinator for Luxembourg, for providing us with this judgment. 

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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 published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Accelerated procedure
Dublin Transfer
Effective access to procedures
Inhuman or degrading treatment or punishment
Reception conditions
Request that charge be taken
Safe third country