The European Court of Justice (ECJ) said on Thursday (14 May) that holding migrants and asylum seekers in a transit zone is detention, and challengers must have their day in court at least once.
ECJ held that the transit zone on Hungary’s border with Serbia was not simply a restriction of movement but a deprivation of liberty “because the persons concerned cannot lawfully leave that zone of their own free will in any direction whatsoever.”
The court also held that neither asylum seekers nor migrants subject to return can be detained without a prior decision establishing the need and the proportionality of detention.
While the court found the existence of a transit zone for those seeking to enter the country lawful, it said that the maximum time individuals can be held there is four weeks, failing which they must be let in to the state’s territory.
The court also said that, since authorities of the executive branch are not independent, in the absence of national rules providing for a judicial review domestic courts must assert jurisdiction to provide such protection in line with the principle of the primacy of EU law.
The case relates to four migrants from Iran and Afghanistan whose asylum applications were rejected by the Hungarian authorities.
The four men have been held in a camp in Röszke, on the border with Serbia, a transit country that also refused to readmit them.
The adoption of the Luxembourg decision by Hungarian national judiciary is expected to be a crucial test of the effects of the German constitutional ruling last week, where the Karlsruhe court found itself “not bound by the CJEU’s decision.”
That prompted concerns that the EU legal system based on the supremacy of Union law could come under threat.
In an interview with Magyar Nemzet on 9 May, Hungarian justice minister Judit Varga said “that the fact that ECJ has been overruled is extremely important.”
“Jurists have long been waiting for the moment to decide who can have the final say in the event of a conflict of EU and Member State competences.”
“According to our EU position built on strong nation-states, this is clearly the sovereign member state, and the final custodian of this right is the Constitutional Court.”
Since the EU migration crisis in 2015, the Hungarian government has repeatedly come under fire from the EU over the issue.
Orbán’s government is opposed to taking in refugees and erected a fence — electrified in some places — along Hungary’s border with both Serbia and Croatia.
Human rights organisations hailed the decision.
“This is a significant victory for everyone who is locked up in metal containers behind barbed wires in Hungary,” said Márta Pardavi, co-chair of the Hungarian Helsinki Committee that represented the asylum seekers before the court.
[Edited by Benjamin Fox]
