Analysis: “Safeguarding the Right to an Effective Remedy in Asylum Procedures: A Herculean Task for Hungarian Judges?” by Niovi Vavoula
On 19 March 2019, the Court of Justice of the European Union released two judgments: PG v Bevándorlási és Menekültügyi Hivatal (C-406/18) and LH v Bevándorlási és Menekültügyi Hivatal (C-564/18), both originating from the Hungarian Administrative and Labour Court. They concerned the interpretation of different provisions of Directive 2013/32/EU (Asylum Procedures Directive) in light of the right to an effective remedy, as envisaged in Article 47 of the EU Charter of Fundamental Rights.
PG v Bevándorlási és Menekültügyi Hivatal, C-406/18
The first case involved PG, a Kurd from Iraq, who sought international protection in Hungary. Two decisions by the Immigration and Asylum Office rejecting his applications for international protection were annulled by the Administrative and Labour Court. The referring court was examining the third rejection of PG’s application for international protection. This ping pong match was due to Hungarian legislation, according to which the courts cannot change the decision in an international protection procedure and may only annul the decision and refer the case back to the administrative body for a new decision. Against this backdrop, the referring court enquired whether that legislation complies with the right to an effective remedy, set out in Article 46(3) of the Asylum Procedures Directive and Article 47 of the EU Charter of Fundamental Rights. Furthermore, the referring court queried whether the single mandatory limit of 60 days for judicial proceedings in asylum matters is compatible with Articles 47 of the Charter and 31 of the Asylum Procedures Directive.
In relation to the first question, the Court of Justice agreed with Advocate General Bobek, who delivered his Opinion on 5 December 2019, that these issues were settled in Alheto (C-585/16) and Torubarov (C-556/17). Member States are free to devise a model of review, whereby an administrative decision is annulled by the court and the file is referred back to the administrative body for a new decision. Alheto further stated that Article 46(3) would lose its effet utile, if that body reaches a decision that does not comply with the assessment contained in the judgment. Furthermore, the Court confirmed its findings in Torubarov, that where a first-instance court or tribunal has found – after making a full and ex nunc examination of all the relevant elements of fact and law – that that applicant must be granted international protection but afterwards the administrative or quasi-judicial body adopts a contrary decision, that court or tribunal must vary that decision which does not comply with its previous judgment and substitute its own decision for it, disapplying as necessary the national law that would prohibit it from proceeding in that way.
With regard to the second question, the Court of Justice first pointed out that it is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, as long as the principles of equivalence and effectiveness are safeguarded. The Court took note that each decision granting international protection must be based on an individualised assessment and that applicants enjoy a series of procedural rights (to interpretation, contact with UNHCR, legal aid and so on). Consequently, the Court ruled that national rules regulations granting the judge hearing an appeal against a decision rejecting an application for international protection a period of 60 days to decide is not incompatible with the right to an effective remedy, provided that this judge is able to ensure in such a deadline the effectiveness of the substantive rules and the procedural guarantees recognised to the applicant by EU law. If not, the judge must disapply the national rules providing for a time limit for judgment, such as the 60-day time limit in the present case. The judge’s obligation to disapply cannot relieve them of any obligation to decide speedily, but merely requires them to regard the deadline as indicative and not as imperative.
The judgment reiterates the Court of Justice’s findings in Alheto and Torubarov in an attempt to end the vicious circle of applications for international protection going back and forth between the Immigration and Asylum office and the Administrative and Labour Court. Furthermore, though the Court does not explicitly endorse a rights-based approach – as the Advocate General does – and refers to the principle of effectiveness of EU law, the rights of the applicants for international protection and their full enjoyment are at the heart of the Court’s reasoning. However, it must be noted that, according to ECRE, the time limits for appeals procedures present significant divergences among Member States, with the Hungarian law being quite stringent in that respect (for example, in France the time limit is five months and in Italy and Greece, six months). It is possible that the time limits, which must be viewed as indicative, will be further tested when the proposed Asylum Procedures Regulation is adopted. The latter, which is currently negotiated in the Council and has yet to achieve consensus among Member States, prescribes specific time limits in relation to appeals against rejections of applications for international applications (Article 55 of the Commission proposal, for its current configuration see Council Document 8835/19, not publicly available).
A key consideration that is notably missing from the judgment involves the consequences for judges in cases they delay the release of the decision. The fact that the case involves Hungary, a country that has been in the spotlight for breach of the rule of law, where the judiciary’s independence has been under pressure and the rights of refugees and migrants are insufficiently protected, the judgment aims at protecting the judges, without explicitly acknowledging the ‘elephant in the room’. However, in his Opinion, Advocate General Bobek devotes several paragraphs to the indirect negative impact on judges in relation to promotion, working conditions, periodic evaluations and so on. Overall, placing the judgment in its broader context, the Court of Justice offers a helping hand and a cloak of protection to judges who may find themselves between a ‘rock and a hard place’, juggling between their duties to comply with domestic deadlines, whilst safeguarding the rights of applicants for international protection.
LH v Bevándorlási és Menekültügyi Hivatal, C-564/18
In July 2018, a Syrian national of Kurdish ethnicity made an application for international protection. The Hungarian Immigration and Asylum Office held that application was inadmissible and directed that the applicant be returned to Serbia where he had travelled from. The Administrative and Labour Court referred two questions to the Court of Justice: whether an application may be considered as inadmissible in line with Article 33 of the Asylum Procedures Directive, when the applicant has arrived in that Member State via a transit country where he is not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed; and whether a mandatory time limit of eight days for a court or tribunal to complete its review of an administrative decision declaring an application for international protection inadmissible is compatible with the right to an effective remedy.
Article 33(2) of the Asylum Procedures Directive lays down an exhaustive list of inadmissibility grounds. In line with the Advocate General’s Opinion, the Court of Justice finds that the additional ground of ‘safe transit country’ cannot be subsumed under the existing concepts of a ‘safe third country’ or ‘first country of asylum’. The former concept is encompassed in Article 38 of that Directive and is subject to a series of cumulative conditions, concerning the third country and its adherence to principles of international law, including the principle of non-refoulement, a requirement that the Court concluded is missing from the Hungarian legislation. Furthermore, Article 38(2) requires the existence of a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country. In that respect, the Court stated that transiting through a country does not qualify as a sufficient or significant connection between the applicant and the safe third country. Serbia cannot qualify as a ‘first country of asylum’ in accordance with Article 35 of the Asylum Procedures Directive either, as that concept requires that the applicant has been recognised in that country as a refugee, or enjoys sufficient protection in that country.
As for the second question, the Court mostly reiterated its findings in PG v Bevándorlási és Menekültügyi Hivatal and took into account the referring Court’s observation that it is not possible to carry out a review within the prescribed time limit without violating the requirements for a full assessment. Though it did not preclude that in certain obvious cases, the time limit may be sufficient, the Court agrees with the Advocate General that that time frame may prove insufficient to safeguard the procedural rights of the applicant and ultimately, their right to an effective remedy. In the end, the Court – somewhat begrudgingly – applies its findings in PG v Bevándorlási és Menekültügyi Hivatal requiring the judge to disapply the national provision on the time limit, and concludes that the time limit of eight days is incompatible with EU law, as the referring court is not able to ensure within such a period the effectiveness of the substantive rules and the procedural guarantees recognised to the applicant by EU law.
Overall, the Court of Justice provides a strict interpretation of the concept of a ‘safe third country’ to exclude transit countries from its remit. This interpretation is crucial in light of the fact that Article 45(3)(a) of the proposed Asylum Procedures Regulation foresees that the connection between the applicant and the third country in question may be established ‘because the applicant has transited through that third country which is geographically close to the country of origin of the applicant’. The Court rejects the argument that transiting through a safe third country constitutes a meaningful link between the applicant and that country. This is in line with the views of the UNHCR that transit through a particular country is often the result of fortuitous circumstances and does not necessarily imply the existence of any meaningful link or connection. The Advocate General takes that thought a step further and essentially provides his opinion on the proposed reform stating that:
‘if the concept of safe third country is to have any independent meaning, the interpretation of that concept cannot lead to the quasi-automatic removal of applicants to countries through which they have travelled, producing a domino effect whereby the merits of a given application would never be examined anywhere’.
In relation to the time limit, the Court of Justice, applying the same reasoning as in PG v Bevándorlási és Menekültügyi Hivatal, considers the referring court’s observation on the impossibility to carry out the required review within the prescribed time limit, while respecting the applicant’s procedural rights as central. The different operative part in the present case is also due to the distinction between the two time limits: as the Advocate General pointed out, compared to 60 days, a time limit of eight days gives rise to more serious doubts as to its adequacy, even if a judge ‘merely’ has to review the assessment made by the determining authority in respect of one of the five inadmissibility grounds.
Niovi Vavoula is Lecturer in Migration and Security at the School of Law, Queen Mary University of London and Assistant Editor of the New Journal of European Criminal Law. For her most recent publication see: Niovi Vavoula, ‘Interoperability of EU Information Systems: The Deathblow to the Rights to Privacy and Personal Data Protection of Third-Country Nationals?’ (2020) 26(1) European Public Law, pp. 131-156, available at http://www.kluwerlawonline.com/abstract.php?area=Journals&id=EURO2020008