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Dolores Utrilla
Dolores Utrilla
24th November 2021
Employment & Immigration Human Rights Justice & Litigation

Op-Ed: “A migration crisis does not justify the criminalisation of assistance to asylum seekers” by Maxime Lassalle

On 16 November 2021, the Court of Justice delivered its Grand Chamber judgment in Commission v Hungary (C-821/18, see already here and here). This much-awaited decision in an infringement procedure was related to Hungary’s failure to fulfill its obligations based on the Procedures Directive (2013/32) and the Reception Conditions Directive (2013/33). The legislative reform adopted in 2018 in Hungary as a response to the migration crisis after 2015 was not deemed to conform with EU law. The specific element of the law that the Commission challenged was the criminalisation of the activity to provide legal aid for refugees before they initiate an application procedure.

It was not the first time that the Court had to deal with the Hungarian legal framework in this field (see Commission v. Hungary, C-808/18; Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU; and Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18). However, it was indeed the first time that the Court had to deal with restrictions to legal aid based on criminal law.

The Court of Justice’s Assessment

The Commission had brought forward three claims, following the different Hungarian restrictions to legal aid to asylum seekers. First, Hungarian law used a specific criterion to limit the admissibility of applications for granting international protection. Second, Hungarian criminal law prohibits assisting applicants whose applications cannot be admissible, primarily because of the aforementioned criteria. Third, people suspected or those punished on the basis of this criminal law will be even more restricted in their ability to access refugees. They will not be allowed to access border areas where they are gathered.

As regards the first issue, the Procedures Directive provides for an exhaustive list of conditions regarding the admissibility of refugee applications. Yet Hungary added two conditions. The application could be rejected because the applicant arrived through a State where he or she was not exposed to persecution or a risk of serious harm. The application could similarly be dismissed if the same State guarantees a sufficient degree of protection. This was considered by the Court of Justice as a violation of EU law, but this part of the judgment is nothing new (see in particular Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, and Bevándorlási és Menekültügyi Hivatal (Tompa), C‑564/18).

The second and main issue raised by the Commission was that of the criminalisation of assistance to asylum seekers. The specific criminal law provision at stake involved a prohibition of legal aid for lodging an asylum application. Under Hungarian law, this legal assistance is a criminal offense when two conditions are met. The first condition is that it is proven beyond all reasonable doubt that the person knew that the application would not be admissible under Hungarian law. The second condition is that the assistance is organised − Hungarian law would not ban a single and isolated act of service.

This criminal offense restricts two rights protected by the Directives: Applicants have the right to communicate with persons assisting them, and they have the right to access legal aid. The Court of Justice acknowledged that the Hungarian Constitutional Court (Alkotmánybíróság) restricted the scope of the concerned Hungarian criminal law provision in a judgment delivered on 25 February 2019. This decision protects charitable activities based on the duty to assist others in need of assistance. There is, however, an exception to this limit when it could ‘be proved beyond all reasonable doubt that that person was aware that that application could not succeed under Hungarian law.’ For this reason, the Court of Justice concluded that the decision of the Hungarian Constitutional Court does not prevent a restriction of the rights provided by EU law.

Such restrictions need justification, and Hungarian law is indeed based on two main objectives. The first one is the prevention of abuses or fraud in the asylum procedure. The second objective is the fight against illegal immigration based on deception. Neither of them convinced the Court of Justice, though. The Court concluded that the criminal law provision at hand was too broad and was not limited to the specific goals Hungary claimed it was pursuing. Indeed, assistance to asylum seekers is prohibited under Hungarian law even when there is no intention to abuse the asylum procedure or fraud. More specifically, it cannot be expected from a person willing to provide services that he or she needs to check the entire situation of asylum seekers before providing these services. The case is even more problematic for lawyers as they should not be put in a position where they cannot provide legal aid.

The Court of Justice further found that the relevant Hungarian criminal law provision did not really aim at fighting against illegal immigration based on deception either. To be sure, there are other EU and Hungarian criminal law provisions regarding assistance to asylum seekers whose purpose is to fight against illegal immigration. One could refer to the ‘facilitators package’ regarding the facilitation of unauthorized entry, transit, and residence (Council Framework Decision 2002/946/JHA of 28 November 2002). However, these provisions and their transposition are limited to prevent the facilitation of irregular entry, transit, and residence. Yet, according to the Court of Justice, ‘the provision of assistance with a view to making or lodging an application for asylum in the territory of a Member State, even when it is clear to the person providing that assistance that the application will not be accepted, cannot be regarded as an activity which encourages the unlawful entry or residence.’ The assistance to apply for international protection on the one hand and the facilitation of illegal entry or transit, on the other hand, are two different situations. The latter is the only one that measures against illegal immigration should address.

The third claim raised by the Commission was related to the restrictions imposed on persons suspected or convicted based on the aforementioned criminal offense. Hungarian law provides that these persons cannot access border areas. Yet, the centers used to retain applicants for international protection are in border areas. These persons are therefore de facto in a situation where they cannot assist asylum seekers. Such a restriction of the freedom of movement is, once again, a limitation of the rights protected by the Directives. Like for the criminal law provisions, the Court of Justice found no justification for this limitation. Interestingly, this is the central point where one can find a divergence between the decision of the Court of Justice and the Opinion of Advocate General Rantos, because the latter had concluded that the police should be able to limit access to sensitive places for people suspected of a criminal offense.

Scope of the decision regarding the criminalisation of assistance to immigrants

In spite of the clear stance taken by the Court of Justice in this case, it seems that Hungarian law will keep on raising concerns regarding its compatibility with EU law (see here). A related, but broader question is that of the limits of the use of criminal law in the field of immigration.

It should be noted in this regard that Commission v Hungary (C-821/18) has not been the first case in which the Court of Justice has had to deal with so-called ‘crimmigration’ and the growing role of criminal law in immigration matters. One can, for instance, recall that the use of criminal law for immigrants themselves should be limited and that the Member States cannot criminalise illegal immigration as such (Sélina Affum, C‑47/15). In other words, criminal law should not be used to deter illegal immigrants.

However, this has been the  first time ever that the Court of Justice has been confronted with the issue of criminalisation of assistance to illegal immigrants. This case highlights the necessity to limit the scope of criminal law in this field. Before that, several cases at the national level had dealt with this issue. The questions were always the same: should criminalisation go beyond the activity of organized smugglers earning money while facilitating unauthorized entry, transit, and residence? Should other forms of assistance to immigrants be criminalised too? National courts were very reluctant to accept an extension of the scope of criminal law in this context. For instance, the French Constitutional Council rejected on 6 July 2018 the criminalisation of the facilitation of transit and residence (but not entry) based on a humanitarian intention. It was an application of the principle of fraternity. It seems that the above-mentioned decision of the Hungarian Constitutional Court delivered on 25 February 2019 followed a similar approach as it protected charitable activities based on the duty to assist others in need of assistance. As previously explained, there is an exception to this limit regarding assistance to refugees whose application is likely to be rejected. This exception is the main reason why Hungarian law violates EU Law.

The judgment thus deals with the specific issue of the effectiveness of EU law granting rights to immigrants to prepare the application for international protection. However, its implications go beyond that the specifics of the case.  Commission v Hungary (C-821/18) can be seen as a confirmation of the reluctance of European courts to criminalise organised assistance to immigrants, whether it is related to the transit and residence or the application for international protection.


Maxime Lassalle is Assistant Professor of private and criminal law at the University of Burgundy and Researcher at the Max Planck Institute for the Study of Crime Security and Law.


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