In Trapitsyna and Isaeva v. Hungary (application no. 5488/22), the European Court of Human Rights ruled on 17 March 2025 that Hungary violated Article 8 of the European Convention on Human Rights in connection with the expulsion of a Russian mother and daughter on undisclosed national security grounds. The judgment constitutes an important contribution to the Court’s evolving jurisprudence on the interaction between national security considerations, procedural fairness, and the protection of private and family life under the Convention.
On 11 November 2020 Hungarian Constitution Protection Office issued a recommendation stating that the first applicant represented a threat to national security, that her immigration permit should be revoked and that she should be subjected to a five-year entry ban. On 10 December 2020 the National Directorate-General for Aliens Policing referring to the above-mentioned recommendation, ordered the first applicant’s expulsion to Russia, stating that her presence in Hungary seriously endangered or threatened Hungarian national security. The decision acknowledged that the first applicant was well integrated into Hungarian society, had a regular income and social connections, spoke the language and owned property in Hungary. It also noted that there were no barriers to her expulsion to Russia, which was considered a safe third country.
The jugement notes that the Court of Justice of the European Union (CJEU) ruled in the case of Országos Idegenrendézeti Főigazgatóság and Others (judgment of 22 September 2022, C-159/21, EU:C:2022:708) that EU law was to be construed as precluding Hungarian legislation which allowed the person concerned or his or her adviser to access the case file only after obtaining authorisation to that end, and without being provided with the reasons for the decision. The CJEU held that where the disclosure of information contained in the case file was restricted on grounds of national security, respect for the rights of defence was not sufficiently guaranteed by the possibility for the person concerned of obtaining, under certain conditions, authorisation to access that information, together with a complete prohibition on using the information thus obtained for the purposes of administrative or judicial proceedings. The power of the court having jurisdiction to obtain access to the file could not replace access to the information contained in the case file by the person concerned or by his or her adviser.
The Court also notes the judgment of the CJEU (Grand Chamber) in the case of ZZ (judgment of 4 June 2013, C-300/11, EU:C:2013:363) concerned the exclusion of a citizen of a member State from the territory of another member State on grounds of public security, stating that: if, in exceptional cases, a national authority opposes precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision taken under Article 27 of Directive 2004/38, by invoking reasons of State security, the court with jurisdiction in the Member State concerned must have at its disposal and apply techniques and rules of procedural law which accommodate, on the one hand, legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of such a decision and, on the other hand, the need to ensure sufficient compliance with the person’s procedural rights, such as the right to be heard and the adversarial principle. In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry taken under Article 27 of Directive 2004/38 is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress as provided for in Article 31 of that directive ineffective.
ECtHR underlines that while the executive’s assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of “national security” that is unlawful or contrary to common sense and arbitrary. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention (see Al-Nashif v. Bulgaria, no. 50963/99, § 124, 20 June 2002, and Kaushal and Others v. Bulgaria, no. 1537/08, § 29, 2 September 2010). The use of confidential material may prove unavoidable where national security is at stake. It may therefore sometimes be necessary to classify some or all of the materials used in proceedings touching upon such matters and even parts of the decisions rendered in them (see Raza v. Bulgaria, no. 31465/08, § 53, 11 February 2010). However, even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information. The individual must be able to challenge the executive’s assertion that national security is at stake (see Amie and Others v. Bulgaria, no. 58149/08, § 92, 12 February 2013).
The Court held that the applicants were forced to leave the country where they had developed – in the case of the second applicant, uninterruptedly since birth – the network of personal, social and economic relations that make up the private life of every human being. As the Court has previously held, the totality of such ties between applicants and the community in which they have been living constitutes part of the concept of “private life” within the meaning of Article 8 (see Maslov v. Austria [GC], no. 1638/03, § 63, ECHR 2008). The impact of the impugned measures on their family life – in particular their ultimate forced migration as a family unit – is a relevant factor for the Court’s assessment of the case under Article 8 of the Convention. Such interference will be in breach of Article 8 unless it is “in accordance with the law”, pursues a legitimate aim or aims under paragraph 2, and is “necessary in a democratic society” to achieve the relevant aim or aims. The Court also established that the judgment shows that, in the authorities’ view, the CPO’s recommendation was binding on the NDGAP both as to the necessity of an expulsion order and as to the length of the re-entry ban, leaving the authorities no latitude in that regard and precluding any real weighing-up of the various interests at stake. The Court observes that the Budapest High Court only briefly stated that it had reviewed the documents produced by the CPO, from which it was clear to it that the applicant’s presence in Hungary constituted a serious threat to national security. It did not make any reference to the evidential basis for this finding.
In view of the foregoing considerations, the Court concludes that the first applicant, despite having the formal possibility of seeking judicial review of the expulsion order, was not able to challenge, in an effective manner, the allegation that she represented a danger to national security, nor did she enjoy the requisite degree of protection against arbitrariness on the part of the authorities. The domestic proceedings examining the expulsion decision were not attended by appropriate and sufficient procedural guarantees
As to the protection of the second applicant’s best interests as a child, the view taken by the domestic authorities in the proceedings leading to the revocation of the applicants’ respective permits was that the second applicant should not be separated from her mother. However, this consideration served only to justify the applicants’ removal as a family unit. Given that the second applicant would have been left without parental supervision in Hungary in the event of her mother’s expulsion, the domestic authorities held that the family ties were to be maintained by revoking the second applicant’s settlement permit as well. The Court further observes that, pursuant to the Immigration Act, the revocation of the first and second applicants’ permits was a direct and automatic consequence of the decision to expel the first applicant, leaving no leeway to the immigration authorities.
While States retain broad powers in immigration and security matters, the ECtHR made clear that secret evidence and undisclosed allegations cannot justify measures that are immune from meaningful judicial scrutiny or adversarial challenge.
The ruling further strengthens the principle that long-term residence, social integration, and family ties form an integral part of “private life” protected by Article 8, even in cases involving foreigners. It also underlines that the best interests of the child require an individualized assessment and cannot be subordinated automatically to immigration enforcement objectives.
More broadly, the judgment signals that States are required to maintain effective safeguards against arbitrariness whenever national security is invoked, ensuring that executive discretion remains compatible with the rule of law in a democratic society.
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