End of Dublin transfers to Hungary?

By Judgement of 13 June 2024  in case C-123/22 Commission v Hungary the Court of Justice  of the EU pronounced the failure of Hungary to comply with it‘s judgment of 17 December 2020, in case C‑808/18 and ordered Hungary to pay 200 million euros and a penalty payment of 1 million euros per day of delay for systematically breaching EU legislation relating to reception of applicants for international protection. The consequences of such judgment will reach beyond financial sanctions. The judgement confirms systematic deficiencies characterising Hungary‘s asylum system preventing Dublin transfers to this EU Member State.

That failure, confirmed by the court, consists in deliberately avoiding the application of a common EU policy as a whole, and constitutes, according to the judgement, an unprecedented and extremely serious infringement of EU law, inter alia, procedures for granting international protection and returning illegally staying third-country nationals, by restricting access to the international protection procedure, unlawfully detaining applicants to international protection in transit zones and failing to observe their right to remain in Hungarian territory pending a final decision on their appeal against the rejection of their application, as well as the removal of illegally staying third-country nationals.

The court goes on explaining that such conduct constitutes a serious threat to the unity of EU law, which has an extraordinarily serious impact both on private interests, particularly the interests of asylum seekers, and on the public interest as well as attempts  transferring to the other Member States Hungary’s  responsibility, including financial responsibility, for ensuring, in accordance with EU law, the reception of applicants for international protection, the examination of their applications and the return of illegally staying third-country nationals, seriously undermines the principle of solidarity and fair sharing of responsibility between the Member States.

In Puid (C-4/11), the CJEU has clarified that a transfer to the responsible Member State under the criteria of Chapter III of the Dublin II Regulation is prohibited if the Member States cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions in the designated Member State give rise to serious grounds for believing that the asylum-seeker concerned would be at real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of fundamental freedoms.

In Joined Cases C-411/10 and C-493/10, the CJEU examined whether there would be a violation of Article 4 of the EU Charter (which corresponds to Article 3 of the ECHR) if the persons concerned were transferred to Greece under the Dublin Regulation. Even before the CJEU took up these cases, the ECtHR had already ruled that the reception and other conditions for asylum seekers in Greece were such as to violate Article 3 ECHR (see M.S.S. v. Belgium and Greece 30696/09). The CJEU ruled that EU Member States could not have been “unaware” of systemic deficiencies in the asylum procedure and reception conditions in Greece, which had led to a real risk of inhuman or degrading treatment of asylum seekers. The Court stressed that the implementation of the Dublin Regulation requires respect for the rights set out in the Charter, which meant that, in the absence of other responsible EU Member States, the UK and Ireland were obliged to examine the asylum claims, despite the fact that the applicants had lodged their asylum claims in Greece.

According to EASO, persons who had not previously applied for asylum in Hungary and persons whose applications are still pending would usually be treated as first-time asylum applicants. However, according to the current asylum legislation in force. If a person, who did not yet apply for asylum in Hungary, was to be returned under the Dublin Regulation, they would have to apply for asylum upon their return, but the current legislation in force does not allow for this possibility. ‘Dublin returnees’ do not figure among the exceptions, who are allowed to apply for asylum within the Hungarian territory. This systemic deficiency is not remedied by ad hoc clarification by NDGAP that, according to the authority’s interpretation and practice, applicants returned through the Dublin procedure have to declare upon arrival whether they intend to uphold their asylum application lodged in the transferring country, and if they do, the asylum procedure will commence.

Where there are longstanding, more severe and systemic deficiencies, transfers may be suspended de jure or de facto.  Just yesterday, a day before the CJEU judgement, the Lithuanian Supreme Administrative Court had a chance to pronounce on conditions of Dublin transfer to Hungary in case No eA-1774-821/2024. In this ReLex case the court found that The Migration Department has only formally stated that it has no evidence to substantiate the presumption that there are systemic deficiencies in the asylum procedure and reception conditions in the Republic of Hungary which could lead to inhuman or degrading treatment of asylum seekers. The court noted that there is no information in the case-file as to the basis on which the Migration Department arrived at such a conclusion and what information from the country of origin it collected and assessed. In particular, as it appears from the CJEU cases cited by the applicant, Hungary is confronted with a number of shortcomings in the processing of asylum applications. In this case the court annulled decision regarding Dublin transfer to Hungary.



Konstitucijos pr. 7, Vilnius LT-09308