Hungary - Szeged District Court, 13 November 2015, 17.Ir.261/2015/5
Keywords:
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The Iraqi Kurdish Applicant was placed in immigration detention, while waiting for the recipient statement of the Serbian authority on the basis of the readmission agreement. After the Serbian authority rejected the deportation towards Serbia, the OIN modified its decision regarding deportation towards the place of origin, to Iraq and prolonged the immigration detention of the Applicant.
The Court ruled that deportation towards Iraq cannot be carried out because of the prohibition of non-refoulement and terminated the immigration detention of the Applicant.
Facts:
The Iraqi Kurdish Applicant faced a real risk of persecution on account of personal relationships with a Kurdish woman outside of marriage, which was later made publicly known, and on account of his brother joining military forces which supported the opposition, the power of the President of the Iraqi Kurdistan Region, Masud Barzami. In Iraq, people who are against the regime are publicly executed. Overall, the life of the Applicant was in danger so he decided to escape and move to Finland, where one of his brothers lived.
The Applicant illegally crossed the border of Hungary but he did not apply for international protection (asylum). The Iraqi Kurdish Applicant was found guilty of illegal border crossing and he was expelled from the territory of Hungary for 2 years. The Office of Immigration and Nationality (OIN) suspended the enforcement of its decision and placed the Iraqi Kurdish Applicant under immigration detention on September 2015, while waiting for the recipient statement of the Serbian authority on the basis of the readmission agreement. After the Serbian authority rejected the deportation towards Serbia on November 2015, the OIN modified its decision regarding deportation towards the place of origin, to Iraq and prolonged the immigration detention of the Applicant. Furthermore, the OIN enclosed a statement emphasizing that with regards to Iraq, there is no prohibition of non-refoulement.
The Applicant submitted an appeal to the Court in which he requested the termination of his immigration detention and the rejection of the OIN’s order.
According to the reasoning of the Applicant, the OIN did not fully explore the facts of the case, and gathered evidence in order to find out whether the expulsion order can be carried out in respect of the Applicant. In addition, the OIN neither acquired objective, and current country information, nor personalised the data.
The Applicant highlighted the opinion of the Law Interpretation Group of the Supreme Court of Hungary according to which immigration detention may only be maintained if substantial actions are taken in order to enforce the expulsion order.
Decision & reasoning:
The Court found the Applicant’s claim unfounded. The Court noted that the subject of the procedure was only to determine whether the immigration detention shall be maintained or terminated.
The Court highlighted that under immigration laws, detention ordered shall be terminated immediately when it becomes evident that the expulsion or transfer cannot be executed and the immigration authority shall designate a compulsory place of confinement for the Applicant.
The Court found that the OIN did not indicate in its decision the safe place in Iraq where the Applicant shall be deported. The Court ruled that Iraq cannot be considered as a safe country of origin based on the laws of Hungary in force (Government decree 191/2015) and the report of the European Council and the Country Information Service issued on 26 June 2015. Based on the above-mentioned, the Court ruled that Iraq is not a safe country of origin and the prohibition of non-refoulement is applicable.
The Court referred to the resolution of the Law Interpretation Group of the Supreme Court of Hungary according to which the prohibition of non-refoulement may be examined in relation to the termination of immigration detention.
The Court concluded that the Applicant’s deportation towards Serbia failed, and deportation towards Iraq cannot be carried out because of the prohibition of non-refoulement. For this reason, the Court came to the conclusion that the immigration detention of the Applicant shall be terminated.
Outcome:
The Court terminated the immigration detention of the Applicant.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Resolution of the Law Interpretation Group of the Supreme Court of Hungary 2012 El.II.F.1/9
Report of the European Council and the Country Information Service, 26 June 2015