Case summaries

The applicant had sufficiently established that if returned to Hungary under the Dublin Regulation he would not benefit from an examination of his asylum application in line with procedural guarantees as required by the right to asylum. Such a transfer decision thus violated Article 4 of the Charter.

In order to protect the security of state and public order, it is justifiable to limit freedoms and rights, including the right to court. The right to court covers the possibility to access case files by the party of the proceedings as well as the possibility to get to know the motives of the decision and formulate allegations against them. When there is a need to protect the security of state and public order, the rights of the party of the proceedings are limited. The party cannot get to know the motives of the decisions and has to rely on the fair judgement of the authority.

The courts as well as the administrative authorities got to know the motives of the decision and had a possibility to verify them in the context of the legal conditions in return proceedings. Their assessment is binding and sufficient. Assessment of the authorities is subject to control of legality in administrative court proceedings, so it cannot be stated that the actions of the authority are out of control.

The Supreme Administrative Court rules that Article 12(1)2 of the Return Directive which allows for non-disclosure of certain facts of the return decision for the reasons of national security is a specific law applicable in return cases and to that extent it excludes the general safeguards envisaged in Article 47 of the Charter.

The issue to be decided in this case was whether the applicant was entitled to judicial review of the decision of the Refugee Applications Commissioners, or whether her complaints could be adequately addressed on appeal to the Refugee Appeals Tribunal. 

This case examines whether, for a subsequent application, internal review followed by Judicial Review is an effective remedy, as provided by Article 39 of the Council Directive 2005/85/EC (“the Asylum Procedures Directive”).

If an Applicant, whilst his asylum application is being processed, is held in a limited area, this may be in contravention of Article 5 of the European Convention on Human Rights (“ECHR”). In determining this, the Court may take into account all of the circumstances of the case, in particular the nature, period and effect of the holding of the Applicant and how the holding of the Applicant is enforced.

Limiting the possibility to access classified information to the third country national does not automatically mean that their right to an effective remedy with regard to a return order was infringed. By the same token there has been no infringement of Article 47 of the Charter.

The request for a preliminary ruling reads as follows: “Should Article 32 (3) of the Visa Code interpreted in light of Recital 29 of the preamble and Article 47 of the Charter be understood as creating an obligation for a Member State to guarantee the right to an effective remedy before a court?”

In the opinion of the Supreme Administrative Court the wording of Article 32 (3) of the Visa Code does not provide clarity as to whether the EU legislator intended to give the term “appeal” the meaning of any measure envisaged in national law or to give the right to an effective remedy before a respective court. If the CJEU, in the preliminary reference proceedings, states that the right to “appeal” should be exercised before a court, the national law excluding judicial control with regard to the Consulate’s decisions refusing the issuance of a visa would be contrary to Article 47 of the Charter, as well as the principle of equivalence and effectiveness.

The lower court had erred in law by judging that the administration need not justify having informed the applicant about the possibility to communicate with a  representative of the United Nations High Commissioner for Refugees (UNHCR).

In order for a correct application of the responsibility determination procedure under Dublin III to take place the applicant must be able to contest a transfer decision and invoke an infringement of the rule set out in subparagraph 19(2) DR III, i.e. where the applicant provides evidence that he/she has left the territory of one Member State, having made an application there, for at least three months and has made a new asylum application in another Member State.

Dublin III is characterised by the introduction or re-fortification of rights and mechanisms which guarantee the involvement of the asylum seeker in the determination process. Article 27(1) when read in conjunction with Recital 19 is ,therefore, to be interpreted as allowing an asylum seeker to appeal a transfer decision on grounds that the Chapter III allocation criteria were incorrectly applied.