Opinion of the Advocate General — ECLI:EU:C:2020:294
Date: 2020-04-23
Language of the case: Hungarian
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights;Border checks
Procedure: Preliminary reference - urgent procedure
Origin: Hungary

Summary C-924/19 PPU — 1 
Case C-924/19 PPU 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged: 
18 December 2019 
Referring court: 
Szegedi Közigazgatási és Munkaügyi Bíróság (Administrative and 
Labour Court, Szeged, Hungary) 
Date of the decision to refer: 
18 December 2019 
Applicants: 
FMS 
FNZ 
Defendants: 
Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális 
Igazgatóság (National Directorate-General for Aliens Policing, Dél-
alföld Directorate-General, Hungary) 
Országos Idegenrendészeti Főigazgatóság (National Directorate-
General for Aliens Policing, Hungary)  
  
Subject matter of the case in the main proceedings 
Two applications, the first against the decision amending the applicants’ country 
of return and the second seeking a declaration that the authority failed to designate 
a place of stay outside the transit zone. 
Subject matter and legal basis of the reference 
Do the grounds of inadmissibility set out in Article 33 of Directive 2013/32 cover 
a situation in which an applicant reached a Member State via a country where he 
was not exposed to persecution or to a risk of serious harm or where an adequate 
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level of protection is guaranteed? In the affirmative, if a Member State rejects an 
asylum application relying on that ground of inadmissibility, is that Member State 
obliged to conduct an asylum procedure? 
Does accommodation in a transit zone amount to a detention measure under the 
procedure for applying for international protection within the meaning of 
Article 2(h) of Directive 2013/33 or constitute detention within the field of 
competence of the Aliens Police for the purposes of Article 15 of Directive 
2008/115? 
Must a Member State ensure that a decision on the objection made against a 
decision by which the country of return was modified in the return decision be 
open to challenge before the courts? 
Legal basis: Article 267 TFEU 
Questions referred 
1. [New ground of inadmissibility] 
Must the provisions on inadmissible applications in Article 33 of Directive 
2013/32/EU of the European Parliament and of the Council of 26 June 2013 on 
common procedures for granting and withdrawing international protection (recast) 
(‘the Procedures Directive’) be interpreted as precluding a Member State’s 
legislation under which an application made in the context of the asylum 
procedure is inadmissible when the applicant reached Hungary via a country 
where he was not exposed to persecution or a risk of serious harm, or in which a 
sufficient degree of protection is guaranteed? 
2. [Conduct of an asylum procedure] 
(a) Must Article 6 and Article 38(4) of the Procedures Directive, and 
recital 34 thereto, which imposes an obligation to examine applications 
for international protection, read in the light of Article 18 of the 
Charter of Fundamental Rights (‘the Charter’), be interpreted as 
meaning that the competent asylum authority of a Member State must 
ensure that the applicant has the opportunity to initiate the asylum 
procedure if it has not examined the substance of the application for 
asylum by relying on the ground of inadmissibility mentioned in 
Question 1 above and has subsequently ordered the return of the 
applicant to a third country which has however refused to readmit 
him? 
(b) If the answer to question 2(a) is in the affirmative, what is the exact 
extent of that obligation? Does it imply an obligation guaranteeing the 
possibility to submit a new application for asylum, thereby excluding 
the negative consequences of subsequent applications referred to in 
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Articles 33(2)(d) and 40 of the Procedures Directive, or does it imply 
the automatic start or conduct of the asylum procedure? 
(c) If the answer to Question 2(a) is in the affirmative, taking account also 
of Article 38(4) of the Procedures Directive, can the Member State — 
the factual situation remaining unchanged — re-examine the 
inadmissibility of the application in the context of that new procedure 
(thereby giving it the possibility of applying any type of procedure 
provided for in Chapter III, for example reliance once again on a 
ground of inadmissibility) or must it examine the substance of the 
application for asylum in the light of the country of origin? 
(d) Does it follow from Article 33(1) and (2)(b) and (c) and Articles 35 
and 38 of the Procedures Directive, read in the light of Article 18 of 
the Charter, that readmission by a third country is one of the 
cumulative conditions for the application of a ground of 
inadmissibility, that is to say, for the adoption of a decision based on 
such a ground, or is it sufficient to verify that that condition is satisfied 
at the time of the enforcement of such a decision? 
3. (Transit zone as a place of detention in the context of an asylum procedure) 
The following questions are relevant if, in accordance with the answer to Question 
2, an asylum procedure must be conducted. 
(a) Must Article 43 of the Procedures Directive be interpreted as 
precluding legislation of a Member State under which the applicant 
may be detained in a transit zone for more than four weeks? 
(b) Must Article 2(h) of Directive 2013/33/EU of the European Parliament 
and of the Council of 26 June 2013 laying down standards for the 
reception of applicants for international protection (recast) (‘the 
Reception Directive’), applicable pursuant to Article 26 of the 
Procedures Directive, read in the light of Article 6 and Article 52(3) of 
the Charter, be interpreted as meaning that accommodation in a transit 
zone in circumstances such as those in the main proceedings (a zone 
which an applicant cannot lawfully leave on a voluntary basis 
regardless of his destination) for a period exceeding the four-week 
period referred to in Article 43 of the Procedures Directive constitutes 
detention? 
(c) Is the fact that the detention of the applicant for a period exceeding the 
four-week period referred to in Article 43 of the Procedures Directive 
takes place only because he cannot meet his needs (accommodation 
and food) due to a lack of material resources to cover those needs 
compatible with Article 8 of the Reception Directive, applicable 
pursuant to Article 26 of the Procedures Directive? 
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(d) Is the fact that (i) accommodation which constitutes de facto detention 
for a period exceeding the four-week period referred to in Article 43 of 
the Procedures Directive has not been ordered by a detention order, (ii) 
no guarantee that the lawfulness of the detention and its continuation 
may be challenged before the courts has been provided, (iii) the de 
facto detention takes place without any examination of the necessity or 
proportionality of that measure, or whether there are any alternatives 
measures and (iv) the exact duration of the de facto detention is not 
fixed, including the date on which it ends, compatible with Articles 8 
and 9 of the Reception Directive, applicable pursuant to Article 26 of 
the Procedures Directive? 
(e) Can Article 47 of the Charter be interpreted as meaning that, when a 
manifestly unlawful detention is brought for consideration before a 
court of a Member State, that court may, as an interim measure, until 
the administrative proceedings come to an end, require the authority to 
designate for the benefit of the third-country national a place of stay 
outside the transit zone which is not a place of detention? 
4. (Transit zone as a place of detention in the context of an asylum procedure) 
The following questions are relevant if, in accordance with the answer to Question 
2, there is a need to conduct not an asylum procedure but a procedure within the 
field of competence of the Aliens Police: 
(a) Must recitals 17 and 24 and Article 16 of Directive 2008/115/EC of the 
European Parliament and of the Council of 16 December 2008 on 
common standards and procedures in Member States for returning 
illegally staying third-country nationals (‘the Return Directive’), read 
in the light of Article 6 and Article 52(3) of the Charter, be interpreted 
as meaning that accommodation in a transit zone in circumstances such 
as those in the main proceedings (a zone which an applicant cannot 
lawfully leave on a voluntary basis regardless of his destination) 
constitutes deprivation of liberty for the purposes of those provisions? 
(b) Is the fact that the detention of an applicant, national of a third country, 
takes place solely because he is subject to a return order and cannot 
meet his needs (accommodation and food) due to a lack of material 
resources to cover those needs compatible with Recital 16 and 
Article 15(1) of the Return Directive, read in the light of Articles 6 and 
52(3) of the Charter? 
(c) Is the fact that (i) accommodation which constitutes de facto detention 
has not been ordered by a detention order, (ii) no guarantee that the 
lawfulness of the detention and its continuation may be challenged 
before the courts has been provided and (iii) the de facto detention 
takes place without any examination of the necessity or proportionality 
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of that measure, or whether there are any alternatives measures, 
compatible with Recital 16 and Article 15(2) of the Return Directive, 
read in the light of Articles 6, 47 and 52(3) of the Charter? 
(d) Can Article 15(1) and (4) to (6) and recital 16 of the Return Directive, 
read in the light of Articles 1, 4, 6 and 47 of the Charter be interpreted 
as precluding detention from taking place without its exact duration 
being fixed, including the date on which it ends? 
(e) Can EU law be interpreted as meaning that, when a manifestly 
unlawful detention is brought for consideration before a court of a 
Member State, that court may, as an interim measure, until the 
administrative proceedings come to an end, require the authority to 
designate for the benefit of the third-country national a place of stay 
outside the transit zone which is not a place of detention? 
5. [effective judicial protection with regard to the decision amending the 
country of return] 
Must Article 13 of the Return Directive, under which a third-country national is to 
be afforded an effective remedy to appeal against or seek review of ‘decisions 
related to return’, read in the light of Article 47 of the Charter, be interpreted as 
meaning that, where the remedy provided for under domestic law is not effective, 
a court must review the application lodged against the decision amending the 
country of return at least once? 
Provisions of international law relied on 
Articles 5, 6 and 13 of the Convention for the Protection of Human Rights and 
Fundamental Freedoms (‘the ECHR’). Article 2 of Protocol No 4 to the ECHR; 
Case-law of the European Court of Human Rights (‘the ECtHR’), in particular the 
judgment of 21 November 2019, Ilias and Ahmed v. Hungary (application 
47287/15), and the judgment of 21 November 2019, Z.A. and Others v. Russia 
(Case 61411/15).  
Provisions of EU law relied on 
Articles 6, 47 and 5 of the Charter of Fundamental Rights of the European Union; 
Recitals 16, 17 and 24 and Articles 2, 3, 13, 15 and 16 of Directive 2008/115/EC 
of the European Parliament and of the Council of 16 December 2008 on common 
standards and procedures in Member States for returning illegally staying third-
country nationals (OJ 2008 L 348, p. 98); 
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Articles 5, 26, 33, 35, 38 and 43 of Directive 2013/32/EU of the European 
Parliament and of the Council of 26 June 2013 on common procedures for 
granting and withdrawing international protection (OJ 2013 L 180, p. 60); 
Article 2(h) and Articles 8 to 11 of Directive 2013/33/EU of the European 
Parliament and of the Council of 26 June 2013 laying down standards for the 
reception of applicants for international protection (OJ 2013 L 180, p. 96); 
Article 3 of Council Decision 2007/819/EC of 8 November 2007 on the 
conclusion of the Agreement between the European Community and the Republic 
of Serbia on the readmission of persons residing without authorisation (OJ 2007 
L 334, p. 45); 
Judgment of 19 June 1990, Factortame (C-213/89, EU:C:1990:257). 
Relevant provisions of national law 
Article XIV(4) of the Magyarország Alaptörvénye (Hungarian Basic Law); 
Judgment of the Hungarian Constitutional Court 2/2019. (III. 5.) AB; 
Articles 5, 6, 12, 45, 51, 51/A. and 71/A. of A menedékjogról szóló 2007. évi 
LXXX. törvény (Law LXXX of 2007 on the right to asylum); 
Article 5(1) and (1b) and Article 15/A of Az államhatárról szóló 2007. évi 
LXXXIX. törvény (Law LXXX of 2007 on State Borders); 
Articles 47, 62 and 65 of A harmadik országbeli állampolgárok beutazásáról és 
tartózkodásáról szóló 2007. évi II. törvény (Law No II of 2007 on the entry and 
residence of third country nationals); 
A tömeges bevándorlás okozta válsághelyzet Magyarország egész területére 
történő elrendeléséről, valamint a válsághelyzet elrendelésével, fennállásával és 
megszüntetésével összefüggő szabályokról szóló 41/2016. (III. 9.) Korm. Rendelet 
(Government Decree 41/2016 (III.9)) on the declaration of the crisis situation 
caused by mass immigration in the whole territory of Hungary and on the rules 
relating to the declaration, existence and end of a crisis situation). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicants are a married couple of Afghan nationality. On 5 February 2019, 
they submitted an application for recognition of refugee status in the Röszke 
transit zone (Hungary). According to their own declarations, they had not applied 
for refugee status in any other country nor had they been mistreated or harmed in 
the countries through which they had transited before their arrival in Hungary 
(Turkey, Bulgaria and Serbia). They left Afghanistan for political reasons. 
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2 By its decision of 25 April 2019, the competent asylum authority declared the 
applicants’ application inadmissible and ordered their return to the territory of the 
Republic of Serbia. The authority justified its decision of inadmissibility on 
Article 51(2) of the Law on the right to asylum, relying on the fact that the 
applicants had reached Hungary via countries where they were not exposed to a 
risk of persecution justifying the recognition of refugee status or to a risk of 
serious harm which could serve as a ground for granting subsidiary protection or 
they were guaranteed an adequate level of protection in the countries via which 
they transited to reach Hungary. 
3 The action brought by the applicants was dismissed by the competent court 
without any examination of the merits of the case. 
4 Subsequently, by its decisions of 17 May 2019, the Aliens Policing Authority 
ordered the applicants to stay at a designated place, namely the Aliens Police 
sector in the Röszke transit zone. 
5 After Serbia refused to readmit the applicants, the Aliens Policing Authority 
adopted a decision on 3 June 2019 amending the decision of 25 April 2019 and 
designated Afghanistan as country of return. The objection to that amending 
decision was rejected without judicial review. 
6 The applicants currently stay in the Röszke transit zone, which is an area 
surrounded by a high wall with barbed wire and in which metal containers are 
located. The applicants can leave their sector only exceptionally (for example for 
medical check-ups or when their presence is required for the purposes of 
procedural acts) and are therefore almost isolated from the outside world. Asylum 
applicants accommodated in other sectors are also not allowed to visit them and 
contact with the outside world, including their legal representative, is only 
possible with prior authorisation and under police escort, in a container provided 
for that purpose in the transit zone. On 20 May 2019, at the applicants’ request, 
the ECtHR adopted an interim measure requiring Hungary to provide them with 
food in the transit zone. 
7 The applicants filed two applications. In the first, they seek the annulment of the 
decision concerning the objection to the enforcement of the decision amending the 
country of return and the conduct of a new procedure. In the second application, 
they seek a declaration that the competent asylum authority failed to act in that it 
did not designate a place of stay located outside the transit zone. Those two sets of 
proceedings have been joined. 
Essential arguments of the parties to the main proceedings 
8 The applicants claim that the decision taken in relation to the objection to the 
enforcement of the decision amending the country of return amounts to a return 
decision which must, in conformity with the principle of judicial protection, be 
open to challenge before the courts, which must examine its substance. The Law 
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on the right to asylum introduces a new ground of inadmissibility, not mentioned 
in Directive 2013/32 (concept of safe transit country), which infringes EU law. In 
addition, the stay in the designated place in the transit zone constitutes detention 
since none of the reasons set out in law to for that purpose are present. Under 
Hungarian law, they cannot leave the area of the transit zone to enter Hungary, 
whereas, on the basis of Decision 2007/819, Serbia does not readmit applicants 
who are subject to deportation. 
9 The defendants contend that the objection to enforcement amounts to an effective 
remedy against the decision amending the country of return. The competent 
asylum authority examines the substance of an asylum application only when the 
ground of inadmissibility is based on the concept of safe country of origin or safe 
third country. However, in the applicants’ case, the application for asylum was not 
rejected on those grounds but on the ground of safe country of transit. 
10 The defendants add that the applicants are free to leave the territory of the transit 
zone to go to Serbia and accordingly their stay in the designated place in the 
transit zone does not constitute detention, as confirmed by the ECtHR in its 
judgment of 21 November 2019 (application 47287/15). 
Succinct presentation of the grounds for the request for a preliminary ruling 
11 As regards the first question referred for a preliminary ruling, the referring court 
holds that it is clear from the wording of Article 33(2) of Directive 2013/32 that 
the list of the grounds of inadmissibility it contains is a restrictive and exhaustive 
list and the Member States may not introduce any new ground of inadmissibility. 
Nevertheless, Article 51(2)(f) of the Law on the right to asylum specifically 
introduces a new ground of inadmissibility. 
12 As regards the second question referred, it is apparent from Article 33(1) and (2) 
(b) and (c) and Articles 35 and 38 of Directive 2013/32, read in the light of 
Article 18 of the Charter, that one of the cumulative conditions for the application 
of a ground of inadmissibility is that the applicant must be readmitted by a third 
country. If even before the adoption of the decision of inadmissibility there is no 
doubt that the country of return will not readmit the applicant, the competent 
authority of the Member State cannot adopt such a decision since the assumption 
that the applicant can genuinely be granted protection in that country is invalid. It 
therefore ‘resurrects’ the obligation of the competent asylum authority to conduct 
an asylum procedure, which it must do in accordance with the principles and 
guarantees of Directive 2013/32. 
13 If the asylum procedure must be conducted because the country of return does not 
readmit the applicant, the application submitted for that purpose cannot be 
regarded as a subsequent application. 
14 As regards the third question referred, Article 43(2) of Directive 2013/32 provides 
that when a decision has not been taken within four weeks, the applicant will be 
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granted entry to the territory of the Member State. Article 5 of that directive does 
not permit the high number of applicants (in Hungarian law: crisis situation 
caused by the large number of applicants) to be relied on in order to lay down 
exceptions to that provision which are detrimental to applicants. Article 43(3) of 
Directive 2013/32 does not apply as the applicants have not been accommodated 
normally at locations in proximity to the border or transit zone. 
15 In the light of the foregoing, accommodation in the transit zone for a period 
exceeding four weeks constitutes detention within the meaning of Directive 
2013/33 and Articles 8 to 11 of that directive are to be applied to that situation. 
16 As regards the fourth question referred, the referring court considers that 
Article 15 of Directive 2008/115, read in conjunction with Articles 6 and 52 of the 
Charter, is applicable to the applicants. 
17 On the basis of the assessment criteria set out in the ECtHR judgments Ilias and 
Ahmed and Z. A. and Others, the referring court considers that accommodation in 
the transit zone amounts to deprivation of liberty (Article 5(1) of the ECHR).  
18 Those criteria are as follows: 
a) personal circumstances of the applicants and the choices made by them: the 
applicants did not enter the transit zone voluntarily, but were forced to stay there 
by a decision [of the authorities]. At the beginning of their de facto detention they 
were not applicants for asylum because their applications for asylum had 
previously been rejected and their return ordered.  
b) set of legal rules applicable in the country concerned and the aim it pursues: 
the applicants’ mandatory place of stay was not designated with a view to 
examining the substance of their application for asylum but because their return 
was ordered without them having access to the necessary accommodation or food. 
c) applicable duration and procedural guarantees: Hungarian legislation does 
not lay down the maximum duration of a stay in the transit zone and the decision 
ordering such a stay does not refer to it either, so that it appears that it may even 
be possible to extend it indefinitely. There are no procedural means available to 
the applicants to challenge the duration of their stay in the transit zone. 
d) nature and degree of seriousness of the restrictions actually imposed on the 
applicants and endured by them: since the applicants cannot go to Serbia and their 
deportation to Afghanistan is only possible by air, their leaving the transit zone 
does not depend on their will, but exclusively on the actions of the authorities. 
19 In the light of the foregoing, accommodation in the transit zone constitutes de 
facto unlawful detention, because: 
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–  it takes place without a reasoned decision being given in due time and form 
which is contrary in particular to Article 6 of the Charter and Article 5 of the 
ECHR;  
–  it lacks legal basis since, under Article 15 of Directive 2008/115, it cannot be 
imposed merely because the return of the applicants has been ordered and the 
applicants do not have access to the necessary accommodation and food; 
–  the duration of the stay has not been fixed; 
–  the mandatory and automatic possibility of bringing the matter before the 
courts is not guaranteed;  
–  the authority did not assess, in its prior examination of the alternatives, 
whether detention was the only solution or whether in their specific case it was 
a necessary and proportionate restriction. 
20 The referring court adds that, by virtue of the right to an effective remedy 
enshrined in Article 47 of the Charter, in the event of unlawful detention, the court 
of a Member State may, by way of an interim measure until the end of the 
administrative proceedings, require the authority to designate for the benefit of the 
third-country national a place of stay outside the transit zone, even if the 
legislation of the Member State makes no provision for the application of such a 
measure (see judgment of 19 June 1990, Factortame and Others, C-213/89). 
21 As regards the fifth question referred, in the light of its content and effects, the 
decision of the Aliens Policing Authority amending the country of return which 
was included in the decision ordering the return constitutes a new return decision 
adopted pursuant to Article 3(4) of Directive 2008/115; that new decision must be 
open to challenge before the courts. In accordance with Articles 6 and 13 of the 
ECHR and Article 47 of the Charter, the body that hears the action must be an 
independent and impartial tribunal, which does not apply in the case of the 
competent asylum authority. The objection to enforcement does not guarantee 
[access to] an effective remedy because Hungarian legislation does not provide for 
review by the courts of the authority’s decision relating to the objection to 
enforcement. In the present case, effective legal protection would be guaranteed 
only if a court is able to review the decision amending the country of return. 
22 Even if it were established that the applicants’ situation falls within the scope of 
Directive 2013/32, the referring court considers that it is essential for the Court of 
Justice to answer that question because otherwise the decision amending the 
country of return may remain in force.