Opinion of the Advocate General — ECLI:EU:C:2022:326
Date: 2022-04-28
Language of the case: Hungarian
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights;Border checks
Procedure: Reference for a preliminary ruling
Origin: Hungary

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Translation C-159/21 – 1 
Case C-159/21 
Request for a preliminary ruling 
Date lodged:  
11 March 2021 
Referring court:  
Fővárosi Törvényszék (Budapest High Court, Hungary) 
Date of the decision to refer: 
27 January 2021 
Applicant: 
GM 
Defendants: 
Országos Idegenrendészeti Főigazgatóság (National Directorate-
General of the aliens police, Hungary) 
Alkotmányvédelmi Hivatal (Constitutional Protection Office, 
Hungary) 
Terrorelhárítási Központ (Counterterrorism Centre, Hungary) 
  
Fővárosi Törvényszék (Budapest High Court, Hungary) 
[…] In contentious administrative asylum proceedings […] between GM ([…] 
Budapest […]), applicant, […] and Országos Idegenrendészeti Főigazgatóság 
(National Directorate-General of the aliens police, Hungary) ([…] Budapest […]), 
first defendant, […] Alkotmányvédelmi Hivatal (Constitutional Protection 
Office, Hungary) ([…] Budapest […]), second defendant, […] and 
Terrorelhárítási Központ (Counterterrorism Centre, Hungary) ([…] Budapest 
[…]), third defendant, the Fővárosi Törvényszék (Budapest High Court) made 
the following 
EN 
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decision: 
This court hereby makes a reference to the Court of Justice of the European Union 
for a preliminary ruling on the interpretation of certain provisions 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 
(‘Asylum Procedures Directive’) and of Directive 2011/95/EU of the European 
Parliament and of the Council of 13 December 2011 on standards for the 
qualification of third-country nationals or stateless persons as beneficiaries of 
international protection, for a uniform status for refugees or for persons eligible 
for subsidiary protection, and for the content of the protection granted (‘the 
Qualification Directive’). 
This court refers the following questions to the Court of Justice of the European 
Union for a preliminary ruling: 
1. Must Article 11(2), Article 12(1)(d) and (2), Article 23(1)(b) and 
Article 45(1) and (3) to (5) of the Asylum Procedure Directive – in the light of 
Article 47 of the Charter of Fundamental Rights of the European Union 
(‘Charter’) – be interpreted as meaning that, where the exception for reasons of 
national security referred to in Article 23(1) of that directive applies, the Member 
State authority that has adopted a decision to refuse or withdraw international 
protection based on a reason of national security and the national security 
authority that has determined that the reason is confidential must ensure that it is 
guaranteed that in all circumstances the applicant, a refugee or a foreign national 
beneficiary of subsidiary protection status, or that person’s legal representative, is 
entitled to have access to at least the essence of the confidential or classified 
information or data underpinning the decision based on that reason and to make 
use of that information or those data in proceedings relating to the decision, where 
the responsible authority alleges that their disclosure would conflict with the 
reason of national security? 
2. If the answer is in the affirmative, what precisely should be understood by 
the ‘essence’ of the confidential reasons on which that decision is based, for the 
purposes of applying Article 23(1)(b) of the Asylum Procedure Directive in the 
light of Articles 41 and 47 of the Charter? 
3. Must Articles 14(4)(a) and 17(1)(d) of the Qualification Directive and 
Article 45(1)(a) and (3) to (4) and recital 49 of the Asylum Procedure Directive be 
interpreted as meaning that they preclude national legislation according to which 
refugee or foreign national beneficiary of subsidiary protection status may be 
withdrawn or excluded by a non-reasoned decision which is based solely on 
automatic reference to the – likewise non-reasoned – binding and mandatory 
report of the national security authority and finds that there is a danger to national 
security? 
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4. Must recitals 20 and 34, Article 4 and Article 10(2) and (3)(d) of the Asylum 
Procedure Directive and Articles 14(4)(a) and 17(1)(d) of the Qualification 
Directive be interpreted as meaning that they preclude national legislation 
according to which that national security authority examines the ground for 
exclusion and takes a decision on the substance in a procedure that does not 
comply with the substantive and procedural provisions of the Asylum Procedure 
Directive and the Qualification Directive? 
5. Must Article 17(1)(b) of the Qualification Directive be interpreted as 
meaning that it precludes an exclusion based on a circumstance or crime that was 
already known before the judgment or final decision granting refugee status was 
adopted but which was not the basis of any ground for exclusion in relation to 
either the grant of refugee status or to subsidiary protection? 
Grounds 
I. Subject matter of the main dispute and relevant facts 
The applicant, a Syrian national, applied for asylum in 2005 while serving a 
custodial sentence for improper use of a considerable quantity of drugs, imposed 
by a final judgment in 2002. The applicant was granted ‘accepted person’ 1 status 
but lost that status in 2010 when a review took place and was confirmed by a court 
decision. In 2011, the applicant filed a new application for refugee status, pursuant 
to which the Fővárosi Törvényszék (Budapest High Court), by judgment of 
29 June 2012, granted him status as a refugee sur place. Subsequently, in 2019, an 
administrative procedure to withdraw his refugee status was initiated ex officio. 
An appeal against that administrative decision (decision […] of 15 July 2019) was 
heard by the referring court in administrative proceedings in which the applicant’s 
refugee status was withdrawn, although the court held that non-refoulement 
should apply. During the administrative proceedings, the third defendant and the 
second defendant in the present contentious administrative proceedings (the 
Counterterrorism Centre and the Constitutional Protection Office respectively) 
found in their reports that the applicant’s stay in Hungary constituted a danger to 
national security. On the basis of the foregoing, the competent asylum authority 
found that a ground for exclusion from being granted refugee or foreign national 
beneficiary of subsidiary protection status was established in the applicant’s case.  
II. Key points of the parties’ submissions 
At the start of the judicial proceedings, counsel for the applicant proposed that 
the referring court should make a referral to the Court of Justice of the European 
 
      
1 Translator’s note: a literal translation of ‘befogadott’, one of the statuses governed by the 
Hungarian Law on the right to asylum for precisely those persons who are not granted refugee 
status or subsidiary protection but to whom the principle of non-refoulement must apply. 
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Union (‘the Court of Justice’) for a preliminary ruling. He submitted that, in 
essence, he was unable to gain access to the essence of the ‘confidential’ data 
relied upon in relation to the danger to national security and that, even if he was 
given access to them, under the legislation in force he could not use them in the 
judicial proceedings. He noted also that according to the relevant case-law of the 
Court of Justice, the competent asylum authority must assess applications 
individually and may not base its decision exclusively on the conclusions of the 
report by the specialised (national security) authority. Further, the applicant took 
the view that the Hungarian legislation – without any authorisation under EU 
law – has added a ground for exclusion, which is contrary to EU law, to the 
grounds for exclusion leading to withdrawal of the status. 
The second and third defendants, as national security authorities, referred to the 
circumstances identified in the course of their own procedures and contained in 
the classified file, and maintained their conclusions in respect of the danger to 
national security. 
The competent asylum authority, designated as the first defendant, emphasised the 
outcome of the work of the national security authorities, designated as second and 
third defendants, according to which the applicant’s stay in Hungarian territory 
constitutes a danger to national security. In the light of the foregoing, the 
competent asylum authority takes the view that the applicant cannot be granted 
either refugee status or beneficiary of subsidiary protection status. 
III. Relevant legislation: 
EU law 
EU law in respect of the first and second questions referred: 
1. The Asylum Procedure Directive, in particular Article 11(2), 
Article 12(1)(d) and (2), Article 23(1)(b) and Article 45(1) and (3) to (5) 
2. The Charter, in particular Articles 41 and 47 
EU law in respect of the third and fourth questions referred: 
1. The Qualification Directive, in particular Articles 14(4)(a) and 17(1)(d) 
2. The Asylum Procedure Directive, in particular Article 4, Article 10(2) and 
(3)(d) and Article 45(1)(a), (3) and (4) and recitals 20, 34 and 49 
EU law in respect of the fifth question referred: 
The Qualification Directive, in particular Article 17(1)(b) 
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Hungarian legislation: 
Hungarian law in respect of the first and second questions referred: 
Article 57 of the a menedékjogról szóló 2007. évi LXXX. törvény (Law No 
LXXX of 2007 on the right to asylum) (‘Law on the right to asylum’) 
‘(1) In procedures governed by this Law, the national security authority shall 
issue a report on any technical matters it is competent to assess. … 
(3) The competent asylum authority may not depart from the report by the 
national security authority if decision-making on the matter stipulated in the report 
is not within its area of competence. …’ 
Article 3 of the a minősített adat védelméről szóló 2009. évi CLV. törvény (Law 
CLV of 2009 on the protection of classified information) (‘Law on the protection 
of classified information’) 
‘1. Classified information: 
a) National classified information: any information falling within the scope of 
the public interests capable of being protected by classification, which bears the 
classification marking in accordance with the formal requirements specified in this 
Law or in any legislation adopted hereunder, in respect of which, irrespective of 
how it is presented, the classifier has established in the classification procedure 
that the disclosure, unauthorised acquisition, modification or use of that 
information, its provision to an unauthorised person or the fact of access to that 
information by the person entitled to access being prevented, during its validity 
period, would infringe or directly compromise (collectively, ‘harm’) any of the 
public interests capable of being protected by classification and, having regard for 
its contents, has limited the disclosure of and access to that information in the 
context of the classification; … 
[…] [definitions that are not relevant to this request]’ 
Article 11 of the Law on the protection of classified information 
‘(1) Data subjects shall be entitled to have access to their personal data classified 
as national classified information on the basis of an access authorisation issued by 
the classifier and shall not require personal security clearance. Before gaining 
access to national classified information, the data subject must make a written 
confidentiality declaration and comply with the provisions governing the 
protection of national classified information. 
(2) On request by the data subject, the classifier shall decide within 15 days 
whether to grant the access authorisation. The classifier shall refuse the access 
authorisation if access to the information harms the public interest on which the 
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classification is based. The classifier shall state reasons for refusing access 
authorisation. 
(3) Where access authorisation is refused, the data subject may appeal that 
decision in contentious administrative proceedings. If the court upholds the 
appeal, the classifier must grant the access authorisation. The court will hear the 
matter without the presence of the public. The proceedings may only be heard by 
a judge who has undergone a national security check in accordance with the Law 
on National Security Services. The applicant, a person participating as an 
interested party together with the applicant and their representatives shall not have 
access to the classified information during the proceedings. Other persons 
intervening in the proceedings and their representatives may only have access to 
the classified information if they have undergone a national security check in 
accordance with the Law on National Security Services.’ 
Article 12 of the Law on the protection of classified information 
‘(1) The controller of the classified information may deny the data subject the 
right to access his or her personal data if the public interest on which the 
classification is based would be compromised by exercise of that right. 
(2) Where the rights of a data subject are relied upon before a court the 
provisions of Article 11(3) shall apply mutatis mutandis to the court hearing the 
matter and to access to classified information.’ 
Article 13 of the Law on the protection of classified information 
‘(1) Classified information may only be used by a person who has good reason to 
do so in the interests of performing a State or public function and who, without 
prejudice to the exceptions laid down by the Law, has: 
a) valid personal security clearance corresponding to the level of classification 
of the information it is wished to use; 
b) a confidentiality declaration; and 
c) authorisation to use the information. …. 
(5) Unless the Law provides otherwise, the court shall be responsible for 
exercising the decision-making powers necessary to determine the matters 
assigned to it in the order in which they are allocated, with no requirement for a 
national security check, personal security clearance, confidentiality declaration or 
authorisation to use the information.’ 
Hungarian law in respect of the third and fourth questions referred: 
Article 8 of the Law on the right to asylum 
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‘(4) A foreign national whose stay on national territory constitutes a danger to 
national security may not be granted refugee status.’ 
Article 15 of the Law on the right to asylum  
‘Subsidiary protection status shall not be granted to a foreign national … 
(4) whose stay on national territory constitutes a danger to national security.’ 
Hungarian law in respect of the fifth question referred: 
Article 15 of the Law on the right to asylum  
‘Subsidiary protection status shall not be granted to a foreign national … 
ab) in respect of whom a ground of exclusion under Article 8(5) applies;’ 
Article 8 of the Law on the right to asylum 
‘(5) Refugee status shall not be granted to a foreign national on whom a court 
a) has imposed a definitive custodial sentence of five years or more for an 
intentional crime; 
b) has imposed a definitive custodial sentence for a crime committed as a 
repeat offender, multiple repeat offender or multiple repeat violent offender; 
c) has imposed a definitive custodial sentence of three years or more for a 
crime against life, physical integrity or health, a crime endangering health, a crime 
of deprivation of liberty, sexual crimes, a public order crime, a crime against 
public security or a crime against the public administration.’ 
IV. Grounds for the request for a preliminary ruling 
First and second questions referred 
According to the relevant case-law of the Kúria (Supreme Court, Hungary), the 
procedural rights of the persons concerned are safeguarded by the mere fact that 
the court reviewing an administrative decision based on classified information is 
able to inspect the documents of the national security authority that contain the 
classified information. There is therefore no requirement that the person 
concerned should be able to know and use the information in question or at least 
the essence of that information. 
The case-law of the Court of Justice on the restriction of rights in relation to 
decisions based on confidential information can be found, in particular, in Cases 
C-300/11 and C-593/10. 
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As regards the applicant, the decision by the competent asylum authority to 
exclude him from international protection is based solely on the fact that the two 
national security authorities that participated in the procedure (the second and 
third defendants) declared in their reports that the applicant’s stay in Hungary 
‘constitutes a danger to national security’. The competent asylum authority did not 
examine the reasons on which the national security authority based its report, 
including the classified information. 
Neither the applicant nor his legal representative were able to make submissions 
on the non-reasoned report of the national security authority, obtained by the 
competent asylum authority in the administrative proceedings, or to challenge the 
basis for that report at the stage of the administrative proceedings. The applicant is 
able to request access to classified information about him under the Law on the 
protection of classified information but, even if he were granted access to the 
classified information, he would not be able to use it in either the administrative or 
the judicial proceedings. (According to their replies to the request for information 
in the public interest by the Magyar Helsinki Bizottság (Hungarian Helsinki 
Committee), the defendants in the main proceedings, the Constitutional Protection 
Office and the Counterterrorism Centre, did not grant the data subjects concerned 
any permission for access to the classified information about them in any of the 
requests they received in 2019 and the first half of 2020). 
The fact that there is no right to use the information means that even if the 
confidential information is available to him, the applicant cannot make 
submissions on the reasons underlying the decision taken in the asylum procedure 
or, in consequence, put forward arguments to support a claim that the ground of 
exclusion does not apply. 
Under the Law on the protection of classified information, the national security 
authority that takes the decision on access authorisation is not entitled to grant the 
application for access only in part, by disclosing the essence of the reasons on 
which that authority’s report is based. 
Although the court reviewing the lawfulness of an asylum decision and of the 
report of the national security authority on which it is based (as the referring court 
is doing here) is entitled to access confidential or classified information, it cannot 
use that information at any point, even in the main proceedings, and the court 
cannot make any pronouncement or finding in relation to it, either in the judicial 
proceedings or in its judgment. The court’s judgment therefore inevitably lacks 
any facts and circumstances on which it can base its assessment of that aspect. 
The court is required to review the administrative decision and rule at last resort 
on whether the ground for exclusion based on the confidential or classified 
information applies, in a situation in which neither the applicant nor the 
applicant’s representative has been able to present a defence or any arguments or 
facts to establish that the ground at issue does not apply in that individual case. 
The court is only able to decide, without stating reasons for its decision, whether 
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the classified information on which the authority relies justifies the finding made 
by the national security authority. 
The court is unable to guarantee that the applicant in the main proceedings is, in 
any event, provided with the essence of the reasons underlying the national 
security authority’s report and the substantive asylum decision being reviewed by 
the court. 
Article 23(1)(b) of the Asylum Procedure Directive has not been transposed into 
Hungarian law, thereby creating a further exception in addition to the explicit 
exception established in that article. Nevertheless, neither that directive, Article 72 
TFEU nor any other provision of EU law allows this. 
As explained, it is therefore unclear whether the Hungarian legislation relied upon 
guarantees the fundamental procedural rights of applicants enshrined in the 
Asylum Procedure Directive and Article 47 of the Charter, or the right to an 
effective remedy. 
The provisions of the Asylum Procedure Directive cited above must be interpreted 
precisely, because in the event of an unfounded decision on international 
protection a restriction or denial of access to confidential information that impairs 
procedural rights and the right to an effective remedy may, ultimately, give rise to 
infringement of the right to asylum (Article 18 of the Charter) and of other 
fundamental rights that, in part, enjoy a prohibition on restriction (Articles 2, 4, 6 
and 19 of the Charter). 
Third and fourth questions referred 
The Court of Justice has held in Case C-369/17 that the competent asylum 
authority must take decisions on grounds for exclusion on an individual basis, 
examining and weighing the substance of each available fact. The judgments in 
Cases C-715/17 and C-380/18 likewise contain guidance on that evaluation. 
Under the Hungarian legislation, the national security authority must issue a non-
reasoned binding report on whether or not there is a ‘danger to national security’, 
from which the competent asylum authority may not depart, which means that, on 
that point, the asylum authority’s decision contains only a reference to the report 
of the national security authority and a reference to the legislation. The effect of 
the Hungarian legislation is therefore that the substantive decision on international 
protection is adopted in a decision by the competent asylum authority – which 
likewise does not know the reasons on which the national security authority’s 
report is based – in which, ultimately, it cannot thoroughly examine whether the 
ground for exclusion exists and applies to the individual case, take into account 
individual circumstances or evaluate whether application of the ground is 
necessary and proportionate. It emerges from the directives and the relevant 
judgments of the Court of Justice that, even where a specialised (national security) 
authority is involved, the responsible authority cannot adopt a decision on the 
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substance of an asylum application (that is to say, on whether to grant or withdraw 
refugee or foreign national beneficiary of subsidiary protection status) where that 
decision is exclusively and automatically based on the decision of a different 
authority – which is competent to give an opinion on a specialised constituent 
issue – and does not itself carry out the assessment required under Article 4 of the 
Qualification Directive. 
Accordingly, the Hungarian legislation has the effect that it is not the competent 
asylum authority that examines the substance of the application for international 
protection and ultimately takes the corresponding decision, but rather two national 
security authorities that neither satisfy the requirements nor have power under the 
Asylum Procedure Directive to carry out that examination and take that decision 
and that do not conduct their procedures in accordance with the substantive and 
procedural provisions of the relevant directives. That misappropriation of power, 
which seemingly conflicts with EU law, may undermine the procedural safeguards 
laid down in EU law. 
As regards subsidiary protection, although Article 17(1)(b) of the Qualification 
Directive is a mandatory provision, in order for it to be applied there must 
likewise be an individual assessment, a thorough examination and a weighing of 
the facts by the competent asylum authority. First, that article itself signals that 
there must be ‘serious reasons’ underpinning any finding that the danger to 
security required for that ground for exclusion is present. Second, Article 19(4) 
expressly establishes that the Member State is to demonstrate on an individual 
basis that the person concerned is not or has ceased to be eligible for subsidiary 
protection in accordance with Article 19(3) (that is to say, where it is claimed that 
there is a danger to security). 
Fifth question referred 
The competent asylum authority, relying on the ground for exclusion under 
Article 15(ab) of the Law on the right to asylum, held that the applicant cannot be 
granted the status of a foreign national beneficiary of subsidiary protection. It did 
so on the basis of the applicant’s conviction of 6 June 2002, which became final 
18 years ago, for a crime which, in its view, was ‘serious’. 
The applicant completed the custodial sentence imposed in that judgment in 2004, 
16 years ago, and the crime in question was already known at the time the 
applicant was granted refugee status, which was granted notwithstanding, and 
neither the authority nor the court that ruled on the grant of refugee status applied 
the ground of exclusion relating to that crime. 
Final part 
[…] [procedural considerations of domestic law] 
Budapest, 27 January 2021. 
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[…] [signatures]