EU border transit zones and deprivation of liberty: Ilias v Hungary

19 March 2020 by

Amid recent news reports of Turkey’s re-opening of migration routes to Europe, clashes at the Turkey-Greece border, and EU countries closing their borders due to Covid-19, this post looks back to a decision from the ECtHR Grand Chamber last November and the applicability of Article 5 ECHR in temporary border transit zones. 

Ilias v Hungary (Application no. 47287/15) was the first case in which the ECtHR considered a land border transit zone between two member states of the Council of Europe, where the host state, Hungary, was also a member of the EU and had applied the safe third country rule under the EU asylum regime. The Grand Chamber held that the applicants’ detention did not breach Article 5 (the right to liberty and security of the person).

Image credit: The Guardian

The applicants, Mr Ilias and Mr Ahmed, were both Bangladeshi nationals who had left Bangladesh at different times and in differing circumstances. They met in Greece and then traveled together to the Former Yugoslav Republic of Macedonia, then to Serbia, and then to Hungary. On 15 September 2015 they arrived in Hungary and entered the border transit zone at Röszke. They submitted asylum requests on the same day. Within several hours their requests were rejected as being inadmissible and they were ordered to be expelled from Hungary back to Serbia as a safe third country. The applicants then spent 23 days in the transit zone whilst they appealed this decision. On 8 October 2015, following a final decision of the Hungarian courts which rejected their applications for asylum and ordered the applicants’ expulsion, Mr Ilias and Mr Ahmed were escorted out of the transit zone and crossed the border back into Serbia.

Police officers guard a refugee camp in the village of Röszke at the Serbian-Hungarian border. Photograph: Csaba Segesvari/AFP/Getty Images. Photo credit: The Guardian

The ECtHR decision in 2017: Mr Ilias and Mr Ahmed (the applicants)

In 2017 the Fourth Section of the ECtHR issued a ruling in the applicants’ favour.  The court found that the applicants had been de facto deprived of their liberty, in breach of Article 5, because:

  1. they were confined in a guarded compound which could not be accessed from the outside; 
  2. they had no opportunity to enter Hungarian territory beyond the transit zone;
  3. they had not validly consented to their deprivation of liberty, because although they could have left the transit zone and returned to Serbia, in doing so they would have forfeited their asylum applications in Hungary and faced the risk of refoulement in Serbia; and
  4. there was no formal decision by the Hungarian authorities to order the applicants’ detention: they were detained as a practical arrangement, solely by virtue of a general provision of the national law which had been “elastically interpreted” and which did not circumscribe the prospect of their detention with sufficient precision or foreseeability.

The Fourth Section also found that Hungary had breached its obligations to the applicants under Article 3 ECHR (the prohibition on torture, inhuman and degrading treatment). Although the living conditions in the transit zone did not breach Article 3 ECHR, the Hungarian authorities had nevertheless failed to discharge their duty to protect the applicants against exposure to a real risk of inhuman or degrading treatment. Serbia was at the time listed under a Hungarian government decree as a presumed safe third country, but the authorities obtained no guarantee from Serbia that the applicants would be readmitted. The shortcomings of Serbia’s asylum procedure were well documented, including the risk of asylum seekers being expelled from Serbia to the Former Yugoslav Republic of Macedonia, and of subsequent transfer to Greece (where asylum reception conditions had been found to breach Article 3), without an examination of the merits of their asylum claim.

The Grand Chamber’s judgment

The case was referred to the Grand Chamber of the ECtHR, and a final decision was issued in November 2019. A number of third-party interveners made submissions to the court, including the UNHCR and the governments of Bulgaria, Poland and the Russian Federation. 

In relation to the applicants’ Article 3 claims, the Grand Chamber agreed with the lower court’s findings. It emphasised that if a state does not wish to carry out a proper examination of the merits of an asylum claim, it cannot simply deport an applicant without examining whether there are guarantees in place to protect his/her Article 3 rights.

In relation to Article 5, however, the court disagreed with the lower court. It did not think that there was a de facto deprivation of liberty. This meant that Article 5 was not applicable. The court applied the following four factors:

1. An applicant’s individual situation and choices

It was relevant that Mr Ilias and Mr Ahmed had crossed the border into Hungary of their own initiative and not out of a direct and immediate fear for their life or health.  Although they may have feared how they would be treated within the Serbian asylum system, and that was relevant to their Article 3 rights, this fear was not sufficient to engage Article 5.

2. The legal regime in the host country and its purpose

Hungary was entitled, subject to its international obligations, to control its borders and to verify and examine an individual’s claim to asylum before deciding whether to admit him/her into the country. The court said that the Hungarian state had not by its actions deprived the applicants of their liberty; it had simply reacted to the applicants’ wish to enter its territory.

3. Duration of the restriction on liberty

The legislative provisions relied on by Hungary prescribed a maximum length of stay in the transit zone of 23 days. The court held that this was not an unnecessary length of time to examine an asylum request, and that the applicants’ stay did not exceed that time.

4. The nature and degree of restrictions on liberty

Although restrictions on the applicants’ liberty were very significant (the transit zone was surrounded by a barbed wire fence and was fully guarded), they were not unnecessary, nor unconnected to the examination of their asylum claims. As a matter of practicality, the applicants were able to leave the transit zone voluntarily and cross the border back to Serbia – a country which is bound by the Refugee Convention and by an agreement with the EU for the readmission of asylum seekers. The court distinguished this circumstance from cases involving airport transit zones (see Amuur v France (25 June 1996, Application no. 19776/92) and so-called “closed” island reception centres (see Khlaifia and Others -v- Italy, 1 September 2015 (Application no. 16483/12), where in order to leave the transit zone voluntarily, applicants would have had to purchase flights or transport, gain authorisation to board an aircraft or vessel, and obtain diplomatic assurance of admission to the destination. The court again considered the applicants’ fears over the protection of their Article 3 rights if they returned to Serbia, but confirmed, again, that this factor was insufficient to constitute a de facto deprivation of liberty so as to engage Article 5. Finally, although by leaving the transit zone voluntarily, the applicants would have forfeited their claims to asylum in Hungary, this was a legal issue only and did not affect their actual liberty to move freely out of the transit zone and into Serbian territory.

 A Hungarian police officer stands guard at the border with Serbia. Photograph: Darko Vojinovic/AP Photo credit: The Guardian

Commentary and recent developments

Mr Ilias and Mr Ahmed still won their case – just not on the Article 5 ground. The Grand Chamber’s decision presents a further nuanced example of the scope of Article 5 in a migration context, as well as a reminder of the obligations on states when returning asylum seekers to a safe third country.

However, since the court’s first decision in 2017, Hungary’s policies toward migration have become increasingly harsh. In July 2018 it became a crime for civilians to assist any person in seeking or applying for asylum.   That law is now the subject of an ECJ infringement case brought by the EU Commission. The conditions in Hungary’s border transit zones have reportedly become worse and worse, with reports in 2019 and 2020 of asylum seekers being deliberately deprived of food.

Europe’s ability to manage migration fairly needs a political resolution as much as any judicial one. Faced with an increase in migrant numbers and a rise in the popularity of anti-immigration policies, countries at the EU’s outer borders may struggle to comply with their human rights obligations without stronger support from other member states.

Joanna Curtis is a solicitor at Brown Rudnick and is one of the UK Human Rights Blog’s contributors focusing on Strasbourg cases.

Further reading

  • Human Rights Watch have a number of articles and resources on the migrant crisis in Europe
  • This article from American Prospect last year provides a useful commentary on Europe’s responses to migration since 2015
  • Shaheen Rahman’s recent post on this blog which discusses Article 5 ECHR and false imprisonment at common law in a recent Supreme Court judgment

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: