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

19 March 2020 by Joanna Curtis

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).

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.

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.

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