The situation of applicants for international protection and third-country nationals subject to a return decision who have been placed in the Röszke transit zone, in the light of the EU law

Abstract

By judgment of 14 May 2020 in joined cases FMS & others, the Court of Justice ruled that the placing of applicants for international protection or third-country nationals subject to a return decision in the Röszke transit zone at the Serbian–Hungarian border must be classified as “detention”. According to the Court, if, following judicial review of the lawfulness of such detention, it is established that the persons concerned have been detained for no valid reason, the court hearing the case must release them with immediate effect. In its judgment, the Court did not examine the question how its ruling is related to the judgment of 21 November 2019 of the European  Court of Human Rights (ECHR) in the Ilias and Ahmed v. Hungary Case. In the latter judgment, the ECHR concluded that the fact that two third-country nationals were accommodated in the Röszke transit zone does constitute a deprivation of the right to liberty and security as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court analysed the legal qualification and the lawfulness of the placing of applicants for international protection or third-country nationals subject to a return decision in the transit zone at issue strictly in the sole context of the  “Procedures”, the “Reception” and the “Return” Directives.