Judgment in Case C-823/21 Commission v Hungary: Declaration of intent prior to an asylum application

Thursday 22 June 2023

Judgment in Case C-823/21 Commission v Hungary (Declaration of intent prior to an asylum application)

(Area of Freedom, Security and Justice)

The Commission asks the Court to declare that, by making access to the international protection procedure and the making of an application for international protection in respect of third-country nationals present in the Hungarian territory, including at its borders, subject to the requirement that they must first undergo a procedure at a Hungarian diplomatic representation in a third country, Hungary has failed to fulfil its obligations under EU law.

Under the rules on the right of asylum introduced in Hungary by Act LVIII of 2020, which was adopted on a provisional basis but has subsequently been extended on several occasions, persons wishing to seek asylum in Hungary must, with few exceptions, first submit a letter of intent to the Hungarian Embassy in Belgrade or Kyiv, and can only access the international protection procedure after a positive response to that letter of intent and the issuance of an entry permit.

The Commission considers that that new asylum procedure is incompatible with Article 6 of Directive 2013/32 on common procedures for granting and withdrawing international protection, interpreted in the light of Article 18 of the Charter.

The right of ‘access to the procedure’, which is guaranteed by Article 6 of the directive, implies first and foremost the possibility for third-country nationals present in the territory of a Member State, including at its borders, to make an application for international protection.

However, it follows from the applicable provisions of Act LVIII of 2020 that, if third-country nationals present in Hungarian territory, including at its borders, express their willingness to avail themselves of international protection, the Hungarian authorities will not consider that declaration as the making of an application for international protection within the meaning of Directive 2013/32.

The application will not be registered and the person will not be granted the rights to which the applicant is entitled. Instead, in order to submit his or her application, the person must leave the Hungarian territory, return to a third country and first undergo a procedure at the Hungarian embassy in that country.

Background Documents C-823/21