Legal summary
June 2025
H.Q. and Others v. Hungary - 46084/21, 40185/22 and 53952/22
Judgment 24.6.2025 [Section II]
Article 3
Expulsion
Domestic authorities’ failure to examine applicants’ access to adequate asylum procedure in Serbia: violation
Article 13
Effective remedy
Lack of an effective remedy against removal: violation
Article 46
Article 46-2
Execution of judgment
General measures
Respondent State required to take immediate and appropriate measures preventing further collective expulsions and ensuring genuine and effective access to international protection procedure
Article 4 of Protocol No. 4
Prohibition of collective expulsion of aliens
Respondent State required to take immediate and appropriate measures preventing further collective expulsions and ensuring genuine and effective access to international protection procedure: violation
Facts – The applicants, two Afghans and a Syrian national, entered Hungary on the basis of a residence permit for study purposes (the first applicant) or clandestinely over the Serbian-Hungarian border (the second and third applicants). The second applicant claimed to be a minor and was unaccompanied.
Following the expiry of his residence permit, the first applicant lodged an asylum application related to his fear of persecution by the Taliban, but the National Directorate‑General for Aliens Policing (NDGAP) rejected it without examining its merits and instructed that he be removed. The second and third applicants were admitted to hospitals after having been involved in serious traffic accidents. According to the second applicant, he expressed his wish to seek asylum both to a doctor in the hospital and during his removal. The third applicant contacted the Hungarian Helsinki Committee by email and asked for legal assistance in order to seek asylum, fearing persecution and ill‑treatment related to his forced recruitment by the Kurdish military. While in hospital he also expressed his wish to seek asylum on several occasions in contacts with the police and medical staff.
In September 2021 and in April and July 2022 respectively all three applicants were removed to the external side of the Hungarian border fence with Serbia, either individually (the first applicant) or together with other persons (the second and third applicants) on the basis of section 5(1b) of the State Border Act, authorising the police to remove foreigners entering or staying illegally in Hungary.
The first applicant stayed in the Belgrade Refugee Centre until May 2022 and subsequently entered Austria and applied for asylum there. The second applicant, having been taken to the reception centre in Subotica, lodged a “declaration of intent” in November 2022 with the Hungarian embassy in Belgrade in order to be allowed entry for the purposes of claiming asylum. In December 2023 the NDGAP refused to issue him with a travel document as he had stayed in a safe country (Serbia) for a long period of time before lodging his “declaration”. The Budapest High Court quashed that decision but refused to remit the case to the NDGAP on the basis that the CJEU had found that the “embassy procedure” was contrary to EU law.
The first and third applicants initiated different proceedings against their removal:
– The complaint procedure under the Police Act were ultimately unsuccessful because the removal under section 5(1b) of the State Border Act did not fall within the scope of the Police Act.
– In the administrative proceedings against the removal initiated by the first applicant, the Kúria noted that a decision to remove a person staying illegally on the territory of Hungary fell within the discretionary power of the police and therefore the NDGAP’s decision had been null and void. However, the fist applicant’s re-entry to Hungary was no longer considered necessary as he had not indicated that there had been any adverse consequences of his removal. Similar proceedings initiated by the third applicant are still pending.
In administrative proceedings concerning the first applicant’s asylum application the Budapest High Court granted his request to suspend his removal, quashed the NDGAP’s decision and remitted the case for re-examination. Subsequently, the NDGAP terminated the asylum proceedings, holding that the first applicant had been outside the EU for more than three months and had subsequently requested asylum in Austria. Consequently, Hungary’s responsibility for the asylum procedure had ceased to exist.
The applicants complained that they had been subject to a collective expulsion and had had no remedy at their disposal in this respect, in breach of Article 4 of Protocol No. 4, and Article 13. The first and third applicants also complained that they had been expelled to Serbia without any assessment of the consequences of their removal in breach of Article 3.
Law – Article 4 of Protocol No. 4:
The application of the system of automatic removals had already led the Court to find a violation of Article 4 of Protocol No. 4 (Shahzad v. Hungary). The CJEU had also found that section 5(1b) of the State Border Act contravened the Directive on common standards and procedures in Member States for returning illegally staying third-country nationals (2020 Commission v. Hungary).
Unlike the applicants in previous cases against Hungary the present ones had not been removed upon arrival but had been in the country for various reasons prior to their removal. All of them had either requested asylum or expressed their wish to make such an application. However, following the closure of the transit zones and the introduction of the 2020 Transitional Act, they had been required to make a “declaration of intent” in person at the Hungarian embassy in Belgrade or Kyiv in order to seek travel documents for Hungary for the purpose of making an asylum application there (the “embassy procedure”).
The CJEU had established in 2023 Commission v. Hungary that the 2020 Transitional Act was not in compliance with the Asylum Procedures Directive and violated the right of people seeking international protection to remain in the country while awaiting asylum proceedings.
(i) The first applicant – The first applicant appeared to have been removed individually, although it remained unclear whether this had been incidental or intentional. However, even when a State expelled one individual separately, the prohibition of collective expulsion must still apply if he or she belonged to a broader group of foreigners subjected to expulsion. By virtue of domestic law, the measure in question had applied automatically to a group of foreigners who had entered or stayed in Hungary illegally. Therefore, the first applicant’s situation fell within the protection of Article 4 of Protocol No. 4.
Referring to the 2020 Transitional Act, the Hungarian authorities had refused to examine the merits of the first applicant’s asylum request and proceeded to remove him to Serbia. There was nothing to suggest that the refusal to entertain his arguments could be attributed to his own conduct. First, even assuming that the 2020 Transitional Act had applied to his situation, this argument remained irrelevant when assessing the domestic authorities’ compliance with Article 4 of Protocol No. 4. At the very least, this was because he had entered Hungary in an authorised manner. Therefore, the nature of the procedure provided for in the 2020 Transitional Act, which had required him to leave the territory, could not offer a genuine and effective possibility for him to submit reasons against his removal. Second, the fact that he had previously held a valid residence permit and had subsequently stayed in Hungary illegally could not absolve the Hungarian authorities from their obligation under Article 4 of Protocol No. 4.
In conclusion, the first applicant’s removal had been “collective” in nature and therefore had constituted a violation of Article 4 of Protocol No. 4
Conclusion: violation (unanimously).
(ii) The second and third applicants – These applicants had been removed without any individual decision after entering Hungary in an unauthorised manner. Despite their fragile state of health, which should have prompted the authorities to assess the related risks that removal would pose for them and notwithstanding that the second applicant had claimed to be a minor and was unaccompanied, they had been removed from hospitals in Hungary to a strip of land in Serbia. They had not been given an effective opportunity to submit arguments against their removal before being apprehended and taken through the border fence. There was nothing to suggest that they had failed to cooperate with the authorities.
The “embassy procedure” was not clearly regulated and lacked adequate safeguards, leading to uncertainty, a lack of transparency and, most importantly, the risk of arbitrary application, as also underlined by international reports.
Domestic law did not appear to require that reasons be given for refusing entry in order to apply for asylum, and the factors intended to determine the outcome of the process remained unclear, as demonstrated in the second applicant’s case. Moreover, it seemed that no support was provided to applicants for international protection, including in the case of minors such as the second applicant.
Access to means of legal entry at border crossings had been impossible in the present case because applications for international protection could no longer be made through the border procedure. While generally implying that the individual concerned was outside the State’s jurisdiction, the procedures at its embassies might not provide immediate protection for those claiming to be in need of it, as was the case with the applicants. The “embassy procedure” had not provided for genuine and effective access to means of legal entry. Given that this had been the only means of entry for those seeking international protection in Hungary, the lack of an individual expulsion decision could not be attributable to the second and third applicants’ own conduct. This finding rendered it unnecessary to examine whether their expulsion would qualify as collective even if such access had been provided.
Conclusion: violation (unanimously).
Article 3 (the first and third applicants):
Both applicants had applied, or expressed their wish to apply, for international protection before their removal. However, the decision to remove them had been unrelated to the merits of their asylum claims and alleged risk of ill-treatment. Nothing had been put forward to show that their removal had been underpinned by any assessment of access to adequate asylum procedure in Serbia. Their removal had been based on the premise that they would be able to apply for re-entry at the Hungarian embassy in Belgrade, however there was nothing to suggest that the authorities had satisfied themselves of the effectiveness of that procedure. The applicants had been induced to enter and stay in Serbia illegally, and had faced the predicament associated with such a stay.
The respondent State had therefore failed to discharge its procedural obligation under Article 3 to examine whether the applicants would have access to an adequate asylum procedure in Serbia.
Conclusion: violation (unanimously).
Article 13 in conjunction with Article 4 of Protocol No. 4:
The legislation had provided no specific remedy by which to challenge removal under section 5(1b) of the State Border Act.
With respect to lodging a legal action with an administrative court, there had been a positive development in domestic jurisprudence as regards “removal” being interpreted as an administrative act which could be challenged in such proceedings. However, aside from the fact that the Kúria’s first decision to that effect had been issued in 2023, after the removal of the applicants, there was nothing in its decisions to show that in an action before an administrative court, an affected migrant could effectively complain of a failure to examine his or her personal situation prior to his or her removal. In the absence of any established case-law to the contrary, it seemed that such an examination was precluded by section 5(1b) of the State Border Act itself. Removal under this provision was carried out immediately once law-enforcement officers considered that the person in question fell within the ambit of this provision. Therefore, even if remedies had existed, they could not prevent removal, including in situations where the individuals concerned had expressed that they feared treatment contrary to Articles 2 or 3.
The first and third applicants had expressed such fears and requested international protection. Although the second applicant had allegedly expressed a wish to request asylum, there had been no official record of that wish and he had not been provided with any interpretation or legal assistance prior to his removal despite his having stated that he was a minor and unaccompanied.
The authorities had been required to provide all three applicants with a remedy with suspensive effect. In the first applicant’s case this same finding had been reached by the Budapest High Court in the context of proceedings regarding his asylum request, but it had not resulted in any change in his situation.
In view of the above finding that the applicants had had no effective access to a procedure for examining their personal situation, they had not had at their disposal any remedy which might satisfy the criteria under Article 13.
Conclusion: violation (unanimously).
Article 46: Tens of thousands of individuals had been removed from Hungary in the previous few years. Furthermore, although the relevant provisions of the 2020 Transitional Act were no longer in force, the 2024 Decree, together with the State Border Act, upheld the same system of collective expulsions and denial of access to the asylum procedure which was incompatible with the Convention guarantees.
The Court stressed the urgent need for the Hungarian authorities to take immediate and appropriate measures to prevent any further instances of collective expulsions and ensure genuine and effective access to the international protection procedure for those seeking such protection.
Article 41: EUR 10,000 to the first applicant, EUR 8,000 to the second applicant and EUR 5,000 to the third applicant in respect of non-pecuniary damage.
(See Shahzad v. Hungary, 12625/17, 8 July 2021, Legal Summary; S.S. and Others v. Hungary, 56417/19 and 44245/20, 12 October 2023; European Commission v. Hungary, judgement of 17 December 2020, C-808/18, EU:C:2020:1029; European Commission v. Hungary, judgement of 22 June 2023, C‑823/21, EU:C:2023:504)
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This summary by the Registry does not bind the Court.
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