Working Group on Arbitrary Detention: Holding asylum applicants in Hungarian transit zones amounts to arbitrary detention

On 5 June 2020, the Human Rights Council published the opinion adopted by the Working Group on Arbitrary Detention (WGAD) (No. 22/2020) at its 87^th session on the alleged arbitrary detention of Saman Ahmed Hamad in a Hungarian transit zone.

Mr Hamad, an Iraqi national, entered Hungary in August 2017 through a transit zone. His application for asylum was rejected and he brought a number of appeals. During this time, he objected to his continued placement in the transit zone until a final decision on his application had been made. He complained, inter alia, that the the living conditions were deplorable and there was no legal basis for holding him in the transit zone. He therefore argued that his placement in the transit zone was not a simple restriction of freedom of movement, but amounted to a deprivation of liberty as a direct result of exercising his right to seek asylum.

The WGAD first observed that the alleged deprivation of liberty must be examined in light of the individual circumstances of the case while taking into account a wide range of factors including, inter alia, the free consent to remain in the transit zone, any physical limits which may have existed, and the specificities of the imposed daily regime. The WGAD noted that the CJEU provided the most up to date examination of these facts. Indeed, in its judgment, the CJEU noted, inter alia, the use of high barbed wire fences; the monitoring of movements; and that applicants would lose the possibility to obtain international protection if they chose to leave the transit zone.

Concurring with these findings, the WGAD also referred to its recent observations from its 2018 visit to Hungary, in which it indicated the prevalence of guards and surveillance of those living in the transit zone. In light of the restrictive regime, the use of physical restrictions, and high degree of isolation, the WGAD concluded that Mr Hamad was deprived of his liberty and detained for the sole reason of submitting his asylum application. Moreover, the Hungarian authorities had failed to justify why such a deprivation was reasonable, necessary, and proportionate. As such, the placement of individuals in the transit zone amounted to arbitrary detention in contravention of Articles 3, 8, 9 and 14 UDHR and Article 9 ICCPR.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.