On the 22nd of June 2023, the Court of Justice of the European Union (CJEU) ruled in its judgment C‑823/21. The case concerned an action for failure to fulfil obligations brought by European Commission against Hungary and its legislation violating, in Commission’s view, the Qualification Directive (rQD) and the EU Charter of Fundamental Rights (CFEU). This legislation requires certain third-country nationals (TCN) and stateless persons present in the territory of Hungary or presenting themselves at its borders and wishing to apply international protection to undergo a prior procedure. This procedure requires them to travel to the Hungarian embassy in Serbia or Ukraine to submit an in-person declaration of intent to apply for international protection after which Hungary may decide to grant travel documents to enter its territory to apply for international protection.

The CJEU ruled that the requirements to lodge a declaration of intent and obtain travel documents are not laid down in Article 6 rQD and so runs counter to the Directive’s objective to ensure effective, easy and rapid access to the procedure for granting international protection. Moreover, the CJEU stated that the legislation deprives TCNs and stateless persons of the effective enjoyment of their right to seek asylum as guaranteed by the EU Charter.

The CJEU then ruled that legislation in question is not justified by the fight against the spread of the COVID-19. This legislation constitutes a manifestly disproportionate interference with the right to make an asylum application and to remain in the territory during its examination. It cannot achieve its objective as it obliges applicants to move and thereby potentially exposes them to the disease which they could then spread in Hungary. Moreover, the authorities did not demonstrate that no other proportionate measure could be adopted. Lastly, the CJEU ruled that Hungary invoked, in a general manner, the risk of threats to public policy and internal security in order to justify the compatibility of its legislation with EU law, without demonstrating that it was necessary to derogate specifically from the requirements arising from Article 6 rQD. In view of all above, the CJEU ruled that Hungary failed to fulfil its obligations under Article 6 of the rQD.