On the 14th of September 2023, the European Court of Human Rights (ECtHR) ruled in its judgments M.N. and A.A. v. Hungary, no. 48139/16 and 7077/15. The cases concerned an Afghan and an Algerian national who applied for asylum in Hungary and were detained due the risk of absconding based on the need to clarify their identity, the lack of financial resources, and the lack of connections in Hungary. In M.N., the Court also observed that the applicant initially planned to go to Finland or Germany and that expulsion orders were issued during the proceedings, which were quashed by domestic courts ordering the asylum authority to conduct new procedures. M.N.’s detention was terminated after approximately five months as the authorities found that the reasons had ceased. In  A.A., the applicant was in pre-trial detention due to the use of a forged passport, but the authorities were informed on the applicant’s identification data on the day of his asylum application. Furthermore, the authorities noted that A.A.’s application was motivated by financial interests and that he had arrived unlawfully in Hungary.

The ECtHR did not agree with Hungary’s arguments that the applicants’ detention was meant to prevent an unauthorised entry or was ordered with the view of deportation as the applicants received a residence permit issued on humanitarian grounds pending the proceedings, and the expulsion orders in M.N. were not enforceable. The Court then reiterated that detention could not be ordered for the sole reason that the applicants applied for asylum. Furthermore, the ECtHR held that there was no indication that the applicants failed to cooperate with the authorities and that the detention grounds, such as the need to clarify the applicants’ identity and prevent absconding, were not sufficiently individualised. Regarding A.A., the Court also noted that the applicant provided a birth certificate to the authorities. The Court furthermore stated that A.A.’s financial motivation was not substantiated, nor shown in what way it was relevant. Likewise, the fact that he had arrived in Hungary unlawfully, could not on its own justify the asylum detention. In view of the above, the ECtHR ruled that Hungary violated Article 5 § 1 of the European Convention on Human Rights (ECHR).