mutual trust

role of national higher courts

Kúria

Curia (the Supreme Court of Hungary)

Kfv.II.37.292/2023/6

6 September 2023

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Article 5 of Directive 2008/115/EC; decision banning entry; threat to national security; failure to take into account the individual situation of a third-country national

If the immigration authority imposes an expulsion measure on a third-country national due to illegal stay, it must consider their personal and family circumstances during the decision-making process, even in the absence of an explicit Hungarian legal provision, in accordance with Article 5 of the Return Directive.

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Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals

In 2020, the immigration authority revoked the residence card of an Algerian citizen who had been residing in Hungary for over ten years. His subsequent application for a residence permit was rejected by the National Directorate-General for Aliens Policing, and he was expelled from the EU to Algeria because his presence was deemed a threat to national security and he therefore did not meet the residency conditions. Given these considerations, the court did not take into account his personal circumstances, namely that he has been living in Hungary for fifteen years, has established a family here, and his spouse is seriously ill and requires care. After the first-instance court dismissed the applicant's lawsuit, he filed an appeal with the Curia.

he Curia recalled its practice that the immigration authority does not have the discretion to consider the opinion of the competent authorities assessing national security risks when deciding on the extension of a residence permit application. In cases where national security interests are threatened, the personal circumstances of the applicant are not relevant.
However, the court of first instance also ruled on the applicant's expulsion, which entails a ban on entry. Therefore, it is necessary to consider the Return Directive 2008/115/EC, which, according to Article 5, requires Member States to take into account family life when implementing the directive.
In its judgment C-528/21 (CJC Database) based on a preliminary ruling request, the CJEU held that during the judicial review of an entry ban decision, the court must disapplying any national legislation that is incompatible with Article 5 of the directive and must apply Article 5 directly to the case, if necessary.
The Curia declared that based on the above, in light of CJEU practice, the authority should have evaluated the applicant's family life and related personal and family circumstances in connection with the expulsion. In the absence of relevant national legislation, the expulsion decision should have considered the applicant's family life based on Article 5 of the directive. Consequently, the Curia set aside the first-instance judgment and remanded the case for a new decision.

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preliminary reference, disapplication of national law in favour of EU law

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The Curia justified the disapplication of Hungarian legislation and the direct application of Article 5 of the Return Directive 2008/115/EC based on the interpretation of the CJEU's judgment in case C-528/21 (CJC Database).

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The Curia's judgment serves as a quasi-precedent in the so-called Hungarian 'limited precedent system,' which obliges lower court judges to follow the published decisions of the Supreme Court. Judges must provide written justification if their interpretation of the law deviates from a previous decision delivered by the Supreme Court.

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https://jogkodex.hu/doc/4277614 (in Hungarian)

Ágnes Kovács, Eötvös Loránd University (ELTE)

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