11
court, reviewing the negative decision on family reunification has already ruled by referencing the TB judgment
that the examination of the dependency limiting it solely to the health status of the applicant is unlawful.20 The
jurisprudence of the courts is not unified though, as in another case, without mentioning the TB judgment, the court
explicitly rejected the need for complex examination.21
( 6 ) Insufficient implementation
Sometimes the legislation is amended following the judgment, but the implementation is still deemed insufficient. An
example is the implementation by Hungary of the CJEU ruling in the Ahmed case,22 which concerns the exclusion
from subsidiary protection for those who commit a serious crime. The Court ruled that the asylum authority/court
deciding on the asylum application had to assess the seriousness of the crime by carrying out a full investigation
into all circumstances of the individual case concerned. The Hungarian Parliament amended the asylum law, with an
explicit reference to the CJEU ruling in its official reasoning.23 Nevertheless, the current legislation is still not in line
with the requirements the CJEU laid down in the Ahmed judgment, as it sets out specific cases according to which an
asylum seeker must automatically be excluded from international protection. Therefore, the obligation of individual
assessment is still infringed upon by the applicable law.24
(7 ) Implementation in practice but not in the law
It is interesting to observe that certain judgments were implemented by changing the practice, but not the legal
provisions which were found to be incompatible with EU standards. These provisions have not been repealed, but
are merely temporarily not applied. Are the Governments waiting for the moment when such provisions could be
used again? A revealing example of such practice can be observed in Hungary, where provisions relating to transit
zone detention and “safe transit country” as an inadmissible ground are still in the law, but have not been applied
in practice (see p. 21 and p. 33).
( 8 ) Unreasonably delayed implementation
Finally, it is necessary to note the example of unreasonably delayed implementation, in cases where despite the
ultimately positive result, it took the authorities too long to comply with the judgment. Such an example can be found
in Slovenia, where the Supreme Court ruled in November 2017 that an applicant for international protection had to
be provided with the assistance of an interpreter in order to file a lawsuit in an administrative dispute, if so requested
and if communication with the legal representative was otherwise hindered.25 The Migration Directorate continued to
reject the requests of refugee counsellors for interpreters26 until the amended International Protection Act-1A entered
into force four years later, including the provision under which applicants and refugee counsellors are entitled to the
assistance of an interpreter during the procedure before the Administrative or Supreme Court.27
20
21
22
23
24
25
26
27
Metropolitan Regional Court, judgment no. 38.K.701.960/2020/6.
Judgment no. 16.K.706.405/2020/8, point [26] of the Metropolitan Regional Court, 5 November 2020. The judgment was upheld by the
Supreme Court, Kfv.II.37.074/2021/2, 16 February 2021.
C 369/17, Ahmed, 13 September 2018.
See the official reasoning to Act no. CXXXIII of 2018 on the amendment of certain laws in relation to migration:
https://www.parlament.hu/irom41/03366/03366.pdf, paras. 62-65.
Read about how the current legislation violates EU law: https://helsinki.hu/en/wp-content/uploads/sites/2/2021/04/info-note-exclusion.pdf.
I Up 226/2017, 22.11.2017.
See for example: I U 1934/2020-6, 7.2.2021.
Art. 11(1) IPA-1A.