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Member State Authorities Cannot Withdraw Residence Permits Without Giving Reasons Even If the Reason is “TOP SECRET”

Member State Authorities Cannot Withdraw Residence Permits Without Giving Reasons Even If the Reason is “TOP SECRET”

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The Court of Justice of the European Union has decided in two cases concerning Hungary in its judgments in joined cases C-420/22 and C-528/22, published on 25 April 2024.

The underlying facts of the decision are as follows: two third-country nationals, one Turkish and one Nigerian, have been legally resident in Hungary for several years. One of them is the spouse of a woman of Hungarian nationality, with whom she is raising a child whose citizenship is Hungarian. The other person lives with his Hungarian partner and their two children, who are also Hungarian citizens. In 2020 and 2021, the Hungarian Constitution Protection Office issued two unsubstantiated statements stating that the presence of these third-country nationals in Hungary poses a threat to national security, however, the authority encrypted the data on which it relied on when adopting these resolutions. Consequently, the National Directorate-General for Aliens Policing was obliged to withdraw the permanent residence card of the first person and to order him to leave Hungary. It was also obliged to reject the application for a national permanent residence permit submitted by the second national referred to above. Neither the authority nor the persons concerned could have gained access to the confidential data on which the initial decisions were based.

The Szeged Regional Court, to which both persons had submitted an action against the decision of the National Directorate-General for Aliens Policing, referred questions to the Court of Justice of the European Union (CJEU) on the compatibility of the Hungarian legislation with EU law.

The CJEU ruled that the Hungarian law is contrary to EU law if it requires national authorities to withdraw the residence permit of a family member of an EU citizen on grounds of national security, based on an unjustified opinion of a competent authority, or to refuse to issue a residence permit to the latter, without the latter having been able to carry out a thorough examination of the relevant individual circumstances and the proportionality of their decision.

Lastly, EU law precludes national legislation that prevents a family member of an EU citizen from whom a residence permit has been withdrawn or refused based on confidential data from being informed of the substance of the reasons on which those decisions are based and from using such data in administrative or judicial proceedings.

By Lilla Majoros, Attorney at law, KCG Partners Law Firm

Hungary Knowledge Partner

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