on access to classified information on which the decisions of public authorities are based in connection with the entry or residence of third-country nationals in Hungary
On the basis of a motion for a preliminary ruling submitted by Panel No. K.IV of the Curia, the Curia’s Uniformity Complaint Panel has issued the following decision:
If, in the proceedings of a public authority (conducted under Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals or under Act XC of 2023 on the General Rules for the Admission and Right of Residence of Third-Country Nationals), a third-country national who is affected by the proceedings claims that he or she is entitled to a derivative right of residence (under Article 20 of the Treaty on the Functioning of the European Union) on the basis of a dependency relationship with a family member who is an EU citizen, the authority shall be obliged to examine this even if the proceedings are related to a national permanent residence permit.
In an administrative action filed to review the authority’s decision, the court shall, if the procedural requirements are met, examine whether the authority attached disproportionate importance to this circumstance.
If, in the proceedings of a public authority (conducted under Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals or under Act XC of 2023 on the General Rules for the Admission and Right of Residence of Third-Country Nationals), the authority – which established the existence of a risk to public order, or within this category, a national security risk or a risk to public security – does not consent to the third-country national or his/her legal representative’s access to classified data on which the decision is based or to his/her comments on them, the court must conclude in the administration action filed to review the authority’s decision that the party is unable to defend his/her rights.
In such a case, as long as the law does not provide for any other possibility, the court shall notify the public prosecutor of the need to take action in the proceedings in the interest of the plaintiff who is unable to protect his/her rights due to legal reasons, by taking into account Section 27 (1) (b) and (3) of Act CLXIII of 2011 on the Prosecution Service and pursuant to Section 59 (3) of Act CXXX of 2016 on the Code of Civil Procedure.
The court shall hear or otherwise consider the prosecutor's position without disclosing any classified information to the party, his/her legal representative, or any other unauthorized person.
If the party who is a third-country national or his/her legal representative is prevented from gaining access to the classified information and if the prosecutor fails to take action in the interest of the party, the court cannot accept the authority’s unilateral position on the existence of a national security risk.
The party’s right of access to the case file is not replaced by the court’s obligation to get to know the classified information, and to make a decision on the well-foundedness of the risk based on this classified information.
The legal interpretation given by any Curia decision published in the Collection of Court Decisions that goes against the above interpretation may no longer be invoked as binding.
The Curia’s Panel No. K.IV may depart from the legal interpretation contained in Curia Decisions Nos. Kfv.37.983/2020/10, Kfv.37.765/2020/14, Kfv.37.129/2021/13, Kfv.37.862/2020/11, Kfv.37.863/2020/15, Kfv.37.768/2021/12, Kfv.37.098/2022/15, Kfv.37.716/2022/11, or other Curia decisions with similar content.