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Hungary / Curia / Kfv.VI.37.616/2017 (EBH2018.K.18.)

Bangladeshi citizen and first instance immigration authority

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Curia
Type:
Decision
Decision date:
01/01/2018

Key facts of the case:

The plaintiff is a Bangladeshi citizen with refugee status in Hungary. In 2016 the plaintiff and his family members (a wife and three children who remained in Bangladesh) submitted a request for a visa for entitlement to receive a residence permit and for a residence permit on the grounds of family reunification. Based on an expert opinion, the first instance immigration authority concluded that the applicants had submitted falsified documents relating to the existence of a family relationship with the minor applicant H.S. (one of the children of the plaintiff) and it therefore rejected the application on the grounds of false disclosure or untrue facts. The second instance authority rejected the applicants’ request for a DNA test to prove the existence of a family relationship and confirmed the first instance decision. The first instance court quashed the decisions of the first and the second instance authorities on the ground that the authorities violated the law when they restricted their examination to the expert opinion solely. The court pointed out that even if the submitted documents were false, the information may have been true and it was the duty of the authorities to carry out a thorough evidentiary procedure. The court ordered the first instance authority to conduct a new procedure and to take into consideration the best interests of the child. The judgment of the first instance court was challenged by the second instance authority before the Curia.

Key legal question raised by the Court:

Whether attaching falsified documents to an application – regardless of the truthfulness of the information they contain – amounts to disclosing false information or untrue facts as a legal ground to refuse a request for a residence permit in terms of Article 18 (1) b) of Act no. II of 2017 on the admission and right of residence of third country nationals (2007. évi II.

törvény a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról[1]).


[1] Act no. II of 2017 on the admission and rights of residence of third country nationals (2007. évi II. törvény a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról) is available at: http://njt.hu/cgi_bin/njt_doc.cgi?docid=108621.357086


Outcome of the case:

The Curia rejected the petition of the second instance authority and upheld the decision of the first instance court. The Curia pointed out that based on Article 16 (2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification,[1] a distinction needed to be made between providing false or misleading information, false or falsified documents in the application process and the use of this information and documentation. The submission of a falsified document creates a presumption that the applicant provided false or falsified information. Nevertheless, this is a rebuttable presumption, i.e. the applicant has the right to prove that the information contained in the falsified document is in fact true. In the course of a family reunification process the existence of a family relationship may be proven by any adequate means and the authority must pay particular attention to the interests of the child if the case concerns a minor. In light of these considerations, the Curia concluded that the first instance authority had to conduct a new procedure and examine whether the submitted documents were suitable to prove the existence of a family relationship. If not, the applicant had to be granted the opportunity to prove the existence of a family relationship by any adequate means, including a DNA test. The authority had to take into consideration the best interests of the child.


[1] Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ 2003 L 251.