The case of Ngo Luc Doc
Ngo Luc Doc, a citizen of Vietnam arrived in Hungary in 2004 aged 24 on a commercial visa to trade Far Eastern goods in local markets. Upon expiry of his visa, he did not apply for residence permit as he was unable to comply with the financial requirements of residence in Hungary. Instead he legalised his stay by submitting a series of asylum applications. He applied three times for refugee status using pseudonyms, with false personal data, and one further time under his own name. His last asylum procedure concluded in December 2008, and his humanitarian residence permit submitted for the duration of the procedure was withdrawn in January 2009. Since according to the new asylum regulations it was not possible for him make any further application for asylum, and in the meantime he had succeeded to establish his living in Hungary, he applied for an ordinary residence permit on the ground that his wife and father-in-law from Vietnam were resident in the country. But this application was also rejected. Meanwhile criminal proceedings were initiated against him for selling goods with falsified trademarks.
By order dated 3 of April 2009, the migration authority expelled Mr Luc Doc from Hungary on the ground that he was staying in Hungary without a valid residence permit. Under the terms of the Expulsion Order, Mr Luc Doc was prohibited from re-entering Hungary for a period of four years. The authority considered that he had been resident in the country illegally for four years, and constituted a serious threat to public order and public security as well as to due process of law. Although his wife lives in Hungary, his ties to Vietnam are also strong, as his parents and siblings live there. He does not work in Hungary, nor does he have property or children in need of support here, and he consented to leave the country voluntarily.
Ngo Luc Doc requested the court to review and repeal the expulsion order of the migration authority. He argued that in his view lodging a series of asylum applications cannot be considered as mala fide action. Since humanitarian residence permits legalised his stay for the duration of the asylum procedures, he only stayed illegally in Hungary for one year. Additionally, the migration authority underestimated the significance of the fact that his wife and father-in-law, who are his family and support him, live and work in Hungary on a permanent residence permit. Sending him back to his country of origin would detach him from his core family, which constitutes a violation of Article 8 of the European Convention on Human Rights, and is against the national migration law, which rules that before adopting an expulsion order the migration authority shall have regard the family status of the third country national and the possible consequences of his expulsion on his family members.
Relevant national laws:
Act II of 2007 on the Admission and Right of Residence of Third Country Nationals
Section 13 (1)
For stays in the territory of the republic of Hungary for a period of longer than three months the condition for third country nationals is that they are in possession of a residence permit, an immigration permit or a permanent residence permit.
Section 43 (2) (b)
The migration authority shall order the expulsion and exclusion of a third country national who fails to comply with the requirements set out in this Act for the right of residence.
Section 47 (1)
The exclusion shall be ordered in conjunction with expulsion for a duration of between one and ten years.
Section 45 (1)
The migration authority shall have regard for the following factors before adopting an expulsion order under immigration laws:
a) any threat to national security, public security, public policy or public health, in view of the gravity and nature of the actionable conduct;
b) the duration of stay;
c) the age and family status of the third country national affected, possible consequences of his/her expulsion on his/her family members;
d) links of the third country national to the Republic of Hungary, or the absence of links with the country of origin.