The admissibility of an application should be decided within 15 calendar days and this deadline may not be extended; there is no longer a separate admissibility procedure. However in practice, due to the high influx of asylum seekers in 2015 and 2016, this took a few weeks longer.
Under Section 51(2) of the Asylum Act, an application is inadmissible where:
(a) The applicant is an EU citizen;
(b) The applicant was granted international protection by another EU Member State;
(c) The applicant is recognised as a refugee by a third country and protection exists at the time of the assessment of the application and the third country is prepared to readmit him or her;
(d) The application is repeated and no new circumstance or fact occurred that would suggest that the applicant’s recognition as a refugee or beneficiary of subsidiary protection is justified; or
(e) There exists a country in connection with the applicant which qualifies as a safe third country for him or her.
The “safe third country” concept may only be applied as an inadmissibility ground where the applicant (a) stayed or (b) travelled there and had the opportunity to request effective protection; (c) has relatives there and may enter the territory of the country; or (d) has been requested for extradition by a safe third country (see section on Safe Third Country).1 In the event of applying the “safe third country” concept, the applicant, when this fact is communicated to him or her, can declare immediately but within 3 days at the latest why in his or her individual case, the specific country does not qualify as a safe third country.2
The fact is that since 15 September 2015, Serbia is not taking back third-country nationals under the readmission agreement except for those who hold valid travel / identity documents and are exempted from Serbian visa requirements. Therefore actual returns to Serbia are not possible. Between January- andNovember 2016, only 182 irregular migrants were officially returned to Serbia. Neither the refusal of the asylum applications in the transit zones, nor the “legalised” push-backs since 5 July 2016 result in such official readmissions. Among the readmitted persons, there were 84 Serbian, 35 Kosovar and 27 Albanian citizens. None of the returnees were Syrian, Afghan, Iraqi or Somali citizens.3 Despite this fact, the IAO still issues inadmissiblity decisions based on safe third country grounds.
In case the application is declared inadmissible on safe third country grounds, the IAO shall issue a certificate in the official language of that third country to the applicant that his or her application for asylum was not assessed on the merits.4 This guarantee is respected in practice.
Where the safe third country fails to take back the applicant, the refugee authority shall withdraw its decision and continue the procedure.5 This provision is not respected in practice. Even though it is clear that Serbia will not acept back asylum seekers from Hungary, the IAO does not automaticaly withdraw the inadmissiblity decision, but the person needs to apply for asylum again. According to the HHC’s experience asylum seekers have to go through the admissibility assessment for two or even three times and only after submitting the third or fourth asylum application would their case not be declared inadmissible. This results in extremely lenghty procedures which leave people in great depair. Sometimes asylum seekers would be even detained after receiving a final rejection based on Serbia being a safe third country, despite the fact that deportations to Serbia are not taking place.
The IAO isses inadmissiblity decisions based on Serbia being a safe third country also to vulnerble applicants, for example transsexuals from Cuba, disabled or single women victims of sexual and gender based violence. In a case of an extremely vulnerable single woman from Cameroon, who was a victim of trafficking in Serbia, hold in hostage and raped several times, the HHC obtained an interim measure from the UN Human Rights Committee (UNHRC),6 and after that her case was finally decided on the merits. The argument of the IAO is that Serbia could at any time start respecting the readmission agreeement and therefore the return would become possible.
Article 33(2)(e) of the recast Asylum Procedures Directive, providing that an application by a dependant of the applicant who has consented to his or her case being part of an application made on his or her behalf, has not been transposed into Hungarian legislation.
There is no longer a separate procedure for admissibility, therefore the same rules as in the Regular Procedure: Personal Interview apply.
The deadline for seeking judicial review against a negative decision on admissibility is shorter than in the regular procedure, as the request must be filed within only 7 calendar days.7 Judicial review is carried out by the same Regional Administrative and Labour Court that considers other asylum cases. The court’s review shall include a complete examination of both the facts and the legal aspects, but only as they exist at the date when the authority’s decision is made.8 The applicant therefore cannot refer to new facts or new circumstances during the judicial review procedure. This also means that if the applicant did not present any country of origin information (COI) reports during the first instance procedure, or the IAO did not refer to these on their own, the applicant cannot present these reports at the judicial review procedure, despite the fact that these reports already existed before and were publicly available. Moreover, the review procedure in admissibility cases differs from those rejected on the merits, since the court must render a decision within 8 days and a hearing is not mandatory; a hearing only takes place “in case of need”.9
A request for judicial review against the IAO decision declaring an application inadmissible has no suspensive effect, except for judicial review regarding inadmissible applications based on safe third country grounds.10
The court may not alter the decision of the refugee authority; it shall annul any administrative decision found to be against the law, with the exception of the breach of a procedural rule not affecting the merits of the case, and it shall oblige the refugee authority to conduct a new procedure.11
In practice, asylum seekers may face obstacles to lodging a request for judicial review against inadmissibility decisions for the following reasons:
- The 7-day deadline for applying for judicial review appears to be too short for an applicant to be able to benefit from qualified and professional legal assistance, and does not appear to satisfy the requirements of Article 13 ECHR on the right to an effective remedy.12 Without a functioning and professional legal aid system available for asylum seekers, the vast majority of them have no access to legal assistance when they receive a negative decision from the IAO. Many asylum seekers may fail to understand the reasons for the rejection, especially in case of complicated legal arguments, such as the safe third country concept, and also lack awareness about their right to turn to court. The excessively short deadline makes it difficult for the asylum seeker to exercise her or his right to an effective remedy.
- The procedure is in Hungarian and the decision on inadmissibility is only translated once i.e. upon its communication to the applicant, in his or her mother tongue or in a language that the applicant may reasonably understand. This prevents the asylum seeker from having a copy of his or her own decision in a language he or she understands so that later he or she could recall the specific reasons why the claim was found inadmissible. The judge has to take a decision in 8 days on a judicial review request. The 8-day deadline for the judge to deliver a decision is insufficient for “a full and ex nunc examination of both facts and points of law” as prescribed by EU law. Five or six working days are not enough for a judge to obtain crucial evidence (such as digested and translated country information, or a medical/psychological expert opinion) or to arrange a personal hearing with a suitable interpreter.
- The lack of an automatic suspensive effect on removal measures is in violation of the principle established in the consistent case-law of the European Court of Human Rights, according to which this is an indispensable condition for a remedy to be considered effective in removal cases. While rules under EU asylum law are more permissive in this respect and allow for the lack of an automatic suspensive effect in case of inadmissibility decisions and accelerated procedures, the lack of an automatic suspensive effect may still raise compatibility issues with the EU Charter of Fundamental Rights. The lack of an automatic suspensive effect is in clear violation of EU law with regard to standard procedures, as the Asylum Procedures Directive allows for this option only in certain specific (for example accelerated) procedures. In all cases where the suspensive effect is not automatic, it is difficult to imagine how an asylum seeker will be able to submit a request for the suspension of her/his removal as she/he is typically without professional legal assistance and subject to an unreasonably short deadline to lodge the request. To make it even worse for asylum seekers, the rules allowing for a request to grant a suspensive effect to be submitted are not found in the Asylum Act itself, but they emanate from general rules concerning civil court procedures. The amended Asylum Act lacks any additional safeguards for applicants in need of special procedural guarantees with regard to the automatic suspensive effect, although this is clearly required by EU law.
- Finally, asylum seekers often lack basic skills and do not understand the decision and the procedure to effectively represent their own case before the court, which only carries out a non-litigious procedure based on the files of the case and where an oral hearing is rather exceptional. Applicants are not informed that they have to specifically request a hearing in their appeal. The unreasonably short time limit and the lack of a personal hearing may reduce the judicial review to a mere formality, in which the judge has no other information than the documents provided by the IAO.
The European Commission launched an infringement procedure against Hungary for the violation of asylum-related EU law in December 2015, after a record fast preparatory process.13 Regarding the asylum procedure, the Commission is concerned that there is no possibility to refer to new facts and circumstances in the context of appeals and that Hungary is not automatically suspending decisions in case of appeals, effectively forcing applicants to leave their territory before the time limit for lodging an appeal expires, or before an appeal has been heard. Further on, the Commission is also concerned as to the fact that, under the new Hungarian law dealing with the judicial review of decisions rejecting an asylum application, a personal hearing of the applicants is optional. Judicial decisions taken by court secretaries (a sub-judicial level) lacking judicial independence also seem to be in breach of the recast Asylum Procedures Directive and Article 47 of the Charter. The infringement procedure is still not closed.
There is no longer a separate procedure for admissibility, therefore the same rules as in the Regular Procedure: Legal Assistance apply. What is particularly problematic for asylum seekers in the case of an inadmissibility decision are short deadlines (only 7 days to lodge an appeal) and the fact that hearing at the court is an exception rather than the rule. In such a short time it is hard to get access to legal assistance. The importance of legal assistance is on the other hand seriously restricted since the courts are only performing an ex tunc examination and do not want to take into account any new evidence presented during the judicial review procedure.
- 1. Section 51(4) Asylum Act.
- 2. Section 51(11) Asylum Act.
- 3. HHC, Key asylum figures as of 1 January 2017, available at: https://goo.gl/KdTy4V.
- 4. Section 51(6) Asylum Act.
- 5. Section 51A Asylum Act.
- 6. UN Human Rights Committee, Communication No 2768/2015.
- 7. Section 53(3) Asylum Act.
- 8. Section 53(4) Asylum Act.
- 9. Section 53(4) Asylum Act.
- 10. Section 53(2) Asylum Act.
- 11. Section 53(5) Asylum Act.
- 12. See e.g. ECtHR, IM v France, Application No 9152/09, Judgment of 2 February 2012; Singh v Belgium, Application No 33210/11, Judgment of 2 October 2012; AC v Spain, Application No 6258/11, Judgment of 22 April 2014. See also CJEU, Diouf, paras 66-68, finding that a 15-day time-limit is not sufficient for preparing an appeal.
- 13. European Commission, ‘Commission opens infringement procedure against Hungary concerning its asylum law’, IP/15/6228, 10 December 2015, available at: https://goo.gl/9CNoUj.