There are two types of border procedures: (a) the so called “airport procedure” and (b) the procedure in transit zones. Both procedures cannot be applied in case of persons with special needs.1 However, given the general absence of a mechanism to properly identify vulnerability, the authorities only establish the existence of special needs for persons with clearly visible vulnerabilities, thereby leaving asylum seekers with trauma or mental health problems or victims of trafficking to be processed in the border procedure.
The airport procedure is regulated in Section 72 of the Asylum Act and Section 93 of Decree 301/2007. The procedure is also handled by the IAO. Although there are approximately 100 to 200 asylum applications submitted at the airport each year, the airport procedure is rarely applied in practice.
Asylum seekers may not be held in the holding facility at the Budapest international airport transit zone for more than 8 calendar days. If the application is not deemed inadmissible or manifestly unfounded or no decision has been taken after 8 days, the asylum seeker has to be allowed entry into the country and a regular procedure will be carried out.2 However, asylum seekers admitted to the country are usually detained, since as of July 2013, applying for asylum in the airport procedure constitutes a ground for asylum detention.3
Procedure in the transit zones
The border procedure in transit zones was introduced in September 2015 and is regulated in Article 71/A of the Asylum Act. The transit zones were established at Serbian and Croatian borders. The transit zone is where immigration and asylum procedures are conducted and where buildings required for conducting such procedures and housing migrants and asylum seekers are located. Asylum seekers could be held there for a maximum period of 4 weeks.
According to the Asylum Act, border procedure cannot be applied to vulnerable asylum seekers.4 Since there is no identification mechanism in place, the only vulnerabilities that are taken into account are the visible ones. This means that usually only families, unaccompanied minors, single women, elderly and disabled would be excluded from the border procedure and after admittance to the transit zone, they would be transferred to the open or closed camps in the country.5
The HHC has serious concerns regarding the legal status of the transit zones. The official government position, as communicated in the press, is that asylum seekers admitted to the transit zone are on “no man’s land”, and that persons who were admitted and later “pushed back” in the direction of Serbia have never really entered the territory of Hungary. Consequently, such “push backs” do not qualify as acts of forced return. This position has no legal basis, as there is no “no man’s land” in international law; the concept of extraterritoriality of transit zones was clearly rejected by the ECtHR in the Amuur case as well.6 The transit zone and the fence are on Hungarian territory and even those queuing in front of the transit zone’s door are standing on Hungarian soil – as also evidenced by border stones clearly indicating the exact border between the two states.7
The border procedure is a specific type of admissibility procedure; therefore the assessment of the claim is limited to a limited set of circumstances, in most cases to the sole fact whether the applicant entered Hungary from a safe third country. The applicant’s actual need of international protection is not assessed at all in the border procedure.
The IAO has to deliver a decision within a maximum of 8 calendar days. In the cases directly witnessed by the HHC, the IAO actually delivers an inadmissibility decision at the transit zone in less than an hour. This is confirmed by UNHCR.8 Such speedy decision-making gives rise to evident concerns regarding the quality and the individualisation of asylum proceedings as required by EU law9 and the application of even the most basic due process safeguards.
In parallel with the inadmissibility decision, the IAO also immediately expels the rejected asylum seeker and orders a ban on entry and stay for 1 or 2 years. This ban is entered into the Schengen Information System and prevents the person from entering the entire Schengen area in any lawful way.
The law provides that the asylum seeker,
“[A]fter being informed [about the application of the safe third country notion in her/his case can, without delay and in any case not later than within 3 days, make a declaration concerning why in her/his individual case the given country cannot be considered as safe.”10
In principle, this provision could function as a safeguard, if – with the help of professional legal advisors – asylum seekers had sufficient time to collect and present arguments to challenge the IAO’s decision. In practice, however, asylum seekers are deprived of the opportunity to challenge the application of the safe third country concept on the merits. In all cases witnessed by the HHC after 15 September 2015, except for a few families, asylum seekers were quickly informed about the application of the safe third country notion. Immediately after this, the IAO offered them the possibility to challenge this preliminary conclusion by signing a simple statement according to which they disagree. Then the IAO immediately took a decision without considering the applicant’s statement. Asylum seekers thus had neither the opportunity to consult a legal advisor, nor to collect any supporting in-merit argument. This procedure therefore reduces the possibility to challenge the safe third country argument in the administrative procedure to a purely formal and ineffective safeguard, which can have no impact whatsoever on the decision. This constitutes a violation of the right to be heard embedded in the EU Charter of Fundamental Rights,11 as interpreted by the Court of Justice of the European Union (CJEU).12
In 2016 the Szeged Court quashed some of these inadmissibility decisions precisely because the 3-day deadline for submitting additional evidence was not respected. However, the HHC still observes that in some cases, the IAO simply asks the asylum seeker after the interview if he or she has something to add in the following 3 days and if the asylum seeker answers “no”, then the IAO does not wait for the 3 days to pass, but immediately issues an inadmissibility decision. The HHC’s lawyers also observed that in Röszke transit zone the IAO case officers only accept the submissions of the asylum seekers on the safety of Serbia in their individual case in written English. When asylum seekers wanted to submit something in their mother tongues, the case officers sent them away saying that they should ask their friends to translate these into English.
Furthermore, the IAO interprets the law in the sense that the 3-day deadline starts on the day of the interview, and not the next day. This is clearly a violation of procedural rules. For example, an asylum seeker was let in the transit zone on 22 December 2016. He was told that he had 3 days to submit evidence as to why Serbia is not safe in his case. The 3-day deadline should have been over on 25 December, but since this is a public holiday (and so is 26 December), the deadline should have been over on 27 December. He wanted to make his submission on the 27, but the IAO had already issued an inadmissibility decision, arguing that he did not submit anything on time and saying that in his case the 3-day deadline was over on 24 December.
The European Committee for the Prevention of Torture (CPT) observed the following with regard to the border procedure:
“The CPT notes the combination of the expediency of border asylum procedures, the lack of automatic suspensive effect of appeals against administrative decisions rejecting asylum applications as inadmissible, the absence of an obligation to hear the person by the court in the appellate proceedings, the possibility to take final court decisions by a judicial clerk, the impossibility to present new facts and evidence before the court and problematic access to legal assistance. Consequently, the CPT has serious doubts whether border asylum procedures are in practice accompanied by appropriate safeguards, whether they provide a real opportunity for foreign nationals to present their case and involve an individual assessment of the risk of ill-treatment in case of removal and thus provide an effective protection against refoulement, bearing also in mind that, according to UNHCR, Serbia cannot be considered a safe country of asylum due to the shortcomings in its asylum system, notably its inability to cope with the increasing numbers of asylum applications.”13
The same rules as in the Regular Procedure: Personal Interview apply.
Asylum seekers usually arrive at the border following a painful journey of several weeks of months. They are exhausted, many of them traumatised. Until November 2016, when the IAO working time changed, the interviews happened in very late evening hours. The HHC is aware of cases where the interview lasted only 10 minutes, which included the reading back of the interview minutes. During such short interviews, asylum seekers do not have an effective opportunity to explain their asylum motives nor is there appropriate information given to them on the concept of Serbia being a safe third country.
In the border procedure, asylum seekers also have complained about the quality of remote interpretation, as interpretation is carried out through the internet or telephone.
Regarding the appeal in border procedure, the same rules apply as in case of appeal against inadmissible decisions or decisions in the accelerated procedure, with an additional lower standard which is that judicial clerks can also proceed and decide in these cases.14 Clerks are not yet appointed judges and have significantly less judicial experience.
Asylum seekers who submit the appeal are obliged to wait for the outcome of the judicial review process in the transit zone.
According to the HHC, the border procedure does not offer an effective remedy against negative first-instance decisions. As rejections are passed in less than an hour, asylum seekers have no time to have a rest and get prepared for the interview, and even less for preparing a proper appeal. The asylum seekers the HHC interviewed after rejection did not understand the reasons for the rejection ( not easily understandable consequence given the complexity of the legal question at stake – the safe third country concept – for anyone without specific training in refugee law), and their right to turn to court. In such a context, the 7-day time limit to submit a judicial review request is excessively short. The excessively short deadline makes it difficult for the asylum seeker to exercise her/his right to an effective remedy and thus it questions the rule’s compliance with EU law.15
Asylum seekers who did not use the opportunity to appeal immediately after rejection still have 7 days under the law for submitting the request for judicial review to the IAO.16 At the same time, they are immediately “pushed back” from the transit zone in the direction of Serbia – yet to what is still Hungarian territory. It is highly questionable whether these rejected asylum seekers can have any access to the legal remedy they are entitled to, as they cannot even physically contact the asylum authority, being on the other side of the fence.
On 15 September 2015, the HHC monitors assisted a number of asylum seekers in submitting their appeal. When requesting information about the practical modalities for this, an IAO officer informed the HHC that the asylum seekers in question can submit their appeal but they should “stand in the queue again” and wait for being admitted to the transit zone, like any other asylum seeker. In light of the extremely limited access to the transit zone (see section on Access to the Territory) this may easily be equal to the deprivation of the right to appeal and thus a violation of EU law.17
In 2016 the above practice has changed, and the IAO now waits for the 7-day deadline to pass and only afterwards sends the person who does not appeal out of the transit zone to the Serbian side. In 2016, asylum seekers would usually appeal the inadmissibility decision, which would in most cases mean that their procedure would not terminate within 28 days and they would be let into the camps in the country. Despite this, there were some cases, where the procedure ended within 4 weeks and asylum seekers were forced to leave the transit zone in the direction of Serbia. The HHC has at the moment 4 such pending cases at the ECtHR. One was already communicated and it concerns two Bangladeshi nationals,18 the other 3 cases concern Syrian nationals and were not yet communicated.19
The HHC lawyers have also reported that the IAO does not always send the lawyers’ submissions to the court, even though they are submitted within 1-2 days from the issuance of the inadmissibility decision. The court is therefore not aware that the applicant has a lawyer representing him or her. This happens even though the HHC lawyers also bring their submissions physically to the court, but since the court usually decides within 1-2 days from the day they get the case file from the IAO, the files brought to the court often also do not reach the decision-maker in time.
The personal hearing is not mandatory. Eventual hearings are to be held in the transit zone, and remote audio and video connection can also be used, for example for interpretation.20 This is particularly problematic, since the IAO interviews are also usually very short as mentioned in Border Procedure: Personal Interview.
The same problems regarding ineffectiveness of this legal remedy apply as for the appeals against inadmissible decisions (see Admissibility Procedure: Appeal).
UNHCR is concerned that during the judicial review the court is limited to an ex tunc rather than an ex nunc examination of both facts and law, i.e. the facts and law as applicable at the time of the original decision, and not that of the review. This may be at variance with the right to an effective remedy under the recast Asylum Procedures Directive and the ECHR. Further, while the court has the discretion to conduct a hearing if necessary, and applicants may request an oral hearing, in UNHCR’s view, in practice applicants have access to limited legal aid and thus are not informed of their right to do so. This may give rise to interference with standards of due process and procedural fairness and the right to an effective remedy.21
In such extremely accelerated procedures, facilitated access to quality legal assistance is a crucial requirement. Yet, there is no permanent access to professional legal advice in the transit zone. The IAO staff in Röszke had initially refused access to these sites for the HHC, the only Hungarian NGO providing free-of-charge legal assistance to asylum seekers. The HHC could only obtain access to the transit zones following an intervention by UNHCR. Moreover, given the remote location of the transit zone, the HHC is not present at all times in the premises. None of the asylum seekers interviewed by the HHC after rejection had been provided with legal assistance.22
It is impossible to obtain legal assistance during the IAO interview, since the interview usually happens immediately when the person is admitted to the transit zone and therefore there is no opportunity to access a lawyer first. Despite the fact that asylum seekers have a right to request free legal assistance, in practice this would not happen, since the procedure for appointing state legal aid can take several days and the IAO will not wait with the interview. It is also difficult to have legal assistance during the appeal procedure, since the whole procedure happens very fast and unless the asylum seeker is lucky and meets the HHC’s lawyer in time, or the state legal aid is accorded to him in time, he would not be able to get legal assistance.
The difficulties regarding the lawyers’ submissions reaching the court on time are mentioned in the section on Border Procedure: Appeal.
According to information provided by the Ministry of Interior, state legal aid in judicial proceedings was provided in a total 29 cases in the Röszke (2 cases in January, 13 in March, 2 in July, 1 in September, 1 in October) and Tompa (1 in March, 9 in April) transit zones.23 Extra-judicial state legal aid was only requested in 2 cases in Röszke (none in Tompa) in January 2016, which the IAO allowed and provided legal officers and interpreters for 5 hours. According to the Ministry of Interior, the services were ultimately not taken by the asylum seekers.24 A short information sheet on the right to seek legal assistance is also provided in the transit zones.
Since the beginning of 2017, the HHC attorneys have witnessed further restrictions to providing legal assistance, as they are only allowed to be present in the containers outside the restricted area where asylum seekers are staying. Therefore only asylum seekers with a power of attorney are allowed to visit the legal representative. This is a clear violation of asylum seekers’ right to free legal assistance.
- 1. Sections 71A(7) and 72(6) Asylum Act.
- 2. Section 72(5) Asylum Act.
- 3. Section 31/A(e) Asylum Act.
- 4. Section 71A(7) Asylum Act.
- 5. Section 71A(4) Asylum Act.
- 6. ECtHR, Amuur v France, Application No 19776/92, Judgment of 25 June 1996, para 52.
- 7. HHC, No country for refugees, Information Note, 18 September 2015; ECRE, Crossing Boundaries: The new asylum procedure at the border and restrictions to accessing protection in Hungary, October 2015, available at: http://bit.ly/1NxI9IP.
- 8. UNHCR, Hungary as a country of asylum, May 2016, para 25.
- 9. Article 10(3)(a) recast Asylum Procedures Directive; Article 4(3)(c) recast Qualification Directive.
- 10. Section 51(11) Asylum Act, in force as of 1 August 2015.
- 11. Article 41(2) EU Charter.
- 12. Cf. CJEU, Case C-277/11 M.M. v. Minister for Justice, Equality and Law Reform, Ireland, Attorney General, Judgment of 22 November 2012.
- 13. CPT, Report to the Hungarian Government on the visit to Hungary carried out from 21 to 27 October 2015, 3 November 2016, available at: https://goo.gl/uJ22x7, para 69.
- 14. Section 71/A(9) Asylum Act.
- 15. Article 46(4) recast Asylum Procedures Directive.
- 16. Section 53(3) Asylum Act.
- 17. Article 46(1) recast Asylum Procedures Directive; Article 47 EU Charter.
- 18. ECtHR, Ilias and Ahmed v. Hungary, Application No 47287/15, 25 September 2015.
- 19. ECtHR, Applications Nos 66064/16, 64558/16, 64050/16.
- 20. Section 71/A(10) Asylum Act.
- 21. UNHCR, Hungary as a country of asylum, May 2016, para 18.
- 22. HHC, No country for refugees, Information Note, 18 September 2015; ECRE, Crossing Boundaries, October 2015.
- 23. Information provided by the Ministry of Interior, 8 March 2017.
- 24. Information provided by the Ministry of Interior, 8 March 2017.