According to Section 2(i) of the Asylum Act, a safe third country is defined as:
“[A]ny country in connection to which the refugee authority has ascertained that the applicant is treated in line with the following principles:
(a) his/her life and liberty are not jeopardised for racial or religious reasons or on account of his/her ethnicity/nationality, membership of a social group or political conviction and the applicant is not exposed to the risk of serious harm;
(b) the principle of non-refoulement is observed in accordance with the Geneva Convention;
(c) the rule of international law, according to which the applicant may not be expelled to the territory of a country where s/he would be exposed to death penalty, torture, cruel, inhuman or degrading treatment or punishment, is recognised and applied, and
(d) the option to apply for recognition as a refugee is ensured, and in the event of recognition as a refugee, protection in conformance of the Geneva Convention is guaranteed.”
Section 51(2)(e) provides that an application is inadmissible “if 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.1 In practice transit or stay is a sufficient connection, even in cases where a person was smuggled through and did not know the country at all.
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 law does not specify in which format and language this information should be communicated to the applicant, if an interpreter should be made available, or if a written record should be prepared. In the Röszke transit zone, the case officers refuse to take submissions that are not written in English (see section on the Border Procedure). Equally, the law does not specify the format or language, the availability of interpreters, and the preparation of a written record pertaining to applicants’ “declaration” either. No mandatory, free-of-charge legal assistance is foreseen for this process. Due to the lack of a functioning legal aid system accessible to asylum seekers, the vast majority of them have no access to professional legal aid during the asylum procedure.
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.3 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 (see section on the Admissibility Procedure, where problems regarding the use of these safeguards are described).4
The list of safe third countries
In July 2015, Hungary amended its asylum legislation in various aspects and adopted a National List of Safe third Countries.5 Following a subsequent amendment to the list, the following countries are currently considered safe third countries:
- EU Member States
- EU candidate countries
- Member States of the European Economic Area
- US States that do not have the death penalty
- New Zealand
The list includes amongst others Serbia. However, in August 2012, UNHCR has said that it “recommends that Serbia not be considered a safe third country of asylum, and that countries therefore refrain from sending asylum seekers back to Serbia on this basis”,6 a position it maintains still today.7 Besides, aside from the fact that the Asylum Act authorises the Government to establish a national list of safe third countries, Hungary does not otherwise appear to have laid down rules in its national law on the methodology by which the competent authorities may satisfy themselves that a third country may be designated as a safe third country within the meaning of Section 2(i) of the Act. Nor is any explanation or justification provided in Government Decree 191/2015 as to how the Government arrived to the conclusion that each country listed qualifies as safe.8 Moreover, the designation as a “safe third country” contradicts the guidelines of the Hungarian Supreme Court (“Kúria”) and the evidence provided by the reports of the HHC,9 Serbian human rights organisations,10 and Amnesty International.11 Currently there is no other EU Member State that regards Serbia as a safe third country for asylum seekers.
The Supreme Court of Hungary issued an official opinion on 10 December 2012 in order to promote a harmonised practice within Hungarian courts regarding the application of the safe third country concept in asylum cases.12 The concrete reason for issuing such a guidance document was that, in recent years, different Hungarian regional courts applied different approaches upon reviewing inadmissibility decisions on that ground. This also meant a diverging evaluation of the asylum situation in Serbia, the target country of most “safe third country” returns of asylum seekers from Hungary.
On the issue of the country of origin information used to determine if a country is safe, the Supreme Court stated that:
“When reviewing administrative decisions regarding the application of the safe third country concept the court shall ex officio take into consideration the precise and credible country information at its disposal at the time of deciding, obtained in any of its procedures. In this context, the country information issued by the UNHCR shall always be taken into consideration. In case of doubt, [...] the court may approach the country information service of the Office of Immigration and Nationality or it may obtain information from other reliable sources. [...]“
The Supreme Court also stated that the fact that a certain country ratified the relevant international treaties is per se irrelevant when assessing the ‘safety’ of a country, since the application of these treaties in practice shall also be examined.
In 2016, the Kúria’s aforementioned opinion was withdrawn,13 on the ground that legislation has since changed and its application based on current asylum and migration laws is no longer possible. Moreover, the Qualification and Asylum Procedures Directives in effect at the time of the 2012 Opinion have been amended. Since the previous opinion was based on a different legal and factual basis, it was deemed not to be applicable any longer.
In 2016 the practice of the courts regarding the inadmissibility decisions based on Serbia being a safe third country varied. The Szeged Court, after the withdrawal of the Kúria’s position, started to reject almost all appeals, but its practice reversed again towards the end of the year. The Budapest Court’s practice was inconsistent throughout the year. UNHCR sent a letter to all relevant courts, reaffirming its position on Serbia not being a safe third country for asylum seekers. Despite this letter, the courts continued to issue negative decisions in several cases.
The Asylum Act obliges the IAO to reject as inadmissible all asylum claims lodged by applicants who came through a safe third country, since the applicant “could have applied for effective protection there”. As over 95% of asylum seekers enters Hungary at the Serbian-Hungarian border section, this means the quasi-automatic rejection at first glance of over 95% of asylum claims, without any consideration of protection needs.
In individual cases, the presumption of having had an opportunity to ask for asylum in Serbia is – in principle – rebuttable. However, this possibility is likely to remain theoretical for a number of reasons:
- The law requires the applicant to prove that he or she could not present an asylum claim in Serbia.14 This represents an unrealistically high standard of proof (as compared to the lower standard of “to substantiate”, which is generally applied in Hungarian asylum law). An asylum seeker typically smuggled through a country unknown to him or her is extremely unlikely to have any verifiable, “hard” evidence to prove such a statement;
- The impossibility to have access to protection in Serbia does not stem from individual circumstances, but from the general lack of a functioning asylum system. Therefore, it is absurd and conceptually impossible to expect an asylum seeker to prove that, for individual reasons, he or she had no access to a functioning system in Serbia which in reality does not exist;
- If the claim is considered inadmissible, the IAO has to deliver a decision in maximum 15 days (8 days at the border).15 This extremely short deadline adds to the presumption that no individualised assessment will be carried out.
- These amendments not only breach the definition of “safe third country” under EU and Hungarian law,16 but they also lead, in practice, to the massive violation of Hungary’s non-refoulement and protection obligations enshrined in the 1951 Refugee Convention, Article 3 ECHR, and Articles 18 and 19 of the EU Charter of Fundamental Rights. Since early 2015, the vast majority of asylum seekers have come to Hungary from the worst crises of the world (Afghanistan, Syria and Iraq). Most of them no longer have an opportunity to explain why they had to flee. Instead, they are exposed to the risk of an immediate removal to Serbia, a country where protection is currently not available. This means that they are deprived of the mere possibility to find protection and at the real risk of chain refoulement.
- 1. Section 51(3) Asylum Act.
- 2. Section 51(11) Asylum Act.
- 3. Section 51(6) Asylum Act.
- 4. Section 51A Asylum Act.
- 5. Government Decree 191/2015 (VII. 21.) on the national list of safe countries of origin and safe third countries. The original list did not include Turkey, but the country was later inserted.
- 6. UNHCR, Serbia as a country of asylum: Observations on the situation of asylum-seekers and beneficiaries of international protection in Serbia, August 2012, available at: http://bit.ly/1V6O23l, 22.
- 7. UNHCR, Hungary as a country of asylum, May 2016.
- 8. Ibid, para 36.
- 9. HHC, Serbia as a Safe Third Country: Revisited: An update of the Hungarian Helsinki Committee’s 2011 report, June 2012, available at: http://bit.ly/1N9p2Io.
- 10. See e.g. AIDA Country Report Serbia: 2016 Update, February 2017.
- 11. Amnesty International, Europe’s Borderlands, 6 July 2015, available at: http://bit.ly/1dLK66T.
- 12. Supreme Court of Hungary, Opinion no. 2/2012 (xii.10) KMK on certain questions related to the application of the safe third country concept, 10 December 2012, available at: http://bit.ly/1dAn6YJ.
- 13. Supreme Court of Hungary, Opinion no. 1/2016 (iii.21) KMK on certain questions related to the application of the safe third country concept, available at: http://bit.ly/2kQZXpa.
- 14. Section 51(5) Asylum Act.
- 15. Section 47(2) Asylum Act.
- 16. Recital 46 and Article 38 recast Asylum Procedures Directive; Section 2(i) Asylum Act.