Regular procedure

Author

Hungarian Helsinki Committee Visit Website

From 28 March 2017 until 26 May 2020, but in practice until March 2020, asylum applications could only be submitted in the transit zones, with the exception of those staying lawfully in the country. All asylum seekers, excluding unaccompanied children below the age of 14, had to stay at the transit zones for the whole duration of their asylum procedure. The asylum procedure in the transit zone was therefore a regular procedure and no longer a Border Procedure. Provisions regulating the border procedure are currently suspended in Hungary, due to the ‘state of crisis due to mass migration’.

As of 26 May 2020, the regular procedure can be used only by those who receive single-entry permit after submitting a ‘statement of intent’ at the Embassy in Belgrade or Kyiv or by certain exceptions described under the section on the Embassy procedure.

General (scope, time limits)

The asylum procedure in Hungary starts with an assessment of whether a person falls under a Dublin procedure. If this is not the case, the NDGAP proceeds with examining whether the application is inadmissible or whether it should be decided in an accelerated procedure. The decision on this shall be made within 15 days.[1]

The procedural deadline for issuing a decision on the merits is 60 days.[2] The amendment to the Asylum Act that entered into force on 1 January 2018 provides that the head of the former IAO, and now NDGAP, may extend this administrative time limit once before its expiry, by a maximum of 21 days.[3] The following shall not count towards the administrative time limit:

1. periods when the procedure is suspended,
2. periods for remedying deficiencies and making statements,
3. periods needed for the translation of the application and other documents,
4. periods required for expert testimony,
5. duration of the special authority’s procedure (for instance the Security Agency),
6. periods required to comply with a request (for example when the NDGAP requests COI from the documentation centre).

In 2019, as well as in 2020 the HHC observed that time limits in in-merit cases were usually respected, however because of the above procedural steps that do not count into the 60 days deadline, the NDGAP issues the first decision in around 3 to 4 months. Time to obtain COI, an opinion from other special authorities or any Dublin related procedural steps are excluded from the 60 days deadline. The cases of unaccompanied children that are supposed to be prioritised under the law are also not always decided within the deadline. In 2021, according to the HHC’s experience some cases were decided within time limits, but some cases took longer, even more than 6 months. In 2022, according to the HHC’s experience, procedures got longer due to the Ukrainian crisis and lack of additional capacity. NDGAP usually decided between 3 to 5 months, but in some cases it took even longer, more than 6 months.

First instance decisions on the asylum application are taken by so-called eligibility officers within the Refugee Directorate of the NDGAP. A decision of the NDGAP may:

• Grant refugee status;
• Grant subsidiary protection status;
• Grant tolerated status where non-refoulement prohibits the person’s return; or
• Reject the application as inadmissible or reject it on the merits.

Amendments to the Asylum Act that entered into force on 1 January 2018 provide an additional ground for termination of the procedure that is unclear and the application of which could be problematic: ‘The refugee authority shall terminate the procedure if the client failed to submit any document requested by the refugee authority in time or failed to comply with the invitation to make a statement within the time limit and, in the absence of the document or statement, the application cannot be decided on.’[4] The HHC has not observed any such termination practice since the entry into force of the amendments.

In parallel with the rejection decision, the NDGAP 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.

According to the NDGAP, the average length of an asylum procedure, from submitting the application for asylum until the first instance decision is delivered was 82 days in 2019. In the case of Syrian asylum seekers, this time was shorter, a total of 69 days, while the applications of Afghan applicants were decided in 78 days on average. In the case of Iraqi asylum seekers, the average length of the asylum procedure was longer than the average for all asylum seekers, lasting for a total of 87 days. In 2020, 2021 and 2022, upon request the NDGAP stated it did not have the requested data.[5]

In practice, according to the HHC, in 2021 the average length of an asylum procedure, including both the first-instance procedure conducted by the NDGAP and the judicial review procedure, is 3-6 months. The HHC’s lawyers reported that what mainly delayed decision making at the first instance was waiting for the approval of the decision by the superior of the case officer. Decisions in status revision procedures and asylum procedures of applicants residing in the territory of Hungary (not in the transit, not in detention) took 2-4 months. In 2022, according to the HHC’s experience, the average time of proceedings was roughly the same as in 2021.

The HHC attorneys report that COI is not automatically shared by the NDGAP with the applicants, before a decision in their asylum case is made, but it can be obtained by requesting access to the case documentation.

Prioritised examination and fast-track processing

According to Section 35(7) of the Asylum Act, cases of unaccompanied children should be prioritised. However, this prioritisation is not applied in practice. According to HHC lawyers and attorneys working with unaccompanied children, in several cases the decision-making procedure took the same length as in the cases of adults and the former IAO and the NDGAP used up the 60 days. The HHC is not aware of cases where the former IAO or the NDGAP used the legal possibility to extend the deadline.

In case an asylum seeker is detained in an asylum detention or immigration jail, the asylum procedure shall be conducted as a matter of priority. This is usually applied in practice.[6] Note that the Government did not consider transit zones as detention; therefore, the prioritisation did not apply there.

Personal interview

The personal interview of the asylum seeker is mandatory in the asylum procedure. The NDGAP may omit the personal interview in the following cases, where the asylum seeker:[7]

• Is not fit for being heard;
• Submitted a subsequent application and, in the application, failed to state facts or provided proofs that would allow the recognition as a refugee or beneficiary of subsidiary protection. The personal hearing cannot be dispensed with, if the subsequent application is submitted by a person seeking recognition whose application was submitted earlier on their behalf as a dependent person or an unmarried minor.

The quality of the asylum interviews highly depends on the personality of the case officer. Although in most cases, the interview records – especially when legal representative is not present – are vague and lack the resolution of contradictions, the HHC is also aware of an extremely punctual and detailed interview technique applied in Budapest. Accordingly, the case officer conducts extensive interviews and usually holds two hearings with the aim that by the second time contradictions are clarified in light of the country of origin information obtained by then. In 2021, the HHC reported that some of the case officers made rude comments about the applicants in Hungarian. In one interview, an officer from the CPO was present and made highly inappropriate comments regarding the Afghan applicant and his family members. The case officer conducting the interview did not intervene; instead, he also made inappropriate comments. In any case, positive practices are also worth noting. Case officers were in some cases open to adjust the interview appointment to the needs of the applicant. For example, interviews could be arranged in the afternoon so that the applicant did not have to miss work. In one case the applicant, dependent on a wheelchair, was not required to be present in person at the announcement of the decision. Case officers often called legal representatives before making an appointment, to inform them and to make sure the appointment would be appropriate.

The applicants also complain that the interviews are extremely lengthy and tiring. There are many introductory questions regarding the personal data of the applicants and their travel route and by the time the questions reach the reasons of fleeing, the applicants are already very tired and they just want to be done with the interview and therefore they do not give enough details.

The interviewer usually does not ask anything concerning the IPA (internal protection alternative) and does not even tell the asylum seeker that they are examining the possibility of the IPA. Or when there are contradictions, the interviewers usually do not try to resolve them at all, or sometimes just partially, but never fully.

In 2019, the NDGAP conducted a total of 549 personal interviews.[8] In 2020, 2021 and 2022, upon request the NDGAP stated it did not have the requested data.[9]

Interpretation

Section 36 of the Asylum Act and Section 66 of the Asylum Decree set out rules relating to the right to use one’s native language in the procedure and on gender-sensitive interviewing techniques. A person seeking asylum may use their mother tongue or the language they understand orally and in writing during their asylum procedure. If the asylum application is submitted orally and the asylum seeker does not speak Hungarian, the determining authority must provide an interpreter speaking the applicant’s mother tongue or another language understood by that person. There may be no need for using an interpreter if the asylum officer speaks the mother tongue of that person or another language understood by them, and the asylum seeker consents in writing to not having an interpreter.

Where the applicant requests so, a same-sex interpreter and interviewer must be provided, where this is considered not to hinder the completion of the asylum procedure.[10] For asylum seekers who are facing gender-based persecution and make such a request, this designation is compulsory.[11] Amendments that entered into force on 1 January 2018 secure the right of the applicant to request a case officer and interpreter of the gender of their choice on grounds that their gender identity is different from the gender registered in the official database.[12] Nevertheless, the HHC is not aware of any gender or vulnerability-specific guidelines applicable to eligibility officers conducting interviews (see Special Procedural Guarantees). The HHC lawyers reported that in the transit zones the NDGAP officers were quite reluctant to appoint an interpreter of the same gender, even if the client requested. The explanation was that it would prolong the procedure significantly and therefore the applicants usually decided not to insist on this request.

The costs of translation, including translations into sign language, are borne by the NDGAP.

There is no specific code of conduct for interpreters in the context of asylum procedures. Many interpreters are not professionally trained on asylum issues. There is no quality assessment performed on their work, nor are there any requirements in order to become an interpreter for the NDGAP. The NDGAP is obliged to select the cheapest interpreter from the list, even though their quality would not be the best.

Moreover, case officers are reluctant to phrase the questions or any information in a non-legalistic way so as to enable the client to understand what the case officer is talking about. If case officers were less formalistic, interpreters would have an easier task in the procedure. Interpreters also sometimes overstep their limits, for example by making comments such as that the asylum seeker comes from different part of a country, because the pronunciation is not used in the area they claim to be from.

Amendments that entered into force on 1 January 2018 introduced a new procedural safeguard regarding the selection of interpreters. The NDGAP is required to take into account the possible differences/contrast in terms of the country of origin and the cultural background of the interpreter and that of the applicant, as indicated by the applicant to the authority.

Both in 2020 and 2021, HHC lawyers reported that the main problem was interpretation through videoconference. The connection was often very poor, sometimes breaking down completely, to the point that the decision had to be communicated to the applicant through a phone call. The sound over the videoconference was of very poor quality, almost not audible, with all the parties in need of speaking loudly in order to be heard. The fundamental difficulty reported by various applicants was that the use of videoconferencing made it more difficult for them to share their reasons for fleeing their countries, given that the interview touches upon very personal issues. In 2022, the HHC lawyers did not report any problems with the interpretation through videoconference. However, it was reported that sometimes the interpreter does not stay in the neutral position and does not translate in an objective manner.

The quality of the interpreters proved to be a challenge in cases where an applicant only spoke one dialect of certain language (e.g. Sorani dialect of Kurdish language). Arabic interpretation can be problematic, when the Arabic speaking interpreter and the Arabic speaking applicant are from different countries and use different vocabulary. Certain asylum seekers would also prefer to have a translator that comes from the same country as them, but this was not always possible (e.g. an Afghan translator would translate for Iranians). It was also difficult to find an interpreter for Eritrean applicants and it happened that on certain occasions that an applicant speaking English would translate to the others. Once a Russian woman claimed the translator did not understand her well enough. At the end of the hearing, she accepted the interview minutes as they were, this was only because she understands Hungarian reasonably well, so at the end the interview was read to her in Hungarian. In another case, there was an understanding problem between a Sudanese woman and the translator in Pidgin English. This did not jeopardize the quality of the hearing, but slowed it down significantly.

Videoconferencing

When the transit zones were in place, interviews were frequently conducted through videoconferencing. The applicant’s approval over the use of videoconferencing is not required. It happened several times that there were several interpreters present in the same room in Budapest and having videoconferences with asylum seekers from the transit zones. On account of the noise, it was hard to hear and to concentrate on what the interpreter was saying. In general, the connection is reported as of poor quality, as it is often not working and everyone has to wait. Sometimes it is hard to understand what the person on the other side is saying, so both parties have to shout. Conducting an interview through a videoconference does not sufficiently protect the personal data and the flight story of an asylum seeker from those who are not entitled to hear it and it therefore raises confidentiality issues, as it is possible to hear the interviews of other applicants at the same time. The videoconference hearing is also very impersonal, it does not help the applicants and beneficiaries to talk about their past and traumas. It is also unnecessary that in order to communicate a decision, a videoconference has to be used, if the case officer is not present at the place of the applicant. It would be easier if the case officer would fax the decision to the NDGAP officer present at the place of the applicant and they would then read it out to the applicant. In 2022, the HHC’s lawyers reported only about one occasion, when there were serious difficulties in setting up the system between NDGAP and the Hungarian Embassy in Belgrade, for an interview conducted as a part of the embassy procedure.

According to the HHC’s experience, the signing of the interview minutes after video-conference interviews is always difficult because first the NDGAP case-officer/translator/legal representative sign the minutes and then it is scanned and sent to the other parties, who then should also sign it and send the scanned copies. The original copies are sent by post, so by the time the parties can get an original copy it takes weeks. In one case, the interview minutes were not signed by the minor applicant following a video interview at the Belgrade embassy, although the case-officer asked the consulate officer to make the minor sign it, so at least the scanned copies would have been provided to the parties. The consular officer, however, did not do so and only contacted the legal representative weeks later, asking the legal representative to help in getting the minor applicant’s signature on the minutes. This posed a logistical difficulty as the UAM was not accommodated in Belgrade, so he needed the help of his Serbian representative to get to the Embassy or sign the minutes otherwise.

Despite the closure of the transit zones, asylum interviews are still occasionally held through videoconferencing, as some of the case officers remain stationed in transit zones. The asylum seeker and their lawyer as well as translator are present at the Immigration office in Budapest, but the interview is done via videoconferencing, because the case officer is in the transit zone.

HHC represents an asylum seeker who was deported prior to the court decision in the appeal against the negative asylum decision. The court quashed the negative decision and ordered to bring the applicant back, to take part in a new asylum procedure, NDGAP is insisting on conducting the interview through the Hungarian Embassy in the applicant’s country of origin. The applicant is hiding and does not wish to travel to the capital in order to attend the hearing at the Embassy, but the NDGAP refuses to conduct the hearing from the applicant’s home.

Recording and transcript

Interviews are not recorded by audio-video equipment.

The questions and statements are transcribed verbatim by the asylum officers conducting the interview. The interview transcript is orally translated by the interpreter to the asylum seeker who will have an opportunity to correct it before its finalisation and signature by all present persons. In 2019, 2020, 2021, the HHC lawyers observed that if they are present, the interview transcripts are always read back to the asylum seeker. However, the HHC did hear of some complaints from people representing themselves that the transcript was not read back to them. No similar complaints were received in 2022.

Based on the adopted amendments to the Asylum Act,[13] as of July 2020 the asylum authority may seize the electronic device of the applicant if the facts of the case cannot not be ascertained without the seizure, or if without it, the establishment of the facts would result in a significant delay, or if without the seizure the success of the procedure would be at stake. In the view of HHC, the new regulation violates the asylum seekers’ right to private and family life (right to correspondence), as it gives the NDGAP unlimited access to all the personal data stored on the device. Furthermore, it is also in breach of the right to an effective remedy, since the decision on the seizure can only be subject to judicial review together with the petition submitted against the decision on the application. This legislation is not necessary as asylum seekers already have an obligation to cooperate with the asylum authority, obligation under which they are obliged to reveal the circumstances of their flight, to provide all the necessary information in order to ascertain their identity. Moreover, they are obliged to hand over all documents in their possession to the case officer. All these obligations, therefore, should be enough to ascertain the facts of the case.[14] The provision is also in breach of Article 4(5) Qualification Directive which does not require the provision of further evidence in case the asylum seeker lacks documents or other evidence substantiating their citizenship, identity and the reasons of fleeing. Finally, the provision is not in line with the legal observations of the UNHCR issued on the Seizure and Search of Electronic Devices of Asylum-Seekers either, by not providing any room for requesting the consent of the applicant prior to the implementation of the measure.[15] HHC is not aware of an application of the provision as of January 2023.

Appeal

A decision must be communicated orally to the person seeking asylum in their mother tongue or in another language they understand. Together with this oral communication, the decision shall also be made available to the applicant in writing, but only in Hungarian. In 2019, 2020, 2021 and 2022, HHC’s lawyers reported that usually the decision is translated to the applicant by an interpreter. Whether the justification is translated depends on the case officer, but it was translated in most of the cases and always if the lawyer is present. Detailed description of the justification was quite rare, although it did happen a few times.

Decisions taken by the NDGAP may be challenged in a single instance judicial review procedure; there is no onward appeal. The Public Administrative and Labour Law Courts, organised at the level of regional courts (at the judicial second-instance level), have jurisdiction over asylum cases, which are dealt with by single judges. Judges are typically not asylum specialists, nor are they specifically trained in asylum law.

Competent court

Szeged Administrative and Labour Court had jurisdiction over the asylum cases in the transit zone until February 2019. From then on, all decisions in asylum cases have been issued in Budapest and therefore the Metropolitan Court of Budapest has jurisdiction to adjudicate the cases from the transit. This however changed again, when the amendments to the Code of Administrative Court Procedure entered into force in April 2020, following which the administrative branches of the regional courts have jurisdiction.

Time limits

The deadline for lodging a request for judicial review is only 8 days.[16] The drastic decrease of the time limit to challenge the NDGAP’s (and before the IAO’s) decision from 15 days to 8, in force since 1 July 2013, has been sharply criticised by UNHCR and NGOs such as HHC, which have argued that this will jeopardise asylum seekers’ access to an effective remedy.[17] For example, the short deadline proved to be problematic when a person receives subsidiary protection and is not sufficiently informed about the opportunity to appeal this and about the benefits refugee status would bring them (e.g. possibility of family reunification under beneficial conditions). Within 8 days, it is sometimes impossible to meet a lawyer and the person might miss the deadline for the appeal.

Keeping with the deadline used to prove especially difficult in the case of unaccompanied children since it requires discussions with a lawyer and the arrangement for the minor’s personal appearance before the asylum authority. Since 2020, unaccompanied minors also suffer from systemic denial of access to the procedure. As a consequence, the HHC is not in a position to assess whether the systemic deficiencies detailed in previous reports would still stand. In 2021, the entire asylum procedure was conducted in the case of only one unaccompanied minor, and the entire process – from entry until the delivery of the decision – lasted 7 months. In 2022, the entire asylum procedure was conducted in the case of only one unaccompanied minor, and the entire process – from entry until the delivery of the decision – lasted 5 months.

The request for judicial review does not have suspensive effect. The Asylum Act does not specifically state that appeals do not have a suspensive effect, but the amendments in 2015 removed the relevant provision, with the motivation that the Asylum Procedures Directive and the right to an effective remedy do not require an automatic suspensive effect, which should instead be requested by the interested party. In practice, the attorneys report different approaches. Some do not request the suspensive effect, while others do. However, the lack of suspensive effect in regular asylum procedures was never an issue in practice. The HHC is not aware of any case under the regular procedure where an alien policing procedure would have been started before the appeal was decided on. On 17 December 2020 the CJEU issued a judgement in the infringement case C-808/18 and ruled that Hungary has not respected the right, conferred by the Asylum Procedures Directive upon any applicant for international protection to remain in the territory of the Member State concerned after the rejection of their application, until the time limit within which to bring an appeal against that rejection or, if an appeal has been brought, until a decision has been taken on it.[18] Despite the judgement, there was no change in legislation.

Section 68(3) of the Asylum Act provides that the court should take a decision on the request for judicial review within 60 days. However, in practice the appeal procedure takes more time, around 3 months or even more, depending on the number of hearings the court holds in a case. A preliminary reference to the CJEU was asked as to whether the above deadline for the judges to decide is compatible with the requirements of an effective remedy. On 5 December 2019, the Advocate General in his opinion concluded that judges must disapply the applicable time limit if they consider that the judicial review cannot be carried out effectively.[19] The CJEU confirmed this position in a judgement on 19 March 2020 (C-406/18).

Hearing

The hearing is only mandatory if the person is in detention. And even this is subject to some exceptions, where:[20]

• The applicant cannot be summoned from their place of accommodation;
• The applicant has departed for an unknown destination; or
• The appeal concerns a subsequent application presenting no new facts.

At the judicial stage, asylum seekers held in the transit zones were not heard if the case was adjudicated by the Metropolitan Court. The reason was that the technical requirements were not met by the court, as the videoconference system was not set up and the court would not want to summon the persons – even if there was a credibility issue – from the transit zones, as that would require transport by the police which they deemed problematic in terms of costs, time, logistics etc. This was extremely problematic as the Metropolitan Court had sole territorial jurisdiction to adjudicate all asylum cases, as mentioned above. HHC is aware of a case from 2020, where the Metropolitan Court judge actually ordered the applicants from the transit zone to be brought to the Court for a hearing. However, the NDGAP filed an objection, claiming that according to the law, due to the mass migration crisis, the hearing could only take place through video conference and that the law does not allow the applicants to be brought to the court. Following that, the judge established that since there is no possibility to conduct a videoconference at the Metropolitan Court, the applicants would not be heard.[21] No issues were reported regarding the hearings in 2022.

Interpreters are provided and paid by the court. For rare languages (e.g., Oromo) there is usually one or two interpreters nationwide and if they travel home, the client has to wait months for an interview.

Hearings in asylum procedures are public. Individual court decisions in asylum cases are published on the Hungarian Court portal.[22] However, personal data – including nationality – of the appellant are deleted from published decisions.

The court carries out an assessment of both points of fact and law as they exist at the date in which the court’s decision is taken (only ex tunc and not ex nunc examination).The court may not alter the decision of the NDGAP; 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 order the NDGAP to conduct a new procedure if necessary.[23] On 29 July 2019, the CJEU delivered its ruling on the question of the compatibility of such a remedy with the right to an effective remedy under Article 47 of the EU Charter (Torubarov judgement).[24] The CJEU clearly stated that courts must substitute their own decision on the merits of an asylum claim where the administrative body had disregarded their earlier decision on the case. This is a landmark decision for asylum seekers in Hungary, who had been locked in a ping-pong game between the asylum authority and the courts. Following the Torubarov judgment, the asylum seeker was granted refugee status by the Hungarian court.[25] Nonetheless, the Torubarov judgment has not been uniformly implemented by the courts. The HHC is aware of a recent case in which the court should have granted international protection based on the principles laid down by the CJEU. Nevertheless, it simply annulled the decision and referred the case back to the NDGAP, without referring to the Torubarov judgment at all.[26] On the other hand, there have also been positive examples in which the court, referencing the Torubarov judgment, granted international protection to the asylum seeker.[27] Therefore, it seems unpredictable, and highly dependent on the presiding judge, whether the conclusions of the CJEU in the Torubarov judgment will be observed.[28]

There were 50 appeals submitted against the decisions of the NDGAP in 2022. [29] The courts issued a total of 41 decisions in asylum cases in 2022.[30] In 7 cases, the courts rejected the appeal of the asylum seekers while in 16 cases the courts annulled the decisions of NDGAP and subsequently, in 13 cases the NDGAP was ordered to conduct a new procedure.[31] In 3 cases, courts terminated the judicial procedure[32] and in 9 cases rejected the appeals as inadmissible.[33]

Legal assistance

Under Section 37(3) of the Asylum Act, asylum seekers in need have access to free legal aid according to the rules set out in the Act on Legal Aid Act or by an NGO registered in legal protection. The needs criterion is automatically met, given that asylum seekers are considered in need irrespective of their income or financial situation, merely on the basis of their statement regarding their income and financial situation.[35]

The Legal Aid Act sets out the rules for free of charge, state-funded legal assistance provided to asylum seekers. Sections 4(b) and 5(2)(d) provide that asylum applicants are entitled to free legal aid if they are entitled to receive benefits and support under the Asylum Act. Section 3(1)(e) provides that legal aid shall be available to those who are eligible for it, as long as the person is involved in a public administrative procedure and needs legal advice in order to understand and exercise their rights and obligations, or requires assistance with the drafting of legal documents or any submissions.

Section 13(b) of the Legal Aid Act also provides that asylum seekers may have free legal aid in the judicial review procedure contesting a negative asylum decision. Chapter V of the Legal Aid Act sets out rules on the availability of legal aid in the context of the provision of legal advice and assistance with drafting of legal documents for persons who are eligible for legal aid.

Section 37(4) of the Asylum Act provides that legal aid providers may attend the personal interview of the asylum seeker, have access to the documents produced in the course of the procedure and have access to reception and detention facilities to contact their client. Furthermore, a modification to the Asylum Act emphasises the right of the legal representative to be present at the personal interview even if the interview is conducted through a closed telecommunication network (i.e. either the translator or the case officer is not present at the same place as the asylum seeker).[36]

Legal aid providers may be attorneys, NGOs or law schools who have registered with the Legal Aid Service of the Judicial Affairs Office of the Ministry of Justice.[37] Legal aid providers may specify which main legal field they specialise in, i.e. whether in criminal law, or civil and public administrative law. As a general rule, beneficiaries of legal aid are free to select a legal aid provider of their own choice. This is facilitated by the legal aid offices around the country, which maintain lists and advise clients according to their specific needs.

Since 2019, following a series of Court rulings,[38] lawyers who are not yet members of the Bar Association can again represent asylum seekers in their administrative proceedings.

HHC attorneys or any other non-government affiliated attorneys do not have access to the open reception centres or detention centres. HHC attorneys can only represent the clients if the asylum seekers explicitly communicate the wish to be represented by the HHC attorney to the NDGAP and sign a special form. Once this form is received by the NDGAP, the HHC attorney can meet the client – accompanied by police officers – in a special room inside the reception centre or detention. Because of this, access to legal aid is seriously obstructed, as free legal advice does not reach everyone, but only those explicitly asking for it.

Upon a subsequent request, the Ministry provided information on statistics for 2022 to the HHC. Accordingly, in 2022, state legal aid in extrajudicial procedures was requested by 3 persons.[39]

For all counties, not listed, there was no state legal aid in 2022. Source: Ministry of Justice, 10 February 2023.

In 2020, all requests were granted, whereas in 2021 one request was rejected and in one case the procedure for state legal aid was terminated. In 2022, 3 requests were granted and 2 rejected. According to the Ministry of Justice, only three persons provided legal aid in asylum cases throughout 2020. The Ministry claimed that it does not have this data for 2021 and 2022.[40]

The low financial compensation for legal assistance providers might be an obstacle for lawyers and other legal assistance providers to engage effectively in the provision of legal assistance to asylum seekers.

In 2021, due to the significant drop in the numbers of asylum seekers, as potential applicants were prevented from accessing asylum in the country, the HHC provided legal counselling in 208 asylum cases. In 2022, the HHC provided legal counselling in 353 asylum cases.

[1] Section 47(2) Asylum Act.

[2] Section 47(3) Asylum Act.

[3] Section 32/G Asylum Act.

[4] Section 32/I Asylum Act.

[5] Information provided by NDGAP on 2 March 2021 and on 7 February 2022.

[6] Section 35/A Asylum Act.

[7] Section 43 Asylum Act.

[8] Information provided by NDGAP, 3 February 2020.

[9] Information provided by NDGAP on 2 March 2021 and on 7 February 2022.

[10] Section 66(2) Asylum Decree.

[11] Section 66(3) Asylum Decree.

[12] Section 66(3a) Asylum Decree.

[13] Section 32/Z Asylum Act.

[14] Section 5(3)-(4) Asylum Act.

[15] See UN High Commissioner for Refugees (UNHCR), UNHCR Preliminary Legal Observations on the Seizure and Search of Electronic Devices of Asylum-Seekers, 4 August 2017, available at: https://bit.ly/37FIqOj.

[16] Section 68 Asylum Act.

[17] UNHCR, UNHCR Comments and Recommendations on the Draft modification of certain migration-related legislative acts for the purpose of legal harmonisation, 12 April 2013, available at: https://bit.ly/3aiJvaP, 14.

[18] CJEU, Judgment of the Court (Grand Chamber) of 17 December 2020, European Commission v Hungary, C-808/18, 17 December 2020, available at: http://bit.ly/3m0ffN4.

[19] Opinion of advocate general Bobek (CJEU), Case C-406/18, PG v.  Bevándorlási és Menekültügyi Hivatal, 5 December 2019, available at: http://bit.ly/3SoaIA2.

[20] Section 68(3) Asylum Act.

[21] Metropolitan Court, 17.K.33.700/2019/10, 3 January 2020.

[22] Asylum cases published on the Hungarian court portal are available in Hungarian at: http://bit.ly/1IwxZWq.

[23] Section 68(5) Asylum Act.

[24] CJEU, Case C-556/17, Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal, 29 July 2019, available at: http://bit.ly/3SoaIA2.

[25] HHC, ‘The man who defeated the Hungarian asylum system. Refugee status granted to Russian asylum-seeker after six years’, available at: http://bit.ly/3IPm3pW.

[26] 11.K.700.169/2022/12, 26 April 2022. More details on the procedure can be found here: http://bit.ly/3MUpdez.

[27] For example, judgment no. 17.K.33.123/2019/8 issued by the Metropolitan Administrative and Labour Court on 9 December 2019, granting subsidiary protection to the applicant, after the NDGAP in the fifth subsequent procedure refused to grant him the status despite the clear instruction given by the court in the previous judicial review procedures.

[28] HHC, Implementing judgments in the field of asylum and migration on odd days, 17 October 2022, https://bit.ly/3IKsB9s.

[29] Information received from the NDGAP by the HHC on 13 February 2023.

[30] The number presumably refers not only to asylum cases, but also to judicial cases following temporary protection procedures, as according to the National Office for Judiciary, they do not have a more distinguished break-down as per case types. Information received from the National Office from Judiciary by the HHC on 26 January 2023.

[31] Information received from the NDGAP by the HHC on 13 February 2023.

[32] The number presumably refers not only to asylum cases, but also  to judicial cases following temporary protection procedures, as according to the National Office for Judiciary, they do not have a more distinguished break-down as per case typesInformation provided by the National Office for the Judiciary on 26 January 2023.

[33] ibid.

[34] This refers both to state-funded and NGO-funded legal assistance.

[35] Section 5(2)(d) Legal Aid Act.

[36] 43(5) Asylum Act, adopted by the Act CXXXIII of 2018 and in effect since 1 January 2019.

[37] Chapter VIII Legal Aid Act.

[38] 33.K.32.469/2018/5. judgment dated on 30 August 2018; 45.K.30.841/2018/8. judgment, dated on 14 September 2018; 45.K.30.838/2018/9. Judgement dated on 14 September 2018; 45.K.30.845/2018/9. Judgement dated on 14 September 2018.

[39] Information provided by the Ministry of Justice, 10 February 2023.

[40] Information provided by the Ministry of Justice, 21 May 2021 and 5 April 2022 and 10 February 2023.