Transposition of the CEAS in national legislation
The following section contains an overview of incompatibilities in transposition and implementation of the CEAS in national legislation:
|Directive||Article||Domestic law provision||Non-transposition or incorrect transposition|
Recast Qualification Directive
|14(4)(a) and 17(1)(d)||The withdrawal of refugee status or subsidiary protection or exclusion from such status is based on an unreasoned decision that is based solely on an automatic reference to a binding position of a special authority establishing a threat to national security and
which is also without justification and which does not allow for derogations.
|14(4)(b), 14(5), 17(1)(b)||8(5)||Persons committing a “(particularly) serious crime” can be excluded from both types of international protection based on the same provision (Section 8(5) of the Asylum Act). This is contrary to the Qualification Directive. The latter requires the crime to be “particularly serious” (Article 14(4)(b) read together with Article 14(5)) with regard to refugees, and to be “serious” with regard to beneficiaries of subsidiary protection status (Article 17(1)(b)).
The condition “to constitute a danger to the community” from Article 14(4)(b) od the Qualification Directive is not transposed as a cumulative condition in Section 8(5) of the Asylum Act.
|14(6)||8(4), 8(5)||The rights enshrined in Article 14(6) of the Qualification Directive are not provided to those refugees who are excluded from protection based on Section 8(4) and 8(5) of the Asylum Act.|
Recast Asylum Procedures Directive
|4(3)||According to Article 4(3), Member States shall ensure that the personnel of the determining authority are properly trained and persons interviewing applicants shall also have acquired general knowledge of problems, which could adversely affect the applicants’ ability to be interviewed, such as indications that the applicant may have been tortured in the past. No similar provision could be located in the Hungarian transposing measures (paras 220.127.116.11 and 18.104.22.168 of Joint order No. 9/2010 of the Minister of the Interior and the Minister of Public Administration and Justice).|
|6(1), 6(2) and 9||EU law obliges Hungary to ensure that every person in need of international protection has effective access to the asylum procedure, including the opportunity to properly communicate with the competent authorities and to present the relevant facts of his or her case. EU law also provides that asylum seekers should – as a general rule with very strict exceptions – be provided with the right to stay in the Member State’s territory pending a decision by the competent asylum authority. Under the amended Asylum Act and the Act on State Border, the Hungarian police automatically pushes out from Hungarian territory any irregular migrant apprehended anywhere on the territory, regardless of eventual protection needs or vulnerabilities, denying any opportunity to file an asylum claim.
Further, on, extremely limited acceptance into the transit zone is incompatible with Article 6(2) of the recast Asylum Procedures Directive.
Finally the new asylum system introduced by Transitional Act, by which almost no-one can apply for asylum in Hungary (not even if legally present) is clearly against Article 6 of the Asylum Procedures Directive.
|6(1) second sub-paragraph||Section 35(1)(b)
|The provision foresees that registration shall take place “no later than six working days” after the application is made, if the application for international protection is made to other authorities which are likely to receive such applications, but not competent for the registration under national law. As referred to in Section 35(1)(b) Asylum Act, if an application for international protection was submitted to any other authority, asylum procedure shall commence from the registration of the application by the refugee authority. However, no provision regarding the timeframe of the registration by the refugee authority can be located in the Hungarian implementing measures. Besides, due to the push back legislation and new asylum system introduced in Transitional Act, the applications are not accepted at all.|
|The Asylum Act provides that in the case of a crisis situation caused by mass migration there is no place for initiating the designation or designating a case guardian to an unaccompanied minor. This is not in line with the Directive provision, which obliges Member States to ensure that the appropriate bodies have the right to lodge an application for international protection on behalf of an unaccompanied minor.|
|8(2)||Access of NGOs to the transit zones and detention centres is hindered.|
|11(2)||When an applicant is considered to be a threat to nat. security or public order by a Security agency, who suggests his/her exclusion, such an opinion contains no reasoning and the opinion is binding for the NDGAP.|
|12(1)(d) and 12(2)||The applicant nether his/her representatives have access to the information (not even the summary), why the applicant is considered a threat to nat. security or public order.|
|15(2)||Confidentiality during the interviews was not always ensured in the transit zones, when because of the heat the doors of a container were opened and the policeman standing in front of the door could hear everything, or asylum authority officers who were not conducting the interview would be coming in and going out during the interview.|
|15(3)(c)||Interpreters are not always adequate.|
|23(1)(b)||The applicants who are declared to be a risk to national security or public order do not get access to not even an essence of the data based on which the risk is established, as the data is classified. The national law does not guarantee that their rights of defence are respected.|
|24(1)||Section 3 Asylum Decree||The Directive provision requires Member States to assess within a ’reasonable period of time’ after an application for international protection is made whether the applicant is an applicant in need of special procedural guarantees. The Hungarian law provides that the refugee authority shall assess whether the person seeking international protection is in need of special treatment or not. However, there is no formal identification mechanism in place and the ’reasonable period of time’ is not implemented by the Hungarian law. Therefore, it is not exactly clear when the examination process is carried out by the refugee authority and without this time guarantee, an asylum seeker belonging to vulnerable group may lose the ability to benefit from the rights and comply with the obligations provided for an ‘applicant in need of special procedural guarantees’. Furthermore, there is a huge concern on how the refugee authority examines the applicant as the employees of the refugee authority are neither doctors nor psychologists (assumed based on Section 3(2) Asylum Decree). Hence, it is not clear how and in what basis they can make judgment on whether an applicant is a victim of torture, rape or suffered from any other grave form of psychological, physical or sexual violence. Based on Section 3(2) of the Asylum Decree, the refugee authority ‘may’ use the assistance of a medical or psychological expert, therefore it is clear that people working for the refugee authority are not medical or psychological experts.|
|24(3), first sub-paragraph||Section 29 Asylum Act; Sections 33(1) and 35(4) Asylum Decree||These provisions conform to Article 24(3), first subparagraph of the Directive. However, it should be mentioned that the Hungarian transposing provision does not determine detailed rules on how and in what form adequate support shall be provided to the persons in need of special treatment. The Hungarian law only ensures separated accommodation in the reception centre for persons seeking international protection in cases justified by their specific individual situation as referred to in Article 33(1) of the Decree.|
|24(4)||The transposition of Article 24(4) into Hungarian law could not be located.|
|25(1), first sentence||Section 46(f)(fa)
|The Directive provision requires Member States to take measures as soon as possible to ensure that a representative represents and assists the unaccompanied minor to enable him or her to benefit from the rights and comply with the obligations provided for in the recast Asylum Procedures Directive. Nevertheless, the Hungarian law provides that in the case of a crisis situation caused by mass immigration there is no place for initiating the designation or designating a guardian ad litem to a 14-18 years old unaccompanied minor. This is not in alignment with the Directive provision.|
|25(3)(a)-(b)||The transposition of this provision into Hungarian law could not be located.|
|25(5), first sub-paragraph||Section 44(1) Asylum Act; Section 78(1)-(2) Asylum Decree||Based on Section 78(2) of the Asylum Decree, if the person seeking recognition debates the outcome of the expert examination regarding his or her age, he or she may request a new expert to be designated by the refugee authority. In case of contradicting expert opinions, it is up to the refugee authority to decide whether to appoint another expert or to determine which expert opinion shall be used regarding the age of the applicant. This provision is not in alignment to the Directive provision as if Member States still have doubts concerning the applicant’s age after the age assessment, they shall assume that the applicant is a minor.|
|25(5), second sub-paragraph||The transposition of this provision into Hungarian law could not be located. In practice, the age assessment methods are definitely not adequate.|
|25(6)||Sections 51(7) 71/A(7) Asylum Act||Article 51(7) of the Asylum Act incorrectly transposes the provision, as Hungarian law does not exclude unaccompanied minors from the scope of accelerated procedure, while the provision of the Directive permits unaccompanied minors to be channelled into an accelerated procedure only in cases specified in Article 25(6)(a)(i)-(iii).|
|26||Asylum seekers were automatically detained in transit zones and no speedy judicial review was available.|
|28(2)||The Hungarian legislation does not provide for the option of re-opening a discontinued case, as foreseen in Article 28(2) of the recast Asylum Procedures Directive. An asylum seeker is obliged to submit a new application, which is considered a subsequent application as per Article 40 of the recast Asylum Procedures Directive.|
|28(3)||See Article 18(2) Dublin III Regulation further below.|
|The inadmissibility ground in Section 51(2)(f) of the Asylum Act is not compatible with current EU law as it arbitrarily mixes rules pertaining to inadmissibility based on the concept of “safe third country” and that of “first country of asylum”. Article 33(2) of the recast Asylum Procedures Directive provides an exhaustive list of inadmissibility grounds, which does not include such a hybrid form.|
|37-38||Sections 51(2)(e), 51(4)(a)-(b); Sections 1-2 Government Decree 191/2015||These have not been transposed into Hungarian law in a conform manner, due to the following reasons:
– According to Sections 1-2 Government Decree 191/2015 (entering into force on 1 August 2015), candidate states of the European Union qualify as a safe country of origin and as a safe third country. The Hungarian government adopted a national list of safe third countries, which includes – among others – Serbia (candidate states of the European Union). The automatic reliance on this Decree and inadequate assessment of whether Serbia is a safe third country was found in violation of Article 3 of the Convention in Ilias and Ahmed v. Hungary case.
– Hungary has not 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 on Asylum. Nor is any explanation or justification provided in Government Decree 191/2015 as to how the Government arrived at the conclusion that each country listed qualifies as safe.
The criteria listed in Article 38(1) of the recast Asylum Procedures Directive are not applied.
|45(1), 45(3) and 45(5)||When withdrawal is based on the risk to nat. security or public order, the applicant does not get to know the reasons for such decision.|
|The Asylum Act offers no possibility to appeal against the termination of the procedure.|
|46(3)||Section 53(4) Asylum Act||The judge has to take a decision in 8 days on a judicial review request against an inadmissibility decision and in an accelerated procedure. 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. 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.|
|46(5) and (8)||Sections 45(5)-(6) and 53(2) Asylum Act, Section 5 Gov. decree 570/2020. (XII. 9.)||Based on the Directive provision, Member States shall allow the applicant to remain in the territory pending the outcome of the procedure to rule whether or not the applicant may remain on the territory, laid down in paragraphs 6 and 7 of Article 46 of the Directive. Nonetheless, the Hungarian law does not ensure suspensive effect on the enforcement of the refugee authority’s decision as set out in Section 53(2) of the Asylum Act (with the exception of decisions made under Sections 51(2)(e) and 51(7)(h)). Suspensive effect needs to be explicitly requested. Further on, for asylum seekers expelled based on nat. security grounds the decree provides no right to request a suspensive effect.|
Recast Reception Conditions Directive
|2(k), 21||Section 2(k) Asylum Act||The definition of “applicant with special reception needs” as referred to in Article 2(k) of the recast Reception Conditions Directive is not correctly transposed into the Hungarian legal system as in the definition of ‘person in need of special treatment’ victims of human trafficking, persons with serious illnesses, and persons with mental disorders are not mentioned.|
|3||The recast Reception Conditions Directive was not fully applied in the transit zones. This is against the Article 3 of the Directive, which provides that the Directive should apply also at the border.|
|8(1)||Automatic detention of asylum seekers in the transit zone was clearly not in line with the Directive.|
|The Asylum Act does not provide the factors that need to be taken into account during the individual assessment of the asylum seeker. No clear criteria can be located in the Asylum Act as regards the individual assessment, therefore it is the sole discretionary power of the refugee authority to detain an applicant instead of using other measures securing availability. Detention orders lack individualisation and alternatives are not assessed automatically.
By automatically detaining every asylum seeker (except unaccompanied minors below 14 years of age, the Hungarian legislation was clearly not in line with the Reception Conditions Directive.
|8(4)||Sections 2(l), 31/A(2) and 31/H(1) Asylum Act||According to the Directive provision, Member States shall ensure that the rules concerning alternatives to detention are laid down in national law. The Hungarian national law lists the possible alternative measures, however there is a lack of a detailed regulation on the application of alternative measures. Clear criteria for the application of each alternative measure should be laid down in the Asylum Act for the purpose of legal clarity. There are no alternatives to the detention in the transit zones.|
|9(1) and (5)||Sections 31/A(6)-(7) and 31/A(8) Asylum Act||According to the Directive provision, an applicant shall be detained only for as short period as possible. Despite this fact, the Asylum Act foresees an excessively long maximum period for the judicial prolongation of detention (60-day interval), so in practice 60 days shall pass until the judicial review of detention regardless of the situation e.g. mental state of the applicant concerned in the detention centre. This 60-day interval cannot be regarded as “a short period”. Practice so far shows that the asylum authority, for reasons of administrative convenience, automatically requests the court to prolong detention for the maximum period of 60 days. Furthermore, it should be mentioned that asylum detention may last for thirty days in case of a family with minors according to the Hungarian law.
Detention in the transit zone lasted until the end of asylum procedure, which was definitely not for the shortest time possible.
The detention of families with children is a form of discrimination on the ground of the family status of the child as detention of unaccompanied/separated asylum-seeking children are prohibited by Hungarian law, whereas the same national law provides a ground for detention of children who are accompanied by a family member. This is contrary to international human rights standards, in particular Article 2(2) of the UN Convention on the Rights of the Child.
All families with children as well as unaccompanied minors above the age of 14 were automatically detained in the transit zones for an indefinite period of time.
|9(2)||Asylum seekers detained in the transit zones received no detention order.|
|9(3), (4) and (5)||There was no possibility to appeal against the placement to the transit zones until the final decision in the asylum procedure is issued. The applicants were not informed of this possibility, since it does not exist.|
|11(1), second sub-paragraph||Section 37/F(2) Asylum Act; Sections 3(4)-(6) and 4 Ministry of Interior Decree 29/2013||The Directive provision requires Member States, if vulnerable persons are detained, to ensure regular monitoring and adequate support taking into account their particular situation, including their health. Article 4 of Decree 29/2013 ensures appropriate specialist treatment of the injuries caused by torture, rape or other violent acts to any detained person seeking recognition based on the opinion of the physician performing the medical examination necessary for admission. Nevertheless, the wording of Article 4 of Decree 29/2013 excludes from the scope of vulnerable persons: minor, elderly or disabled person, pregnant woman, single parent raising a minor child, victims of human trafficking, persons with serious illnesses, and persons with mental disorders. No systematic, specialised and state-funded medical care and monitoring is ensured for victims of torture or other forms of violence in asylum or immigration detention.|
|11(2) and (3)||Minors were not detained as a last resort, but automatically if they were above 14 years of age or with a family. Their best interest was not taken into consideration and there were no activities appropriate to their age for teenage unaccompanied minors in the transit zones.|
|11(5), first sub-paragraph||Section 31/F(1) Asylum Act; Section 36/D(3) Asylum Decree; Section 3(8) Decree 29/2013||The Directive provision requires Member States, where female applicants are detained, to ensure that they are accommodated separately from male applicants, unless the latter are family members and all individuals concerned consent thereto. Nevertheless, the Hungarian law does not require all individuals’ concerned consent to accommodate family members together in detention centres, it is automatic.|
|14(1)||Education provided in transit zones definitely did not meet the standards required by the Directive.|
|15||This Article was clearly breached with regard to the asylum seekers in the transit zone, since only asylum seekers that were not held in the transit zones or in asylum detention centres have a right to work after 9 months.|
|17(2)||The conditions in the transit zone were clearly not adequate.|
|18(2)(c)||Several professional NGOs active in the field of asylum for decades are not allowed to enter the transit zones or asylum detention centres.|
|19(2)||No systematic, specialised and state-funded medical care and monitoring is ensured for victims of torture or other forms of violence in asylum or immigration detention or in the transit zones.|
|20(5)||Not providing food to the subsequent asylum applicants detained in the transit zone was not in line with Article 20(5) of recast Reception Conditions Directive, according to which even in case of withdrawal or reduction of material conditions, the authorities shall ensure a dignified standard of living for all applicants.|
|22||There is no official protocol and effective identification mechanism in place to systematically identify torture victims and other vulnerable asylum seekers in the framework of the asylum procedure or when ordering or upholding detention, in breach of the Directive.|
|23||Placement of minors in the transit zone was not in compliance with this provision. No rehabilitation services are provided.|
|24(1)||The system of temporary guardians appointed in the transit zones was not in line with this provision.|
|24(2)||Transit zones were not an appropriate accommodation for unaccompanied minors.|
|25(1)||No systematic, specialised and state-funded medical care and monitoring is ensured for victims of torture or other forms of violence in asylum, immigration detention or transit zones.|
|25(2)||In breach of Article 25(2) of the recast Reception Conditions Directive, there is no systematic training for those who order, uphold or carry out the detention of asylum seekers regarding the needs of victims of torture, rape or other serious acts of violence.|
|26||Domestic law does not provide any legal remedy to complain against the conditions in the transit zone.|
|28||No appropriate monitoring of transit zones is ensured.|
|Regulation (EU) No 604/2013
Dublin III Regulation
|18(2)||Persons who withdraw their application tacitly or in writing cannot request the continuation of their asylum procedure upon return to Hungary; therefore, they will have to submit a subsequent application and present new facts or circumstances. Although the new asylum system in force does not even foresee the possibility to submit an asylum application for a Dublin returnee. This is not in line with the second paragraph of Article 18(2) of the Dublin III Regulation, as when the Member State responsible had discontinued the examination of an application following its withdrawal by the applicant before a decision on the substance has been taken at first instance, that Member State shall ensure that the applicant is entitled to request that the examination of his or her application be completed or to lodge a new application for international protection, which shall not be treated as a subsequent application as provided for in the recast Asylum Procedures Directive.
The asylum procedure would also not continue, when the returned foreigner had previously received a negative decision and did not seek judicial review. This is problematic when the NDGAP issued a decision in someone’s absence. The asylum seeker who is later returned under the Dublin procedure to Hungary will have to submit a subsequent application and present new facts and evidence in support of the application, although according to the new asylum system a Dublin returnee cannot even submit an asylum application in Hungary. According to Article 18(2) of the Dublin III Regulation, the responsible Member State that takes back the applicant whose application has been rejected only at the first instance shall ensure that the applicant has or has had the opportunity to seek an effective remedy against the rejection.
|Article 28 of the Dublin Regulation provides that the person shall no longer be detained when the requesting Member State fails to comply with the deadlines for submitting a take charge or take back request or where the transfer does not take place within the period of six weeks referred to in the third subparagraph. Despite this fact, the Asylum Act does not exclude Dublin detainees from the scope of Article 31/A(6) of the Asylum Act which means that the maximum length of detention may reach 6 months in their case as well.|