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
|4, 10(3), 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. The automatic rulings of the Hungarian asylum authority when delivering exclusion decisions on national security grounds violates the requirement of individual assessment, including the examination of proportionality.|
|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||Due to the binding nature of the security agencies’ opinion over the asylum authority, a decision on an exclusion is ultimately made by the security agencies. This diverges from the requirement that the determining authority is responsible for the examination of the recognition, refusal or withdrawal of international protection.|
|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 their 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.
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 pushback 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 detention centres is hindered.|
|10(3)(d)||Section 78A Asylum Decree||As no criteria are set out in law or established by administrative practice indicating when a medical examination for the purpose of drafting a medical report should be carried out ex officio by the asylum authority, it seems that the newly introduced amendment on this issue could be interpreted that it is up to the applicant to undergo a medical examination on their own initiative and at their own expense in order to investigate any signs of previous persecution or serious ill-treatment.|
|11(2)||When an applicant is considered to be a threat to national 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.|
|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 their age, they 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).|
|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.|
|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 national 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.
The Hungarian law does not provide any reasoning as to the national security risk allegedly presented by the person concerned. This violates the provisions of the Procedures Directive ensuring the enforcement of the right to an effective remedy and, in particular, the rights of the defence.
|46(5) and (8)||Sections 45(5)-(6) and 53(2) Asylum Act||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.|
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.|
|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.|
|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.|
|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.
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.
|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(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.|
|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.|
|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.|
|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 or immigration detention.|
|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.|
|28||No appropriate monitoring of reception or detention centres 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 their 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.
|Council Implementing Decision 2022/382||Article 2(2)||Section 2(2) and 2(3) Government Decree 86/2022. (III. 7.)||While the Council Decisions prescribes ‘adequate protection’ in lieu of applying the Council Decision in case of stateless or third country nationals other than Ukrainians who cannot return to their country of origin but possess a valid long-term residence permit in Ukraine, the Govt. Decree prescribes the task of managing the migratory situation of such individuals under the aliens policing authority as opposed to the asylum authority. Since it is not possible to apply for asylum in Hungary, these persons are only issued a 30-day temporary residence permit on humanitarian grounds. The 30-day temporary residence permit cannot be regarded as any form of protection as it merely allows the holder of the permit to remain on the territory.|