Regular entry through transit zones
The barbed-wire fence along the 175 km long border section with Serbia was completed on 15 September 2015. A similar barbed-wire fence was erected a month later, on 16 October 2015, at the border with Croatia. So-called “transit zones” have been established as parts of the fence. Despite all of the measures taken with the explicit aim of diverting refugee and migrant flows from the Serbian border, this border section continues to be the fourth biggest entry point to Europe.
Until 26 May 2020, asylum could only be sought inside the transit zone (for detailed description of the practice see AIDA 2020 Report).
On 14 May 2020, the CJEU delivered its judgment in the joint cases of C-924/19 PPU and C-925/19 PPU, ruling among others that the automatic and indefinite placement of asylum-seekers in the transit zones at the Hungarian-Serbian border qualifies as unlawful detention. A week after the judgment was delivered, the government shut down the transit zones and announced that it will introduce a new asylum system (described in the following section). Transit zones therefore no longer function as places where asylum applications could be made and where asylum seekers would be held.
On 26 May 2020, the government issued a government decree that introduced a new asylum system, the so called “embassy procedure”.  This new system was later included in the Transitional Act, that entered into force on 18 June 2020. The system was first in place until 31 December 2020, with possibility of prolongation. Such prolongation already happened and the system is currently in force until 31 December 2022.
According to the new system, those wishing to seek asylum in Hungary, with a few exceptions noted below, must go through the following steps prior to being able to register their asylum application:
- A foreigner must personally submit a “statement of intent for the purpose of lodging an asylum application” (hereafter: statement of intent) at the Embassy of Hungary in Belgrade or in Kyiv.
- The Embassy must then forward the “statement of intent” to the NDGAP in Budapest, which shall examine it within 60 days. During this period the NDGAP might remotely interview the foreigner.
- The NDGAP should make a proposal to the Embassy whether to issue the ‘would-be’ asylum seeker a special, single-entry permit to enter Hungary for the purpose of lodging an asylum application.
- In case the permit is issued, the would-be asylum-seeker must travel on her/his own to Hungary within 30 days, and upon arrival, immediately avail her/himself to the border guards.
- The border guards must then present the ‘would-be’ asylum-seeker to the asylum authority within 24 hours.
- The ‘would-be’ asylum-seeker can then formally register her/his asylum application with the NDGAP.
Only people belonging to the following categories are not required to go through the process described above:
- Beneficiaries of subsidiary protection who are staying in Hungary.
- Family members of refugees and beneficiaries of subsidiary protection who are staying in Hungary.
- Those subject to forced measures, measures or punishment affecting personal liberty, except if they have crossed Hungary in an ‘illegal’ manner.
It is therefore clear that anyone who arrives at the border with Hungary, anyone who enters Hungary unlawfully and anyone who is legally staying in Hungary and does not belong to the three categories mentioned above, cannot apply for asylum in Hungary.
As regards the procedure at the embassy, the law does not clarify the criteria to be considered by the NDGAP in deciding on such applications. Those wishing to submit their statement of intent must first secure an appointment at the embassy. There is no clear procedure on how this could and should be arranged. According to the HHC’s knowledge, people are regularly turned away at the embassy when attempting to lodge their “statement of intent” and are informed that they are placed on an undefined “waiting list” to get an appointment to lodge the intent. The HHC is aware of several cases where applicants waited over 6 months to get an appointment, while some received a date within weeks. Some also miss the appointment, as they do not speak English and the information about the appointment is sent to them in English by e-mail, or they are not used to use emails, or they were not able to arrive to the appointment, as they couldn’t arrange their travel, since they were placed in a reception centre further away from Belgrade. The “statement of intent” form has to be filled in English or Hungarian, for which no interpretation or legal assistance is provided. In 2020, 26, whereas in 2021, according to the NDGAP 53 and as per the Ministry of Trade and Foreign Affairs 55 statements of intent were submitted at the Embassy of Hungary in Belgrade. Similar issues on the Embassy procedure in Belgrade have been reported in the AIDA report on Serbia.
Only one family’s “statement of intent” was assessed positively in 2020 and the NDGAP granted them a single-entry permit in order to apply for asylum in Hungary, they were later granted refugee status. All other applications were rejected in an email, by one paragraph stating that the NDGAP decided not to suggest the issuance of a single-entry permit. The decision therefore bears no reasoning and the law does not foresee any remedy. This clearly denies asylum seekers access to a fair and efficient asylum procedure as it raises fundamental concerns over the possibility of a substantive assessment without appropriate procedural guarantees being in place as required by international and EU law. In 2021, 8 persons (4 persons in April and 4 in September) were granted a single-entry permit in order to apply for asylum in Hungary.
The HHC represents a number of rejected people in domestic court procedures. Common to all the cases is that courts found that the lack of the most basic procedural guarantees, such as the disclosure of the reasoning behind the rejection decision, constitutes such a serious violation of procedural requirements that the asylum authority must conduct a new procedure at the end of which it must provide detailed justification of its decision. The courts also found that although the Transitional Act remains silent on this, given the nature of the procedure and the effect of the outcome, the notification of the decision is in fact an administrative act and as such, can be subject to judicial review. However, this is not enshrined in the Transitional Act, and applicants are not informed by the Embassy of these developments in Hungarian case law. The asylum authority to date refuses to implement these judgments. Instead, using a loophole created recently to channel out sensitive cases from the ordinary court system, it requested the Constitutional Court (CC) to quash the first such court decision. While that case is pending at the CC, despite it not having an automatic suspensive effect, and despite the CC’s rejection of the request for suspensive effect, the asylum authority refuses to implement this particular judgment, and the subsequent ones.
The government aims to justify severe restrictions to access to protection incompatible with domestic, EU, and international law with the pretext of minimising exposure to COVID-19. Nevertheless, this system, besides all its human rights concerns, actually increases the risk of infection, by generating unnecessary cross-border movements.
UNHCR expressed its criticism over the new system, and on 30 October 2020 the European Commission decided to launch an infringement procedure against Hungary. This represents the fifth infringement procedure related to asylum policies from the Commission against Hungary since 2015. On 15 July 2021, the Commission decided to refer Hungary to the CJEU for unlawfully restricting access to the asylum procedure in breach of Article 6 of the Asylum Procedures Directive (APD), interpreted in light of Article 18 of the Charter.
Although the vast majority of irregularly staying third country nationals get automatically pushed out of Hungary to Serbia in a summary procedure, there have been some rare exceptions, such as the cases of unaccompanied minors who were injured when crossing the border – e.g. fell off the border fence or were beaten by the Police or military so severely that they needed to be hospitalised. For them, a guardian was appointed and following their release from the hospital, they were placed in a children’s home in Fót, near Budapest.
In their case, the guardian could contact the embassy in Belgrade and ask for an appointment to submit the statement of intent. In such cases, the appointment was given within a reasonable time. However, it normally still took in around 1,5 – 2 months on average for the guardian to arrange for their travel to Belgrade. Even when the embassy showed flexibility and accepted the statement of intent to be submitted in the Hungarian consulate in Subotica (near the border), this time frame remained the same. This delay is mainly due to the fact that when appointed, guardians need to arrange for a meeting with the child with an interpreter and a legal representative, then must arrange for their travels. Given that, in the experience of the HHC, relevant guardians are often responsible for around 30-35 children at the same time, the task is particularly challenging.
According to the Child Protection Act, only guardians working at TEGYESZ (Child Protection Guardian Services of Budapest) may be appointed to be guardians of unaccompanied children. The Implementation Decree to the Child Protection Act contains an exhaustive list of the necessary qualifications a person needs to possess in order to be able to become a guardian. For instance, they need to hold a degree (or be certified in) one of the following: law, public administration manager, administration manager, social work, pedagogy (except for religious studies), psychologist or mental hygiene, child protection counsellor, family advisor holding a legal certificate (not a law degree), district nurse, theologian, teacher of religious studies, pastoral advisor.
When the guardians did submit the statement of intent, the embassy forwarded it to the asylum authority in a speedy manner, and the asylum authority invited the minor and the guardian to formally submit the asylum application within a couple of day.
What was mentioned above, however, should in no way be understood in the sense that unaccompanied minors are, as a rule, exempted from pushbacks, as such procedure was applied only in a handful of cases in 2021. At the time of writing, only one case resulted in a favourable decision. Unaccompanied and separated children suffer from the systemic denial of access to the territory and procedure as much as adults. Practice shows that it is the level of their injuries upon irregular entry, as opposed to a child-focused approach, which determines their fate following interception by the authorities near the border.
The following case clearly illustrates the insufficiency of the system. In September 2021, a Syrian unaccompanied minor arrived in Hungary. He climbed through the fence on the Serbian border together with a small group of other asylum seekers. When climbing up on the second fence on the border, he was apprehended by the Police. He told the HHC staff that a policeman pushed him to the dirt with excessive force and hit him several times with a metal baton. Severely injured, he was taken to a hospital where he stayed for several days. After being released, he was not pushed back to Serbia, but instead taken to the children’s home housing unaccompanied asylum-seeking migrants. When arriving to the children’s home, he was frightened, traumatised and extremely angry. He wanted to seek protection, but also wanted justice by pressing charges against the police officers beating him up so badly at the border. However, he needed a legal guardian to be able to do anything. When his guardian was appointed to him, they could not immediately meet. Guardians are overworked, and there is not enough of them. His guardian was no exception: despite the best efforts, he still had to wait around 2 weeks, a long time for a child, to meet his guardian. Applying for asylum in Hungary is no easy task. The general rule is that a statement of intent to seek asylum must be submitted first at Hungary’s embassy in Belgrade or Kyiv. For unaccompanied minors who miraculously avoid a pushback, this means that their statement of intent form must be brought to Serbia by their guardian. This cannot be done by post, email, fax or anything else: the guardian, who often is in charge of 30-40 children at the same time, must travel hundreds of kilometres just to submit a few sheets of paper. It must be said that the embassy staff is flexible enough to meet them halfway at the Hungarian consulate in Subotica. The child entered Hungary on 10 September and his intent form was finally submitted on 19 November. It was accepted by the asylum authority on 26 November. In the meantime, he was in a legal limbo. He did not have access to free healthcare for the repeated hospital visits he needed to recover from the violence he suffered at the border. After his asylum interview on 2 December (nearly three months after entering Hungary), he decided to leave Hungary for good. He absconded from the children’s home and decided to move on in an irregular manner. What normally would have been an easy administrative task – registering the asylum claim of a child – took two months and one international trip. In the meantime, the child was kept in an uncertain legal limbo, which caused him further trauma.
Irregular entry and police violence
Irregular entry into Hungary through the border fence is punishable by actual or suspended terms of imprisonment of up to ten years – and/or the imposition of an expulsion order. The criminal procedure is not suspended when the defendant has made an asylum application during the court hearing, which could have permitted consideration by the court of a defence under Article 31 of the 1951 Refugee Convention. Motions requesting suspension of the criminal proceedings that were submitted by the defendants’ legal representatives were systematically rejected by the court on the grounds that eligibility for international protection was not a relevant issue to criminal liability. Individuals who made an asylum application in court were only referred to the former IAO after being convicted and sentenced to expulsion.
While their asylum applications have suspensive effect, and a “penitentiary judge” can impose a prohibition on enforcement of a court sentence of expulsion where the individual concerned is entitled to international protection, that prohibition does not annul the penal sentence, let alone the conviction. UNHCR thus considers that Hungary’s law and practice in relation to the prosecution of asylum seekers for unauthorised crossing of the border fence is likely to be at variance with obligations under international and EU law.
The criminalisation of illegal entry targeting asylum seekers ceased to be of relevance with the 5 July 2016 entry into force of the “8-km rule” discussed below. Between 15 September 2015 and 10 July 2016, over 2,800 criminal procedures started at the Szeged Criminal Court under the Criminal Code for illegally crossing the border fence. In 2,843 cases, the decisions became final. Since 10 July 2016, only seven cases have been tried for “illegally crossing the border fence”. In 2017, no such case was reported. The HHC was not aware of any case between 2018 and 2020 and the National Office for the Judiciary (NOJ) did not provide any information in this regard, as they did not have relevant statistics. In contrast to that, the NOJ reported that there were 5 persons convicted for ‘illegally crossing the border fence’ in 2021. According to the Police, one criminal procedure was started with the charge of illegal crossing of the border fence in 2019, in 2020 a total of 33, whereas in 2021, a total of 11 criminal procedures were initiated.
Legal amendments that entered into force on 5 July 2016 allowed the Hungarian police to automatically push back asylum seekers who were apprehended within 8 km of the Serbian-Hungarian or Croatian- Hungarian border to the external side of the border fence, without registering their data or allowing them to submit an asylum claim, in a summary procedure lacking the most basic procedural safeguards (e.g. access to an interpreter or legal assistance). Legalising pushbacks from within Hungarian territory denies asylum seekers the right to seek international protection, in breach of international and EU law, and according to the HHC constitutes a violation of Article 4 of Protocol 4 of the European Convention on Human Rights (ECHR). Those pushed back have no practical opportunities to file a complaint, are denied the right to apply for international protection, despite most of them coming from war zones such as Syria, Iraq or Afghanistan, and many of them are also physically abused by personnel in uniforms and injured as a consequence.
One of the key elements of the amendments that entered into force on 28 March 2017 is that when the state of crisis due to mass migration is in effect, irregularly staying migrants found anywhere in Hungary are to be escorted to the external side of the border fence with Serbia, thus extending the 8-km zone to the entire territory of Hungary. This includes the migrants who have never even been to Serbia before and have entered Hungary through Ukraine or Romania. Migrants who arrive at the airport and ask for asylum there, are also pushed back to Serbia, although they have never even been there, since they arrived by plane from another country.
In 2019, 11,101 migrants and asylum seekers were pushed back from the territory of Hungary to the external side of the border fence and 961 were blocked entry at the border fence. In 2020, 25,603 migrants and asylum seekers were pushed back and 14,151 were blocked entry. In 2021, 72,787 migrants and asylum seekers were pushed back and 47,323 were blocked entry. 63% of those pushed back were Syrian, whereas 19% were Afghan nationals.
Since 5 July 2016, the HHC and other organisations working with migrants and refugees, including UNHCR and MSF, have received reports and documented hundreds of individual cases of violence perpetrated against would-be asylum seekers on and around the Hungarian-Serbian border. Common to these accounts is the indiscriminate nature of the violence and the claim that the perpetrators wore uniforms consistent with the Hungarian police and military. The best-known case is that of a young Syrian man who drowned in the river Tisza while attempting to cross into Hungary on 1 June 2016. His surviving brother is represented by the HHC and since a criminal investigation in relation to the tragic incident has been closed, the case is now pending at the ECtHR. In 2019, ECtHR communicated another case addressing ineffective investigation of police violence during a push back.
The Commissioner for Human Rights of the Council of Europe Dunja Mijatović wrote in the report following her visit to Hungary from 4 to 8 February 2019 that, “Human rights violations in Hungary have a negative effect on the whole protection system and the rule of law. They must be addressed as a matter of urgency”. This includes the arbitrary detention of asylum seekers in transit zones along the Hungarian-Serbian border and “repeated reports of excessive violence by the police during the forcible removals of foreign nationals”. On 8 June 2019, the Parliamentary Assembly of the Council of Europe published a report on Pushback policies and practice in Council of Europe member States. Pushbacks and violent policing practices in the Balkan Region remain a serious matter of concern in 2019, according to a report published by the Border Violence Monitoring Network, as well as in 2020. On 10 February 2020, the UN Committee on the Rights of the Child published its concluding observations on Hungary, where it recommended ending the pushbacks and to stop the violence by Police and border police inflicted on children during removal. On 1 February 2021, the Hungarian Helsinki Committee’s presented a submission to the UN Special Rapporteur on the rights of migrants in response to the call for input of the Special Rapporteur, to inform his report to the 47th session of the United Nations Human Rights Council on push-backs. As part of the Protecting Rights at Borders initiative, quarterly reports on pushbacks on the Western Balkan Route were published in 2021.
On 19 July 2018, the European Commission decided to refer Hungary to the CJEU for non-compliance of its asylum and return legislation with EU law. The Commission considered that within its territory, Hungary failed to provide effective access to asylum procedures as irregular migrants are escorted back across the border, even if they wish to apply for asylum. On 17 December 2020 the CJEU issued a judgement in the case C-808/18 and ruled that moving illegally staying third-country nationals to a border area, without observing the guarantees surrounding a return procedure constitute infringements of EU law. No legislative amendments followed the judgement and the practice still remains the same. At the end of February 2021, the Hungarian Minister of Justice requested the interpretation of the Hungarian Fundamental Law (the Constitution) by the Hungarian Constitutional Court, arguing that the implementation of the CJEU judgment regarding pushbacks would be in breach of the Fundamental Law. On 7 December 2021, the Constitutional Court delivered a judgment that met only partially the government’s expectations, as it rejected directly ruling on the primacy of EU law and clearly stated that even in Hungary foreigners – including asylum-seekers – do have a right to human dignity. However, the judgement is worrying as it interprets the right to self-determination in the sense that Hungarians have a right to ‘constitutional identity’, to be interpreted as the right to live in a culturally homogeneous country, essentially associating the arrival of migrants and asylum seekers with a threat to said identity. The Government’s response to the judgment was that it confirms the Hungarian approach to migration and that pushbacks are as such allowed to continue.
Following the CJEU judgment C-808/18 and in light of the Hungarian authorities’ disregard of its findings, the HHC requested at the beginning of January 2021 that Frontex suspend its operations in Hungary to avoid complicity in unlawful practices. At the end of January, Frontex, for the first time in the Agency’s history, decided to suspend its activities in Hungary, following increased attention from media, the European Parliament and the European Commission.
On 9 June 2021, the European Commission sent a letter of formal notice to Hungary for failing to comply with the ruling of the CJEU (C-808/18). On 8 October 2021, the ECtHR issued a judgement in the first case against Hungary involving a pushback. The Court ruled that pushbacks carried out by Hungary under a domestic regulation are in breach of the prohibition of collective expulsions enshrined in Article 4 of Protocol 4 of the Convention.
Despite the above judgments push backs continue on a daily basis. The following example is particularly striking as it shows how it is not only impossible to apply for asylum in Hungary, but such an attempt leads to a push back as well. An Afghan man, who, after having overstayed his study visa in Hungary, wanted to apply for asylum in September 2021 because of the Taliban takeover. Mr. H. Q. showed up in person at the NDGAP’s asylum authority and expressed his wish to seek asylum. Instead of being admitted into the asylum procedure, he was removed from Hungary by the police on the same day. He was carried to the external side of the Hungarian border fence situated at the official Hungarian-Serbian state border and had no other choice but irregularly entering Serbia – a country where he had never been in his life. His asylum application was rejected as inadmissible, as the NDGAP held that, based on Section 32/F(1)b) of Act LXXX of 2007 on Asylum, he was requesting something impossible within the established legal framework. His asylum claim was thus rejected without even launching an examination. In the decision, the NDGAP cites Act LVIII of 2020 on the transitional measures following the termination of the state of danger, according to which asylum applications can only be submitted through a “statement of intent” at the embassies of Hungary in Belgrade or in Kyiv, and can by no means be submitted from Hungary itself. The NDGAP held that it has therefore no competence to examine this asylum application and excluded the possibility of submitting an appeal against the decision. Nevertheless, the applicant appealed the decision and requested to be granted the right to remain on the territory during the appeal procedure. However, the Police drove the applicant to the Serbian border and escorted him through the gate in the fence, despite the Police being aware of his interim measure request and the suspensive effect that such a request should have. The removal took place outside the scope of the readmission agreement with Serbia and without the presence of Serbian border guards or police officers. Neither the Police nor the Immigration authority conducted an assessment as to whether the applicant’s removal to Serbia would constitute refoulement and Serbian authorities were not informed of his removal. After being summarily removed, he was left without any assistance (with nothing else than what he had on him, as he had not been given the chance to retrieve his belongings from his house before being forcibly removed). He was denied access to a shelter in camps near the border, which run above its capacity. He was subjected to physical violence while sleeping rough and the Serbian police twice refused to register him as an asylum seeker and physically attacked him.
 Government Decree 233/2020. (V. 26.) on the rules of the asylum procedure during the state of danger declared for the prevention of the human epidemic endangering life and property and causing massive disease outbreaks, and for the protection of the health and lives of Hungarian citizens.
 Section 1 of Government Decree 292/2020 (VI. 17.).
 Section 2 (3)-(4) of Government Decree 233/2020. (V. 26.) and Section 268 (3)-(4) of the Transitional Act
 Section 2 (4)-(5) of Government Decree 233/2020. (V. 26.) and Section 268 (4)-(5) of the Transitional Act.
 Sections 3 and 4(2) of Government Decree 233/2020. (V. 26.) and Sections 269 and 270 (2) of the Transitional Act.
 Section 4 (3) of Government Decree 233/2020. (V. 26.) and Section 270 (3) of the Transitional Act.
 Section 271 (1) of the Transitional Act.
 Family members defined according to the Asylum Act (Section 2(j)) are the spouses, minor children and children’s parents or an accompanying foreign person responsible for them under Hungarian law. The HHC is aware of cases, where the asylum application was not accepted from adult children who joined their parent with int. protection status through family reunification.
 The numbers provided by the Ministry and the NDGAP in 2022 were controversial. There were two more statements of intent registered by the Ministry than by the NDGAP.
 Section 53 (4), 61 of Act CLI of 2011 on the Constitutional Court.
 UN High Commissioner for Refugees (UNHCR), UNHCR Position on Hungarian Act LVIII of 2020 on the Transitional Rules and Epidemiological Preparedness related to the Cessation of the State of Danger, June 2020, available at: https://bit.ly/3KWCVtI.
 European Commission, October infringement package: key decision, 30 October 2020 available at: https://bit.ly/3khzbpG.
 European Commission, Commission refers Hungary to the Court of Justice of the European Union for unlawfully restricting access to the asylum procedure, 15 July 2021, available at: https://bit.ly/3HlLMTy.
 See Section 301(6) Act CCXL of 2013 on the implementation of criminal punishments and measures, and Sections 51 and 52 Act II of 2007 on the entry and residence of third-country nationals. See also Section 59(2) Criminal Code, which provides that: “Persons granted asylum may not be expelled.”
 Information provided by the National Office for the Judiciary, 8 February 2019.
 Information provided by the National Office for the Judiciary, 18 January 2022.
 Information provided by the Police, 2 February 2021 and 4 February 2022.
 HHC, Hungary: Access denied, Information Note, 14 July 2016, available at: https://bit.ly/3xodQU9.
 nformation provided by the Police.
 Commissioner for Human Rights of the Council of Europe Dunja Mijatović; Report following the visit to Hungary from 4 to 8 February 2019, 21 May 2019, http://bit.ly/2TwWsIO.
 Council of Europe, Parliamentary Assembly: Pushback policies and practice in Council of Europe member States [Doc. 14909], 8 June 2019, http://bit.ly/30pgxm8.
 Border Violence Monitoring Network, https://bit.ly/367bI86.
 Border Violence Monitoring Network: Illegal push-backs and border violence reports; Balkan region April/May 2020, June 2020, available at: https://bit.ly/3bCb8xJ
 Committee on the Rights of the Child, Concluding observations on the sixth periodic report of Hungary, 10 February 2020, available at: https://bit.ly/3op1QK0.
 HHC, Submission of the Hungarian Helsinki Committee to the UN Special Rapporteur on the human rights of migrants, February 2021, available at: https://bit.ly/3fh1STb.
 CJEU, Judgment of the Court (Grand Chamber) of 17 December 2020, European Commission v Hungary, C-808/18, 17 December 2020, ECLI:EU:C:2020:1029.
 Minister of Justice, “Case X / 00477 /2021”, available at: https://bit.ly/2QHXeDw.
 DRC, Pushing Back Responsibility. Rights Violations as a “Welcome Treatment” at Europe’s borders, April 2021, https://bit.ly/3nG6c1V.
 EU Observer, Frontex suspends operations in Hungary, 27 January 2021, available at: https://bit.ly/37DEIlx.
 Shahzad v. Hungary, Appl. no. 12625/17, 8 October 2021.