Author
A quasi-state of exception operates under Hungarian legislation, entitled ‘state of crisis due to mass migration’. The state of crisis can be ordered by a Government decree, on the joint initiative of the NDGAP and the Police, for a maximum of 6 months to certain counties or the entirety of the country. Once in effect, among others, the Hungarian Defence Forces are tasked with the armed protection of the border and assistance to the police forces in handling issues related to migration. The state of crisis due to mass migration has been in effect in the two counties bordering Serbia (Bács-Kiskun and Csongrád) since 15 September 2015, and in the four counties bordering Croatia, Slovenia and Austria (Baranya, Somogy, Vas, Zala) since 18 September 2015. On 9 March 2016, the state of crisis was extended to the entire territory of Hungary. This has been extended multiple times since then and is currently in effect until 7 September 2024.[1]
During this state of crisis, special rules apply to third-country nationals irregularly entering and/or staying in Hungary and to those seeking asylum, including:
- Police are authorised to pushback across the border fence, without any assessment of individual circumstances, irregularly staying migrants who wish to seek asylum in Hungary from any part of the country, outside any legal procedure or opportunity to challenge this measure.[2]
- The deadlines to seek judicial review against inadmissibility decisions and rejections of asylum applications decided in accelerated procedures are drastically shortened to 3 days.[3]
First due to the Gov. Decree 233/2020[4] and later due to the Transitional Act that temporarily regulates the asylum procedure (currently until 31 December 2024, with possibility of prolongation) the following special rules related to the state of crisis are no longer applicable as of 26 May 2020:
- Asylum applications can only be submitted in the transit zones at the border unless the applicant is already residing lawfully in the territory of Hungary. Asylum seekers are to be held in the transit zones for the entire asylum procedure without any legal basis for detention or judicial remedies.
- All vulnerable persons and unaccompanied asylum-seeking children over 14 years of age are also automatically detained in the transit zones.
The asylum procedure is a single procedure where entitlement to refugee status and subsidiary protection is considered. The procedure consists of two instances. The first instance is an administrative procedure carried out by the NDGAP. The second instance is a judicial review procedure carried out by Regional Courts, which are not specialised in asylum. There is an inadmissibility procedure and an accelerated procedure in addition to the normal procedure.
Between March 2017 and 26 May 2020, asylum could only be sought at the border (inside the transit zone) and asylum seekers were required to remain in these transit zones for the whole duration of the procedure, with the exception of unaccompanied children below the age of 14, who were placed in a childcare facility. Only those lawfully staying could apply for asylum in the country. In practice no new entries were allowed in the transit zones as of March 2020, due to COVID-19.
On 26 May 2020 the Governmental decree and from 18 June 2020 the Transitional Act introduced new rules on asylum.[5] Those wishing to seek asylum in Hungary, with a few exceptions noted below, must first personally submit a ‘statement of intent for the purpose of lodging an asylum application’,[6] at the Embassy of Hungary in Belgrade or in Kyiv.[7] The embassy must then forward the ‘statement of intent’ to the NDGAP in Budapest, which shall examine it within 60 days.[8] 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.[9] The law does not clarify the criteria to be considered by the NDGAP in deciding on such applications. Applicants receive an email, with one paragraph stating that the NDGAP decided either to suggest or not to suggest the issuance of a single-entry permit. The decision therefore bears no reasoning and the law does not foresee any remedy. Those issued a single-entry permit can then travel to Hungary in order to submit an asylum application. In 2020, only one family, whereas in 2021 altogether 8 Iranian nationals were granted a single-entry permit to apply for asylum in Hungary, after submitting their statement of intent at the Embassy in Belgrade.[10] There have been no applications in the Embassy in Kyiv in 2021, nor in 2022 and 2023. In 2022, 4 Iranian nationals and in 2023, 5 Iranian nationals were granted a single-entry permit to apply for asylum in Hungary, after submitting their statement of intent at the Embassy in Belgrade,[11] but for unknown reason they did not reach Hungary.
Only people belonging to the following categories are not required to go through the process described above. They can directly apply for asylum in Hungary:[12]
- Beneficiaries of subsidiary protection who are staying in Hungary;
- Family members[13]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.
For all the others, including legally staying foreigners in Hungary, it is no longer possible to apply for asylum in Hungary or at the border.
For those that are allowed to apply for asylum in Hungary, the asylum procedure starts with the submission of an application for asylum in person before the determining authority. The NDGAP first assesses whether a person falls under a Dublin procedure. If this is not the case, the NDGAP proceeds with an examination of 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. If the application is not inadmissible and it will not be decided in an accelerated procedure, the NDGAP has to decide on the merits within 60 days.
Inadmissibility: An application is declared inadmissible if somebody: (a) is an EU citizen; (b) has protection status from another EU Member state; (c) has refugee status in a third country and this country is willing to readmit the applicant; (d) submits a subsequent application and there are no new circumstances or facts; (e) has travelled through a safe third country; and (f) arrived through a country where they are not exposed to persecution or to serious harm, or when in the country through which the applicant arrived to Hungary an adequate level of protection is available.
Accelerated procedure: The accelerated procedure can be used if the applicant: (a) has shared irrelevant information with the authorities regarding their asylum case; (b) comes from a safe country of origin; (c) gives false information about their name and country of origin; (d) destroys their travel documents with the aim to deceive the authorities; (e) provides contradictory, false and improbable information to the authorities; (f) submits a subsequent applicant with new facts and circumstances; (g) submits an application only to delay or stop their removal; (h) enters Hungary irregularly or extends their stay illegally and did not ask for asylum within reasonable time although they would have had the chance to do so; (i) does not give fingerprints; and (j) presents a risk to Hungary’s security and order or has already had an expulsion order for this reason.
Border procedures exist in law but are not applicable at the moment since 26 May 2020 due to the aforementioned state of mass migration emergency.
Regular procedure: The asylum application starts out with an interview by an asylum officer and an interpreter. At that point, biometric data is taken, questions are asked about personal data, the route to Hungary and the main reasons for asking for international protection. Sometimes the NDGAP will conduct more than one interview with the applicant.
The asylum authority should consider whether the applicant should be recognised as a refugee, granted subsidiary protection or a tolerated stay under non-refoulement considerations. A personal interview is compulsory, unless the applicant is not fit to be heard, or submitted a subsequent application and, in the application, failed to state facts or provided proofs that would allow recognition as a refugee or a beneficiary of subsidiary protection.
Appeal: The applicant may challenge the negative NDGAP decision by requesting judicial review from the Regional Court within 8 calendar days and within 3 calendar days in case of inadmissibility and in the accelerated procedure. The judicial review request does not generally have an automatic suspensive effect on the NDGAP decision in the regular procedure, but in practice the alien policing procedure never starts before the judicial review has concluded. In case of inadmissibility the law provides that it will only have legal suspensive effect if the application is declared inadmissible on ‘safe third country’ grounds. In the accelerated procedure, the judicial review has legal suspensive effect only if the accelerated procedure is applied because the applicant entered Hungary irregularly or extended their stay illegally and did not ask for asylum within reasonable time although they would have had the chance to do so.
Gov. decree 570/2020. (XII. 9.), whose Section 5 removed the possibility to ask for interim measures in order to prevent expulsion in case of violation of epidemic rules or when expulsion is ordered based on the risk to national security or public order, is no longer in force since June 2022. This provision had serious consequences for people who had been expelled prior to submitting their asylum application, as in case their asylum application was rejected in an accelerated procedure or admissibility procedure, the appeal did not have a suspensive effect and even if it was requested, it did not suspend the expulsion that was ordered prior to the asylum procedure.[14]
The court should take a decision within 60 days in the normal procedure and within 8 days in case of inadmissibility and in the accelerated procedure. A personal hearing of the applicant is not compulsory. The court may uphold the NDGAP decision or may annul the NDGAP decision and order a new procedure.
[1] Government Decree 41/2016. (III. 9.) on ordering the crisis situation caused by mass migration in relation to the entire territory of Hungary, and other relevant rules concerning the declaration, existence and termination of the crisis situation, Section 5(2).
[2] Section 5 of Act LXXXIX of 2007 on State Border.
[3] Section 80/K Asylum Act.
[4] 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.
[5] HHC, Hungary de facto removes itself from the Common European Asylum System (CEAS), 12 August 2020, available at: https://bit.ly/35UsGDy.
[6] The form is available at: https://bit.ly/3m33am8.
[7] Section 1 of Government Decree 292/2020 (VI. 17.).
[8] Section 268(3)-(4) of the Transitional Act.
[9] Section 268(4)-(5) of the Transitional Act.
[10] Information received from the Ministry of Trade and Foreign Affairs, 4 February 2022 and from the NDGAP, 7 February 2022.
[11] Information received from the NDGAP, 13 February 2023 and 19 February 2024.
[12] Section 271 (1) of the Transitional Act.
[13] 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.
[14] Hungarian Helsinki Committee, Decree Justified by Pandemic Causes Immediate Risk of Refoulement without Access to an Effective Judicial Remedy, 5 March 2021, available at: https://bit.ly/3Hbc6ST.