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 Immigration and Asylum Office (IAO) 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 is tasked with the armed protection of the border and with the assistance of 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, 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 five times since then and is currently in effect until 9 March 2019.
During this state of crisis, special rules apply to third-country nationals unlawfully entering and/or staying in Hungary and to those seeking asylum, including:
Police are authorised to pushback across the border fence irregularly staying migrants who wish to seek asylum in Hungary from any part of the country, without any legal procedure or opportunity to challenge this measure.
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 deadlines to seek judicial review against inadmissibility decisions and rejections of asylum applications decided in accelerated procedures are drastically shortened to 3 days.
The IAO, a government agency under the Ministry of Interior, is in charge of the asylum procedure through its Directorate of Refugee Affairs (asylum authority). The IAO is also in charge of operating the transit zones, open reception centres and closed asylum detention facilities for asylum seekers.
The asylum procedure is a single procedure where all claims for international protection are considered. The procedure consists of two instances. The first instance is an administrative procedure carried out by the IAO. The second instance is a judicial review procedure carried out by regional Administrative and Labour Courts, which are not specialised in asylum. There is an inadmissibility process and an accelerated procedure in addition to the normal procedure.
Asylum may only be sought at the border (inside the transit zone). This is due to the current status of mass migration emergency.
The asylum procedure starts with assessment of whether a person falls under a Dublin procedure. If this is not the case, the IAO proceeds with an examination of whether the application is inadmissible or whether it should be decided in 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 accelerated procedure, the IAO has to make a decision 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) the applicant arrived through a country where he or she is not exposed to persecution or to serious harm, or 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 somebody; (a) has shared irrelevant information with the authorities regarding his or her asylum case; (b) comes from a safe country of origin; (c) gives false information about his or her name and country of origin; (d) destroys his or her 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 his or her removal; (h) enters Hungary irregularly or extends his or her stay illegally and did not ask for asylum within reasonable time although he or she 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 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, usually immediately upon the entry in the transit zone. 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 IAO 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 for being heard, or 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.
Appeal: The applicant may challenge the negative IAO decision by requesting judicial review from the regional Administrative and Labour Court within 8 calendar days and within 3 calendar days in case of inadmissibility and in the accelerated procedure. The judicial review request will have suspensive effect on the IAO decision in the regular procedure. However, in case of inadmissibility it will only have a suspensive effect if the application is declared inadmissible on “safe third country” grounds. In the accelerated procedure, the judicial review has suspensive effect only if the accelerated procedure is applied because the applicant entered Hungary irregularly or extended his or her stay illegally and did not ask for asylum within reasonable time although he or she would have had the chance to do so.
The court should take a decision in 60 days in the normal procedure and in 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 IAO decision or may annul the IAO decision and order a new procedure.
Since March 2017, most asylum applications are examined in the transit zones and asylum seekers are required to remain in these transit zones, with the exception of unaccompanied children below the age of 14, who are placed in a childcare facility, and with the exception of those lawfully staying in the territory. In September 2017, the HHC published an information note on the asylum situation in Hungary following two years of successive reforms.