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 National Directorate-General for Aliens Policing (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 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, 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 ten times since then and is currently in effect until 7 September 2021.
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.
- The deadlines to seek judicial review against inadmissibility decisions and rejections of asylum applications decided in accelerated procedures are drastically shortened to 3 days.
First due to the Gov. decree 233/2020 and later due to the Transitional Act that temporarily regulates the asylum procedure (until 30 June 2021, with possibility of prolongation) the following special rules related to the state of crisis are no longer applicable as of 26 May 2020: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 all claims for international protection are 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 Administrative and Labour Courts, which are not specialised in asylum. There is an inadmissibility procedure and an accelerated procedure in addition to the normal procedure.
Until 26 May 2020, asylum could only be sought at the border (inside the transit zone), due to the current status of mass migration emergency, although in practice no new entries were allowed in the transit zones as of March 2020, due to COVID. Only those lawfully staying could apply for asylum in the country.
On 26 May 2020 the Governmental decree and from 18 June 2020 the Transitional Act introduced new rules on asylum. 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”, 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. 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. 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 is 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.
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.
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.
According to the NDGAP, since June 2020, 24 persons (i.e. approx. 20% of the total applicants in 2020) sought asylum in Hungary.  One person was a subsequent applicant and 4 persons applied through the Embassy procedure. The other 19 applicants must have fallen under the scope of the exceptions under the Embassy procedure as described above. Nonetheless the asylum authority did not provide further information on that. The Hungarian Prison Service furthermore reported that there was no application submitted by detainees held in ordinary prisons.
The asylum procedure in Hungary 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) 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. 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 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 NDGAP 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 does not have an automatic suspensive effect on the NDGAP decision in the regular procedure, but in practice the alien policing procedure never starts beforehand. 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. On 17 December 2020 the CJEU issued a judgement in the infringement case C-808/18 and ruled that Hungary has not respected the right, conferred by the Asylum Procedures Directive on any applicant for international protection, to remain in the territory of the Member State concerned after the rejection of his or her application, until the time limit within which to bring an appeal against that rejection or, if an appeal has been brought, until a decision has been taken on it.
As of 1 January 2021 a Gov decree 570/2020. (XII. 9.) is in force and its Section 5 removes 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. This has serious consequence for people, who have been expelled prior to submitting their asylum application, as in case their asylum application is rejected in an accelerated procedure, the appeal does not have a suspensive effect and even if it is requested, it does not suspend the expulsion that was ordered prior to the asylum procedure.
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 NDGAP decision or may annul the NDGAP decision and order a new procedure.
Since March 2017 until 26 May 2020, most asylum applications were examined in the transit zones and asylum seekers were required to remain in these transit zones, with the exception of unaccompanied children below the age of 14, who were placed in a childcare facility, and with the exception of those lawfully staying in the territory. Since 26 May 2020, only one family was granted a single-entry permit to apply for asylum in Hungary, after submitting their statement of intent at the Embassy in Belgrade. In September 2017, the HHC published an information note on the asylum situation in Hungary following two years of successive reforms. In July 2019, the HHC published an information note on the asylum situation one year after the legal changes introduced in July 2018. In August 2020, the HHC published an information note on the new asylum system in place as of 26 May 2020.
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.
The form is available on: https://bit.ly/3m33am8
Section 1 of Government Decree 292/2020 (VI. 17.).
Section 268(3)-(4) of the Transitional Act.
Section 268(4)-(5) of the Transitional Act.
Section 271 (1) of the Transitional Act.
Information provided by the NDGAP on 2 March 2021.
Information provided by the Hungarian Prison Service on 18 March 2021.
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.