Author
Under the Asylum Act, a person with special needs can be an ‘unaccompanied minor or a vulnerable person, in particular, a minor, elderly or disabled person, pregnant woman, single parent raising a minor child and a person who has suffered from torture, rape or any other grave form of psychological, physical or sexual violence, found, after proper individual evaluation, to have special needs because of his/her individual situation’.[1] Hungarian law does not explicitly include survivors or potential victims of human trafficking, persons suffering of serious illnesses and persons with mental disorders in the definition of vulnerable asylum seekers.
Screening of vulnerability
Although both the Asylum Act and the Asylum Decree provide that the special needs of certain asylum seekers should be addressed,[2] there is no further detailed guidance available in the law and no practical identification mechanism in place to adequately identify such persons. The Decree only foresees the obligation of the authority to consider whether the special rules for vulnerable asylum seekers are applicable in the given individual case. However, no procedural framework has been elaborated to implement this provision in practice.[3] Hungarian law also fails to provide a timeframe within which the determining authority shall carry out this assessment, nor does it clarify in which phase of the proceedings this shall take place. The Mapping Report of IOM[4] on the available assistance to migrant victims of sexual and gender-based violence states: ‘Currently there are no standard operating procedures (SOPs) on sexual and gender-based violence available and used in migration facilities in Hungary. The lack of clear guidance on prevention and referral mechanisms makes the identification of victims and potential victims of SGBV among asylum-seekers and refugees difficult and thus the provision of appropriate support to those who are in need of assistance is not ensured.’
According to HHC, it generally depends on the asylum officer in charge whether the applicant’s vulnerability will be examined and taken into account. An automatic screening and identification mechanism is lacking; applicants need to state that they require special treatment, upon which asylum officers consider having recourse to an expert opinion to confirm vulnerability. The NDGAP asks the asylum seeker in every asylum interview whether they have any health problems. This of course does not guarantee that the authorities get information about the special needs of asylum seekers.
A medical or psychological expert may be involved to determine the need for special treatment. The applicant should be informed in simple and understandable language about the examination and its consequences. The applicant has to consent to the examination, however, if no consent is given, the provisions applicable to persons with special needs will not apply to the case.[5] According to HHC’s lawyers it is up to the legal representative to argue that the applicant is vulnerable, which may be then considered by the caseworker or it may still be disregarded. In the latter case, the lack of proper assessment of the facts of the case (such as individual vulnerability) may lead to the annulment of the decision in the judicial review phase.
Age assessment of unaccompanied children
The law does not provide for an identification mechanism for unaccompanied and separated children. The Asylum Act only foresees that an age assessment can be carried out in case there are doubts as to the alleged age of the applicant.[6] In case of such uncertainty, the asylum officer, without an obligation to inform the applicant of the reasons, may order an age assessment be conducted. Therefore, decisions concerning the need for an age assessment may be considered arbitrary.
The applicant (or their statutory representative or guardian) has to consent to the age assessment examination.
The asylum application cannot be refused on the ground that the person did not consent to the age assessment.[7] However, as a consequence most of the provisions relating to children may not be applied in the case since they will be considered as an adult.[8]
The age assessment was conducted by the military doctor in the transit zone. Since the closure of the transit zones in 2020, the HHC is aware of only one age assessment procedure carried out in 2021. The information provided by the NDGAP confirms that there was only one asylum seeker subjected to age assessment in 2021 where the examination concluded that the asylum seeker was indeed a child.[9] The main method employed was a dental examination and the observation of the child’s physical appearance, e.g. weight, height etc., and the child’s sexual maturity. The primary and secondary sexual characteristics were also examined, which the HHC considers to be a violation of the child’s human dignity. In the context of age assessment, the NDGAP does not use a psychosocial assessment. There was no age assessment procedure in 2022[10] nor in 2023.[11]
Age assessment practices had an even more crucial impact after the March 2017 reform, as being below or above the age of 14 meant being confined into a transit zone or being exempted from such confinement. This was highly problematic given the non-accuracy of such assessments.[12]
Up to the time of writing, no protocol has been adopted to provide for uniform standards on age assessment examinations carried out by the police and the NDGAP. On several occasions (conferences, roundtables etc.), the former IAO denied its responsibility to adopt such a protocol, stating that age assessment is a medical question, which is beyond its professional scope or competence. The police elaborated a non-binding protocol for the purpose of police-ordered age assessment examinations that provide a checklist to be followed by doctors who are commissioned to carry out the examination.[13] This protocol, which was published in 2014, did not take into account the psychosocial or intercultural elements of age assessment either. The protocol only foresees that in case the applicant (the subject of the age assessment) is suspected to be a victim of sexual violence, follow-up assistance from a psychologist may be requested (but this is not automatic and the HHC has never assisted a case where the authorities would refer the applicant to a psychologist ex officio).
The age assessment opinion usually does not specify the person’s exact age; instead, it gives an estimate if the person is above or under 18 or margin of error of at least 2 years e.g. 17-19 or 16-18 years of age. In these cases, in HHC’s experience the benefit of the doubt is usually given to the applicant.
There is no direct remedy to challenge the age assessment opinion. It can only be challenged through an appeal against the negative decision in the asylum procedure, which cannot be considered an effective remedy as in practice several months pass by the time the rejected application reaches the judicial phase of the procedure.
According to the NDGAP, there was one age assessment procedure conducted in 2019 by which the adulthood of the applicant was established.[14] No age assessment procedure was carried out in 2020, 2022 and 2023, while in 2021 only one procedure took place, as previously explained.[15]
On 10 February 2020, the CRC published its concluding observations on Hungary, where it highlighted that age assessment has to be in line with international standards.[16]
[1] Section 2(k) Asylum Act.
[2] Section 4(3) Asylum Act.
[3] Section 3(1) Asylum Decree.
[4] IOM, Mapping Report on Legal Frameworks and Assistance Available to Migrant Victims of Sexual and Gender-based Violence (SGBV), 2019, available at: https://bit.ly/3XXbhCh.
[5] Section 3 Asylum Decree.
[6] Section 44(1) Asylum Act.
[7] Section 44(2) Asylum Act.
[8] Section 44(3) Asylum Act.
[9] Information provided by NDGAP on 7 February 2022.
[10] Information provided by NDGAP on 13 February 2023.
[11] Information provided by NDGAP on 19 February 2024.
[12] See AIDA, Country Report Hungary – 2020 Update, April 2021, available at: https://bit.ly/3IN0JAf.
[13] The protocol is available in Hungarian at: http://bit.ly/1X53QT6.
[14] Information provided by NDGAP on 3 February 2020.
[15] Information provided by NDGAP on 2 March 2021, 7 February 2022 and 13 February 2023.
[16] CRC, Concluding observations on the sixth periodic report of Hungary, 3 March 2020, CRC/C/HUN/CO/6*, available at: https://bit.ly/3EAgGrV, paras. 38 and 39.