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”. Hungarian law does not explicitly include 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, 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. 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 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 he or she has 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. According to the 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 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. In case of such uncertainty, the asylum officer, without an obligation to inform the applicant of the reasons, may order an age assessment to be conducted. Therefore, decisions concerning the need for an age assessment may be considered arbitrary.
The applicant (or his or her statutory representative or guardian) has to consent to the age assessment examination. However, upon entry to the transit zone, an age assessment procedure was normally carried out before a guardian could be appointed to the children in question. The child was therefore on his or her own in this process with no adult representing his or her best interest.
The asylum application cannot be refused on the ground that the person did not consent to the age assessment. However, as a consequence most of the provisions relating to children may not be applied in the case.
The age assessment was conducted by the military doctor in the transit zone. The main method employed was the mere observation of the child’s physical appearance, e.g. weight, height etc., and the child’s sexual maturity. In the context of age assessment, the NDGAP does not use a psychosocial assessment.
Since the entry into force of the new legal regime in March 2017, age assessment practices became even more important since the law differentiates between unaccompanied children below and above the age of 14. The consequences were severe: erroneous assessment of the applicant’s age could result on his or her confinement in the transit zone, which the HHC as well as CJEU considered unlawful detention. The military doctor does not possess any specific professional knowledge that would make him appropriate to assess the age of asylum seekers, let alone differentiate between a 14 and a 15-year-old. The practice of age assessment has been criticised by the CPT among others. As is explained at length in the third-party intervention of the AIRE Centre, Dutch Council for Refugees and ECRE in the Darboe and Camara v. Italy case, there is currently a broad consensus among medics that existing age assessment methods alone cannot narrow down the age of the applicant to an adequate range to be relied on in the asylum procedure. The margin of error is the broadest among those around 15 years of age. It can therefore be easily seen that carrying out an age assessment procedure with the aim to clearly identify whether a child is under or above the age of 14 was highly problematic.
Age assessment was carried out in the transit zones, which were not physically equipped for such purposes, and had serious shortcomings. Based on interviews with unaccompanied minors, the HHC lawyers found that in reality the “age assessment” took mere minutes, during which the military doctor simply measured the applicants’ height, looked at their teeth, measured the size of their hips and examined the shape of their body (whether it “resembles that of a child or more like that of an adolescent”) alongside with signs of their sexual maturity (e.g. pubic hair, size of breasts). The HHC is of the opinion that this practice was highly unprofessional and is in breach of the fundamental rights of children.
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. This protocol, which was published in 2014, would 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, 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 the appeal against a negative decision in the asylum procedure, which cannot be considered effective as in practice several months pass by the time the rejected application reaches the judicial phase of the procedure.
GRETA in its second evaluation round recommended to the Hungarian authorities to review the age assessment procedures applied in the transit zones, with a view to ensuring that the best interests of the child are effectively protected and that the benefit of the doubt is given in cases of doubt, in accordance with Article 10, paragraph 3, of the Convention, and taking into account the requirements of the UN Convention on the Rights of the Child, General Comment No. 6 of the Committee on the Rights of the Child and the European Asylum Support Office (EASO) practical guide on age assessment. The Alien Policing Authority should be given sufficient time to involve expertise such as forensic medicine experts, psychologist and psychiatrists to carry out age assessment before having to assert a young person’s age.
On 10 February 2020, the UN Committee on the Rights of the Child published its concluding observations on Hungary, where it recommended that age assessment has to be in line with international standards.
 Section 2(k) Asylum Act.
 Section 4(3) Asylum Act.
 Section 3(1) Asylum Decree.
 IOM, Mapping Report on Legal Frameworks and Assistance Available to Migrant Victims of Sexual and Gender-based Violence (SGBV), 2019, available at: http://bit.ly/39l28KM.
 Section 3 Asylum Decree.
 Section 44(1) Asylum Act.
 Section 44(2) Asylum Act.
 Section 44(3) Asylum Act.
 See also Council of Europe Lanzarote Committee, Special report further to a visit to transit zones at the Serbian/Hungarian border, T-ES(2017)11, 30 January 2018, available at http://bit.ly/2C6bYyZ.
 Information provided by NDGAP on 3 February 2020.
 Information provided by NDGAP on 2 March 2021.
 GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Hungary, Second evaluation round, Adopted 10 July 2019, Published on 27 September 2019, http://bit.ly/364g3D2.
 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.