Special procedural guarantees

Hungary

Country Report: Special procedural guarantees Last updated: 30/11/20

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Special procedural guarantees

There is a specialised unit within the NDGAP, which deals with asylum applications of vulnerable groups, namely the applications of unaccompanied children. The competent department is the Regional Directorate of Budapest and Pest County Asylum Unit. The employees (case officers) of the unit have special knowledge on unaccompanied minors, which enables them to conduct the hearings and make the decision in accordance with their special situation.

According to the response of the former IAO in 2017, training to this unit is provided every 6 months by asylum officials working at the Litigation Unit of the Refugee Directorate of the former IAO. The training touches upon vulnerability aspects as well. The training is based on the EASO training modules and contains two levels: asylum case officers have to pass an online exam, and later there is a training with a trainer where the tasks of the online exam are also spoken about. Regarding 2018 and 2019, there was no information provided by the former IAO and the NDGAP.

Based on the experience of HHC lawyers, it is mostly their individual sense of empathy, rather than professional support and training, that case officers make use of when interviewing unaccompanied children. Personal discussions with case officers shed light to the fact that being assigned to the cases of unaccompanied minors mostly happens without providing trainings on the specific legal provisions applicable in the cases of children or child friendly techniques to be used.

Around 18 case officers of the former IAO were trained in November 2016 by the Cordelia Foundation and the HHC on torture victims and traumatised asylum seekers. There were complete asylum departments from the former IAO from which no case officer came to this training e.g. Békéscsaba Asylum Department. In 2018, UNHCR contributed to a training session organised by IOM within the framework of its regional child protection project “Protecting children in the context of the refugee and migrant crisis in Europe”. UNHCR delivered presentations on the best interests of the child and child-friendly asylum procedures. It involved the training of 16 people.

Adequate support during the interview

The NDGAP is obliged to conduct an individual examination of the asylum claim by examining “[t]he social standing, personal circumstances, gender and age of the person […] to establish whether the acts which have been or could be committed against the person applying for recognition qualify as persecution or serious harm.”[1] Persons making gender-based applications have the right to have their case considered by an asylum officer of the same sex if they so request,[2] and this right is respected in practice. Since 2018, the law also explicitly provides this for persons with claims based on gender identity.[3]

There is a possibility to use sign language interpretation besides regular interpretation, as the costs of both are covered by the NDGAP.[4] If the asylum seeker is not able to write, this fact and his or her statement shall be included in the minutes.[5]

In case the applicant cannot be interviewed due to being unfit to be heard, the NDGAP may decide not to carry out a personal interview. If in doubt about the asylum seeker’s fitness, the determining authority will seek the opinion of a doctor or psychologist. If the doctor confirms this, the asylum applicant can be given an opportunity to make a written statement or the applicant’s family members can be interviewed.[6]

If the NDGAP has already obtained information about the fact that the asylum seeker is a victim of torture or trauma, the asylum seeker is interviewed by a specifically trained case officer. However, since there is no formal mechanism for identifying these asylum seekers, there is a risk that such an applicant is heard by a case officer who is not appropriately trained. If the applicant does not feel fit to be interviewed, the interview can be postponed, although the NDGAP can reject a request for postponement, if the postponement would prevent the NDGAP from taking its decision within the procedural deadline foreseen in the law. The NDGAP can also give permission for a family member or a psychologist to be present at the hearing, which has happened in the past. On one occasion in 2017, in the case of two highly vulnerable unaccompanied minors, the NDGAP denied access to a social worker to the asylum interview of the children, although the HHC lawyer had informed the NDGAP about the high level of trust they had come to place on her.

However, it has also happened that unaccompanied minors, victims of torture or traumatised asylum seekers were not interviewed in a proper room with suitable conditions for such hearings. Due to the lack of space, and due to the organisational shortcomings on the side of former IAO and NDGAP, the interviews sometimes take place in a room where there are other case officers. One interview room is stationed behind a front desk used by the Police. This means that vulnerable asylum seekers, among them unaccompanied children have to go into their hearing right before the Police, whose presence and physical proximity they may feel to be intimidating.

There was one occasion in April 2017 when upon request by the legal representative, the former IAO conducted the interview in the Fót Children’s Home of two highly vulnerable unaccompanied minor brothers who had been victims of sexual abuse. The former IAO, in cooperation with the Children’s Home guaranteed that the necessary technological equipment would be available in a private room facing a calm park where the children would feel safe and could therefore open up about their experiences. This was, according to the HHC, a great example of child-friendly administration. However, this was a single event and it remains unclear whether the NDGAP would be willing to conduct interviews in the Children’s Home for highly vulnerable unaccompanied minors. The HHC thinks that it is highly unlikely.

In the experience of the HHC, unaccompanied minors above the age of 14 who need to wait for the end of their asylum procedure in the transit zone are systematically discontent with their asylum interviews. It is nearly impossible to carry out a child friendly interview in a metal container, which is surrounded by a high barbed wire fence and a significant number of policemen. The minors often only see their case officer on the screen, since these hearings are seldom conducted in person but rather by using a special communications application designed for this purpose. The presence of policemen outside the doors of the container in which the interview takes place further diminishes the minors’ trust in the case officer or the procedure as a whole.

In the case of a severely traumatised man who was diagnosed with PTSD and his poor mental state was known by the former IAO, the former IAO held all together six interviews during the three subsequent procedures. Upon the request of the legal representative, in August 2017, the former IAO held an interview that lasted only 1.5 hours and contained questions exclusively about the existence of new facts and circumstances. After the Court had annulled the decision of the former IAO and obliged the authority to recognise the applicant as a refugee, the legal representative again requested the former IAO not to conduct a new hearing due to the poor mental health state of the applicant and referring to Section 43(1) a) of the Asylum Act. The latter provision provides the possibility for the asylum authority to forgo the personal hearing if the applicant is not in a condition to be interviewed. Nonetheless, the former IAO held again an interview in March 2018, and the applicant was questioned about the personal details, the fleeing route, and new facts and circumstances, his family members’ situation in the country of origin and ongoing threats, which was clearly a topic that resulted in further frustration and deterioration of his mental state.

Amendments that entered into force on 1 January 2018 describe detailed procedural safeguards for interviewing children. These include the requirement for the asylum authority to conduct the asylum interview in an understandable manner and by taking into account the age, maturity, and the cultural and gender particularities of the child. This includes a child-friendly interview room for children below the age of 14. Any subsequent interview needs to be conducted by the same case officer in case the child needs to be heard. Finally, case officers interviewing children must possess the necessary knowledge on interviewing children.[7]

Exemption from special procedures

There is no exemption of vulnerable groups from accelerated procedures.

Prior to March 2017, the airport procedure and procedure in the transit zones could not be applied in case of vulnerable asylum seekers.[8] In practice, only asylum seekers with physically visible special needs (pregnant women, families) were exempted from the border procedure.[9] Since March 2017, border procedures are no longer applied, since the procedure in the transit zones became a regular procedure and all asylum seekers have to remain in the transit zone until the end of the procedure. The only exception are unaccompanied children below the age of 14.

For unaccompanied children, the asylum authorities as a general rule have to trace the person responsible for the minor, except if it is presumed that there is a conflict or if the tracing is not justified in light of the minor’s best interests.[10] The determining authority may ask assistance in the family tracing from other member states, third countries, UNHCR, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and other international organisations engaged in supporting refugees. Practice shows, however, that this tracing is not carried out in practice by the former IAO, and now the NDGAP.

Appointment of guardian

In certain cases of vulnerable asylum seekers who lack full legal capacity (primarily children or due to mental health reasons), the NDGAP has to either involve their statutory representative or appoint a guardian. In case of children, the guardian should be appointed without delay, within 8 days.[11]

Since March 2017, unaccompanied children above the age of 14 need to await the end of their asylum procedure in the transit zone. Under the current legal regime, while in the asylum procedure, they are exempted from the special provision of child protection rules.[12] Under Hungarian law, they are considered to have full legal capacity as soon as they are 14 years of age, so they are assigned a formal legal representative only for the asylum procedure (an “ad hoc guardian”). Given their low numbers, such ad hoc guardians are only able to meet the children sporadically, and their consent is not required if a child decides to leave the transit zone through the one-way exit to Serbia.[13] The children report that they do not talk to those temporary guardians at all, they only meet them during the interview conducted by the NDGAP.

GRETA in its second evaluation round recommended to the Hungarian authorities to ensure the timely appointment of trained guardians to unaccompanied or separated children kept in transit zones and enabling guardians to effectively fulfil their tasks by limiting the number of children for which each guardian is responsible.[14]

 



[1]           Section 90 Asylum Decree.

[2]           Section 66(3) Asylum Decree.

[3]           Section 66(3a) Asylum Decree.

[4]           Section 36(7) Asylum Act.

[5]           Section 62(2) Asylum Decree.

[6]           Section 43(2) Asylum Act and Sections 77(1) and (2) Asylum Decree.

[7]           Section 74 Asylum Decree.

[8]           Sections 71/A(7) and 72(6) Asylum Act.

[9]           ECRE, Crossing Boundaries, October 2015, 17.

[10]          Section 4 Asylum Decree.

[11]          Section 80/J(6) Asylum Act.

[12]          Section 4(1)(c) Law XXXI of 1997 on the Protection of Children.

[14]          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.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation