Author
A medical expert opinion could be required to determine whether the asylum seeker has specific needs.[1] Moreover, section 78/A of the amendments to the Asylum decree that entered into force on 21 December 2021 states the following:
- The determining authority shall inform the applicant that they may undergo a medical examination on their own initiative and at their own expense in order to investigate any signs of previous persecution or serious ill-treatment.
- The medical examination referred to in paragraph (1) may be carried out by a qualified specialist with a licence issued by the Hungarian authority and the results of the examination shall be forwarded to the determining authority without delay.
- The result of the medical examination pursuant to paragraph (1) shall be assessed by the determining authority together with the other elements of the application. Where appropriate, in addition to the medical service provider chosen and used by the applicant, the determining authority may call upon a State medical service provider or an expert to verify the results of the medical examinations submitted by the applicant. Failure by the applicant to attend a medical examination shall not prevent the determining authority from taking a decision on the application for recognition.
However, no criteria are set out in law or established by administrative practice indicating when a medical examination for the purpose of drafting a medical report should be carried out ex officio by the Asylum authority. According to the Asylum Act, the credibility of the asylum-seeker should not be doubted if according to an expert of forensic medicine, the inconsistent and contradictory representations made by the applicant are attributable to their health or mental condition.[2]
The only NGO that deals with psychosocial rehabilitation of torture survivors is the Cordelia Foundation, which prepares medical reports on applicants’ conditions in line with the requirements set out in the Istanbul Protocol.[3] The psychiatrists of this NGO, however, are not forensic experts and in some cases their opinion was not recognised by the former IAO or courts, since according to the Act CXL of 2004 on the General Rules of Public Administration Procedures (in effect at the relevant time), the expert opinion may only be delivered by a forensic expert registered by the competent ministry. For the reasons above (lack of an official forensic expert standing in proceedings), sometimes both the former IAO and the courts disregarded the medical opinion issued by the Cordelia Foundation, but at the same time failed to hire forensic expert from the Ministry’s list.
In January 2018, the CJEU ruled that asylum seekers may not be subjected to a psychological test, a practice the former IAO had had, in order to determine their sexual orientation as this would mount to disproportionate interference in their private life.[4]
In 2021, the NDGAP ordered a DNA test in a few cases in order to determine the family ties between the parent and a child. In one of the cases the DNA test was ordered once the child who had already joined the refugee mother through family reunification procedure applied for asylum. In another case the DNA was ordered more than 2 years after the family first applied for asylum.
[1] Section 3(2) Asylum Decree.
[2] Section 59 Asylum Act.
[3] OHCHR, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Istanbul Protocol”), HR/P/PT/8/Rev. 2, 2022, available at: https://bit.ly/3PdEc27.
[4] CJEU, Case C-473/16, Judgment of 25 January 2018, F v. Bevándorlási és Állampolgársági Hivatal, available at: http://bit.ly/3lSJ6XG. See also HHC, ’No more psychological testing of asylum seekers to determine sexual orientation in Hungary’, 17 April 2018, available at: https://bit.ly/2GxToqk.