Author
The Asylum Act lays down an accelerated procedure, where the NDGAP is expected to take a decision within the short timeframe of 15 days.[1] In 2019 and in 2020, the accelerated procedure was not used. The HHC is aware of one case in 2021. As for 2021, 2022 and 2023, the NDGAP did not provide the requested data on accelerated procedures.[2]
The law provides 10 different grounds for channelling an admissible asylum claim into an accelerated procedure,[3] where the applicant:
- Discloses only information irrelevant for recognition as both a refugee and a beneficiary of subsidiary protection;
- Originates from a country listed on the European Union or national list of safe countries of origin as specified by separate legislation;
- Misled the authorities by providing false information on their identity or nationality
- by providing false information;
- by submitting false documents; or
- by withholding information or documents that would have been able to influence the decision-making adversely;
- Has destroyed or thrown away, presumably in bad faith, their identity card or travel document that would have been helpful in establishing their identity of nationality;
- Makes clearly incoherent, contradictory, clearly false or obviously unlikely statements contradicting the duly substantiated information related to the country of origin that makes it clear that, on the basis of their application, they are not entitled to recognition as a refugee or beneficiary of subsidiary protection;
- Submitted a subsequent application that is not inadmissible;
- Submitted an application for the only reason of delaying or frustrating the order of the alien policing expulsion or carrying out of the expulsion ordered by the refugee authority, the alien police authority or the court;
- Entered into the territory of Hungary unlawfully or extended their period of residence unlawfully and failed to submit an application for recognition within a reasonable time although they would have been able to submit it earlier and has no reasonable excuse for the delay;
- Refuses to comply with an obligation to have his/her fingerprints taken; or
- For a serious reason may pose a threat to Hungary’s national security or public order, or they were expelled by the alien policing authority due to harming or threatening public safety or the public order.
Vulnerable groups are not excluded from accelerated procedures.
The application cannot be rejected solely on the grounds of failing to submit an application within a reasonable time.[4]
In accelerated proceedings, the NDGAP, with the exception of the case where the applicant originates from a safe country of origin, shall assess the merits of the application for recognition in order to establish whether the criteria for recognition as a refugee or beneficiary of subsidiary protection exist.[5]
In the event of applying an accelerated procedure to an applicant originating from a safe country of origin, the applicant, when this fact is communicated to them, can declare immediately but within 3 days at the latest why in their individual case, the specific country does not qualify as a safe country of origin.[6] Where the safe country of origin fails to take over the applicant, the determining authority shall withdraw its decision and continue the procedure.[7]
Despite the possibility to request the suspension of the execution of the expulsion, the NDGAP starts the execution of the expulsion procedure before the 3 days available for submitting an appeal against the negative decision in accelerated procedures or inadmissible cases. As a result, asylum seekers are immediately brought to immigration detention. The NDGAP claims that if a person requests the suspension of the execution of the expulsion, they would not start to execute expulsion until a decision on the suspensive effect is taken by the court. However, in practice, asylum seekers are not informed of the possibility to request the suspension of the expulsion and, even when informed, they do not understand the significance of this information. In all cases where suspensive effect is not automatic, it is difficult to imagine how an asylum seeker will be able to submit a request for the suspension of their removal as they are typically without professional legal assistance and subject to an unreasonably short deadline to lodge the request. This also includes technical difficulties, such as the drafting of the request from detention and sending it to the court, and probably in their mother tongue. Further exacerbating the asylum seekers’ position, the rules allowing for a request to grant suspensive effect to be submitted are not found in the Asylum Act itself, but emanate from general rules concerning civil court procedures.[8]
Gov. decree 570/2020. (XII. 9.), whose Section 5 removed the possibility to ask for interim measures in order to prevent expulsion in case of violation of epidemic rules or when expulsion was ordered based on the risk to national security or public order, is no longer in force as of June 2022. This provision had serious consequence for people who had been expelled prior to submitting their asylum application, as in case their asylum application was rejected in an accelerated procedure, the appeal did not have a suspensive effect and even if it was requested, it did not suspend the expulsion that was ordered prior to the asylum procedure.[9] In January 2021 the HHC submitted a complaint to the European Commission, who did not reach any final conclusion while the decree was still in force. However, in the complaints proceedings the Commission had indicated that based on its initial analysis, it appeared that the problem raised in the complaint may indicate a possible infringement of the Return Directive. The HHC is aware of one such case, where an asylum applicant was rejected in an accelerated asylum procedure and was deported prior to his appeal even reaching the court. The rejection decision was communicated to the lawyer in an email when the applicant was already on the plane. The application of this decree was challenged at the national level by the HHC in several cases, unfortunately unsuccessfully. Even the Supreme Court of Hungary (Kúria) did not find the deprivation of a right to ask for suspensive effect problematic.[10]
A total of 15 days to process a first-time asylum application is – as a general rule – an insufficient time period to ensure the indispensable requirements of such a procedure, including finding the right interpreter, conducting a proper asylum interview, obtaining individualised and high-quality country information, obtaining – if necessary – medical or other specific evidence, and an eventual follow-up interview allowing the asylum seeker to react on adverse credibility findings or legal conclusions.[11] This extremely short deadline is therefore in breach of EU law, which requires reasonable time limits for accelerated procedures, ‘without prejudice to an adequate and complete examination being carried out’ and to the applicant’s effective access to basic guarantees provided for in EU asylum legislation.[12]
Also, in contradiction to the relevant EU rule, Hungarian law does not provide any specific safeguard that would prevent the undue application of accelerated procedures to asylum seekers in need of special procedural guarantees.[13]
The rules governing the appeal in accelerated procedure are the same as in case of inadmissible decisions (see section on Admissibility Procedure).
[1] Section 47(2) Asylum Act.
[2] Information not provided by the NDGAP on 7 February 2022, 13 February 2023 and 19 February 2024.
[3] Section 51(7) Asylum Act.
[4] Section 51(8) Asylum Act.
[5] Section 51(9) Asylum Act.
[6] Section 51(11) Asylum Act.
[7] Section 51A Asylum Act.
[8] Practice-based observation of the HHC.
[9] Hungarian Helsinki Committee, Decree Justified by Pandemic Causes Immediate Risk of Refoulement without Access to an Effective Judicial Remedy, available at: https://bit.ly/3Hbc6ST.
[10] Supreme Court of Hungary, Kpkf.VI.39.459/2021/2, 2 March 2021.
[11] The latter being mandatory under EU law as interpreted by the CJEU. See Case C-277/11, M.M. v. Minister for Justice, Equality and Law Reform, Ireland, Attorney General, Judgment of 22 November 2012 and Case C-349/07, Sopropé – Organizações de CalçadoL da v Fazenda Pública, Judgment of 18 December 2008.
[12] Recital 20, Article 31(2) and (9) recast Asylum Procedures Directive.
[13] Recital 30 recast Asylum Procedures Directive.