Author
General (scope, criteria, time limits)
The admissibility of an application should be decided within 15 calendar days and this deadline may not be extended; there is no longer a separate admissibility procedure.
Under Section 51(2) of the Asylum Act, as amended in July 2018, an application is inadmissible where:
- a) The applicant is an EU citizen;
- b) The applicant was granted international protection by another EU Member State;
- c) The applicant is recognised as a refugee by a third country and protection exists at the time of the assessment of the application and the third country is prepared to readmit him or her;
- d) The application is repeated and no new circumstance or fact occurred that would suggest that the applicant’s recognition as a refugee or beneficiary of subsidiary protection is justified; or
- e) There exists a country in connection with the applicant which qualifies as a Safe Third Country for them;
Since 2019, the NDGAP has not provided the number of inadmissibility decisions, claiming that it does not have the data.[1] In 2022, one inadmissible decision was issued based on Section 51(2)d) of the Asylum Act.[2]
A new inadmissibility ground, merging the concepts of ‘safe third country’ and ‘first country of asylum’, was in effect since 1 July 2018[3] (see Hybrid Safe Third Country / First Country of Asylum), however it was not applied in practice in 2021 and in 2022 and as of 1 January 2023, it was finally removed from the Asylum Act.
Article 33(2)(e) of the recast Asylum Procedures Directive, providing that an application by a dependant of the applicant who has consented to their case being part of an application made on their behalf is inadmissible, has not been transposed into Hungarian legislation.
Refusal of applications without examination on the merits
According to Section 32/F of Asylum Act, the refugee authority shall refuse an application by way of a ruling, without examination as to merits, if:
- it has no jurisdiction for the assessment of the application;
- the application pertains to an objective that is manifestly impossible;
- the application comes from a person who is manifestly not entitled to make the request.[4]
This procedure however does not fall under the scope of the APD.
Asylum seekers who do not fall under the exceptions described under the section on the Embassy procedure, but nevertheless apply for asylum, are issued a ‘refusal decision’ based on Section 32/F b) of the Asylum Act. The NDGAP position is that they are requesting something impossible, as according to the current legislative framework, they should submit an intent at the Hungarian Embassy prior to being allowed to apply for asylum in Hungary. The HHC litigated several of such cases.[5]
As previously mentioned in the report, in one case in which an Afghan citizen applied for asylum, while staying in Hungary in an undocumented way, he was immediately pushed to Serbia after such a ‘refusal decision’ was issued. The HHC appealed the ‘refusal decision’ and on 12 November 2021, the court quashed the decision and ordered the applicant’s return to Hungary so that a new asylum procedure could start.[6] It ordered that a new asylum procedure is to be conducted in accordance with the general rules of the Asylum Act. The case is now before the ECtHR.[7]
The HHC was also representing two children who turned 18 when they came to Hungary via family reunification with their parents holding international protection status and who also received a ‘refusal decision’ based on Section 32/F b), as they no longer fell under the category of exceptions to the embassy procedure, since they no longer constituted family members under the Asylum Act definition (see Embassy procedure). The HHC appealed and in both cases the Metropolitan court quashed the decisions and ordered NDGAP to conduct an asylum procedure according to the general provisions of the Asylum Act.[8] In one case the NDGAP started a new procedure and granted subsidiary protection to the applicant.
The HHC was also representing a Ugandan asylum seeker who reached Hungary legally by plane and was also issued a ‘refusal decision’. The court quashed the decision and ordered a new procedure.[9] However, after initiating the procedure, the NDGAP immediately suspended it based on the pending request for the Constitutional court review of a judgment issued in the embassy procedure.[10]
Issuing ‘refusal decisions’ has become common practice since the second half of 2021. Previously, the NDGAP would simply refuse to accept an asylum application and turn the applicants away immediately. In one case HHC lawyers accompanied the client and reminded NDGAP officials that refusing to accept an application is a crime (abuse of authority, Section 305 of the Criminal Code).[11] As a result, the NDGAP took in the application, but the case officer present said they would not register the claim. After that, NDGAP issued a simple ‘information note’ notifying the applicant that they could not examine his application due to the Transitional Act rules. The HHC appealed and UNHCR intervened.[12] On 8 June 2021, the Metropolitan court ruled that the asylum application must be considered lodged and that the NDGAP has to conduct a procedure and issue a formal decision.[13] The NDGAP therefore issued a ‘refusal decision’. The HHC appealed and the Metropolitan court ruled that the NDGAP has to examine the applicant’s claim under the general provisions of the Asylum Act and that the applicant should be allowed to come back to Hungary.[14] By the time this last judgement was issued, the procedure had been going on for more than 2 years and the applicant managed to secure legal entry to another EU country in the meantime, therefore the case was discontinued.
Towards the end of 2022, the HHC noticed that the Asylum authority is again refusing to even accept the asylum applications.
Personal interview
There is no longer a separate procedure for admissibility, therefore the same rules as in the Regular Procedure: Personal Interview apply.
Appeal
The deadline for seeking judicial review against a negative decision on admissibility is shorter than in the regular procedure, as the request must be filed within only 7 calendar days.[15] The March 2017 amendment to the Asylum Act further shortened the appeal time to 3 calendar days.[16]
Judicial review is carried out by the same Regional Administrative and Labour Court that considers other asylum cases. The court’s review shall include a complete examination of both the facts and the legal aspects,[17] but only as they exist at the date when the authority’s decision is made.[18] The applicant therefore cannot refer to new facts or new circumstances during the judicial review procedure. This also means that if the applicant did not present any country of origin information (COI) reports during the first instance procedure, or the NDGAP did not refer to these on their own, the applicant cannot present these reports during the judicial review procedure, despite the fact that these reports already existed before and were publicly available. A hearing is not mandatory; it only takes place ‘in case of need’.[19] Moreover, the review procedure in admissibility cases differs from that for those rejected on the merits, since the court must render a decision within 8 days, instead of 60. A preliminary reference was sent to the CJEU for it to determine whether this short deadline for the judges to decide is compatible with the requirements of an effective remedy. On 5 December 2019, the Advocate General in his opinion concluded that judges must disapply the applicable time limit if they consider that the judicial review cannot be carried out effectively.[20] The CJEU confirmed this position in a judgement on 19 March 2020 (C-564/18).
A request for judicial review against the NDGAP decision declaring an application inadmissible has no suspensive effect, except for judicial review regarding inadmissible applications based on safe third country grounds.[21] Gov. decree 570/2020. (XII. 9.) whose Section 5 removed the possibility to ask for an interim measure 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 since June 2022. This provision had serious consequences for people who had been expelled prior to submitting their asylum application, as in case their asylum application was rejected as inadmissible, 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.[22]
The court may not alter the decision of the determining authority; it shall annul any administrative decision found to be against the law, with the exception of the breach of a procedural rule not affecting the merits of the case, and it shall oblige the refugee authority to conduct a new procedure.[23]
Legal assistance
There is no longer a separate procedure for admissibility, therefore the same rules as in the Regular Procedure: Legal Assistance apply. What is particularly problematic for asylum seekers in the case of an inadmissibility decision are the short deadlines (only 3 days to lodge an appeal) and the fact that a hearing at the court is the exception rather than the rule. In such a short time, it is difficult to provide an effective legal assistance. The importance of legal assistance is on the other hand seriously restricted since the courts are only performing an ex tunc examination and do not take into account any new evidence presented during the judicial review procedure.
[1] Information provided by NDGAP on 3 February 2020, 2 March 2021 and 7 February 2022.
[2] Information provided by NDGAP on 13 February 2022.
[3] Section 51(2)(f), and newly introduced Section 51(12) Asylum Act.
[4] This provision has been amended as of 3 December 2022.
[5] HHC, No access to asylum on the territory since 27 May 2020, 13 March 2023, available at: https://bit.ly/3TBfNpp.
[6] Metropolitain Court, 11.K.705.686/2021/22, 12 November 2021.
[7] H.Q. v. Hungary, Appl. No. 46084/21.
[8] Metropolitain Court 19.K.700.022/2022/5, 3 March 2022, 102.K.706.770/2021/15, 3 May 2022.
[9] Metropolitain Court, 29.K.705.858/2021/6, 29 November 2021.
[10] IV/03538-1/2021, https://bit.ly/3Lx6nH4.
[11] Available in English at: https://bit.ly/43p3lO1.
[12] UNHCR, Written observations by the Office of the United Nations High Commissioner for Refugees in the case of A.H. v National Directorate-General/or Aliens Policing (11.K.706.750/2020) before the Budapest Capital Regional Court, 25 November 2020, available at: https://bit.ly/3Lh0rSy.
[13] Metropolitan Court, 11.K.703.256/2021/7, 2 June 2021.
[14] Metropolitan Court, 11.K.703.946/2022/5, 9 January 2023.
[15] Section 53(3) Asylum Act.
[16] Section 80/K Asylum Act.
[17] Section 68(4) Asylum Act.
[18] Section 85(2) Code on Administrative Litigation.
[19] Section 68(2) Asylum Act.
[20] Opinion of advocate general Bobek (CJEU), Case C-564/18, LH v. Bevándorlási és Menekültügyi Hivatal, 5 December 2019 available at: http://bit.ly/3EyAeNu.
[21] Section 53(6) Asylum Act.
[22] 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.
[23] Section 53(5) Asylum Act.