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:
- The applicant is an EU citizen;
- The applicant was granted international protection by another EU Member State;
- 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;
- 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
- There exists a country in connection with the applicant which qualifies as a Safe Third Country for him or her;
- The applicant arrived through a country where he or she is not exposed to persecution or to serious harm, or in the country through which the applicant arrived to Hungary an adequate level of protection is available.
Since 2019, the NDGAP has not provided the number of inadmissibility decisions, claiming that it does not have the data.[1]
A new inadmissibility ground, merging the concepts of “safe third country” and “first country of asylum”, is in effect since 1 July 2018,[2] however it was not applied in practice in 2021.
Article 33(2)(e) of the recast Asylum Procedures Directive, providing that an application by a dependant of the applicant who has consented to his or her case being part of an application made on his or her 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:
- a) it has no jurisdiction for the assessment of the application;
- b) the application pertains to an objective that is manifestly impossible;
- c) the application has apparently been filed by a person other than the rightful applicant.
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.
As previously mentioned in the report, in one case in which an Afghan citizen applied for asylum, while staying in Hungary in a 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. As of March 2022, the authorities have still not complied with the ruling. The HHC turned once more to the court, requesting the enforcement of the judgement. The case is still pending.
The HHC is also representing two adult children who came to Hungary via family reunification with their parents who were granted international protection and who also received a “refusal decision” based on Section 32/F b). The HHC appealed and both cases were pending as of March 2022.
The HHC is 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. 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[3].
Issuing “refusal decisions” has become common practice since second half of 2021. Previously, the NDGAP would simply refuse to accept an asylum application and turn the applicants away immediately. In one case, where the 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). 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 Transnational Act rules. The HHC appealed and UNHCR intervened.[4] 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.[5]
Personal interview
There is no longer a separate procedure for admissibility, therefore the same rules as in the Regular Procedure 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.[6] The March 2017 amendment to the Asylum Act further shortened the appeal time to 3 calendar days.[7]
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, but only as they exist at the date when the authority’s decision is made.[8] 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 at 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”.[9] Moreover, the review procedure in admissibility cases differs from those rejected on the merits, since the court must render a decision within 8 days, instead of 60. A preliminary reference was asked, 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.[10] 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.[11] This is very worrying in light of the Gov decree 570/2020. (XII. 9.) in force as of 1 January 2021. Its Section 5 removes the possibility to ask for an interim measure in order to prevent expulsion in case of violation of epidemic rules or when expulsion is ordered based on the risk to national security or public order. This can have serious consequences for people, who have been expelled prior to submitting their asylum application, as in case their asylum application is rejected as inadmissible, the appeal does not have a suspensive effect and even if it is requested, it does not suspend the expulsion that was ordered prior to the asylum procedure.
There is no automatic suspensive effect of the appeals against an inadmissible decision based on the ground introduced in July 2018 (see Hybrid Safe Third Country / First Country of Asylum). At the beginning of the use of this inadmissibility ground in August 2018, the alien policing procedure started to run against the rejected asylum seekers, despite them asking for suspensive effect in their appeals.[12] Although those applicants who submit a court appeal against an inadmissibility decision still have the right to remain on the territory of Hungary,[13] they were expelled and ordered to stay in the transit zone, where they were denied access to food.[14]
The former IAO did not consider that it was obliged to provide food to foreigners under alien policing procedures in the transit zones. The former IAO argued that the government decree on the implementation of alien policing procedures only prescribes the provision of food in community shelters, and does not specifically mention the transit zones in this regard.[15] The HHC requested Rule 39 in five cases and the ECtHR ordered the Hungarian Government to provide food for the applicants. After these successful Rule 39 cases, this clearly inhuman treatment and absurd legal situation stopped.[16] The Government in its response to the Rule 39 interim measures stated that it had “misinterpreted” the law. After that rejected applicants that appealed their inadmissibility decision did get food in the transit zone. The alien policing procedure was still started, but it was immediately suspended because of the appeal.
However, foreigners in the alien policing procedure, whose asylum cases were no longer pending still did not receive food in 2020 (see Conditions in Detention Facilities). The HHC obtained 12 interim measures based on Rule 39 in 2019 and seven interim measures in 2020, ordering the Government to provide food to the applicants.
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.[17]
Legal assistance
There is no longer a separate procedure for admissibility, therefore the same rules as in the Regular Procedure apply. What is particularly problematic for asylum seekers in the case of an inadmissibility decision are short deadlines (only 3 days to lodge an appeal) and the fact that hearing at the court is an 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] Section 51(2)(f), and newly introduced Section 51(12) Asylum Act.
[3] IV/03538-1/2021, https://bit.ly/3Lx6nH4.
[4] UN High Commissioner for Refugees (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.
[5] 11.K.703.256/2021/7.
[6] Section 53(3) Asylum Act.
[7] Section 80/K Asylum Act.
[8] Section 53(4) Asylum Act.
[9] Section 53(4) Asylum Act.
[10] Opinion of advocate general Bobek (CJEU), Case C-564/18, LH v. Bevándorlási és Menekültügyi Hivatal, 5 December 2019.
[11] Section 53(6) Asylum Act.
[12] Based on Section 52 Code on Administrative Litigation.
[13] Article 46(5) recast Asylum Procedures Directive.
[14] HHC, Asylum-seekers with Inadmissible Claims are Denied Food in Transit Zones at Border, 17 August 2018, available at: https://bit.ly/2Egsz7B.
[15] Section 135 TCN Decree.
[16] HHC, ’All asylum seekers finally get food in the transit zones at the border’, 23 August 2018, available at: https://bit.ly/2S87D6U.
[17] Section 53(5) Asylum Act.