Dublin

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Hungarian Helsinki Committee Visit Website

General

The Dublin Unit has 11 IAO staff members.

Dublin statistics: 2018

Source: IAO

In 2018, no asylum seeker was transferred to Hungary.

Application of the Dublin criteria

The Dublin procedure is applied whenever the criteria of the Dublin Regulation are met, and most outgoing requests are issued based on the criteria of irregular entry or a previous application in another Member State. Whereas in 2016, the majority of the 5,619 outgoing requests issued by Hungary were addressed to Greece, most requests issued in 2017 and 2018 concerned Bulgaria.

However, in one case, the HHC represented in the asylum procedure an asylum seeker who was in a criminal procedure in Hungary and his family members were asylum seekers in Austria. The Hungarian Dublin Unit refused to start the Dublin procedure, saying that Dublin cannot be applied while the applicant is in a criminal procedure. After the intervention of the HHC lawyer, the Dublin Unit finally sent a take charge request to Austria, 1.5 month after his application for asylum. Due to the very slow procedure in Austria, the applicant could only join his family after 5.5 months since the start of the Dublin procedure.

If an asylum seeker informs the IAO that he or she has a family member in another Member State, the IAO requests the personal data of the family member. Depending on the case officer, documents may also be requested, but this is not a general practice. The HHC lawyers have experienced a general sense of goodwill and cooperative spirit from the IAO’s Dublin Unit in cases where asylum seekers were requesting to be united with their family members.

The Dublin Unit accepts documents (birth certificates, national ID) without translation and transferred them to the requested Member State’s authorities in a speedy manner. Communication between Dublin caseworkers and HHC lawyers was good and constructive, both sides working to realise transfers swiftly.

The HHC is aware of one case from 2017 when a DNA test was used to verify the family link between two brothers. The costs of the test were not borne by the applicant. The IAO was evidently not sure of the procedural steps that needed to be taken, which resulted in the HHC taking over many of the practical aspects of the case’s management (e.g. sending the sample materials to the Belgian authorities).

The Dublin Unit also ceased its practice of relying on Article 17(2) in the cases of unaccompanied children and instead started referring to Article 8. Despite the positive changes at the Hungarian Dublin Unit, it became evident in 2018 that Dublin transfers could hardly take place without the active involvement of competent lawyers. HHC lawyers and attorneys experienced an increasingly strict and negligent attitude from the authorities of Austria, Germany and France.

Before 2018, the Hungarian authorities refused to apply Article 19(2) of the Dublin III Regulation with regard to Bulgaria in cases of asylum seekers who have waited more than 3 months in Serbia before being admitted to the transit zone. According to Article 19(2), the responsibility of Bulgaria should have ceased in such situations, but the Hungarian authorities argued that this is not something that the applicants can rely on, but it can only be invoked by Bulgaria. Bulgaria in most cases either does not respond to Dublin request and therefore the responsibility is assumed, or it does not invoke Article 19(2).This practice changed in 2018.The HHC witnessed cases where the courts would quash a Dublin decision and accept the argument of tree-month stay outside of the EU,See e.g. Administrative and Labour Court of Szeged, Decision 11.K.27.085/2018/9, 23 February 2018. as well as cases where responsibility was directly established by the IAO.

The dependent persons and discretionary clauses

Hungary decided in a total of 227 casesOnce in relation to Germany, at another time regarding Bulgaria and in 225 cases the IAO examined the application in relation to Greece. in 2017 and in 82 cases in 2018 to examine an application for international protection itself.Information provided by IAO, 12 February 2018; 12 February 2019.

In 2017, Hungary established the responsibility of other Member States in 2 cases under the “humanitarian clause”. Pursuant to the humanitarian clause of Dublin Regulation 14 requests by other Member States were sent to Hungary in 2017. There were no cases in 2017 where “sovereignty clause” or the dependent persons clause were applied.Information provided by IAO, 12 February 2018. Unlike in the preceding years, the IAO refused to provide the data regarding 2018, claiming that they do not have them in the form requested by the HHC. Given that the provision of data would be costly, the IAO requested the HHC to pay for the request.Information provided by IAO, 12 February 2019.

The IAO’s practice does not have any formal criteria defining the application of the sovereignty clause. The sovereignty clause is not applied in a country-specific manner; cases are examined on a case-by-case basis.

Procedure

Asylum seekers are systematically fingerprinted and their data is stored in Eurodac by the police authorities. However, during the large-scale influx of asylum seekers in 2015 and 2016, the IAO did not have the capacity to systematically store the fingerprints of those applying for asylum under the “asylum seeker” category (“Category 1”) in Eurodac, in particular in case large groups have been apprehended at the same time. The police authorities stored the fingerprints of those apprehended under the category of “irregular migrants” (“Category 2 and 3”) in the Eurodac system.

Some asylum seekers reported in 2015 that they were forced to give fingerprints. They reported that they were denied water until they agreed to give fingerprints. No such cases were reported since then. Where an asylum seeker refuses to have his or her fingerprints taken, this can be a ground for an accelerated procedure, Section 51(7)(i) Asylum Act. or the IAO may proceed with taking a decision on the merits of the application without conducting a personal interview.Section 66(2)(f) Asylum Act.

If a Dublin procedure is initiated, the procedure is suspended until the issuance of a decision determining the country responsible for examining the asylum claim.Section 49(2) Asylum Act. The suspension ruling cannot be subject to individual appeal.Section 49(3) Asylum Act. Even though a Dublin procedure can also be started after the case has been referred to the in-merit asylum procedure, Dublin procedures can no longer be initiated once the IAO has taken a decision on the merits of the asylum application. Finally, the apprehension of an irregular migrant can also trigger the application of the Dublin III Regulation.

Individualised guarantees

The IAO reports that it notes the existence of vulnerability factors already in the request sent to the other EU Member State and, if necessary, asks for individual guarantees. Nonetheless, the IAO does not have any statistics on the number of requests of individual guarantees. The request of individual guarantees concerns the treatment and the accommodation – especially the possibility of detention – of the transferred person. The inquiry furthermore includes questions about access to the asylum procedure, legal aid, medical and psychological services and about the appropriateness of material reception conditions.

According to the HHC’s experience with Dublin cases concerning Bulgaria, the Dublin Unit has asked the Bulgarian Dublin Unit in several cases to provide information on the general reception conditions for Dublin returnees, but these questions did not include individual characteristics of the persons concerned, so no questions were asked regarding specific needs of specific individuals. All Dublin decisions then contain a standard generic reply from the Bulgarian Dublin Unit. This would therefore constitute general information rather than individual guarantees.

Transfers

If another EU Member State accepts responsibility for the asylum applicant, the IAO has to issue a decision on the transfer within 8 days, and this time limit is complied with in practice.Section 83(3) Asylum Decree. Once the IAO issues a Dublin decision, the asylum seeker can no longer withdraw his or her asylum application.Section 49(4) Asylum Act.

All asylum seekers, including asylum seekers under Dublin procedure, except minors below 14 years of age are held in transit zones for the whole duration of the asylum procedure (including Dublin procedure).

The transfer procedure to the responsible Member State is organised by the Dublin Unit of the IAO, in cooperation with the receiving Member State, but the actual transfer is performed by the police. In case of air transfer, the police assist with boarding the foreigner on the airplane, and – if the foreigner’s behaviour or his or her personal circumstances such as age do not require it – the foreigner travels without escorts. Unaccompanied minors travel with their legal guardian who hands them over to the authorities of the receiving Member State. Otherwise, the person will be accompanied by Hungarian police escorts. In case of land transfers, the staff of the police hand over the foreigner directly to the authorities of the other state. According to HHC’s experience, voluntary transfers are rare. There is no official information on the duration of the transfer.

In 2018, Hungary issued 276 outgoing requests and carried out 53 transfers, thereby indicating a 19.2% transfer rate.  

Personal interview

There is no special interview conducted in the Dublin procedure. The information necessary for the Dublin procedure is obtained in the first interview with the IAO, upon submission of asylum application, but usually only in relation to the way of travelling and family members. According to the HHC, this is contrary to Articles 4 and 5 of the Dublin Regulation.

Until recently, according to the HHC’s experience, asylum seekers were rarely asked about the reasons for leaving another EU Member State. This was particularly problematic because the IAO takes the decision on transfer without being aware of any potential problems that the applicant could have experienced in the responsible Member State. This problem further escalates at the appeal stage since there the hearing is excluded by law. Therefore, asylum seekers never actually got a chance to explain why they believe return to a responsible Member State would violate their rights. In one case for example, the applicant did not even have a regular interview, the IAO only checked his fingerprints and issued a Dublin transfer decision for Greece. The case reached the Court only after 8 months because of the delay in communication of the Dublin decision to the applicant and finally the court quashed the decision due to the procedural mistakes.Metropolitan Court, Decision No 35.Kpk.46.367/2016/6. In another case, the applicant was asked during the interview about Serbia and informed that Serbia is considered as a safe third country and that he had 3 days to submit the additional evidence why his return to Serbia would not be safe. After that, the applicant received a Dublin decision ordering his transfer to Greece.

In 2018, the HHC observed that the interview questions did touch upon the conditions in the EU countries on the applicants’ journey. 

Appeal

Asylum seekers have the right to request judicial review of a Dublin decision before the competent Regional Administrative and Labour Court within 3 days.Section 49(7) Asylum Act. The extremely short time limit of 3 days for challenging a Dublin transfer does not appear to reflect the “reasonable” deadline for appeal under Article 27(2) of the Dublin III Regulation or the right to an effective remedy under Article 13 ECHR.UNHCR has also criticised the effectiveness of Dublin appeals, citing CJEU, Case C-69/10 Diouf, Judgment of 28 July 2011, paras 66-68. See UNHCR, UNHCR Comments and recommendations on the draft modification of certain migration, asylum-related and other legal acts for the purpose of legal harmonisation, January 2015, available at: http://bit.ly/1GvunEz, 20. The HHC’s attorney has observed that sometimes in Békéscsaba, an asylum detention centre that is now closed, the IAO did not inform the asylum seeker of the 3-day deadline for a judicial review.

The request for review shall be submitted to the IAO. The IAO shall forward the request for review, together with the documents of the case and its counter-application, to the court with no delay.Section 49(7) Asylum Act. In practice however, the HHC has observed cases where the Dublin Unit of the IAO only forwarded the appeals to the court after several months. This significantly prolonged already very long Dublin procedures. For example in one case, the Dublin Unit waited 5 months before forwarding the appeal of an Afghan family, whose husband was seriously traumatised. HHC as well as UNHCR raised these problems with the IAO and finally the head of the Dublin Unit was replaced. The HHC observes that since the end of 2016, the appeals are forwarded to the court faster and since then no such problems were observed.

The court can examine points of fact and law of the case, however only on the basis of available documents. This has been interpreted by the courts as precluding them from accepting any new evidence that were not submitted to the IAO already. This kind of interpretation makes legal representation in such cases meaningless, since the court’s assessment is based on the laws and facts as they stood at the time of the IAO’s decision and the court does not at all examine the country information on the quality of the asylum system and reception conditions for asylum seekers in responsible Member State submitted by the asylum seeker’s representative in the judicial procedure. The court has to render a decision within 8 calendar days.Section 49(8) Asylum Act. In practice, however, it can take a few months for the court to issue a decision.

A personal hearing is specifically excluded by law; therefore, there is no oral procedure.Section 49(8) Asylum Act. This was particularly problematic in the past, since the asylum seeker was usually not asked in the interview by the IAO about the reasons why he or she left the responsible Member State and, since the court does not hold a hearing, this information never reaches the court either. In 2018, the HHC observed that the interview questions did touch upon the conditions in the EU countries on the applicants’ journey. Asylum seekers were asked regarding the Member States they transited during their route about the following: “For how long and where did you stay there? What did you do meanwhile? Why you did not apply for asylum? Did you consider it as a safe country? Why do you think it is not safe? What would happen to you upon your return there? Did you try to apply for accommodation in a reception centre? What kind of documents were you issued?”

Appeals against Dublin decisions do not have suspensive effect. Asylum seekers have the right to ask the court to suspend their transfer. Contrary to the Dublin III Regulation,Article 27(3) Dublin III Regulation. according to the TCN Act and Asylum Act this request does not have suspensive effect either.Section 49(9) Asylum Act. However, the Director-General of the IAO issued an internal instruction, stating that if a person requests for suspensive effect, the transfer should not be carried out until the court decides on the request for suspensive effect.Information provided by the Dublin Unit based on the HHC’s request, March 2014. See also EASO, Description of the Hungarian asylum system, May 2015, 6. However, it seems worrying that despite the clear violation of the Dublin III Regulation, the controversial provision was not amended in the scope of the several recent amendments of the Asylum Act.

The HHC’s experience shows that the courts often do not assess the reception conditions in the receiving country, nor the individual circumstances of the applicant. Further on, the court decisions were often delivered by the court clerk and not the judge. However, this has changed from 2018, since according to the new amendments the clerks can no longer issue judgments.Section 94 of Act CXLIII of 2017 amending certain acts relating to migration.

Legal assistance

Asylum seekers have the same conditions and obstacles to accessing legal assistance in the Dublin procedure as in the regular procedure (see section on Regular Procedure: Legal Assistance). What is particularly problematic for asylum seekers in the Dublin procedure are short deadlines (only 3 days to lodge an appeal) and the absence of a right to a hearing before the court. In such a short time it is hard to get access to legal assistance, which seems even more crucial since there is no right to a hearing. 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 want to take into account any new evidence presented during the judicial review procedure.

Suspension of transfers

Greece

Until May 2016, because of the European Court of Human Rights (ECtHR)’s ruling in M.S.S. v. Belgium and Greece,ECtHR, M.S.S. v. Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011. transfers to Greece have occurred only if a person consented to the transfer. However, in May 2016, the IAO started to issue Dublin decisions on returns to Greece again. The IAO was of the opinion that the M.S.S. case was no longer applicable, since Greece had received substantial financial support and the reception conditions in Greece were not worse than in some other EU countries. In some cases, the HHC lawyers successfully challenged such decisions in the domestic courts and in two cases the HHC obtained Rule 39 interim measures from the ECtHR, because the domestic courts confirmed the transfer decision of the IAO.HHC, Hungary: Update on Dublin transfers, 14 December 2016, available at: https://goo.gl/Fm00tF. In both cases, the court decision was not issued by a judge but a court secretary. Both cases were struck out in 2017 because the applicants left Hungary and the Court was of the opinion that they are no longer at risk of being sent back to Greece because of the constrained resumption of Dublin transfers to Greece and the cautious treatment of transfers to Hungary.ECtHR, M.S. v. Hungary, Application No 64194/16 and H.J. v. Hungary, Application No 70984/16.

At least since November 2015, several representatives of the Hungarian government also expressed the view that no Dublin transfers should take place from other Member States to Hungary as those who passed through Hungary must have entered the European Union for the first time in Greece.

However, in December 2016, the practice changed again and no more Dublin transfer decisions to Greece are issued. The same is valid for 2017.

Bulgaria

Hungary has not suspended transfers to Bulgaria, even after UNHCR’s call in January 2014 to temporarily suspend such transfers because of the risk of inhuman and degrading treatment due to systemic deficiencies in reception conditions and asylum procedures in Bulgaria.See UNHCR, UNHCR Observations on the Current Situation of Asylum in Bulgaria, 2 January 2014, available at: http://bit.ly/1dsMr2Y. The HHC lawyers in 2016 obtained two interim measures from the United Nations Human Rights Committee (UNHRC) regarding returns of persons with PTSD to Bulgaria.See e.g. Human Rights Committee, B. v. Hungary, Communication No 2901/2016, 9 December 2016. In 2017, another interim measure was granted by the UNHRC, but the government did not respect the granted interim measure and deported the applicant to Bulgaria. All three cases are still pending. Meanwhile, in one of the three cases the IAO established the responsibility of Hungary based on Article 29(1) and (2) of the Dublin Regulation and is currently conducting the asylum procedure on the merits.

The HHC is aware of a positive decision from the Szeged Court, which stopped a transfer of an Iraqi family with four small children to Bulgaria under the Dublin III Regulation. The wife in the family was 8 months pregnant with the fifth child when the Szeged Administrative and Labour Court ruled on 3 July 2017 that due to her pregnancy, they were in need of special treatment and therefore their transfer to Bulgaria could jeopardize the life of the unborn baby and the wife, which lead the court to the conclusion that their transfer would be unlawful.Administrative and Labour Court of Szeged, Decision No 11.Kpk.27.469/2017/12, 3 July 2017.

In a case of two brothers, the Szeged Administrative and Labour Court annulled a Dublin decision in 2018, reasoning that since one brother was under 14, Hungary is responsible. As to the other brother, the Court applied Article 10 of the Dublin Regulation.Administrative and Labour Court of Szeged, Decision No 4. 10.K.27.051/2018/5, 7 February 2018.

In another case, a four-member Afghan family arrived to the transit zone in 2016 through Bulgaria where they had been fingerprinted. The IAO contacted the Bulgarian authorities regarding their transfer and the family was awaiting a decision. According to the regulations in place at that time, they were released from the transit zone after 28 days and transferred to the open facility in Vámosszabadi. They left the facility for Austria and the family stayed in Vienna for six months. Following that, the Austrian authorities transferred the mother and one child to Bulgaria under the Dublin III Regulation. At that time, the woman was 7months pregnant. The father and the other child continued their way to Germany, while the pregnant mother with a child was in Bulgaria. From there, she went back to Serbia with her child, where she gave birth. The mother and the two children stayed in Serbia for 8 months waiting to enter Hungary. They re-entered the transit zone on 11 July 2017, where she and the older child were considered as subsequent applicants, and thus according to the current legislation ineligible to receive any food, only shelter. It was only the new-born baby who could receive food. The breastfeeding mother and the small child had been starving in the transit zone for at least a week before the Baptists Charity started providing food for them. The Hungarian authorities wanted to send the mother and the two children to Germany under the Dublin Regulation, to be reunited with the father and the other child. The German authorities however informed the IAO that they intended to send the father and the child back to Bulgaria based on their fingerprints. Therefore, the Hungarian authorities decided to follow this example and sent a request to Bulgaria to take the family back. Bulgaria accepted responsibility. The mother with the two children was then released on 27 August 2017 from the transit zone and stayed in a semi-open community shelter in Balassagyarmat. In the meantime, the German authorities decided to recognise the father and the child in Germany as refugees. The HHC lawyer encouraged the Hungarian Unit to re-send the take charge request to Germany and on 16 November 2017, Germany accepted responsibility for the mother and the two children.

The HHC observed that in 2018 Bulgaria stopped accepting responsibility for requests sent by the Dublin Unit.

In the case where the transfer is suspended, Hungary assumes responsibility for examining the asylum application and the asylum seeker has the same rights as any other asylum seeker.

The situation of Dublin returnees

The amendments to the Asylum Act adopted from 2015 until 2017 have imposed some serious obstacles to asylum seekers who are transferred back to Hungary under the Dublin Regulation with regard to re-accessing the asylum procedure.

The following situations are applicable to Dublin returnees:

1. Persons who had not previously applied in Hungary and persons whose applications are still pending are both treated as first-time asylum applicants.

2. Persons who withdraw their application in writing or tacitly cannot request the continuation of their asylum procedure upon return to Hungary; therefore, they will have to submit a subsequent application and present new facts or circumstances. Subsequent Applications raise several issues, not least regarding exclusion from reception conditions. This is also not in line with second paragraph of Article 18(2) of the Dublin III Regulation, which states that when the Member State responsible had discontinued the examination of an application following its withdrawal by the applicant before a decision on the substance has been taken at first instance, that Member State shall ensure that the applicant is entitled to request that the examination of his or her application be completed or to lodge a new application for international protection, which shall not be treated as a subsequent application as provided for in the recast Asylum Procedures Directive.

3. The asylum procedure would also not continue, when the returned foreigner had previously received a negative decision and did not seek judicial review. This is problematic when the IAO issued a decision in someone’s absence. The asylum seeker who is later returned under the Dublin procedure to Hungary will have to submit a subsequent application and present new facts and evidence in support of the application (see section on Subsequent Applications). According to Article 18(2) of the Dublin III Regulation, the responsible Member State that takes back the applicant whose application has been rejected only at the first instance shall ensure that the applicant has or has had the opportunity to seek an effective remedy against the rejection. According to the IAO, the applicant only has a right to request a judicial review in case the decision has not yet become legally binding. Since a decision rejecting the application becomes binding once the deadline for seeking judicial review has passed without such a request being submitted, the HHC believes that the Hungarian practice is in breach of the Dublin III Regulation because in such cases Dublin returnee applicants are not afforded an opportunity to seek judicial review after their return to Hungary.

4. All asylum seekers returned under Dublin will be placed in the transit zone and will have to remain there until the end of their asylum procedure.

Another problem that Dublin returnees face is an imminent interview upon arrival. Several asylum seekers complained to the HHC that they are too tired and not in a position to be focused during such interview just after the transfer that often occurs in late hours. On the other hand, the HHC is aware of the cases where Dublin returnees only had their first interview after several months since their return to Hungary, which is also not appropriate.

Since the enactment of legislative amendments to the Asylum Act in 2015 and 2017 and ensuing practice, administrative authorities and courts in at least 15 countries have ruled against Dublin transfers to Hungary. At least 8 countries (Czech Republic, Finland, Italy, the Netherlands, Norway, Slovakia, Switzerland, United Kingdom) have suspended transfers to Hungary as a matter of policy.For an overview of related case law, see HHC, Summary of bans on / stopping of Dublin returns to Hungary as of 16 May 2018, available at: https://bit.ly/2s2QjWB. In 2017, UNHCR also released a statement on halting Dublin transfers to Hungary.UNHCR, ‘UNHCR urges suspension of transfers of asylum-seekers to Hungary under Dublin’, 10 April 2017, available at: http://bit.ly/2EIcF3R.