Dublin

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Hungarian Helsinki Committee Visit Website

General

Dublin statistics: 2020

Source: NDGAP

Application of the Dublin criteria

The Dublin procedure is applied whenever the criteria of the Dublin III 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, 2018 and 2019 concerned Bulgaria. In 2020, most requests, 17 out of 37 were addressed to Germany.

If an asylum seeker informs the NDGAP that he or she has a family member in another Member State, the NDGAP 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 NDGAP’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 2019 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. As opposed to the last such case from 2017, the NDGAP communicated the procedural steps with the applicant and the legal representatives in a swift and speedy manner.

Despite the positive attitude of the Hungarian Dublin Unit, it is still evident that Dublin transfers could hardly take place without the active involvement of competent lawyers.

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. The Hungarian authority’s stance on this did not change, however, Bulgaria no longer accepts incoming requests from Hungary.

In 2020, the HHC successfully facilitated Dublin procedures for unaccompanied minors to Germany, based on Article 8 (1) and (2) of the Dublin Regulation. The German authorities unnecessarily prolonged the cases and issued very schematic rejection decisions before finally taking responsibility.

The dependent persons and discretionary clauses

Hungary decided in a total of 227 cases[1] in 2017, in 82 cases in 2018, 17 cases in 2019 and only in 3 cases under Section 17(1) of Dublin Regulation to examine an application for international protection itself.[2]

Hungary established the responsibility of other Member States in 1 case[3] under the “humanitarian clause” in 2019, whereas in 2020 there was no such case recorded.[4] Pursuant to the humanitarian clause of Dublin Regulation there was no request by other Member States sent to Hungary in 2019 and 2020. There were no cases where dependent persons clause was applied in the last two years.

The NDGAP’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 

The Dublin Unit had 8 NDGAP staff members on 31 December 2020.

Where an asylum seeker refuses to have his or her fingerprints taken, this can be a ground for an accelerated procedure,[6] or the NDGAP may proceed with taking a decision on the merits of the application without conducting a personal interview.[7]

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.[8] The suspension ruling cannot be subject to individual appeal.[9] 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 NDGAP 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 former IAO and the NDGAP report 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 former IAO and NDGAP do 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.

In 2019, no Dublin decisions were issued with regard to irregular entry criteria (e.g. with respect to Bulgaria, Greece or Croatia), whereas in 2020, there were 2 decisions issued on the ground of Section 13 of Dublin Regulation both with regard to Greece.

Transfers

If another EU Member State accepts responsibility for the asylum applicant, the NDGAP has to issue a decision on the transfer within 8 days, and this time limit is complied with in practice.[10] Once the NDGAP issues a Dublin decision, the asylum seeker can no longer withdraw his or her asylum application.[11]

All asylum seekers, including asylum seekers under Dublin procedure, except minors below 14 years of age were held in transit zones until 21 May 2020, 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 and the Expulsion and Transfer Unit of the NDGAP, 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. According to NDGAP the average duration between the request and the execution of the transfer is 87 days. If another Member State has taken responsibility the average duration between the acceptance of the responsibility and the execution of the transfer is 58 days.[12]

In 2020, Hungary issued 37 outgoing requests and carried out 27 transfers.

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 NDGAP, upon submission of asylum application, but usually only in relation to the way of travelling and family members.

As of 2018, the HHC observes that the interview questions do touch upon the conditions in the EU countries on the applicants’ journey. The questions are not very elaborated though.

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.[13] 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.[14]

The request for review shall be submitted to the NDGAP. The NDGAP shall forward the request for review, together with the documents of the case and its counter-application, to the court with no delay.[15]

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 NDGAP 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 NDGAP’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.[16] 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.[17] This was particularly problematic in the past, since the asylum seeker was usually not asked in the interview by the former 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, as well as in 2019, 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,[18] according to the TCN Act and Asylum Act this request does not have suspensive effect either.[19] However, the Director-General of the former 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.[20] 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 by the judge. However, this has changed from 2018, since according to the new amendments the clerks can no longer issue judgments.[21]

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.

Asylum seekers and their legal representatives do not have any information on the procedural steps taken in the Dublin proceudre, as they are only informed about the final decisions issued by the NDGAP. They therefore do not know when and if the request was sent to another Member State, whether the Member State responded, etc.

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,[22] transfers to Greece have occurred only if a person consented to the transfer. However, in May 2016, the former IAO started to issue Dublin decisions on returns to Greece again. The former 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 former IAO.[23] In both cases, the court decision was not issued by a judge but by 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.[24]

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, 2018 and 2019. In 2020 however, two decisions were issued with regard to Greece, but no transfer took place.

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.[25] 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.[26] 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 former 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.[27]

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.[28]

The HHC observed that in 2018 Bulgaria stopped accepting responsibility for requests sent by the Dublin Unit. There were no Dublin decisions and transfers to Bulgaria in 2019 nor in 2020.

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:

• Persons who had not previously applied in Hungary and persons whose applications are still pending would usually be treated as first-time asylum applicants. However, according to the current asylum legislation in force (Transitional Act), only 3 exceptions (see Embassy procedure) can apply for asylum within the Hungarian territory. If a person, who did not yet apply for asylum in Hungary, would be returned under the Dublin Regulation, he/she would have to apply for asylum upon return, but the current legislation in force does not allow for this possibility. “Dublin returnees” do not figure among the exceptions, who are allowed to apply for asylum within the Hungarian territory.

• 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. Moreover, the current asylum legislation in force (Transitional Act), does not even allow “Dublin returnees” to apply for asylum within the Hungarian territory. 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.

• 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 NDGAP 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). However, the current asylum legislation in force (Transitional Act), does not even allow “Dublin returnees” to apply for asylum within the Hungarian territory. 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 NDGAP, 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.

[1]        Once in relation to Germany, at another time regarding Bulgaria and in 225 cases the former IAO examined the application in relation to Greece.

[2]        Information provided by former IAO, 12 February 2018; 12 February 2019; and by NDGAP on 3 February 2020 and 2 March 2021.

[3]        Information provided by NDGAP on 3 February 2020 and 2 March 2021.

[4]        Information provided by NDGAP on 2 March 2021.

[5]        Information provided by NDGAP on 3 February 2020.

[6]        Section 51(7)(i) Asylum Act.

[7]        Section 66(2)(f) Asylum Act.

[8]        Section 49(2) Asylum Act.

[9]        Section 49(3) Asylum Act.

[10]       Section 83(3) Asylum Decree.

[11]       Section 49(4) Asylum Act.

[12]       Information provided by NDGAP on 3 February 2020.

[13]       Section 49(7) Asylum Act.

[14]   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: https://bit.ly/2I7fL4P, 20.

[15]       Section 49(7) Asylum Act.

[16]       Section 49(8) Asylum Act.

[17]       Section 49(8) Asylum Act.

[18]       Article 27(3) Dublin III Regulation.

[19]       Section 49(9) Asylum Act.

[20]       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.

[21]       Section 94 of Act CXLIII of 2017 amending certain acts relating to migration.

[22]       ECtHR, M.S.S. v. Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011.

[23]       HHC, Hungary: Update on Dublin transfers, 14 December 2016, available at: https://goo.gl/Fm00tF.

[24]       ECtHR, M.S. v. Hungary, Application No 64194/16 and H.J. v. Hungary, Application No 70984/16.

[25]       See UNHCR, UNHCR Observations on the Current Situation of Asylum in Bulgaria, 2 January 2014, available at: http://bit.ly/1dsMr2Y.

[26]       See e.g. Human Rights Committee, B. v. Hungary, Communication No 2901/2016, 9 December 2016.

[27]       Administrative and Labour Court of Szeged, Decision No 11.Kpk.27.469/2017/12, 3 July 2017.

[28]       Administrative and Labour Court of Szeged, Decision No 4. 10.K.27.051/2018/5, 7 February 2018.