Regular procedure

Hungary

Country Report: Regular procedure Last updated: 15/04/21

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Hungarian Helsinki Committee Visit Website

From 28 March 2017 until 26 May 2020, but in practice until March 2020, asylum applications could only be submitted in the transit zones, with the exception of those staying lawfully in the country. All asylum seekers, excluding unaccompanied children below the age of 14, had to stay at the transit zones for the whole duration of their asylum procedure. The asylum procedure in the transit zone was therefore a regular procedure and no longer a Border Procedure. Provisions regulating the border procedure are currently suspended in Hungary, due to the “state of crisis due to mass migration”.

As of 26 May 2020, the regular procedure can be used only by those who receive single-entry permit after submitting a “statement of intent” at the Embassy in Belgrade or Kyiv or by certain exceptions described under subchapter 1.2.Embassy procedure.

 General (scope, time limits)

The asylum procedure in Hungary starts with an assessment of whether a person falls under a Dublin procedure. If this is not the case, the NDGAP proceeds with examining of whether the application is inadmissible or whether it should be decided in an accelerated procedure. The decision on this shall be made within 15 days.[1]

The procedural deadline for issuing a decision on the merits is 60 days.[2] The amendment of the Asylum Act that entered into force on 1 January 2018 provides that the head of the former IAO, and now NDGAP, may extend this administrative time limit on one occasion before its expiry, by a maximum of 21 days. The following shall not count towards the administrative time limit:

  1. periods when the procedure is suspended,
  2. periods for remedying deficiencies and making statements,
  3. periods needed for the translation of the application and other documents,
  4. periods required for expert testimony,
  5. duration of the special authority’s procedure,
  6. periods required to comply with a request.

In 2019, as well as in 2020 the HHC observed that time limits in in-merit cases were usually respected, however because of the above procedural steps that do not count into the 60 days deadline, the NDGAP issues the first decision in around 3 to 4 months. Time to obtain COI, an opinion from other special authorities or any Dublin related procedural steps are excluded from the 60 days deadline. The cases of unaccompanied children that are supposed to be privileged under the law are also not always decided within the deadline.

FRA reports (1 May–30 June 2018) that the length of asylum procedures vary significantly, and that in many cases the administrative decisions have been issued several months after the lodging of the asylum claim.[3]

In 2019, the delays in the asylum procedure grew significantly compared to previous years. The reasons behind this may vary significantly. On the one hand, the reorganisation of the asylum and immigration authority put a heavy burden on the staff and management. Several case officers would rather quit than work for the Police, which they considered to be in contrast with the nature of the asylum authority. The NDGAP’s asylum units in regional directorates were terminated and their decision-making competence was transferred to the Budapest asylum unit. Furthermore, the IAO’s transformation into a branch organisation of the Police meant that asylum officers needed to receive training and pass physical and psychological exams in order to be appointed as police officers. All these factors inevitably led to increased delays in decision-making and standstills in several cases.

First instance decisions on the asylum application, are taken by so-called eligibility officers within the Refugee Directorate of the NDGAP. A decision of the NDGAP may:

  • Grant refugee status;
  • Grant subsidiary protection status;
  • Grant tolerated status where non-refoulement prohibits the person’s return; or
  • Reject the application as inadmissible or reject it on the merits.

Amendments to the Asylum Act that entered into force on 1 January 2018 provide an additional ground for termination of the procedure that is unclear and its application could be problematic: “The refugee authority shall terminate the procedure if the client failed to submit any document requested by the refugee authority in time or failed to comply with the invitation to make a statement within the time limit and, in the absence of the document or statement, the application cannot be decided on.”[5] The HHC has not observed any such termination practice.

In parallel with the rejection decision, the NDGAP also immediately expels the rejected asylum seeker and orders a ban on entry and stay for 1 or 2 years. This ban is entered into the Schengen Information System and prevents the person from entering the entire Schengen area in any lawful way.

According to the NDGAP, the average length of an asylum procedure, from submitting the application for asylum until the first instance decision is delivered was 82 days in 2019. In case of Syrian asylum seekers, this time was shorter, a total of 69 days, while the applications of Afghan applicants were decided in 78 days. In case of Iraqi asylum seekers, the average length of the asylum procedure was longer than the average for all asylum seekers, lasting for a total of 87 days. In 2020, according to the answer of the NDGAP it did not have the requested data.[6]

In practice, according to the HHC, the average length of an asylum procedure, including both the first-instance procedure conducted by the NDGAP and the judicial review procedure, is 3-6 months. The HHC’s lawyers reported that what mainly delayed the decision making at the first instance was the waiting for the approval of the decision by the superior of the case officer. The decisions in status revision procedures and asylum procedures of applicants residing in the territory of Hungary (not in the transit, not in detention) took 2-4 months.

In 2019, as well as in 2020, the HHC observed significantly extended asylum procedures. This is due to the fact that most of the negative decisions are quashed at the court and the NDGAP has to conduct a new procedure that in many cases results in another negative decision that is then quashed again by the court. The average therefore increased to 6 – 10 months. Following the closure of the transit zones and the placement of asylum-seekers to open facilities, several cases pending before the courts were suspended. There was a heavily divergent practice among judges as to whether the change in placement would also mean a change in jurisdiction. The ensuing legal procedures to appoint the Court with jurisdiction prolonged the procedures considerably.

The HHC attorneys report that no COI is shared by the NDGAP with the applicants, before a decision in their asylum case is made. It is therefore not possible to provide any comments to the COI before the appeal phase. It is also quite common that nearly no COI is collected with regard to the reasonableness part of internal protection alternative (IPA). Or very often COI is just mentioned in the decision, but not quoted, only referred to in a footnote, only by a link and never by the exact location of the information in question (no pages are given). Furthermore, the NDGAP usually does not refer to COI from EASO and UNHCR and in those very rare cases when they do, they are presented selectively.

Prioritised examination and fast-track processing

According to Section 35(7) of the Asylum Act, the cases of unaccompanied children should be prioritised. However, this prioritisation is not applied in practice. According to HHC lawyers and attorneys working with unaccompanied children, in several cases the decision-making procedure took the same length as in the cases of adults and the former IAO and the NDGAP used up the 60 days. The HHC is not aware of cases where the former IAO or the NDGAP used the legal possibility to extend the deadline.

At the beginning of 2020, there was one (former) unaccompanied minor in the transit zone of Tompa whose case represents the systematic delays and the NDGAP’s attitude pretty well. He entered the transit zone of Röszke originally together with his uncle and uncle’s partner on 3 January 2019 and asked for asylum immediately. While his story was closely linked to that of his relatives who were granted international protection, his asylum application was rejected. This meant that the relatives were transferred to an open camp while the minor had to stay in detention, practically becoming an unaccompanied child. The first procedure lasted 3 months. The Metropolitan Court ordered the NDGAP to conduct a new procedure, which started in 19 July 2019 and ended on 4 December 2019, lasting nearly five months. In January 2020, the minor turned eighteen and therefore ‘aged out’ of the special legal protection afforded to unaccompanied minors.

In case of an asylum seeker detained in an asylum detention or immigration jail, the asylum procedure shall be conducted as a matter of priority. This is usually applied in practice.[7] Note that the Government did not consider transit zones as detention; therefore the prioritisation did not apply there.

Personal interview

The personal interview of the asylum seeker is mandatory in the asylum procedure. The NDGAP may omit the personal interview in the following cases, where the asylum seeker:[8]

  • Is not fit for being heard;
  • Submitted a subsequent application and, in the application, failed to state facts or provided proofs that would allow the recognition as a refugee or beneficiary of subsidiary protection. The personal hearing cannot be dispensed with, if the subsequent application is submitted by a person seeking recognition whose application was submitted earlier on his/her behalf as a dependent person or an unmarried minor.

The asylum seeker had a first interview usually immediately upon the entry into the transit zone, unless the interpreter was not available, in which case the interview was scheduled in the following days. During the asylum procedure, the asylum seeker can have one or more substantive interviews, where he or she is asked to explain in detail the reasons why he or she had to leave his or her country of origin.

More asylum seekers in the transit zones also complained to the HHC of the fact there were armed security guards present during the interviews, standing or sitting behind their backs. This made the asylum seekers feel extremely intimidated.

The quality of the asylum interviews highly depends on the personality of the case officer. Although in most cases, the interview records – especially when legal representative is not present – are vague and lack the resolution of contradictions, the HHC is also aware of an extremely punctual and detailed interview technique applied in Budapest. Accordingly, the case officer conducts extensive interviews and usually holds two hearings with the aim that at the second time contradictions are clarified in the light of the country of origin information obtained by then.

The applicants also complain that the interviews are extremely lengthy and tiring. There are many introductory questions regarding the personal data of the applicants and their travel route and by the time the questions reach the reasons of fleeing, the applicants are already very tired and they just want to be done with the interview and therefore they do not give enough details.

The interviewer usually does not ask anything concerning the IPA (internal protection alternative) and does not even tell the asylum seeker that they are examining the possibility of the IPA. Or when there are contradictions, the interviewers usually do not try to resolve them at all, or sometimes just partially, but never fully.

In 2019, the NDGAP conducted a total of 549 personal interviews.[9] In 2020, according to the answer of the NDGAP it did not have the requested data.[10]

Interpretation

Section 36 of the Asylum Act and Section 66 of the Asylum Decree set out rules relating to the right to use one’s native language in the procedure and on gender-sensitive interviewing techniques. A person seeking asylum may use his or her mother tongue or the language he or she understands orally and in writing during his or her asylum procedure. If the asylum application is submitted orally and the asylum seeker does not speak Hungarian, the determining authority must provide an interpreter speaking the applicant’s mother tongue or another language understood by that person. There may be no need for using an interpreter if the asylum officer speaks the mother tongue of that person or another language understood by him or her, and the asylum seeker consents in writing to not having an interpreter.

Where the applicant requests so, a same-sex interpreter and interviewer must be provided, where this is considered not to hinder the completion of the asylum procedure.[11] For asylum seekers who are facing gender-based persecution and make such a request, this designation is compulsory.[12] Amendments that entered into force on 1 January 2018 secure the right of the applicant to request a case officer and interpreter of the gender of his or her choice on grounds that his or her gender identity is different from the gender registered in the official database.[13] Nevertheless, the HHC is not aware of any gender or vulnerability-specific guidelines applicable to eligibility officers conducting interviews (see Special Procedural Guarantees). The HHC lawyers reported that in the transit zones the NDGAP officers were quite reluctant to appoint the interpreter of the same gender, even if the client requested. The explanation was that this will prolong the procedure significantly and therefore the applicants usually decided not to insist on this request.

The costs of translation, including translations into sign language, are borne by the NDGAP.

There is no specific code of conduct for interpreters in the context of asylum procedures. Many interpreters are not professionally trained on asylum issues. There is no quality assessment performed on their work, nor are there any requirements in order to become an interpreter for the NDGAP. The NDGAP is obliged to select the cheapest interpreter from the list, even though his or her quality would not be the best. For example, in the Vámosszabadi refugee camp, the HHC lawyer reported that in all his cases regarding Nigerian clients, none of the English interpreters fully understood what the clients said; the lawyer had to help the interpreter. The same happened at the court. There was another case, where the interpreter did not speak English well enough to be able to translate; for example, he did not know the word “asylum”.

An asylum seeker from Ghana entered the transit zone in July 2019, but was still not heard in January 2020. The attempts were made, but the client did not understand the interpreter and since then no new Hausi-Hungarian interpreter has been found. On the other hand, HHC lawyers are aware of good examples, as well, when upon the request of the converted Christian applicant from Afghanistan the former IAO respected the wish of the asylum seeker and appointed a Christian, Hungarian nationality interpreter who spoke perfectly the Farsi language and had a very sensitive manner towards the applicant.

Moreover, the case officers are reluctant to phrase the questions or any information in a non-legalistic way so as to enable the client to understand what the case officer is talking about. If case officers were less formalistic, interpreters would have an easier task in the procedure. Interpreters also sometimes overstep their limits, for example by making comments such as that the asylum seeker comes from different part of a country, because the pronunciation is not used in the area he or she claims to be from.

Amendments that entered into force on 1 January 2018 introduced a new procedural safeguard regarding the selection of interpreters. The NDGAP is required to take into account the possible differences/contrast in terms of the country of origin and the cultural background of the interpreter and that of the applicant, as indicated by the applicant to the authority.

In 2020, the HHC lawyers reported that the main problem was the interpretation through a videoconference. The connection was often very bad, sometimes it completely broke done and a decision had to be communicated to the applicant through a phone call. The sound over the videoconference was of very poor quality, almost not audible. The quality of the interpreters proved to be a challenge in cases, where an applicant only spoke one dialect of certain language (e.g. Sorani dialect of Kurdish language). Arabic interpretation can be problematic, when the Arabic national interpreter and the Arabic national applicant are from different countries and use different vocabulary.Certain asylum seekers would also prefer to have a translator that comes from the same country as them, but this was not always possible (e.g. Afghan translator would translate for Iranians). It was also difficult to find an interpreter for Eritrean applicants and it happened that on certain occasions the applicant speaking English would translate to others. Once a Russian woman claimed the translator did not understand her well enough. At the end of the hearing, she accepted the interview minutes as it was, however, only because she understands Hungarian pretty well, so at the end the interview was read to her in Hungarian. In the other case, there was an understanding problem between a Sudanese woman and the translator in Pidgin English. It did not jeopardize the efficacy of the hearing, but slowed it down significantly.

Videoconferencing

Interviews are frequently conducted through videoconferencing. It happened several times that there were more interpreters present in the same room in Budapest and having videoconferences with asylum seekers from the transit zones. On account of the noise, it was hard to hear and to concentrate on what the interpreter is saying. In general, the connection is reported as of poor quality, as it is often not working and everyone has to wait. Sometimes it is hard to understand what the person on the other side is saying, so both parties have to shout. Conducting an interview through a videoconference does not sufficiently protect the personal data and the flight story of an asylum seeker from those who are not entitled to hear it and it therefore raises confidentiality issues, as it is possible to hear the interviews of other applicants at the same time. The videoconference hearing is also very impersonal, it does not help the applicants and beneficiaries to talk about their past and traumas. It is also unnecessary that in order to communicate a decision, a videoconference has to be used, if the case officer is not present at the place of the applicant. It would be easier if the case officer would fax the decision to the NDGAP officer present at the place of the applicant and he or she would then read it out to the applicant.

Recording and transcript

Interviews are not recorded by audio-video equipment.

The questions and statements are transcribed verbatim by the asylum officers conducting the interview. The interview transcript is orally translated by the interpreter to the asylum seeker who will have an opportunity to correct it before its finalisation and signature by all present persons. In 2019 and 2020, the HHC lawyers observed that if they are present, the interview transcripts are always read back to the asylum seeker. However, the HHC did hear of some complaints from people representing themselves that the transcript was not read back to them.

Based on the adopted amendments of the Asylum Act,[14] as of July 2020 the asylum authority might seize the electronic device of asylum seekers if the facts of the case could not be ascertained without the seizure, or without it, the ascertion would result in a significant delay or if without the seizure the success of the procedure would be at stake. In the view of HHC, the new regulation violates the asylum seekers’ right to private and family life (right to correspondance), as it gives the NDGAP unlimited access to all the personal data stored on the device. Furthermore, it is also in breach of the right to an effective remedy, since the decision on the seizure can only be subject to judicial review together with the petition submitted against the decision on the application. The legislation is not necessary because the obligation has already been imposed on the asylum seeker to cooperate with the asylum authority, by which he/she is obliged to reveal the circumstances of his/her flight, to provide all the necessary information in order to ascertain his/her identity, moreover, he/she is obliged to hand over all the documents in his/her possession to the case officer. All these obligations, therefore, should be enough to ascertain the facts of the case.[15] The provision is also in breach of Article 4(5) Qualification Directive which does not require the provision of further evidence in case the asylum seeker lacks documents or other evidence substantiating his/her citizenship, identity and the reasons of fleeing. Finally, the provision is not in line with the legal observations of the UNHCR issued on the Seizure and Search of Electronic Devices of Asylum-Seekers eiter by not providing any room for requesting the consent of the applicant prior to the implementation of the measure.[16] HHC is not aware of the application of the provision yet.

Appeal

A decision must be communicated orally to the person seeking asylum in his or her mother tongue or in another language he or she understands. Together with this oral communication, the decision shall also be made available to the applicant in writing, but only in Hungarian. In 2019 and 2020, the HHC’s lawyers reported that usually the decision is translated to the applicant by an interpreter. Whether the justification is translated depends on the case officer, but it was translated in most of the cases and always if the lawyer is present. Detailed description of the justification was quite rare, although it did happen a few times.

Decisions taken by the NDGAP may be challenged in a single instance judicial review procedure only; there is no onward appeal. The Public Administrative and Labour Law Courts, organised at the level of regional courts (at the judicial second-instance level), have jurisdiction over asylum cases, which are dealt with by single judges. Judges are typically not asylum specialists, nor are they specifically trained in asylum law.

Competent court

As regards jurisdiction in asylum cases, there has been a dispute going on between the courts in 2018. According to the Code on Administrative Litigation that came into force on 1 January 2018, the asylum judicial procedure shall be conducted by the court under whose territorial jurisdiction the administrative activity subject to the dispute is performed. If the administrative activity is performed in Budapest, then, in accordance with Section 13(3)(a) of the aforementioned Code the Metropolitan Administrative and Labour Court has exclusive territorial jurisdiction. Prior to the legislative changes, the territorial jurisdiction was defined by the residence of the actor, thus asylum judicial reviews initiated from the transit zones were adjudicated by Szeged Administrative and Labour Court.

Since April 2018 the Szeged Administrative and Labour Court has declared lack of jurisdiction in asylum cases based on the argument that the administrative activity is performed in Budapest. Given that the former IAO (and now NDGAP) is a Central Office and the territorial organs have no territorial competence, the decisions are issued in Budapest. Therefore, it referred the appeals to the Metropolitan Administrative and Labour Court that became exclusively competent in asylum cases.

Nonetheless, in October 2018, the Metropolitan Administrative and Labour Court reinterpreted the jurisdiction and, by referring to a ruling of the Metropolitan Regional Court, claimed that the administrative activity shall be determined based on the place of issuance of the decision. Since none of the courts took responsibility on conducting the judicial review, the Metropolitan Regional Court decided on the jurisdiction in November 2018. The Court rendered the jurisdiction to the Szeged Administrative and Labour Court based on the argument that the place of issuance of the decision determines the place of the activity performed by the administrative body. Therefore, since November 2018 decisions issued in the transit zones are adjudicated in Szeged.

Szeged Administrative and Labour Court had jurisdiction over the asylum cases in the transit zone until February 2019. From then on, all decisions in asylum cases have been issued in Budapest and therefore the Metropolitan Court of Budapest has jurisdiction to adjudicate the cases from the transit. This however changed again, when the amendments to the Code of Administrative Court Procedure entered into force in April 2020, following which the administrative branches of the district courts have jurisdiction. Following the closure of the transit zones and the placement of previously arbitrarily detained asylum-seekers to open facilities, several cases pending before the courts were suspended. There was a heavily divergent practice among judges as to whether the change in placement would also mean a change in jurisdiction. The ensuing legal procedures to appoint the Court with jurisdiction prolonged the procedures considerably.

Time limits

The deadline for lodging a request for judicial review is only 8 days.[17] The drastic decrease of the time limit to challenge the NDGAP’s (and before the IAO’s) decision, in force since 1 July 2013, has been sharply criticised by UNHCR and NGOs such as HHC, which have argued that this will jeopardise asylum seekers’ access to an effective remedy.[18] For example, the short deadline proved to be problematic when a person receives subsidiary protection and is not sufficiently informed about the opportunity to appeal this and is not informed about the benefits the refugee status would bring him or her (e.g. possibility of family reunification under beneficial conditions). Within 8 days, it is sometimes impossible to meet a lawyer and the person might miss the deadline for the appeal.

Keeping with the deadline proved especially difficult in the case of unaccompanied children since it requires discussions with a lawyer and the arrangement of the minor’s personal appearance before the asylum authority. The understaffed Children’s Home in Fót may find it difficult to carry out these tasks on time. A shortage in cars and drivers remained to be a recurring problem throughout 2019. In 2020, since there were practically no children in Fót in the regular asylum procedure (only in the Dublin procedure), this issue did not come up.

The request for judicial review does not have a suspensive effect. The Asylum Act does not specifically say that appeals do not have a suspensive effect, but the amendments in 2015 simply removed the provision on suspensive effect, with explanation that the Asylum Procedures Directive and the right to an effective remedy do not require an automatic suspensive effect, but the suspensive effect should be requested. However in practice, the attorneys report different approaches. Some do not request the suspensive effect, while others do. But the lack of suspensive effect in regular asylum procedure was never an issue in practice. The HHC is not aware of any case, where an alien policing procedure would have been started before the appeal was decided. On 17 December 2020 the CJEU issued a judgement in the infringement case C-808/18 and ruled that Hungary has not respected the right, conferred by the Procedures Directive on any applicant for international protection, to remain in the territory of the Member State concerned after the rejection of his or her application, until the time limit within which to bring an appeal against that rejection or, if an appeal has been brought, until a decision has been taken on it.[19]

Section 68(3) of the Asylum Act provides that the court should take a decision on the request for judicial review within 60 days. However, in practice, the appeal procedure takes a bit longer, around 3 months or even more, depending on the number of hearings the court holds in a case. A preliminary reference was asked, whether the above 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-406/18).

Hearing

The hearing is only mandatory if the person is in detention. And even this is subject to some exceptions, where:[21]

  • The applicant cannot be summoned from his or her place of accommodation;
  • The applicant has departed for an unknown destination; or
  • The appeal concerns a subsequent application presenting no new facts.

At the judicial stage, asylum seekers held in the transit zones were not heard if the case is adjudicated by the Metropolitan Court. The reason was that the technical requirements were not met by the court, as the videoconference system was not set up at all and the court would not want to summon the clients – even if there is a credibility issue – from the transit zones, as that would require transport by the police which they deem problematic in terms of costs, time, logistics etc. This was extremely problematic as the Metropolitan Court had the sole territorial jurisdiction to adjudicate all asylum cases, as mentioned above. This changed in April 2020. HHC is aware of a recent case, where the Metropolitan Court judge actually ordered the applicants from the transit zone to be brought to the Court for a hearing. But the NDGAP filed an objection, claiming that according to the law, due to the mass migration crisis, the hearing can only take place through the video conference and that the law does not allow the applicants to be brought to the court. After that the judge established that since there is no possibility to conduct a videoconference at the Metropolitan Court, the applicants will not be heard.[22]

Interpreters are provided and paid for by the court. For rare languages, e.g., Oromo there is usually one or two interpreters nationwide and if he or she travels home, the client has to wait months for an interview.

Hearings in asylum procedures are public. Individual court decisions in asylum cases are published on the Hungarian court portal.[23] However, the personal data, including nationality, of the appellant are deleted from the published decisions.

In the summer of 2018, several decisions were issued by the court in which it rejected the appeals of asylum seekers held in the transit zones, claiming that the applicants did not specify the legal harm they had suffered by the former IAO decision. The court argued that applicants were represented by legal representatives, therefore the Code on Administrative Litigation did not allow the court to call the applicant to remedy this deficiency. The HHC appealed these decisions, arguing that although the applicants had lawyers, upon submitting the appeal the asylum seekers acted in person and not by their legal representative. The Asylum Act provides that the power of attorney does not cover those acts and statements that must be taken in person.[24] Therefore, the court should have called the applicant to remedy the deficiency.

In December 2018, the Metropolitan Regional Court decided on the appeal and annulled the decision of the Metropolitan Administrative and Labour Court. It agreed with the asylum seeker that regarding the peculiarities of the asylum procedure and the circumstances of the submission of the appeal, the lack of detailed specification of the legal injury could not be the reason for rejecting the appeal.[25] The Court also agreed that at the time of the submission of the appeal the applicant acted in person and not by his legal representative. In January 2019, another council of the Metropolitan Regional Court came to the opposite conclusion and approved the decision of the Metropolitan Administrative and Labour Court. The Court interpreted the power of attorney in a way that it covers the judicial procedure, as well, therefore the applicant is considered as acting with a lawyer at the time of the appeal. The judgment also stated the legal representative was present at the delivery of the decision so the lawyer could have completed the appeal of the asylum seeker.[26] In 2019, the HHC attorneys made sure that the initial appeal of the applicants already contains the specifications of legal harm suffered by a negative decision or is supplemented within the deadline. The HHC is also aware of the case, where the Metropolitan Court actually called the asylum seeker to supplement his appeal.

The court carries out an assessment of both points of fact and law as they exist at the date when the court’s decision is made (only ex tunc and not ex nunc examination).The court may not alter the decision of the NDGAP; 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 order the NDGAP to conduct a new procedure if necessary.[27] On 29 July 2019, the CJEU delivered its ruling on the question of compatibility of such a remedy with the right to an effective remedy under Article 47 of the EU Charter.[28] The CJEU clearly stated that courts must substitute their own decision on the merits of an asylum claim where the administrative body had disregarded their earlier decision on the case. This is a landmark decision for asylum seekers in Hungary, who had been locked in a ping-pong game between the asylum authority and the courts.

There were 99 appeals[29] submitted against the decisions of the NDGAP in 2020. The courts issued a total of 162 decisions in asylum cases in 2020. In 70 cases, the courts rejected the appeal of the asylum seekers while in 77 cases the courts annulled or overturned the decisions of NDGAP and ordered them to conduct a new procedure or granted international protection. In 28 cases courts terminated the judicial procedure[30] and in 3 cases rejected the appeals as inadmissible.[31]

Legal assistance

Under Section 37(3) of the Asylum Act, asylum seekers in need have access to free legal aid according to the rules set out in the Act on Legal Aid Act or by an NGO registered in legal protection. The needs criterion is automatically met, given that asylum seekers are considered in need irrespective of their income or financial situation, merely on the basis of their statement regarding their income and financial situation.[33]

The Legal Aid Act sets out the rules for free of charge, state-funded legal assistance provided to asylum seekers. Sections 4(b) and 5(2)(d) provide that asylum applicants are entitled to free legal aid if they are entitled to receive benefits and support under the Asylum Act. Section 3(1)(e) provides that legal aid shall be available to those who are eligible for it, as long as the person is involved in a public administrative procedure and needs legal advice in order to understand and exercise his or her rights and obligations, or requires assistance with the drafting of legal documents or any submissions. Legal aid is not available for legal representation during public administrative procedures. Therefore, in the asylum context, the presence of a legal representative during the asylum interview conducted by the NDGAP is not covered by the legal aid scheme. In the transit zones asylum seekers requesting assistance of lawyers at their first interview would get such assistance only occasionally, depending on whether the State legal aid lawyers are at that moment present in the transit zone. The interview would not be postponed in order to wait for the lawyer to arrive.

Since mid-November 2018, the former IAO had been rejecting the power of attorney of the HHC attorney providing legal representation in the transit zones, claiming that the power of attorney is not in compliance with the requirement of the private documents with full probative value, as it did not contain the signature of the interpreter. The referred section requires the power of attorney to contain the reference as to the asylum seeker being informed about its contents by (either of the witnesses or) the counter-signatory.[34] The HHC argues that the authorisation explicitly states that an interpreter informed the applicant about the contents thereof, which is confirmed by the signature of the attorney. Furthermore, the HHC is of the view that this practice is unlawful and has challenged the decisions of the former IAO before the court. As a result of the judicial review, in January 2019 the Szeged Administrative and Labour Court ruled on the question and confirmed the arguments of the attorney. It declared that the power of attorney is a private document having full probative value and that the former IAO violated the right to lawyer of the applicant. Therefore, the Court annulled the ruling of the former IAO and ordered the conduct of a new procedure.[35] Since then no such problem has arisen.

Section 13(b) of the Legal Aid Act also provides that asylum seekers may have free legal aid in the judicial review procedure contesting a negative asylum decision. Chapter V of the Legal Aid Act sets out rules on the availability of legal aid in the context of the provision of legal advice and assistance with drafting of legal documents for persons who are eligible for legal aid.

Section 37(4) of the Asylum Act provides that legal aid providers may attend the personal interview of the asylum seeker, have access to the documents produced in the course of the procedure and have access to reception and detention facilities to contact their client. Furthermore, a modification to the Asylum Act emphasizes the right of the legal representative for being present at the personal interview even if the interview was conducted by a closed telecommunication network (i.e. either the translator or the case officer is not present at the sight of the asylum seeker).[36]

Legal aid providers may be attorneys, NGOs or law schools who have registered with the Legal Aid Service of the Judicial Affairs Office of the Ministry of Justice and Public Administration.[37] Legal aid providers may specify which main legal field they specialise in, i.e. whether in criminal law, or civil and public administrative law. As a general rule, beneficiaries of legal aid are free to select a legal aid provider of their own choice. This is facilitated by the legal aid offices around the country, which maintain lists and advise clients according to their specific needs. However, in the transit zone, asylum seekers could not choose the state legal aid representative from the list.

In 2019, the NDGAP – following a series of Court rulings[38] – abandoned its practice of not allowing lawyers who are not yet members of the Bar Association to represent asylum seekers. This practice was started in 2017 and was in stark contrast with the wording of the Asylum Act and the Act on General Rules of Administrative Proceedings. Consequently, HHC lawyers who are not yet members of the Bar Association can again represent asylum seekers in their administrative proceedings.

Although asylum seekers in the transit zone were informed about the possibility to request legal assistance from state legal aid lawyers, this assistance has been reported as not effective. Asylum seekers had complained that the state legal aid lawyers rarely met them and did not give them any information about the procedure. They rarely wrote effective submissions for the clients.

The HHC attorneys or any other non-government affiliated attorneys did not have access to the transit zones, neither to the open reception centres or detention centres. The HHC attorneys can only represent the clients if the asylum seekers explicitly communicate the wish to be represented by the HHC attorney to the NDGAP and sign a special form. Once this form is received by the NDGAP, the HHC attorney can meet the client – accompanied by police officers –in a special container located outside the living sector of the transit zone, or in a special room inside the reception centre or detention. This way the legal aid is seriously obstructed, as free legal advice does not reach everyone, but only those explicitly asking for it. Besides, it was impossible to obtain legal assistance by the HHC attorney during the first NDGAP interview, since the interview usually happened immediately when the person was admitted to the transit zone and therefore there was no opportunity to access an attorney first. If an asylum seeker would request assistance from a HHC attorney at the first interview, the NDGAP would never postpone the interview and inform the HHC attorney that his or her presence is requested. HHC attorneys therefore usually get involved only in subsequent interviews. The phone signal in the transit zone was also very weak, which often obstructed the interpretation conducted by the phone during lawyer-client meetings.

Since 1 September 2016, the Legal Aid Service is run by the Ministry of Interior. In 2020, state legal aid in extrajudicial procedures was provided in 38 asylum related cases.[39]

             State-funded legal aid in asylum procedures: 2020
Extrajudicial procedures Court procedures
Total requests made and granted 38 4
Bács-Kiskun County (Tompa) 2 0
Csongrád County (Röszke) 9 2
Szabolcs-Szatmár-Bereg County 23 2
Győr-Moson-Sopron County 4 0

Source: Ministry of Interior, 21 May 2021.

 

According to the Ministry of Interior, in asylum cases there were only three persons providing legal aid throughout 2020.[40]

The low financial compensation for legal assistance providers might be an obstacle for lawyers and other legal assistance providers to engage effectively in the provision of legal assistance to asylum seekers.

In 2020, despite the continuous governmental attacks on the organisation and the significant drop in the numbers of asylum seekers, the HHC provided legal counselling in 799 asylum cases. The HHC won the vast majority of its cases where it provided legal representation for asylum seekers before domestic courts. This is a clear indication of the quality of the decisions taken by the asylum authority, as nearly all asylum seekers in Hungary are represented by the HHC.

 

 

 

[1]  Section 47(2) Asylum Act.

[2]  Section 47(3) Asylum Act.

[3]  FRA, Periodic data collection on the migration situation in the EU, July 2018, available at: https://bit.ly/2uLK0Id.

[4]  Section 80/K(3) Asylum Act.

[5] Section 32/I Asylum Act.

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

[7]  Section 35/A Asylum Act.

[8]  Section 43 Asylum Act.

[9]  Information provided by NDGAP, 3 February 2020.

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

[11]  Section 66(2) Asylum Decree.

[12]  Section 66(3) Asylum Decree.

[13]  Section 66(3a) Asylum Decree.

[14] Section 32/Z Asylum Act.

[15]  Section 5(3)-(4) Asylum Act.

[16]  See UN High Commissioner for Refugees (UNHCR), UNHCR Preliminary Legal Observations on the Seizure and Search of Electronic Devices of Asylum-Seekers , 4 August 2017, available at: https://www.refworld.org/docid/59a5231b4.html. 

[17]  Section 68 Asylum Act.

[18]  UNHCR, UNHCR Comments and Recommendations on the Draft modification of certain migration-related legislative acts for the purpose of legal harmonisation, 12 April 2013, available at: https://bit.ly/3aiJvaP, 14.

CJEU, Judgment of the Court (Grand Chamber) of 17 December 2020, European Commission v Hungary, C-808/18, 17 December 2020, ECLI:EU:C:2020:1029.

[20]  Opinion of advocate general Bobek (CJEU), Case C-406/18, PG v.  Bevándorlási és Menekültügyi Hivatal, 5    December 2019.

[21]  Section 68(4) Asylum Act.

[22]  17.K.33.700/2019/10, 3 January 2020.

[23]  Asylum cases published on the Hungarian court portal are available in Hungarian at: http://bit.ly/1IwxZWq.

[24] Section 32/T(4) Asylum Act.

[25] Metropolitan Regional Court, Decision 12.Kpkf.671.039/2018/2, 11 December 2018.

[26] Metropolitan Regional Court, Decision 3.Kpkf.671.107/.2018/4, 9 January 2019.

[27]  Section 68(5) Asylum Act.

[28]  CJEU, Case C-556/17, Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal, 29 July 2019.

[29]  According to the information provided by the NDGAP, this number includes the appeals submitted against the decisions on status withdrawal.

[30]  Information provided by the National Judicial Office on 14 January 2021.

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

[32] This refers both to state-funded and NGO-funded legal assistance.

[33] Section 5(2)(d) Legal Aid Act.

[34]  Section 6(7) Civil Code.

[35]  Administrative and Labour Court of Szeged, Decision 19.K.27.020/2019/9, 22 January 2019.

[36]  43(5) Asylum Act, adopted by the Act CXXXIII of 2018 and in effect since 1 January 2019.

[37]  Chapter VIII Legal Aid Act.

[38] 33.K.32.469/2018/5. judgment dated on 30 August 2018; 45.K.30.841/2018/8. judgment, dated on 14 September 2018; 45.K.30.838/2018/9. Judgement dated on 14 September 2018; 45.K.30.845/2018/9. Judgement dated on 14 September 2018.

[39]  Information provided by the Ministry of Interior, 21 May 2021.

[40] Information provided by the Ministry of Interior, 21 May 2021.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation