‘Hybrid’ safe third country / first country of asylum
A new inadmissibility ground, a hybrid of the concepts of “safe third country” and “first country of asylum”, is in effect since 1 July 2018. The new provision stems from amendments to the Asylum Act and the Fundamental Law, but it was only put to practice in mid-August 2018. Since 28 March 2017, persons without the right to stay in Hungary can only lodge an asylum application in either of the two transit zones located at the Hungarian-Serbian border. Since Hungary regards Serbia as a safe third country, the new inadmissibility provision abolished any remaining access to a fair asylum procedure in practice. Since July 2018, once an asylum application was lodged, authorities systematically denied international protection to those who arrived via Serbia, declaring these applications inadmissible under the new rules. The applicant can rebut the NDGAP’s presumption of inadmissibility in 3 days, after which the NDGAP will deliver a decision. In case the NDGAP decides the application inadmissible, it will also order the applicant’s expulsion, launching an alien policing procedure.
This newly established inadmissibility ground is not compatible with current EU law as it arbitrarily mixes rules pertaining to inadmissibility based on the concept of “safe third country” and that of “first country of asylum”. Article 33(2) of the recast Asylum Procedures Directive provides an exhaustive list of inadmissibility grounds, which does not include such a hybrid form. That the new law is in breach of EU law is further attested by the European Commission’s decision of 19 July 2018 to launch an infringement procedure concerning the recent amendments. According to the Commission, “the introduction of a new non-admissibility ground for asylum applications, not provided for by EU law, is a violation of the EU Asylum Procedures Directive. In addition, while EU law provides for the possibility to introduce non-admissibility grounds under the safe third country and the first country of asylum concepts, the new law and the constitutional amendment on asylum curtail the right to asylum in a way which is incompatible with the Asylum Qualifications Directive and the EU Charter of Fundamental Rights.”
The NDGAP does not examine whether Serbia would be willing to readmit the applicant before issuing an inadmissibility decision based on this hybrid ground, despite this being a condition for a country to be considered a first country of asylum, according to Article 35 of the recast Asylum Procedures Directive. In all final inadmissibility cases based on the hybrid of the concepts of safe third country and first country of asylum, the NDGAP would not withdraw its inadmissibility decision despite the fact that Serbia officially refused to admit the applicants back. Instead, the former IAO’s and now the NDGAP’s alien policing department began an arbitrary practice of modifying internally the expulsion order issued by the former IAO’s or now the NDGAP’s asylum department by changing the destination country from Serbia to the country of origin of the applicants. Against such internal modification no effective legal remedy is available under domestic legislation. This means that Hungary not just automatically rejects all asylum claims, but it also now expels asylum seekers to their countries of origin (such as Afghanistan) without ever assessing their protection claim in substance. UNHCR itself also regards this practice to be in breach of the principle of non-refoulement and consequently “advised the European Border and Coast Guard Agency, Frontex, to refrain from supporting Hungary in the enforcement of return decisions which are not in line with international and EU law.” According to the TCN Act, such modification of expulsion order cannot be challenged at the court, the HHC however submitted an appeal and the Szeged Administrative and Labour court accepted it and referred a preliminary reference to the CJEU. Questions asked address several issues, such as for example whether non-initiation of the asylum procedure in Hungary after explicit rejection from Serbia is in line with the Asylum Procedures Directive, whether the modification of the expulsion decision and lack of judicial remedy is in line with Return Directive and whether the placement in the transit zone amounts to deprivation of liberty during asylum procedure and during an alien policing procedure.
Serbia has not readmitted any third-country national who does not have a valid visa or residence permit to stay in Serbia since October 2015, therefore the application of this inadmissibility ground is clearly malevolent.
The Metropolitan Administrative and Labour Court turned to the CJEU, requesting a preliminary ruling on whether the July 2018 amendments to the Asylum Act violate the EU asylum acquis. Several similar cases were suspended based on this referral. However, in the meantime, due to the courts’ dispute over the territorial jurisdiction of the cases (see Regular Procedure: Appeal), the cases were transferred to the Szeged Court. In several cases, the Szeged Court did not maintain the suspension, but quashed the former IAO’s inadmissibility decisions and at the same time annulled the placement of the applicants in the transit zones. The Szeged Court directly applied Articles 33 and 35 of the recast Asylum Procedures Directive and stated that the new inadmissibility ground is not in compliance with Article 33, therefore, it did not apply the domestic provision. Nonetheless, the Court examined the first country of asylum principle and the required sufficient protection criteria regarding Serbia. The Court emphasised that the pure existence of international conventions ratified by countries is not sufficient but their applicability has to be examined, as well. Having analysed the available country of origin information, the Court declared that the sufficient protection could not be assessed in the case of Serbia. Furthermore, the Court stated that the former IAO did not take any measure towards the Serbian authorities on the readmission of the applicants.
In one case however, the Court did not find any problems with the application of such inadmissibility ground that was, according to the Court, in line with the Directive, and rejected the appeal. As of February 2019, the jurisdiction was transferred to the Metropolitan Court and there the practice also differed and certain inadmissible decisions based on this ground were found lawful.
As of August 2019, this inadmissibility ground is no longer used and the cases are again examined on the merits. There is no publicly available information on why the practice has changed.
The Advocate General opinion in the above-mentioned case was delivered on 5 December 2019 and he states that the new inadmissibility ground is against EU law, reiterating the stance of the HHC on this matter.
 Section 51(2)(f), and newly introduced Section 51(12) Asylum Act.
 Article XIV Fundamental Law.
 Section 80/J(1) Asylum Act.
 Section 2 Decree 191/2015.
 Section 51(12) Asylum Act.
 Filippo Grandi, UN High Commissioner for Refugees: Hungary’s coerced removal of Afghan families deeply shocking, 8 May 2019, http://bit.ly/2sKyRcW.
 HHC, One year after. How legal changes resulted in blanket rejections, refoulement and systemic starvation in detention, 1 July 2019, http://bit.ly/35V44Yn.
 C-924/19 and 925/19, referred on 18 December 2019.
 CJEU, Case C-564/18 LH, Reference of 7 September 2018.
 Administrative and Labour Court of Szeged, Decision 19.K.27.020/2019/9, 22 January 2019; 16.K.27.761/2018/7, 10 January 2019.
 Administrative and Labour Court of Szeged, Decision No 42.K.32.906/2018/12, 5 September 2018.