Author
Under Hungarian law, family reunification applicants are the family members of the refugees (sponsors of family reunification) residing in Hungary, not the refugees themselves. The following family members may be family reunification applicants:
- Spouse,[1]if they had married with the sponsor before the refugee reached the territory of Hungary,
- minor children (including adopted and foster children) of the sponsor,
- the parent or legal guardian of UAM refugee,
- dependent parent of the sponsor,
- siblings and direct relatives of the sponsor if they are unable to provide for themselves for their health condition.[2]
Procedure and substantive requirements imposed
Family members have to apply at the Hungarian consulate accredited to their country of origin or of residence. According to the law, family reunification applicants shall lawfully reside in the country where they submit the claim.[3] Refugees’ family members are often themselves refugees in countries neighbouring the country of origin. In most cases, the family members stuck in the first country of asylum are unable to obtain a legal status there (and documentary proof thereof) that would be considered as ‘lawful stay’ in the sense of Hungarian law. Therefore, the family members have to first obtain some kind of documents to prove the legality of their stay in the country where they reside. In some cases, consulates helped clarify that person’s ‘lawful stay’. In one case of the HHC, the NDGAP gave its consent for the sponsor parents to initiate the procedure in Hungary instead of their applicant minor children at the consulate because the accredited Hungarian consulate was closed for indefinite period of time due to the COVID-19 pandemic.
Although family members are required to apply at the competent Hungarian consulate, it is the NDGAP that considers the application and takes the decision. The applicants are required to prove their relationships with the sponsors. The consulate records the biometric data of the applicant when submitting the application. The applicant has to prove their subsistence income, accommodation, and a comprehensive health insurance (or sufficient savings to fund medical treatment) in Hungary, or the sponsor (who is the recognised beneficiary of international protection in Hungary) may do so by declaring that they undertake the support of the applicant’s family member. The requirements regarding the volume of funds verifying the subsistence are not defined in the law. In the experience of HHC lawyers, this causes uncertainty on the one hand. On the other hand, usually the income considered as sufficient must be quite high compared to the Hungarian labour market, and to the widespread practice of employment in the grey area, which furthermore makes it possible to verify only part of the actual income.
According to Hungarian law, there is no time limit to initiate the family reunification. The embassy shall forward all documents without delay to the NDGAP. The time limit for the administration of NDGAP is 21 days, which shall not include:
- the period of designation of the competent immigration authority in proceedings for the exclusion of an immigration authority,
- the time elapsing between the date of the request to rectify the deficiencies or to provide the information necessary to clarify the facts and the date of its execution or the date of the expiry of the time limit specified in the request without result
- the duration of the suspension of the proceedings,
- the duration of the procedure of expert authorities,
- the duration of the summons,
- the duration of a breakdown or other unavoidable event which prevents the NDGAP from functioning for at least one full day,
- the duration of the preparation of the expert opinion,
- the period from the date of dispatch to the date of service of the request or decision, with the exception of a request sent at the time of production or detention, and the period of publication of the notice,
- in the case of a request for clarification of the facts by another body or department, the period from the date of dispatch of the request for a check until the date of receipt by the aliens’ registration authority of the notification of the results of the check.[4]
In the experience of the HHC, the procedure normally last at least 6 months, from the application made at the embassies till a substantive decision made by the NDGAP.
In Hungary, only refugees are entitled to family reunification under preferential conditions within three months following the recognition of their status.[5] They are exempted from fulfilling the usual material criteria: subsistence, accommodation, health insurance. No preferential treatment is applied to beneficiaries of subsidiary protection. The reasons for fleeing their countries of origin of beneficiaries of subsidiary protection are often similar to those of refugees. They rarely have the means to fulfil the strict material conditions for family reunification. It demands sacrifice and even luck to find a job or multiple jobs where the beneficiary could earn a salary that is high enough to meet the criteria of the family reunification. Consequently, the lack of any preferential treatment de facto excludes many beneficiaries of subsidiary protection from the possibility of family reunification, which often has a harmful impact on their integration prospects as well.
In 2023, 14 family members from 7 families were able to lawfully and safely join their family members living with refugee status or subsidiary protection in Hungary in 2023. with the assistance of the HHC despite the difficulties detailed above. This trend is promising regarding respect of the rights to family life and to family reunification. However, the uncertainty of the expected financial means and the discretional right of the NDGAP to decide case-by-case about the sufficiency of these financial means remain.
Evidentiary and documentation requirements
The authorities are strict regarding necessary documents, which make family reunification more difficult. They request that all the documents bear an official stamp, proving that they are originals, as well as an official stamp from the Hungarian consulate.[6] All documents have to be translated to English or Hungarian and bear an official stamp, which is very costly. The decisions made by the NDGAP are predominantly based on these documents and there is relatively small space for other ways to prove family links. In 2020, some of the family members could not prove their family link with the sponsor because the submitted certificates turned out to be falsified/not accepted as original by the NDGAP without the family members’ knowledge of any falsification. The NDGAP rejected the applications at first and second instance. The HHC represented these families successfully before the court, and the NDGAP had to re-examine the applications. In the new procedures, both families’ reunifications were granted. According to Hungarian law, DNA tests could solve the question of family links in several cases when the documents are missing. Since 2017, however, DNA tests cannot be initiated by the applicants. Instead, they have to be ordered by the NDGAP. No DNA tests have been ordered for the purpose of family reunification in 2021. There is no data for 2023 in that regard.
Hungary does not accept certain travel documents, such as those issued by Somalia for example. Nevertheless, unlike other EU Member States, Hungary refuses to apply any alternative measure that would enable for a one-way travel with the purpose of family reunification in such cases.[7] Consequently, certain refugee families are de facto excluded from any possibility of family reunification based on their nationality or origin. The NDGAP suggested to one of these families to apply for a ‘Schengen visa’, as the Schengen Code allows the use of separate sheet for visa stickers. However, in the procedure for a Schengen visa application, the family members of refugees could not refer to the preferential conditions of family reunification, and therefore they would be still deprived of their right based on their nationality or origin.
The NDGAP collects no data on the numbers of family reunification applications which were submitted by family members of beneficiaries of international protection, neither could they provide any information on the outcome of these procedures.[8]
An appeal may be lodged within 8 days of the notification of the decision with the aliens’ registration first instance NDGAP authority.[9] The time limit for deciding on an appeal is 21 days.[10] A judicial review request may be submitted against the second-instance NDGAP rejection, within 30 days of receiving the second-instance decision.[11]
[1] Although the relevant law does not provide that no same-sex spouses may be reunited via this procedure, as Hungarian law does not recognize marriage of same-sex couples, the authors of this report expect that in such cases the NDGAP would reject the application made on that basis, with potential reference to the absence of valid marriage under Hungarian law. The HHC, however, has not encountered any such case so far.
[2] Section 71 (3) and (7) of GRTCN Act
[3] Section 216 (1)-(2) of GRTCN Decree
[4] Section 173 (1)-(2) GRTCN Act.
[5] The favourable rule was amended by Section 29 Decree 113/2016. (V.30).
[6] Practice-informed observation by the HHC.
[7] Alternative measures applied by other Member States include the issuance of a specific temporary laissez-passer for foreigners (e.g. Sweden, Netherlands, France, Austria, Italy), the acceptance of specific travel documents issued by the Red Cross for the purpose of family reunification (e.g. Austria, UK) and the use of the so-called EU Uniform Format Form, based on Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form (e.g. UK, Germany).
[8] Information provided by NDGAP on 13 February 2023.
[9] Section 210 (2) of the GRTCN Act
[10] Section 210 (8) of the GRTCN Act
[11] Section 114 of GAC and Section 39(1) of Code on Administrative Litigation..