Author
Criteria for cessation and revocation
The Asylum Act rules the grounds for cessation of status and revocation of the recognition of status under the same Section.[1] Section 11(1) provides that refugee status shall cease if (i) the refugee acquires Hungarian nationality or (ii) recognition as refugee is revoked by the refugee authority. There are several grounds of revocation determined in the law as follows:[2]
- The refugee has voluntarily re-availed themselves of the protection of the country of their nationality;
- The refugee has voluntarily re-acquired their lost nationality;
- The refugee has acquired a new nationality and enjoys the protection of the country of their new nationality;
- The refugee has voluntarily re-established him or herself in the country which they had left or outside which they had remained owing to fear of persecution;
- The circumstances in connection with which they had been recognised as a refugee have ceased to exist, subject to the exception of a well-founded fear arising from past persecution;[3]
- The refugee waives the legal status of refugee in writing;
- The refugee was recognised in spite of the existence of the reasons for exclusion referred to in Section 8(1) of the Asylum Act or such a reason for exclusion is established against them;
- The conditions for recognition did not exist at the time of the adoption of the decision on their recognition;
- The refugee has misled the authorities during the asylum procedure by presenting false information or documents or by withholding relevant information or documents, provided that it had a decisive impact on the decision for the granting of refugee status.
Furthermore, status as a refugee shall be withdrawn if the refugee is subject to the grounds for exclusion under Section 8(4)[4] and (5)[5] Asylum Act (see detailed in section on Withdrawal of protection status).
The conditions for the cessation of subsidiary protection status are essentially the same as those concerning refugee status.[6] As of 1 January 2022, the grounds for exclusion from subsidiary protection were complemented by an additional case.[7] Accordingly, a foreigner shall not be granted subsidiary protection if there are reasonable grounds for believing that, prior to their admission by Hungary, they have committed an offence in their country of origin punishable in Hungary by a term of imprisonment of up to three years or more and there are reasonable grounds for believing that the applicant left their country of origin only in order to avoid the penalty for the offence. This ground serves as a basis for the withdrawal of subsidiary protection status, as well.[8]
Procedures and guarantees
According to the Asylum Act, the determining authority shall examine the compliance with the conditions for refugee status and subsidiary protection at a minimum three-year interval.[9] The NDGAP shall also examine compliance with the conditions for refugee status or subsidiary protection if the extradition of the person concerned is requested.[10]
Review of the international protection status is governed by the general rules of the asylum procedure (set out in Chapter VII of the Asylum Act), and Sections 57-68 of the Asylum Act.[11] The procedure shall be conducted within 60 days.[12]
Proceedings for the withdrawal of refugee status or subsidiary protection are opened ex officio.[13] The rules of the general asylum procedure shall be applied during the withdrawal proceedings.[14] The NDGAP shall interview the person holding international protection status and in 60 days decide if the conditions for refugee status or subsidiary protection are still applicable. [15] Nevertheless, the HHC is aware of cases where the NDGAP conducted the procedure in the absence of the person concerned. If there is no ground for revocation of the status, the proceedings shall be terminated. [16] However, the NDGAP often does not conduct a proper assessment of the situation in the country of origin of the beneficiary of international protection.
The resolution on the withdrawal of recognition of refugee status or subsidiary protection may be subject to judicial review.[17] The petition for judicial review shall be submitted to the asylum authority within 8 days following the date of delivery of the decision, which then forwards it to the court without delay.[18] The petition for judicial review shall be decided by the court, within 60 days following the receipt of the petition, in contentious proceedings. The judicial review shall provide for a full and ex nunc examination of both facts and points of law.[19] The court may not overturn the decision of the NDGAP, but only abolish the decision it finds unlawful and, if necessary, order the refugee authority to reopen the case. If the court annuls the decision without ordering the asylum authority to conduct a new procedure, the review procedure is closed and the status of the beneficiary of international protection is maintained. Due to legislative changes, between 1 July 2020 and 14 May 2021, a review before the Curia could be requested against the court’s decision (as an extra-judicial remedy).[20]
In the last years, the HHC experienced many cases where Afghan beneficiaries of subsidiary protection did not have their status renewed after 3 years because the asylum authority considered their return to Afghanistan safe. In these cases, the authority systematically established either the city of Kabul or the province of Balkh as an internal protection alternative for Afghans whose region of origin is struggling with instability, despite the deteriorating situation in both destinations reported by different sources and the lack of family links or sufficient means of subsistence. The problem regarding Kabul as an internal protection alternative (IPA) persisted in 2020, as well as Damascus as an IPA which was applied regarding Syrians with subsidiary protection. Until August 2021, there were still cases where the NDGAP indicated Kabul as an IPA for the person concerned. However, since the seizure of power by the Taliban in August 2021, the HHC is not aware of any decision where the NDGAP would have expelled anyone to Afghanistan as a result of the withdrawal proceeding. On the contrary, even persons who had previously been expelled were granted humanitarian status on account of the general situation in Afghanistan. As to Syrian citizens, Damascus remained to be applied by the NDGAP as an IPA throughout 2022 and 2023.
As for re-availment of protection of the refugee’s country of origin, a report of EMN published in November 2019[21] states that ‘any trip to the country of origin could be considered to provide sufficient reason to presume that the individual had re-availed him/herself of the protection of his/her country of origin.’ The asylum authority furthermore considers any type of contact with authorities of the country of origin as re-availment of protection of the country of origin. According to the report, in case Hungarian authorities become aware of the contact, this would automatically lead to cessation of refugee protection.
[1] Sections 11 and 18 Asylum Act.
[2] Section 11(2) Asylum Act.
[3] Section 11(4) Asylum Act.
[4] ‘A foreigner whose stay in Hungary endangers national security cannot be recognised as a refugee.’
[5] ‘A foreigner who has been recognised as a refugee by a court (a) has been sentenced by a final judgment to imprisonment for a term of five years or more for an intentional offence, (b) has been sentenced to imprisonment by a final judgment for the commission of an offence committed as a repeat offender, multiple repeat offender or violent multiple repeat offender,(c) sentenced to imprisonment for a term of imprisonment of three years or more by a final judgment for an offence against life, limb or health, an offence against health, an offence against human liberty, an offence against sexual freedom or sexual morality, an offence against public order, an offence against public security or an offence against the public administration’.
[6] Section 18(2) (g) Asylum Act.
[7] Section 15(c) Asylum Act (introduced by Act CXX of 2021).
[8] Section 18(2)(g) Asylum Act.
[9] Sections 75/A(1) and (2) and 14(1)(2) Asylum Act.
[10] Section 7/A (2) Asylum Act.
[11] Section 75/A(1) Asylum Act.
[12] Section 75/A(2) Asylum Act.
[13] Section 72/A(1) Asylum Act.
[14] Section 72/A(2) Asylum Act.
[15] Section 72/A (3) Asylum Act.
[16] Section 74 (1) Asylum Act.
[17] Section 75(1) Asylum Act.
[18] Section 75(2) Asylum Act.
[19] Section 75(3) Asylum Act.
[20] Section 75(5) Asylum Act.
[21] European Migration Network, Beneficiaries of International Protection Travelling to and Contacting Authorities of their Country of Origin, November 2019, available at https://bit.ly/3ZdMGKs.