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Furthermore, status as a refugee shall be withdrawn if the refugee is subject to the grounds for exclusion under Section 8(4)[4] and (5)[5] Asylum Act (see detailed in section on Withdrawal of protection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] This means in practice that as a result of the review procedure, the status is ether granted or terminated/revoked. The procedure starts ex officio and shall be conducted within 60 days.[12]
Proceedings for the withdrawal of refugee status or subsidiary protection are also opened ex officio,[13] but as the HHC observed in practice, generally for some reason that the authority becomes aware of, which could be a ground for exclusion of protection/non-recognition. The difference of withdrawal procedure from the status review procedure lies therein: while the status-review procedure is to be opened by the authority every three years regardless of whether or not any change in the circumstances of the applicant is observed or suspected by the authority, the status withdrawal procedure is normally initiated for a specific reason (e.g., the NDGAP becomes aware of the applicant traveling their country of origin).
The rules of the general asylum procedure shall be applied also 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 withdrawal 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 termination/revocation or 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 personal hearing of the applicant is obligatory in the procedure challenging status withdrawal, but not in the procedure challenging the result of status review procedure. In this latter case, it is only an option and is obligatory only if the applicant is in asylum detention.[20] 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).[21]
[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] Sections 68 and 75(1) Asylum Act.
[18] Sections 68(1) and 75(2) Asylum Act.
[19] Sections 68 (4) and 75(3) Asylum Act.
[20] Sections 68 (2)-(3) and 75(4).
[21] Sections 68(6) and 75(5) Asylum Act.