Cessation and review of protection status

Hungary

Country Report: Cessation and review of protection status Last updated: 30/11/20

Author

Hungarian Helsinki Committee Visit Website

 

Criteria for cessation and revocation

 

The Asylum Act rules the grounds for cessation of status and the revocation of the recognition 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]

  1. The refugee has voluntarily re-availed him or herself of the protection of the country of his or her nationality;
  2. The refugee has voluntarily re-acquired his or her lost nationality;
  3. The refugee has acquired a new nationality and enjoys the protection of the country of his or her new nationality;
  4. The refugee has voluntarily re-established him or herself in the country which he or she had left or outside which he or she had remained owing to fear of persecution;
  5. The circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, subject to the exception of a well-founded fear arising from past persecution;[3]
  6. The refugee waives the legal status of refugee in writing;
  7. 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 prevails in respect of his or her person;
  8. The conditions for recognition did not exist at the time of the adoption of the decision on his/her recognition;
  9. The refugee concealed a material fact or facts in the course of the procedure or made a false declaration in respect of such a fact or facts or used false or forged documents, provided that this was decisive for his or her recognition as a refugee.

 

The conditions for the cessation of subsidiary protection status are mainly the same as those concerning refugee status.

 

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-years interval.[4] NDGAP shall also examine compliance with the conditions for refugee status or subsidiary protection if his or her extradition was requested.[5]

 

The review of the international protection status is to be 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.[6]  The procedure shall be conducted within 60 days.[7]

 

Proceedings for the withdrawal of refugee status or subsidiary protection are opened ex officio.[8] The rules of the general asylum procedure shall be applied during the withdrawal proceedings.[9] The NDGAP shall interview the person holding international protection status and in 60 days decide if the conditions of refugee status or subsidiary protection are still applicable. [10] If there is no ground of the revocation of the status, the proceedings shall be terminated. [11]

 

The resolution on the withdrawal of recognition of refugee status or subsidiary protection may be subject to judicial review.[12] The petition for judicial review shall be submitted to the refugee authority within 8 days following the date of delivery of the decision.[13] The petition for judicial review shall be decided by the court, within 60 days following the receipt of the petition, in contentious proceedings. The court review shall provide for a full and ex nunc examination of both facts and points of law.[14] The court may not overturn the decision of the NDGAP but it shall abolish the decision it finds unlawful and, if necessary, shall order the refugee authority to reopen the case. The court’s decision adopted in conclusion of the proceedings is final, and it may not be appealed.[15]

 

With regard to the review of protection status in the last years, the HHC experienced that there have been many cases where Afghan beneficiaries of subsidiary protection did not have their status renewed after 3 years (and before July 2016, 5 years) because the former IAO considered their return to Afghanistan as being safe. In these cases, the former IAO systematically claimed 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, even though the deteriorating situation of both destinations reported by different sources and the lack of family links or sufficient means of subsistence.

 

As for re-availment of protection of the refugee’s country of origin, a report of EMN published in November 2019[16] 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, when Hungarian authorities become aware of the contact, this would automatically lead to cessation of refugee protection.

 

The NDGAP withdrew the status of 57 beneficiaries of international protection in 2019. The refugee status was withdrawn in 12 cases (including 2 Syrian, 2 Nigerian, 2 former Yugoslavian refugees), whereas subsidiary protection was withdrawn in 45 cases (the majority of the beneficiaries, 27 persons had Afghan citizenship, followed by 6 Iraqis and 5 Syrians).

 

HHC is aware of a case from 2018, in which one month after the former IAO had recognised the Palestinian applicant as a refugee the determining authority initiated the withdrawal of the status. At the end the refugee status was not withdrawn as the former IAO revealed in the course of two asylum interviews with the assistance of an interpreter, that the translator – appointed by the former IAO – made a wrong translation in the first instance procedure based on which the determining authority launched the withdrawal procedure. For 2019 HHC is not aware of such a case.

 

Withdrawal of protection status

 

Pursuant to the amendment to the Asylum Act that entered into force on 1 January 2018, the grounds of exclusion from refugee status were extended. According to Section 8(5) of the Asylum Act – the version in force in 2018 – a foreigner sentenced by a court’s final and enforceable resolution for having committed a crime, which is punishable by at least five-year imprisonment may not be recognised as a refugee. The provision clearly violated Article 1F(b) of the Geneva Convention since it prescribes that only those are excluded from refugee status who had committed a crime “outside the country of refuge prior to his or her admission to that country as a refugee”. Furthermore, this was the only provision of the January 2018 amendment, which was to be applied in on-going procedures, as well. Based on this provision, the NDGAP could also revoke the recognition as a refugee if a court with a final and absolute decision sentenced the refugee for having committed a crime, which is according to the law punishable by five years or longer-term of imprisonment.[17]

 

Until 31 December 2018, the Asylum Act prescribed, similarly to the exclusion from refugee status, that an applicant is excluded from subsidiary protection if “he or she has committed a crime that is punishable under Hungarian law by five years of imprisonment or more.”[18] Regarding this provision, a preliminary ruling was requested by the Metropolitan Administrative and Labour Court on 29 May 2017. The claimant was represented by Gábor Győző, a contracted attorney of HHC. According to the HHC, this domestic legal interpretation is more restrictive than the parallel EU norm (and thus unlawful), as the latter only allows for exclusion if the applicant committed a serious non-political crime, while the Asylum Act defines seriousness exclusively on the basis of the years of possible imprisonment. In its judgment of 13 September 2018, the CJEU declared that Article 17(1)(b) of the Qualification Directive “must be interpreted as precluding legislation of a Member State pursuant to which the applicant for subsidiary protection is deemed to have ‘committed a serious crime’ within the meaning of that provision, which may exclude him from that protection, on the basis of the sole criterion of the penalty provided for a specific crime under the law of that Member State. It is for the authority or competent national court ruling on the application for subsidiary protection to assess the seriousness of the crime at issue, by carrying out a full investigation into all the circumstances of the individual case concerned.[19]

 

Due to the aforementioned CJEU judgment, the relevant provisions of the Asylum Act were amended with effect as of 1 January 2019. However, the new regulation is still not in line with the CJEU ruling since it excludes again the possibility for the decision maker to carry out “a full investigation into all the circumstances of the individual case concerned”. The amended relevant provision declares that a person cannot be recognised as a refugee,[20] or as a beneficiary of subsidiary protection,[21] who has been sentenced by the court:

  1. to imprisonment of five years or more as a result of committing an intentional criminal offense;
  2. to imprisonment for committing a crime as repeat offender, habitual recidivist or a repeat offender with a history of violence who had been already convicted by a final judgment for imprisonment;
  3. to imprisonment of three years or more as a result of committing a criminal offense against life, limb and health, health, personal freedom, sexual freedom, public peace, public security or administrative procedures.

 

In accordance with the regulations currently in force, both refugee status[22] and subsidiary protection[23] are to be revoked on the basis of Section 8(5) of the Asylum Act.

 

The NDGAP may not deviate from the opinion of the special authorities; not just in exclusion cases.[24] Although this had not been present expressis verbis in the Asylum Act before 2019, even then the determining authority had no right and competency to decide not in line with the content of the opinion of the special authorities. Consequently, there has been no change in the practice. As of January 2018, the NDGAP is also authorised to take data from the INTERPOL FIND international database and use them in the asylum proceedings.[25]

 

The procedure for withdrawal see above at Procedures and guarantees.

 

 


[1]Sections 11 and 18 Asylum Act.

[2]Section 11(2) Asylum Act.

[3]Section 11(4) Asylum Act.

[4]Sections 75/A(1) and (2) and 14(1)(2) Asylum Act.

[5]Section 7/A (2) Asylum Act.

[6]Section 75/A(1) Asylum Act.

[7]Section 75/A(2) Asylum Act.

[8]Section 72/A(1) Asylum Act.

[9]Section 72/A(2) Asylum Act.

[10]Section 72/A (3) Asylum Act.

[11]Section 74 (1) Asylum Act.

[12]Section 75(1) Asylum Act.

[13]Section 75(2) Asylum Act.

[14] Section 75(3) Asylum Act.

[15]Section 75(5) Asylum Act.

[16]European Migration Network, Beneficiaries of International Protection Travelling to and Contacting Authorities of their Country of Origin, November 2019, available at http://bit.ly/2OIk0Y3.

 

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