Author
The NDGAP initiated the withdrawal of international protection status of 54 persons and issued a decision on withdrawal in the case of 42 persons (25 refugees, 17 beneficiaries of subsidiary protection) in 2023, which is a huge decrease compared to previous years (see AIDA report 2021 reporting 237 initiated withdrawal procedures, see AIDA report 2022 reporting 99 decision on withdrawal).[1] The NDGAP did not provide a breakdown of the data based on citizenship and type of international protection status with regard to 2023.[2]
In 2020 the HHC was aware of one case from 2020 where a refugee status granted in 1998 was not revoked. The authority had initiated the revocation in line with the assessment that the circumstances based on which the status had been granted had ceased. However, during the procedure the applicant provided sufficient proof to justify his further need for protection. The HHC is aware of a case from 2021 where the NDGAP initiated a withdrawal procedure for a Palestinian beneficiary of international protection because the man had obtained a Palestinian passport. Nevertheless, he clarified during the procedure that he requested the passport for administrative purposes and that he contemplated to travel to Palestine. Based on his statements and justification, the NDGAP terminated the procedure and thus, maintained his status.
The HHC is also aware of the case of a Pakistani man whose status review procedure was initiated for the fourth time in four years. The applicant has been living in Hungary since 2013 as a beneficiary of subsidiary protection. He had a successful status review procedure in 2018 and 2019. In 2020, however, a new one was initiated resulting in status withdrawal with reference to classified data. This decision was successfully challenged before the court and the NDGAP eventually had to leave the applicant’s status intact. In 2021, a new status review procedure was initiated against him. As a result, the authority withdrew his status for the 2nd time, again with reference to classified data and the credibility of the applicant, but the decision was challenged before the court. In its judgment of May 2022, the court, having looked into the classified data files, found that the applicant was credible and quashed the asylum authority’s withdrawing decision accordingly. It is worth noting that the applicant won a case against Hungary in front of the ECtHR, regarding his unlawful detention during his asylum procedure.
A case of an Azerbaijani refugee is also worth noting for potentially shaping the practice of withdrawals in a positive manner. The authority started a status withdrawing procedure against the Azerbaijani national, represented by the HHC, in October 2021. The said national was granted refugee status when he was only 10 years old, together with his family members and especially for his father having been persecuted in their country of origin for political reasons. As a result of the procedure, his status was withdrawn, with a reference to national security reasons and to the fact that the applicant, who became an adult in the meantime, could safely return to Azerbaijan. The authority, however, kept the status of the other family members intact, no procedure was initiated in their cases. The decision was challenged by a judicial review request. In its judgment of January 2023, the court held that only in the event of a significant and lasting change of circumstances may a change of circumstances be relied on as a reason to withdraw international protection, in particular since the applicant was granted the status primarily by “right” of his father, and the status of the father was not withdrawn.
A positive example of 2023 may also be highlighted: the HHC represented an Afghan client with subsidiary protection who travelled to Pakistan and was deported back to Afghanistan from there. He spent a year in Afghanistan and then got back to Hungary with the help of the Hungarian Embassy in Iran. The NDGAP initiated a status review procedure but did not withdrew the client’s status. However, they only made a decision to terminate the HHC nonetheless argued the client’s lack of accountability in going back to Afghanistan, his recorded mental illness, and the likelihood that his family members in Afghanistan would be targeted by the Taliban.
Withdrawal of the protection status based on national security grounds
In 2020, the matter of status withdrawal based on national security reasons came at the forefront in the HHC’s work, as a result of the relatively increased number of such cases concerning not only beneficiaries of international protection but also third-country nationals residing lawfully in Hungary.[3] According to the Asylum Act, the Counter-Terrorism Office (CTO) and the Constitutional Protection Office (CPO) involved in the asylum procedure[4] might establish that the third-country national poses a threat to the national security without any further reasoning.[5] In these cases, the underlying data substantiating the national security threat is classified by the security agencies with reference to the protection of public interest, i.e. national defence, national security, law enforcement and crime prevention activities.[6] The opinions of the special authorities are binding for the NDGAP, which is subsequently obliged to withdraw international protection status.[7]
The Classified Data Act provides for the possibility for the person concerned to request knowledge of the classified data from the special authorities.[8] However, as per the experience of the HHC, there has been no cases in which access was granted between 2020 and 2023. Furthermore, even if access would be granted, the law does not provide clearly for its usage in the procedure. Due to the lack of efficient mechanism by which the person could access at least the essence of the reasoning as required by the CJEU and the ECtHR in its relevant case-law and in the absence of permission for its usage, the person concerned is not in a position to effectively challenge the decision of the NDGAP before the courts. Consequently, the HHC is of the view that in these cases the right of the beneficiary of international protection to adversarial proceedings, the principle of equality of arms, their right of access to files, to defence and to be heard, as well as the right to an effective remedy and finally the right to a competent authority deciding on withdrawal are equally violated.
In September 2021, the HHC, in cooperation with the Polish Helsinki Foundation for Human Rights (Poland) and Kisa (Cyprus), published a Comparative Report on Access to Classified Data in National Security Immigration Cases in Cyprus, Hungary and Poland.[9] The HHC interviewed in December 2021 one of their clients affected by the unlawful national security invoking practice of the NDGAP on how her life and that of her family was affected by the fact that after 20 years the Hungarian authorities see her stay in the country as a risk to national security.[10] In April 2024, the HHC published a comparative study on access to classified data in national security related immigration cases in the EU, discussing extensively the practice of 25 EU member states, including Hungary.[11]
While the withdrawal on national security grounds per se is permissible under the Qualification Directive, the procedure itself (as mentioned above) constitutes a violation of EU law. The HHC identified five main points where the Hungarian asylum legislation and practice regarding exclusion from international protection on national security grounds contradict EU law and jurisprudence, including the clear non-transposition of Art. 14(6) of Qualification Directive (as interpreted by the CJEU in the M case[12]).[13] The information update concluded that Hungarian law does not provide any reasoning as to the national security risk allegedly presented by the person concerned. This is contrary to Art. 47 of the Charter, and violates the provisions of the Procedures Directive ensuring the enforcement of the right to an effective remedy and, in particular, the rights of the defence (Arts. 46(3), 11(2), 45(1), (3) and Preamble (20) of the Procedures Directive). Furthermore, the mere access by the courts to the classified data provided by the Hungarian law does not on its own guarantee the respect of the applicant’s rights of the defence and hence, violates the rights of access to information and data underlying the decision on exclusion (Arts. 12(1)(d), 23(1) and 45(4) of the Procedures Directive). A further problematic point is due to the binding nature of the security agencies’ opinion over the asylum authority. It results that a decision on exclusion based on national security grounds is ultimately made by the security agencies. This diverges from the requirement that the determining authority is responsible for the examination of the recognition, refusal or withdrawal of international protection (Art. 4 of the Procedures Directive). Further on, the automatic rulings of the Hungarian asylum authority when delivering exclusion decisions on national security grounds violates the requirement of individual assessment, including the examination of proportionality (Arts. 4, 10(3), 14(4)(a) and Art. 17(1)(d) of the Qualifications Directive; Preamble (20) of the Procedures Directive).
Noticing these shortcomings, on 27 January 2021 the Metropolitan Court in Hungary stayed the judicial review procedure of a Syrian refugee, represented by the HHC, whose status had been withdrawn based on national security grounds and referred five questions to the CJEU to be interpreted in a preliminary reference ruling (case C-159/21). As a result, on 22 September 2022, the CJEU ruled that the relating Hungarian regulation is in breach with EU law and held that asylum seekers and beneficiaries of international protection must have access to at least the essence of the grounds of the expert authority’s decision on national security risk and that the asylum authority must state in its decision the reasons for which protection is being refused and cannot rely solely on the unreasoned decision of the expert authorities and which cannot be binding for the asylum authority.[14]
Following the standards of CJEU’s case C-159/21, the Budapest Court quashed the reviewed decisions and ordered the asylum authority to repeat the procedure, making it possible for the applicant to be provided with the essence of the grounds of the information indicating the national security allegation.[15]
Hungarian law further contains two provisions regarding the withdrawal of protection status that are in breach of EU law, namely the one based on the commission of a serious crime and the other based on the re-availment of the country of origin’s protection with regard to persons with subsidiary protection.
Withdrawal of the protection status due to serious crime committed by the beneficiary
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.’[16] A preliminary ruling was requested by the Metropolitan Administrative and Labour Court on 29 May 2017 regarding this provision considered by the HHC lawyer as more restrictive than the parallel EU norm (and thus unlawful). The CJEU confirmed the unlawfulness of the provision’.[17]
Due to the aforementioned CJEU judgment, the relevant provisions of the Asylum Act were amended coming into effect 1 January 2019. However, according the HHC, the new regulation is still not in line with the Qualification Directive, since it excludes 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 now declares that a person cannot be recognised as a refugee,[18] or as a beneficiary of subsidiary protection,[19] who has been sentenced by the court:
- for imprisonment of five years or more for the intentional commission of a criminal offense;
- for imprisonment for committing a crime as a recidivist, habitual recidivist or a recidivist with a history of violence who had been already convicted by a final judgment for imprisonment;
- for imprisonment of three years or more commission of a criminal offense against life, physical integrity, health, personal liberty, sexual freedom, public peace, public security, or administrative procedures.
In accordance with the regulations currently in force, both refugee status[20] and subsidiary protection[21] are to be revoked on the basis of Section 8(5) of the Asylum Act. This is in breach of the Qualification Directive since the Asylum Act does not differentiate between the two statuses as EU law does, therefore it applies the same level of seriousness regarding the committed crime[22] and it lacks the cumulative conditions (namely the threat to national security the person has to pose besides the serious crime) as to the refugee status. Furthermore, Art. 14(6) of Qualification Directive is not properly transposed because the rights enshrined therein are not provided to those refugees who are excluded from protection based on Section 8(5) of the Asylum Act. Moreover, despite the Ahmed judgment, the lack of individual assessment and discretion of the asylum authority with regard to all the circumstances of the case in determining the seriousness of a crime as the reason for exclusion from international protection still prevails.[23] The provision on the withdrawal of the refugee status furthermore is in contrast with the Geneva Convention.[24]
Withdrawal of the subsidiary protection status due to re-availment of the protection of the country of origin of the beneficiary
In contrast to the Qualification Directive, the Asylum Act applies the ground for withdrawal of the refugee status based on the re-availment of the protection of the country of origin to persons with subsidiary protection, as well. As per HHC knowledge, the provision is applied by the NDGAP as a basis for status withdrawal that is clearly in violation of the EU law.
For the withdrawal procedure, see above in section on Cessation: Procedures and guarantees.
[1] Information provided by NDGAP on 13 February 2023.
[2] Information provided by NDGAP on13 March 2023.
[3] See Hungarian Helsinki Committee: Flagrant Breach of the Right to Defence in National Security Cases and the Systematic Denial of the Right to Family Life within the Hungarian Legal Framework, Information Note of the Hungarian Helsinki Committee, 15 September 2020, available at https://bit.ly/3qMoH3L.
[4] Section 2/A(a) of the Government Decree no. 301/2007 (XI.9.)
[5] Section 57(6) of Act LXXX of 2007
[6] Section 5(1)(c) of the Act CLV of 2009 on the Protection of Classified Data (“Classified Data Act”)
[7] Section 57(3) Asylum Act.
[8] Section 11 Classified Data Act.
[9] HHC, Helsinki Foundation for Human Rights, Kisa, The Right to Know: Comparative Report on Access to Classified Data in National Security Immigration Cases in Cyprus, Hungary and Poland, March 2021, available at: https://bit.ly/3lS4RUS.
[10] HHC, I’m tired” – interview with Ms. Gáborné Nagy, the “embodied national security risk”, 15 December 2021, https://bit.ly/33XxQAV.
[11] Katalin Juhász: The Right to Know in the European Union: Access to Classified Data in National Security Related Immigration Cases, April 2024, available at: https://bit.ly/3y6Uohl.
[12] CJEU, joined cases C‐391/16, C‐77/17 and C‐78/17, M v. Ministerstvo vnitra, 14 May 2019, available at: https://bit.ly/3EBvQgB.
[13] See HHC, National Security Grounds for Exclusion from International Protection as a Carte Blanche: Hungarian asylum provisions not compliant with EU law, Information Update by the Hungarian Helsinki Committee, 20 December 2021, available at https://bit.ly/3f7n6ls.
[14] CJEU, Case C-159/21, GM v. OIF and Others, 22 September 2022, available at: http://bit.ly/3IsdVu6.
[15] First such decision: Judgment of Budapest Court (Fővárosi Törvényszék), 11.K.704.569/2022/7-II. of 9 February 2023, paragraph 12. This was later followed by the judgments of Budapest Court (Fővárosi Törvényszék), 22.K.703.693/2022 of 15 February 2023 and 22.K.704.407/2022 of 23 March 2023.
[16] Section 15(ab) Asylum Act.
[17] CJEU, Case C-369/17, Shajin Ahmed v Bevándorlási és Menekültügyi Hivatal, Judgment of 13 September 2018, available at: http://bit.ly/3kmYueH.
[18] Section 8(5) Asylum Act.
[19] Section 15(ab) Asylum Act.
[20] Section 11(3) Asylum Act.
[21] Section 18(1)(g) Asylum Act.
[22] The Qualification Directive requires the crime to be ‘particularly serious’ [Article 14(4)(b) read together with Article 14(5)] with regard to refugees, and to be ‘serious’ with regard to beneficiaries of subsidiary protection status (Article 17(1)(b)).
[23] See in detail HHC, Preserved legal deficiencies post-CJEU Ahmed judgement: Hungarian asylum provisions on exclusion from international protection still not compliant with EU law, Information Update by the Hungarian Helsinki Committee, 7 April 2021, available at: https://bit.ly/3GdSA5k.
[24] See UNHCR, UNHCR observations on legislative amendments related to exclusion from and revocation of refugee status and subsidiary protection status, December 2020, available at: http://bit.ly/39Z7Js1.