Withdrawal of protection status

Hungary

Country Report: Withdrawal of protection status Last updated: 30/11/20

Author

Hungarian Helsinki Committee Visit Website

 

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.[1]

 

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.”[2] 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.[3]

 

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,[4] or as a beneficiary of subsidiary protection,[5] 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[6] and subsidiary protection[7] 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.[8] 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.[9]

 

The procedure for withdrawal see above at Procedures and guarantees.



[1]           Section 11(3) Asylum Act.

[2]           Section 15(ab) Asylum Act.

[3]           CJEU, Case C-369/17 Ahmed, Judgment of 13 September 2018.

[4]           Section 8(5) Asylum Act.

[5]           Section 15(ab) Asylum Act.

[6]           Section 11(3) Asylum Act.

[7]           Section 18(1)(g) Asylum Act.

[8]           Section 57 Asylum Act.

[9]           Section 86/A Asylum Act.

 

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