Author
The NDGAP initiated the withdrawal of international protection status of 237 persons and issued a decision on withdrawal in the case of 349 persons in 2021, which is a huge increase compared to previous year (see AIDA report 2020 reporting about only 59 initiated withdrawal procedures).[1] The NDGAP did not provide a breakdown of the data based on citizenship and type of international protection status with regard to 2020.[2] In 2021 the withdrawal decisions concerned 218 refugees and 131 beneficiaries of subsidiary protection.[3]
Contrary to 2019, the HHC is aware of one case from 2020 where the status of a refugee granted in 1998 was not revoked on the motion of the NDGAP as a result of the procedure. The authority initiated the revocation in line with the assessment that the circumstances based on which the status was granted have 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 when the NDGAP initiated the withdrawal procedure of a Palestinian beneficiary of international protection because the man obtained a Palestinian passport. Nevertheless, he clarified during the procedure that he requested the passport for administrative purposes and that he contemplate to travel to Palestine. Based on his statements and justification, the NDGAP terminated the procedure and thus, maintained his status.
HHC is also aware of the case of a Pakistani man whose status review procedure 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 – still ongoing – status review procedure was initiated against him. 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.
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.[4] According to the Asylum Act, the Counter-Terrorism Office (CTO) and the Constitutional Protection Office (CPO) involved in the asylum procedure[5] might establish that the third-country national poses a threat to the national security without any further reasoning.[6] 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.[7] The opinions of the special authorities are binding for the NDGAP, which is subsequently obliged to withdraw international protection status.[8]
The Classified Data Act provides for the possibility for the person concerned to request the cognizance of the concerning classified data from the special authorities.[9] However, as per the experience of the HHC, there has been no cases in which access was granted in 2020 and 2021. Furthermore, even if the 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 get access at least to the essence of the reasoning as it is required by the CJEU and the ECtHR set out in its relevant case-law and in the absence of the permission for its usage, the person concerned is not in the position to effectively challenge the decision of the NDGAP before the courts. Consequently, 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, his/her 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. Noticing these shortcomings, on 27 January 2021 the Metropolitan Court in Hungary stayed the judicial review procedure of a Syrian refugee 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). 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.[10] 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.[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 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 the 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).
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.”[14] Regarding this provision, a preliminary ruling was requested by the Metropolitan Administrative and Labour Court on 29 May 2017. The claimant was represented by a contracted attorney of HHC. According to the HHC, this domestic legal interpretation was 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 foreseeable years of imprisonment. In the Ahmed judgment 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.”[15]
Due to the aforementioned CJEU judgment, the relevant provisions of the Asylum Act were amended coming into effect on 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,[16] or as a beneficiary of subsidiary protection,[17] 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[18] and subsidiary protection[19] 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[20] 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.[21] The provision on the withdrawal of the refugee status furthermore is in contrast with the Geneva Convention.[22]
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 which 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 7 February 2022.
[2] Information provided by NDGAP on 2 March 2021.
[3] Information provided by NDGAP on 7 February 2022.
[4] 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.
[5] Section 2/A(a) of the Government Decree no. 301/2007 (XI.9.)
[6] Section 57(6) of Act LXXX of 2007
[7] Section 5(1)(c) of the Act CLV of 2009 on the Protection of Classified Data (“Classified Data Act”)
[8] Section 57(3) Asylum Act.
[9] Section 11 Classified Data Act.
[10] See: https://bit.ly/3lS4RUS.
[11] The interview is available at the following link: https://bit.ly/33XxQAV.
[12] CJEU, joined cases C‐391/16, C‐77/17 and C‐78/17, M v. Ministerstvo vnitra, 14 May 2019
[13] See Hungarian Helsinki Committee: 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] Section 15(ab) Asylum Act.
[15] CJEU, Case C-369/17 Ahmed, Judgment of 13 September 2018.
[16] Section 8(5) Asylum Act.
[17] Section 15(ab) Asylum Act.
[18] Section 11(3) Asylum Act.
[19] Section 18(1)(g) Asylum Act.
[20] 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)).
[21] See in detail the Hungarian Helsinki Committee: 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.
[22] See UN High Commissioner for Refugees (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.