Withdrawal of protection status

Hungary

Country Report: Withdrawal of protection status Last updated: 15/04/21

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Hungarian Helsinki Committee Visit Website

The NDGAP initiated the withdrawal of international protection status of 59 persons and issued a decision on withdrawal in a total of 140 cases in 2020.[1] As opposed to previous years, the NDGAP did not provide a breakdown of the data based on citizenship and type of international protection status with regard to 2020.

In 2020, the matter of status withdrawal based on national security reasons came into the forefront of the HHC as a result of the relatively increased number of such cases concerning not only beneficiaries of international protection but also third-country nationals residing otherwise lawfully in Hungary.[2] According to the Asylum Act, the Counter-Terrorism Office (CTO) and the Constitutional Protection Office (CPO) involved in the asylum procedure[3] might establish that the third-country national poses a threat to the national security without any further reasoning.[4] In these cases, the underlying data substantiating the national security threat is classified by these special authorities with reference to the protection of public interest, i.e. the activity of Hungary concerning its national security.[5] The opinions on the special authorities oblige the NDGAP to withdraw the international protection status.[6]

The Classified Data Act provides for the possibility for the person concerned to request the concerning classified data from the special authorities.[7] However, as per the experience of the HHC there has been no cases when the access was granted. Furthermore, even if the access was granted, the law does not provide 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.

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.

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.”[8] 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 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.[9]

 

Due to the aforementioned CJEU judgment, the relevant provisions of the Asylum Act were amended with the effect of 1 January 2019. However, according the HHC, the new regulation is still not in line with Qualifications Directive 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 now declares that a person cannot be recognised as a refugee,[10] or as a beneficiary of subsidiary protection,[11] 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[12] and subsidiary protection[13] 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 lacks the cumulative conditions (namely the threat to national security the person has to pose besides the serious crime) as to the refugee status. The provision on the withdrawal of the refugee status furthermore is in contrast with the Geneva Convention.[14]

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.

The procedure for withdrawal see above in section on Cessation: Procedures and guarantees).

 

 

 

[1]             Information provided by NDGAP on 2 March 2021.

[2]        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

[3]        Section 2/A(a) of the Government Decree no. 301/2007 (XI.9.)

[4]        Section 57(6) of Act LXXX of 2007

[5]        Section 5(1)(c) of the Act CLV of 2009 on the Protection of Classified Data (“Classified Data Act”)

[6]        Section 57(3) Asylum Act

[7]        Section 11 Classified Data Act

[8]        Section 15(ab) Asylum Act.

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

[10]       Section 8(5) Asylum Act.

[11]       Section 15(ab) Asylum Act.

[12]       Section 11(3) Asylum Act.

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

[14]       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

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