Author
Alternatives to detention, called ‘measures ensuring availability’, are available in the form of:
Asylum detention may only be ordered on the basis of an assessment of the individual’s circumstances and only if its purpose cannot be achieved by applying less coercive alternatives to detention. However, the HHC’s experience shows that detention orders lacked individual assessments and alternatives were not properly and automatically examined. Decisions ordering and upholding asylum detention were schematic, lacked individualised reasoning with regard to the lawfulness and proportionality of detention, and failed to consider the individual circumstances (including vulnerabilities) of the person concerned. The necessity and proportionality tests were not used. The orders only stated that alternatives are not possible in a concrete case, but there is no explanation as to why.[4] According to the Supreme Court (Kúria) opinion,[5] contrary to the current practice, alternatives must be considered not only in the course of the initial one, but also in subsequent decisions on extension.
The O.M. v. Hungary[6] ECtHR case of 5 July 2016 also established that the detention order of a vulnerable asylum seeker was not sufficiently individualised.
Alternatives were applied as follows between 2016 and 2020 (the NDGAP did not provide the requested data for 2021 nor 2022 claiming that it has no relevant statistics)[7]:
| Asylum detention and alternatives to detention: 2016-2020 | |||||
| Type of measure | 2016 | 2017 | 2018 | 2019 | 2020 |
| Alternatives to detention | 54,898 | 1,176 | 7 | 0 | 1 |
| Bail | 283 | 2 | 0 | 0 | 0 |
| Designated place of stay | 54,615 | 1,176 | 7 | 0 | 1 |
| Asylum detention | 2,621 | 391 | 7 | 40 | 22 |
Source: former IAO and NDGAP.
[1] Sections 2(lc) Asylum Act.
[2] Section 2(lb) Asylum Act.
[3] Section 2(la) Asylum Act.
[4] HHC, Information Note on asylum-seekers in detention and in Dublin procedures in Hungary, May 2014, available at: https://bit.ly/3ISJ8Io, 6-7.
[5] The Asylum Working Group of the Supreme Court summary opinion, 13 October 2014, https://bit.ly/3XDzzlk.
[6] O.M. v. Hungary, Appl. No. 9912/15, 5 July 2016.
[7] Information provided by the NDGAP on 7 February 2022 and 13 February 2023.