Detention of vulnerable applicants

Hungary

Country Report: Detention of vulnerable applicants Last updated: 15/04/21

Author

Hungarian Helsinki Committee Visit Website

Vulnerable applicants in asylum detention

 

Unaccompanied children are explicitly excluded from asylum and immigration detention by law.[1] While asylum detention was still widely used, despite that clear ban, unaccompanied children had been detained due to incorrect age assessment,[2] as the age assessment methods employed by the police and NDGAP are considerably problematic (see section on Identification above). For example, CPT found during its visit one unaccompanied minor who was detained for 4 days.[3]

From 28 March 2017 until 21 May 2020, all unaccompanied children above age of 14 were de facto detained in the transit zones for the whole duration of asylum procedure. According to the statistics of the former IAO there were 91 unaccompanied children detained in the transit zones in 2017.[4] On 31 December 2018, there was only one unaccompanied asylum-seeking child who was placed in Tompa. In November and December 2018, no unaccompanied asylum-seeking child applied for asylum, according to the authorities.[5] At the end of December 2019, there was only one unaccompanied asylum-seeking child staying in Röszke. Throughout the year, there were a total of 10 unaccompanied minors seeking asylum in Hungary in 2019. Out of the 10 children, 2 were between 16-17 years old placed in the transit zones, the others were less than 14 years old, therefore they were placed out of the transit zones, in Fót. The HHC is aware of 6 unaccompanied minors who applied for asylum in 2019 and were placed in the transit zone, however, some of them have other asylum seekers for guardians and therefore do not figure as UAMs in the official statistics, although their cases are run separately from their guardians. In 2020, there were no unaccompanied minors detained in the transit zones (there were only two unaccompanied minor asylum seekers who submitted their applications in March 2020 but were under the age of 14, therefore they were placed in Fót).[6]

Moreover, no other categories of vulnerable asylum seekers are excluded from detention. Families with children were detained in some cases. The detention of families has been criticised as discriminating between children based on their family status contrary to Article 2(2) of the UN Convention on the Rights of the Child, and according to the Hungarian Parliamentary Commissioner for Fundamental Rights.[7]

However, asylum detention must be terminated if the asylum seeker requires extended hospitalisation for health reasons.[8]

In 2016, there were 54 families detained for an average time of 24 days.[9] There were 36 families including children kept in asylum detention for an average time of 22 days. According to the statistics of the former IAO, in 2017, 24 children with their families were kept in detention for an average time of 22 days.[10] In 2018, 2019 and 2020, there was no child in asylum detention.[11]

From 28 March 2017 until 21 May 2020, most of asylum-seeking families were de facto detained in the transit zones.

GRETA in its second evaluation round made the following recommendations to the Hungarian authorities:

(a) to ensure that there are appropriate facilities in transit zones where asylum seekers can meet in privacy with persons of trust, including lawyers, employees of specialized NGOs, officials of international organisations and social workers (paragraph 97);

(b) to enable specialised NGOs with experience in identifying and assisting victims of trafficking to have regular access to transit zones;

(c) to ensure the timely appointment of trained guardians to unaccompanied or separated children kept in transit zones and enabling guardians to effectively fulfil their tasks by limiting the number of children for which each guardian is responsible.[12]

Vulnerable applicants in transit zones

On 7 March 2017, UNHCR expressed their deep concerns over the conditions in the transit zone that will have grave effects on children: “This new law violates Hungary’s obligations under international and EU laws, and will have a terrible physical and psychological impact on women, children and men who have already greatly suffered.”[13]

On 8 March 2017, the Commissioner of Human Rights of the Council of Europe also gave alarming signals after the adoption of the amendments to the Asylum Act: “As reported, the adopted Bill would allow the automatic detention of all asylum seekers, including families with children and unaccompanied minors from the age of 14, in shipping containers surrounded by high razor wire fence at the border for extended periods of time. Under the case law of the European Court of Human Rights, detention for the purpose of denying entry to a territory or for removal must be a measure of last resort, only if less coercive alternatives cannot be applied, and based on the facts and circumstances of the individual case. Automatically depriving all asylum seekers of their liberty would be in clear violation of Hungary’s obligations under the European Convention on Human Rights”.[14]

In early May 2017, a high-level delegation consisting of three members of the European Parliament’s Civil Liberties, Justice and Home Affairs Committee visited the transit zones. Members of the delegation (the Vice-President of the Group of the Progressive Alliance of the Socialists and Democrats (S&D Group) Josef Weidenholzer, Bureau member Peter Niedermüller and S&D Spokesperson for Civil Liberties, Justice and Home Affairs Birgit Sippel) declared in their joint statement that “The conditions asylum seekers are facing in Hungary are grim. Within the Röszke Transition Zone on the Hungarian-Serbian border, women, children and whole families are locked in narrow spaces and require a police escort to even visit a doctor. The conditions are not only inhumane but may also be in breach of international and European law. We remain convinced that only a common European asylum policy can help improve the situation refugees are facing and ensure order at the EU’s external borders.”

On 17 May 2017, the European Commission announced that it will move forward with the infringement procedure against Hungary concerning its asylum law. Amongst other issues, the Commission believes that the systematic and indefinite confinement of asylum seekers in closed facilities in the transit zone without respecting required procedural safeguards, such as the right to appeal, leads to systematic detentions, which are in breach of the EU law on reception conditions and the Charter of Fundamental Rights of the EU. The Hungarian law fails to provide the required material reception conditions for asylum applicants, thus violating the EU rules in this respect.[15] On 7 December 2017, the European Commission decided to move forward on the infringement procedure by sending a reasoned opinion.[16] On 19 July 2018, the European Commission decided to refer Hungary to the CJEU for non-compliance of its asylum and return legislation with EU law.[17] On 17 December 2020 the CJEU issued a judgement in the infringement procedure case C-808/18 and ruled that Hungary by unlawfully detaining applicants for international protection in transit zones constitute infringements of EU law.[18]

On 12 September 2017 UN High Commissioner for Refugees Filippo Grandi called on Hungary to “do away with its so-called border transit zones”, which he said are “in effect detention centres.” The High Commissioner “expressed his concern that asylum-seekers, including children, were being kept in the transit zones” during their asylum process. “Children, in particular, should not be confined in detention’, Grandi said Tuesday after touring the Röszke transit zone…”[19]

On 13 October 2017, the Council of Europe Special Representative on migration and refugees published a report on his fact-finding mission (12-16 June 2017) to the transit zones. He recorded that the metal containers accommodating asylum seekers “were directly exposed to the atmospheric conditions in both hot and cold weather; at the time of our visit there were several complaints by asylum-seekers about unbearable heat inside the containers.” The Special Representative also accounts for a lack of “educational programmes, language learning programmes or curricula adapted to the particular needs and age of children in either transit zone and children cannot attend local schools.” The Special Representative further reported on children complaining about the inadequacy of food provided for them.[20]

The Council of Europe Lanzarote Committee published an extensive report Special report further to a visit undertaken by its delegation to transit zones at the Serbian-Hungarian border.[21]

In its concluding observations, published on 9 May 2018, the UN Human Rights Committee expressed its concern that “the law adopted in March 2017, which allows for the automatic removal to transit areas of all asylum applicants for the duration of their asylum process, except unaccompanied children identified as being below the age of 14 years, does not meet the legal standards under the Covenant, owing to: (a) the lengthy and indefinite period of confinement allowed; (b) the absence of any legal requirement to promptly examine the specific conditions of each affected individual; and (c) the lack of procedural safeguards to meaningfully challenge removal to a transit area.”[22]

 

The European Committee against Racism and Intolerance (ECRI) conclusions on the implementation of its recommendations in respect of Hungary of 15 May 2018 state that:

“The Special Representative of the Secretary General on migration and refugees and the UN High Commissioner for Refugees have both visited the transit zones and noted that asylum seekers are held in restricted spaces and cannot move freely, and that they are escorted by guards whenever they have to move outside their designated areas. They are housed in shipping containers with rolls of razor-blade wires on top and the transit zones are surrounded by barbed-wire fences. ECRI considers that these features strongly resemble imprisonment. The average duration of stay in transit zones is reported to range from a few weeks to three months.”[23]

On 26 June 2018, the Hungarian Helsinki Committee released “Safety Net Torn Apart”, an extensive study on the situation of vulnerable asylum seekers in Hungary. The research relies on first-hand information provided by asylum seekers in the transit zones and lawyers working with them, as well as official information provided by the former IAO through freedom of information requests. The report accounts for a lack of careful assessment of individual vulnerabilities in the transit zone, lack of places where women can have privacy without men present, no specific, tailored information for women and minors in detention, inadequate basic healthcare services and ineffective psycho-social assistance and improper education.[24]

The CPT published its report on 18 September 2018, following its visit to Hungary from 20 to 26 October 2017. The Committee stressed the need to redesign the transit zones spaces in an effort to remove their carceral character and address overcrowding. General medical screening of the population in the transit zones seems to have been improved, but the handling of mental health and age assessment cases was found to be substandard.[25]

The Council of Europe Commissioner for Human Rights highlighted a number of persistent fundamental rights concerns in Hungary in a report published following her country visit in February 2019. “The Commissioner considers that the systematic detention of asylum seekers in the transit zones without a time limit and adequate legal basis raises serious issues about the arbitrary nature of the detention. She calls on the authorities to discontinue the practice and apply alternatives to detention and stresses that the detention of asylum-seeking children under 18 years is a child rights violation.” [26]

 

In February 2019, the HHC published a report “Crossing a red line” on how EU countries undermine the right to liberty by expanding the use of detention of asylum seekers upon entry, where the conditions in transit zones Röszke and Tompa, gathered through interviews with people who were actually detained in the transit zone are described.[27]

UN High Commissioner for Human Rights, on 3 May 2019 stated: “We note also that the Hungarian authorities do not consider some of these migrants to be in detention as they can “voluntarily” leave the transit zones towards neighbouring Serbia. However, we add our views that a migrant must not be subject to detention in inadequate conditions, arbitrary detention or other forms of coercion as this renders any return involuntary. Furthermore, we note that such “voluntary” departure could put migrants at further risk as it could breach Hungarian deportation orders, and force migrants to enter Serbia irregularly in contravention of Serbian law.” [28]

Committee on the Elimination of Racial Discrimination, Concluding observations on the combined eighteenth to twenty-fifth periodic reports of Hungary, stated on 10 May 2019: “The Committee is deeply concerned by the alarming situation of asylum seekers, refugees and migrants in the State party especially following the state of emergency declared since 2015, including: (a) The legislative amendments and reform in 2017 which led to the indefinite holding of all asylum applicants, except for minors below the age of 14, for the duration of their asylum process in transit zones separated from Hungarian society, without sufficient legal safeguards to challenge removal to these transit zones; (b) By reports that the conditions in transit zones are not adequate for long term stay of individuals, especially women and children, and reported challenges in accessing adequate medical services, education, social and psychological services and legal aid in the transit zones.”[29]

The end of visit statement of the UN Special Rapporteur on the human rights of migrants, Felipe González Morales, Hungary (10-17 July 2019) said the following: “I am concerned that all asylum seekers, including pregnant women, children as young as 8 months and unaccompanied minors between 14 and 18 years old, are automatically detained in the transit zones for the entire duration of the asylum procedure. The severe restrictions on the freedom of movement of asylum seekers as well as the carceral environment in the transit zones qualify as detention in nature. Although the Hungarian authorities do not consider the transit zones as places of detention, departure from the transit zone is only possible in the direction of Serbia, very often resulting in the termination of the asylum application. Automatic placement of asylum seekers in detention is in breach of international human rights standards. Restriction of movement of asylum seekers must be necessary, reasonable, proportionate, and based on individual assessment. The availability, effectiveness and appropriateness of alternatives to detention must be considered before recourse to detention.”[30]

On 25 July 2019, the European Commission decided to send a letter of formal notice to Hungary concerning the situation of persons in the Hungarian transit zones at the border with Serbia, whose applications for international protection have been rejected, and who are waiting to be returned to a third country. In the Commission’s view, their compulsory stay in the Hungarian transit zones qualifies as detention under the EU’s Return Directive. The Commission finds that the detention conditions in the Hungarian transit zones, in particular the withholding of food, do not respect the material conditions set out in the Return Directive and the Charter of Fundamental Rights of the European Union. [31]

The HHC successfully halted the deportation from open centres to the transit zones – and thus to arbitrary detention – of 9 vulnerable asylum-seekers (8 unaccompanied children and one pregnant woman) by obtaining 2 interim measures from the ECtHR just before the March 2017 amendments entered into force.[32] The HHC obtained 15 other ECtHR interim measures concerning 14 families with children and one unaccompanied child from Afghanistan who were all detained in the transit zones. The ECtHR requested the Hungarian government to immediately place the applicants in conditions that are in compliance with the prohibition of torture and inhuman or degrading treatment. The Hungarian government only released the applicants when they obtained a form of protection and in the last two interim measures cases, the applicants were released only after the domestic courts annulled their placement in the transit zone, therefore it can be concluded that the interim measures were not respected.[33] In 2019 the HHC obtained 6 interim measures from the ECtHR, ordering Hungary to ensure adequate living conditions in the transit zones, compatible with the prohibition of torture and inhuman treatment for families with children. Unfortunately, the government refused to make the necessary substantial changes. The asylum authority finally released one family out of 6.

According to the Hungarian authorities, the rules on the procedure for identification of victims of trafficking contained in Government Decree no. 354/2012 also apply in the transit zones. It is the duty of staff of the Asylum and Immigration Office to conduct an identification interview if an applicant shows signs of being a possible victim of trafficking. Should suspicions that the person may be a victim of trafficking grow stronger as a result of the interview, the person concerned should be referred to the victim support services, but only if he/she confirms in writing that he/she is a victim of trafficking. GRETA was informed that from February to May 2018, 14 identification interviews had been carried out by Asylum and Immigration Office staff with possible victims of trafficking in the two transit zones, using identification sheets contained in Government Decree no. 354/2012. By the time of GRETA’s second evaluation round visit, two possible victims of trafficking (originating from Afghanistan and Iran) had been detected in the transit zones on the basis of indicators of trafficking. GRETA was informed that because these persons did not agree to sign the form confirming that they were victims of trafficking and did not wish to co-operate with the investigation, no specialised assistance was provided to them. In the further course of 2018, further identification interviews were carried out, but none led to identification of trafficking victims. According to the Hungarian authorities, in the period after GRETA’s visit, questions specifically about trafficking were added to the standard questions used in asylum interviews. The authorities have indicated that in January 2019, one asylum seeker was identified as a victim of trafficking through the use of the revised identification sheet developed by the Immigration and Asylum Office and Hungarian Baptist Aid after GRETA’s visit.[34]

The transit zones were closed on 21 May 2020.

 

 

 

[1]        Section 56 TCN Act; Section 31/B(2) Asylum Act.

[2]        HHC, Information Note on asylum-seekers in detention and in Dublin procedures in Hungary, May 2014, 12.

[3]        CPT, Report to the Hungarian Government on the visit to Hungary carried out from 21 to 27 October 2015, 3 November 2016, para 60.

[4]        Information provided by former IAO, 12 February 2018.

[5]        Information provided by former IAO, 12 February 2019.

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

[7]        Commissioner for Fundamental Rights, Report in Case No. AJB 4019/2012, June 2012, available at: http://bit.ly/1JKiBZN.

[8]        Section 31/A(8)(d) Asylum Act.

[9]        Information provided by former IAO, 20 January 2017.

[10]       Information provided by former IAO, 12 February 2018.

[11]       Information provided by former IAO, 12 February 2019, as well as by NDGAP on 3 February 2020 and 2 March 2021.

[12]       GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Hungary, Second evaluation round, Adopted 10 July 2019, Published on 27 September 2019, available at: http://bit.ly/364g3D2.

[13]       UNHCR, ‘UNHCR deeply concerned by Hungary plans to detain all asylum seekers’, 7 March 2017, available at: http://bit.ly/2sGzPpR.

[14]     Council of Europe Commissioner for Human Rights, ‘Commissioner concerned about Hungary’s new law allowing automatic detention of asylum seekers’, 8 March 2017, available at: http://bit.ly/2HzHOby.

[15]       European Commission, ‘Commission follows up on infringement procedure against Hungary concerning its asylum law’, IP/17/1285, 17 May 2017, available at: http://bit.ly/2qvYAA0.

[16]       European Commission, ‘Migration: Commission steps up infringement against Hungary concerning its asylum law’, IP/17/5023, 7 December 2017, available at: http://bit.ly/2sJ4Vgu.

[17]      European Commission, ‘Migration and Asylum: Commission takes further steps in infringement procedures against Hungary’, IP 18/4522, 19 July 2018, available at: https://bit.ly/2uMEJ2c.

[18]       CJEU, Judgment of the Court (Grand Chamber) of 17 December 2020, European Commission v Hungary, C-808/18, 17 December 2020, ECLI:EU:C:2020:1029.

[19]       UNHCR, ‘UNHCR Chief visits Hungary, calls for greater access to asylum, end to detention and more solidarity with refugees’, 12 September 2017, available at: http://bit.ly/2y2BnsC.

[20]       Council of Europe, Report of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees to Serbia and two transit zones in Hungary 12-16 June 2017, SG/Inf(2017)33, 13 October 2017, available at: http://bit.ly/2DS9v14.  

[21]   Council of Europe Lanzarote Committee, Special report further to a visit to transit zones at the Serbian/Hungarian border, T-ES(2017)11, 30 January 2018, available at: http://bit.ly/2C6bYyZ.

[22]       Human Rights Committee, Concluding observations on the sixth periodic report of Hungary, CCPR/C/HUN/CO/6, 9 May 2018, available at: https://bit.ly/2TWDzwu.

[23]       ECRI, Conclusions on the implementation of the recommendations in respect of Hungary subject to interim follow-up, CRI(2018)24, 15 May 2018, available at: https://bit.ly/2Ip1bsp.

[24]       HHC, Safety Net Torn Apart – Gender-based vulnerabilities in the Hungarian asylum system, 26 June 2018, available at: https://www.helsinki.hu/en/safety-net-torn-apart/.

[25]       CPT, Report on the visit to Hungary from 20 to 26 October 2017, CPT/Inf(2018) 42, 18 September 2018, available at: https://bit.ly/2TTgsTq.

[26]       Commissioner for Human Rights Of The Council Of Europe, Dunja mijatović , Report following her visit to Hungary from 4 to 8 February 2019, 21 May 2019, http://bit.ly/30upiLp.

[27]    HHC, Crossing a red line: How EU countries undermine the right to liberty by expanding the use of detention of asylum seekers upon entry, February 2019, available at: https://bit.ly/2DQJo7U.

[28]       UN Office of the High Commissioner for Human Rights, Press briefing notes on Iran and Hungary, 3 May 2019, available at: http://bit.ly/38h8pXr.

[29]    Committee on the Elimination of Racial Discrimination, Concluding observations on the combined eighteenth to twenty-fifth periodic reports of Hungary, 10 May 2019, http://bit.ly/3615xfJ.

[30]       OHCHR, End of visit statement of the UN Special Rapporteur on the human rights of migrants, Felipe González Morales, 17 July 2019, http://bit.ly/2tqOHcX, the report can be found here: https://bit.ly/3abY15V.

[31]     European Commission, Commission takes Hungary to Court for criminalising activities in support of asylum seekers and opens new infringement for non-provision of food in transit zones, 25 July 2019, http://bit.ly/360DIEg.

[32]       HHC, Government’s new asylum bill on collective pushbacks and automatic detention, 15 February 2017, available at: http://bit.ly/2FhFYLG.

[33]       HHC, The Immigration and asylum office continues to ignore court decisions and interim measures, 14 December 2018, available at: https://bit.ly/2BHVrnP.

[34]      GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Hungary, Second evaluation round, Adopted 10 July 2019, Published on 27 September 2019, available at: http://bit.ly/364g3D2.

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