Author
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] In 2021, due to the closure of the transit zones, no asylum seeker was detained in such locations.
Moreover, no other categories of vulnerable asylum seekers are excluded from detention. 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] No families were detained in 2021. Conversely, there was one person with vulnerability in asylum detention that year.[8]
However, asylum detention must be terminated if the asylum seeker requires extended hospitalisation for health reasons.[9] However, this is not always respected in practice and the HHC represented an asylum seeker who was detained despite a serious health condition.
In 2016, there were 54 families detained for an average time of 24 days.[10] 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.[11] In 2018, 2019, 2020 and 2021 there was no child in asylum detention.[12]
From 28 March 2017 until 21 May 2020, most of asylum-seeking families were de facto detained in the transit zones.
Vulnerable applicants in transit zones
Detention of vulnerable applicants in the transit zone was strongly criticized by the UN bodies, European Commission, ECRI, Lanzarote Committee, GRETA and Council of Europe (see previous AIDA reports).[13]
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.[14] 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.[15] 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. In 2021 a case of unaccompanied Afghan minors detained in the transit zone was communicated by the ECtHR.[16] On 2 March 2021, the ECtHR issued a judgment in one of the 2017 interim measures cases mentioned above. The Court ruled that the confinement of an Iranian-Afghan family, including three minor children, to the Röszke transit zone constituted unlawful detention in violation of Article 5 and inhuman and degrading treatment in violation of Article 3 of the Convention. Moreover, it considered that the applicants did not have avenue in which the lawfulness of their detention could have been decided promptly by a court, thereby violating Article 5(4) ECHR.
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] Information provided by NDGAP on 7 February 2022.
[9] Section 31/A(8)(d) Asylum Act.
[10] Information provided by former IAO, 20 January 2017.
[11] Information provided by former IAO, 12 February 2018.
[12] Information provided by former IAO, 12 February 2019, as well as by NDGAP on 3 February 2020, 2 March 2021 and 7 February 2022.
[13] See among others: 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; 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; HHC, Safety Net Torn Apart – Gender-based vulnerabilities in the Hungarian asylum system, 26 June 2018, available at: https://bit.ly/3LV87sU; 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; 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; 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; 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.
[14] HHC, Government’s new asylum bill on collective pushbacks and automatic detention, 15 February 2017, available at: http://bit.ly/2FhFYLG.
[15] HHC, The Immigration and asylum office continues to ignore court decisions and interim measures, 14 December 2018, available at: https://bit.ly/2BHVrnP.
[16] F.S. and A.S. v Hungary, Appl. no. 50872/18.