Author
Vulnerable applicants in asylum detention
Unaccompanied children are explicitly excluded from asylum and immigration detention by law.[1] When asylum detention was still widely used, despite that clear ban, unaccompanied children were 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.[4]
No other categories of vulnerable asylum seekers are excluded from detention.
In 2016, there were 54 families detained for an average time of 24 days.[5] 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.[6] In 2018, 2019, 2020 and 2021 there was no child in asylum detention.[7] 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.[8] From 28 March 2017 until 21 May 2020, most of asylum-seeking families were de facto detained in the transit zones.
Conversely, there was one person with vulnerability in asylum detention in 2021 and none in 2022.[9]
Asylum detention must be terminated if the asylum seeker requires extended hospitalisation for health reasons.[10] However, this is not always respected in practice and the HHC represented an asylum seeker who was detained despite a serious health condition.
Vulnerable applicants in transit zones
Detention of vulnerable applicants in the transit zones was strongly criticized by the UN bodies, European Commission, ECRI, Lanzarote Committee, GRETA and Council of Europe (see previous AIDA reports).[11]
At least 100 unaccompanied minors were detained in the transit zones from 28 March 2017 until 21 May 2020, majorly in 2017.[12]
The ECtHR intervened several times concerning detention of vulnerable persons in the transit zones. The HHC successfully halted the deportation from the 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.[13] In 2017 and 2018 the HHC obtained 10 ECtHR interim measures concerning 9 families with children and one unaccompanied child from Afghanistan who were all detained in the transit zones.[14] The ECtHR requested that the Hungarian government 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 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.
Although the transit zones closed in 2020, cases continued before the ECtHR. In 2021 and in 2022 the cases of unaccompanied minors detained in the transit zone were 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. In 2022, the ECtHR issued another four judgements in 2017 interim measures cases mentioned above.[17]
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, available at: https://bit.ly/3ISJ8Io, 12.
[3] CPT, Report to the Hungarian Government on the visit to Hungary carried out from 21 to 27 October 2015, 3 November 2016, available at: https://bit.ly/3IRZSiW, para 60.
[4] For further information, please see previous updates of this report here: https://bit.ly/41vZs9h.
[5] Information provided by former IAO, 20 January 2017.
[6] Information provided by former IAO, 12 February 2018.
[7] Information provided by former IAO, 12 February 2019, as well as by NDGAP on 3 February 2020, 2 March 2021 and 7 February 2022.
[8] Commissioner for Fundamental Rights, Report in Case No. AJB 4019/2012, June 2012, available at: http://bit.ly/1JKiBZN.
[9] Information provided by NDGAP on 7 February 2022 and 13 February 2023.
[10] Section 31/A(8)(d) Asylum Act.
[11] 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/3YU0s58; 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.
[12] For further information about the situation prior to that, see previous updates of this report, available at: http://bit.ly/41vZs9h.
[13] HHC, Government’s new asylum bill on collective pushbacks and automatic detention, 15 February 2017, available at: http://bit.ly/2FhFYLG.
[14] For example: R.R. and others v. Hungary, Application No 36037/17, 2 March 2021, M.B.K. and Others v. Hungary, Appl.no. 73860/17, 24 February 2022; A.A.A. and Others v. Hungary, Appl. no. 37327/17, 9 June 2022; W.O. and Others, Appl. no. 36896/18, 25 August 2022 and H.M. and Others v. Hungary, Appl. no. 38967/17, 2 June 2022
[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; Z.A. v. Hungary, Appl. no. 30056/18; K.K.S. v. Hungary, Appl. no. 32660/18; M.H. v. Hungary, Appl. no. 652/18.
[17] M.B.K. and Others v. Hungary, Appl.no. 73860/17, 24 February 2022; A.A.A. and Others v. Hungary, Appl. no. 37327/17, 9 June 2022; W.O. and Others, Appl. no. 36896/18, 25 August 2022 and H.M. and Others v. Hungary, Appl. no. 38967/17, 2 June 2022.