Author
Under Section 31/A(1) of the Asylum Act, the NDGAP may detain an asylum seeker:
- To establish their identity or nationality;
- Where a procedure is ongoing for the expulsion of a person seeking recognition and it can be proven on the basis of objective criteria – inclusive of the fact that the applicant has had the opportunity beforehand to submit an application of asylum – or there is a well-founded reason to presume that the person seeking recognition is applying for asylum exclusively to delay or frustrate the performance of the expulsion;
- In order to establish the required data for conducting the procedure and where these facts or circumstances cannot be established in the absence of detention, in particular when there is a risk of absconding by the applicant;
- To protect national security or public order;
- Where the application has been submitted in an airport procedure;
- Where it is necessary to carry out a Dublin transfer and there is a serious risk of absconding; or
- In order to decide on the applicant’s right to enter the country.[1]
- (1a) In order to carry out the Dublin transfer, the refugee authority may take into asylum detention a foreigner who failed to apply for asylum in Hungary and the Dublin handover can take place in their case.
- (1b) The rules applicable to applicants in asylum detention shall apply mutatis mutandis to a foreigner detained under Subsection (1a) for the duration of the asylum detention. Following the termination of the asylum detention and the frustration of the transfer, the alien policing rules shall apply.
The risk of absconding is defined in Section 36/E of the Asylum Decree where ‘the third-country national does not cooperate with the authorities during the immigration proceedings, in particular if’:
- They refuse to make a statement or sign the documents;
- They supply false information in connection with their personal data; or
- Based on their statements, it is probable that they will depart for an unknown destination, and therefore there are reasonable grounds for presuming that they will frustrate the realisation of the purpose of the asylum procedure (including Dublin procedure).
The new asylum system introduced on 26 May 2020 (see section on Embassy procedure) foresees that persons arriving in Hungary with a single-entry permit in order to apply for asylum can be placed in a closed facility for 4 weeks following the registration of their asylum application, without any available legal remedy to challenge the placement.[2] However, so far none of the applicants allowed to enter Hungary after submitting their statement of intent at the Embassy were detained on this ground.
Following the entry into force of amendments to asylum legislation on 28 March 2017, asylum detention was hardly ever used, as people were held in the transit zones in de facto detention. Transit zones were closed on 21 May 2020 and since 26 May 2020 the new asylum system is in place, which results in only 38 asylum applications in Hungary in 2021 (see section on Embassy procedure). Out of 38, only two asylum seekers were detained.
[1] The new ground entered into force on 14 May 2021.
[2] Section 270(5) of the Transitional Act.