Under Section 31/A(1) of the Asylum Act, the NDGAP may detain an asylum seeker:
- To establish his or her identity or nationality;
- Where a procedure is on-going 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; or
- Where it is necessary to carry out a Dublin transfer and there is a serious risk of absconding.
(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 his or her 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 ground most commonly used was the “risk of absconding” under Section 31/A(1)(c), sometimes in combination with the “identification” ground. The risk of absconding is defined in Section 36/E of the Asylum Decree as present: if “the third-country national does not cooperate with the authorities during the immigration proceedings, in particular if”:
- He or she refuses to make a statement or sign the documents;
- He or she supplies false information in connection with his or her personal data; or
- Based on his or her statements, it is probable that he or she will depart for an unknown destination, and therefore there are reasonable grounds for presuming that he or she will frustrate the realisation of the purpose of the asylum procedure (including Dublin procedure).
Since the entry into force of amendments to asylum legislation on 28 March 2017, asylum detention was hardly ever used. At the end of December 2020, there were 3 asylum seekers detained in asylum detention. The amended law provides that in times of state of emergency due to mass migration it is only possible to apply for asylum in the transit zones and that all asylum seekers, with the exception of unaccompanied minors below age of 14, have to remain in the transit zone for the whole duration of the asylum procedure. The stay in the transit zone is de facto detention.
Asylum seekers under a Dublin procedure, with the exception of unaccompanied children below 14 years of age were always detained for the whole duration of the Dublin procedure in the de facto detention in the transit zone.
Transit zones were closed on 21 May 2020 and as of 26 May 2020 the new asylum system is in place, which results in almost zero asylum applications in Hungary (see section on Embassy procedure). The only family that was admitted in Hungary in order to apply for asylum was not detained.
In February 2014, the HHC staff conducted monitoring visits to the three asylum detention centres open at the time (Békéscsaba, Debrecen, Nyírbátor). The monitoring teams interviewed over 150 detainees and collected the decisions ordering or maintaining the detention. Following these visits, HHC analysed a total of 107 decisions. See HHC, Information Note on asylum-seekers in detention and in Dublin procedures in Hungary, May 2014, available at: http://bit.ly/1MOnO0Q, 7.