Overview of the main changes since the previous report update

Hungary

Country Report: Overview of the main changes since the previous report update Last updated: 25/04/22

Author

Hungarian Helsinki Committee Visit Website

The report was previously updated in April 2021.

Context

A quasi state of exception has been introduced into Hungarian law in September 2015, titled the “state of crisis due to mass migration”. During this state of crisis special rules apply to third-country nationals irregularly entering and/or staying in Hungary and to those seeking asylum, and certain provisions of the Asylum Act are suspended. The state of crisis has been used as a pretext to deviate from several EU law provisions on asylum. During his visit to Hungary in 2019, the United Nations (UN) Special Rapporteur on the human rights of migrants urged the government to immediately terminate this ‘state of emergency’; he noted that he could not see a single migrant approaching Hungary from the Serbian side of the border, and deemed the extension unnecessary.[1] Six and a half years later, the state of crisis due to mass migration is still in force. This also means that police are still authorised to carry out pushbacks across the border fence of irregularly staying migrants (including those who wish to seek asylum in Hungary) from any part of the country, without any legal procedure or opportunity to challenge this measure.

Between March 2017 and mid-May 2020 all asylum seekers (with exception of unaccompanied minors below 14 years old) were held in de facto detention in the transit zones for the whole duration of their asylum procedure. After the landmark CJEU ruling,[2] the transit zones were closed in May 2020 and people were released to the open reception facilities. Subsequently, Hungary hastily introduced a new asylum system whereby access to asylum is severely limited, including to those who are legally staying in Hungary. Asylum applications can only be lodged after a declaration of intent is approved by the asylum authority. Declarations of intent can only be lodged at the Hungarian embassy in Kyiv (Ukraine) or Belgrade (Serbia), except for beneficiaries of subsidiary protection, family members of recognized refugees and beneficiaries of subsidiary protection and those being subject to forced measures, and measures or punishments affecting personal liberty.

Asylum procedure

  • No access to the asylum procedure: In 2021, only 38 people managed to apply for asylum in Hungary, of whom 8 came via Embassy procedure. All together 12 persons arrived via Embassy procedure since this system was introduced on 26 May 2020. All of them were Christians from Iran. Those whose intent submitted at the Embassy was rejected, receive only an email stating that they are not granted permission to enter Hungary. There were several domestic courts judgments finding that the lack of the most basic procedural guarantees, such as the disclosure of the reasoning behind the rejection decision, constitutes such a serious violation of procedural requirements that the asylum authority must conduct a new procedure at the end of which it must provide detailed justification of its decision. The asylum authority to date refuses to implement these judgments. Asylum seekers who do not fall under the above-mentioned limited exceptions allowing to apply for asylum in Hungary, but nevertheless tried to apply for asylum at the NDGAP (including legally staying) were issued a refusal decision, stating that they are requesting something impossible, as according to the current legislative framework in place, they should submit an intent at the Hungarian Embassy prior to being allowed to apply for asylum in Hungary. In case of an Afghan applicant whose residence permit expired, the refusal decision was followed by a push back to Serbia, a country where he has never been before. Despite the court quashing the refusal decision in November 2021 and ordering that the applicant is brought back, the authorities have up to date still not complied with this ruling.
  • Push backs: In 2021, 72,787 people were pushed back to Serbia, which is almost 3 times more than in 2020. Despite the CJEU judgement from December 2020,[3] finding the push backs unlawful and the ECtHR’s judgement in the first case against Hungary involving a pushback,[4] pushbacks continue to take place, as the Government refuses to implement these judgments.
  • No access to classified data in national security cases and no protection from refoulement: The Security agencies are not obliged to provide justification of their opinion of why a person is considered a threat to national security and the underlying data substantiating the national security threat is classified. Asylum seekers or persons with international protection considered a threat to national security and their legal representatives do not have access to the reasons why they are considered a threat (not even to the summary of the reasoning, as required by the CJEU and ECtHR jurisprudence). Therefore they have no possibility to submit defense arguments when they are excluded from international protection, their status is withdrawn or they are detained. The Hungarian immigration authority does not have access to classified data either. Moreover, the opinion of the Hungarian security agencies of a national security threat is binding on the Asylum authority (Section 57(3) of Asylum Act). Therefore, it begs the question of how the Asylum authority actually performs a thorough and individual examination of a case, taking into account individual circumstances and the assessment of necessity and proportionality. The provisions and practice on exclusion based on national security grounds therefore remain not compliant with EU law.[5] Further on, the controversial decree removing the right to request suspensive effect of expulsion decision based on national security grounds is also still in force.[6]
  • Expansion of exclusion/withdrawal clauses: Since 1 January 2022 a foreigner shall not be granted subsidiary protection/protection is withdrawn if there are reasonable grounds for believing that, prior to his or her admission by Hungary, he or she has committed an offence in his or her country of origin punishable in Hungary by a term of imprisonment of up to three years or more and there are reasonable grounds for believing that the applicant left his or her country of origin only in order to avoid the penalty for the offence. Although this amendment per se is not incompliant with the Qualification Directive, the Hungarian asylum provisions on exclusion from international protection due to serious crime are still not compliant with EU law.[7]
  • Ukrainians: All people who are crossing the Hungarian-Ukrainian border are given entry. As of 7 April 2022, the total number of Ukrainians entering Hungary directly from Ukraine and Romania reached 661,083.[8] Information provision by the authorities to Ukrainian refugees is poor. In general, there is a shortage of interpreters at registration points, therefore, many are not aware of the temporary protection scheme at all and register for a 30-day-long permission to stay or leave Hungary. This explains the low number of registrations by the NDGAP according to which only 12,296 people have applied for temporary protection until 6 April 2022. Hungary provides temporary protection to (1) Ukrainian citizens, (2) stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022 and were displaced on or after that date and (3) to the family members of the above categories.[9] The temporary protection procedure lasts for 45 days. Applicants, as well as, beneficiaries of temporary protection are entitled to receive shelter, meals, health care, financial aid, reimbursement of certain travel and translation costs as well as have access to the labour market and education. Beneficiaries, furthermore, are eligible for free of charge Hungarian language courses and language exams. Despite the elaborated legislative framework, refugees from Ukraine face several difficulties regarding their rights enforcement. Access to state shelter, meals and financial aid is also hindered. To date, financial aid has not been granted to anyone. Much of the services and help are provided by charity and civil society organizations and volunteering citizens. Hungarian legislation does not provide temporary nor other adequate protection to those third-country nationals who were permanent residents in Ukraine and cannot return in a safe and durable manner to their home country. The Government Decree no. 86/2022. (III. 7.) determines that such third-country nationals are subject to the general aliens policing procedure. Moreover, since access to the asylum procedure in Hungary is non-existent, not only permanent residents but also those who were in an asylum procedure in Ukraine or those Ukrainians who fled Ukraine before the war broke out or were on holidays and could not return to Ukraine as well as those who had legal residence in Ukraine but have fears to return to their country of origin are left without international protection.

Reception conditions

  • Low occupancy of reception centres: Due to the low number of asylum seekers registered in 2021, reception facilities ran below their capacities most part of the year. Nevertheless, the temporary stay of Afghan evacuees rescued by the Hungarian Defense Forces in the reception centres of Vámosszabadi and Balassagyarmat between September and November resulted in overcrowding in both facilities. Afghan evacuees were not registered as asylum seekers but were channelled into aliens policing procedure (see under Differential treatment of specific nationalities in reception). At the end of 2021, Vámosszabadi was empty, whereas Balassagyarmat hosted only five asylum seekers.
  • Health safety measures: Due to the COVID-19 pandemic, preventive measures are still in place, visits to the reception centres are suspended and access of NGOs thereto remains limited like in the previous two years.

Detention of asylum seekers

  • Low number of detainees, but long-standing systemic shortcomings: Although only 2 persons were placed in asylum detention in 2021, the problems mentioned in the previous AIDA reports still persist (i.e. no adequate conditions regarding persons with special needs, lack of individual assessment and justification of detention grounds, no effective judicial review, etc.).
  • Limited access to detention facilities: In 2021, NGOs were still banned from accessing detention facilities. As a result, monitoring could not be carried out, and necessary services such as free legal counselling, social assistance, psycho-social and therapeutic treatment, except on a case-by-case basis, could not be regularly provided.

Content of international protection

  • No public integration services: Since June 2016, the Hungarian state has completely withdrawn integration services provided to beneficiaries of international protection, thus leaving recognised refugees and beneficiaries of subsidiary protection in destitution and homelessness. The capacity of non-governmental and church-based organisations to provide the necessary integration services such as housing, assistance with employment, Hungarian language classes or family reunification is seriously limited. Civil society and church-based organisations can provide such services only to a small number of beneficiaries, leaving many without any help.
  • Withdrawal of protection: The NDGAP initiated the withdrawal of international protection status of 237 persons and issued a decision on withdrawal in the case of 349 persons in 2021, which is a huge increase compared to last year. Nonetheless, since the seizure of power by the Taliban in Afghanistan in August 2021, the HHC is not aware of any decision where the NDGAP would have expelled anyone to Afghanistan as a result of the withdrawal proceeding.
  • Detrimental impacts of the COVID-19 pandemic on integration: In the absence of public and targeted integration and support programs, the COVID-19 pandemic has seriously affected the integration of beneficiaries of international protection as the existing disadvantages with regard to education, access to the labour market or health care and housing have been amplified.

[1] FRA, Migration: Key fundamental rights concerns, Quarterly bulletin 4, 2019, http://bit.ly/30NBDe9.

[2] C-924/19 PPU and C-925/19 PPU.

[3] C-808/18.

[4] Shahzad v. Hungary, Appl. no. 12625/17, 8 October 2021.

[5] Hungarian Helsinki Committee: National Security Grounds for Exclusion from International Protection as a Carte Blanche: Hungarian asylum provisions not compliant with EU law, Information Update by the Hungarian Helsinki Committee, 20 December 2021, available at https://bit.ly/3f7n6ls.

[6] Hungarian Helsinki Committee, Decree Justified by Pandemic Causes Immediate Risk of Refoulement Without Access to an Effective Judicial Remedy, https://bit.ly/3lREMEa.

[7] Preserved legal deficiencies post-CJEU Ahmed judgement: Hungarian asylum provisions on exclusion from international protection still not compliant with EU law, Information Update by the Hungarian Helsinki Committee, 7 April 2021, available at: https://bit.ly/3GdSA5k.

[8] See: https://bit.ly/3E7bYRd; https://bit.ly/3JCflRf

[9] Section 1 of Government Decree no. 86/2022. (III. 7.)

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