Author
Regular entry through transit zones
The barbed-wire fence along the 175 km long border section with Serbia was completed on 15 September 2015. A similar barbed-wire fence was erected a month later, on 16 October 2015, at the border with Croatia. So-called ‘transit zones’ have been established as parts of the fence. Despite all of the measures taken with the explicit aim of diverting refugee and migrant flows from the Serbian border, the Western Balkan route is still one of the main migratory paths into Europe.[1] The fence at the Serbian border was extended and reinforced.[2]
Until 26 May 2020, asylum could only be sought inside the transit zones (for detailed description of the practice see AIDA 2020 Report).
On 14 May 2020, the CJEU delivered its judgment in the joint cases of C-924/19 PPU and C-925/19 PPU, ruling among others that the automatic and indefinite placement of asylum-seekers in the transit zones at the Hungarian-Serbian border qualifies as unlawful detention.[3] A week after the judgment was delivered, the government shut down the transit zones and announced that it will introduce a new asylum system (described in the following section). Transit zones therefore no longer function as places where asylum applications can be made and where asylum seekers are to be held. For further information, see Border procedure as well as Detention conditions).
Irregular entry and police ill-treatment
Criminalisation of irregular border crossing
Irregular entry into Hungary is punishable by actual or suspended terms of imprisonment of up to ten years – and/or the imposition of an expulsion order.[4] The criminal procedure is not suspended when the defendant has made an asylum application during the court hearing, which could have allowed for consideration by the court of a defence under Article 31 of the 1951 Refugee Convention (non-penalisation of irregular entry).
The criminalisation of illegal entry targeting asylum seekers ceased to be of relevance with the 5 July 2016 entry into force of the ‘8-km rule’ discussed below. Between 15 September 2015 and 10 July 2016, over 2,800 criminal proceedings were started before the Szeged Criminal Court under the Criminal Code for illegally crossing the border fence. Since 10 July 2016, only few cases have been tried for ‘illegally crossing the border fence’. In 2022, 2 criminal procedures were started for this offence[5] and in 2023 one.[6]
Legalisation of summary pushbacks
Legal amendments that entered into force on 5 July 2016[7] allowed the Hungarian police to automatically push back asylum seekers who were apprehended within 8 km of the Serbian-Hungarian or Croatian- Hungarian border to the external side of the border fence, without registering their data or allowing them to submit an asylum claim, in a summary procedure lacking the most basic procedural safeguards (e.g. access to an interpreter or legal assistance).[8] Legalising pushbacks from within Hungarian territory denies asylum seekers the right to seek international protection, in breach of international and EU law,[9] and constitutes a violation of Article 4 of Protocol 4 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).[10] Those pushed back have no practical opportunities to file a complaint, are denied the right to apply for international protection, despite most of them coming from war zones such as Syria, Iraq or Afghanistan, and many of them are also physically abused by personnel in uniforms and injured as a consequence. [11]
Since 15 September 2015, Serbia generally does not take back third-country nationals under the readmission agreement except for those who hold valid travel/identity documents and are exempted from Serbian visa requirements. However in 2021, Serbia again started to take back a few persons under the readmission agreement.[12] In 2023, Serbia took back 14 persons (4 Chinese, 7 Serbian, 3 Turkish citizens).[13] Nevertheless, the majority of pushbacks from Hungary happen without Hungarian authorities contacting Serbian authorities, so without application of readmission agreement.
This was expanded with the amendments that entered into force on 28 March 2017 which state that when the state of crisis due to mass migration is in effect, irregularly staying migrants found anywhere in Hungary are to be escorted to the external side of the border fence with Serbia, extending the 8-km zone to the entire territory of Hungary.[14] This includes migrants who have never even been to Serbia before and have entered Hungary through Ukraine or Romania. Migrants who arrive at the airport and ask for asylum there are also pushed back to Serbia, although they have never even been there, since they arrived by plane from another country.
In 2019, 11,101 migrants and asylum seekers were pushed back from the territory of Hungary to the external side of the border fence and 961 were blocked entry at the border fence.[15] In 2020, 25,603 migrants and asylum seekers were pushed back and 14,151 were blocked entry.[16] In 2021, 72,787 migrants and asylum seekers were pushed back and 47,323 were blocked entry.[17] A total of 63% of those pushed back were Syrian, whereas 19% were Afghan nationals, meaning that most of them had an arguable claim[18] In 2022 there were 158,565 pushbacks carried out.[19] 56 % of those pushed back were Syrian, whereas 16% were Afghan nationals. In 2023 there were 100,138 pushbacks carried out. A total of 80% of those pushed back were Syrian, whereas 11% were Turkish and 5% Afghans.[20]
On 19 July 2018, the European Commission decided to refer Hungary to the CJEU for non-compliance of its asylum and return legislation with EU law.[21] The Commission considered that within its territory, Hungary failed to provide effective access to asylum procedures as third country nationals are escorted back across the border, even if they wish to apply for asylum. On 17 December 2020 the CJEU issued a judgement in the case C-808/18 and ruled that moving illegally staying third-country nationals to a border area, without observing the guarantees surrounding a return procedure constitutes infringements of EU law.[22]
No legislative amendments followed the judgement and the practice still remains the same. At the end of February 2021, the Hungarian Minister of Justice requested interpretation of the Hungarian Fundamental Law (the Constitution) by the Hungarian Constitutional Court (CC), arguing that the implementation of the CJEU judgment regarding pushbacks would be in breach of the Fundamental Law.[23] On 7 December 2021, the CC delivered a judgment that met only partially the government’s expectations, as it rejected directly ruling on the primacy of EU law and clearly stated that foreigners in Hungary – including asylum-seekers – do have a right to human dignity. However, the judgement is worrying as it interprets the right to self-determination in the sense that Hungarians have a right to ‘constitutional identity’, to be interpreted as the right to live in a culturally homogeneous country, essentially associating the arrival of migrants and asylum seekers with a threat to said identity.[24] The Government’s response to the judgment was that it confirms the Hungarian approach to migration and that pushbacks are as such allowed to continue.[25]
Following the CJEU judgment C-808/18 and in light of the Hungarian authorities’ disregard of its findings, the HHC requested at the beginning of January 2021 that Frontex suspend its migration related operations in Hungary to avoid complicity in unlawful practices.[26] At the end of January, Frontex, for the first time in the Agency’s history, decided to suspend its operational activities in Hungary, following increased attention from media, the European Parliament and the European Commission.[27]
On 9 June 2021, the European Commission sent a letter of formal notice to Hungary for failing to comply with the ruling of the CJEU (C-808/18).[28] In November 2021, the European Commission once again referred Hungary to the CJEU for failure to comply with the judgment in case C-808/18.[29] The application initiating proceedings was received on 21 February 2022 and the case is now ongoing.[30]
On 8 October 2021, the ECtHR issued a judgement in the first case against Hungary involving a pushback. The Court ruled that pushbacks carried out by Hungary under a domestic regulation are in breach of the prohibition of collective expulsions enshrined in Article 4 of Protocol 4 of the Convention.[31] On 22 September 2022 a similar judgement followed in H.K. v. Hungary.[32] In 2023, the ECtHR condemned Hungary in 4 collective expulsion cases. S.S. and Others v. Hungary and F.W. and Others v. Hungary concern the pushback of families to Serbia who applied for asylum at the airport and who have never been in Serbia before.[33] K.P. v. Hungary[34] and R.N. v. Hungary[35] concern the pushback of unaccompanied minors. Pushbacks are also addressed in the CoM supervision of the execution of the Ilias and Ahmed v. Hungary judgement.[36] Several other pushback cases have already been communicated by the ECtHR.[37]
Despite the above judgments, pushbacks continue on a daily basis.
The following example is particularly striking as it shows how it is not only impossible to apply for asylum in Hungary, but such an attempt leads to a pushback as well. An Afghan man, who, after having overstayed his study visa in Hungary, wanted to apply for asylum in September 2021 because of the Taliban takeover. Mr. H. Q. showed up in person at the NDGAP’s asylum authority and expressed his wish to seek asylum. Instead of being admitted into the asylum procedure, he was removed from Hungary by the police on the same day. He was carried to the external side of the Hungarian border fence situated at the official Hungarian-Serbian state border and had no other choice but to irregularly enter Serbia – a country where he had never been in his life.[38] His asylum application was rejected as inadmissible, as the NDGAP held that, based on Section 32/F(1)b) of Act LXXX of 2007 on Asylum, he was requesting something impossible within the established legal framework. His asylum claim was thus rejected without even launching an examination. In the decision, the NDGAP cites Act LVIII of 2020 on the transitional measures following the termination of the state of danger, according to which asylum applications can only be submitted through a ‘statement of intent’ at the embassies of Hungary in Belgrade or in Kyiv, and can by no means be submitted from Hungary itself. The NDGAP held that it has therefore no competence to examine this asylum application and excluded the possibility of submitting an appeal against the decision. Nevertheless, the applicant appealed the decision and requested to be granted the right to remain on the territory during the appeal procedure. However, the Police drove the applicant to the Serbian border and escorted him through the gate in the fence, despite the Police being aware of his interim measure request and the suspensive effect that such a request should have. The removal took place outside the scope of the readmission agreement with Serbia and without the presence of Serbian border guards or police officers. Neither the Police nor the Immigration authority conducted an assessment as to whether the applicant’s removal to Serbia would constitute refoulement and Serbian authorities were not informed of his removal. After being summarily removed, he was left without any assistance (with nothing else than what he had on him, as he had not been given the chance to retrieve his belongings from his house before being forcibly removed). He was denied access to a shelter in camps near the border, which were already running above capacity. He was subjected to physical violence while sleeping rough and the Serbian police twice refused to register him as an asylum seeker and physically attacked him. The pending ECtHR case was already communicated.[39] At the national level, the Metropolitan Court adjudicating the rejection of his asylum application delivered its judgment on 12 November 2021, annulled the decision of the NDGAP and ordered that the applicant shall be allowed back.[40] It ordered that a new asylum procedure be conducted in accordance with the general rules of the Asylum Act. The NDGAP appealed to the CC and the case is still pending. In a case challenging his de facto expulsion, the Metropolitan Court ruled that his expulsion was unlawful and also ordered to allow back the applicant.[41] The authorities appealed to the Supreme Court and the Supreme Court upheld the appeal.[42] According to the Supreme Court, it cannot be established that it was NDGAP who ordered the pushback and they don’t even have the competence to do that. In the repeated first instance court procedure new facts on NDGAP responsibility for ordering pushback were discovered in the files and the court ruled that since NDGAP has no competence over pushback decisions, this is a decision brought without competence, thus null and void from the beginning.[43] .
The border between Austria and Hungary has been reinforced.[44] The HHC is aware of cases, where Austria applied the readmission agreement with Hungary and when a person was returned to Hungary, they were further pushed back to Serbia, but without the use of the readmission agreement.
Resort to ill-treatment at the border and in the pushbacks and arbitrary deprivation of liberty
Since 5 July 2016, the HHC and other organisations working with migrants and refugees, including UNHCR and MSF, have received reports and documented hundreds of individual cases of violence perpetrated against would-be asylum seekers on and around the Hungarian-Serbian border. Common to these accounts is the indiscriminate nature of the violence and the claim that the perpetrators wore uniforms consistent with the Hungarian police and military. The best-known case is that of a young Syrian man who drowned in the river Tisza while attempting to cross into Hungary on 1 June 2016.[45] His surviving brother was represented by the HHC and after the criminal investigation in relation to the tragic incident was closed at the national level, a case was submitted to the ECtHR. The Court ruled in 2023 that Hungary violated Article 2 (ineffective investigation) and Article 3 (procedural limb) of the Convention.[46] In 2023, the ECtHR issued a judgement in another case addressing ineffective investigation of police ill-treatment during a pushback, finding a violation of Article 3 (substantive and procedural).[47] Compilation of different reports can also be found in AIDA Country Report: Serbia.
The Commissioner for Human Rights of the Council of Europe Dunja Mijatović wrote in the report following her visit to Hungary from 4 to 8 February 2019 that, ‘Human rights violations in Hungary have a negative effect on the whole protection system and the rule of law. They must be addressed as a matter of urgency’. This includes the arbitrary detention of asylum seekers in transit zones along the Hungarian-Serbian border and ‘repeated reports of excessive violence by the police during the forcible removals of foreign nationals’.[48]
On 8 June 2019, the Parliamentary Assembly of the Council of Europe published a report on Pushback policies and practice in Council of Europe member States.[49] Pushbacks and violent policing practices in the Balkan Region remain a serious matter of concern in 2019, according to a report published by the Border Violence Monitoring Network,[50] as well as in 2020.[51]
On 10 February 2020, the UN Committee on the Rights of the Child (CRC) published its concluding observations on Hungary, where it recommended ending the pushbacks and to stop the violence by Police and border police inflicted on children during removal.[52]
On 1 February 2021, the Hungarian Helsinki Committee presented a submission to the UN Special Rapporteur on the rights of migrants in response to the call for input of the Special Rapporteur, to inform his report to the 47th session of the United Nations Human Rights Council on push-backs,[53] as well as the BMVN.[54] As part of the Protecting Rights at Borders initiative, quarterly reports on pushbacks on the Western Balkan Route were published in 2021.[55] CoE Commissioner for Human Rights published a report in April 2022.[56] In April 2022 Special Rapporteur on the human rights of migrants issued a report on Human rights violations at international borders.[57]
In 2023 CPT conducted another visit in Hungary.[58] The HHC prepared a detailed report on pushback practice prior to their visit.[59] The HHC also responded to the FRANET Service Request no. 15. on Investigations of fundamental rights violations and criminal offences at the EU’s external borders.[60] Following the visit to Hungary of the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA), held on 27 February – 3 March 2023, GRETA noted with grave concern the pushbacks and forced removals of migrants and asylum seekers at the border with Serbia, as well as the absence of a proper asylum application procedure in place, which virtually eliminate any possibility of detecting and identifying possible victims of trafficking among this vulnerable group, and further increases the vulnerability of those individuals to become victims or to be re-trafficked.[61]
Embassy procedure
On 26 May 2020, the government issued a government decree that introduced a new asylum system, the so called ‘embassy procedure’.[62] This new system was later included in the Transitional Act, that entered into force on 18 June 2020. The system was first in place until 31 December 2020, but was since then prolonged several times. The system is currently in force until 31 December 2024.[63]
According to the new system, those wishing to seek asylum in Hungary, with a few exceptions noted below, must go through the following steps prior to being able to register their asylum application:
- A foreigner must personally submit a ‘statement of intent for the purpose of lodging an asylum application’ (hereafter: statement of intent) at the Embassy of Hungary in Belgrade or in Kyiv.[64]
- The Embassy must then forward the ‘statement of intent’ to the NDGAP in Budapest, which shall examine it within 60 days.[65]During this period the NDGAP might remotely interview the foreigner.
- The NDGAP should make a proposal to the Embassy whether to issue the ‘would-be’ asylum seeker a special, single-entry permit to enter Hungary for the purpose of lodging an asylum application.[66]
- In case the permit is issued, the would-be asylum-seeker must travel on their own to Hungary within 30 days, and upon arrival, immediately avail themselves to the border guards.[67]
- The border guards must then present the ‘would-be’ asylum-seeker to the asylum authority within 24 hours.[68]
- The ‘would-be’ asylum-seeker can then formally register their asylum application with the NDGAP.
Only people belonging to the following categories are not required to go through the process described above:[69]
- Beneficiaries of subsidiary protection who are staying in Hungary.
- Family members[70]of refugees and beneficiaries of subsidiary protection who are staying in Hungary.
- Those subject to forced measures, measures or punishment affecting personal liberty, except if they have crossed Hungary in an ‘illegal’ manner.
It is therefore clear that anyone who arrives at the border with Hungary, anyone who enters Hungary irregularly and anyone who is legally staying in Hungary and does not belong to the three categories mentioned above, cannot apply for asylum in Hungary.
As regards the procedure at the embassy, the law does not clarify the criteria to be considered by the NDGAP in deciding on such applications. Those wishing to submit their statement of intent must first secure an appointment at the embassy. There is no clear procedure on how this could and should be arranged. According to the HHC’s knowledge, people are supposed to send an e-mail requesting an appointment. They are informed that they will be informed about the date of the appointment to lodge the intent (this implies that they are placed on an undefined ‘waiting list’). The HHC is aware of several cases where applicants waited over 6 months to get an appointment, while some received a date within weeks. As of 31 December 2023, 44 people are on the waiting list in order to submit a statement of intent.[71] Some also miss the appointment, as they do not speak English and the information about the appointment is sent to them in English by e-mail, or they are not used to use emails, or they were not able to arrive to the appointment, as they couldn’t arrange their travel, since they were placed in a reception centre further away from Belgrade. In 2023, 49 appointments were missed out of 51 appointments given (145 out of 147 people).[72] Reported issues are also related to the lack of knowledge of some of the applicants who had to be assisted in creating email accounts and using them for the purpose of scheduling the lodging of the statement of intent.[73]
The ‘statement of intent’ form[74] has to be filled out in English or Hungarian, for which no interpretation or legal assistance is provided. In 2020, 26, whereas in 2021, according to the NDGAP 53 and as per the Ministry of Trade and Foreign Affairs 55 statements of intent were submitted at the Embassy of Hungary in Belgrade.[75] Similar issues on the Embassy procedure in Belgrade have been reported in the AIDA report on Serbia. In 2022, according to the NDGAP, 16 statements of intent were submitted at the Embassy of Hungary in Belgrade. In 2023, according to the Ministry of Foreign Affairs, 2 statements of intent were submitted at the Embassy of Hungary in Belgrade and none in Kyiv. A total of 15 requests for appointments in order to submit a statement of intent were requested.[76]
Only one family’s ‘statement of intent’ was assessed positively in 2020 and the NDGAP granted them a single-entry permit in order to apply for asylum in Hungary. Eventually, this family from Iran was granted refugee status. All other applications were rejected in an email, by one paragraph stating that the NDGAP decided not to suggest the issuance of a single-entry permit. The decision therefore bears no reasoning and the law does not foresee any remedy. This clearly denies asylum seekers access to a fair and efficient asylum procedure as it raises fundamental concerns over the possibility of a substantive assessment without appropriate procedural guarantees being in place as required by international and EU law. In 2021, 8 persons (4 persons in April and 4 in September) were granted a single-entry permit in order to apply for asylum in Hungary. In 2022 (December), 4 persons and in 2023, 5 persons were granted a single-entry permit in order to apply for asylum in Hungary, all of Iranian nationality.
Judicial and international criticism
The government justified severe restrictions to access to protection that are incompatible with domestic, EU and international law with the pretext of minimising exposure to COVID-19. Nevertheless, this system, besides all its human rights concerns, actually increased the risk of infection, by generating unnecessary cross-border movements. The maintenance of this system was unjustified, especially since the epidemiological entry restrictions were lifted on 7 March 2022 and the Government ended the state of danger due to the COVID pandemic on 1 June 2022.[77]
The HHC represents a number of rejected people in domestic court procedures. Common to all the cases is that courts found 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.[78]
The courts also found that although the Transitional Act remains silent on this, given the nature of the procedure and the effect of the outcome, the notification of the decision is in fact an administrative act and as such, can be subject to judicial review. However, this is not enshrined in the Transitional Act, and applicants are not informed by the Embassy of these developments in Hungarian case law. The asylum authority to date refuses to implement these judgments.[79] Instead, using a loophole created recently to channel out sensitive cases from the ordinary court system,[80] it requested the CC to quash the first such court decision and requested that the CC grant suspensive effect. Despite the CC’s rejection of the request for suspensive effect,[81] the NDGAP did not continue with the procedure and therefore did not implement the judgment in question. In all the other cases, where the court ordered a new procedure, the asylum office ex officio started repeated procedures, but it immediately suspended them based on a pending CC complaint procedure. More than half a year later, however, the court annulled the suspension decisions of the NDGAP.[82] Meanwhile, the CC dismissed the application on 24 May 2022, pointing out that the NDGAP did not name any fundamental rights that would have been violated by the court judgment subject to review by the CC.[83]
The NDGAP finally had to issue new decisions in repeated procedures. Although the NDGAP provided some justification for rejections, it still did not properly meet the requirements set by the courts, so further appeals had to be lodged. Litigation has therefore been ongoing for more than 2,5 years, a delay that leaves many of the HHC’s clients feeling hopeless.[84]
The courts’ reasoning in repeated procedures became stronger in 2023. For example, in one of the cases, the court ruled that given that the applicants brought their application more than two years ago and that the NDGAP has taken an unlawful decision for the second time, the court, in order to ensure effective legal protection, found it essential to provide the clearest possible guidance for the new procedure. The court noted that the applicants had no health problems and were not suffering from any infectious diseases and that in the case of persons entering Hungary from the territory of Serbia, there are currently no epidemiological restrictions in force. Therefore granting the applicants a single entry permit would not present a risk of infection. The Court further noted that there are no other reasons for refusing entry. The fact that the applicants did not lodge an application for asylum in Serbia cannot be regarded as a reason for refusal of entry, as the legislature has not introduced any restriction in this regard in the legislation. The judge also instructed NDGAP that the new procedure should be finished within 8 days (last time it took the NDGAP one year to bring a new decision), and that all that NDGAP should do is to issue a recommendation on the approval of entry.[85] NDGAP actually complied with the judgement.
UNHCR expressed its criticism over the new system,[86] and this issue has been brought up in Rule 9 submissions on implementation of Ilias and Ahmed v. Hungary case[87] by UNHCR[88] and NGO/NHRI.
Ms Leyla Kayacik, Special Representative of the Secretary General on Migration and Refugees, notes in her report of the fact-finding mission to Hungary that the current Embassy Procedure in place limits the fair and effective access to asylum of individuals who are not entitled to temporary protection and that this procedure might raise issues under the ECHR.[89]
On 30 October 2020, the European Commission decided to launch an infringement procedure against Hungary.[90] This represents the fifth infringement procedure related to asylum policies from the Commission against Hungary since 2015.[91] Following a letter of formal notice from October 2020[92] and a reasoned opinion sent in February 2021,[93] on 15 July 2021 the Commission decided to refer Hungary to the CJEU for unlawfully restricting access to the asylum procedure in breach of Article 6 of the Asylum Procedures Directive (APD), interpreted in light of Article 18 of the Charter.[94] The application initiating proceedings was received in December 2021 and the judgement was delivered on 22 June 2023. CJEU ruled that by making the possibility of making an application for international protection subject to the prior submission of a declaration of intent to an embassy located in a third country, Hungary has failed to fulfil its obligations under the EU law.[95]
Despite the above judgement, the validity of the embassy system was extended. In its latest prolongation reasoning, the Government no longer cited COVID-19 as a reason, but the need to prevent the abuse of the asylum system on a massive scale by irregular migrants. Since the transit zones had to be closed, following the CJEU judgements C-924/19 PPU and C 925/19 PPU, the “embassy procedure” had to be introduced, in order to allow entry only to those who are in genuine need of asylum in the EU and who are not granted it elsewhere. The amendment is also justified in view of the massive and deliberate criminal activities of smugglers.[96]
Unaccompanied and separated children
Although the vast majority of irregularly staying third country nationals get automatically and forcibly removed from Hungary to Serbia in a summary procedure, there have been some rare exceptions, such as the cases of UaSCs who were injured when crossing the border – e.g. fell off the border fence or were beaten by the Police or military so severely that they needed to be hospitalised. For them, a guardian was appointed and following their release from the hospital, they were placed in a children’s home in Fót, near Budapest.[97]
In their case, the guardian could contact the embassy in Belgrade and ask for an appointment to submit the statement of intent. In such cases, the appointment was given within a reasonable time. However, it normally still took in around 1,5 – 2 months on average for the guardian to arrange for their travel to Belgrade. Even when the embassy showed flexibility and accepted the statement of intent to be submitted in the Hungarian consulate in Subotica (near the border), this time frame remained the same. This delay is mainly due to the fact that when appointed, guardians need to arrange for a meeting with the child with an interpreter and a legal representative, and then must arrange for their travels. The statement of intent cannot be sent by post, email, fax or anything else and the guardian, who often is in charge of 30-40 children at the same time, must travel hundreds of kilometres just to submit a few sheets of paper, which is particularly challenging.[98] Also, UASCs who are waiting for their declaration of intent to be registered and approved remain in legal limbo and cannot access different rights.
According to the Child Protection Act, only guardians working at TEGYESZ (Child Protection Guardian Services of Budapest) may be appointed to be guardians of unaccompanied children. The Implementation Decree to the Child Protection Act contains an exhaustive list of the necessary qualifications a person needs to possess in order to be able to become a guardian. For instance, they need to hold a degree (or be certified in) one of the following: law, public administration manager, administration manager, social work, pedagogy (except for religious studies), psychologist or mental hygiene, child protection counsellor, family advisor holding a legal certificate (not a law degree), district nurse, theologian, teacher of religious studies, pastoral advisor.[99]
When the guardians did submit the statement of intent, the embassy forwarded it to the asylum authority in a speedy manner, and the asylum authority invited the minor and the guardian to formally submit the asylum application within a couple of days.
What was mentioned above, however, should in no way be understood in the sense that unaccompanied children are, as a rule, exempted from pushbacks, as such procedure was applied only in a handful of cases in 2021 and 2022. At the time of writing of this Report, only a few cases resulted in a favourable decision. UASC suffer from the systemic denial of access to the territory and procedure as much as adults. Practice shows that it is the level of their injuries upon irregular entry, or a rare spark of humanity in the Police officer in question, as opposed to a child-focused approach, which determines their fate following interception by the authorities near the border.[100]
The following case clearly illustrates the insufficiency of the system. In September 2021, a Syrian UaSC arrived to Hungary. He climbed through the fence on the Serbian border together with a small group of other asylum seekers. When climbing up on the second fence on the border, he was apprehended by the Police. He told the HHC staff that a policeman pushed him to the dirt with excessive force and hit him several times with a metal baton. Severely injured, he was taken to a hospital where he stayed for several days. After being released, he was not pushed back to Serbia, but instead taken to the children’s home housing UsACs. When arriving to the children’s home, he was frightened, traumatised and extremely angry. He wanted to seek protection, but also wanted to report police ill-treatment which occurred at the border. However, he required a legal guardian to be able to initiate relevant proceedings. When his guardian was appointed to him, they could not meet immediately due to the fact that guardians are overworked, and there is not enough of them. He had to wait for around 2 weeks to meet the guardian so he could attempt to apply for asylum in Hungary because his statement of intent form must be brought to Serbia by their guardian. It must be said that the embassy staff was flexible enough to meet the guardian halfway at the Hungarian consulate in Subotica. The child entered Hungary on 10 September and his intent form was finally submitted on 19 November. It was accepted by the asylum authority on 26 November. However, and as outlined above, he was in a legal limbo. He did not have access to free healthcare for the repeated hospital visits he needed to recover from the violence he suffered at the border. After his asylum interview on 2 December (nearly three months after entering Hungary), he decided to leave Hungary. He absconded from the children’s home and decided to move on in an irregular manner. What normally would have been an easy administrative task – registering the asylum claim of a child – took two months and one international trip. In the meantime, the child was kept in an uncertain legal limbo, which caused him further trauma.[101]
Legal access to the territory
Third country nationals cannot apply for a humanitarian visa with the intention to apply for international protection upon arrival. There are also no resettlement or relocation operations in place. In 2017, the European Commission referred Hungary, Czechia and Poland to the CJEU for non-compliance with the Council Decision on relocation.[102] The CJEU established that the Member States had breached the Council Decision by failing to relocate asylum applicants from Italy or Greece.[103]
However, Hungary did assist certain group of people in need of protection. In 2018, Hungary accepted approximately 300 refugees from Venezuela in 2018, after the country’s descent into political and economic turmoil. They were not subject to the asylum procedure, but received a settlement paper that allowed them to work, access to free accommodation for one year and access to an integration programme with free Hungarian and English language courses. The Hungarian Government decided not to communicate about this programme in public and it remained a secret until discovered by the media.[104]
Similarly, following the Taliban take-over in Afghanistan in August 2021, almost 500 former NATO co-workers and their families were flown to Hungary in the rescue operation. The rescued Afghan citizens were not subject to the asylum procedure, but were instead channelled into the alien policing procedure (residence permit for other purposes, i.e. humanitarian purposes). An AMIF-funded project was set up to provide apartments for Afghan evacuees in Budapest, as part of an integration programme.[105]
One of the routes people in need of international protection may take to legally enter Hungary is family reunification.
[1] Available at: https://bit.ly/4b6SLhN.
[2] Schengenvisanews, ‘Hungary Extends & Reinforces Border Fence with Serbia to Tackle Irregular Entries, 8 June 2023, available here.
[3] CJEU, C-924/19 PPU and C-925/19 PPU, 14 May 2020, https://tinyurl.com/2vzaajpk.
[4] Sections 352/A and 50(2a) Criminal Code.
[5] Information provided by the Police, 13 February 2023.
[6] Information provided by the Police, 20 February 2024.
[7] Section 5 of Act LXXXIX of 2007 on State Border, Section 80/J(3) of Asylum Act.
[8] HHC, Hungary: Access denied, Information Note, 14 July 2016, available at: https://bit.ly/3xodQU9.
[9] CJEU, C-808/18, 17 December 2020, available at: http://bit.ly/3KwuabY.
[10] ECtHR, Shahzad v. Hungary, Application. No. 12625/17, Judgment of 8 October 2021, available at: https://bit.ly/3ejMx6r; H.K. v. Hungary, Application No. 18531/17, Judgment of 22 September 2022, available at: https://bit.ly/3UfhucJ; S.S. and Others v. Hungary, Application No. 56417/19 and F.W. and Others v. Hungary, Application No. 44245/20, Judgment of 12 October 2023, available at: https://bit.ly/3Uu9gPk; K.P. v. Hungary, Application No. 82479/17, Judgment of 18 January 2024, available at: https://bit.ly/4dfbjOS; R.N. v. Hungary, Application No. 71/18, Judgment of 4 May 2023, available at: https://bit.ly/3xQE18p.
[11] Shahzad v. Hungary (no. 2), Application No. 37967/18, available at: https://bit.ly/49UuCtA.
[12] Information given to HHC by the Serbian border guards in June 2021.
[13] Information provided by the Police, 20 February 2024.
[14] Section 5 of Act LXXXIX of 2007 on State Border, Section 80/J(3) of Asylum Act.
[15] Information provided by the Police.
[16] See the statistics published by the Police: https://bit.ly/2OWxQJO.
[17] See the statistics published by the Police: https://bit.ly/3rw7vmm (EN) and answers received from the Police, 4 February 2022.
[18] Ibid.
[19] See the statistics published by the Police at: https://bit.ly/3WkW8NI (EN).
[20] Available at: https://bit.ly/4aQ3JIF.
[21] EC, ‘Migration and Asylum: Commission takes further steps in infringement procedures against Hungary’, IP 18/4522, 19 July 2018, available at: https://bit.ly/2uMEJ2c.
[22] CJEU, Judgment of the Court (Grand Chamber) of 17 December 2020, European Commission v Hungary, C-808/18, available at: http://bit.ly/3KwuabY.
[23] Minister of Justice, Case No. X / 00477 /2021, available at: https://bit.ly/3n3L4VZ.
[24] Hungarian Constitutional Court, Case No. X/477/2021, available at: https://bit.ly/4dfzMTV.
[25] Euronews, Hungarian Constitutional Court ruling is a migration milestone, 15 December 2021, available at: https://bit.ly/3fIr4kv, see HHC’s response: https://bit.ly/3IgsQps.
[26] DRC, Pushing Back Responsibility. Rights Violations as a “Welcome Treatment” at Europe’s borders, April 2021, http://bit.ly/3YbNUVP.
[27] EU Observer, Frontex suspends operations in Hungary, 27 January 2021, available at: https://bit.ly/37DEIlx.
[28] Proceedings No INFR(2015)2201: EC, June infringements package: key decisions, 9 June 2021, available at: https://bit.ly/3GmcJ8j.
[29] EC, Migration: Commission refers HUNGARY to the Court of Justice of the European Union over its failure to comply with Court judgment, 12 November 2021, available at: http://bit.ly/3Kv9sct.
[30] The case is registered as case C-123/22 and can be followed here: http://bit.ly/3IKBtvn.
[31] ECtHR, Shahzad v. Hungary, Application. No. 12625/17, Judgment of 8 October 2021, available at: https://bit.ly/3ejMx6r.
[32] ECtHR, H.K. v. Hungary, Application No. 18531/17, Judgment of 22 September 2022, available at: https://bit.ly/3UfhucJ.
[33] ECtHR , S.S. and Others v. Hungary, Application No. 56417/19 and F.W. and Others v. Hungary, Application No. 44245/20, Judgment of 12 October 2023, available at: https://bit.ly/3Uu9gPk.
[34] ECtHR, K.P. v. Hungary, Application No. 82479/17, Judgment of 18 January 2024, available at: https://bit.ly/4dfbjOS.
[35] ECtHR, R.N. v. Hungary, Application No. 71/18, Judgment of 4 May 2023, available at: https://bit.ly/3xQE18p.
[36] Committee of Ministers, H46-11 Ilias and Ahmed group v. Hungary (Application No. 47287/15) – Supervision of the execution of the European Court’s judgments, available at: https://bit.ly/3Et6C3R.
[37] ECtHR, H.Q. v. Hungary, Application No. 46084/21, Communicated on 7 October 2022, available at: https://bit.ly/4bcoii7; Arab and Arab v. Hungary, Application No. 60778/19 Communicated on https://bit.ly/44dVxiU; Z.A. v. Hungary, Application No. 40185/22, available at: https://bit.ly/3xNEXdv; A.S.A. v. Hungary, Application No. 53952/22, available at: https://bit.ly/49QGddk.
[38] For more information on the case please see: https://bit.ly/3FNx5Hw.
[39] H.Q. v. Hungary.
[40] Metropolitain Court, Judgment No. 11.K.705.686/2021/22, 12 November 2021.
[41] Metropolitain Court, Judgment No. 11.K.706.224/2021/25, 26 May 2022.
[42] Kfv.II.37.290/2023/4., 21 June 2023.
[43] 11.K.702.533/2023/22., 21 November 2023.
[44] Fundamental Rights Agency, Migration: Key fundamental rights concerns. 1.7.2021 → 30.9.2021, https://bit.ly/3Xo7o9s, 9.
[45] UNHCR, ‘UNHCR alarmed at refugee death on Hungary-Serbia border’, 6 June 2016, available at: https://bit.ly/3uKrmCe.
[46] ECtHR, Alhowais v. Hungary, Application No. 59435/17, available at: https://bit.ly/3W9IrkV. .
[47] Shahzad v. Hungary (no. 2), Appl. No. 37967/18, available at: https://bit.ly/49UuCtA.
[48] Commissioner for Human Rights of the Council of Europe Dunja Mijatović, Report following the visit to Hungary from 4 to 8 February 2019, 21 May 2019, available at: http://bit.ly/2TwWsIO.
[49] Council of Europe, Parliamentary Assembly: Pushback policies and practice in Council of Europe member States [Doc. 14909], 8 June 2019.
[50] Border Violence Monitoring Network, Balkan region reports, available at: https://bit.ly/3KVumBD.
[51] Border Violence Monitoring Network: Illegal push-backs and border violence reports; Balkan region April/May 2020, June 2020, available at: https://bit.ly/3bCb8xJ.
[52] CRC, Concluding observations on the sixth periodic report of Hungary, 3 March 2020, CRC/C/HUN/CO/6*, available at: https://bit.ly/3kl2CM4, paras. 38-39.
[53] HHC, Submission of the Hungarian Helsinki Committee to the UN Special Rapporteur on the human rights of migrants, February 2021, available at: https://bit.ly/3fh1STb.
[54] BVMN, Submission to the Special Rapporteur on Freedom of Religion or Belief: Report on “Combating Intolerance, Negative Stereotyping, Stigmatization, Discrimination, Incitement to Violence and Violence Against Persons, Based on Religion or Belief, 22 September 2021, available at: https://bit.ly/3ExO56S.
[55] Danish Refugee Council, Protecting Rights at Borders (PRAB) – evidence of refugee and migrant pushbacks at EU borders, available at: https://bit.ly/344g3YU.
[56] Council of Europe Commissioner for Human Rights, Pushed beyond the limits: Four areas for urgent action to end human rights violations at Europe’s borders, April 2022, available at: https://bit.ly/3Zwgumu.
[57] UN Special Rapporteur on the human rights of migrants, Human rights violations at international borders: trends, prevention and accountability, April 2022, available at: https://bit.ly/3kfsyII.
[58] Available at: https://bit.ly/44bLnPT.
[59] HHC, The HHC Refugee Programme’s Submission for the CPT’s periodic visit to Hungary in 2023, 8 May 2023, https://bit.ly/3Ug2gUP.
[60] Available at: https://bit.ly/3QkGs9I.
[61] GRETA, Evaluation Report Hungary, Access to justice and effective remedies for victims of trafficking in human beings, Third evaluation round, GRETA(2024)02, 26 February 2024, available at: https://bit.ly/3JDDPvC.
[62] Government Decree 233/2020. (V. 26.) on the rules of the asylum procedure during the state of danger declared for the prevention of the human epidemic endangering life and property and causing massive disease outbreaks, and for the protection of the health and lives of Hungarian citizens.
[63] Section 267 of Transitional Act.
[64] Section 1 of Government Decree 292/2020 (VI. 17.).
[65] Section 2 (3)-(4) of Government Decree 233/2020. (V. 26.) and Section 268 (3)-(4) of the Transitional Act
[66] Section 2 (4)-(5) of Government Decree 233/2020. (V. 26.) and Section 268 (4)-(5) of the Transitional Act.
[67] Sections 3 and 4(2) of Government Decree 233/2020. (V. 26.) and Sections 269 and 270 (2) of the Transitional Act.
[68] Section 4 (3) of Government Decree 233/2020. (V. 26.) and Section 270 (3) of the Transitional Act.
[69] Section 271 (1) of the Transitional Act.
[70] Family members defined according to the Asylum Act (Section 2(j)) are the spouses, minor children and children’s parents or an accompanying foreign person responsible for them under Hungarian law. The HHC is aware of cases, where the asylum application was not accepted from adult children who joined their parent with int. protection status through family reunification.
[71] Response of the Ministry of Foreign affairs to the HHC FOI request, 5 February 2024.
[72] Response of the Ministry of Foreign affairs to the HHC FOI request, 5 February 2024.
[73] See more in AIDA Country Report Serbia-2022 Update, p. 64.
[74] The form is available on NDGAP’s website: https://bit.ly/3shLiWw.
[75] The numbers provided by the Ministry and the NDGAP in 2022 were controversial. There were two more statements of intent registered by the Ministry than by the NDGAP.
[76] Response of the Ministry of Foreign affairs to the HHC FOI request, 5 February 2024.
[77] See Government Decree 181/2022 (V.24.), available in Hungarian at: http://bit.ly/3Kvn7im.
[78] See for example the following judgments: 11.K.704.266/2021/6, 5 October 2021; 49.K.704.624/2021/16, 3 February 2022; 11.K.704.127/2021/11, 5 October 2021.
[79] HHC, Implementing judgments in the field of asylum and migration on odd days, 17 October 2022, available at: https://bit.ly/3IKsB9s.
[80] HHC, New law threatens judicial independence in Hungary – again, January 2020, available at https://bit.ly/3Z0UdeY, 3-5.
[81] Section 53 (4), 61 of Act CLI of 2011 on the Constitutional Court.
[82] See for example the following judgments, 49.K.700.743/2022/5, 5 July 2022.
[83] Ruling of the Constitutional Court IV/3538-1/2021.
[84] HHC, No access to asylum – embassy system info note update, 13 June 2023, available here.
[85] 13.K.702.034/2023/5., 31 August 2023.
[86] UNHCR, UNHCR Position on Hungarian Act LVIII of 2020 on the Transitional Rules and Epidemiological Preparedness related to the Cessation of the State of Danger, June 2020, available at: https://bit.ly/3KWCVtI.
[87] Council of Europe, Ilias and Ahmed v. Hungary – Status of execution, available at: https://bit.ly/3QBR0Qu .
[88] UNHCR, Execution of the judgments of the European Court of Human Rights in the cases of Ilias and Ahmed v. Hungary (Application No. 47287/15; Grand Chamber judgment of 21 November 2019) and Shahzad v. Hungary (Application No. 12625/17; Judgment of 8 July 2021), 31 August 2022, available at: https://bit.ly/3YYFrpZ.
[89] Report of the fact-finding mission to Hungary by Ms Leyla Kayacik Special Representative of the Secretary General on Migration and Refugees 21-23 March 2023, 21 August 2023, SG/Inf(2023)26, available at: https://bit.ly/4a0cQ8h.
[90] Procedure INFR(2020)2310: EC, ‘October infringement package: key decision’, 30 October 2020 available at: https://bit.ly/3khzbpG.
[91] ECRE, Hungary: Facing Fifth Infringement Procedure Related to Asylum Since 2015, 6 November 2020, available at: https://bit.ly/3s95VDT.
[92] EC, October infringements package: key decisions, 30 October 2020, available at: http://bit.ly/3lMEceL.
[93] EC, February infringements package: key decisions, 18 February 2021, available at: http://bit.ly/3IqR5mi.
[94] EC, Commission refers Hungary to the Court of Justice of the European Union for unlawfully restricting access to the asylum procedure, 15 July 2021, available at: https://bit.ly/3HlLMTy.
[95] CJEU, Commission v. Hungary, Case C-823/21, 22 June 2023, available at: https://bit.ly/3JHxXS5.
[96] Explanatory memorandum to Section 91 of the Act XCI of 2023 on amending necessary laws in order to strengthen public security and fight against migration.
[97] Practice-informed observation by Hungarian Helsinki Committee.
[98] Practice-informed observation by Hungarian Helsinki Committee.
[99] Save the children, Guardianship advanced instruments for child protection in Europe (G.A.IN.), https://bit.ly/3Jro4G5.
[100] Practice-informed observation by Hungarian Helsinki Committee.
[101] Practice-informed observation by Hungarian Helsinki Committee December 2021.
[102] EC, ‘Relocation: Commission refers the Czech Republic, Hungary and Poland to the Court of Justice’, 7 December 2017, available at: http://bit.ly/3KsAYYi.
[103] CJEU, Joined cases C-715/17, C-718/17 and C-719/17, 2 April 2020.
[104] Index, ‘Hungary accepts Venezuelan refugees with the utmost secrecy’, 21 February 2019, available at: https://bit.ly/2ENi24b.
[105] EUAA, Asylum Report 2022, June 2022, available at: https://bit.ly/3iPtvHi and AIDA, Country Report Hungary – 2022 Update, April 2023, available here.