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Background Information on the Situation in the Republic of Hungary in the Context of the Return of Asylum Seekers

Publisher UN High Commissioner for Refugees (UNHCR)
Publication Date 31 December 1999
Cite as UN High Commissioner for Refugees (UNHCR), Background Information on the Situation in the Republic of Hungary in the Context of the Return of Asylum Seekers, 31 December 1999, available at: http://www.refworld.org/docid/3ae6b33a14.html [accessed 23 September 2014]

Introduction

1.      In the interest of avoiding refoulement and orbit situations and promoting international co-operation for the protection of refugees, the return of applicants who have found or could have found protection in another country should take place in accordance with arrangements agreed among the States concerned, to determine which State is responsible for considering an application for asylum and for granting the protection required. Agreements providing for the return by States of persons who have entered their territory from another contracting State in an unlawful manner (readmission agreements) should not be used for this purpose unless they explicitly provide for the protection of refugees.[1] Nevertheless, if applied to asylum-seekers and refugees, the practice of such agreements should have due regard for the special situation faced by refugees.

2.      UNHCR further considers that, in the absence of any formal agreement between States to this effect, the return of a refugee or asylum-seeker to a country where he or she found or could have sought protection, should not take place unless certain conditions relating to the person's safety and treatment in that country are met. UNHCR has identified some factors that should be carefully considered, in each individual case, when determining whether the return of a refugee or an asylum-seeker to a particular country should take place. These factors, which include both formal aspects and the practice of the State to which return is contemplated, are: observance of basic recognised human rights standards for the treatment of asylum-seekers and refugees, in particular the principle of non-refoulement; readiness to readmit returned asylum-seekers and refugees, consider their claims in a fair manner and provide effective and adequate protection, including treatment in accordance with basic human standards.

International legal framework

3.      The Republic of Hungary acceded to the 1951 Convention and 1967 Protocol relating to the Status of Refugees in March 1989. Hungary also acceded to the International Convention on the Prevention and Punishment of Crimes Against Persons Enjoying International Protection Including Diplomatic Representatives (1973) ; the International Covenant on Civil and Political Rights, and the Optional Protocol of the same Covenant (1966); the International Covenant on Economic, Social and Cultural Rights (1966); the International Convention on the Elimination of All Forms of Racial Discrimination (1965); the Convention on the Elimination of All Forms of Discrimination Against Women (1979); the Convention on the Rights of the Child (1989); the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1984); the Convention on the Privileges and Immunities of the United Nations (1946); the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963). Furthermore, Hungary has ratified the European Convention on Human Rights (1950). Article 7 (1) of the Hungarian Constitution reads: "The legal system of the Republic of Hungary shall respect the generally accepted rules of international law and shall ensure harmony between the assumed international law obligations and domestic law". The Hungarian Constitutional Court is empowered to examine whether a national rule is in conformity with an international treaty.

4.      The Republic of Hungary has signed readmission agreements with the following countries: Austria, Bosnia-Herzegovina, Bulgaria, Croatia, the Czech Republic, France, Germany, Italy, Moldova, Poland, Romania, Slovakia, Slovenia, Switzerland, and Ukraine. These readmission agreements generally apply to the return of nationals of the contracting State or third country nationals who entered a contracting State illegally.

Refugee-related national legislation[2]

5.      National legislation related to refugees is primarily contained in the Asylum Law which came into effect on 1 March 1998. UNHCR was substantially involved in all the stages of the drafting of this law. The new legislation represents a distinct improvement to the system in place since 1989 when Hungary acceded to the 1951 Convention. The lifting of the geographical limitation, the discontinuation of the 72-hour time limit for lodging an application for refugee status, the procedure/status established for beneficiaries of temporary protection and for persons who may not be Convention refugees, but whose expulsion raises compelling human rights issues (Articles 3 of ECHR and CAT) are major achievements of the new legislation. In addition, within Act LXXV of 1999 (entered into force on 1 September 1999) on the "Provisions for Combating Organised Crime and certain phenomena connected thereto", amendments to the asylum law have been promulgated with a view to clarify the issue of suspensive effect of appeal requests and to introduce the suspensive effect to appeal requests in the so called airport procedure.

6.      However, a few legislative shortcomings can still be found in the Asylum Law. Articles 4-7 of the Law contain clauses relating to the exclusion and cessation of refugee status which generally go beyond the scope of those included in Article 1 C and F of the 1951 Convention. Article 47 (2) of the Asylum Law, although recently amended, still allows for the aliens police/border guards to continue their procedure (i. e. preparing the execution of expulsion/deportation) in parallel with the RSDP conducted by the Office for Refugee and Migration Affairs (ORMA) and has not properly clarified the issue of the suspensive effect of appeals (see paragraph 23 below).

7.      Act LXXXVI of 1993 on "The entry, stay in Hungary and Immigration of Foreigners" (Aliens Act) has also a bearing on asylum issues as, on one hand, it includes under its article 32 the non-refoulement clause applicable to aliens in general and, on the other hand, especially after the amendments introduced by act LXXV of 1999, regulates confinement in a detention-like situation of illegal aliens, including asylum-seekers, in Border Guard Community Shelters. Although, asylum-seekers as such are not routinely detained in Hungary, illegal aliens who have not yet applied for asylum and are caught by the police/border guards, are accommodated in Border Guard Community Shelters in a detention-like situation. Once in confinement, access to the Refugee Status Determination Procedure is granted.

Confinement of asylum-seekers in a detention-like situation

8.      Documented and undocumented asylum-seekers as such are not subject to detention in Hungary. However persons caught within the country illegally and who have not yet applied for asylum or who are returned from neighbouring countries within the framework of re-admission agreements, are confined/detained in Border Guard Community Shelters. If such persons apply for asylum while in the shelters, they are given access to the refugee status determination procedure, but remain in confinement. Only the most vulnerable cases among them have access to open Refugee Reception Centers.

9.      Detention of illegal migrants has dramatically increased due to an internal measure taken by the National Border Guards in conjunction with the National Aliens Police in August 1998. At that time, open community shelters of the Border Guards were converted into closed detention facilities. This measure was introduced at a time when the number of the asylum applications had risen sharply. The practice has then been confirmed with some modifications by the so-called anti-Mafia law (Act LXXV) which entered into force on 1 September 1999 and which introduced amendments to the Aliens Act and the Asylum Law.

10.  As per the new amended Aliens Act, "The police headquarters or the border guard directorate or branch may issue a formal resolution to order the confinement of a foreign national to a designated place, as an action not qualifying as detention for alien control purposes, such confinement restricting personal freedom, if: a) such person is unable to verify his/her identity, until the establishment thereof; or b) such person is unable to prove the lawful nature of his/her stay in Hungary, until the verification thereof or until the official permission to stay; or c) such is necessary in the interest of ensuring the execution of expulsion, until the establishment of the conditions for expulsions, provided that the conditions for detention as prescribed in this act are not fulfilled; or d) denial of entry was ordered, until the time of exit; or e) denial of entry or expulsion should be applied , however such action is prohibited as per the provisions of paragraph (1) of article 32 (non refoulement clause)" (Article 43(1) of the Aliens Act).  "The operative clause of the resolution shall specify the place of compulsory confinement and the conditions for leaving such place" (Article 43(2) of the Aliens Act). "The compulsory place of residence may also be designated at a community shelter (of the border guards), if the foreign national is not able to support himself, and has not adequate place of abode, financial resources, income or sponsor or relative obliged to provide support, further, in cases when increased control over the foreign national is necessary for public security reasons." The alien concerned must stay in confinement as long as the reasons stated under points a) to e) mentioned above persist. On average, some 900 persons per month, including women and children, have been accommodated in the shelters in 1999.

Since 1 September 1999, if the community shelter has been designated for compulsory stay in a designated place, the period of stay may not exceed eighteen months. After this period of time, a different place has to be designated for the stay.

"Leave of the community shelter may only be permitted under circumstances deserving special consideration in the following cases:

the order of stay at community shelter was based on paragraph (1)a, until the identity of the foreign national is established;

the order of stay at community shelter was based on paragraph (1) c) d) and it is presumed that expulsion or return of the foreign national can be executed within 6 months;

the order of stay at community shelters was based on paragraph (1) e and the foreign national is under criminal procedure for crimes connected with illicit drug trafficking, terrorism, man smuggling, smuggling of firearms, money laundering. organised crime until the completion of the criminal procedure" (Article 43 (6) of the Aliens Act).

11.  The above article implies that whenever an expulsion procedure cannot reasonably be implemented within a six month period, a person whose identity has been verified could be allowed to leave the facility from time to time before the completion of the 18 month period. The same is applicable to persons, whose identity is verified, protected by the non-refoulement clause (article 32 of the Aliens act) and who are not involved in criminal proceedings mentioned under paragraph (6) c).

12.  In many instances human rights organisations and the Hungarian Ombudsperson's Office have defined as sub-standard the living conditions in the shelters mainly due to overcrodwing. Hygienic conditions are not seldom inadequate, and bathrooms must sometime be used by both men and women.  Single women and men cannot always be accommodated in different rooms.  Persons of different nationalities are obliged to share the same rooms.  Family privacy cannot always be respected.  Specific social and educational facilities and services for minors do seldom exist.

13.  Although a policy of transferring families with children and unaccompanied minors to open Refugee Reception Centers has been applied since February 1999, the limited absorption capacities of the refugee centers or the lack of adequate facilities for accommodating minors have hindered the full application of such a policy. As of the end of December 1999, a total of 30 children were kept in confinement.

14.  Although the establishment of eighteen months as a maximum period of confinement has to be considered an improvement compared to the open ended period in force under the previous regime, it still appears to be disproportionate compared to the offence committed. In addition, interpretation of article 43(6), which could allow daily leave from the shelters prior to the expiration of the eighteen months period, appears to be applied in a very restrictive way and, according to available information, only a few persons, after the new regulation came into force four months ago, have benefited of this. In addition, it should be noted, as a less favourable development, that the amended implementing government decree of the Asylum Law (24/1998) has withdrawn from ORMA the competence of designating the place of accommodation for those asylum-seekers who have already been accommodated in a compulsory place of stay by the Aliens Police/Border Guards. As of 1 September 1999, a transfer of an asylum-seeker from a Border Guard Community Shelter to an open Refugee Reception Center can be carried out by ORMA only with the consent of the alien policing authority.

Access to asylum procedure

15.  According to Article 31 of the Hungarian Asylum Law, asylum applications can be submitted orally or in writing. There is no time limit for filing the application. Information leaflets outlining the obligations and rights of an asylum-seeker in Hungary have been produced and are distributed by the Hungarian authorities since November/December 1998. Professional interpretation is provided free of charges to all asylum-seekers who require it. Asylum-seekers can be legally assisted and represented during the entire procedure at their own cost (legal assistance and representation is provided free of charge in the Hungarian system only in penal procedure) or at no cost through a lawyers network funded by UNHCR and managed by the Hungarian Helsinki Committee. Previously persons in possession of valid travel documents, readmitted to Hungary from other countries have experienced some difficulties in getting into RSD, however, following a 12 June 1998 internal circular of the National Border Guard Directorate concerning the thorough examination/respect of the principle of  non-refoulement, the situation has substantially improved. Only a few cases of denied access to the RSDP have been reported to UNHCR during 1999. As already mentioned, also illegal aliens who apply for asylum once in confinement in Border Guard Community Shelters are given access to the Refugee Status Determination Procedure.

16.  Article 2 (e) of the Asylum Law enshrines the safe third country concept. Asylum applications of persons who arrived from a safe third country shall be refused, something which can be contested by the applicant. In practice, this concept has not frequently been applied.

Asylum procedure and effective protection during the procedure

17.  From March 1998 until the end of December 1999, a total of 18,454 persons applied for asylum in Hungary. 685 persons have been recognised as refugees out of which 193 were UNHCR Mandate refugees, previously recognised by the UNHCR Branch Office in Hungary (before the lifting of the geographical limitation). 1,997 persons received tolerated status (status "B"/humanitarian status), 6,116 applications were rejected and 7,003 discontinued (mainly persons who "disappeared"). The number of pending cases as of the end of  December 1999 was 2,653.

18.  Asylum applications are examined by ORMA. The number of its eligibility staff is 27 of which 23 have been recruited immediately after the entry into force of the Asylum Law. In this context, it should be underlined that ORMA did not receive  additional staff/posts and additional funds after the geographical limitation was lifted although its workload increased considerably (a 600 per cent increase of asylum applications in 1998 compared to 1997 and a 55 per cent increase from 1998 to 1999). This has resulted in a limited management capacity, with a direct consequence of a high number of pending cases and a lengthy procedure. Lack of adequate human, financial and technical resources allocated to ORMA creates additional constraints on the work of the few available eligibility officers with negative effects on the decision taking process. An analysis commissioned by UNHCR on the quality of decisions taken by ORMA for the period March/September 1998 revealed that the reasoning of most of the decisions was not sufficiently supported by country of origin information and showed that not very detailed or in-depth interviews were carried out. Although some improvements have been noted concerning these issues (a further analysis on the quality of first instance decisions will be carried out in early 2000), additional progress, which can only be achieved by increasing ORMA's human and financial resources, is called for.

19.  Another factor which has a particular implication on decisions is the verification of the identity of the asylum-seekers. According to available information, when the asylum-seeker cannot provide a documentary evidence of his/her identity or his/her country of origin, only in a very few and exceptional cases have either convention refugee status or authorisation to stay been granted, although this is not a clear requirement in per the Asylum Law and its implementing government decree (the implementing government decree indeed mentions under article 29(1) that authorisation to stay should be granted only to persons whose identity has been verified, but, according to UNHCR's interpretation, this refers only to cases of aliens, and not asylum-seekers, for which the Aliens Police/Border Guards have requested ORMA to issue an expert opinion on the applicability of the non-refoulement clause and the verification process of the identity should not be based only on a documentary evidence). Still within this context and more broadly on the interpretation of the 1951 Convention, the issue of Kosovo Albanian asylum-seekers has raised concerns. Although no Kosovo Albanian has, according to our information, been refouled since the NATO airstrikes started in the Federal Republic of Yugoslavia (a few refoulement cases had been detected before) and all of them, if willing to be accommodated in reception centers, have been assisted, no one has been granted Convention refugee status and only those  holding a documentary evidence of their identity have been granted authorisation to stay. The same criteria have been applied to asylum-seekers from the Federal Republic of Yugoslavia claiming to be draft evaders/deserters. UNHCR, although appreciating that effective protection against refoulement is granted to those in need of international protection,  is however of the opinion that in certain specific cases, ORMA's interpretation of the 1951 Convention is restrictive.

20.  Applicants admitted to the refugee status determination procedure are accommodated either in government Reception Centres run by ORMA or in Border Guards Community Shelters which are situated near the borders. Due to the increasing number of applicants and capacity/staffing problems faced by ORMA, the 90 day limit imposed by law for closing the first instance procedure is often exceeded (According to the law, ORMA should take a decision on the request for asylum within 60 days. This time limit can be extended by 30 days). Currently a six month period is on average necessary to close a first instance procedure. A representative of UNHCR may at any time participate in the determination procedure. UNHCR provides legal opinions, country of origin information and trains the adjudicators.

21.  If, in the opinion of ORMA, an asylum claim is manifestly unfounded, ORMA should take a decision within seven days from the commencement of the procedure (accelerated procedure). The decision of ORMA can be appealed within three days. It should be noted, however, that only 190 claims among the rejected cases were channelled through the accelerated procedure (138 during the period March-December 1998 and 52 during the period January-December 1999).

22.  Appeals against first instance decisions are lodged with the Budapest Central Court that deals with asylum matters, among other issues. It has to give a decision within fifteen days and it is within the competency of the court to look into matter of substance, not only procedural issues. It should be noted that the domestic judicial system does not as yet have an extensive experience in the field of asylum. Hence, the effectiveness of the appeals procedure can be thoroughly assessed only once a larger exposure of judges to asylum issues has taken place. An evaluation study of court decisions has just been commissioned by UNHCR and the results should be ready in February 2000.

23.  According to Article 14 of the Asylum Law, asylum-seekers are entitled to stay in Hungary while their claims are being considered. The law is not clear on the question whether appeals to the administrative court have suspensive effect or not. Article 47(2) of the Asylum Law, as recently amended, specifies that the expulsion/deportation order "shall not be executed before the final decision is taken by the refugee authority". Although this amendment seems to exclude any implementation of the expulsion or deportation, some scholars argue that the words "final decision" can be interpreted, according to Hungarian jurisprudence, in two different ways. On one hand, a decision can be considered final in the procedural meaning once ORMA has issued the first instance decision and therefore the appeal would not have any suspensive effect. On the other hand, a decision can be considered final in the in-merit meaning once all the appeals provided by the legal system have been exploited and therefore both ORMA and second instance decisions would have a suspensive effect. In addition, Article 47 of the asylum law refers to Law No. IV/1957 on the General Rules of Administrative Procedure as applicable in refugee proceedings. Under Article 77(1)of Law No. IV/1957, decisions by administrative authorities in the first instance are final and enforceable if an appeal to another administrative authority is excluded by law. According to Article 72(3) of Law No. IV/1957, which concerns the appeal for review of a decision by an administrative authority, the suspensive effect of an appeal can be prevented/avoided in order to protect public order, for instance, by issuing a decision for the immediate implementation of the decision e.g. expulsion/deportation. So, it cannot in theory be excluded that the expulsion/deportation might be executed before the court takes a decision on the appeal. In September 1999, UNHCR has been made aware of a few cases where expulsions/deportations occurred at the airport while the appeal was pending. It should be recalled that article 47(2) is now also applicable in the airport procedure since another amendment cancelled the norm which explicitly did not grant suspensive effect to appeal requests during this procedure. However, following interventions of UNHCR and other human rights organisations and an official enquiry launched by the Hungarian Ombudsperson's Office (the results of which have not yet been made public), it appears that such a practice has been discontinued. In the normal and accelerated procedures it can be noted that in practice a suspensive effect of appeals to the administrative court has been applied.

24.  Another issue in this context is the relationship between the asylum procedure and the Alien's Law procedure. According to Article 47(2) of the Asylum Act, deportation procedures applied under the Alien's Law do not need to be suspended and this implies that Aliens Police authorities can contact consular sections/embassies of the country of origin before a final RSD decision is taken. This has indeed happened on several occasions.

25.  Art. 32 of the Aliens Act contains a prohibition of refoulement. According to this provision the aliens and border police must not expel persons to a country where he/she fears persecution under the terms of Art. 33 of the 1951 Geneva Convention or torture or inhuman or degrading treatment (Art. 3 ECHR). The aliens police/border guards must always examine this issue ex officio and, since 1 September 1999, has to ask ORMA for its opinion in all cases of deportation (This new rule is basically not applicable as ORMA has not the capacities of examining all deportation cases). These opinions are binding for the aliens police/border guards. Persons who cannot be returned because of non-refoulement grounds are granted "tolerated" status, if their identity is verified (Article 29 of the implementing decree to the Aliens Law). If their identity cannot be verified, they are protected against refoulement but no status can be granted.

26.  Another delicate issue is the possibility of appeal in cases where the applicant disappears during the RSDP (before or after the interview) and is apprehended later by the Hungarian border guards/aliens police or returned/readmitted from another country under the framework of readmission agreements. If a foreigner applies for asylum in Hungary and then voluntarily leaves the country without waiting for a complete hearing, the asylum claim may be rejected according to Article 4 (2) lit. b of the Asylum Law and the decision becomes final on the same day. If, the person returns to Hungary at a later stage, his/her case cannot be re-opened and a new (second) application for asylum must be rejected according to Art. 4 (1) lit. d, if the applicant cannot produce new facts, i.e. a fear of persecution which is based on circumstances which occurred after his/her asylum application had been rejected by the Hungarian authorities. In other words, persons, whose first asylum application was terminated on formal grounds after they left Hungary, may have no access to a proper asylum procedure (decision on the merits) in case they are returned to Hungary. However, as it was made known by ORMA during the PHARE Horizontal Programme Round Table on asylum which took place in Budapest on 21-22 June 1999, cases concerning "disappeared applicants" for whom the hearing process has not been completed (i.e. when an in-merit decision cannot be taken) are kept pending, since 1 June 1999, and are re-opened if the applicant re-appears at a later stage. Hence, UNHCR can only agree to returns of this category of asylum seekers if formal assurances are obtained from the Hungarian authorities confirming that Art. 4 (2) lit. b will be interpreted in this liberal way with regard to such cases. Evidently, this procedure is not applied to applicants who disappear once the hearing process has been completed, but where the decision has not yet been issued. For these latter cases the decision becomes final from the date of its issuance by force of Article 32 (3) of the implementing government Decree 24/1998 on procedural issues to the Asylum Law (It must be mentioned, however, that even in these cases a justification can be submitted to the authority if the person concerned had a good reason that hindered, eg. hospitalisation, in the reception of the decision and to meet the time limit set for the submission of a review request, based on Article 40 of the law no. 1957 on general rules of public administration procedure. It is then up to the Court to decide whether the justification is acceptable and the review can be carried out).

27. The situation in the Republic of Hungary is complicated by the fact that many asylum seekers, including those returned from neighbouring countries through the application of readmission agreements, do not necessarily wish to apply for asylum in Hungary because they wish to proceed to Western European countries.

Conclusions

28.  There are some shortcomings in the Law on Asylum as well as in present practice. UNHCR welcomes the assurances by the Hungarian authorities to the effect that: shortcomings of the Law on Asylum continue to be addressed and that necessary amendments will be formally enacted; training of eligibility officers and interpreters will continue; conditions for asylum seekers kept in the border guard community shelters will be substantially improved; information to asylum seekers on their rights and obligations is available wherever required; the country of origin database will be kept updated; and   integration of recognised refugees will be facilitated in a continuously improved manner. UNHCR notes that although the legislation does indeed not, on a number of points, offer full guarantees required, UNHCR's recent observation is that in practice appeals do appear to benefit from suspensive effect and that access to the procedure is granted. UNHCR also appreciates that the major legislative shortcoming and implementing issues have been formally acknowledged by the Hungarian authorities in the National Action Plan for asylum drafted within the framework of the EU-PHARE Horizontal Programme and that remedial actions will be undertaken during the year 2000 when both the Asylum Law and the Aliens Act are foreseen to be substantially amended. In this context UNHCR is of the opinion that other avenues could be explored as far as confinement of asylum-seekers is concerned. The creation, as of January 2000, of a new Central Office, under the Ministry of Interior, composed of those parts of the Aliens Police, Border Guards, ORMA and the naturalisation Office dealing with asylum and immigration affairs can also be seen as a welcome development aiming at streamlining and shortening procedures, including the Refugee Status Determination Procedure.

29.  Taking the above into due consideration, UNHCR is of the opinion that readmission of an asylum-seeker based on his/her transit through Hungary should only be carried out in cases where, be it under bilateral readmission agreements or any other return arrangement:

·        the concerned person possesses documentary evidence of his/her identity;

·        formal assurances from the Hungarian authorities have been obtained that they agree to readmit the persons in question and allow them access to the refugee status determination procedure, including those persons mentioned under paragraph 26 above (i.e. "disappeared" asylum-seekers for whose cases elements for taking an in-merit decision have not yet been gathered and who are returned to Hungary) and that, for non-recidivist (repeated illegal exits) and non-criminal cases, confinement into Border Guard Community Shelters will not be applied.

30. In addition to informing the Hungarian authorities that the returnee is an asylum-seeker, whose claim has not been heard, returning countries should inform the claimant of his/her right to apply for asylum in Hungary should he/she so wish and of his/her obligation to do so at the time of arrival back in Hungary. UNHCR would caution against indiscriminate return of asylum-seekers pending a satisfactory solution to the problems detailed above, particularly those concerning conditions of accommodation, as it is felt that a significant number of returns would overburden a still fragile asylum system.

UNHCR Geneva

31 December 1999



[1] UNHCR notes that bilateral readmission agreements have become the main legal instruments for co-operation among European States to secure the readmission to a Contracting State of its nationals or permanent residents who have entered the territory of another Contracting State in an unlawful manner. However, these agreements do not specifically concern themselves with the special situation and circumstances of asylum-seekers and, as such, do not impose on the Contracting Parties an obligation to ensure that a request for asylum is received and examined by one of them.

[2] All excerpts from the Asylum Law and the Aliens Act have been extracted from an unofficial translation provided by the Hungarian Ministry of Interior

 

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