General (scope, time limits)
The asylum procedure in Hungary starts with assessment whether a person falls under a Dublin procedure. If this is not the case, the IAO proceeds with examination of whether the application is inadmissible or whether it should be decided in accelerated procedure. The decision on this shall be made within 15 days.1 If the application is not inadmissible and it will not be decided in accelerated procedure, the IAO has to make a decision on the merits within 60 days.2 In some cases e.g. involving age assessment for unaccompanied children, the procedure can last longer up to 2-5 months. Due to the big increase of the asylum applications in 2015 and 2016, there are cases where the time limits are not respected. The drop in asylum applications only occurred recently, therefore there are still cases where the time-limits are not respected.
First instance decisions on the asylum application, are taken by so-called eligibility officers within the Refugee Directorate of the IAO. A decision of the IAO may:
Grant refugee status;
Grant subsidiary protection status;
Grant tolerated status where non-refoulement prohibits the person's return; or
Reject the application as inadmissible or reject it on the merits.
In practice, the average length of an asylum procedure, including both the first-instance procedure conducted by the IAO and the judicial review procedure, is 4-9 months.
In 2016, 29,432 applications were lodged and 3,413 were pending at the end of the year. In 2015 a total 177,135 asylum seekers applied for international protection in Hungary, in 2014 42,777 and in 2013 18,900.3
Prioritised examination and fast-track processing
According to Section 35(7) of the Asylum Act, the cases of unaccompanied children should be prioritised. However, this prioritisation is not applied in practice.
In case of a detained person seeking recognition, the asylum procedure shall be conducted as a matter of priority. This is usually applied in practice.4
The personal interview of the asylum seeker is mandatory in the asylum procedure. The IAO may omit the personal interview in the following cases, where the asylum seeker:5
(a) Is not fit for being heard;
(b) Submitted a subsequent application and, in the application, failed to state facts or provided proofs that would allow the recognition as a refugee or beneficiary of subsidiary protection. The personal hearing cannot be dispensed with, if the subsequent application is submitted by a person seeking recognition whose application was submitted earlier on his/her behalf as a dependent person or an unmarried minor.
Section 36 of the Asylum Act and Section 66 of the Decree 301/2007 set out rules relating to the right to use one's native language in the procedure and on gender-sensitive interviewing techniques. A person seeking asylum may use their mother tongue or the language he or she understands orally and in writing during his or her asylum procedure. If the asylum application is submitted orally and the asylum seeker does not speak Hungarian, the asylum authority must provide an interpreter speaking the applicant's mother tongue or another language understood by that person. There may be no need for using an interpreter if the asylum officer speaks the mother tongue of that person or another language understood by him or her, and the asylum seeker consents in writing to not having an interpreter.
The asylum seeker has a first interview usually within a few days after his or her arrival. During the asylum procedure, the asylum seeker can have one or more substantive interviews, where he or she is asked to explain in detail the reasons why he or she had to leave his or her country of origin. The HHC's lawyers observed that in Békéscsaba asylum detention asylum seekers often undergo an excessive amount of interviews, 4, 5 or 6, in one case even 9. The HHC believes that the IAO does this in order to find contradictions in asylum seeker's statements to be able to reject his or her claim.
Where the applicant requests so, a same-sex interpreter and interviewer must be provided, where this is considered not to hinder the completion of the asylum procedure.6 For asylum seekers who are facing gender-based persecution and make such a request, this designation is compulsory.7 Nevertheless, HHC is not aware of any gender or vulnerability-specific guidelines applicable to eligibility officers conducting interviews.
The costs of translation, including translations into sign language, are borne by the IAO.
There is no specific code of conduct for interpreters in the context of asylum procedures. Many interpreters are not professionally trained on asylum issues. There is no quality assessment performed on their work, nor are there any requirements in order to become an interpreter for the IAO. The IAO is obliged to select the cheapest interpret from the list, even though his quality would not be the best. For example, in the Vámosszabadi refugee camp, the HHC lawyer reported that in all his cases regarding Nigerian clients, none of the English interpreters understood fully what the clients said; the lawyer had to help the interpreter. The same happened at the court. There was another case, where the interpreter did not speak English well enough to be able to translate; for example, he did not know the word "asylum". In another case before the Budapest court, the interpreter was from Djibouti, and the client from Somalia did not understand her. The interpreter said the client was lying and the judge decided that there would be no interview. In another case the client claimed that he converted to Christianity and the interpreter was Muslim. He did not know the expressions needed for the interview, not even in Farsi, not to mention Hungarian; for example: disciples, Easter, Christmas and so on. The lawyer had to help him.
In Békéscsaba, Pakistani asylum seekers complained about the quality of Urdu spoken by their Afghan interpreter and Iranian asylum seekers complained about the quality of Persian spoken by their Afghan interpreter. When the Bicske refugee camp was still open, there was a case officer who could not properly write in Hungarian, so she had to be supported by the legal representatives of the asylum seekers. However, when there were no legal representatives present, mistakes were probably made by this case officer. The HHC's lawyer also complained about a Chinese interpreter working with the IAO who made unwanted comments about the asylum seeker and this interpreter was later fired.
Moreover, the case officers are reluctant to phrase the questions or any information in a non-legalistic way so as to enable the client to understand what the case officer is talking about. If case officers were less formalistic, interpreters would have an easier task in the procedure. Interpreters also sometimes overstep their limits, for example by making comments such as that the asylum seeker comes from different part of a country, because the pronunciation is not used in the area he or she claims to be from.
Interviews are not recorded by audio-video equipment. The questions and statements are transcribed verbatim by the asylum officers conducting the interview. The interview transcript is orally translated by the interpreter to the asylum seeker who will have an opportunity to correct it before its finalisation and signature by all present persons. However, the HHC has observed that minutes of the interviews are systematically not read back to the asylum seekers in different locations, e.g. in Békéscsaba and in the transit zones. Furthermore, there was a case when the Afghan interpreter had so many interviews on the same day that she wanted to leave just before the read-back of the record. There are several cases where the courts would annul the IAO's first instance decision and to order a new procedure to be carried out due to the inadequate interviews.8
A decision must be communicated orally to the person seeking asylum in his or her mother tongue or in another language he or she understands. Together with this oral communication, the decision shall also be made available to the applicant in writing, but only in Hungarian. The HHC's attorneys working at the transit zones and Kiskunhalas observe that most of decisions are not translated to the clients by interpreters. Instead the IAO uses case officers or even other clients to announce the main points of the decision. The justification for a decision reached is never explained to the asylum seeker.
Decisions taken by the IAO may be challenged in a single instance judicial review procedure only; there is no onward appeal. The Public Administrative and Labour Law Courts, organised at the level of regional courts (at the judicial second-instance level), have jurisdiction over asylum cases, which are dealt with by single judges. Judges are typically not asylum specialists, nor are they specifically trained in asylum law.
From 1 July 2013 onwards, the deadline for lodging a request for judicial review is only 8 days, following amendments to the Asylum Act.9 The drastic decrease of the time-limit to challenge the IAO's decision has been sharply criticised by UNHCR and NGOs such as HHC, which have argued that this will jeopardise asylum seekers' access to an effective remedy.10 For example, the short deadline is problematic when a person receives subsidiary protection and is not sufficiently informed about the opportunity to appeal and about the benefits the refugee status would bring him or her (e.g. possibility of family reunification under beneficial conditions). Within 8 days, it is sometimes impossible to meet a lawyer and the person might miss the deadline for the appeal.
The request for judicial review has suspensive effect.
Section 68(3) of the Asylum Act provides that the court should take a decision on the request for judicial review within 60 days. However, in practice, the appeal procedure takes a bit longer, around 3 months or even more, depending on the number of hearings the court holds in a case.
The hearing is only mandatory if the person is in detention. And even this is subject to some exceptions, where:11
The applicant cannot be summoned from his or her place of accommodation;
The applicant has departed for an unknown destination; or
The appeal concerns a subsequent application presenting no new facts.
Interpreters are provided and paid for by the court.
Hearings in asylum procedures are public. Individual court decisions in asylum cases are published on the Hungarian court portal.12 However, the personal data, including nationality, of the appellant are deleted from the published decisions.
The court carries out an assessment of both points of fact and law as they exist at the date when the court's decision is made. The court may not alter the decision of the refugee authority; it shall annul any administrative decision found to be against the law - with the exception of the breach of a procedural rule not affecting the merits of the case - and it shall order the refugee authority to conduct a new procedure if necessary.13
Under Section 37(3) of the Asylum Act, asylum seekers in need have access to free legal aid according to the rules set out in the Act on Legal Aid Act or by an NGO registered in legal protection. The needs criterion is automatically met, given that asylum seekers are considered in need irrespective of their income or financial situation, merely on the basis of their statement regarding their income and financial situation.14
The Legal Aid Act sets out the rules for free of charge, state-funded legal assistance provided to asylum seekers. Sections 4(b) and 5(2)(d) provide that asylum applicants are entitled to free legal aid if they are entitled to receive benefits and support under the Asylum Act. Section 3(1)(e) provides that legal aid shall be available to those who are eligible for it, as long as the person is involved in a public administrative procedure and needs legal advice in order to understand and exercise his or her rights and obligations, or requires assistance with the drafting of legal documents or any submissions. Legal aid is not available for legal representation during public administrative procedures. Therefore, in the asylum context, the presence of a legal representative during the asylum interview conducted by the IAO is not covered by the legal aid scheme. At the moment, legal aid in the administrative phase of the asylum procedure is provided only occasionally by HHC lawyers, depending on the HHC's capacity.
Section 13(b) of the Legal Aid Act also provides that asylum seekers may have free legal aid in the judicial review procedure contesting a negative asylum decision. Chapter V of the Legal Aid Act sets out rules on the availability of legal aid in the context of the provision of legal advice and assistance with drafting of legal documents for persons who are eligible for legal aid.
Section 37(4) of the Asylum Act provides that legal aid providers may attend the personal interview of the asylum seeker, have access to the documents produced in the course of the procedure and have access to reception and detention facilities to contact their client.
Legal aid providers may be attorneys, NGOs or law schools who have registered with the Legal Aid Service of the Judicial Affairs Office of the Ministry of Justice and Public Administration.15 Legal aid providers may specify which main legal field they specialise in, i.e. whether in criminal law, or civil and public administrative law. As a general rule, beneficiaries of legal aid are free to select a legal aid provider of their own choice. This is facilitated by the legal aid offices around the country, which maintain lists and advise clients according to their specific needs.
Although asylum seekers have been eligible for free legal aid since 2004, very few have availed themselves of this opportunity due to several practical and legal obstacles. Firstly, with very few exceptions, asylum seekers are not aware of the legal aid system and do not seek the services of legal aid providers. Secondly, the legal aid system does not cover translation and interpretation costs, hence the opportunity to seek legal advice in the asylum procedure is rendered almost impossible. In addition, most Hungarian lawyers based in towns where reception and detention facilities are located do not speak foreign languages.
In the past, legal aid was made available to asylum seekers both as part of the general legal aid system (which was hardly ever used) and also through projects funded by the ERF National Actions scheme.
Between 2004 and 2012, HHC was the NGO implementing a legal assistance project for asylum seekers funded by ERF, covering all reception centres and immigration detention facilities. In 2013 and 2014, free legal aid for asylum seekers was also provided through a project funded by the ERF National Actions scheme, run by the Legal Aid Service of the Ministry of Public Administration and Justice. ERF's contribution covered translation and legal representation costs in the first instance asylum procedure, while the state budget covered the legal counselling costs. The figures show that very few clients actually received assistance from legal aid lawyers involved in this project. There were some problems with the recruitment of lawyers, while the asylum seekers still do not have sufficient information about the lawyers' existence. Lack of language skills among certain lawyers was also reported. After one year of implementation of this scheme, there was still lack of legal assistance in several reception and detention centres. According to the statistics, in 2013 the lawyers working under this scheme provided only 312 legal consultations and 155 legal representations to asylum seekers.16 After two years of implementation of this project, still only a limited number of asylum seekers benefited from free legal service (only 9% of asylum seekers received state legal aid in the first half of 2014). Legal aid providers are not at all available in 2 reception centres (Vámosszabadi and Balassagyarmat) and in Debrecen, which is the biggest reception centre in the country, as well as in the asylum detention facility. Only 24 persons benefited from State legal assistance in first half of 2014 in Debrecen.17 The project officially failed, as the grantee (the Office of Administration and Justice) decided to cease the project due to insurmountable difficulties. Thus, in 2016 legal assistance to asylum seekers is still entirely dependent on the HHC.
Since 1 September 2016, the Legal Aid Service has been run by the Ministry of Interior. According to the data of the Ministry,18 asylum seekers before the IAO were granted state legal aid in 114 cases, while before the courts they were represented in 73 cases. According to the Ministry's letter, in the transit zones, 1,500 asylum seekers were granted oral legal aid. Given the large number of asylum seekers arriving to Hungary in 2016, state legal aid has covered an extremely low proportion of asylum seekers (5.7%).
The low financial compensation for legal assistance providers is also an obstacle for lawyers and other legal assistance providers to engage effectively in the provision of legal assistance to asylum seekers.
HHC continues to provide legal assistance in all reception centres, as well as in all immigration and asylum detention facilities. This legal assistance however is project based and its sustainability is not assured. In 2014, the HHC's lawyers provided legal counselling to 924 asylum seekers. Between January and September 2015, the HHC Refugee Programme provided 1,201 foreigners in need with free-of-charge legal assistance, 390 of whom (1/3) were in detention. Among these beneficiaries 912 were asylum seekers (assisted in their asylum procedure), 56 refugees (in family reunification), 273 detained irregular migrants (concerning their alien policing procedure and detention) and 14 Hungarian citizens (in family reunification with foreign relatives). In 2016, the HHC's lawyers provided legal counselling to 2,093 asylum seekers. In 477 cases the HHC's lawyers provided legal representation before the courts in asylum procedure, and in 37 cases they assisted beneficiaries of international protection in the Family Reunification procedure.
1. Section 47(2) Asylum Act.
2. Section 47(3) Asylum Act.
3. IAO, Asylum Statistics available at: https://goo.gl/ZvXF1G.
4. Section 35/A Asylum Act
5. Section 43 Asylum Act.
6. Section 66(2) Decree 301/2007.
7. Section 66(3) Decree 301/2007.
8. See e.g. Metropolitan Court, S.M.R. v. Office of Immigration and Nationality, 17.K.30.302/2010/18-II, 4 February 2011, available at: http://bit.ly/2kMoA6Y; Metropolitan Court, S.W.J. v. Office of Immigration and Nationality, 24.K.32 957/2009/23, 30 September 2010, available at: http://bit.ly/2knDzGO.
9. Section 68 Asylum Act. Before 1 July 2013, the time-limit for applying for judicial review was 15 days.
10. UNHCR, UNHCR Comments and Recommendations on the Draft modification of certain migration-related legislative acts for the purpose of legal harmonisation, 12 April 2013, available at: http://bit.ly/1B8gZG5, 14.
11. Section 68(4) Asylum Act.
12. Asylum cases published on the Hungarian court portal are available in Hungarian at: http://bit.ly/1IwxZWq.
13. Section 68(5) Asylum Act.
14. Section 5(2)(d) Legal Aid Act.
15. Chapter VIII Legal Aid Act.
16. Statistics provided by the Ministry of Interior upon request of the Hungarian Helsinki Committee, April 2014.
17. Statistics provided by the Ministry of Interior upon request of the Hungarian Helsinki Committee, September 2014.
18. Letter of the Ministry of Interior of 25 January 2017.