New asylum rules endanger access to protection

Building a Legal Fence – Amendments to the Hungarian Asylum Law Seriously Endanger Access to Protection

Download the Information Note (7 August 2015)

New amendments to Hungarian asylum legislation, which entered into force on 1 August 2015, may prevent refugees from having access to international protection in Hungary. Some rules are in breach of EU law and principles established by the European Court of Human Rights and the UNHCR.

Main problematic amendments include:

• Serbia is now designated as a safe third country in a new national list of safe countries. No single other EU Member State has included Serbia in its national list of safe third countries. This designation will allow the Office of Immigration and Nationality (OIN) to reject as inadmissible almost all asylum claims, as over 99% of asylum-seekers enter Hungary through Serbia. Serbia is by no means a safe third country because access to effective international protection does not exist, as confirmed by the UNHCR and a number of other sources. As a result, Hungary will violate its obligation of non-refoulement.

• Asylum procedures will become hasty and lack essential safeguards. Under the new procedural rules, basically all asylum decisions by the OIN are to be taken in a fast-tracked procedure within 15 days. Inadmissibility decisions and accelerated procedures are likely to represent the rule, rather than the exception, resulting in slight chances for asylum claims to be considered in a regular procedure. 15 days is unreasonably short and insufficient to guarantee applicants’ effective access to indispensable safeguards, such as legal aid or psychotherapy in case of torture victims or other vulnerable persons. Also, 15 days is insufficient for properly establishing the relevant facts and circumstances in an individualised manner (obtaining expert evidence, hold subsequent hearings, etc.). This is a clear breach of EU law, which requires reasonable time limits for accelerated procedures.

• Important safeguards are taken away during the judicial review process. Personal hearing at the court is no longer mandatory, and in some cases no automatic suspensive effect against the negative and removal decision will be in place. The time limit of 3 days to file a request for judicial review against negative decisions under an accelerated procedure or on inadmissibility grounds and 8 days to deliver a judgment are insufficient and in violation of EU law and the jurisprudence of the European Court of Human Rights. They impose excessive difficulties on asylum-seekers and judges to make necessary arrangements, such as interpreters, and to obtain crucial evidence. As a result, judicial review is at the risk of being reduced to a mere formality.

• The maximum time limit of the initial detention of asylum-seekers (for registration purposes) is extended from 12 hours to 36 hours. Asylum detention, which was introduced in July 2013 to detain asylum-seekers during asylum procedures and up to 6 months, can now be extended while courts carry out judicial review procedures. The amended law now explicitly allows the OIN to tolerate overcrowding in asylum jails, converting the minimum standard regarding the moving space for each detainee into a mere recommendation.

• Due to the unprecedentedly high number of asylum seekers, reception centres have become extremely overcrowded, and fall short of important hygienic standards. The government fails to properly extend the country’s reception capacities. The amendment of the law has cancelled the OIN’s obligation to accommodate asylum-seekers in reception centres, thus potentially contributing to increasing refugee homelessness in Hungary.

• Asylum-seekers can now be obliged to contact their country of origin in order to establish identity and obtain documentary evidence. This goes against the most basic prohibition in asylum law, as it may expose asylum-seekers and their families and friends to inhuman treatment, torture or even death. Moreover, it is unrealistic to obtain genuine documents within a few days from a war-torn country like Syria or Iraq, which asylum-seekers are now obliged to do under the aforementioned amendments.