As of October 18, police registered 18,006 “illegal migrants” (persons crossing the border not at the official border stations but illegally through the “green border”) arriving in Hungary, compared with 391,384 in 2015. As of November 9, the Office of Immigration and Nationality (BAH) registered 28,320 asylum claims, compared with 177,135 in 2015. As of October 18, the BAH terminated more than 47,210 cases (including many launched in 2015), mainly due to the absence of the applicant (compared with 152,260 in 2015) and issued decisions on the merits in 3,706 cases (3,819 in 2015). The BAH granted refugee status, subsidiary protection, or tolerated status in 389 cases (compared with 508 in 2015), which was 11 percent of the cases assessed on the merits (13 percent in 2015).
Access to Asylum: A law adopted in 2015 with new provisions added during the year provides for the granting of refugee status, but the new system failed to provide full protection to refugees, according to UNCHR. The new system was based on enhanced physical border protection aimed at eliminating unauthorized border crossings and significantly reducing migrants’ access to asylum proceeding.
In the second half of 2015, the government installed a 13-foot-high “temporary border control fence” to stop migrants and asylum seekers from unauthorized border crossing from Serbia and Croatia. The 2015 law stipulates that crossing the border illegally along the security fence at the Serbian and Croatian borders constitutes a criminal offense punishable with actual or suspended imprisonment of up to 10 years and/or expulsion. Damaging the fence or hindering its construction are also criminal offenses.
On March 9, the government announced a six-month nationwide “crisis situation prompted by mass migration,” which was extended for another six months, effective from September 8. Under the special legal situation, the law authorizes the armed forces, beginning in September 2015, to assist police in maintaining order at the country’s borders, explicitly including through use of instruments of coercion suitable for causing physical injury, but only with nonlethal intent. In such circumstances, soldiers receive police power (they may ask for identification, capture and detain individuals, examine clothing, packages, and vehicles, and take measures against foreigners) and may use firearms if not directed at killing others (see also section 1.d., Role of the Police and Security Apparatus).
Effective from July 5, the law authorizes police to escort irregular migrants apprehended within five miles of the border back to the external side of the border fence, which remains Hungarian territory. In such cases, authorities reportedly did not register irregular migrants or allow them to submit an asylum claim, although they provided migrants information on how to proceed to the nearest official transit zone if they wished to submit an asylum claim. Given that the country only accepted a limited number of asylum applications a day at these transit zones, those pushed outside were unable to pursue an asylum claim sometimes for weeks. In effect, authorities pushed potential asylum seekers back to Serbia without providing them an opportunity to seek protection in the country except after long delay. International and domestic organizations reported broad allegations of mistreatment by authorities during push-back procedures (see Abuse of Migrants, Refugees, and Stateless Persons).
In September and October 2015, the government opened four official “transit zones” for administering asylum applications along the border with Serbia and Croatia (in Roszke, Tompa, Beremend, and Letenye). The original capacity of each transit zone was 100 applicants per day, which was reduced to 15 per day per transit zone on March 22 and further reduced to 10 per day on November 2. These transit zones, operated by the BAH, are responsible for assessing the eligibility of the asylum applicants based on safe country of origin and safe third-country provisions and transferring eligible cases to an assessment proceeding within eight days. The rules exempt “asylum seekers with special needs” (such as unaccompanied minors, the elderly, persons with disabilities, pregnant women, single parents with children, and victims of torture) from the admissibility border procedure, and such applicants immediately enter the assessment phase of the asylum process, at which point their applications are reviewed on their merits. Once the application enters the assessment phase, the applicant is permitted to enter the country’s territory and becomes eligible for government services provided to asylum seekers. If the BAH rejects the application in the assessment phase, the applicant is immediately issued an order of expulsion but has seven days to appeal the decision in court, where judges or court clerks issue a legally binding ruling in eight days. Courts may quash administrative decisions and refer applicants back to the BAH for a new procedure but have no authority to change the decision on the asylum application.
On May 12, UNHCR released a report concluding that the 2015 and 2016 laws and practice “have had the combined effect of limiting and deterring access to asylum in the country” and raised “serious concerns as regards compatibility with international and European law.” According to UNHCR, the asylum procedure and reception conditions in the transit zones were not in accordance with EU and international standards, in particular concerning procedural safeguards, judicial review, and freedom of movement.
On July 15, the HHC released a report criticizing the authorization of automatic push-back of persons potentially in need of international protection over the fence to the border area of Hungary and Serbia. Reports suggested that push-backs also occur from deep within the territory of the country. The HHC report concluded that “legalizing push-backs from deep within Hungarian territory denies asylum seekers the right to seek international protection, in breach of international and EU law.”
The infringement procedure launched by the European Commission in December 2015 against the country in connection with asylum regulations remained pending at the end of the year. The European Commission raised specific concerns regarding the lack of interpretation and translation in the context of fast-tracked criminal proceedings for irregular border crossers; the lack of possibility to refer to new facts and circumstances during the asylum procedure; the lack of automatic suspension of expulsion orders in case of appeals; the possibility to reject an asylum application without a personal hearing; and the issuance of decisions by court secretaries (a sub-judicial level) who lack judicial independence.
Safe Country of Origin/Transit: In July 2015 the government issued lists of “safe countries of origin” and “safe third countries.” Both lists included EU member and candidate states (except Turkey, but including Serbia), member states of the European Economic Area, Bosnia and Herzegovina, Kosovo, Switzerland, Canada, Australia, New Zealand, and those states of the United States of America that do not apply the death penalty. On March 31, the government updated the list of safe third countries to include Turkey. UNHCR and the HHC repeatedly noted their objection to the government’s recognition of Serbia as a safe transit country.
As of November 9, the BAH rejected 2,036 asylum applications based on inadmissibility due to safe country of origin and safe third-country provisions (7 percent of all applications). Upon appeal, the BAH did not change any original decisions of inadmissibility.
Refoulement: The government did not send asylum seekers back to conflict zones where their lives or freedom would be at risk. UNHCR and the HHC, however, criticized the government for issuing inadmissibility decisions based on Serbia being considered as a safe third country. According to UNHCR, Serbia lacked a functioning asylum system, thus the return of asylum seekers to Serbia may result in their exposure to inhuman treatment and refoulement to other unsafe countries. As of September 2015, however, Serbia refused to take back asylum seekers unless they were Serbian, Albanian, or Kosovar citizens or other individuals holding valid travel and/or entry documents.
Freedom of movement: The law permits detention of asylum seekers under certain circumstances. The law requires that detention of asylum seekers be based on an individual assessment and only occur absent alternative means to provide for the presence of the applicant at asylum proceedings. Judges must decide every 60 days whether to extend a decision to keep an illegal migrant in custody. The law provides that detention of asylum seekers may not exceed six months, or 30 days in case of families with children. Unaccompanied minors are exempted from asylum detention, and alternatives to detention (such as bail) must also be considered before ordering detention. On November 21, 330 asylum applicants were in asylum detention. As of November 9, 2,363 asylum seekers (eight percent of all asylum applicants) were in asylum detention.
On July 5, the ECHR ruled that the “asylum detention” of a gay Iranian asylum seeker was arbitrary and therefore unlawful. The ECHR found that authorities failed to make an individualized assessment and take into account the applicant’s vulnerability in the detention facility, based on his sexual orientation. The ECHR emphasized that authorities should exercise special care when deciding on deprivation of liberty in order to avoid situations that may reproduce the conditions that forced asylum seekers to flee in the first place.
The law provides that irregular migrants in an expulsion procedure (including rejected asylum seekers) can be placed in “immigration detention,” which may not exceed 12 months or 30 days for families with children. Unaccompanied minors are exempted from immigration detention. Immigration detention is subject to periodic judicial review. The regulations effective from September 2015 make the acts of crossing the border illegally through the security fence, damaging the fence, or hindering the construction of the fence punishable by imprisonment. Authorities usually put convicted illegal border crossers in immigration detention in preparation for their expulsion. As of November 21, authorities kept 138 irregular migrants in immigration detention (see also section 1.d., Protracted Detention of Asylum Seekers or Stateless Persons).
On November 3, the CPT released a report on its ad hoc visit in October 2015 aimed at examining the treatment and conditions of detention of foreign nationals as well as legal safeguards offered to them. The CPT report raised concerns regarding criminal investigations pursued against foreign nationals who had irregularly crossed a border fence, even if they had submitted an application for international protection. The report recalled the 1951 Geneva Convention of the Status of Refugees, which stipulates that contracting states “shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” The CPT report asserted that this provision applies to “persons who have briefly transited other countries or who are unable to find effective protection in the first country or countries to which they flee.” On November 3, the government officially responded to the report, stating its view that the 1951 Convention delineated a prohibition of “imposing a penalty” and not a prohibition on launching “criminal proceedings” against refugees who enter or are present in the country without authorization. According to the government’s response, domestic law stipulates the exclusion or the limitation of criminal culpability or the punishability in cases defined by the convention. On November 4, the HHC released a statement asserting that, contrary to the government’s position, domestic law failed to unequivocally exclude or limit criminal culpability in cases of irregular border crossing by asylum seekers, which resulted in repeated court convictions in such cases.
Between September 2015 and November 30, some 2,895 persons faced criminal trial for offenses related to the border fence, of whom 2,843 were convicted for the “prohibited crossing of the border closure.”
On March 22, the HHC, together with the Cordelia Foundation, the Foundation for Access to Rights, and the Assistance Center for Torture Survivors, released a report, From Torture to Detention. The report criticized the lack of systematic identification mechanisms to prevent the detention of torture victims and other traumatized asylum seekers; the presence of numerous factors that could lead to retraumatization in detention, including the lack of proper information; lack of access to interpretation in crucial situations; unnecessary limitations on contact with the outside world and on internal freedom of movement; and the lack of specialized medical and psychological and psychosocial care.
UNHCR expressed concerns over the number of persons kept in detention while awaiting expulsion to Serbia.
The November 3 CPT report stated that a “considerable number of foreign nationals claimed that they had been subjected to physical mistreatment by police officers.” The allegations concerned mainly slaps and punches to the face or abdomen as well as baton blows at the moment of apprehension, even when the persons concerned were allegedly not resisting apprehension or after they had been brought under control; during transfer to a police establishment; and/or during subsequent police questioning. Foreign nationals who claimed to be unaccompanied minors made some of these allegations. In addition, “a few allegations were received of physical mistreatment by police officers and/or armed guards working in immigration or asylum detention facilities.” Moreover, some allegations were received of verbal abuse and disrespectful behavior on the part of police officers and armed guards (such as swearing, mocking, and spitting at foreign nationals); these allegations pertained to all stages of deprivation of liberty.
As of September 30, one person filed a report for mistreatment during an official procedure at the Kiskunhalas immigration detention facility. Subsequently the Military Council of the Szeged Tribunal imposed a fine of 130,000 forints ($465) and reprimanded the convicted police officer. As of September 30, six persons filed reports of mistreatment during an official procedure against police officers at the Nyirbator asylum detention facility. The Debrecen Regional Office of the Central Investigative Prosecutor’s Office launched investigations in each case, which remained pending.
Access to Basic Services: On May 10, parliament amended the law to curtail measures aimed at facilitating the integration of beneficiaries of international protection on the grounds that they should not have more advantages than citizens. The new measures include the introduction of mandatory and automatic revision of refugee status at least every three years; reduction of the maximum period of stay in open reception centers after recognition from 60 to 30 days; decrease of the eligibility period for basic health care services following recognition from one year to six months; and termination of housing allowances, educational allowances, and monthly cash allowances previously provided for asylum seekers and beneficiaries of international protection or tolerated status.
Durable Solutions: The country is party to the 2013 Dublin III regulation, which provides for the return of asylum seekers to the first EU member state they entered for processing, although the government strictly limited the acceptance of Dublin III returnees during the year. As of October 31, the country accepted 452 Dublin III returnees out of 24,446 whose return was requested by other EU member states (1.9 percent).
On February 24, the government initiated a national referendum on the question, “Do you agree that the European Union should have the power to impose the compulsory settlement of non-Hungarian citizens in Hungary without the consent of the parliament of Hungary?” The government actively campaigned for voters to choose the “no” response to the referendum question. The referendum, held on October 2, was legally invalid, as the number of votes fell short of the 50 percent threshold needed to be valid. The turnout was 43.91 percent, but only 41.07 percent in terms of unspoiled or error-free ballots. Among valid ballots, 98.32 percent supported the government-favored “no” response and only 1.68 percent responded “yes.”
Temporary Protection: The government provided temporary protection (“subsidiary protection” and “tolerated status”) to individuals who did not qualify as refugees. The law defines subsidiary protection as protection provided to foreigners who do not satisfy the criteria for recognition as a refugee but who, in the event of their return to their country of origin, would risk exposure to “serious harm.” The law also provides that the BAH may authorize persons to stay in the country by granting them “tolerated status” for one year (extendable) consistent with the country’s nonrefoulement obligations under international law. As of November 9, the BAH received 389 refugee claims (the majority from Afghan nationals) and granted 136 persons refugee status, 246 persons subsidiary protection status, and seven persons tolerated status.