Following recent calls from ECRE and UNHCR for a suspension of transfers to Hungary under the Dublin Regulation, Germany announced steps to suspend transfers to the country on 11 April 2017.
In its legal note on asylum in Hungary published on 31 March 2017, ECRE analyses several deficiencies in the Hungarian asylum system that have seriously undermined the right to asylum and the rule of law in the country. ECRE had previously called on states to refrain from transferring applicants in view of the (retroactive) automatic application of the “safe third country” concept to persons entering Hungary trough Serbia and the risks of refoulement upon their return to Hungary. However, far from addressing the procedural and structural shortcomings, legislative and administrative changes in 2016 and 2017 have further exacerbated such risks.
ECRE focuses on the inaccurate qualification of Dublin returnees as subsequent applications while reiterating its concerns about chain refoulement to Serbia. The deprivation of the right to apply for asylum due to the summary returns policy, which allows the Hungarian police to automatically return asylum seekers apprehended within 8km of the border and to return them to the external side of the border fence with Serbia, is another unacceptable violation European and international law.
Another violation denounced by ECRE is detention in transit zones. On 14 March 2017, the European Court of Human Rights (ECtHR) unanimously found in Ilias and Ahmed v Hungary that placement in the transit zones without a legal basis constitutes unlawful detention, including due to the lack of remedies to challenge the detention. The Court also found a violation of Article 13 ECHR in conjunction with Article 3 ECHR due to the lack of effective remedies to complain about the detention conditions in the transit zone, and of Article 3 ECHR alone in respect of the applicants’ expulsion to Serbia. With criteria for absconding interpreted arbitrarily, lack of individualised assessments of necessity and proportionality and more persons in detention than in open reception centres at different times in 2016, it is clear that detention is widespread and systematically applied in Hungary.
Due to the recent adoption of a new law requiring all newly arriving asylum seekers are to be detained in the transit zones surrounded by high razor fences for the entire duration of their asylum procedures, UNHCR has also called for a suspension of Dublin transfers to Hungary in a press release issued on 10 April 2017. Besides unlawful detention, UNHCR also mentions the expulsion of irregularly entering asylum seekers and the ill-treatment and violence by State agents as serious deficiencies in the Hungarian system. According to UNHCR, on 7 April 2017, there were 110 people, including four unaccompanied children and children with their families, held in the transit zones.
One day later, the German Ministry of Interior demanded from the BAMF to ask Hungarian authorities for assurances of compliance with the recast Asylum Procedures Directive and the recast Reception Conditions Directive in every case it intends to transfer an asylum seeker to Hungary. According to Karl Kopp from ProAsyl this amounts to a de facto deportation stop. Germany was the main sender of Dublin requests (11,998) and transfers (294) to Hungary last year.
Several countries have suspended transfers over the past two years in individual cases or as a matter of policy.
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