Accelerated procedure

Hungary

Author

Hungarian Helsinki Committee

The amended Asylum Act introduces an accelerated procedure as of August 2015, where the IAO is expected to pass a decision within short timeframe of 15 days.1

The law provides 10 different grounds for referring an admissible asylum claim into an accelerated procedure,2 where the applicant:

(a)   Discloses only information irrelevant for recognition as both a refugee and a beneficiary of subsidiary protection;

(b)   Originated in a country listed on the European Union or national list of safe countries of origin as specified by separate legislation;

(c)   Misled the authorities by providing false information on his or her identity or nationality

-       by providing false information;

-       by submitting false documents; or

-       by withholding information or documents that would have been able to influence the decision-making adversely;

(d)   Has destroyed or thrown away, presumably in bad faith, his or her identity card or travel document that would have been helpful in establishing his or her identity of nationality;

(e)   Makes clearly incoherent, contradictory, clearly false or obviously unlikely statements contradicting the duly substantiated information related to the country of origin that makes it clear that, on the basis of his or her application, he or she is not entitled to recognition as a refugee or beneficiary of subsidiary protection;

(f)    Submitted a subsequent application that is not inadmissible;

(g)   Submitted an application for the only reason of delaying or frustrating the order of the alien policing expulsion or carrying out of the expulsion ordered by the refugee authority, the alien police authority or the court;

(h)   Entered into the territory of Hungary unlawfully or extended his or her period of residence unlawfully and failed to submit an application for recognition within a reasonable time although he or she would have been able to submit it earlier and has no reasonable excuse for the delay;

(i)     Refuses to comply with an obligation to have his/her fingerprints taken; or

(j)     For a serious reason may pose a threat to Hungary’s national security or public order, or he or she was expelled by the alien policing authority due to harming or threatening public safety or the public order.

The application cannot be rejected solely on the grounds of failing to submit an application within a reasonable time.3

In accelerated proceedings, the IAO, with the exception of the case when the applicant originates from the safe country of origin, shall assess the merits of the application for recognition in order to establish whether the criteria for recognition as a refugee or beneficiary of subsidiary protection exist.4

In the event of applying accelerated procedure to an applicant originating from safe country of origin, the applicant, when this fact is communicated to him or her, can declare immediately but within 3 days at the latest why in his or her individual case, the specific country does not qualify as a safe country of origin.5 Where the safe country of origin fails to take over the applicant, the refugee authority shall withdraw its decision and continue the procedure.6

The HHC is of the opinion that there is a high risk that the use of accelerated procedures is not going to be limited to obviously unfounded or in some way “abusive” asylum claims, but may even be used as the general rule and not as an exception.7 The HHC has noticed some cases in asylum detention, where applicants from Afghanistan would receive a negative decision in accelerated procedure, rejecting their claim as manifestly unfounded on the ground that the internal protection alternative is applicable in their case, while mentioning that they would otherwise qualify for subsidiary protection. According to the HHC, examining the internal protection alternative in accelerated procedure is not appropriate.

Besides, despite the possibility to request for the suspension of the execution of the expulsion, the IAO starts the execution of the expulsion procedure before the 7 days available for submitting an appeal against the negative decision in accelerated procedures or inadmissible cases. As a result, asylum seekers are immediately brought to immigration detention, which was also the case in the above mentioned examples. The IAO claims that if a person requests for suspension of the execution of the expulsion, they would not start to execute expulsion until a decision on the suspensive effect is taken by the court. However, in practice, asylum seekers are not informed about the possibility to request the suspension of the expulsion and, even when informed, they do not understand the significance of this information. In all cases where suspensive effect is not automatic, it is difficult to imagine how an asylum seeker will be able to submit a request for the suspension of his or her removal as he or she is typically without professional legal assistance and subject to an unreasonably short deadline to lodge the request. Further exacerbating asylum seekers’ positon, the rules allowing for a request to grant suspensive effect to be submitted are not found in the Asylum Act itself, but they emanate from general rules concerning civil court procedures.

The HHC’s attorneys have also observed an increasing use of accelerated procedures in the asylum detention centre of Kiskunhalas since December 2016, due to the fact that the IAO can no longer suspend the asylum procedure in case of a Eurodac hit from Greece (see section on Dublin: Suspension of Transfers). The accelerated procedure is mainly used for Moroccans and Algerians, but also Arab Iraqis, which is clearly abusive since they usually state relevant facts of persecution and/or serious harm and their cases should not be assessed as manifestly unfounded.

15 days for processing a first-time asylum application is – as a general rule – insufficient time period for ensuring the indispensable requirements of such a procedure, including finding the right interpreter, conducting a proper asylum interview, obtaining individualised and high-quality country information, obtaining – if necessary – medical or other specific evidence, and an eventual follow-up interview allowing the asylum seeker to react on adverse credibility findings or legal conclusions.8 This extremely short deadline is therefore in breach of EU law, which requires reasonable time limits for accelerated procedures, “without prejudice to an adequate and complete examination being carried out” and to the applicant’s effective access to basic guarantees provided for in EU asylum legislation.9

Also in contradiction to the relevant EU rule, the amended Hungarian law does not set forth any specific safeguard that would prevent the undue application of accelerated procedures to asylum seekers in need of special procedural guarantees.10

The rules governing the appeal in accelerated procedure are the same as in case of inadmissible decisions (see section on Admissibility Procedure).

  • 1. Section 47(2) Asylum Act.
  • 2. Section 51(7) Asylum Act.
  • 3. Section 51(8) Asylum Act.
  • 4. Section 51(9) Asylum Act.
  • 5. Section 51(11) Asylum Act.
  • 6. Section 51A Asylum Act.
  • 7. HHC, Building a legal fence – Changes to Hungarian asylum law jeopardise access to protection in Hungary, Information Note, 7 August 2015, available at: http://bit.ly/1KZYGEg.
  • 8. The latter being mandatory under EU law as interpreted by the CJEU. See Case C-277/11 M.M. v. Minister for Justice, Equality and Law Reform, Ireland, Attorney General, Judgment of 22 November 2012 and Case C-349/07 Sopropé – Organizações de Calçado Lda v Fazenda Pública, Judgment of 18 December 2008.
  • 9. Recital 20, Article 31(2) and (9) recast Asylum Procedures Directive.
  • 10. Recital 30 recast Asylum Procedures Directive.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti