Dublin

Author

Hungarian Helsinki Committee Visit Website

It should be noted that the following information does not give rise to much practice, as with the embassy procedure there are extremely few asylum seekers and thus even less Dublin transfer decisions. In the last two years HHC did not represent any asylum seekers in Dublin transfer decisions appeal cases.

General

Dublin statistics: 1 January – 31 December 2022

Source: NDGAP, 13 February 2023. Requests refers to both sent and accepted requests. Transfers refers to the number of transfers actually implemented, not to the number of transfer decisions.

Source: NDGAP, 13 February 2023.

Application of the Dublin criteria

In 2022, as in previous years most outgoing requests were issued based on a previous application in another Member State.  Most outgoing requests issued in 2017, 2018 and 2019 concerned Bulgaria. In 2020 and 2021, most requests, 15 out of 41 were addressed to Germany. In 2022 most requests were addressed to Germany as well.

If an asylum seeker informs the NDGAP that they have a family member in another Member State, the NDGAP requests the personal data of the family member. Depending on the case officer, documents may also be requested, but this is not a general practice. HHC lawyers have experienced a general sense of goodwill and cooperative spirit from the NDGAP’s Dublin Unit in cases where asylum seekers were requesting to be united with their family members.

The Dublin Unit accepts documents (birth certificates, national ID) without translation and transferred them to the requested Member State’s authorities in a speedy manner. Communication between Dublin caseworkers and HHC lawyers was good and constructive, both sides working to realise transfers swiftly.

The HHC is aware of one case from 2019 when a DNA test was used to verify the family link between two brothers. The costs of the test were not borne by the applicant. As opposed to the last such case from 2017, the NDGAP communicated the procedural steps with the applicant and the legal representatives in a swift and speedy manner.

Despite the positive attitude of the Hungarian Dublin Unit, it is still evident that Dublin transfers could hardly take place without the active involvement of competent lawyers.

Before 2018, the Hungarian authorities refused to apply Article 19(2) of the Dublin III Regulation with regard to Bulgaria in cases of asylum seekers who had waited more than 3 months in Serbia before being admitted to the transit zone. According to Article 19(2), the responsibility of Bulgaria should have ceased in such situations, but the Hungarian authorities argued that this is not something that the applicants can rely on, but can only be invoked by Bulgaria.

In 2020, the HHC successfully facilitated Dublin procedures for unaccompanied minors to Germany, based on Article 8(1) and (2) of the Dublin Regulation. The German authorities unnecessarily prolonged the cases and issued very schematic rejection decisions before finally taking responsibility. No UAM Dublin case was registered in 2021. In 2022 one UAM was transferred to Switzerland.

The HHC is aware of a case in 2021, where an asylum applicant from Belarus held in extradition detention was not released by the criminal judge, despite Poland accepting responsibility for his asylum application. His extradition detention lasted more than 7 months. He was finally released, as the judge ruled that extradition to Belorussia is not possible.

The dependent persons and discretionary clauses

Hungary decided in a total of 227 cases[1] in 2017, 82 cases in 2018, 17 cases in 2019,  3 cases in 2020 and 2021 and 7 cases in 2022, under Section 17(1) of Dublin Regulation to examine an application for international protection itself.[2]

Hungary established the responsibility of other Member States in 1 case[3] under the ‘humanitarian clause’ in 2019, whereas in 2020 and in 2021 there was no such case recorded.[4] In 2022, two such cases were recorded.[5] There were no requests under humanitarian clause sent to Hungary by other Member States in 2019 and 2020, whereas Hungary received one such request from Austria in 2021[6] and 7 such requests in 2022.[7] There were no cases where dependent persons clause was applied since 2019.

The NDGAP’s practice does not have any formal criteria defining the application of the sovereignty clause. The sovereignty clause is not applied in a country-specific manner; cases are examined on a case-by-case basis.

Procedure

The Dublin Unit had 5 NDGAP staff members on 31 December 2022.[9]

Where an asylum seeker refuses to have their fingerprints taken, this can be a ground for an accelerated procedure,[10] or the NDGAP may proceed with taking a decision on the merits of the application without conducting a personal interview.[11]

If a Dublin procedure is initiated, the asylum procedure is suspended until the issuance of a decision determining the country responsible for examining the asylum claim.[12] The suspension ruling cannot be subject to individual appeal.[13] Even though a Dublin procedure can also be started after the case has been referred to the in-merit asylum procedure, Dublin procedures can no longer be initiated once the NDGAP has taken a decision on the merits of the asylum application. Finally, the apprehension of an irregular migrant can also trigger the application of the Dublin III Regulation.

Individualised guarantees

The former IAO and the NDGAP report that they note the existence of vulnerability factors already in the request sent to the other EU Member State and, if necessary, ask for individual guarantees. Nonetheless, the former IAO and NDGAP do not have any statistics on the number of requests of individual guarantees. The request of individual guarantees concerns the treatment and accommodation – especially the possibility of detention – of the transferred person. The inquiry furthermore includes questions about access to the asylum procedure, legal aid, medical and psychological services and about the appropriateness of material reception conditions.

According to the HHC’s experience with Dublin cases concerning Bulgaria, the Dublin Unit has asked the Bulgarian Dublin Unit in several cases to provide information on the general reception conditions for Dublin returnees, but these questions did not include individual characteristics of the persons concerned, so no questions were asked regarding specific needs of specific individuals. All Dublin decisions then contained a standard generic reply from the Bulgarian Dublin Unit. This would therefore constitute general information rather than individual guarantees.

In 2019, no Dublin decisions were issued with regard to irregular entry criteria (e.g. with respect to Bulgaria, Greece or Croatia), whereas in 2020, there were 2 decisions issued on the ground of Section 13 of Dublin Regulation both with regard to Greece. In 2021, no decision concerned Greece.[14] In 2022, no decisions were issued with regard to irregular entry criteria.[15]

Transfers

If another EU Member State accepts responsibility for the asylum applicant, the NDGAP has to issue a decision on the transfer within 8 days, and this time limit is complied with in practice.[16] Once the NDGAP issues a Dublin decision, the asylum seeker can no longer withdraw their asylum application.[17]

The transfer procedure to the responsible Member State is organised by the Dublin Unit and the Expulsion and Transfer Unit of the NDGAP, in cooperation with the receiving Member State, but the actual transfer is performed by the police. In case of air transfer, the police assist with boarding the foreigner on the airplane, and – if the foreigner’s behaviour or their personal circumstances such as age do not require it – the foreigner travels without escorts. Unaccompanied minors travel with their legal guardian who hands them over to the authorities of the receiving Member State. Otherwise, the person will be accompanied by Hungarian police escorts. In case of land transfers, the staff of the police hand over the foreigner directly to the authorities of the other state. According to HHC’s experience, voluntary transfers are rare. According to NDGAP, in 2021, the average time-period between the request and the execution of the transfer was 55 days. In 2022, the average time was 55.8 days. If another Member State has taken responsibility the average time-period between the acceptance of the responsibility and the execution of the transfer was 45.5 days. The average time-period between the receipt of an incoming request and the execution of the transfer from another EU Member State to Hungary was 219 days in 2021 and 160 days in 2022. The average time-period between the acceptance of the responsibility by Hungary and the execution of the incoming transfer was 156 in 2021 and 120 days in 2022.[18]

In 2021, Hungary issued 40 outgoing requests and carried out 19 transfers. In the same year, Hungary received 1400 requests out of which only one transfer was executed from Germany. In 2022, Hungary issued 29 outgoing requests and carried out 23 transfers. In the same year, Hungary received 1,636 requests out of which 21 transfers were executed, mainly from Germany, Norway and Austria.

In 2021, 23 persons were detained because of Dublin procedure (Section 31/A(1a) Asylum Act).[19] These persons were not asylum seekers in Hungary. Data for 2022 was not provided.

Personal interview

There is no special interview conducted in the Dublin procedure. The information necessary for the Dublin procedure is obtained in the first interview with the NDGAP, upon submission of asylum application, but usually only in relation to the way of travelling and family members.

As of 2018, the HHC observed that the interview questions did touch upon the conditions in the EU countries on the applicants’ journey. The questions are not very elaborated though.

Appeal

Asylum seekers have the right to request judicial review of a Dublin decision before the competent Regional Administrative and Labour Court within 3 days.[20] The extremely short time limit of 3 days to challenge a Dublin transfer does not appear to reflect the ‘reasonable’ deadline for appeal under Article 27(2) of the Dublin III Regulation or the right to an effective remedy under Article 13 ECHR.[21]

The request for review shall be submitted to the NDGAP. The NDGAP shall forward the request for review, together with the documents of the case and its counter-application, to the court with no delay.[22]

The court can examine points of fact and law of the case, however only on the basis of available documents. This has been interpreted by the courts as precluding them from accepting any new evidence that were not submitted to the NDGAP already. This kind of interpretation makes legal representation in such cases meaningless, since the court’s assessment is based on the laws and facts as they stood at the time of the NDGAP’s decision and the court does not at all examine the country information on the quality of the asylum system and reception conditions for asylum seekers in responsible Member State submitted by the asylum seeker’s representative in the judicial procedure. The court has to render a decision within 8 calendar days.[23] In practice, however, it can take a few months for the court to issue a decision.

A personal hearing is specifically excluded by law; therefore, there is no oral procedure.[24] This was particularly problematic in the past, since the asylum seeker was usually not asked in the interview by the former IAO about the reasons why they left the responsible Member State and, since the court does not hold a hearing, this information never reaches the court either. In 2018 and 2019, the HHC observed that the interview questions did touch upon the conditions faced by the applicant in the EU countries crossed on their journey. Instead, asylum seekers were asked regarding the Member States they transited during their route about the following: ‘For how long and where did you stay there? What did you do meanwhile? Why you did not apply for asylum? Did you consider it as a safe country? Why do you think it is not safe? What would happen to you upon your return there? Did you try to apply for accommodation in a reception centre? What kind of documents were you issued?’

Appeals against Dublin decisions do not have suspensive effect. Asylum seekers have the right to ask the court to suspend their transfer. Contrary to the Dublin III Regulation,[25] according to the TCN Act and Asylum Act this request does not have suspensive effect either.[26] However, the Director-General of the former IAO issued an internal instruction, stating that if a person requests for suspensive effect, the transfer should not be carried out until the court decides on the request for suspensive effect.[27] However, it seems worrying that despite the clear violation of the Dublin III Regulation, the controversial provision was not amended in the scope of the several recent amendments of the Asylum Act.

The HHC’s experience shows that the courts often do not assess the reception conditions in the receiving country, nor the individual circumstances of the applicant.[28]

The above information is from the past, as in the last two years HHC did represent any asylum seekers in Dublin transfer decisions appeal cases.

Legal assistance

Asylum seekers have the same conditions and obstacles to accessing legal assistance in the Dublin procedure as in the regular procedure (see section on Regular Procedure: Legal Assistance). What is particularly problematic for asylum seekers in the Dublin procedure are the short deadlines (only 3 days to lodge an appeal) and the absence of a right to a hearing before the court. In such a short time it proves difficult to access legal assistance, which is even more crucial since there is no right to a hearing. The importance of legal assistance is, on the other hand, seriously undermined by the fact that courts are only performing an ex tunc examination and do not take into account any new evidence presented during the judicial review procedure.

Asylum seekers and their legal representatives do not receive any information on the procedural steps taken in the Dublin procedure, as they are only informed about the final decisions issued by the NDGAP. They therefore do not know when and if the request was sent to another Member State, whether the Member State responded, etc. This documentation has to be proactively obtained by the lawyer, by requesting the documentation from the Dublin Unit.

Suspension of transfers

Greece

Until May 2016, because of the European Court of Human Rights (ECtHR)’s ruling in M.S.S. v. Belgium and Greece,[29] transfers to Greece occurred only if a person consented to the transfer. However, in May 2016, the former IAO started to issue Dublin decisions on returns to Greece again.[30] In some cases, HHC lawyers successfully challenged such decisions in the domestic courts and in two cases the HHC obtained Rule 39 interim measures from the ECtHR.[31] Both cases were struck out in 2017 because the applicants had left Hungary.[32]

However, in December 2016, the practice changed again and no more Dublin transfer decisions to Greece were issued. The same is valid for 2017, 2018, 2019, 2021 and 2022.[33] In 2020, two decisions were issued with regard to Greece, but no transfer took place.

Bulgaria

Hungary never officially suspended transfers to Bulgaria,[34] despite UNHCR communication on the matter,[35] 3 United Nations Human Rights Committee (UNHRC) interim measures,[36] and a few national court decisions ruling against such transfers.[37]

However, the HHC observed that in 2018 Bulgaria stopped accepting responsibility for requests sent by the Dublin Unit. There have been no Dublin decisions and transfers to Bulgaria until 2022.[38] In 2022 there were 3 outgoing requests to Bulgaria, based on Article 18(1)a) and 3 actual transfers.[39]

Where the transfer is suspended, Hungary assumes responsibility for examining the asylum application and the asylum seeker has the same rights as any other asylum seeker.

The situation of Dublin returnees

The amendments to the Asylum Act adopted from 2015 until 2017 have imposed some serious obstacles to asylum seekers who are transferred back to Hungary under the Dublin Regulation with regard to re-accessing the asylum procedure.

The following situations are applicable to Dublin returnees:

• Persons who had not previously applied for asylum in Hungary and persons whose applications are still pending would usually be treated as first-time asylum applicants. However, according to the current asylum legislation in force (Transitional Act), only 3 groups of persons (see Embassy procedure) can apply for asylum within the Hungarian territory. If a person, who did not yet apply for asylum in Hungary, was to be returned under the Dublin Regulation, they would have to apply for asylum upon their return, but the current legislation in force does not allow for this possibility. ‘Dublin returnees’ do not figure among the exceptions, who are allowed to apply for asylum within the Hungarian territory. Despite such legislation, the HHC is aware of one case where a Syrian woman returned under Dublin from Germany was allowed to submit an asylum application. The NDGAP clarified that, according to the authority’s interpretation and practice, applicants returned through the Dublin procedure have to declare upon arrival whether they intend to uphold their asylum application lodged in the transferring country, and if they do, the asylum procedure will commence.[40]
• ersons who withdraw their application in writing or tacitly cannot request continuation of their asylum procedure upon return to Hungary; therefore, they will have to submit a subsequent application and present new facts or circumstances. Subsequent Applications raise several issues, not least regarding exclusion from reception conditions. Moreover, the current asylum legislation in force (Transitional Act), does not even allow ‘Dublin returnees’ to apply for asylum within the Hungarian territory (see the previous point). This is also not in line with the second paragraph of Article 18(2) of the Dublin III Regulation, which states that when the Member State responsible had discontinued the examination of an application following its withdrawal by the applicant before a decision on the substance had been taken at first instance, that Member State shall ensure that the applicant is entitled to request that the examination of their application be completed or to lodge a new application for international protection, which shall not be treated as a subsequent application as provided for in the recast Asylum Procedures Directive.
• The asylum procedure would also not continue, if the returned foreigner had previously received a negative decision and did not seek judicial review. This is problematic when the NDGAP issued a decision in someone’s absence. The asylum seeker who is later returned under the Dublin procedure to Hungary will have to submit a subsequent application and present new facts and evidence in support of the application (see section on Subsequent Applications). However, the current asylum legislation in force (Transitional Act), does not even allow ‘Dublin returnees’ to apply for asylum within the Hungarian territory (see the first point). According to Article 18(2) of the Dublin III Regulation, the responsible Member State that takes back the applicant whose application has been rejected only at the first instance shall ensure that the applicant has or has had the opportunity to seek an effective remedy against the rejection. According to the NDGAP, the applicant only has a right to request a judicial review in case the decision has not yet become legally binding. Since a decision rejecting the application becomes binding once the deadline for seeking judicial review has passed without such a request being submitted, the HHC believes that the Hungarian practice is in breach of the Dublin III Regulation because in such cases Dublin returnee applicants are not afforded an opportunity to seek judicial review after their return to Hungary.

[1] Once in relation to Germany, at another time regarding Bulgaria and in 225 cases the former IAO examined the application in relation to Greece.

[2] Information provided by former IAO, 12 February 2018; 12 February 2019; and by NDGAP on 3 February 2020, 2 March 2021, 7 February 2022 and 13 February 2023.

[3] Information provided by NDGAP on 3 February 2020 and 2 March 2021.

[4] Information provided by NDGAP on 2 March 2021 and on 7 February 2022.

[5] Information provided by NDGAP on 13 February 2023.

[6] Information provided by NDGAP on 7 February 2022.

[7] Information provided by NDGAP on 13 February 2023.

[8] Information provided by NDGAP on 13 February 2023.

[9] Information provided by NDGAP on 13 February 2023.

[10] Section 51(7)(i) Asylum Act.

[11] Section 66(2)(f) Asylum Act.

[12] Section 49(2) Asylum Act.

[13] Section 49(3) Asylum Act.

[14] Information provided by NDGAP on 7 February 2022.

[15] Information provided by NDGAP on 13 February 2023.

[16] Section 83(3) Asylum Decree.

[17] Section 49(4) Asylum Act.

[18] Information provided by NDGAP on 7 February 2022 and on 13 February 2023.

[19] Information provided by NDGAP on 7 February 2022.

[20] Section 49(6) Asylum Act.

[21] UNHCR has also criticised the effectiveness of Dublin appeals, citing CJEU, Case C-69/10, Diouf, Judgment of 28 July 2011, paras 66-68. See UNHCR, UNHCR Comments and recommendations on the draft modification of certain migration, asylum-related and other legal acts for the purpose of legal harmonisation, January 2015, available at: https://bit.ly/2I7fL4P, 20.

[22] Section 49(7) Asylum Act.

[23] Section 49(8) Asylum Act.

[24] Section 49(8) Asylum Act.

[25] Article 27(3) Dublin III Regulation.

[26] Section 49(9) Asylum Act.

[27] Information provided by the Dublin Unit based on the HHC’s request, March 2014. See also EASO, Description of the Hungarian asylum system, May 2015, 6, available at: https://bit.ly/3xO3DiN.

[28] It can be noted that, prior to 2018, court decisions were often delivered by the court clerk rather than by the judge. After Section 94 of Act CXLIII of 2017 amending certain acts relating to migration entered into force, however, clerks have no longer been allowed to issue judgements.

[29] ECtHR, M.S.S. v. Belgium and Greece, Application No 30696/09, Judgment of 21 January 2011.

[30] For further information about the situation prior to that, see previous updates of this report, available at: http://bit.ly/41vZs9h.

[31] HHC, Hungary: Update on Dublin transfers, 14 December 2016, available at: https://bit.ly/379R33Y.

[32] ECtHR, M.S. v. Hungary, Application No 64194/16 and H.J. v. Hungary, Application No 70984/16.

[33] Information was provided by the NDGAP on 7 February 2022 and on 13 February 2023.

[34] For further details on this topic, please see previous updates of this report, such as AIDA, Country Report Hungary – 2021 Update, April 2022, available at: https://bit.ly/3s0R4OH, 47-48.

[35] See UNHCR, UNHCR Observations on the Current Situation of Asylum in Bulgaria, 2 January 2014, available at: http://bit.ly/1dsMr2Y.

[36] See e.g. Human Rights Committee, B. v. Hungary, Communication No 2901/2016, 9 December 2016.

[37] Administrative and Labour Court of Szeged, Decision No 11. Kpk.27.469/2017/12, 3 July 2017, and Decision No 4. 10.K.27.051/2018/5, 7 February 2018.

[38] As to 2021, information was provided by the NDGAP on 7 February 2022.

[39] Information was provided by the NDGAP on 13 February 2023.

[40] EASO, EASO Asylum Report 2021, https://bit.ly/3oBAuUg, 97.