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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ibrahimi & Anor v The Secretary of State for the Home Department [2016] EWHC 2049 (Admin) (05 August 2016)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/2049.html
Cite as: [2016] EWHC 2049 (Admin)
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Neutral Citation Number: [2016] EWHC 2049 (Admin)
Case No: CO/5201/2015 & CO/5067/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 05/08/2016
Before :
MR JUSTICE GREEN
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Between :
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Mr Husain Ibrahimi Mr Mohamed Abasi |
Claimants |
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The Secretary of State for the Home Department |
Defendant |
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Declan O'Callaghan and Carine Patry (instructed by Duncan Lewis & Co.) for the Claimants
Julie Anderson and Belinda McRae (instructed by Government Legal Department) for the Defendant
Hearing dates: 21 st and 22 nd March and 27 th June 2016
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Judgment Approved
Mr Justice Green :
A. Introduction
(1) The issue
"1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country".
(2) Conclusions
B. The position of the Claimants
(1) Mr Husain Ibrahimi
(2) Mr Mohamed Abasi
C. The Decisions in issue
"It is not considered that the reports suffice to rebut the significant evidential presumption described above" (ibid paragraph [27]).
"33. Finally, it is noted that neither the UNHCR, nor any other internationally recognised NGO, have stated that there is evidence to suggest systematic failures or serious operational difficulties capable of rebutting the presumption of compliance.
34. In this context, it is considered that the evidence provided by your client does not demonstrate that systemic deficiencies or serious operational difficulties exist in either the asylum procedures or reception conditions in Hungary, such that the presumption of compliance is rebutted in this instance.
35. However, it is accepted that, as outlined above, "systemic deficiencies" is only one route by which an applicant can demonstrate the existence of a "real risk" of breach of Article 3 on return. Your client's case has therefore been carefully considered, in order to establish whether or not evidence exists of factors which would give rise to a real risk of breach of Article 3 in his particular case".
"42. ... It is considered that Hungary has a functioning policing and judicial system, and follows the rule of law. Accordingly, upon the reporting by a victim of a crime, the Hungarian police will conduct a thorough investigation and, where sufficient evidence is gathered, prosecute those who carry out unlawful acts. An (sic) Hungary Court will consider the evidence and, when necessary, punish those who are found guilty of such acts. The Hungarian authorities also have a responsibility to protect complainants and witnesses as deemed necessary".
"...neither the UNHCR, nor any other internationally recognised NGO have stated that there is evidence to suggest systematic failures or serious operational difficulties capable of rebutting the presumption of compliance".
D. The Date for assessment of the relevant evidence
31. In view of this, an issue of potential importance is the date upon which this Court must assess the relevant evidence. In her initial written submissions the Secretary of State strongly argued that the relevant date of assessment was that of the decisions in issue (citing R (Fardous) v SSHD [2015] EWCA Civ 931 at paragraph [42] - a case concerning the well-known " Hardial Singh" principles as applied to detention pending removal). If this were correct, it would preclude this Court from taking into account in an asylum case subsequent evidence suggesting that there was a material change in circumstances (assuming, ex hypothesi, that the Secretary of State was correct in her assessment of the evidence as of the date of the impugned decisions). At an early case management hearing I raised the correctness of the position adopted by the Secretary of State as to the date on which the evidence was to be assessed. In the light of this the Secretary of State has modified her position. She accepts that the task of the Court is to assess the evidence as of the date of judgment. The rationale for this change of position was that the Secretary of State accepted that it would have been open to the Claimants to have adduced to the Secretary of State evidence of a material change in circumstances requiring the Secretary of State, thereafter, to review her earlier decisions in the light of new evidence. On this basis, Miss Anderson, for the Secretary of State, accepted that the proper and sensible course of action was for this Court to review the up to date evidence.
33. In the recent judgment of the Supreme Court in TN & MA (Afghanistan) v SSHD [2015] UKSC 40 (" TN") the Court stated that the judicial task in relation to an asylum case was not, prima facie, comparable to that, for instance, where a Court adjudicated upon the lawfulness of a more routine administrative law decision, such as that arising in the planning law context. At paragraph [72] Lord Toulson, with whom the remainder of the Court agreed, stated:
"...the question whether the appellant qualifies for asylum status is not a question of discretion. It is one which must be decided on evidence before the Tribunal or Court...".
34. The Supreme Court endorsed the observations of the Court of Appeal in Ravichandran v SSHD [1995] EWCA Civ 16; [1996] Imm AR 97 where the Court held that asylum appeals should be determined by reference to the position as at the date of the appellate decision rather than by reference to the factual situation at the time of the original decision against which the appeal was sought. Lord Toulson in TN stated (ibid paragraph [38]):
"This makes good sense and the general policy has not been doubted".
36. In cases involving the ECHR and EU law where proportionality and/or fundamental rights are in issue both the Strasbourg and Luxembourg Courts and the Supreme Court have held that the task of the domestic court is to conduct an exacting investigation of the facts taking into account up to date evidence. So, for example at the level of EU law, in Case C-333/14 Scotch Whisky Association v Lord Advocate, Advocate General for Scotland (23 rd December 2015) the Court of Justice stated (ibid paragraph [62]) that EU law had to be complied with at all relevant times, including at adoption, or implementation if later than adoption. The Court had to assess the compatibility of the measure upon the date upon which it rendered its judgment (ibid paragraph [63]). In that evaluation the Court was required to take into account " any" relevant information, evidence or other material of which it had knowledge under the conditions laid down by national law (ibid paragraph [64]). Confirmation of the above approach is also found in the decision of the Court in Strasbourg in MSS v Greece & Belgium (2011) 52 EHRR 2 (" MSS") where the Court ruled that in an assessment of whether in an asylum case a receiving State was, or would be, compliant with Article 3 ECHR a national Court was required to have regard to all the circumstances including the duration, nature and context of the treatment, its physical or mental effects, and, in appropriate cases the sex, age and state of health of the victim and that assessment involved the Court considering the material placed before it in the light of the foreseeable consequences of removal in the light of the general situation in the receiving State. That review had to be " effective" in practice (as well as in law) (ibid paragraph [288]). A further illustration is found in Chahal v United Kingdom Application 70/1995/576/662 (11 th November 1996) which is discussed below at paragraphs [41] - [44]. A similar conclusion was arrived at by the Supreme Court in R (on the application of Lumsdon) v Legal Services Board [2015] UKSC 41 where the Court held (cf for example paragraph [108]) that in determining whether a decision was proportionate the Court had to decide the matter for itself " ...on the basis of the material before it...".
E. The Legal framework
(1) 1951 Convention relating to the Status of Refugees: Article 33(1)
"In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions".
In the Resolution on Asylum to Persons in Danger of Persecution, adopted by the Committee of Ministers of the Council of Europe on 29 th June 1967, it is recommended that Member Governments should be guided by the principle that they should ensure that no one " ...shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result compelling him to return to, or remain in, a territory where he would be in danger of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion". Equally, Article III(3) of the Principles concerning the Treatment of Refugees adopted by the Asian - African Legal Consultative Committee at its Eighth Session in Bangkok in 1966 stated that no one seeking asylum should, save for overriding reasons of national security or for safeguarding the population, be subject to measures such as rejection at the frontier, return or expulsion which would result in compelling the asylum seeker to return to, or remain in, a territory where there was " ...a well-founded fear of persecution endangering his life, physical integrity or liberty in that territory".
"...it is well established in the case-law of the Court that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country...".
42. In paragraph [80] the Court stated that:
"...whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion...".
(2) The general framework in domestic law
45. The content of the domestic legal framework which governs the administrative procedure for asylum and judicial supervision thereof is not materially in dispute and does not raise any specific points which require resolution in this case. I can deal with this very briefly. The framework has been described in a series of recent decisions of the High Court and the practice has arisen to adopt the accounts of Elisabeth Laing J in R (Tabrizagh & Others) v SSHD [2014] EWHC 1914 (Admin) at paragraphs [100] - [164] and Lewis J in R (MS) v SSHD [2015] EWHC 1095 (Admin) at paragraphs [55] - [97]. This was the approach taken by Kerr J in R (Hamad) v SSHD [2015] EWHC 2511 at paragraph [46] and I endorse it.
(3) The Common European Asylum System ("CEAS")/Article 3(2) Regulation 604/2013 ("Dublin III")
47. Article 3(2) identifies the test to be applied. It is in the following terms:
"2. Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.
Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.
Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III will do the first Member State with which the application was lodged the determining Member State shall become the Member State responsible".
50. The evidence to be considered under Article 3(2) is directed at "risk". There are three points to make. First, the risk is not as to the existence of mere flaws or weaknesses in the asylum and detention systems of the third state, but, rather, whether those flaws or weaknesses will lead to a violation of Article 3 ECHR (or Article 4 of the Fundamental Charter) and this entails examining the entire refoulement chain reaction which starts in Hungary and ends in Iran. Second, there is an emphasis in Article 3(2) on " systemic" flaws. This suggests flaws in the rules and regulations and procedures operating in the third states. Some care is required here because the case law of the Strasbourg Court makes it clear that Article 3 ECHR can be engaged not only by flaws in the system but also operational errors. In particular this has been recognised as important because Article 3 ECHR is engaged even in relation to a state that, in a general sense, operates adequate systems but which in an individual instance has acted, through its official agents, in a degrading or inhuman manner towards a person. The focus on systemic flaws makes sense in a prospective analysis of what might happen if a person is removed to a third state because the analysis is ex ante and it is not at that stage easy for a Court to conclude that whilst the general system in that third state is adequate the migrant being removed will suffer at the hands of some unknown individual official. Though there might, of course, be credible evidence (for instance from the UNHCR) of widespread operational failings which a Court can take account of in the assessment of risk, and indeed it might be that evidence of widespread operational failings can be quite properly categorised as "systemic". The key point is that "systemic" is not a defined term of art and must be construed in context. The cases where operational failings have been identified in case law are usually ex post cases where mistreatment has occurred and where the victim seeks redress for that past conduct (this is characteristic of cases under Articles 2 and 3 ECHR involving alleged failures on the part of the police to protect victims of crime: see the analysis of the case law in DSD & NBV v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) at paragraphs [243] - [313] affirmed on appeal [2015] EWCA Civ 646). The Supreme Court has recognised that Article 3 can be violated by evidence that a person " would" (i.e. prospectively) suffer treatment of a non-systemic nature, in R (EM (Eritrea)) v SSHD [2014] UKSC 12 at paragraph [42]. Further, it is right to record that the Secretary of State accepts in this case that the "risk" is in relation to both the system and (operationally) the person. Third, although the standard of proof is based upon risk this this does not mean that the evaluative exercise conducted by the court is other than rigorous or that the risk will inevitably be found to exist. There must be " substantial" grounds for believing that the risk will eventuate. In my view " substantial" means " real", i.e. not fanciful or de minimis. It requires an overall and thorough review of the facts and evidence. It will, in cases such as this, entail considering evidence as to the structure of third country asylum systems and commentaries by relevant international bodies on those systems. It also requires the Court to examine how those systems are being operated in practice. The analysis inevitably takes into account that the appraisal is of a distant system, that the exercise is counterfactual and prospective (i.e. how a third state might act in the future if the individual concerned is removed there), and that the exercise is not one capable of precise quantification or computation.
(4) The prohibition on torture or inhuman or degrading treatment: Article 4 of the Fundamental Charter and Article 3 ECHR
(i) Article 3 ECHR & Article 4 of the Fundamental Charter
"No one shall be subjected to torture or to inhuman or degrading or punishment".
(ii) Summary of principles
53. The legal principles governing whether the return of an asylum seeker to another EU Member State would breach Article 3 has been considered in a number of cases. A convenient place to start the analysis is paragraphs [66] to [72] of the judgment in Hussein v Netherlands and Italy Application No 27725/10 [2013] ECHR 1341, read in conjunction with paragraph 249 of the judgment in MSS v Greece and Belgium (2011) 52 EHRR 2 (" MSS") as those principles were later summarised in MS et ors v SSHD [2015] EWHC 1095 (Admin) at paragraph [72] where Lewis J stated:
"(1) removal by one State to another may give rise to issues under Article 3 ECHR, and involve the responsibility of that State, where substantial grounds have been shown for believing that the individual concerned, if returned, faces a real risk of being subjected to treatment contrary to Article 3;
(2) the assessment of whether there are substantial grounds for believing that there is such a risk must be a rigorous one and involves the assessment of the conditions in the receiving country against the standards of the ECHR;
(3) the treatment in the receiving state must attain a minimum level of severity to fall within the scope of Article 3 ECHR, and is relative, having regard to all the circumstances including the duration, nature and context of the treatment, its physical or mental effects and, in appropriate cases, the sex, age and state of health of the victim;
(4) the assessment involves a court considering the material placed before it and the assessment should focus on the foreseeable consequences of return in the light of the general situation in the receiving state as well as the claimant's personal circumstances;
(5) the mere fact that return means that a person's economic, material or social condition would be significantly reduced would not, absent exceptional humanitarian circumstances, amount to a breach of Article 3;
(6) while Article 3 does not oblige States to provide everyone within their jurisdiction with a home and does not entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living, the position in relation to EU Member States does not, however, fall to be analysed in that general way as an obligation to provide asylum-seekers with accommodation pursuant to the Reception Directive will have been implemented into the domestic law of the Member State and that Directive does lay down minimum standards (and, one could add, the obligations imposed by the Qualification Directive in relation to BIPs which will also have been implemented into the domestic law of Member States)."
(iii) MSS v Greece and Belgium: destitution / the risk of refoulement
54. The case most oft cited as the leading authority is MSS (ibid). This provides guidance on (a) when the conditions of reception on return violate international standards and (b) when flaws in the administrative and judicial procedures governing asylum claims in the transferee State violate international standards.
55. MSS was an Afghan national who was fingerprinted in Greece upon entering but he did not claim asylum there. Having been detained for a week he was released and then spent months living in " a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live". His plight was exacerbated by a fear of being attacked and robbed and the improbability of his situation improving in the foreseeable future. At the time there were less than 1,000 places in reception centres in Greece but tens of thousands of migrants needing accommodation. The applicant therefore had no realistic chance of being accommodated or of obtaining employment but due to inaction by the Greek state MSS was destitute for several months on the streets when he was in a particularly vulnerable and desolate position. He was humiliated, fearful and desperate. He encountered official indifference and his overall treatment was inhuman and degrading. The Court found that Greece had in these circumstances violated Article 3 ECHR (see Judgment paragraphs [254] to [264]).
"... in the absence of proof to the contrary it must assume that Greece complied with the obligations imposed on it by the Community Directives laying down minimum standards for asylum procedures and the reception of asylum seekers, which had been transposed into Greek law, and that it would comply with art. 3 of the Convention".
57. However, there were a number of NGO reports dealing with the position in Greece and in particular chronicling defects in its asylum procedure which the Court considered to be relevant. The Court also attached importance to a letter sent by the UNCHR unequivocally requesting Belgium to suspend transfers to Greece. In those circumstances, and notwithstanding the presumption, Belgium was responsible for a violation of Article 3 by returning the applicant to Greece knowing that there was a risk of him being returned to Afghanistan without his asylum application being properly considered. It is instructive to consider how the Court analysed the risk posed to MSS of refoulement to Afghanistan. The Court adopted the approach of: (i) identifying whether the applicant had a prima facie case that he would be subjected to treatment amounting to a breach of Article 3 if he were returned to Afghanistan; (ii) recognising that the responsibility for assessing the actual evidence lay with the national authorities in the transferor State (Belgium); (iii) assessing the evidence as to whether there were structural or other legal defects in the Greek asylum system which meant that MSS would not get a " serious" appraisal of his case. The Court confirmed that it was not an answer for a State to say that it had no extant policy of removing persons to Afghanistan. The issue was objective and not subjective and was whether there were sufficient safeguards in the system to " protect...against arbitrary removal directly or indirectly back to his country of origin".
"294. In order to determine whether Article 13 applies to the present case, the Court must ascertain whether the applicant can arguably assert that his removal to Afghanistan would infringe Article 2 or Article 3 of the Convention.
295. It notes that, when lodging his application the applicant produced, in support of his fears concerning Afghanistan, copies of certificates showing that he had worked as an interpreter (see paragraph 31 above). It also has access to general information about the current situation in Afghanistan and to the Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan published by the UNHCR and regularly updated (see paragraphs 197-202 above).
296. For the Court, this information is prima facie evidence that the situation in Afghanistan has posed and continues to pose a widespread problem of insecurity and that the applicant belongs to a category of persons particularly exposed to reprisals at the hands of the anti-government forces because of the work he did as an interpreter for the international air forces. It further notes that the gravity of the situation in Afghanistan and the risks that exist there are not disputed by the parties. On the contrary, the Greek Government have stated that their current policy is not to send asylum seekers back to that country by force precisely because of the high-risk situation there.
298. This does not mean that in the present case the Court must rule on whether there would be a violation of those provisions if the applicant were returned. It is in the first place for the Greek authorities, who have responsibility for asylum matters, themselves to examine the applicant's request and the documents produced by him and assess the risks to which he would be exposed in Afghanistan. The Court's primary concern is whether effective guarantees exist in the present case to protect the applicant against arbitrary removal directly or indirectly back to his country of origin.
"344. The Court has already stated its opinion that the applicant could arguably claim that his removal to Afghanistan would violate Article 2 or Article 3 of the Convention (see paragraphs 296-297 above).
345. The Court must therefore now consider whether the Belgian authorities should have regarded as rebutted the presumption that the Greek authorities would respect their international obligations in asylum matters, in spite of the K.R.S. case-law, which the Government claimed the administrative and judicial authorities had wanted to follow in the instant case.
346. The Court disagrees with the Belgian Government's argument that, because he failed to voice them at his interview, the Aliens Office had not been aware of the applicant's fears in the event of his transfer back to Greece at the time when it issued the order for him to leave the country.
347. The Court observes first of all that numerous reports and materials have been added to the information available to it when it adopted its K.R.S. decision in 2008. These reports and materials, based on field surveys, all agree as to the practical difficulties involved in the application of the Dublin system in Greece, the deficiencies of the asylum procedure and the practice of direct or indirect refoulement on an individual or a collective basis.
348. The authors of these documents are the UNHCR and the European Commissioner for Human Rights, international non-governmental organisations like Amnesty International, Human Rights Watch, Pro-Asyl and the European Council on Refugees and Exiles, and non-governmental organisations present in Greece such as Greek Helsinki Monitor and the Greek National Commission for Human Rights (see paragraph 160 above). The Court observes that such documents have been published at regular intervals since 2006 and with greater frequency in 2008 and 2009, and that most of them had already been published when the expulsion order against the applicant was issued.
349. The Court also attaches critical importance to the letter sent by the UNHCR in April 2009 to the Belgian Minister in charge of immigration. The letter, which states that a copy was also being sent to the Aliens Office, contained an unequivocal plea for the suspension of transfers to Greece
(see paragraphs 194 and 195 above).
350. Added to this is the fact that since December 2008 the European asylum system itself has entered a reform phase and that, in the light of the lessons learnt from the application of the texts adopted during the first phase, the European Commission has made proposals aimed at substantially strengthening the protection of the fundamental rights of asylum seekers and implementing a temporary suspension of transfers under the Dublin Regulation to avoid asylum seekers being sent back to Member States unable to offer them a sufficient level of protection of their fundamental rights (see paragraphs 77-79 above).
351. Furthermore, the Court notes that the procedure followed by the Aliens Office in application of the Dublin Regulation left no possibility for the applicant to state the reasons militating against his transfer to Greece. The form the Aliens Office filled in contains no section for such comments (see paragraph 130 above).
352. In these conditions the Court considers that the general situation was known to the Belgian authorities and that the applicant should not be expected to bear the entire burden of proof. On the contrary, it considers it established that in spite of the few examples of application of the sovereignty clause produced by the Government, which, incidentally, do not concern Greece, the Aliens Office systematically applied the Dublin Regulation to transfer people to Greece without so much as considering the possibility of making an exception.
353. The Belgian Government argued that in any event they had sought sufficient assurances from the Greek authorities that the applicant faced no risk of treatment contrary to the Convention in Greece. In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 147, ECHR 2008 ...).
354. The Court is also of the opinion that the diplomatic assurances given by Greece to the Belgian authorities did not amount to a sufficient guarantee. It notes first of all that the agreement to take responsibility in application of the Dublin Regulation was sent by the Greek authorities after the order to leave the country had been issued, and that the expulsion order had therefore been issued solely on the basis of a tacit agreement by the Greek authorities. Secondly, it notes that the agreement document is worded in stereotyped terms (see paragraph 24 above) and contains no guarantee concerning the applicant in person. No more did the information document the Belgian Government mentioned, provided by the Greek authorities, contain any individual guarantee; it merely referred to the applicable legislation, with no relevant information about the situation in practice.
"The UNHCR is aware that the Court, in its decision in K.R.S. v. the United Kingdom ... recently decided that the transfer of an asylum seeker to Greece did not present a risk of refoulement for the purposes of Article 3 of the Convention. However, the Court did not give judgment on compliance by Greece with its obligations under international law on refugees. In particular, the Court said nothing about whether the conditions of reception of asylum seekers were in conformity with regional and international standards of human rights protection, or whether asylum seekers had access to fair consideration of their asylum applications, or even whether refugees were effectively able to exercise their rights under the Geneva Convention. The UNHCR believes that this is still not the case."
The letter then concluded as follows:
"For the above reasons the UNHCR maintains its assessment of the Greek asylum system and the recommendations formulated in its position of April 2008, namely that Governments should refrain from transferring asylum seekers to Greece and take responsibility for examining the corresponding asylum applications themselves, in keeping with Article 3 § 2 of the Dublin Regulation."
61. Other points of relevance arising from MSS include the following:
(i) First, that the fact that a state experiences pressure at its border is not an excuse or justification for violating Article 3: Judgment paragraph [223] and see also Regulation 604/2013 (Dublin III) Recital 29 which expresses the point that where there is disorder in a State then the risk of a violation is the greater. In other words evidence that a state is under a pressure is a pointer towards the conclusion that the risk is higher of a violation of the rights of an applicant.
(ii) Second, the risk of removal to a state where Article 3 rights might be violated may be direct or indirect, i.e. by direct removal to the state in question or by sequential removal along a chain: Judgment paragraph [321].
(iii) Third, a removing country must make sure through a thorough analysis of the evidence that the intermediary state's asylum procedure affords " Sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks" he faces under Article 3: Judgment paragraphs [342], [359], [387] and [388].
(iv) Fourth, the existence of domestic laws and the fact of accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment if, on the facts, reliable sources have reported practices resorted to or tolerated by the authorities which are contrary to the principles of the Convention: Judgment paragraph [353].
(v) Fifth, where the " general situation" may be expected to be known to a transferring state the individual " should not be expected to bear the entire burden of proof" (paragraph [352]).
(vi) Sixth, in relation to assurances the Belgian Government argued that they had sought and obtained assurances from the Greek Government that Greece would not expose any individual to a violation of Article 3. This was rejected by the Court on the facts. The Court pointed out (paragraph [354]) that the so-called assurances were pro forma recitations by Greece that they would apply their laws and they did not address the situation of particular individuals. It is clear that in a proper case an assurance might be effective and would provide strong evidence that the receiving state would respect the rights of the transferred individual. But the value of assurances is fact and context specific and pro forma exhortations by the receiving state that they will apply their own laws will not necessarily suffice, especially in the case of a State with a record of non-compliance.
(iv) UNHCR Reports (and analogous NGO reports) are not dispositive
62. I have explained ( supra) that UNHCR reports may be strongly influential but it is important also to acknowledge they are not however dispositive. In KRS v Greece (2009) 48 EHRR SE8 (" KRS") the applicant arrived in the United Kingdom on 11 November 2006 and claimed asylum. He had travelled through Greece before arriving in the United Kingdom and in consequence, a request was made to Greece for it to accept responsibility for the applicant's asylum claim. Greece accepted responsibility on 12 December 2006. On 14 December 2006 the Secretary of State declined to give substantive consideration to the applicant's asylum claim because under domestic law the applicant could be returned to Greece. The applicant absconded but was subsequently detained in an immigration enforcement operation. Directions were set for the applicant's removal to Greece on 23 May 2008. On 15 May 2008 the applicant's representatives wrote to the Secretary of State for the Home Department requesting that removal be deferred pending the outcome of the R (Nasseri) v Secretary of State for the Home Department [2008] EWCA Civ 464 (" Nasseri"). The Court of Appeal had given judgment in that case on 14 May 2008 and the unsuccessful party, Nasseri, was to petition the House of Lords for leave to appeal. On 15 May 2008 the Secretary of State responded that the applicant had failed to identify how Nasseri was relevant. The Secretary of State said that the concerns that had been expressed by the United Nations High Commissioner for Refugees and others about Greek procedures related to "interrupted" cases, i.e. cases where the applicant left Greece before their asylum claim was decided and where there was a risk that an asylum applicant might not be readmitted into the asylum process in Greece. The present applicant's case did not fall into this category. He was being returned to Greece having originally entered the territory of the EU through that country. There had been no criticism regarding access to the Greek asylum system in those cases. T he applicant's solicitors responded that the judgment in Nasseri did not justify the drawing of such a distinction. No response was received from the Secretary of State. On 21 May 2008, the applicant brought judicial review proceedings challenging the decision to remove him to Greece. The removal directions set for 23 May 2008 were cancelled. The Secretary of State argued that upon an examination of all of the evidence in relation to Greek practices and procedures, there was no evidence of a risk of unlawful refoulement to Greece. Furthermore there were no proceedings pending before the House of Lords in Nasseri. On 16 June 2008, the High Court refused the applicant permission to apply for judicial review. Removal directions to Greece were then reset for 14 July 2008. On 10 July 2008 the applicant lodged an application for interim relief with the Strasbourg Court.
"This indication has been made in light of the UNHCR report dated 15 April 2008 (a copy of which is attached). The parties' attention is drawn to paragraph 26 of the report that states that 'In view of EU Member States' obligation to ensure access to fair and effective asylum procedures, including in cases subject to the Dublin Regulation, UNHCR advises Governments to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice. UNHCR recommends that Governments make use of Article 3(2) of the Dublin Regulation, allowing States to examine an asylum application lodged even if such examination is not its responsibility under the criteria as laid down in this Regulation'.
The Acting President has instructed me to inform you that the Rule 39 measure will remain in force pending confirmation from your authorities that the applicant, if removed to Greece and if he so wishes, will have ample opportunity in Greece to apply to the Court for a Rule 39 measure in the event of his onward expulsion from Greece to Iran. Your authorities may wish to avail themselves of any bilateral arrangements under the Dublin Convention with a view to seeking such confirmation."
"Having regard to these general principles, the Court also considers it necessary to recall its ruling in T.I. v. the United Kingdom (dec.), no 43844/98, Reports 2000-III that removal to an intermediary country which is also a Contracting State does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of the decision to expel, exposed to treatment contrary to Article 3 of the Convention. In T.I. the Court also found that the United Kingdom could not rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. Where States established international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there could be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution ( Waite and Kennedy v. Germany [GC], no. 26083/94, § 67, ECHR 1999 I).
The Court finds that this ruling must apply with equal force to the Dublin Regulation, created within the framework of the "third pillar" of the European Union. Returning an asylum seeker to another European Union Member State, Norway or Iceland according to the criteria set out in the Dublin Regulation, as is proposed in the present case, is the implementation of a legal obligation on the State in question which flows from its participation in the asylum regime created by that Regulation. The Court observes, though, that the asylum regime so created protects fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance."
"The Court notes the concerns expressed by the UNCHR whose independence, reliability and objectivity are, in its view, beyond doubt. It also notes the right of access which the UNHCR has to asylum seekers in European Union Member States under the European Union Directives set out above. Finally, the Court notes that the weight to be attached to such independent assessments of the plight of asylum seekers must inevitably depend on the extent to which those assessments are couched in terms similar to the Convention (see, mutatis mutandis, NA., cited above, § 121). Accordingly, the Court attaches appropriate weight to the fact that, in recommending that parties to the Dublin Regulation refrain from returning asylum seekers to Greece, the UNHCR believed that the prevailing situation in Greece called into question whether "Dublin returnees" would have access to an effective remedy as foreseen by Article 13 of the Convention. The Court also observes that the UNHCR's assessment was shared by both Amnesty International and the Norwegian Organisation for Asylum Seekers and other non-governmental organisations in their reports."
"The Court notes that the present applicant is Iranian. On the evidence before it, Greece does not currently remove people to Iran (or Afghanistan, Iraq, Somalia or Sudan - see Nasseri above) so it cannot be said that there is a risk that the applicant would be removed there upon arrival in Greece, a factor which Lord Justice Laws regarded as critical in reaching his decision (see above). In reaching this conclusion the Court would also note that the Dublin Regulation, under which such a removal would be effected, is one of a number of measures agreed in the field of asylum policy at the European level and must be considered alongside Member States' additional obligations under Council Directive 2005/85/EC and Council Directive 2003/9/EC to adhere to minimum standards in asylum procedures and to provide minimum standards for the reception of asylum seekers. The presumption must be that Greece will abide by its obligations under those Directives. In this connection, note must also be taken of the new legislative framework for asylum applicants introduced in Greece and referred to in the letters provided to the Court by the Agent of the Government of Greece through the United Kingdom Agent. In addition, if Greece were to recommence removals to Iran, the Dublin Regulation itself would allow the United Kingdom Government, if they considered it appropriate, to exercise their right to examine asylum applications under Article 3.2 of the Regulation."
68. In the event therefore the Court held that the United Kingdom would not breach Article 3 if the applicant were removed to Greece. One aspect of the reasoning was that Greece could be expected to adhere to its normal EU and international law obligations. Some caution is required when examining this authority, since it predates MSS where the approach of the Court hardened towards Greece given subsequent reports as to the deficiencies in the Greek asylum system and a persistent inability to adhere to accepted legal norms. But it remains relevant in that: (i) it makes clear that it is not a complete answer for the Secretary of State to say that other Member States of the EU (Hungary and Greece on the present facts) will adhere to their EU and/or international law obligation which are incorporated into the Dublin III regime; (ii) it provides guidance on the circumstances when the probative value of UNHCR reports will be limited; and (iii), it provides practical illustrative guidance on the problem of securing removals to Iran.
69. UNHCR reports must thus always be read in their proper factual and evidential context. So for instance if a report identifies shortcomings but recognises the existence of improvements then this might even be a reason for treating the report as evidence in favour of removal. In Hussein v Netherlands and Italy Application No 27725/2012; [2013] ECHR 1341 the Strasbourg Court stated at paragraph [78]:
"78. Taking into account the reports drawn up by both governmental and non-governmental institutions and organisations on the reception schemes for asylum seekers in Italy, the Court considers that, while the general situation and living conditions in Italy of asylum seekers, accepted refugees and aliens who have been granted a residence permit for international protection or humanitarian purposes may disclose some shortcomings it has not been shown to disclose a systemic failure to provide support or facilities catering for asylum seekers as members of a particularly vulnerable group of people, as was the case in M.S.S. v. Belgium and Greece ..... The reports drawn up by the UNHCR and the Commissioner for Human Rights refer to recent improvements intended to remedy some of the failings and all reports are unanimous in depicting a detailed structure of facilities and care to provide for the needs of asylum seekers ...... The Court would also note the manner in which the applicant was treated upon her arrival in Italy in August 2008, in particular that her request for protection was processed within a matter of months and accommodation was made available to the applicant along with access to health care and other facilities. Against this background, the Court considers that the applicant has not shown that her future prospects if returned to Italy, whether taken from a material, physical or psychological perspective, disclose a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3 .....There is no basis on which it can be assumed that the applicant will not be able to benefit from the available resources in Italy or that, if she encountered difficulties, the Italian authorities would not respond in an appropriate manner to any request for further assistance."
(v) The approach adopted by the domestic Courts
70. The approach set out in domestic jurisprudence is very similar to that set out by the Strasbourg court. The most recent articulation is that of Lord Kerr in EM (Eritrea) v SSHD [2014] UKSC 12 (" EM (Eritrea)"). In EM (Eritrea), Lord Kerr, with whom the other members of the Court agreed, summarised the position as follows. First, the test for determining whether a return of an asylum seeker to another country would involve a breach of Article 3 was whether substantial grounds had been shown for believing that the person concerned faced a real risk in the country to which he or she was to be removed of being subjected to treatment contrary to Article 3 ECHR: see judgment paragraphs [3] and [58]. Second, where the Secretary of State had certified a claim to be clearly unfounded, such a certificate could only be issued if the assertion that the return to that third country would constitute a violation of the person's rights under Article 3 ECHR was clearly unfounded: see judgment paragraph [6]. If, therefore, on one legitimate view, a tribunal could properly consider that there were substantial grounds for believing that there was a real risk of the person facing treatment contrary to Article 3, the Secretary of State could not lawfully certify that the claim was clearly unfounded and the certificate would be quashed. Third, the approach to be adopted by a Court is as follows: (a) there is a significant evidential presumption that a Member State of the EU will comply with its obligations under EU law and international law and a claim that return would involve a real risk of a breach of Article 3 was to be assessed against that presumption: judgment paragraph [64]; (b) the presumption could be rebutted where there were substantial and widespread systemic or operational failures to comply: paragraphs [41], [66] and [67]; (c) the presumption could be rebutted where it was shown on the particular facts (the " practical realities" - paragraph [68]) that there were substantial grounds for believing that there was a real risk that the individual applicant would face treatment contrary to Article 3 if returned; (d) the court must examine the evidence in each individual case and this would involve a rigorous assessment of " what happens on the ground" (paragraph [68]), the situation in the receiving country, the foreseeable consequences of sending a person to the receiving country, the individual's personal circumstances, including his or her previous experience there: judgment paragraphs [68] to [70]. Fourth, in conducting this enquiry particular regard should be paid to the facts reported by the UNCHR and the value judgments to which the UNCHR had arrived. They form a part of the overall examination and, by implication, other reports and material may also need to be considered: Judgment paragraphs [71] and [72] and [74].
71. Lewis J in MS (ibid) observed, in the light of EM (Eritrea):
"As is to be expected, different courts express themselves in different language, reflecting their differing judicial traditions. But in substance, the approach adopted by the Supreme Court involved recognising that Member States can be presumed to be complying with their obligations under EU law and international law. That can be rebutted in one of two ways. First, it may be rebutted in the case of all asylum seekers if there were sufficient evidence of substantial operational difficulties in the receiving state. Secondly, while the presumption would be the backcloth for considering individual cases, there may be situations where, on the individual facts of the case viewed against the overall situation (even if that situation did not rebut the presumption in all cases), there were still substantial grounds for believing that there would be a real risk on return. The European Court of Human Rights has taken a similar approach. In MSS v Greece, for example, it effectively considered that the circumstances were such that the assumption that an EU Member State was complying with its obligation was rebutted. In Tarakhel, the overall situation did not lead to the conclusion that all removals to Italy needed to be stopped. Nevertheless, the situation of the individual applicants' needed to be assessed against the overall situation to determine if, on the facts, there was such a breach."
(5) Article 5(1)(f) ECHR
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(f) The lawful arrest or detention...of a person against whom action is being taken with a view to deportation...".
"(c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent him from committing an offence or fleeing after having done so...".
74. In Chahal (ibid) the Court stated at paragraph [113]:
"The Court recalls, however, that any deprivation of liberty under Article 5 para 1 (f) will be justified only for as long as the deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 para 1 (f)...".
75. In Saadi v UK [2008] 47 EHRR 17 at paragraph [72] the Court emphasised that Article 5(1)(f) incorporated a test of proportionality but also reiterated that the legitimate objective which had to be determined for the purposes of the proportionality test was linked only to the period when deportation proceedings were in mind:
"72. Similarly, where a person has been detained under Article 5(1)(f), the Grand Chamber interpreting the second limb of this sub-paragraph, held that, as long as a person was being detained "with a view to deportation", that is, as long as "action [was] being taken with a view to deportation", there was no requirement that the detention be reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing ( Chahal...paragraph 112). The Grand Chamber further held in Chahal that the principle of proportionality applied to detention under Article 5(1)(f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held (paragraph 113) that "any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible..."".
"74. To avoid being branded as arbitrary, therefore, such detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that "the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country"...; and the length of detention should not exceed that reasonably required for the purpose pursued".
F. The position in Hungary
(1) The position of the EU Commission
81. It is apparent from press releases issued by the EU Commission that the Commission has opened the pre-formal litigation procedure with Hungary in relation to its new asylum rules upon the basis that the Commission considers that the laws are in breach of the CEAS. With the agreement of the parties, the Court wrote to the EU Commission in February 2016 requesting information relating to infringement procedures initiated by the EU Commission against Hungary in relation to asylum related matters. By letter of 29 th February 2016, with commendable speed, the Commission replied. It pointed out that pursuant to Article 4(3) on the Treaty of European Union ("TEU") the Community institutions were required to respect the principle of " sincere cooperation" in their relations with the judicial authorities of EU Member States and that, in consequence, this Court's request for access to documents was to be treated positively. In consequence, the Commission provided to the High Court the exchange of correspondence and submissions between itself and Hungary in which the Commission articulated its concerns as to the compatibility of the new Hungarian legislation with applicable EU law, and the response of Hungary to those concerns. For the purpose of this judgment the Commission added only one condition which was that access to the documents was not granted " erga omnes", i.e. on an open ended basis, and that the grant of access to the High Court did not render the documents public documents. They remained confidential documents passing between the Commission and a Member State. It is clear from the letter provided by the Commission that the Court was, nonetheless, permitted to disclose the documents to the parties to the litigation and of course use those documents as part of the process of resolving this dispute. The duty of sincere cooperation arises under Article 4(3) TEU but it was first expressed in terms which meant that national courts could seek the practical assistance of EU institutions in the case of Case C-2/88 IMM Zaartveld [1990] ECR I-3365. This articulated, as a general principle of law, that the institutions of the EU owed an obligation to cooperate with the Member States, including with their judicial authorities.
(2) The position of the UNHCR
102. Similarly, Recital 48 of the Directive stated:
"In order to ensure the correct application of the safe country concepts based on up-to-date information, Member States should conduct regular reviews of the situation in those countries based on a range of sources of information, including in particular information from other Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations. When Member States become aware of a significant change in the human rights situation in a country designated by them as safe, they should ensure that a review of that situation is conducted as soon as possible and, where necessary, review the designation of that country as safe".
A country could only therefore be designated as safe after a review of an up-to-date, balanced and broad range of information sources (including UNHCR) according to rules laid down in national law. The European Asylum Support Office (EASO) Country of Origin Information report methodology sets out a number of basic standards in that regard, including the need to provide accurate and current information from a range of sources, presented in a traceable and transparent manner.
103. As applied to Hungary the UNHCR stated:
"However, aside from the fact that the Act on Asylum authorizes the Government to establish a national list of safe third countries, Hungary does not otherwise appear to have laid down rules in its national law on the methodology by which the competent authorities may satisfy themselves that a third country may be designated as a safe third country within the meaning of Section 2(i) of the Action Asylum. Nor is any explanation or justification provided in Government Decree 191/2015 as to how the Government arrived at the conclusion that each country listed qualifies as safe. Thus, as regards the inclusion of Greece, former Republic of Macedonia and Serbia on the list, it remains unclear, for example, why the Government did not heed the Opinion of the Administrative and Labour Law Panel of the Kúria in December 2012 that: '[i]f the asylum system of a third country is overburdened, this may should be treated as safe third countries in the same sense as other safe third countries. Different procedures apply as regards to states participating in the "Dublin system" and states that do not. For states participating in the "Dublin system" clear criteria for determining the state responsible for examining an application for international protection are provided for in the Dublin Regulation, whereas for other states the determination of the admissibility of applications for international protection with respect to applying the safe third country concept to these states in individual cases is regulated in the recast APD.82 Further, there is no EU common list of safe third countries, and the recast APD does not provide for such a list."
"76. Another substantial barrier to accessing the Hungarian asylum procedure has been introduced by a decree establishing a national list of safe third countries, which includes inter alia Greece, former Yugoslav Republic of Macedonia and Serbia. UNHCR has repeatedly urged States not to return asylum seekers to these countries, as UNHCR considers that they do not meet their protection obligations vis-à-vis refugees, and can thus not be considered "safe".
....
78. UNHCR is further concerned by the number of persons kept in detention while awaiting expulsion to Serbia. Since there are limitations on the number of individuals that are actually accepted back by Serbia, the situation of those in detention pending expulsion is unclear. The detention of such people, without clear time limits or effective access to the means to challenge its ongoing legality, may be inconsistent with European and international legal standards governing detention.
79. In conclusion, UNHCR considers that significant aspects of Hungarian law and practice, as described above, raise serious concerns as regards compatibility with international and European law."
(3) Application of the safe third country concept in practice: The approach adopted by the Hungarian courts
"42. Since January, courts in Debrecen, Szeged and Györ have been annulling OIN's inadmissibility decisions and instructing OIN to assess the application on its merits in the repeat procedure. When annulling the administrative decisions, courts either declare that Serbia is not a safe third country or argue that the administrative authority did not comply with its obligation to satisfy itself that the Serbian authorities will take over or back the applicant pursuant to Section 51/A of the Act on Asylum and in accordance with Article 38 (4) of the Recast APD. In the latter case, the courts take into account that, since 15 September, Serbia is not taking back third country nationals under the readmission agreement except for those who hold valid travel/identity documents and are exempted from Serbian visa requirement, and they conclude that OIN must examine the applications on their merits. Yet, OIN again denies the cases on admissibility grounds and the applicants must submit a second request for judicial review of the OIN's inadmissibility decision. OIN therefore only examines the applications on their merits after the administrative courts render a second decision instructing OIN to do so.
43. In failing to promptly take into account the court's instructions, OIN renders asylum-seekers' right to effective remedy as set out in Article 47 of the Charter on Fundamental Rights as well as Article 13 of the European Convention on Human Rights ineffective".
G. The position in Serbia
"UNHCR concludes that there are areas for improvement in Serbia's asylum system, noting that it presently lacks the resources and performance necessary to provide sufficient protection against refoulement, as it does not provide asylum-seekers an adequate opportunity to have their claims considered in a fair and efficient procedure. Furthermore, given the state of Serbia's asylum system, Serbia should not be considered a safe third country, and in this respect, UNHCR urges States not to return asylum-seekers to Serbia on this basis".
"37. The list of safe countries adopted by the Government of Serbia is, in UNHCR's view, excessively inclusive and broadly applied, and includes all neighbouring countries. The list includes Greece, which according to the European Court of Human Rights, has been found to be unable to provide effective international protection to refugees. In December 2009 UNHCR issued a position paper entitled "Observations on Greece as a Country of Asylum", advising Governments to refrain from returning asylum-seekers to Greece under the Dublin Regulation or otherwise. Serbia's list of safe third countries also includes Turkey, even though Turkey maintains the geographical limitation on the 1951 Refugee Convention with regard to refugees originating from outside Europe. If asylum-seekers are to be returned to these countries, they run the genuine risk of finding themselves in limbo, without access to protection, and at possible risk of refoulement".
"76. ... UNHCR received reports in November 2011 and again in February 2012 that migrants transferred from Hungary to Serbia were being put in buses and taken directly to the Former Yugoslav Republic of Macedonia. This coincides with reports in the local media in Serbia at that time, that the police had destroyed makeshift camps near the Hungarian border on the outskirts of the Serbian city of Subotica. There have been other reports that Serbian police have rounded up irregular migrants in Serbia and were similarly sent back to the Former Yugoslav Republic of Macedonia. However, there are no reports that persons who have managed to apply for asylum in Serbia have been subject to such deportations".
H. The position in Macedonia
"The fact that up to 90% of asylum-seekers leave the country before the asylum procedure is completed reinforces the perception of the Government that asylum claims submitted in the country are not genuine and that the country is used as transit stage on the way to Western Europe".
I. The position in Greece
"Between February and March 2016, Amnesty International interviewed several asylum-seekers who described the repeated attempts they made for several weeks to contact the Regional Asylum Service in Attika by Skype in order to book an appointment for the registration of their asylum application or relocation request. The Skype lines of the Attika Regional Asylum Office are open three days a week, for an hour in each of the designated days for Farsi/Dari speakers; two days a week, for an hour in each of the designated days for Syrian asylum-seekers; three days a week, for three hours in each of the designated days for persons wishing to apply for relocation. Persons stranded on mainland Greece who are unable to access the asylum procedures are also at risk of being arrested and detained by the Greek police after the papers requiring them to leave the country within a specific period expire".
"Given that one of the grounds for suspending Dublin transfers in the first place was the dire reception conditions, this does not auger well for the resumption of Dublin transfers in the near future".
"Despite the extremely high numbers of people arriving in Greece, it is clear from the statistics that the vast majority of those seeking asylum in the EU continue (or at least continued until the effective closure of the Western Balkan route - see below) their journey to other EU countries where they lodge asylum applications. As such while over one million people arrived in Greece in 2015, only 13,197 people applied for asylum in Greece. This compares to 476,510 in Germany, 177,135 in Hungary and 162,450 in Sweden. According to Human Rights Watch, those wishing to apply for asylum in Greece face serious problems. It also reports that the Greek asylum service has set up a system for appointments almost exclusively through Skype, though with significant booking and connection problems".
"In December 2014, the UNHCR described the reception arrangements for asylum-seekers in Greece as "insufficient and, if provided, considerably below the standard set out by EU and national law".
During a meeting with Amnesty International on 16 th February 2016, a UNHCR staff member responsible for following up reception conditions in Greece reported that their December 2014 report was still valid in terms of second-line reception conditions for asylum-seekers in Greece.
"The Asylum Service will conduct a pre-registration exercise for international protection in the mainland from end of May to end of July with the financial support of the European Commission (DG Home). The United Nations High Commissioner for Refugees (UNHCR) and the European Asylum Support Office (EASO) will support the Asylum Service in this exercise.
The pre-registration exercise will take several weeks to conclude, but all those who arrived in Greece before 20 March, wishing to apply for international protection in Greece and are currently residing on the mainland will be able to pre-register.
The pre-registration exercise is the first step to apply for international protection in Greece, which could eventually lead to (i) examination of the application for international protection by the Greek authorities, and potential recognition of beneficiary of international protection, or (ii) transfer to another EU Member State in the context of Dublin III provisions, or, (iii) transfer to another EU Member State in the context of the relocation scheme. Before and during the pre-registration exercise, information will be provided on the available options to those concerned, through leaflets and information teams deployed to the open accommodation sites.
The International Organisation for Migration will also participate in order to provide information on voluntary repatriation to the countries of origin to those interested.
Those wishing to be pre-registered must be physically present during this exercise, including any members of their family. A photo will be taken of each individual during this exercise. At the end of the pre-registration an asylum seeker card will be issued for each individual".
"On 18 March, following on from the EU-Turkey Joint Action Plan activated on 29 November 2015 and the 7 March EU-Turkey statement, the European Union and Turkey decided to end the irregular migration from Turkey to the EU. Yesterday's agreement targets the people smugglers' business model and removes the incentive to seek irregular routes to the EU, in full accordance with EU and international law.
The EU and Turkey agreed that:
1) All new irregular migrants crossing from Turkey to the Greek islands as of 20 March 2016 will be returned to Turkey;
2) For every Syrian being returned to Turkey from the Greek islands, another Syrian will be resettled to the EU;
3) Turkey will take any necessary measures to prevent new sea or land routes for irregular migration opening from Turkey to the EU;
4) Once irregular crossings between Turkey and the EU are ending or have been substantially reduced, a Voluntary Humanitarian Admission Scheme will be activated;
5) The fulfilment of the visa liberalisation roadmap will be accelerated with a view to lifting the visa requirements for Turkish citizens at the latest by the end of June 2016. Turkey will take all the necessary steps to fulfil the remaining requirements;
6) The EU will, in close cooperation with Turkey, further speed up the disbursement of the initially allocated €3 billion under the Facility for Refugees in Turkey. Once these resources are about to be used in full, the EU will mobilise additional funding for the Facility up to an additional €3 billion to the end of 2018;
7) The EU and Turkey welcomed the ongoing work on the upgrading of the Customs Union.
8) The accession process will be re-energised, with Chapter 33 to be opened during the Dutch Presidency of the Council of the European Union and preparatory work on the opening of other chapters to continue at an accelerated pace;
9) The EU and Turkey will work to improve humanitarian conditions inside Syria.
On what legal basis will irregular migrants be returned from the Greek islands to Turkey?
People who do not have a right to international protection will be immediately returned to Turkey. The legal framework for these returns is the bilateral readmission agreement between Greece and Turkey. From 1 June 2016, this will be succeeded by the EU-Turkey Readmission Agreement, following the entry into force of the provisions on readmission of third country nationals of this agreement.
On what legal basis will asylum seekers be returned from the Greek islands to Turkey?
People who apply for asylum in Greece will have their applications treated on a case by case basis, in line with EU and international law requirements and the principle of non-refoulement. There will be individual interviews, individual assessments and rights of appeal. There will be no blanket and no automatic returns of asylum seekers.
The EU asylum rules Member States in certain clearly defined circumstances to declare an application "inadmissible", that is to say, to reject the application without examining the substance."
"Under Article 55, for example, an application is considered inadmissible where the asylum-seeker has entered Greece from a "first country of asylum". Whereas previously under Article 19(2) of Presidential Decree 113/2013, a country could only be deemed a "first country of asylum" if it met the "safe third country" criterion, the revised law requires a "first country of asylum" to provide "sufficient protection" to asylum-seekers (mainly protection against refoulement - being sent back to a country which is unsafe). While the revised law appears to be aligned with Article 35 of the Asylum Procedures Directive, NGOs thus criticise the weakening of protection under Greek law. PACE, for its part, recommends that Greece "refer the question of interpretation of the concept of "sufficient protection" in Article 35 of the European Union Asylum Procedures Directive to the Court of Justice of the European Union and, until such interpretation has been given, refrain from involuntary returns of Syrian refugees to Turkey under this provision".
The picture is further clouded by reports that Turkey has in fact been returning refugees to Syria, which would clearly be in breach of the principle of non-refoulement".
"The mechanics of returning irregular migrants from Greece to Turkey under the EU-Turkey Statement are in fact governed by a bilateral readmission agreement between Greece and Turkey (as explained in Chapter 2, the EU-Turkey Readmission Agreement applies only to Turkish and EU citizens citizens for the time being). The bilateral readmission protocol was signed between Athens and Ankara in April 2002. This readmission agreement allows for migrants who are not eligible for international protection to be returned to Turkey if this is the country of departure for Greece. On 8 March 2016, ahead of the revised EU-Turkey mechanism, the bilateral readmission protocol was amended, allowing Greek authorities to send back those migrants immediately. The plan is that, as of 1 June 2016, the bilateral readmission agreement will be succeeded by the EU-Turkey readmission agreement, following the entry into force of the provisions on readmission of third country nationals".
"Though criticism of the new mechanism is considerable...there is no doubt that it seems to have reduced the number of arrivals and the number of deaths at sea - at least in the short term".
" Any resumption of transfers to Greece under the existing Dublin Regulation should take into account that Greece still receives a large number of asylum-seekers on a daily basis. Regardless of the outcome of the Commission's deliberations on a reform of the Dublin Regulation, plans to reinstitute Dublin transfers to Greece under the existing Dublin Regulation in June 2016, in the midst of considerable pressure on the Greek asylum system raise questions. It also seems to contradict the idea of an emergency relocation mechanism to transfer those in need of international protection out of Greece. Until such times the pressure has been alleviated and adequate reception conditions can be guaranteed, resumption appears to be premature".
(Emphasis in original)
J. The position in Turkey
"Strasbourg, 21.07.2016 - The Secretary General of the Council of Europe, Thorbjørn Jagland, has been informed by the Turkish authorities that Turkey will notify its derogation from the European Convention on Human Rights under the Convention's Article 15.
The possibility of a derogation is foreseen by Article 15 of the Convention in times of public emergency threatening the life of a nation and has been used in the past by other member states, most recently by France and by Ukraine.
There can be no derogation from the following articles: Article 2 (Right to life), Article 3 (Prohibition of torture and inhumane or degrading treatment or punishment), Article 4 para. 1 (prohibition of slavery), Article 7 (No punishment without law).
It is important to note that the European Convention on Human Rights will continue to apply in Turkey. Where the Government seeks to invoke Article 15 in order to derogate from the Convention in individual cases, the European Court of Human Rights will decide whether the application meets the criteria set out in the Convention, notably the criteria of proportionality of the measure taken.
The Turkish Government will inform the Secretary General about measures taken."
" Article 15 (derogation in time of emergency) of the European Convention on Human Rights1 affords to the governments of the States parties, in exceptional circumstances, the possibility of derogating, in a temporary, limited and supervised manner, from their obligation to secure certain rights and freedoms under the Convention. The use of that provision is governed by the following procedural and substantive conditions:
the right to derogate can be invoked only in time of war or other public emergency threatening the life of the nation;
a State may take measures derogating from its obligations under the Convention only to the extent strictly required by the exigencies of the situation;
any derogations may not be inconsistent with the State's other obligations under international law;
certain Convention rights do not allow of any derogation: Article 15 § 2 thus prohibits any derogation in respect of the right to life, except in the context of lawful acts of war, the prohibition of torture and inhuman or degrading treatment or punishment, the prohibition of slavery and servitude, and the rule of "no punishment without law"; similarly, there can be no derogation from Article 1 of Protocol No. 6 (abolishing the death penalty in peacetime) to the Convention, Article 1 of Protocol No. 13 (abolishing the death penalty in all circumstances) to the Convention and Article 4 (the right not to be tried or punished twice) of Protocol No. 7 to the Convention;
lastly, on a procedural level, the State availing itself of this right of derogation must keep the Secretary General of the Council of Europe fully informed."
K. The position in Iran
144. The domestic courts have addressed the question of removals to Iran on a number of occasions. In SH (Iran) v Secretary of State for the Home Department [2014] EWCA Civ 1469 (" SH (Iran)") Davis LJ, with whom the other members of the court agreed, recognised the difficulties of removals to Iran but expressed the view that this was not a fixed or immutable state of affairs:
"38. Fourth, there is no room for argument that these applicants and this appellant are to be treated as entitled to a grant of leave to remain simply because they otherwise (so it is said) will be left in a state of indefinite limbo. True it may be that there have been times when (for example) it has not proved possible for undocumented Iranians to be removed to Iran. But it does not follow that will always remain the case; and, as found as a fact by Simler J, there at no stage has been in existence a policy that those whose removal from the United Kingdom cannot be enforced should for that reason alone be granted leave ...."
145. In BM (Iran) v SSHD [2015] EWC A Civ 491 (" BM (Iran)") the Court of Appeal, per Richards LJ, after citing SH (Iran), addressed the position in relation to enforced removals to Iran from the United Kingdom concluding that removals to Iran were not impossible and that consular policies which made undocumented enforced removals difficult could be worked around:
24. At the date of the FTT's determination, the UK Border Agency's relevant Interim Operational Instruction, dated 10 August 2012, was headed "Iran: Suspension of enforced escorted returns" (original emphasis). The "Background" section explained that recent Foreign and Commonwealth Office travel advice for British citizens was against travel to Iran and that this advice "affects our escorts who are British citizens". The document continued:
" Voluntary and enforced unescorted returns
This suspension does not apply to Iranian nationals who are returning voluntarily or those cases where removal is enforced without escorts.
Documentation required for returns to Iran
We continue to be able to remove to Iran where the subject holds a valid document, either a valid Iranian passport or previously issued emergency travel document (ETD).
...
Documents to support voluntary returns
The Omani Embassy in London should now be the first point of contact for enquiries regarding documentation for Iranian cases who wish to return. It is likely that only well documented cases who want to return could benefit from assistance from the Omani Embassy. This development is untested but may provide a possible avenue for assistance within the UK."
25. We were told by Mr Blundell that the version of the Instruction in force from 28 April 2014 records that although the Iranian Embassy was closed in November 2011, officials operating from the Iranian Consulate in London have been providing consular services since February 2014 and will consider applications for emergency travel documents from individuals who wish to return to Iran voluntarily, but not for enforced, non-voluntary returns. It further confirms that Iranian nationals can be removed if they hold a valid passport or emergency travel document and that unescorted removals can take place with valid travel documents. Prior to February 2014, Iranians could, as well as using the services of the Omani Embassy, contact other local Iranian diplomatic missions, officials in Tehran or friends and family in Iran to assist in obtaining travel documentation. We were also told that the position set out in the Instruction remains the policy, though the Instruction itself has now expired.
26. It follows that at no stage were returns to Iran impossible; the one thing that was impossible was an enforced escorted return. Mr Blundell made the point that the appellant had been found to have no claim to international protection and that the Secretary of State was entitled to expect him to return voluntarily rather than having to expend public resources on an enforced removal. Mr Halim submitted that the appellant could not return voluntarily because he has no passport or other travel documentation. That, however, is not a satisfactory answer, since there were channels through which it was open to the appellant to seek to obtain an emergency travel document for return to Iran. They included the possibility of assistance from his family in Iran, since the FTT found as a fact (at paragraph 50 of its determination) that the appellant had family remaining in the family home in Iran and that he was able to contact them if he chose to do so. In the absence of evidence of genuine and unsuccessful attempts to obtain such documentation, the premise to the limbo argument lacks any solid foundation. It must also be borne in mind that the policy itself was subject to the possibility of change at any time in the light of changes in international relations with Iran. "
L. Analysis and conclusion
(1) The issues
(2) Observations upon the nature of the evidence
(3) Conclusion on Iran
(4) Conclusion on Hungary
(5) Conclusion on Serbia
(6) Conclusion on Macedonia
(7) Conclusion on Greece
(8) Conclusion on Turkey
(9) Overall conclusions
ANNEX 1
SUMMARY OF EVIDENCE
A. INTRODUCTION
1. This summary is based upon a document served by the Claimants and annotated by the Defendant. It sets out the Claimants' evidence as to the position in Hungary In respect of the changes to asylum laws with particular regard to transfers to Serbia. It also provides the Claimants' evidence in relation to detention. The Secretary of State's annotations are in square brackets and/or underlined.
B. COUNTRY INFORMATION: HUNGARY
2. Hungary is a landlocked country in central Europe, which borders seven countries: Slovakia, Ukraine, Romania, Serbia, Croatia, Slovenia and Austria. It has a population of 9,879,000 as of 2014.
Politics
3. Hungary is a parliamentary representative democratic republic. The head of government is the Prime Minister while the President holds a largely ceremonial role as the head of state.
4. The government exercises elective power. Legislative power is vested in both the government and National Assembly (parliament).
5. The Prime Minister since 29 May 2010 is Mr. Viktor Orban. He is a member of the Fidesz political party.
6. The President since 10 May 2012 is Mr. Janos Ader. He is a member of the Fidesz political party.
7. The unicameral National Assembly ( Országgyűlés ) is the Hungarian parliament and has 199 members. Elections are every four years.
8. Following the general election of 6 April 2014, the Government presently holds 131 seats, the opposition 68.
9. The present government is the result of a joint list coalition between the conservative Fidesz - Hungarian Civil Alliance (114 seats) and the KDNP (Christian Democratic Peoples' Party) (17 seats).
10. The largest opposition parties are the MSZP (Hungarian Socialist Party) (29 seats) and the radical nationalist Jobbik (24 seats). The purported aim of the latter is the protection of Hungarian values and interests and it has been identified as a radically patriotic Christian party. In the 2014 elections it secured 1,020,476 votes (20.54% of the total).
European Union
11. Hungary has been a member State of the European Union since 1 May 2004.
12. Upon acceding to the European Union, Hungary transposed the Union's asylum acquis and so harmonised its asylum legislation with other Member States.
13. It has been a member of the Schengen area since 21 December 2007.
14. Hungary sought, unilaterally, to suspend its obligations under the Dublin III Regulation on 23 June 2015, citing that it was overburdened by illegal immigration and had exhausted the resources at its disposal [ Hungarian Government ]
15. The provisions of the Dublin III Regulation do not foresee the ability of a country to suspend its obligations.
16. It reversed its decision the following day
17. The Hungarian Foreign Minister, Peter Szijjarto, stated on 11 November 2015 "the Dublin system is dead ... If anyone leaves from Syria toward Europe it is physically impossible for them to enter the European Union in Hungary ... Therefore it is not justified to send any Syrians back to Hungary."
C. ASYLUM REGIME
Asylum system
18. The primary legislative act concerned with asylum is:
• Act LXXX of 2007 on Asylum (the Asylum Act) [C/2]
19. It is subject to amendment:
• Act XCIII of 2013 on the amendment of certain acts relating to law enforcement matters;
• Act CXXVII of 2015 on the temporary closure of borders and amendment of migration-related acts;
• Act CXL of 2015 on the amendment of certain Acts related to the management of mass migration.
20. Other relevant legislation includes:
• Act II of 2007 on the Entry and Stay of Third-Country Nationals (the Third-Country Nationals Act);
• Act LXXX of 2003 on Legal Aid
21. Relevant implementing decrees are:
• Government Decree No. 301/2007 (XI.9) on the implementation of Act LXX of 2007 on Asylum [C/3];
• Government Decree No. 114/2007 (V.24) on the Implementation of Act II of 2007 on the Entry and Stay of Third-Country Nationals;
• Government Decree No, 9/2013 (VI.28) on the rules of execution of asylum detention and bail;
• Government Decree No. 191/2015 (VV. 21) on safe countries of origin and safe third countries [Bundle C, Tab 4].
[B/29/252 AIDA ]
22. The authority in charge of asylum procedure is the Office of Immigration and Nationality (OIN). It is a financially independent department of the Ministry of the Interior that has been concerned with immigration, asylum and citizenship issues since January 2000.
23. The asylum procedure is a single procedure where all claims for international protection are considered. The procedure consists of two instances.
• The first instance is an administrative procedure carried out by the OIN. This may either be by way of the usual, or normal, procedure and by an accelerated procedure. There is also a special border procedure, which is a type of accelerated procedure for asylum seekers entering Hungary through the transit zones.
• The second instance is a judicial review procedure carried out by regional courts of appeal, which is not specialised in asylum.
[B/29/254, 259-260 AIDA ]
24. As of 1 August 2015 there are three types of first instance procedure:
• The inadmissibility procedure should be used if somebody (a) is an EU citizen; (b) has protection status from another EU Member state; (c) has protection from a third country and this country is willing to readmit the applicant; (d) submits a subsequent application and there are no new circumstances or facts; and (e) has travelled through a safe third country.
• The accelerated procedure can be used if somebody; (a) has shared irrelevant information with the authorities regarding his or her asylum case; (b) comes from a safe country of origin; (c) gives false information about his or her name and country of origin; (d) destroys his or her travel documents with the aim to deceive the authorities; (e) provides contradictory, false and improbable information to the authorities; (f) submits a subsequent applicant with new facts and circumstances; (g) submits an application only to delay or stop his or her removal; (h) enters Hungary irregularly or extends his or her stay illegally and did not ask for asylum within reasonable time although he or she would have had the chance to do so; (i) does not give fingerprints; and (j) presents a risk to Hungary's security and order or has already had an expulsion order for this reason.
• The asylum application in the normal procedure starts out with an interview by an asylum officer and an interpreter, usually within a few days after arrival. At that point, biometric data is taken, questions are asked about personal data, the route to Hungary and the main reasons for asking for international protection. The OIN will decide about the placement of the asylum seeker in an open centre or will order asylum detention. The normal procedure is no longer divided into an admissibility and an in-merit phase, it consists of one interview only.
[Emphasis added]
[ AIDA ]
The Secretary of State notes that the report continues: The asylum authority should consider whether the applicant should be recognised as a refugee, granted subsidiary protection or a tolerated stay under non-refoulement considerations. A personal interview is compulsory, unless the applicant is not fit for being heard, or submitted a subsequent application and, in the application, failed to state facts or provided proofs that would allow the recognition as a refugee or beneficiary of subsidiary protection. [B/29/255 AIDA ]
25. An applicant may challenge a negative ONI decision by requesting judicial review from the regional Administrative and Labour Court within 8 calendar days. A challenge against an inadmissibility decision is to be filed within 7 calendar days. The Court should take 60 days in the normal procedure and make a decision within 8 days in the inadmissibility and accelerated procedures [ AIDA ]
26. Both points of facts and law may be assessed during a judicial review procedure. However, the scope of review in inadmissibility appeals is limited to the grounds of admissibility and the merits of the case are not considered [ AIDA ]
Legal Aid
27. Section 37(3) Asylum Act confirms that asylum seekers in need have access to free legal aid. The needs criterion is automatically met, given that asylum seekers are considered in need irrespective of their income or financial situation, merely on the basis of their statement regarding their income and financial situation.
The Legal Aid Act sets out the rules for free of charge, state-funded legal assistance provided to asylum seekers. Sections 4(b) and 5(2)(d) provide that asylum applicants are entitled to free legal aid if they are entitled to receive benefits and support under the Asylum Act. Section 3(1)(e) provides that legal aid shall be available to those who are eligible for it, as long as the person is involved in a public administrative procedure and needs legal advice in order to understand and exercise his or her rights and obligations, or requires assistance with the drafting of legal documents or any submissions. Legal aid is not available for legal representation during public administrative procedures. Therefore, in the asylum context, the presence of a legal representative during the asylum interview conducted by OIN is not covered by the legal aid scheme. However, legal aid in the administrative phase of the asylum procedure is available through the national allocation of European Refugee Fund (ERF) projects.
Section 13(b) of the Legal Aid Act also provides that asylum seekers may have free legal aid in the judicial review procedure contesting a negative asylum decision. Chapter V of the Legal Aid Act sets out rules on the availability of legal aid in the context of the provision of legal advice and assistance with drafting of legal documents for persons who are eligible for legal aid.
Section 37(4) of the Asylum Act provides that legal aid providers may attend the personal interview of the asylum seeker, have access to the documents produced in the course of the procedure and have access to reception and detention facilities to contact their client.
Legal aid providers may be attorneys, NGOs or law schools who have registered with the Legal Aid Service of the Judicial Affairs Office of the Ministry of Justice and Public Administration.24 Legal aid providers may specify which main legal field they specialise in, i.e. whether in criminal law, or civil and public administrative law. As a general rule, beneficiaries of legal aid are free to select a legal aid provider of their own choice. This is facilitated by the legal aid offices around the country, which maintain lists and advise clients according to their specific needs.
Although asylum seekers have been eligible for free legal aid since 2004, very few avail themselves of this opportunity due to several practical and legal obstacles. Usually, asylum seekers are not aware of the legal aid system. The system does not cover translation and interpretation costs, hence the opportunity to seek legal advice in the asylum procedure is rendered almost impossible. The majority of Hungarian lawyers based in towns where reception and detention facilities are located do not speak foreign languages [ AIDA ]
Growth in numbers of asylum seekers
28. Hungary acceded to the 1951 UN Convention on the Status of Refugees in 1989. Hungary has acceded to almost all relevant human rights conventions, as well as the 1954 UN Convention relating to the Status of Stateless Persons (henceforth the 1954 Convention) in 2001 and to the 1961 UN Convention on the Reduction of Statelessness in 2009. [B/13/64, §1 UNHCR ]
29. In 2011 there were unscheduled visits by the UN Special Rapporteurs on the Promotion and Protection of the Rights to Freedom of Opinion and Expression (April) and on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (May). Both Rapporteurs expressed concerns about xenophobia, racism and intolerance encountered by refugees and asylum-seekers in Hungary as well as the harsh conditions of detention imposed on asylum-seekers [B/13/64, §3 UNHCR ]
30. Historically, Hungary has experienced low levels of asylum applications. In 2011, Hungary registered 1,693 asylum seekers (mostly from Afghanistan, Serbia and Kosovo, Pakistan, Syria and Somalia). 47 were recognised as refugees, 98 received subsidiary protection and 11 benefited from protection against refoulement on the basis of tolerated stay [B/13/65, §7 UNHCR ]
31. In 2014, Hungary received 42,777 applications for asylum [B/23/208 Amnesty International ], but received 175,963 applications between January and September 2015 [B/29/252 AIDA ]. The Eurostat figures refer to 42,775 and 177,135 applications for 2014 and 2015 respectively [C/5/156].
As to the numbers of Dublin returnees to Hungary in 2015, the Secretary of State notes that the Commissioner refers to 1,338 successful transfers to Hungary under the Dublin III Regulation (up to November 26). [B/3/43, §41 Council of Europe ] AIDA also reports 1,081 Dublin transfers in 2015 (up until September 24), with AT, SK and DE as the top sending countries. [B/29/252 AIDA ]
32. By the latter end of 2015, Hungary was receiving the second highest number of asylum claims in Europe after Germany , with more than 315,000 by the end of October 2015 [C/6/157 BBC ]
33. From 1 January 2015 to 23 November 2015, 391,115 persons crossed the border irregularly into Hungary. The two main countries of origin were Syria (132,169 from 1 January up to 30 September 2015) and Afghanistan (71,557 for the same period) [B/3/37, §9 Council of Europe ]
The Secretary of State observes that the Commissioner also states in this paragraph that:
"At the junction of various migration routes in Central Europe, Hungary has experienced a considerable increase in asylum applications in recent years, which has put a strain on its asylum system. The pressure was particularly high in 2015 in the context of growing numbers of refugees attempting to each Europe to flee wars and persecution."
The Secretary of State observes that the Hungarian Government budgeted for an additional HUF 15.8 billion in 2015 to manage the refugee situation [ D/10].
34. In the same year, up to 24 November 2015, 176,637 persons applied for asylum, of whom approximately 65,063 were Syrians (37%) and 46,571 Afghans (26%). In other words, as also noted by the United Nations High Commissioner for Refugees (UNHCR), a large percentage of asylum seekers in Hungary come from conflict zones and many are likely to be in need of international protection [ Council of Europe ]
35. While the number of asylum applications amounted in some cases to over 10,000 per week during the summer of 2015, from the beginning of October applications dramatically dropped to 60 for the week starting 16 November 2015 [ Council of Europe ]. This coincides with the building of a border fence and the positioning of security forces at border crossings.
36. On 15 September 2015 the Hungarian government declared a "crisis situation" caused by mass immigration. On the same day, the construction of a fence on the border with Serbia was finished and amendments to the Criminal Code and Asylum Law, making it an offence to enter the country through the border fence and establishing "transit zones" at the border, entered into effect [ Amnesty International ]
37. On 22 September 2015, the Hungarian Parliament adopted a resolution that stated, among other things, that Hungary should defend its borders by "every necessary means" against "waves of illegal immigration". The resolution stated: "[W]e cannot allow illegal migrants to endanger the jobs and social security of the Hungarian people. We have the right to defend our culture, language and values." [ Amnesty International ]
38. Amnesty International has observed: " While Hungary is bearing much of the brunt of the EU's structurally unbalanced asylum regime, it has also shown a singular unwillingness to engage in collective EU efforts to address these shortcomings and participate in initiatives designed to redistribute the responsibility for receiving and processing asylum seekers, notably the relocation and "hotspot" processing schemes that the European Commission and Council have been proposing. Instead, Hungary has moved in recent months to construct fences along its southern borders, criminalise irregular entry to its territory and expedite the return of asylum seekers and refugees to Serbia, through its inclusion on a list of safe countries of transit. The cumulative effect, and desired consequence, of these measures will be to render Hungary a refugee protection free zone. Ultimately, Hungary's attempts to insulate itself against a regional, and wider global, refugee crisis can only be achieved at the expense of the respect its international human rights and refugee law obligations. In fact, this is already happening; only the completion of a fence along the Croatian border is preventing Hungary's isolationist migration policies from reaching fruition." [ Amnesty International ]
Recognition rate of beneficiaries of international protection
39. Hungary has a low recognition rate of international protection compared to other European Union countries [ Council of Europe ]
40. In 2015, the average recognition rate was of 17% while in 2014 it was 9% (compared to 45% for the whole EU in 2014. [ Council of Europe ]
41. The AIDA report (November 2015), using Eurostat as its source, identifies the following statistics concerning substantive considerations and appeals:
|
Applicants in 2015 |
Pending applications in 2015 |
Refugee [1] status |
Subsidiary [2] protection |
Humanitarian [3] protection |
Rejection |
|
175,960 |
107,422 |
105 |
235 |
5 |
1,715 |
|
Refugee rate |
Subsidiary protection rate |
Humanitarian protection rate |
Rejection rate |
|
5.1% |
11.4% |
0.2% |
83.3% |
|
Number of Appeals |
Successful Appeals (Total) |
Successful Refugee appeal |
Successful Subsidiary protection appeal |
Successful Humanitarian protection appeal |
Negative decision |
|
366 |
28 |
14 |
13 |
1 |
338 |
|
100% |
7.6% |
3.8% |
3.5% |
0.3% |
92.3% |
[Bundle B, Tab 29 page 247-248 AIDA ]
42. The recognition rate has drastically decreased since mid-September 2015, when a series of restrictive measures entered into force. From 15 September to 27 November 2015, 5,081 asylum claims were registered (2,000 originating from Afghans and 1,362 from Syrians). Out of these applications 1,189 were discontinued because the asylum seeker was assumed to have left Hungary; 372 were declared inadmissible (of which 311 on grounds that the asylum seeker had transited through a safe third country), 23 applications were rejected; 4 persons received subsidiary protection; and nobody was recognised as a refugee [B/3/38, §11 Council of Europe ]
Hardening of domestic attitude to migration
43. On 3 September 2015 at a press conference held in Brussels, Prime Minister Viktor Orban said: " We have one message for refugees: Don't Come!" [B/15/104 Hungarian Helsinki Committee ]
44. Later in September 2015, Hungarian Prime Minister Orbán defended the measures by saying that they concerned "defending European lifestyles," contrasting this with Islam. UN High Commissioner for Human Rights Zeid deplored the xenophobic and anti-Muslim views that appear to lie at the heart of current Hungarian Government policy, and which were reflected in a blatantly xenophobic Government poster campaign earlier in the year [B/9/55 UNHCR ]
45. Government communications consistently labels Syrian, Iraqi, Afghan, Somali and other refugees fleeing from war and terror as economic migrants, "livelihood immigrants", or simply illegal migrants, towards whom the Hungarian state has no protection obligations [ Hungarian Helsinki Committee ]
46. The Government's hard-line approach to immigration has proved popular domestically. Reuters reports:
[Viktor] Orban's anti-migrant policies have been popular at home.
A poll by Median showed that Orban's Fidesz, which has been in power since 2010, had 51 percent support among decided voters, over 21 percent for the second strongest party, the far-right Jobbik. This is the first time that any Hungarian ruling party is supported by more than half of decided voters in the middle of its parliamentary term, Median said."
[ UNHCR ]
47. The CoE Commissioner for Human Rights has expressed concern as to the negative climate against refugees and asylum seekers and integration issues:
"The Commissioner is particularly shocked at repeated references by the Hungarian Prime Minister to the danger for Hungary's culture posed by the arrival of Muslim migrants. The Commissioner was all the more dismayed to learn during his November visit that the government was planning a new media campaign under the headline: "The quota increases the terror threat!" (referring to the EU plans to relocate asylum seekers in different countries according to quotas) and other statements reading: "An illegal immigrant arrives in Europe on average every 12 seconds"; other messages read: "We don't know who they are, or what their intentions are"; and "We don't know how many hidden terrorists are among them"
[ Council of Europe ]
48. Amnesty International observed that the amendments were a "thinly veiled attempt by Hungary to dodge its obligations under national and international law to assist asylum-seekers who have a globally recognised right to claim international protection" [ Amnesty International ]
49. The Hungarian authorities have continued to conduct public campaigns targeting migrants. In December 2015, it launched a new campaign portraying those fleeing war and conflict as "criminals. Invaders and terrorists" based on their religious beliefs and places of origin [ UNHCR ]
D. AMENDMENTS TO ASYLUM LAW - 2015
50. Domestic asylum procedure in Hungary is regulated in Act LXXX of 2007 on asylum and Government Decree 301/2007 implementing the Act. The asylum system was amended in July and September 2015.
Amendments to asylum law
51. In July 2015, Hungary amended its asylum legislation by way of Act CXXVII of 2015, with the changes coming into force on 1 August 2015. Further amendments came into force on 15 September 2015. In September 2015, Hungary also passed Act CXL of 2015, which also amended Act LXXX of 2007.
52. The amendments coming into force on 1 August 2015 merged what were previously i) the preliminary assessment (i.e. admissibility) procedure and ii) the in-merit procedure for considering asylum applications into one single procedure [B/29/252 AIDA ]
53. A second procedure, an accelerated procedure, was established which is applied if one of 10 identified grounds are established. Vulnerable applicants are not exempted from accelerated procedures [ AIDA ]
54. The new rules have authorized the government to adopt a list of safe countries of origin and safe Third Countries. The latter list includes Serbia consequent to it being a candidate for membership of the European Union [ AIDA ]
55. The amendments that came into force on 15 September 2015 introduced additional restrictions to access to protection. The amended Asylum Act now provides for a border procedure in transit zones, subject to lower procedural guarantees and in practice lasting as short as one hour in certain cases, whereby asylum claims are summarily rejected as inadmissible. Vulnerable applicants are exempted from the border procedure in the transit zone [ AIDA ]
Criticism of amendments by the UNHCR
56. The UNHCR raised its deep concerns as to the proposals to amend the Asylum Act in July 2015, observing:
"Even before the new proposals, the Hungarian asylum system was becoming more and more restrictive. We fear that the new amendments will make it impossible for people fleeing war and persecution to seek safety in this country," Ms. Feixas Vihé [4] added. "We understand Hungary's national security concerns, but this should not victimize the victims."
[ UNHCR ]
57. In September 2015, the UNHCR further expressed its concerns as to these amendments:
UNHCR is particularly concerned about a series of restrictive measures recently introduced by Hungary and the way they are being implemented, resulting in extremely limited access for refugees at the border. New legislation includes deterrence measures, some contrary to international law and European jurisprudence when applied to asylum-seekers and refugees.
"UNHCR reiterates its call on the Hungarian authorities to ensure unimpeded access for people in need of protection in line with its legal and moral obligations", the UN High Commissioner for Refugees, António Guterres, said today. "States should manage their borders in a way that is consistent with International and EU Law, including guaranteeing the right to seek asylum," Guterres added.
Reports indicate that only a few asylum-seekers have been allowed to enter Hungary through the official border crossing point. UNHCR was especially shocked and saddened to witness Syrian refugees, including families with children who have already suffered so much, being prevented from entering the EU with water cannons and tear gas.
Hungary has also begun to return asylum-seekers to Serbia, against standing UNHCR advice to governments. The argument that refugees can be denied entry because it is possible to be returned to Serbia does not take into account the asylum system Serbia is currently building is not able to cope with the magnitude of the current inflow of people who require effective protection.
In relation to refugees being detained for irregularly crossing the border barrier and will be charged, UNHCR reminds States of their obligations under the UN Refugee Convention and, in particular, article 31 (non- penalization for unauthorized entry or presence for asylum seekers and refugees).
"It is not a crime to cross a border to seek asylum," Mr. Guterres said.
[ UNHCR ]
58. In joint observations with the Council of Europe and the ODHIR (Office for Democratic Institutions and Human Rights) in December 2015, the UNHCR called upon the Hungarian leadership to "adopt the true spirit of humanity in helping those who have been forced out of their countries against their own will and choice and are currently seeking safety in Europe":
" The Hungarian Government launched a new public campaign portraying those fleeing war and conflict as criminals, invaders and terrorists based on their religious beliefs and places of origin. Not the first of its kind in the country, this campaign also targets migrants and plans to run for two months through Christmas and into the new year in 2016.
The Organisations are collectively stressing the need for the Hungarian Government to acknowledge that refugees are coming to Europe, after having endured trauma, tragedy and loss while searching for hope and dignity to start a new life far from the upheavals of war and conflict. As part of the common European system, Hungary is looked upon to contribute to the joint efforts in dealing with the continent's largest refugee crisis since the World War II and to meet its international legal commitments in this area under both International law and the European Convention on Human Rights."
[ Council of Europe ]
Criticism of amendments by the UN Human Rights Commissioner
59. On 17 September 2015, the UN Human Rights Commissioner Zeid Ra'ad Al Hussein said that amendments of the Criminal Code and the Asylum Law that entered into force on 15 September are incompatible with the human rights commitments binding on Hungary. " This is an entirely unacceptable infringement of the human rights of refugees and migrants. Seeking asylum is not a crime, and neither is entering a country irregularly." The UN Human Rights Commissioner further observed that some of the actions carried out by the Hungarian authorities, such as denying entry, arresting, summarily rejecting and returning refugees, using disproportionate force on migrants and refugees, as well as reportedly assaulting journalists and seizing video documentation, amounted to clear violations of international law. He also noted " the xenophobic and anti-Muslim views that appear to lie at the heart of current Hungarian Government policy" [ Amnesty International ] [ UNHCR ]
Safe Third Countries including Serbia
60. From January 2013 to 31 July 2015, Hungary stopped applying the safe third country rule to asylum seekers arriving via Serbia and their cases were examined in Hungary. However this has now changed further to the legal amendments introduced in July 2015 (coming into force on 1 August 2015). Now all asylum claims lodged by applicants who came through what is considered a safe Third Country are to be considered inadmissible when the applicant would have had the opportunity to apply for effective protection in that country. Governmental Decree 191/2015 (VII.21) created a list of "safe third countries" including Serbia [ Council of Europe ]
61. The UNHCR does not consider Serbia to be a safe third country of asylum. In August 2012 it identified a number of shortcomings in Serbia's asylum regime, including:
• Lack of personnel, expertise, infrastructure, implementation of legislation and government support;
• The Asylum Office is operating on an ad hoc basis and lacks sufficient numbers of qualified persons to adjudicate asylum claims;
• The Asylum Office has no budget allocated to it and its essential services are covered by the UNHCR;
• As the Asylum Office is based within the Border Police Directorate it is not independent from the police structure. Asylum procedures are conducted by police officers often inadequately trained in the principles and application of international refugee protection;
• Placing police in the role of interviewer during the asylum procedure may undermine the perception of confidentiality and impartiality;
• The national asylum system cannot process the significant increase in asylum seekers;
• The structural relationship between the Asylum Office managed by the Ministry of the Interior and the asylum centres which are independently managed by the Serbian Commissariat for Refugees (SCR) and its impact upon the provision of accommodation.
[ UNHCR ]
62. No other European Union member State recognises Serbia as a safe Third Country [ Hungarian Helsinki Committee ]
63. In Hungary the authorities can now rely upon an asylum seeker admitting that they travelled through Serbia or their being apprehended by the police in the region of the Serbian border so as to be able to declare an asylum claim to be inadmissible [ Hungarian Helsinki Committee ]
64. The amendment is retrospective and applies to asylum seekers who claimed asylum prior to 1 August 2015 [ Hungarian Helsinki Committee ]
65. The presumption that an asylum seeker had an opportunity to claim asylum in Serbia is, in principle, rebuttable. However, in reality, respite is theoretical:
a) The law requires the applicant to prove that he could not present an asylum claim in Serbia. This represents an unrealistically high standard of proof as compared to the lower standard of "to substantiate", which is generally applied in Hungarian asylum law.
b) The law does not provide the necessary due process safeguards by stipulating that an asylum-seeker after being informed about the application of the safe third country concept in his case can, without delay and in any case not later than within 3 days, make a declaration concerning why in his individual case the given country cannot be considered as safe. No mandatory, free of charge legal assistance is foreseen in this process. Due to the lack of a functioning legal aid system accessible to asylum seekers, the vast majority of them have no access to professional legal aid during the asylum procedure.
c) The lack of a possibility to have access to protection in Serbia does not stem from individual circumstances but from the general lack of a functioning asylum system. Therefore, it is absurd and conceptually impossible to expect an asylum-seeker to prove that for individual reasons he had no access to a functioning system in Serbia that in reality does not exist. It is to be observed that Hungary's legislation deems the Serbian asylum system to be safe.
d) If the claim is considered inadmissible, the OIN has to deliver a decision in a maximum of 15 days. This extremely short deadline adds to the presumption that no individualized assessment is carried out.
[ Hungarian Helsinki Committee ]
66. The new provisions put in place for the first time in Hungary an accelerated asylum procedure whereby a decision by the OIN has to be taken within 15 days. This procedure is lacking essential legal safeguards. In particular, there is a high risk of judicial review being ineffective. A personal hearing at the court is no longer mandatory, and in some cases there is no automatic suspensive effect against the negative decision on protection and the removal decision. The time-limit to file a request for judicial review of a negative decision is three days. A new provision allows the authorities to oblige asylum seekers to contact their country of origin while their asylum application is still pending, a requirement that could put applicants in danger. The lack of access to proper information on the new asylum procedures and of interpretation is also an issue of concern [ CoE ]
67. Those subject to the inadmissibility decision also receive a ban on entering Hungary for 2 years [ Hungarian Helsinki Committee ]
The Secretary of State observes that this statement was made in the context of a discussion of one particular case only: [ Hungarian Helsinki Committee ]
68. This ban is entered into the Schengen Information system and so prevents a person from entering the entire Schengen area in any lawful way [ Hungarian Helsinki Committee ]
69. Return to a Serbia, as a safe Third-Country, has to take place within 1 year of an asylum-seeker's entry into Hungary consequent to the EU-Serbia Readmission Agreement ( Article 10, 2007/819/EC: Council Decision of 8 November 2007 on the conclusion of the Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorization ) [ Hungarian Helsinki Committee ] [Article 10 European Community-Serbia Readmission Agreement ]
E. EUROPEAN UNION - INFRINGEMENT PROCEEDINGS
70. On 10 December 2015, the Commission gave formal notice to Hungary that it was opening an infringement procedure concerning recently adopted asylum legislation.
71. The press release details:
"The Commission has found the Hungarian legislation in some instances to be incompatible with EU law (specifically, the recast Asylum Procedures Directive (Directive 2013/32/EU) and the Directive on the right to interpretation and translation in criminal proceedings (Directive 2010/64/EU)). [ EU Commission ]
72. The Commission identified the following concerns in the Press release:
• No possibility to refer to new facts and circumstances in the context of appeals;
• Hungary is not automatically suspending decisions in case of appeals, effectively forcing applicants to leave Hungary before the time limit for lodging an appeal expires or before an appeal has been heard;
• The law on fast-tracked criminal proceedings for irregular border crossings does not respect the right to interpretation and translation in criminal proceedings;
• The law concerned with judicial review of decisions rejecting an asylum application does not provide for a mandatory oral hearing and judicial decisions are being taken by court secretaries (a sub-judicial level) who lack judicial independence.
73. The Hungarian authorities have responded by asserting that this move is an act of revenge for its rejection of mandatory migrant quotas.
74. Reuters reports the Hungarian response:
[Viktor] Orban's chief of staff Janos Lazar said Hungary would fight the new infringement procedure.
"This is an unjust and to us unfair procedure, clearly the revenge of political groups who condemn Hungary's determined stance about defending European borders," he told a news conference."
[ UNHCR ]
F. COUNCIL OF EUROPE
75. An effective response to the current refugee movements across Europe can only be found through concerted European action, but States must continue to abide by their human rights obligations. Following a visit to Hungary in November 2015, the CoE Commissioner for Human Rights, Nils Muiznieks, observed:
"I am concerned that Hungary has not lived up this challenge"
[ Hungarian Helsinki Committee ]
The Secretary of State notes that this statement also observes on the same page that " Hungary has been confronted with an unprecedented task in this field".
76. The President of the First Section of the European Court of Human Rights invited the Council of Europe Commissioner for Human Rights to intervene as a Third Party in the Court's proceedings and to submit written observations concerning the cases of S.O. v Austria and A.A. v Austria (Applications Nos. 44825/15 and 44944/15)
77. The Third Party Intervention is dated 17 December 2015 and raised the following concerns:
The Commissioner considers that the very restrictive measures taken in recent months by the Hungarian authorities translate into a deliberate intention of the latter to deter asylum seekers from entering the country and applying for asylum therein. In conclusion, the Commissioner considers that:
- The current asylum law and practice in Hungary are not in compliance with international and European human rights standards. At the moment, virtually nobody can access international protection in Hungary. The asylum procedure is too expedited and lacks essential safeguards; the use of asylum detention and the detention conditions are problematic; and the general negative climate against migrants fostered by the authorities is not conducive to the integration of asylum seekers and refugees in Hungarian society. All of the above has a serious negative impact on the conditions of reception of Dublin returnees.
- A considerable proportion of those returned to Hungary under the Dublin III Regulation are currently detained. The detention regime is very restrictive, a circumstance which the Commissioner considers cannot be reconciled with the fact that asylum seekers are not criminals and should not be treated as such. The material conditions of detention are also reported to be substandard. Furthermore, the remedies available to challenge detention cannot, in the Commissioner's view, be considered effective.
- Due to the introduction of the rule according to which Serbia is to be considered as a safe third country, persons currently returned to Hungary under the Dublin III Regulation do not, as a rule, have their asylum application examined on the merits by the Hungarian authorities, contrary to the latter's international obligations in matters of asylum. As a result, Dublin returnees to Hungary are exposed to a very high risk of being subject to deportation to Serbia and to onward chain refoulement, with the corresponding risk of treatment contrary to Article 3 of the European Convention on Human Rights.
[ CoE ]
78. The Commissioner observes that current asylum law and practice in Hungary are not in compliance with international and European human rights standards. Dublin returnees are at high risk of being detained in poor conditions with ineffective remedies available to challenge this. Furthermore, Dublin returnees are exposed to a very high risk of being subject to deportation to Serbia and onward chain refoulement leading to a risk of violation of Article 3 ECHR, due to the Hungarian law considering Serbia as a safe third country, which applies retroactively.
G. REFOULEMENT
79. On 21 July, Governmental Decree 191/2015 created a list of "safe Third Countries" including Serbia (as a candidate state of the European Union). Asylum-seekers entering Hungary from Serbia face the quasi-automatic rejection of their application.
80. Under the law, Serbia is considered a "safe Third Country" and if the applicant travelled through it or stayed there, it is assumed that he or she "could have applied for effective protection there". As the "safe Third Country" assessment takes place at the admissibility stage of the application, a claim can be rejected before a review of its merits and of the particular circumstances of the applicant [ Amnesty International ]
81. The UNHCR recommended in 2012 that Serbia not be considered a safe Third Country of asylum, and that countries therefore refrain from sending asylum seekers back to Serbia [ Council of Europe ] [ HHC ]
82. The inclusion of Serbia on the list of safe countries of transit is particularly problematic. The situation in Serbia exposes refugees and asylum-seekers to a risk of human rights violations. Amnesty International's recent research demonstrates that the asylum system in Serbia remains ineffective and fails to guarantee access to international protection to even prima facie refugees, including Syrian nationals, who make up the majority of applicants [ Amnesty International ]
83. The CoE Commissioner for Human Rights understands that no other EU Member State currently regards Serbia as a safe third country for asylum seekers [B/3/42, §35 Council of Europe ]
84. The newly established list of safe third countries does not take into account the guidelines issued by the Kúria, the Supreme Court of Hungary, about countries to be considered as safe third countries. A translation of Opinion No.2/2012 (XII.10) KMK on certain questions relating to the application of the safe third country concept (10 December 2012) is at []
85. The Supreme Court concluded; " the country information issued by UNHCR shall always be taken into consideration." [ Council of Europe ] [ Hungarian Helsinki Committee ]
86. Failures and delays in the implementation of the provisions of Serbia's Asylum Law deny asylum-seekers a prompt and effective individual assessment of their protection needs. The failure of the Serbian Asylum Office to provide asylum-seekers with information on submitting a claim, identify vulnerable persons, conduct asylum interviews promptly and provide first-instance decisions in a timely fashion, places a significant number of individuals at risk of refoulement to Macedonia and onwards to Greece [ Amnesty International ]
87. The UN Committee against Torture was concerned in June 2015 at information that persons expelled from Hungary to Serbia were subjected to forced return to the former Yugoslav Republic of Macedonia, "in application of the readmission agreements, without effective procedural guarantees to gain access to legal remedies against the decision, free legal aid or information provided through interpretation services". The Committee was concerned that those individuals are at " a heightened risk of refoulement, including chain refoulement" [ Council of Europe ]
88. According to the UNHCR's latest assessment in August 2015, the former Yugoslav Republic of Macedonia is not to be considered as a safe third country due to outstanding gaps in the asylum system in the country and the sharp increase in the number of new arrivals in the country more recently, which presents major challenges to the asylum environment. Accordingly, UNHCR advised that other states should refrain from returning or sending asylum-seekers to the country, until further improvements to address these gaps have been made by the national authorities [ CoE ] [ UNHCR]
89. The risk of chain refoulement consists of an asylum seeker being removed from Hungary to Serbia to Macedonia to Greece, the latter's asylum system being considered to subject to systemic deficiencies that give rise to Article 3 ECHR breaches.
Application of Safe Third Country presumption by Hungary
90. The rule concerning Serbia as a safe Third Country is effectively applied to asylum seekers both in the accelerated and border procedures and that people have already been returned to Serbia on this ground. From 15 September to 27 November 2015, the vast majority (372 out of 399) of the asylum applications that were not discontinued on grounds that the asylum seeker had left Hungary, were declared inadmissible and in 311 cases this was done on safe third country grounds [ Council of Europe ]
91. The judicial review of the inadmissibility decisions is characterised by insufficient legal safeguards, including very short time-limits to appeal and a lack of mandatory, free-of-charge legal assistance of good quality [ Council of Europe ]
92. In practice, since almost all asylum seekers came to Hungary via Serbia (or another country on the safe third country list), their asylum claim will be considered as inadmissible and therefore rejected before having been examined on the merits. Once the claim is rejected, the next step consists in ordering and implementing the expulsion of the asylum seeker to Serbia [ Council of Europe ]
93. The CoE Commissioner for Human Rights is clear in his opinion:
"The Commissioner considers that this situation renders access to international protection in Hungary virtually impossible and entails a real risk of refoulement of persons with international protection needs (including Dublin returnees) to Serbia, and of onward chain refoulement. It is therefore at variance with Hungary's international obligations under the European Convention on Human Rights and 1951 Refugee Convention."
[ Council of Europe ]
94. Dublin returnees also run a very high risk of being expelled to Serbia without having their asylum claims examined on the merits, as a result of the application to their cases of the safe Third Country rule described above. It should be noted in this respect that the rule applies retroactively, in that it operates with respect to persons who initially entered Hungary before the coming into force of the list of safe Third Countries. As a result, their application will likely be declared inadmissible, without the possibility for these persons to be heard beforehand [ Council of Europe ]
H. ASYLUM - DUBLIN RETURNEES
First-time applicants
95. Persons who had not previously applied in Hungary and persons whose applications are still pending are both treated as first-time asylum applicants [ Hungarian Helsinki Committee ] [ AIDA ]
96. For persons whose applications are considered to have been tacitly withdrawn (i.e. they left Hungary and moved on to another EU member state) and the asylum procedure had been terminated, the asylum procedure may be continued if the person requests such a continuation within 9 months of the withdrawal of the original application [ Hungarian Helsinki Committee ]
97. When that time limit has expired, the person is considered to be a subsequent applicant. This is contrary to Dublin III Regulation, Article 18(2) and recast Asylum Procedures Directive, Article 28(3) [ AIDA ]
98. Persons who withdraw their application in writing cannot request the continuation of their asylum procedure upon return to Hungary and will have to submit a subsequent application and present new facts or circumstances. This is contrary to Dublin III Regulation, Article 18(2) [ AIDA ]
Subsequent applications
99. A subsequent application is considered as an application made after a final termination or rejection decision on the former application. New circumstances or facts have to be submitted in order for a subsequent application to be admissible [ Hungarian Helsinki Committee ]
100. Where an asylum seeker has left the country over 9 months before return they cannot request a continuation. They will be considered to be a subsequent applicant. The Hungarian Helsinki Committee observes:
"... imposing a deadline in order for the procedure to be continued is contrary to the Dublin III Regulation as the second paragraph of Article 18(2) 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 has been taken at first instance, that Member State shall ensure that the applicant is entitled to request that the examination of his or her 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. This is also recalled in Article 28(3) of the Recast Asylum Procedures Directive, which explicitly provides that the aforementioned 9-months rule on withdrawn applications "shall be without prejudice to [the Dublin III Regulation""
[ Hungarian Helsinki Committee ]
101. The asylum procedure would also not continue when the returned foreigner had previously received a negative decision from the OIN and did not seek judicial review. This is problematic when the OIN had previously issued a decision in someone's absence, which can only be issued when the OIN considers that all necessary facts have been obtained in the case (e.g. the personal interview has taken place). 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 and, in addition, show that previously he/she had been unable to present these new facts and evidence [ Hungarian Helsinki Committee ]
I. DETENTION
Historic issues
102. Until the end of 2012, many asylum-seekers were held in "immigration detention". The practice and procedures were criticized. In 2013, it was stopped and following a six-month interim period and law reform, a new regime was introduced. From 2013, the new regime concerning the detention of asylum seekers is "asylum detention" [ Cordelia Foundation ]
Detention Centres
103. The OIN operates three permanent asylum detention centres in Békéscsaba, Nyírbátor and Kiskunhalas. The latter one was opened in November 2015, following the closure of the country's largest open reception facility and an asylum detention centre in Debrecen in the same month [ Cordelia Foundation ]
104. The police operate four immigration detention centres, which are located in Győr, Kiskunhalas, Nyírbátor and the Liszt Ferenc International Airport in Budapest, with a capacity of approximately 350-400 persons altogether [ Cordelia Foundation ]
105. Asylum-seekers are not placed in the police detention centres. Undocumented migrants not asking for asylum are housed there [ Cordelia Foundation ]
The Secretary of State observes that there is no reference to detention centres being used for housing. It simply says "refugee-assisting organisations witnessed an increasing pattern of undocumented migrants not asking for asylum in Hungary in 2015".
Reception Centres
106. There are now 4 open reception centres and 2 homes for unaccompanied children. The largest reception centre situated in Debrecen was closed at the end of 2015.
|
|
Situated |
Nature |
Majority |
|
Balassagyarmat |
Near Slovakian border |
Community shelter |
111 |
|
Vamosszabadi |
Near Slovakian border |
|
255 |
|
Nagyfa |
Near Serbian border |
Heated containers located inside prison grounds |
300 |
|
Bickse |
Near Budapest |
|
439 |
[ AIDA ]
Asylum seekers can also request to stay in private accommodation at their own cost; however, they are then not entitled to most of the material reception conditions.
Unaccompanied children are not placed together with adults but are accommodated in specialised structures:
|
|
Situated |
Nature |
Maximum capacity |
|
Fót
|
North of Budapest |
Home |
20 |
|
Hódmezővásárhely |
Near Serbian and Romanian border |
Small house |
18 |
107. The centres are operated by OIN [ AIDA ]
Summer 2015 onwards
108. The recent changes in asylum law and practice have resulted in a further deterioration of the situation, with increasing use of asylum detention made by the Hungarian authorities, often in inadequate conditions. In November 2015, 412 asylum seekers were detained in the three operating asylum detention centres while 525 were in open reception centres, meaning that around 44% of asylum seekers were detained. Official figures show that at other points in time the proportion of asylum seekers in detention was even higher: on 2 November 2015, for instance, 52% of asylum seekers were detained. In contrast, in 2014 a total of 4,806 asylum seekers were detained (11% of the total number of asylum seekers) [ Council of Europe ]
109. The authorities' current focus is on detaining migrants, including asylum seekers, rather than offering them accommodation in open reception centres. The Commissioner was informed that the open reception capacities are being diminished and the asylum detention capacities have been increased, further to the closing down of the open reception centre in Debrecen and the opening of a new asylum detention centre in Kiskunhalas. The Commissioner notes in particular that the Debrecen reception centre was the largest one and was generally considered as the best open reception centre in all of Hungary [ Council of Europe ]
110. The running down of reception centres and non-detention forms of accommodation has been observed by Amnesty International:
" In June 2015, Hungary was already struggling to provide adequate reception for the large numbers of refugees and asylum-seekers entering the country. "We cannot give them blankets and beds. We have even run out of tents," Lajos Kosa, vice president of the ruling party Fidesz declared. Despite this acknowledgment, the government declined to improve or enhance the reception facilities. It refused without any explanation an offer by UNHCR to provide mobile homes with the capacity to accommodate 2,400 persons."
[ Amnesty International ]
111. Radically tightening asylum rules and widely criticised new policies led to an unprecedented situation by the autumn of 2015, when more first-time asylum-seekers were detained than those accommodated at open facilities [ Cordelia Foundation ]
112. Between January and September 2015, 1,860 asylum seekers were detained and as of 2 November 2015 52% of asylum seekers applying in Hungary were detained [ AIDA ]
Dublin returnees
113. Dublin returnees may be placed in asylum detention if one of the grounds for asylum detention under Section 31/A of Asylum Act prevails. Usually the ground invoked for detaining Dublin returnees is "the risk of absconding". Asylum applicants may be detained during the entire asylum procedure, from its start till the final and enforceable decision or court judgment. The maximum duration of asylum detention is six months for adults. For families with children under 18 years of age, asylum detention can last no longer than 30 days. Unaccompanied minors may not be held in asylum detention. After the maximum duration of detention, applicants have to be released from detention and are instructed to stay at an open reception centre [ Hungarian Helsinki Committee ]
114. As regards conditions of reception, Dublin returnees run first of all the risk of being placed in asylum detention, where the conditions give rise to a number of concerns as mentioned above. The OIN has confirmed that in 2015 (up to 26 November) there were 1,338 successful transfers to Hungary under the Dublin III Regulation. Of these, 332 were placed in asylum detention and the others in open reception centres. Civil society organisations reported to the CoE Commissioner for Human Rights that on 15 October 2015, out of the 145 persons held in asylum detention at Debrecen, approximately half were single male adult Dublin returnees. During his visit to the Debrecen asylum detention centre in November, the Commissioner spoke to a number of Dublin returnees who said they had been detained for a few weeks already. All of them claimed that they did not belong in detention as they had not committed a crime and many of them also did not understand the content of the documents they had been handed ordering their detention and the grounds on which this had been done [ Council of Europe ]
Article 3 - general conditions - inhuman and degrading
115. The Asylum Government Decree turned a mandatory requirement of at least 5 sq. metres moving space and 15 cubic metres space per person in the cells of asylum jails into a non-binding recommendation. In addition, under a new provision introduced on 15 September 2015, if an extraordinarily great number of persons seeking protection puts an unforeseen burden on the capacity of the asylum detention centres and/or on the refugee authority, the refugee authority may carry out detention in locations other than specific asylum detention centres [ Council of Europe ] [ Hungarian Helsinki Committee ]
116. Detainees of the Nyírbátor asylum centre had said that the facilities were infested with bedbugs and that, although the temperature was cold (around five degrees centigrade), many people were without sweaters and were wrapped in bed sheets [ Council of Europe ] [ Human Rights Watch ]
117. The Commissioner finds the detention regime applied to asylum seekers particularly worrisome. In Békéscsaba and Nyírbátor, when escorted from the facility to the court for hearings, or on other outings (such as to visit a hospital, bank or post office), detained asylum seekers are handcuffed and escorted on leashes, which are normally used for the accused in criminal proceedings. Detainees also reported that they would be escorted by police officers handcuffed and on a leash to go to the town for instance to collect the money sent to them by their families [ Council of Europe ] [ Human Rights Watch ] [ AIDA ]
118. During his visit to Debrecen in November 2015, the CoE Commissioner for Human RIghts saw a group of detainees handcuffed and on leashes being escorted outside one of the buildings within the centre. Inside the facilities, the Commissioner noticed that every asylum seeker who left the closed part of the building - for instance to see the administration personnel - was accompanied by one security official. At the end of his visit, the Commissioner urged the authorities to improve asylum detention conditions and treat detained asylum seekers in a more humane way [ Council of Europe ]
Article 3 - Vulnerable persons
119. There are concerns as to access to mental health, in particular the failure to triage upon arrival at detention centres. Mental health illness is not screened and it often requires deterioration in health before care may be provided.
120. Mental health care in detention is provided by an NGO, the Cordelia Foundation [ Cordelia Foundation ]
121. Access to healthcare in asylum detention centres leaves much to be desired, particularly as concerns mental health, as there is no psycho-social support available in any of the detention centres. The Commissioner for Human Rights observed during his visit to the (now closed) Debrecen Asylum detention centre, that while a paramedical nurse is present at all times, the doctor is there only for a few hours a day. There are also problems of communication between the medical staff and the detainees due to language barriers and the lack of interpreters [ Council of Europe ]
122. In detention centres, there is a lack of triage upon induction, which is a grave concern as persons with special needs are not excluded by law from being held in asylum detention. In practice, since there is a lack of an early identification mechanism, asylum-seekers with PTSD or other special needs are often found in asylum detention [ Hungarian Helsinki Committee ]
123. In severe cases of auto- or hetero-aggression, detainees are taken to the local psychiatric ward. Due to a lack of interpretation services available the patient is usually released after a short stay and some medical treatment provided. Such emergency interventions, however, do not contribute to detainees' overall mental wellbeing and sometimes even fuel further tensions between them. In the Debrecen asylum detention centre, when a young Algerian man committed self-harm and was brought to the hospital, other inmates' reaction was: " Do we also have to hurt ourselves or others in order to be let out of here?" [ Cordelia Foundation ]
124. In reception centres only basic health care is available for asylum-seekers and there were complaints about the lack of interpretation services when accessing medical services. Psychological services and psychotherapy for traumatized asylum-seekers are exclusively provided by the NGO Cordelia Foundation, to a limited extent within the framework of a European Refugee Fund-supported project. Medical assistance for seriously mentally challenged persons is unresolved. Similarly, residents with drug or other type of addiction have no access to mainstream health care services [ Hungarian Helsinki Committee ]
125. The Cordelia Foundation has identified:
"A cumulative observation of the monitoring teams in Hungary ... is that persons suffering from post-traumatic stress disorder (PTSD), including primary torture victims, can be found in detention in the same proportions as in open facilities. This is primarily due to the fact that [Hungary lacks] a standardised, generally-applied protocol for the identification of vulnerable asylum-seekers (and torture victims and traumatised persons among them) with special reception or procedural needs. In addition, monitors did not encounter any effective ad hoc mechanisms applied in individual facilities either."
"The lack of standard identification procedures is further confirmed by the fact that no properly trained mental health personnel is available in any of the detention centres visited in the project"
[ Cordelia Foundation ]
126. Difficulties are compounded by a lack of interpreters:
"As the majority of the guards and medical staff do not speak English or other foreign languages, the absence of an interpreter in most communication situations between them and detainees represents a major obstacle to successful communication and thus, fuels tension. An example for such tensions is that the medical staff and their patients in detention mutually blamed each other for the poor quality of medical care on the occasion of several monitoring visits in Hungary. When confronted with the complaints of detainees, nurses and doctors in the majority of the centres responded that their patients often do not come for the medicine prescribed to them or take it only as long as symptoms persist, disregarding the prescribed length of treatment (crucial in the case of antibiotics, for instance). At the same time, it is difficult to imagine how detainees could understand these prescriptions, if - in lack of an interpreter - they are not explained to them in a language they understand."
[ Cordelia Foundation ]
The Hungarian Government reports that the OIN spends approximately HUF 5.5 billion for the feeding, health care and appanage of refugees [7/161].
Article 5
127. The problem of arbitrariness of detention orders remains acute. There seems to be no clear explanation as to why some people are detained while others are sent to open reception centres or are allowed to continue their travel to other European countries. Decisions ordering and upholding asylum detention are reportedly schematic, lacking individualised reasoning with regard to the lawfulness and proportionality of detention and failing to consider the individual circumstances (including vulnerabilities) of the person concerned. The necessity and proportionality tests are reportedly not used [ Council of Europe ] [ Hungarian Helsinki Committee ]
128. The problem of vulnerable persons being placed in asylum detention has further intensified in 2015. Vulnerable persons are in principle exempted from asylum detention under the law. However, in the continuing absence of a reliable system for identifying vulnerable asylum seekers, such as victims of torture and human trafficking or those suffering from post-traumatic stress disorder, it is not rare for specialised NGOs to find such vulnerable persons in asylum detention [ Council of Europe ]
129. Another issue of serious concern to the CoE Commissioner for Human Rights is the detention of unaccompanied asylum seeking minors, despite the fact that it is prohibited by law. In his December 2014 report, the Commissioner called on the Hungarian authorities to establish an adequate system of age assessment in order to avoid placing unaccompanied minors in detention. During his November 2015 visit, the Commissioner received numerous concurring reports that some persons who were likely to be minors have indeed been placed in detention following questionable age-assessment tests [ Council of Europe ]
130. Detention of families with children has again become a serious issue. Further to his July 2014 visit, the CoE Commissioner for Human rights noted that while the law provided for the detention of families with minors for a maximum period of 30 days, in practice families with children (as well as single women) were no longer detained in asylum detention centres. He called on the authorities to remove the possibility of detaining families with children from the law. Unfortunately, however, the authorities appear to have taken steps in the opposite direction, with numerous reports indicating that in practice families with children have been detained again since September 2014 [ Council of Europe ]
131. The insufficient use of alternatives to detention seems to be continuing. In January 2015, UNHCR observed that only the applicability of asylum bail was considered in practice, while other alternative measures, such as a regular reporting requirement and a designated place of accommodation, were rarely applied as stand-alone measures. The use of bail is adversely impacted by a lack of clear rules and information provided to the persons concerned [ Council of Europe ]
132. As to the length of detention, further to the legislative changes introduced in September 2015, the detention of asylum seekers is implicitly allowed during the judicial review procedure which would mean that it could be extended beyond the 6 month time limit [ Council of Europe ]
J. EFFECTIVE REMEDY - Article 13 ECHR
Asylum decision
133. The amended Asylum Act introduced new rules for the judicial review of asylum decisions:
a) The deadline to seek judicial review against inadmissibility decisions and decisions on the merits taken in an accelerated procedure is 7 days. Without a functioning and professional legal aid system available for asylum-seekers, the vast majority of them have no access to legal assistance when they receive a negative decision from the OIN. Many asylum-seekers may fail to understand the reasons for the rejection, especially in case of complicated legal arguments, such as the safe third country concept, and also lack awareness about their right to turn to court. The excessively short deadline makes it difficult for the asylum-seeker to exercise her/his right to an effective remedy;
b) The judge has to take a decision in 8 days on a judicial review request against an inadmissibility decision and in an accelerated procedure . The 8-day deadline for the judge to deliver a decision is insufficient for "a full and ex nunc examination of both facts and points of law" as prescribed by EU law. Five or six working days are not enough for a judge to obtain crucial evidence (such as digested and translated country information, or a medical/psychological expert opinion) or to arrange a personal hearing with a suitable interpreter;
c) The personal hearing of the applicant by the judge is not mandatory, although this would be a crucial safeguard in the judicial review procedure, as the first-instance judge delivers a final, non-appealable decision. It is very unlikely that judges will hold personal hearings, given the extremely short time limit in which it may easily prove to be impossible to make the necessary arrangements, including arranging a suitable interpreter, for example. The unreasonably short time limit and the lack of a personal hearing may reduce the judicial review to a mere formality, in which the judge has no other information than the documents provided by the OIN;
d) The judicial review request will only have an automatic suspensive effect on removal if it is against an inadmissibility decision that is based on the application of the safe third country concept, or if it is against a negative decision that was taken in an accelerated procedure that has been initiated on grounds of an illegal entry or stay. The lack of an automatic suspensive effect on removal measures is in violation of the principle established in the consistent case-law of the European Court of Human Rights, according to which this is an indispensable condition for a remedy to be considered effective in removal cases. While rules under EU asylum law are more permissive in this respect and allow for the lack of an automatic suspensive effect in case of inadmissibility decisions and accelerated procedures, the lack of an automatic suspensive effect may still raise compatibility issues with the EU Charter of Fundamental Rights. The lack of an automatic suspensive effect is in clear violation of EU law with regard to standard procedures, as the Asylum Procedures Directive allows for this option only in certain specific (for example accelerated) procedures. In all cases where the 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 her/his removal as she/he is typically without professional legal assistance and subject to an unreasonably short deadline to lodge the request. To make it even worse for asylum-seekers, the rules allowing for a request to grant a suspensive effect to be submitted are not found in the Asylum Act itself, but they emanate from general rules concerning civil court procedures. The amended Asylum Act lacks any additional safeguards for applicants in need of special procedural guarantees with regard to the automatic suspensive effect, although this is clearly required by EU law;
e) In the judicial review request, no reference may be made to new facts or new circumstances and the court may not change the decision of the refugee authority, that is, the court no longer has reformatory powers in asylum cases since 1 August 2015.
[ Hungarian Helsinki Committee ]
Detention
134. The lack of efficient judicial review of asylum detention orders also remains a serious problem. In 2014, the CoE Commissioner for Human RIghts noted the ineffectiveness of judicial review of decisions ordering detention. The Kúria (Supreme Court) concluded in 2014 that the judicial review of asylum detention was ineffective and called for improvements including at the legislative level [ Council of Europe ]
135. Detention may initially be ordered by OIN for a maximum duration of 72 hours. It may be extended by the court of jurisdiction upon the request of OIN, which should be filed within 24 hours from the time it has been ordered [B/29/308 AIDA ]
136. The Court may grant an extension of asylum detention for a maximum duration of 60 days. Every 60 days, the OIN needs to request the court for another prolongation, 8 working days prior to the due date for extension. The court can prolong detention for 60 days repeatedly up to 6 months [ AIDA ]
The hearing in the judicial review procedure is mandatory in the first prolongation procedure (after 72 hours of detention) or if the detained person asks for it when he or she files an objection against the detention order. The court shall appoint a lawyer for the asylum seeker if he or she does not speak Hungarian and is unable to arrange his or her representation by an authorised representative. [B/29/309 AIDA ]
137. Judicial reviews of immigration and asylum detention are conducted mainly by criminal law judges [ AIDA ]
138. The automatic, periodical judicial review of asylum detention performed at lengthy 60-day intervals is clearly ineffective, with no individualised decision-making as Hungarian courts fail to address the lawfulness of detention in individual cases, or to provide individualised reasoning based upon the applicant's specific facts and circumstances [ Hungarian Helsinki Committee ] [ Council of Europe ] [ Hungarian Helsinki Committee ] [ AIDA ]
139. This process reduces the judicial review to a mere formality, in which the judge has no other information than the one provided by the first-instance authority and has to deliver a decision under circumstances that do not allow for a proper judicial assessment [ Hungarian Helsinki Committee ]
140.
The Hungarian Helsinki Committee has considered 64 court decision undertaken in February
2015
2014 and observes:
a) The proceeding courts systematically failed to carry out an individualized assessment as to the necessity and the proportionality of detention and relied merely on the statements and facts presented in the OIN's detention order, despite clear requirements under EU and domestic law to apply detention as a measure of last resort, for the shortest possible time and only as long as the grounds for ordering detention are applicable
b) Both detainees interviewed and the decisions observed by the HHC confirmed that the state-funded, ex officio appointed case guardians (local attorneys) play a passive role in the judicial review process. This violates the equality of arms principle
c) Four court decisions contain a date of birth which indicates an age lower than 18 years. Nevertheless, none of the decisions questioned the lawfulness of detention of the persons concerned, nor did they refer to any age assessment process or evidence proving the adult age of the asylum-seeker concerned
[ Hungarian Helsinki Committee ]
141. Judicial clerks can also proceed and decide in these cases. Clerks are not yet appointed as judges and have significantly less judicial experience [ Hungarian Helsinki Committee ]
K. BORDER FENCE
142. During the summer of 2015, Hungary constructed a fence on the 175-kilometre long border with Serbia, with the explicit aim to divert refugee and migration flows from this border section elsewhere. The fence, which was completed on 15 September, consists of two lines of fences: a smaller barbed wire fence and a 3-metre tall fence right next to each other [ Hungarian Helsinki Committee ]
143. The Hungarian government invested more than 100 million euros on building the fence [ Amnesty International ]
144. The amended rules allow for the construction of so-called transit zones in a maximum distance of 60 metres from the frontier. The transit zone is where immigration and asylum procedures are conducted and where buildings required for conducting such procedures and housing migrants and asylum-seekers are located [ Hungarian Helsinki Committee ]
145. The Hungarian authorities built a razor-wire fence first at the border with Serbia and then at the border with Croatia, and created makeshift transit zones. An "extremely" accelerated asylum procedure (referred to as the border procedure) is applied. Under this procedure, asylum applications are hardly ever examined on the merits and some asylum seekers have seen their claims processed in less than a day and have been sent back to Serbia directly from the transit zone. According to reports, only a few asylum seekers were allowed to enter through the official crossing border points. In one serious incident that occurred on 16 September 2015 at the Röszke crossing point, water cannons and tear gas were used by the Hungarian authorities against migrants trying to enter Hungary. [ CoE ]
146. Although Hungary has the prerogative to control the access of persons to its territory and a legitimate interest in doing so, it must do so in conformity with its obligations under international human rights law and EU law to respect the rights of those requesting international protection [ Amnesty International ]
147. There is evidence of "push-backs" occurring at the transit zones. Many asylum seekers have had their asylum applications declared inadmissible on "safe Third-Country grounds" within a few hours of the applications being made. They are then expelled and physically accompanied by a police officer to the Serbian border [ AIDA ]
148. This is an illegal practice. The Asylum Procedures Directive and the corresponding Hungarian rule require people returned to a "safe third country" to be equipped with a document in the language of the destination country explaining that no in-merit examination of the asylum application took place [5] [ AIDA ]
149. The Hungarian Helsinki Committee has serious concerns regarding the legal status of the transit zones. The official government position, as communicated in the press, is that asylum-seekers admitted to the transit zone are on "no man's land", and persons who were admitted and later "pushed back" in the direction of Serbia have never really entered the territory of Hungary. Consequently, such "push-backs" do not qualify as acts of forced return. This position has no legal basis: there is no "no man's land" in international law; the concept of extraterritoriality of transit zones was clearly rejected by the European Court of Human Rights in the Amuur v France [6] case as well. The transit zone and the fence are on Hungarian territory and even those queuing in front of the transit zone's door are standing on Hungarian soil, as also evidenced by border stones clearly indicating the exact border between the two states [ Hungarian Helsinki Committee ]
150.
The border procedure does not offer an effective remedy against negative first-instance decisions. Asylum-seekers usually arrive at the border following a painful journey of several weeks of months. They are exhausted, many of them traumatised. As rejections are passed in less than an hour, they have no time to have a rest and get prepared for the interview, and even less for preparing a proper appeal. The asylum-seekers the Hungarian Helsinki Committee interviewed after rejection did not understand the reasons for the rejection (an easily understandable consequence given the complexity of the legal question at stake - the safe third country concept - for anyone without specific training in refugee law), and their right to turn to court. In such a context, the 7-day time limit to submit a judicial review request is excessively short. The excessively short deadline makes it difficult for the asylum-seeker to exercise her/his right to an effective remedy and thus it questions the rule's compliance with EU law
[B/15/
106
108
Hungarian Helsinki Committee
]
The Secretary of State observes that the Hungarian Government's stated aim in reinforcing its borders was to protect them.
Mr Orbán explained that "The Hungarian Government looks upon the issue of the fence as an issue of the protection of Hungary's borders".
He also confirmed that the legal channels remained open: "Hungary maintains its legal border crossing stations, and intends to extend and develop them. In other words, we are not closing down border crossing stations, but we shall prevent illegal border-crossing with any means possible".
L. PROSECUTION FOR ILLEGAL CROSSING OF BORDER
151. In September 2015, the Hungarian Parliament introduced new criminal offences related to the illegal crossing of the razor-wire border fence, punishable with up to several years of imprisonment, accompanied by a special fast-track criminal procedure that presents shortcomings in terms of fair trial standards. At the end of his November 2015 visit, the COE Commissioner for Human Rights urged the Hungarian authorities to remove these newly created criminal offences, stressing that immigrants and asylum seekers are not criminals and should not be treated as such [ Council of Europe ]
152. Amendments to Act C of 2012 on the Criminal Code. Prohibited crossing of the border closure: unauthorized entry into the territory "protected by the border closure". Under the basic definition this criminal act is punishable by up to 3 years imprisonment. If committed armed, or with the use of weapons, or while part of a riot (previously the requirement only existed under insurrection): the sentence will range between 1 - 5 years; the sentence ranges from 2 - 8 years if committed armed, with the use of weapons and as part of a riot. If the act results in a death the sentence ranges between 2 - 10 years [ Hungarian Helsinki Committee ]
153. The law further criminalizes "damaging of the border fence", an offence punishable with between one to five years imprisonment [ Amnesty International ]
154. Although the cases related to the new crimes of "prohibited crossing of the border" and "damaging the border barrier" are likely to involve foreigners, the law does not oblige the authorities to provide a written translation of essential documents such as the indictment and the court decision on the prison sentence as required by the EU Directive on the right to interpretation and translation in criminal proceedings and by international fair trial standards. [ Amnesty International ]
M. DECISIONS IN OTHER MEMBER STATES
155. Several national courts have suspended Dublin returns to Hungary in recent months [ Council of Europe ]
Denmark
156. On 9 October 2015, the Danish Refugee Appeals Board decided to suspend all Dublin transfers to Hungary and made a request to the Danish Immigration Service to launch a general consultation on whether Hungary presently accepts Dublin returnees from other Member states, as well as whether Hungary observes its obligations under international law [ Judgment ]
The Secretary of State notes that the Danish Committee for Refugees requested the Danish Immigration Service to "seek more general information as to whether Hungary would continue to accept Dublin returnees from other Member States and whether Hungary would continue to fulfill its international obligations". It only decided to suspend "all accepted Dublin cases with Hungary as their country of reception until the answer to the consultation has been received".
Germany
Decision of 02.10.2015 case no. 10 L 923/15. A Administrative Court of Minden
157. The amendments to Hungarian safe-Third Country legislation introduced in August 2015 creates a risk that the Applicant would be deported to Serbia, Macedonia or Greece without substantive examination of his grounds for seeking asylum because the Hungarian authorities deem these countries to be safe Third Countries. Further, there was no effective remedy against a decision to declare an asylum claim inadmissible on safe Third Country grounds. Concerns were also raised as to detention practice.
158. The Administrative Court determined that Hungarian asylum system currently demonstrates serious indications of systems flaws [ Judgment ]
Decision of 04.09.2015 case no. 4 L 810/15.A Administrative Court of Potsdam
159. The Court held that the asylum procedures in Hungary constituted systemic deficiencies. If returned to Hungary, the Applicant would face the risk of removal to Greece without receiving an appropriate examination of his grounds for seeking asylum in Hungary.
160. The Court cited the deep concern of the UNHCR that the amendments to the Hungarian asylum legislation permitted the removal of asylum seekers to potentially unsafe Third Countries [ Judgment ]
Luxembourg
Decision No. 36966 (19 September 2015)
161. The decision to transfer an Afghan asylum seeker to Hungary was annulled on the basis of systemic deficiencies in the asylum procedure and reception conditions. The Hungarian legislative and political framework for asylum seekers was labelled as a draconian regime [ Judgment ]
The Netherlands
201507248/1/V3 (26 November 2015)
162. The Dutch Council of State allowed the appeals of two asylum seekers to prevent their transfer to Hungary, under the Dublin III Regulation (with reliance on M.S.S. v Belgium and Greece) the Council of State asked for further investigation into whether the situation of Dublin returnees in Hungary would lead to a violation of the European Convention on Human Rights [ Judgment ] [ CoE ]
163. Several other courts have suspended or quashed decisions to transfer asylum-seekers to Hungary (translations not presently available)
The Secretary of State observes that this ECRE paper specifically does not discuss the cases in which a transfer was allowed to Hungary. It states as follows:
"Given the aim of the paper, cases where a transfer was ultimately allowed to Hungary will not be discussed. However, it is worth signaling that in 2015 administrative authorities did undertake transfers to the country, as evidenced by recent statistics that out of 39,299 take charge and take back requests from Member States since January 2015 - November 2015, 1,338 successful transfers actually took place."
[ ECRE ]
Austria
Federal Administrative Court, Decision of 30 September 2015, W168 2109023-1
Federal Administrative Court, Decision of 30 December 2015, W185 2110998-1
Federal Administrative Court, Decision of 28 September 2015, W185 2114671-1 W105 2112758-1; W168 2110928-1 29.09.2015
Federal Administrative Court, Decision of 24 September 2015, W185 2114721-1
Federal Administrative Court, Decision of 24 September 2015, W 1442114716-1/ 3 E
Belgium
Council of Alien Law Litigation, Decision of 15 December 2015, 158.631, 158.621 and 181 584
Council of Alien Law Litigation, Decision of 13 December 2015, 158 281
Germany
Cologne Administrative Court, Decision of 22 December 2015, 2 K 3464/15.A
Arnsberg Administrative Court, 4 November 2015, 6 L 1171.15.A
Dusseldorf Administrative Court, Decision of 21 October 2015, 13 L 3465.15.A
Minden Administrative Court, 5 October 2015, 1 L 756.15.A
Minden Administrative Court, Decision of 2 October 2015, 19 L 923/15.A
München Administrative Court, 11 September 2015, M_23_K_15_50045
Düsseldorf Administrative Court, Decision of 11 September 2015, 8 L 2442.15.A
Minden Administrative Court, Decision of 10 September 2015, 3 L 806.15.A
Cologne Administrative Court, 8 September 2015, 18 K 4584/15.A
Potsdam Administrative Court, 4 September 2015, 4 L 810/15.A
Düsseldorf Administrative Court, Decision of 3 September 2015, 22 L 2944.15.A
Düsseldorf Administrative Court, Decision of 20 August 2015, 15 L 2556/15.A
Augsburg Administrative Court, Decision of 18 August 2015, Au 6 K 15.50155
Augsburg Administrative Court, Decision of 18 August 2015, Au 6 K 15.50155
Würzburg Administrative Court, Decision of 13 August 2015, W 7 S 15.50248
Saarland Administrative Court, Decision of 12 August 2015, 3 L 816.15
Düsseldorf Administrative Court, Decision of 11 August 2015, 22 L 2559.15.A
Frankfurt/Oder Administrative Court, Decision of 7 August 2015, VG 3 L 169/15.A
Kassel Administrative Court, 7. August 2015, 3 L 1303/15.KS.A
Administrative Court Augsburg, Decision of 3 August 2015, Au 5 K 15.50347
Kassel Administrative Court, 24 July 2015, 6 L 1147-15.KS.A
Potsdam Administrative Court, 20 July 2015, VG 6 L 356/15.A
Düsseldorf Administrative Court, 17 July 2015, 8 L 1895/15.A
München Administrative Court, 17 July 2015, M 24 S 15.50508
Munster Administrative Court, Decision of 7 July 2015, 2 L 858/15.A
Switzerland
Federal Administrative Court, Decision D-6089/2014 of 10 November 2014
Federal Administrative Court, Decision D-6576/2015 of 29 October 2015
Federal Administrative Court, Decision E-6571/2015 of 27 October 2015
Federal Administrative Court, Decision E-6626/2015 of 22. October 2015
Federal Administrative Court, Decision E-6106/2015 of 1 October 2015
Federal Administrative Court, Decision E-5961/2015 of 29 September 2015
Federal Administrative Court, Decision E-5961/2015 of 29 September 2015
[In all of these decisions, the case was remitted to the first instance authority to provide further clarifications on the current situation in Hungary, they are therefore not final]
[ ECRE ]
[1] Recognition as a refugee under the 1951 UN Convention on the Status of Refugees
[2] A form of protection provided to those who would be at risk of serious harm if returned to their home country, but who do not fit the strict definition of a refugee. It is provided by European Directive 2004/83, the "Qualification directive"
[3] A form of protection to those persons unable to demonstrate a claim for asylum but who would face a serious risk to life or person if returned to their home State.
[4] Montserrat Feixas Vihé, UNHCR's regional representative for Central Europe
[5] Directive 2013/32/EU, Article 38(3)(b)
[6] Amuur v France (1996) 22 EHRR 533