Helsinki Committee: Changes to asylum law violate international practices

August 10, 2015

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The Hungarian Helsinki Committee, a human rights monitoring legal aid NGO, released a report on Friday on the changes to Hungary’s asylum law coming into effect on August 1, 2015. The organization concludes that the legal changes “have the potential to dismantle the Hungarian asylum system and prevent refugees from having access to international protection in the country. Some provisions and policies are in breach of EU law and/or go against the clear principles established by the European Court of Human Rights or UNHCR [United Nations High Commissioner for Refugees] guidance”.

In July 2015 the Hungarian parliament hastily ratified changes to a series of laws, including the Hungarian Asylum Act and the implementing Asylum Government Decree, and adopted the National List of Safe Countries. These changes, argues the Hungarian Helsinki Committee, have the potential to dismantle Hungary’s asylum.

Why are these changes bad?

By adopting a national list of safe countries, which includes Serbia, the Hungarian government puts 99 percent of asylum seekers on the fast-track to having their asylum claims rejected because the overwhelming number of refugees arrive through Serbia. This practice, argues the Hungarian Helsinki Committee, goes against EU norms because no other Member State regards Serbia as a safe third country for asylum seekers because it lacks an asylum request processing system.

“The amendment to the Asylum Act obliges the Office of Immigration and Nationality to reject as inadmissible all asylum claims lodged by applicants who came through a safe third country, since the applicant ‘could have applied for effective protection there’. As over 99 percent of asylum-seekers cross into Hungary from Serbia, this will mean near automatic rejection at first glance of over 99% of asylum claims, without any consideration of protection needs,” writes the Hungarian Helsinki Committee.

The law requires applicants to provide proof that they could not provide an asylum claim in Serbia. The Hungarian Helsinki Committee says this represents an unrealistically high standard of proof because an “asylum-seeker typically smuggled through a country unknown to them is extremely unlikely to have any verifiable, ‘hard’ evidence to prove such a statement”.

This problem is further complicated by the fact that the vast majority of asylum-seekers have no access to professional legal aid during the asylum procedure in what the Hungarian government now considers a “safe third country”.

“It is absurd and conceptually impossible to expect an asylum-seeker to prove that, for individual reasons, they had no access to a functioning system in Serbia which in reality does not exist,” writes the committee.

What is more, Hungarian laws now require the Office of Immigration and Nationality to deliver a decision within 15 days. The Helsinki Committee argues this short deadline adds to the presumption that no individualized assessment of the asylum-seeker’s request will be carried out.

The Helsinki Committee says these amendments breach the definition of a “safe third state” under EU and Hungarian law, and will likely lead to “the massive violation of Hungary’s non-refoulement and protection obligations enshrined in the 1951 Refugee Convention, Article of the European Convention on Human Rights, and Articles 18 and 19 of the EU Charter of Fundamental Rights.”

Accelerated procedure rushes decision-making process

According to the Helsinki Committee, the law stipulates 10 different grounds for referring an admissible asylum claim to an accelerated procedure which has a deadline of 15 days. These accelerated procedures come with the high risk that they will be used to categorically reject otherwise admissible asylum claims.

By stipulating loosely definable and arbitrary requirements of proof for the asylum-seekers, the 15-day accelerated procedure also provides insufficient time for the asylum-seekers to actually prove their case “without prejudice to an adequate and complete examination being carried out” or to the applicant’s effective access to basic guarantees provided for in the EU asylum legislation.

Further complicating the accelerated procedure is that the amended Hungarian legislation does not set forth any specific safeguard that would prevent the application of accelerated procedures to asylum-seekers in need of special procedural guarantees.

New rules for judicial review of asylum decisions

The Helsinki Committee argues that the amended Asylum Act introduces new rules for the judicial review of asylum decisions which are likely to render the judicial review of first-instance asylum decisions ineffective for a number of reasons.

The amended law imposes a 3-day time limit to submit a judicial review request. The excessively short deadline, argues the Helsinki Committee, makes it difficult for the asylum-seeker to exercise his/her right to an effective remedy.

Furthermore, under the new law a personal hearing is no longer mandatory in court procedures.

The Helsinki Committee argues that 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 other information than what is provided by the first-instance authority.

Detention in potentially worse conditions

Asylum-seekers can be detained initially for an additional 12 hours, up to a total of 36 hours, which presents added burdens on the already overburdened detention facilities which operate in inadequate conditions.

The Helsinki Committee also points out that the government’s amended legislation now makes detention facility requirements (which would otherwise ensure humane conditions) in a non-binding recommendation, whereas the earlier version of the law made such requirements mandatory. This will lead to Hungarian immigration authorities being authorized to tolerate serious overcrowding in asylum facilities, which is a serious violation of both the EU Charter of Fundamental Rights and the European Convention on Human Rights.

The amended laws also cancel the immigration authority’s obligation to provide accommodation for asylum-seekers without means to pay for their private accommodation by enabling the immigration authority to designate the territory of a county as a place to stay for the asylum-seeker, instead of a reception or detention center. This provision, says the Helsinki Committee, may increase the danger of homelessness among asylum-seekers in Hungary.

Asylum seekers obliged to contact their country of origin

The majority of asylum-seekers arrive in Hungary with no valid identification documents. This is due to a variety of reasons, such as IDs not even existing in the main countries of origin (such as Afghanistan and Somalia), or because the asylum-seeker had to flee the origin country without the documents.

The Hungarian immigration authority can require the asylum-seeker to contact their country of origin during the asylum procedure to establish contact with authorities there.

The Helsinki Committee says this “unprecedented provision goes against the most basic prohibition in asylum law”  because it may expose asylum-seekers and their families and friends to inhumane treatment, or even torture or death.

Furthermore, argues the committee, it is completely unrealistic to obtain genuine documents or other relevant proof within a few days (as in the case of the accelerated procedures) from war-torn countries such as Syria, Iraq or Afghanistan, which lack any modern communication infrastructure as well as functioning public administration.

Why is the Helsinki Committee’s report important?

The Hungarian government has on numerous occasions stated that its treatment of asylum-seekers is taking place in full compliance with Hungarian and international law. The Helsinki Committee, which has provided free legal aid to asylum-seekers in Hungary since 1998, is perhaps the strongest NGO advocate for asylum-seekers rights. Its scathing report offers numerous arguments to  challenge the government’s claims that asylum-requests are being processed in accordance with Hungarian and international law.