Lessons from the Response of German Courts to Hungary’s Asylum Procedures

Jennifer NelsonRefugees_in_Hungary_1
Second year law student at the University of Michigan Program in Refugee and Asylum Law and RefLaw.org Articles Editor

Last summer, German courts called attention to Hungary’s deplorable treatment of refugees by preventing a number of transfers under the Dublin III Regulations to Hungary in July and August. Within the European Union, the recast Dublin Regulation exists to “ensure that one Member State is responsible for the examination of an asylum application, to deter multiple asylum claims and to determine as quickly as possible the responsible Member State to ensure effective access to an asylum procedure.” In most cases, the first EU country entered will be responsible for examining an application for asylum. When refugees enter the EU through one country and subsequently move on to another after registration as an asylum seeker, the refugee can be returned to the country of entry in what is called a “Dublin transfer.” Hungary, however, unilaterally decided to stop accepting such transfers this past June.

Citing deficiencies in Hungary’s asylum procedures and reception conditions, German courts have nonetheless found in a number of first instance decisions that recent changes in procedure may lead to a significant risk of inhuman and degrading treatment for any asylum seeker returned to Hungary in violation of Article 3(2) of Dublin III as within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union (“Charter”). Such deficiencies include Hungary’s designation of Serbia as a safe third country which raise concerns about violating non-refoulement, as well as newly imposed fast-tracked procedures for decisions, reduced safeguards during the judicial review process, extension of the maximum time allowed for initial detention, and new conditions for determining whether an asylum-seeker may be obliged to contact her country of origin for identity and documentary evidence. Additionally, there is real concern over Hungary’s xenophobic attitudes and arbitrary practices regarding detention of asylum seekers.

In September of last year, this trend continued when the Administrative Court of Dusseldorf in Germany found that an asylum seeker would face a real danger of being refouled if transferred to Hungary under Dublin III. As such, the court ruled against an accelerated transfer of the asylum seeker in question, relying on reports of systemic failings in Hungary’s asylum system provided by UNHCR, the Hungarian Helsinki Committee, Amnesty International, and Asylum Information Database. These reports, coupled with the recent changes in Hungarian asylum law, led the court to order further examination of whether the applicant would be in danger of being refouled based on individual circumstances.

An additional legal challenge to Hungary’s treatment of asylum seekers came last September in the form of a ruling that Hungary was not safe for asylum seekers in the case of Ra 2015/18/0113 to 01201 before the Austrian Administrative Court. The case involved a single Afghan mother with several minor children who sought appeal of a Federal Administrative Court (BVwG) decision regarding her family’s application for asylum. The BVwG did not find merit in the applicant’s argument that return to Hungary would result in a violation of her family’s rights under Article 3 of the European Convention on Human Rights, namely that they would be met with inhuman and degrading treatment. In looking to the decision of the European Court of Human Rights in Mohammadi v. Austria, as well as country reports from 2014 and a 2015 report on the detention of asylum seekers in Hungary, the court did not find that there were systemic shortcomings in the Hungarian asylum system that would warrant concern for an Art. 3 violation. Having been granted extraordinary permission to appeal to Austria’s Supreme Court, the Federal Administrative High Court of Austria (VwGH), the applicants argued that Austria should have exercised its discretion to consider the application for asylum under Article 17(1) of Dublin III, despite Hungary’s responsibility as the country of entry, in light of the risks of facing inhuman and degrading treatment upon return to Hungary. Drawing on a decision of the Administrative Court in Berlin from January 2015, the VwGH considered findings of systemic deficiencies in the Hungarian asylum procedure, the findings of European Asylum Support Office on the state’s reception capacity, as well as problems caused by significant increases in asylum applications. It ruled that the statutory presumption that Hungary is safe for asylum seekers should indeed be rebutted in this case. As such, the VwGH concluded that the above-mentioned conditions, combined with the particular vulnerability of the applicants[1] , indeed were dire enough to rebut the presumption that a refugee would be safe upon return to a Member State.

Unfortunately, the dire situation in Hungary has become clearer and there is less room for indecision. For instance, the Minden Administrative Court made a ruling in October of last year departing from previous rulings which had failed to find systemic flaws in the Hungarian asylum system. In this instance, the court found that Hungary’s new laws created a risk of refoulement, that there were serious indications that certain groups of refugees would be denied effective access to asylum procedures, that the grounds for imprisonment of refugees had been dangerously expanded, and finally that the Hungarian authorities might simply be unable to provide refugees with basic amenities due to inadequate public resources. Likewise, the Oldenburg Administrative Court found in October that a Dublin transfer to Hungary could not take place due to systemic flaws representing violations of Article 4 of the EU Charter and Art. 3(2) of Dublin III. Most recently, Nils Muiznieks, Council of Europe Commissioner for Human Rights, submitted a third party intervention in two cases before the European Court of Human Rights relating to Dublin transfers to Hungary from Austria. In his intervention, he refers to the Dusseldorf case previously discussed, as well as a case from the Netherlands which speaks to concerns of human rights violations and non-refoulement concerns in Hungary. Muianieks’ intervention suggests that German courts, in responding appropriately to the worsening conditions in Hungary, are reaching beyond their own borders to affect broader change within the European Union.

 

[1] This was found in light of Tarakhel v. Switzerland, a case in which the European Court of Human Rights found that the presumption that a Member State will receive a refugee in compliance with Article 3 of the European Convention of Human Rights may be rebutted. In particular, Tarakhel holds that a refugee’s individual circumstances might result in there being a real risk of being subjected to a violation of her Article 3 rights.

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