HUNGARY: End of visit statement of the UN Special Rapporteur on the human rights of migrants, Felipe González Morales

(OHCHR) Budapest, 17 July 2019

Good afternoon ladies and gentlemen. I would like to start by thanking the Government of Hungary for the invitation extended to me for this official visit. Conducting country visits to monitor the human rights situation of migrants and to engage in a dialogue with Governments and civil society is of outmost importance for my mandate. I would also like to express my appreciation to the Hungarian authorities for their support and cooperation provided prior to and during the visit. I was granted access to all the facilities as requested and had the opportunity to meet with all relevant authorities. During my visits to immigration facilities throughout the country, I was able to conduct private interviews with migrants. In this regard, I extend my gratitude to every migrant who has shared his or her personal testimonies with me.

The objective of my visit was to assess existing laws, policies, and practices in relation to migration governance and their impact on the human rights of migrants of all categories, including migrant workers, asylum seekers and migrants in an irregular situation.

During my eight-day visit, I met with relevant governmental authorities, representatives from the judiciary, UN agencies, funds and programmes, the European border and coastguard agency, civil society, as well as migrants. In Budapest, I had meetings with representatives from the Ministry of Foreign Affairs and Trade, the Ministry of Justice, the Ministry of Interior, the Hungarian Police, the National Directorate for Aliens Policing (former Immigration and Asylum Office), the Constitutional Court, the Budapest Administrative and Labour Law Court and the Budapest Regional Court. I also had a chance to exchange views with the Deputy State Secretary for Migration Challenges. In F­ót, I met with representatives of the Ministry for Human Capacities, the Director of Károly István Children’s Centre, and the Child Protection Guardian of unaccompanied migrant children. In Szeged, I met with the Vice-President of the Regional Court. Unfortunately, I did not have a chance to meet with representatives from the Office of the Commissioner for Fundamental Rights (Ombudsperson); I contacted them directly and was told that they were moving office.

In addition to meetings with relevant interlocutors, I also conducted visits to facilities for migrants. These include the transit zones at Röszke and at Tompa, the Károly István Children’s Centre in Fót, the closed asylum reception facility in Nyírbátor, the open asylum reception centre in Vámosszabadi, and facilities for migrants under the alien policing authorities in Nyírbátor and Győr. These visits enabled me to hold private interviews with migrant women, men, girls and boys in difficult situations.

Security and human rights

Hungary experienced a massive influx of migrants between 2013 and 2016. At its peak in 2015, more than 175,000 asylum applications were submitted to the Hungarian immigration authorities. Following the mass arrival of migrants in the country, an anti-migration discourse has become pervasive in both official and public spheres. In campaigns run by the Government, migrants have often been associated with security threats, including terrorism. Moreover, in response to the migration challenge, the Government has been taking a security-oriented approach, which is reflected in a series of very restrictive measures adopted by the authorities in the area of migration governance. This trend continues to be reinforced: recently, the former Immigration and Asylum Office changed its name to the National Directorate for Aliens Policing and half of its personnel became police officers and are subject to the regulations set up in the Police Act. The change of name and affiliation reaffirms the security-oriented approach.

It is important to note that security concerns can be legitimate grounds for States to adopt pertinent measures, provided that the fundamental rights of all, including migrants, are respected. I notice with concern that this security-oriented approach regarding migration governance is presented and implemented with little consideration to the human rights of migrants in Hungary. Furthermore, many of the measures adopted seem totally disproportionate to the current situation, overemphasizing the security approach.

Asylum procedure and the transit zones

In September 2015, the Government of Hungary declared a “crisis situation due to mass immigration” in two counties on its Southern border. In March 2016, Hungary expanded the scope of the “crisis situation” and declared it nationwide. In the meantime, a number of legislative amendments have been introduced in response to the “crisis situation”. Hungary expedited legislation through Parliament amending the Act on the State Border, to permit the establishment of “transit zones” at Hungary’s borders that constitute an external border of the Schengen area.

Since then, the “crisis situation” has been continuously extended every 6 months and is currently effective until 7 September 2019. In view of its forthcoming expiration, I strongly recommend Hungary to re-evaluate its current reality in relation to migration, terminate immediately the so-called “crisis situation” and lift relevant restrictive measures.

On 15 September 2015, two transit zones on Hungary’s southern border with Serbia became operational, one at Röszke, the other one at Tompa. On 28 March 2017, additional amendments applicable during the “crisis situation due to mass immigration” were introduced to the Asylum Act. Based on these amendments, asylum applications from anyone who irregularly enters Hungary can only be submitted in the transit zones,

The relevant authority issued an interim decision designating the territory of the transit zones as “a place of accommodation” for the asylum seekers. Consequently, all asylum applicants, including families with small children and unaccompanied and separated children of and above the age of fourteen, are obliged to stay in the transit zones for the entire duration of the asylum procedure until a final decision on their application is issued or, in case of a Dublin transfer, until the decision becomes enforceable.

In 2018, legislative amendments introduced a new inadmissibility ground for asylum claims. As a consequence, the claims submitted from individuals who have transited through Serbia were all considered inadmissible due to Serbia’s status as a safe third country as considered by Hungary. Asylum seekers were given merely 3 days to challenge the inadmissibility of their claims and prove that Serbia is not a safe country for them.

On the day when I visited the transit zones at Röszke and Tompa, there was not a single migrant approaching Hungary from the Serbian side of the border. I saw razor-wire fence surrounding not only the perimeter of the transit zones but also each sector within the zones. Moreover, razor wire is placed on the roof of the living containers that accommodate unaccompanied asylum-seeking children, asylum-seeking families with small children, and pregnant women.

At present, there are approximately 280 individuals in the transit zones. Most of them are families who have been on the journey for years. Over 60% of those in the transit zones are boys and girls, including infants, unaccompanied asylum-seeking children and children with special needs. Many of them have been detained in the transit zone for over a year.

Asylum seekers’ movements within the transit zones, whether to visit other sectors, to meet with their attorney or to visit the medical unit, are escorted by armed security guards. This also applies to toddlers under 3 years-old. One pregnant woman was escorted by 17 guards on her way to the hospital for a regular pregnancy check-up. Asylum seekers, including young children are confined in their designated sectors. Interaction between the sectors is very limited. Visit to other sectors is only allowed for up to one hour per day upon request.

While the general hygienic conditions of the transit zones seems to be satisfactory, I am concerned about the lack of appropriate medical and psychological care and treatment. Based on the information collected during my visit, a doctor is only present in the transit zones a few hours a day, there is no gynaecologist or paediatrician, while a large percentage of the asylum seekers are women and children. Women and children with serious chronic diseases and cancer remain untreated for months. According to the information gathered, when asylum seekers manage to consult a doctor, the consultation is often conducted without interpretation, and many reported to have difficulties in communicating with the doctor. There are other cases where the doctor simply failed to provide a diagnosis. Access to specialist or hospital check-up is very limited. One asylum-seeking woman recently had an operation at the local hospital where she was handcuffed to the bed for 5 days without sufficient food.

During my visit, asylum seekers in the transit zones expressed their frustration and desperation about their situation. I am concerned that all asylum seekers, including pregnant women, children as young as 8 months and unaccompanied minors between 14 and 18 years old, are automatically detained in the transit zones for the entire duration of the asylum procedure. The severe restrictions on the freedom of movement of asylum seekers as well as the carceral environment in the transit zones qualify as detention in nature. Although the Hungarian authorities do not consider the transit zones as places of detention, departure from the transit zone is only possible in the direction of Serbia, very often resulting in the termination of the asylum application. Automatic placement of asylum seekers in detention is in breach of international human rights standards. Restriction of movement of asylum seekers must be necessary, reasonable, proportionate, and based on individual assessment. The availability, effectiveness and appropriateness of alternatives to detention must be considered before recourse to detention.

I also learned that the judicial authorities would be on summer holidays for about 4 to 6 weeks. At the transit zones, asylum seekers who have cases pending before the relevant authorities are very concerned that during this period they would remain in detention without any advance on their asylum procedures.

Asylum-seeking children with their family and unaccompanied asylum-seeking children between 14 and 18 years old are deprived of the safeguards contained in relevant domestic laws in the case of a “crisis situation due to mass immigration”.

Under regular circumstances, the Asylum Act contains a general prohibition of detention of unaccompanied asylum-seeking children, and families with children can only be detained as a last resort, for up to 30 days. I urge Hungary to end the practice of administrative detention of children, whether with families or unaccompanied, and explore alternatives to detention for families with children and unaccompanied children because detention is never in the best interests of the child.

I also visited the Open Asylum Reception Centre in Vámosszabadi, where there are currently 11 individuals including 5 children. They are allowed to move freely within and outside the facility. The Open Centre has a large garden, which provides a playground for children. It is also equipped with a kitchen, classrooms and a medical unit. The centre has a capacity to accommodate between 200 and 300 individuals. I urge Hungary to consider, as a priority, transferring those families with children detained at the transit zones to the open centre.

I received testimonies from many asylum seekers who appealed the negative decision on their claims. I am concerned about the lack of substantive judicial review on the lawfulness of the detention and the asylum decision. Asylum seekers are given only 3 days to submit an appeal against a rejection decision and the reviewing courts do not have the power to alter the administrative decision on the asylum claim. In addition, according to the information gathered, asylum seekers are not given an actual chance to appear before a judge, neither physically nor through video. Although there is a designated container as court at each transit zone, none of the asylum seekers to whom I had spoken have been to this container or seen a judge, including those who have been there for over a year. Prolonged administrative detention of asylum seekers without the possibility of an administrative or judicial review or remedy amounts to arbitrary detention. I strongly encourage holding regular hearings in person by competent judges in the transit zones. In addition to ensuring adequate judicial review, this would send a powerful message about the independence of the judiciary vis-à-vis the immigration authorities, contribute to the transparency of the transit zones, and provide some relief to those held at the facilities.

I am particularly concerned about those who are in the removal procedures. Asylum seekers in the aliens policing procedure are held in a separate sector in the transit zones. Adult men held in this sector are sometimes denied food provisions. Also very important, rejected asylum seekers are at risk of refoulement. Many of them are threatened to be deported to their countries of origin where they may face persecution. Earlier this year, three families from Afghanistan were nearly put on a flight provided by Frontex to be deported to Afghanistan. Although the flight was cancelled, I am concerned that Hungary did not conduct an individual assessment on the risk of refoulement before placing these individuals on the removal procedure to their country of origin. In this regard, I recommend that Frontex strengthen the human rights provisions included in their joint operational plans with Member States and enhance the monitoring function of its fundamental rights office to assist States in upholding the principle of “non-refoulement” provided by international law.

Restrictions on civil society working on migrants’ rights

During my visit, I met with civil society organizations working on the protection and promotion of the human rights of migrants. I am grateful for their important contribution to addressing the issue of migration from a human rights perspective at a time where global cooperation and solidarity is required to ensure the respect of the rights of migrants. Democracy and the Rule of Law can only thrive with an independent, dynamic and strong civil society.

Regrettably, in the past years, civil society organisations working on migrants’ rights in Hungary have experienced multiple obstacles in carrying out their legitimate and important work.

In July 2018, a criminal offence on “supporting and facilitating illegal migration” was introduced to the Criminal Code. This vaguely defined offence appears to criminalise support or assistance provided by civil society organisations to asylum seekers in exercising their legal right to submit an asylum application. The lack of foreseeability of the application of this provision creates a chilling effect on civil society organisations engaged in activities that could fall under this offence depending on the application and interpretation of the provision.

Furthermore, the Government also introduced a so-called special tax on immigration. Based on the new regulation, a tax of 25% has to be paid on donations financing immigration supporting or promoting activities in Hungary. However, the definition of an “immigration supporting activity” is very broad and includes “organising education” and activities portraying “immigration in a positive light”. While I understand that so far this tax has not been actually imposed on any civil society organization, the possibility of having to pay a 25% tax on donations creates uncertainty and a chilling effect both on organisations and their donors.

Several organisations that used to receive Government funding for projects providing humanitarian or integration support to migrants, asylum seekers and refugees, do not receive any funds from the Government any more. Many of them had to stop their activities, while the services are not provided by the Government either, which have a negative impact on the realisation of the rights of migrants. This is particularly worrying considering that Hungary has reduced the period of free accommodation provided to those who are granted international protection to 30 days and reduced drastically integration assistance. The lack of integration support has made it very difficult for a migrant who does not speak Hungarian to find a job and secure a stable income in a short period. That explains partly why some refugees end up in homeless shelters.

In addition to financial constraints, restrictions on access to clients or the scope of work have been imposed on some organizations, including inter-governmental ones. In this regard, I am particularly concerned that civil society organizations do not have access to the transit zones for monitoring activities and the provision of legal aid.

Migrant workers

The increasing number of emigration of Hungarians has led to demographic challenges and a labour shortage in the country. Migrant workers could contribute to filling the labour gaps on the market. Hungary is indeed facilitating the arrival of an increasing number of migrant workers from other countries. In 2018, nearly 50,000 migrants received work visas in Hungary (with more than 16,000 Ukrainians, and a considerable number from Serbia, and China).

The Hungarian Government has also put in place a scholarship programme attracting an increasing number of international students from countries including for example Iran, Iraq and Syria. In the academic year of 2019/2020, the Stipendium Hungaricum Scholarship Programme has granted scholarship to over 5,000 students to study in Hungary. The cooperation is based on bilateral agreements with over 70 institutions across five continents. I welcome the generous gesture demonstrated by Hungary in sponsoring foreign students in pursuing higher education in the country.

I have also learned that in addressing the issue of labour shortage, Hungary is granting an increasing number of work and residence permits to migrant workers especially from neighbouring countries like Serbia and Ukraine, as well as from China. In the meantime, I received information about migrant workers as well as non-Caucasian Hungarian nationals who have experienced xenophobia, particularly since 2015. The rise on the number of migrants in the country requires an urgent examination of the existing anti-migrant rhetoric in both official and public discourses, as it may affect negatively the daily life of migrants thus hindering their integration into the society.