Background Information on the Situation of Non-Europeans in Hungary in the Context of the "Safe Third Country" Concept

1.         The Office of the United Nations High Commissioner for Refugees (UNHCR) considers the notion of safe third country as a useful basis for agreements between States. Such agreements provide for the return of refugees and asylum-seekers to countries where they have had or could have sought asylum and where their safety would not be jeopardised. The Office. is concerned to ensure that refugees receive effective and adequate protection in a country of asylum, and welcomes and promotes cooperation among States to this end.

2.         The Office has identified some factors for consideration in determining whether the return of a refugee or an asylum-seeker to a particular country should take place. These factors, which include both formal aspects and the practice of the State concerned, are:

·           ratification of and compliance with the international refugee instruments, in particular compliance with the principle of non-refoulement;

·           ratification of and compliance with international and regional human rights instruments;

·           readiness to permit asylum-seekers to remain while their claims are being examined;

·           adherence to recognized basic human rights standards for the treatment of asylum-seekers and refugees;

·           and, notably, the State's willingness and practice to accept returned asylum-seekers and refugees, consider their asylum claims in a fair manner and provide effective and adequate protection.

3.         Hungary became a signatory to the 1951 Convention and 1967 Protocol relating to the Status of Refugees in March 1989. When ratifying the 1951 Convention, Hungary made a geographical reservation as provided by Article 1 B (1) (a) of the Convention. This reservation means that non-European refugees cannot avail themselves of any protection under the terms of the 1951 Convention. Hungary has, however, limited international obligations toward non-European refugees under international agreements for the protection of human rights, such as the European Convention for the Protection of Human Rights and Basic Freedoms (entered into force in 1994) and the UN Convention against Torture, Other Cruel, Inhuman and Degrading Treatment or Punishment (March 1988).

4.         In view of this situation, UNHCR reached an informal and unwritten agreement with the Hungarian Government in 1989 to direct non-European asylum-seekers to the UNHCR Branch Office in Budapest.

5.         Hungary has also signed readmission agreements with Austria (signed 8 October 1992, entered into force on 20 April 1995), Croatia (signed 9 December 1992, not yet in force), Switzerland (signed 4 February 1994, entered into force on 8 June 1995), Czech Republic (signed 2 November 1994, entered into force on 8 June 1995), Slovakia (signed 5 August 1994, entered into force on 20 April 1995), Romania (signed 1 September 1992, entered into force on 26 April 1995 [Law No. XXV/19953), Slovenia (signed 20 October 1992, not yet in force) and Ukraine (signed 26 February 1993, entered into force on 5 June 1994 [Law No. XXIV/19951). It should, however, be noted that these readmission agreements apply to the return of nationals of the contracting States and/or of third country nationals who entered illegally. They do not consider the special protection needs of asylum-seekers.

6.         Non-European asylum-seekers and refugees are not covered by any particular national law; in principle, they are subject to Hungary's general legislation concerning aliens: Aliens Act LXXXVI 1993, which entered into force on 1 May 1994 (1993. évi LXXXVI tórvény) as well as a Ministerial Decree (issued by the Minister of Justice) for the implementation of the Aliens Act, published on 6 January 1995.

7.         According to Section 2, pare 3 of the 1993 Aliens Act, the Act does not apply to foreigners requesting protection , nor to foreigners recognized by the Hungarian authorities as refugees, until final and absolute refusal of their applications. However, this does not apply to non-European asylum-seekers who stay in Hungary illegally and are apprehended by the aliens authorities before they contact UNHCR.

8.         If non-European asylum-seekers seek protection at border points, the authorities should refer them to the UNHCR Branch Office in Budapest in accordance with the informal arrangement mentioned above As UNHCR has no permanent presence at border posts (including the airport) and given the informal nature of the agreement, guarantees cannot be given that applications for refugee status are systematically referred to UNHCR. The great majority of asylum-seekers only seek protection after having legally or illegally entered Hungary.

9.         There are generally three categories of non-European asylum-seekers:

a)         Non-European asylum-seekers who entered Hungary legally may proceed immediately to the UNHCR Office in Budapest. They are not arrested, and the fact that they have contacted the UNHCR Office does not terminate their residence permit. If an applicant's visa expires before UNHCR has reached a decision on his or her refugee claim, UNHCR can request an extension of their stay until a final decision is taken.

b)         Non-European asylum-seekers who entered Hungary illegally and contacted UNHCR before being apprehended used to be issued temporary residence permits, pending the outcome of UNHCR's determination procedure. Lately, UNHCR has observed that the Hungarian authorities no longer issue temporary residence permits to this category of persons but merely tolerate their presence.

c)         Most refugee claims are lodged by persons after they are intercepted by the Hungarian authorities for staying in or entering the country illegally and put in semi-closed detention facilities. Since they are illegal immigrants, the authorities may invoke the prohibition of entry and stay [Section 23 (2) (a) of the Aliens Act] against them. They receive an expulsion order from either the Police Headquarters or the Directorate of the Border Guards (Section 31 of the Aliens Act) and are referred to a semi-closed detention facilities, pending deportation (Section 43 of the Aliens Act). There is no maximum period for this compulsory residence. Extension is restricted: after one year, the order can only be renewed with the consent of the Aliens Police National Headquarters or the Border Guards National Headquarters. If a court, according to Section 36 of the Aliens Act, issues an expulsion order, the person is put in police custody, or, in exceptional cases, in prison (alien regulatory custody - ARC). In case the alien has already been detained for six months, the extension of the detention can only be ordered by courts- The Aliens Act does not stipulate a maximum period of detention.

10.       Before 15 July 1995, most illegal foreigners stayed in the camp of Kerepestarcsa. Following recommendations by human rights organisations, the Minister of Interior decided to close the camp on 15 July 1995. Asylum-seekers of European or non-European origin who stay in Hungary illegally are now kept in nine semi-closed detention facilities (eight at land border points as well as a facility at the airport) administered by border guards. Those facilities - with the exception of one at the airport - are located in border areas. Given that these centres are scattered throughout the country, counselling and access to UNHCR's determination procedure have become more difficult. Asylum-seekers may not be informed adequately about the procedure. The same also applies to those in police custody and in prisons.

11.       Non-European asylum-seekers may, in principle, remain in Hungary until UNHCR has reached a decision on their claims. The Office, however, is aware of Iranian asylum-seekers who were deported to their country of origin in December 1994, while the determination procedure was still underway.

12.       Article 32 of the Aliens Act prohibits refoulement, as set forth in Article 33 of the 1951 Convention. However, Hungary has not established formal procedures to ensure compliance with Article 33 of the 1951 Convention nor with other legal obligations that would prevent expulsion, such as those contained in Article 3 of the European Convention on Human Rights. It is currently not known how the Hungarian authorities actually apply Article 32 of the Aliens Act.

13.       When UNHCR declares a person to be a mandate refugee, the Hungarian authorities, upon UNHCR's request, issue a temporary residence permit. During the second half of 1994 and this year, the Aliens Police were on several al occasions reluctant to issue residence permits to non-European refugees and, instead, treated the persons as ordinary foreigners. Only following several interventions by UNHCR, have the Aliens Police issued residence permits for short periods of time, such as one month.

14.       UNHCR-recognized refugees in Hungary do not enjoy the economic and social rights provided for in the 1951 Convention. The problem areas include:

a)         Access to labour market: UNHCR-recognized refugees must apply for a work permit to gain employment. The authorities issue the permit only if no Hungarian citizen has applied for the same job in that region. Given Hungary's 13 % unemployment rate, few non-European refugees are able to work legally.

b)         Assistance: No social assistance is available.

c)         Medical treatment UNHCR-recognized refugees have access to medical services only to the same extent as aliens in general.

15.       The Office is aware of the many other pressing priorities with which Hungary is confronted and notes the enormous social and economic difficulties inherent in the restructuring process. Due to this situation UNHCR appreciates the efforts taken by the Hungarian authorities to lift the geographical reservation. Until this happens, however, the Office would at present advise against returning to Hungary - on the basis of their stay or transit there - non-European asylum-seekers and refugees who have arrived in third countries. For the time being, there are no guarantees that they will receive effective protection in Hungary for the following reasons:

a)         total lack of access to a national asylum procedure;

b)         absence of a formal procedure to ensure compliance with Article 33 of the 1951 Convention; and

c)         difficulty in realising a durable solution.

UNHCR, Geneva, November 1995