What is the Dublin regulation? - a short introduction
The Dublin regulation is an EU-law that has great influence on the lives of refugees in Europe. According to the Dublin regulation, a person can only apply for refugee status in one member state, and Dublin aims to set criterias on how to determine the responsible state. Usually, the country through which a person first enters the EU (or rather where she or he is first registered) has to handle the asylum claim. In practice this normally means that any following country where asylum is claimed will return the person to the appropriate state. Hungary is one of the states for which those transfers apply a lot, mostly because of its location at the external border of the Schengen area.
There are however some reasons why Dublin transfers can be suspended. Those reasons can be for example close family members in another Schengen country, but they can also refer to the conditions in the country where the person first entered Schengen. At the moment most of the Dublin transfers to Hungary do not take place. A great new report from ECRE analyzes those cases in which EU-States do not transfer asylum seekers back to Hungary. In most of the cases the reason for which the transfer has been prevented was the August and September changes (a good overview over the policy changes is in this report by the Heinrich Böll Stiftung) in the Hungarian Asylum law and the violations of international or European law (specifically The European Convention on Human Rights and the Charter of Fundamental Rights of the EU) that follow from that. The specific argumentations differ in various countries of the EU, but are mostly centered around three issues: access to protection, detention and reception.
Access to protection
The first big problem that is internationally criticized is the limited access to asylum and to the asylum procedures, that resulted from the legal changes in late summer 2015. Those legal changes enabled the Hungarian government to build the fence on the border with Serbia and to make it illegal to enter irregularly or to damage the fence. With this Hungary has made the access to international protection (asylum) so difficult that it does not fulfil human rights standards any more.
Another problematic element of the Hungarian asylum law and practices was the establishment of the transit zones at the border, which are supposed to be a no-man’s land, which is legally not possible. A new procedure of admission was introduced at the transit zones. It includes a very short time table for the review of the asylum case which puts into question if the decisions, made in such a short time, can be at all of of high quality.
Moreover, the Hungarian government declared Serbia (and other countries) - against the suggestions of United Nations High Commission on Refugees (UNHCR) - a “safe country”, which means that asylum seekers who came through Serbia can be sent back with the argument that they already came through a “safe country” and could have applied for asylum there. As it is against International law to send people back into countries where they face serious human rights violations (such as in Serbia for which Amnesty International’s report described the bad conditions in detail last year), Hungary is strongly criticized for these legal changes. The establishment of the transit zones at the border of Serbia and Hungary and the declaration of Serbia as a safe country have led to a situation in which over 99% of asylum applications have been rejected without any further consideration. Additionally, and most severely, being found inadmissible for applying for asylum means that the person also receives a 1-2 years ban on entry and stay in Hungary.
Although the “safe country list” entered into force only on the 1st of August 2015, it has retroactive application and thus can apply to people returning to Hungary under Dublin regulation, which means that Dublin returnees would be more than likely to not have any access to the asylum procedure in Hungary. This is because, once the returnees are sent back to Hungary, the new regulations often make them reapply for asylum so their case is seen as a new one and not as a continuation. That means they have to present new evidence to ask for asylum which they often don’t have. Moreover, they are also subjected to the shortened timeframe. Hungary’s new regulations consequently mean a quasi-denial of access to the asylum procedure. It is criticized internationally that once asylum seekers are sent back to Hungary they face a risk of a chain deportation: due to the inadequate asylum system in Serbia the applicants risk being sent to Macedonia and from there to Greece which has very poor conditions for refugees (as this recent UNHCR note shows clearly) and an insufficient asylum system.