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.
The second major issue which was the reason for refusal of Dublin transfers to Hungary is detention. The main critique on detention is that it is systematic, which is against EU law and means that often no individual reasons are given for the detention, that people enter detention even though there is no necessity for detention (and alternatives to detention are not chosen) and that it is too long. By November 2015 52% of all asylum seekers in Hungary were detained as the ECRE report makes clear. That means that even more people were held in detention than in open reception centers. The Hungarian detention law enables detention of asylum seekers for up to 6 months. Further, most of the Dublin returnees are immediately imprisoned upon return to Hungary. They often can not and/or are ineffective to appeal against detention order. The inappropriate use of detention in Hungary violates EU law.
Another aspect of the violations of International law by the detention practise of Hungary is the severe conditions in the detention centres, which have been reported on for several years. Examples of the conditions are given in various reports, as for example the Human Rights Watch report of December 2015, that show that detention centers are inadequate for detaining children, that the sanitary conditions (for example, . in Nyírbátor) are often bad, and that there is a general lack of medical and psychological care.
Furthermore, in Hungary vulnerable applicants can also be detained and do not get sufficient support. People with special needs - for example elderly persons or persons with mental or physical disabilities are often not identified and do not get the appropriate support. It is also very problematic that families with children as well as unaccompanied minors (who are sometimes declared old enough by dubious age tests, as described by the EU Commissioner of Human Rights in an intervention) are held in detention. All the mentioned problems are especially concerning in regards to the newly established transit zones which give rise to even more detention.
Conditions in reception centers and after receiving asylum
The third group of problems finally concerns the conditions of reception. Hungarian reception centers do not have enough medical facilities, there is no age-appropriate housing and not enough attention is paid to the vulnerability and the special needs of asylum seekers. Family unity is often violated as families are torn apart and there is not enough appropriate accommodation for families with children. In some weeks in the summer of 2015 the reception centers were overcrowded at 150-250% of their capacity , which led to an intensification of the already existing problems and increased the risk of homelessness of asylum seekers, as people were forced to live on the streets.
There are also a lot of problems people face after receiving asylum. Within a short period of time, many individuals become homeless because of the lack of support in finding housing and the over-complicated paperwork surrounding that, making them additionally vulnerable. Moreover, people who have the status of international protection are in a very vulnerable position as they do not get sufficient financial support and no help in finding employment. Further, adding to the danger of homelessness, there are not enough places in homeless shelters and when found sleeping in public places they face criminalization.
The last important reason mentioned is the general bad climate in Hungary towards asylum seekers as the government does not show enough willingness to integrate refugees into Hungarian society.
To find all the information in detail and with country-specific legal decisions, take a look at the original report.