Hungary: Guidance from the Supreme Court on the interpretation of the concept of "safe third country"

Friday, October 4, 2013

Last December, the Hungarian Supreme Court issued its opinion on the concept of "safe third country". This opinion is of relevance as it shall guide the application of this concept by Hungarian judges and thus promote a harmonised practice in asylum cases. The reason for issuing this opinion was precisely the divergence in the criteria applied by Hungarian courts when reviewing administrative decisions.

The Supreme Court rules that, when reviewing administrative decisions regarding the application of the safe third country concept, courts need to take into account the precise and credible country information at their disposal at the time of deciding. This information should not be restricted to that provided by the parties to the proceedings: it should include as well information obtained by the court itself from a variety of sources and through any of its procedures. UNHCR country information is accorded special weight. Moreover, courts shall take into account the relevant and current information at the time of deciding (and not at the time when the administrative decision was made). This is owed to the absolute character of the prohibition of torture and inhuman or degrading treatment, which imposes consideration of the facts and circumstances relevant at the time when the court decides.

The Hungarian Supreme Court further rules that countries with overburdened asylum systems shall not be regarded as safe for asylum seekers, as they may be incapable of respecting their rights. It insists upon the fact that the practical applications of relevant international treaties must be examined, rather than only the mere ratification of those treaties by the third country under scrutiny.

Finally, the Supreme Court establishes that the mere fact that the applicant did not try to submit an asylum claim in the third country is not enough to conclude that such country shall be regarded as safe in the particular case. If the third country is found to be safe, the applicant will have to prove that they did not have access to effective protection there but in accordance with a more flexible standard of proof. Furthermore, in case of risk of chain refoulement, the applicant cannot be expected to prove an individual risk.

The Supreme Court relies on the Qualification and the Asylum Procedures Directives to confirm that the use of country information and the requirement of individualisation shall be applied to all elements and phases of the asylum procedure.

An English summary of the decision can be found on the website of the Hungarian Helsinki Committee.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Safe third country
Assessment of facts and circumstances
Individual assessment
Obligation/Duty to cooperate
Country of origin information
Standard of proof
Inhuman or degrading treatment or punishment