Netherlands: Hague District Court prevents Dublin transfers to Hungary

Date: 
Friday, October 16, 2015

The Hague District Court ruled on 16 October 2015 on two cases in which it set aside decisions of the Secretary of State of Security and Justice to transfer asylum applicants to Hungary.

Rechtbank den Haag – AWB 15/11534

This case relates to a Ukrainian national and her two young children, who claimed asylum in the Netherlands in April 2015. This was rejected as they had previously applied for asylum in Hungary in January 2015, and the Hungarian authorities had accepted their responsibility to process the claim pursuant to the Dublin III Regulation. The Hague District Court had granted a preliminary injunction to prevent the applicants’ removal and now considered the merits of her appeal.

With regard to the applicant’s argument that the amendments to Hungarian law of 1 August 2015 contained serious procedural shortcomings, and exposed her and her children to the risk of detention the Court considered the Hungarian asylum law was not in violation of European law. In any event, she had an effective remedy to complain to a Hungarian Court and if necessary, to lodge a complaint before the CJEU or ECtHR.

Citing Tarakhel v. Switzerland the Court emphasised the need for special protection of asylum seekers, in particular families with children, whose reception conditions must be adapted to their specific needs. It referred to the Hungarian Helsinki Committee Information Note dated 7 August 2015 which indicated that recent developments in Hungary, including the significant increase in asylum seekers to Hungary, meant that its asylum system could not deal with vulnerability, there was no screening mechanism to identify those with special needs, and the reception system was overcrowded and unhygienic. As such, there was a real risk of many Dublin transferees to Hungary being accommodated in unacceptable conditions, similar to the reception situation in Italy as discussed in Tarakhel. Given that the applicant, a single mother with young children was particularly vulnerable, guarantees should be requested from the Hungarian authorities in line with Tarakhel to avoid the risk of Article 3 ill-treatment. As the Dutch authorities failed to do so, its decision to transfer the applicants to Hungary was set aside.

Rechtbank den Haag AWB 15/2751

The applicant in this case is a national of Afghanistan who travelled via Iran, Turkey, Greece and Hungary before claiming asylum in the Netherlands. His asylum claim was dismissed by the Secretary of State of Security and Justice and a decision was made to transfer him to Hungary pursuant to the Dublin III Regulation.

Based on the information before it, the Hague District Court considered that upon transfer to Hungary the applicant’s asylum claim would be considered under the new asylum legislation that entered into force on 1 August 2015. The Court referred extensively to the Hungarian Helsinki Committee Information Note of 7 August which set out a number of criticisms of the new Hungarian asylum law.  It considered that the contents of this report had not been refuted by the Secretary of State. It concluded that the Hungarian asylum procedure, in view of the designation of Serbia as a safe third country, did not meet the requirements of the ECtHR, as there was no effective remedy against negative first instance decisions, no real access to professional legal assistance, interpreters are not available and the short deadlines and set by the Hungarian asylum procedure prevented applicants from preparing a proper defence. It concluded that the procedure did not meet the minimum requirements as set out in Article 46 of the recast Asylum Procedures Directive.

In conclusion, transfer of the applicant to Hungary would amount to a real risk of violation of Article 3 ECHR as there were systemic deficiencies in the new asylum procedure that the minimum standards as set out in M.S.S. v. Belgium and Greece were not met. The decision was set aside and the Secretary of State is now obliged to make a new decision taking into consideration this ruling.

Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Sadhia Rafi, ELENA national coordinator for the Netherlands, for her assistance in preparing these summaries.


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.

                                                     

 

Keywords: 
Accelerated procedure
Dublin Transfer
Effective access to procedures
Effective remedy (right to)
Inhuman or degrading treatment or punishment
Legal assistance / Legal representation / Legal aid
Procedural guarantees