Report of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees to Serbia and two transit zones in Hungary 12-16 June 2017

The Secretary General’s Special Representative on Migration and Refugees carried out a fact-finding mission to Serbia and two transit zones in Hungary from 12 to 16 June 2017. In Serbia he visited asylum and reception centres in Adaševci, Principovac, Krnjača, Subotica, Sombor, Bogovađa and Obrenovac and met with representatives of the government, the authorities responsible for asylum and migration-related matters, intergovernmental organisations, the European Union as well as civil society. In Hungary he visited the transit zones of Röszke and Tompa and met with the regional representatives of the asylum authority, as well as with the UNHCR and one NGO.

Hungary, being also a transit country for migrants and refugees travelling along the Western Balkans route, has also faced enormous challenges after the massive arrivals of migrants and refugees during 2015 and 2016. In response to these challenges Hungary has enacted a series of legislative amendments to the legal framework on asylum and immigration. Following those introduced in March 2017, all asylum-seekers, including families with children and unaccompanied children between 14 and 18 years old, are kept within specifically designated areas of transit zones located in Hungarian territory, while their asylum applications are processed. This situation raises concerns about de facto deprivation of asylum-seekers’ liberty under Article 5 of the ECHR. In particular, the confinement of children needs to be addressed as a matter of urgency. The primary consideration should be the best interest of the child. Every effort should be made to avoid resorting to the deprivation of liberty of migrant and refugee children on the sole ground of their migration status.

Violent pushbacks of migrants and refugees from Hungary to Serbia raise concerns under Articles 2 (the right to life) and 3 (prohibition of torture) of the ECHR. The restrictive practices of admission of asylum-seekers into the transit zones of Röszke and Tompa often make asylum-seekers look for illegal ways of crossing the border, having to resort to smugglers and traffickers with all the risks that this entails. The asylum procedures, which are conducted in the transit zones, lack adequate safeguards to protect asylum-seekers against refoulement to countries where they run the risk of being subjected to treatment contrary to Articles 2 and 3 of the ECHR. The mechanism for the judicial review of decisions of the asylum authority raises concerns in respect of the right to an effective remedy under Article 13 of the ECHR. The Council of Europe is ready to assist the Hungarian authorities, with expert advice, to safeguard the essence of the right to seek asylum in Hungary, while ensuring respect for asylum-seekers’ right not to be subjected to unjustified deprivation of liberty or unacceptable living conditions.

Unaccompanied asylum-seeking children between 14 and 18 years old who are in the transit zones are exempted from the scope of application of the legal provisions on guardianship. The assistance provided to these children from local social workers appears rather limited, which leaves unaccompanied children without adequate protection and support. As the stay of unaccompanied children in transit zones is intended for a short period of time there is no educational provision. The Council of Europe can provide assistance in developing a guardianship system that effectively protects the rights of the child and ensures compliance with the principle that the best interest of the child is the primary consideration in all processes affecting him/her.

In conclusion, it is necessary that the Hungarian legislation and practices are brought into line with the requirements of the ECHR. Should the Hungarian authorities decide to engage in this process, the Council of Europe is best placed to assist them by providing expert advice on the basis of the ECHR and the case-law of the European Court of Human Rights.

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