CASE OF HENDRIN ALI SAID AND ARAS ALI SAID v. HUNGARY
Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion)
András Sajó;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
6. The applicants, brothers, were born in 1992 and 1989 respectively. When introducing the application, they were staying at the Debrecen Reception Centre for Refugees, located in Hungary. 7. On 1 September 2010 the applicants were transferred from the Netherlands to Hungary under the Dublin II procedure. They were handed over to the Budapest Regional Directorate of the Office of Immigration and Nationality (“OIN”), the competent alien policing authority, and interviewed with the assistance of a Kurdish-Hungarian interpreter on the same day. 8. The applicants related that they had left Iraq illegally in early August 2009, travelled through Syria and Turkey and intended to reach the Netherlands. They had arrived in Hungary, also illegally, later in August 2009 and had immediately been intercepted by the police. They had applied for asylum on 1 September 2009. On 7 September 2009 the asylum procedure had however been terminated because they had absconded. They had travelled illegally, apparently assisted by traffickers, to the Netherlands, where they had joined their father and applied for asylum. The Netherlands had started the Dublin II procedure and Hungary had agreed to their readmission. On 1 September 2010 they had been transferred to Hungary under this scheme. 9. They alleged that they had been persecuted in Iraq because of their father’s former service in Saddam Hussein’s army and their Kurdish ethnicity. They also claimed that they had no family members living in Iraq. 10. After the interview, the alien policing authority ordered the applicants’ expulsion to Iraq, also imposing a five-year entry ban. According to the decision, the expulsion was necessary because they did not fulfil the requirements of legal residence in Hungary. The authority then requested OIN’s asylum directorate to assess whether the principle of “non-refoulement” was applicable. It replied in the negative. 11. In the expulsion decision it was mentioned that the applicants’ illegal entry and lack of residence permits constituted a threat to public order. Considering their age and family status, their expulsion would have no negative effect, since they had no connection to Hungary, did not speak Hungarian and had no skills and therefore their livelihood was not secured and the chances of finding employment were low. It was also established that they did not have Hungarian or EU national family members living in Hungary, and although their relatives lived in the Netherlands, they also had some in Iraq, so their social reintegration on return was possible. The applicants were entered into OIN’s asylum registry, but the ongoing asylum procedure was not referred to when the reasons for expulsion were addressed. OIN concluded that the enforcement of immigration rules had priority over the personal and family interests of the applicants, and that expulsion was a necessary and proportionate measure. 12. Simultaneously, the execution of the expulsion was suspended by the OIN’s alien policing authority because the means and conditions necessary for its enforcement were not secured, namely the applicants did not have any travel documents or tickets. 13. The alien policing authority ordered at the same time the applicants’ alien policing detention for 72 hours, purportedly in order to secure their expulsion. The detention was based on section 54(1)(b) of the Third Country Nationals Act (see below), according to which the immigration authority shall have the power to detain the person in question in order to secure the expulsion if “he/she has refused to leave the country, or, based on other substantiated reasons, is allegedly delaying or preventing the enforcement of expulsion”. However, no facts or personal circumstances were presented justifying such a conclusion. The applicants were committed to the Nyírbátor alien policing facility. 14. The asylum authority formally registered the applicants’ asylum claim only on 2 September 2010, despite the fact that they had been asylum seekers from their very arrival in Hungary, in that they had been transferred under the Dublin procedure from the Netherlands; they had explicitly mentioned at the interview with the alien policing authorities on 1 September 2010 that they had left Iraq because they had been persecuted and that they had already applied for asylum when they had first entered Hungary in September 2009. 15. A preliminary interview was conducted, and on 14 September 2010 the asylum applications were admitted to the in-merit procedure. Despite this fact, the applicants remained in alien policing detention although asylum seekers were entitled to accommodation in an open refugee reception centre. According to section 55(3) of the Asylum Act (see below), once the asylum application is admitted to the in-merit procedure, the alien policing authority shall, at the initiative of OIN’s asylum authority, terminate the asylum seeker’s detention. However, such an initiative was not taken. 16. On 3 September 2010 the Nyírbátor District Court prolonged the detention until the execution of expulsion was secured or 30 September 2010. Although the initial detention had been based (see above) on section 54(1) of the Third Country Nationals Act, the court found that it had been lawfully ordered under section 55 of the Act (see below) and that its prolongation was necessary. It held that sections 55, 54(1)(b) and 54(3) of that Act were applicable in the case. In the reasoning, reference was made to the fact that the applicants had arrived in Hungary illegally and applied for asylum in 2009 then again in September 2010, as well as to the contents of the expulsion order. No particulars relating to the ongoing asylum procedure were mentioned. 17. The detention was prolonged on 24 September, 26 October, 26 November and finally on 17 December 2010, until 28 January 2011. On each occasion, the District Court limited the reasoning to stating that the initial reasons for the detention given in the first court decision were still in place. 18. On an unspecified date, the applicants were transferred to the Debrecen Reception Centre for Refugees, an open facility. “(2) Any third country national whose application for refugee status is pending may be turned back or expelled only if his or her application has been refused by a final and enforceable decision of the refugee authority.” “(1) In order to secure the expulsion of a third-country national, the immigration authority is entitled to detain a person if: ... b) he/she has refused to leave the country, or, based on other substantiated reasons, is allegedly delaying or preventing the enforcement of expulsion; ... (3) Detention under the immigration laws may be ordered for a maximum duration of 72 hours and extended by the court of jurisdiction by reference to the place of detention until the third-country national’s departure, or for a maximum of 30 days. (4) Detention ordered under the immigration laws shall be terminated immediately: a) if the conditions for carrying out expulsion are secured; b) if it becomes evident that expulsion cannot be executed; or c) after six months from the date when the detention was ordered.” “(1) The immigration authority may order the detention of a third-country national prior to expulsion in order to secure the conclusion of the immigration proceedings pending, if his/her identity or the legal grounds of his/her residence has not been conclusively established.” “(1) Where the Dublin Regulations cannot be applied, the decision to determine as to whether an application is considered inadmissible lies with the refugee authority. (2) An application shall be considered inadmissible if: a) the applicant is a national of any Member State of the European Union; b) the applicant was granted refugee status in another Member State; c) the applicant was granted refugee status in a third country, where this protection also applies at the time of examination of the application, and the country in question is liable to re-admit the applicant; d) the applicant has lodged an identical application after a final refusal.” “(1) If the refugee authority finds an application admissible, it shall proceed to the substantive examination of the application ... (3) If the refugee authority proceeds to the substantive examination of the application and the applicant is detained by order of the immigration authority, the immigration authority shall release the applicant at the initiative of the refugee authority.” “(1) In the order admitting the request to the in-merit phase, the refugee authority shall assign the asylum seeker – upon the latter’s request – to a private accommodation or, in the absence of such, to a dedicated facility or another accommodation, unless the asylum seeker is subjected to a ... measure restraining personal liberty. ... (2) During the in-merit examination and the eventual judicial review of the decision adopted therein, the asylum seeker is obliged to stay at the designated accommodation. (3) The in-merit procedure shall be completed within two months from the adoption of the decision ordering it.” “If the foreign national expresses his/her intention to file an application for recognition as a refugee during the alien policing procedure ... his/her statement shall be recorded by the proceeding authority, which shall then inform without delay the refugee authority and the reception centre responsible for accommodating those being in the preliminary asylum procedure, forwarding the minutes and the fingerprint recording sheet at the same time.”