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Hungary’s treatment of asylum seekers: leashes, handcuffs, torture and a breach of Article 3 ECHR? (8 January 2015)

Date: 08/01/2015
Duncan Lewis, Public Law Solicitors, Hungary’s treatment of asylum seekers: leashes, handcuffs, torture and a breach of Article 3 ECHR?

An oral permission hearing took place before the Court of Appeal in the case of HK (Sudan) v The Secretary of State for the Home Department (C4/2014/2424) on 3rd November 2014. This was considered by the Court of Appeal to be the lead case concerning a Third Country challenge to the decision of the Secretary of State for the Home Department to remove our client to Hungary.

Although there have been reports by internationally recognised non-government organizations stating that there are deficiencies in the asylum procedure in Hungary, the Court of Appeal refused permission.

Prior to the hearing, we took the decision to undertake a fact finding mission to Hungary, to obtain more recent information regarding these deficiencies and the treatment of Dublin II returnees. Further, there has been an influx in asylum seekers in Hungary in recent months and more details were needed regarding how this has impacted the asylum system and detention facilities in Hungary.

Solicitor Shalini Patel and Caseworker Lauren Mayer undertook the fact finding mission to Hungary in October 2014 to assist in preparation of the oral permission hearing. A vast amount of information was gathered following meetings with various Non-Government organisations including the UNHCR; Hungarian Helsinki Committee; Menedek Association for Migrants; Migzsol; Cordelia Foundation for victims of torture; and the Hungarian Reformed Church. Following these meetings a number of statements were drafted and signed by the relevant organisations. Hugh Southey QC of Matrix Chambers and Declan O’Callaghan of Landmark Chambers were instructed in this matter.

The permission hearing took place before Sir Stanley Burnton on 3rd November 2014. In the end there were four aspects of the possible treatment in Hungary which gave rise to unlawfulness, we argued. They were:

(i) the fear of violence on the part of detaining officers;
(ii) the use of leashes and handcuffs when detainees are transferred;
(iii) the unavailability of toilets within the rooms or cells in which detainees are kept, which means that they can only get to a toilet if allowed out by an officer, which may not happen for long periods particularly at night, as a result of which detainees have to urinate into a bottle and
(iv) the relative unavailability of psychiatric care, it being said that our client suffers from PTSD and would need such care, particularly as he would have been removed from the United Kingdom against his own will to a country in which he says he has suffered in the past and in which he fears he will suffer again.

The Judge accepted that if the question of toilets stood alone, it would certainly be degrading but would not of itself pass the Article 3 threshold. He also accepted that the use of handcuffs and leashes was degrading treatment but only occurs on transfers and for that reason he was of the view that there is no sufficient risk of Article 3 misbehavior as far as that is concerned.

The Judge was most concerned about the allegations of violence against detainees and accepted that there is evidence to support the fact that individual officers use violence against detainees. Against that he was of the view that there is also evidence that most of those who detain them act humanely. The Judge was extremely concerned with the statement of the Hungarian Helsinki committee which clearly supported our arguments and which asserted that treatment of asylum seekers in detention centres is appalling and that physical violence is common. He confirmed that this aspect of our argument “goes close to crossing the line, but the fact that there has been violence in the past has been considered in the past, and must have been before the European Court in the case of Mohammed and Mohammadi, without a finding that there were Article 3 risks.

Despite the acceptance of degrading treatment by the Judge, permission was refused.

We feel very strongly about the case and have decided to pursue the matter further. We have applied to the European Court of Human Rights in Strasbourg and the application was filed with the Court on 18th December 2014. We are currently awaiting a response

In the meantime there are a number of Hungary removal challenges currently before the UK courts, a number of which are being dealt with by Duncan Lewis.


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