Provision of free legal assistance to clients subject to return

A third-country national may, upon request, receive legal assistance provided by the Hungarian State free of charge to challenge an aliens policing return decision, taken by the aliens policing authority in an admissions, an asylum or a coercive measures procedure in administrative court actions.

Under provision of legal assistance, the competent government office will provide assistance in drafting and submitting a statement of claim.

The aliens policing authority shall, together with a copy of the return decision, forward the application for legal assistance to challenge a final return decision to the legal services authority (see “Definitions of Key Terms”) immediately by electronic means of communication (in particular via an electronic mail), who will take a decision on the application for legal assistance immediately, or on the working day following the receipt of the concerned application the latest.

Definitions of Key Terms:

- aliens policing authority: the return decision-making authority under Section 98 (1) and (3) of Act XC of 2023 on General Rules for the Admission and Right of Residence of Third-Country Nationals (hereinafter referred to as Act XC of 2023);

- legal assistance service provider: a lawyer or legal aid organisation listed in the Register of Legal Assistance Service Providers;

- provision of legal assistance: out-of-court assistance in civil and administrative, as well as criminal proceedings under Act LXXX of 2003 on Provision of Legal Assistance (hereinafter referred to as Act LXXX of 2003);

- legal services authority: the Capital and County Government Office, as well as the Ministry headed by the Minister responsible for justice, acting in their capacity as legal aid authority;

-  foreign national subject to a return decision: a person subject to return under a final return decision on the basis of Section 98 (1) and (3) of Act XC of 2023;

- out-of-court assistance: the use of legal services of a legal assistance service provider for the purpose of legal advice, access to documents or drafting of documents;

- territorial office: the body of the Capital and County Government Office acting in their capacity as legal aid authority granting assistance;

- interpreter: a natural or legal person under contract with the legal services authority provider who, in the provision of out-of-court assistance to a foreign national subject to a return decision, provides linguistic assistance in the communication between the foreign national subject to a return decision and the legal assistance service provider.

The foreign national subject to a return decision will be assisted by the aliens policing authority in completing the relevant form. At the request of the foreign national subject to a return decision, an employee of the aliens policing authority may, in the presence of the foreign national subject to a return decision, complete the form in his/her stead; this fact is to be indicated in the communication section of the form. The employee of the aliens policing authority shall explain the contents of the (completed) form to the foreign national subject to a return decision before the foreign national signs it.

If the foreign national subject to a return decision does not indicate in the form his/her notification address in Hungary or an email address or telefax number where (s)he can receive the documents to be delivered to him/her, the territorial office will terminate the procedure.

The need of the foreign national subject to a return decision for legal assistance is verified by the final return decision taken by the aliens policing authority.

The foreign national subject to a return decision must indicate on the form whether (s)he requires the assistance of an interpreter in the out-of-court legal services needed for the submission of the statement of claim against the final return decision. If the foreign national subject to a return decision requests the assistance of an interpreter, (s)he must also indicate the specific language in which the service is to be provided to him/her.

The territorial office shall appoint an interpreter – as an interpreter – or legal assistance service provider – who is a legal assistance service provider undertaking service activities in civil and administrative affairs, including the field of aliens policing as per his/her contract of services – located within the place of establishment of the aliens policing authority having acted on the case of the foreign national subject to a return decision, or, if the circumstances in relation to the foreign national subject to a return decision justify it in the locality as per the notification address (guarded accommodation, community shelter, private accommodation) of the foreign national subject to a return decision.

In the absence of a legal assistance service provider or interpreter, the territorial office shall appoint

a)  an interpreter, or a legal assistance service provider undertaking service activities primarily related to aliens policing affairs within close proximity to the place of establishment of the aliens policing authority having acted on the case of the foreign national subject to a return decision, to the locality as per the notification address (guarded accommodation, community shelter, private accommodation) of the foreign national subject to a return decision, in a locality within the same county,

b) in the absence of a legal assistance service provider or an interpreter referred to in Point (a), an interpreter, or a legal assistance service provider undertaking service activities primarily related to aliens policing affairs outside of the place of establishment of the aliens policing authority having acted on the case of the foreign national subject to a return decision, of the county where the locality as per the notification address (guarded accommodation, community shelter, private accommodation) of the foreign national subject to a return decision is located.

If the aliens policing authority having acted on the case of the concerned foreign national subject to a return decision notifies the territorial office of the change of the place of residence of the foreign national subject to a return decision, the territorial office shall immediately inform the legal assistance service provider and the interpreter of the respective change. If the aliens policing authority is aware of the change of the place of residence at the time the application for assistance is submitted, it shall, at the same time as forwarding the application, notify the territorial office thereof, which shall appoint the legal assistance service provider and the interpreter in accordance with the new place of residence.

In the event of a refusal of cooperation in assistance provision, the territorial office may grant a dispensation of appointment and services to the legal assistance service provider who has undertaken to perform aliens policing affairs-related service activities if

a) following a change in the place of residence of the foreign national subject to a return decision, the legal assistance service provider would have to act in a county other than the county in which his/her place of establishment is located, or

b) the legal assistance service provider provides proof of occurrence of other insurmountable obstacles.

In the event of a refusal of cooperation in assistance provision, the territorial office may grant a dispensation of appointment and services to the interpreter if the interpreter provides proof that there are insurmountable obstacles to the completion of the appointment.

The decisions on the withdrawal of an appointment, as well as the decisions on the appointment of a new legal assistance service provider or an interpreter are taken by the territorial office which has acted on the case on granting the assistance.

A legal assistance service provider whose acting functions include performance of aliens policing affairs-related service activities must be available to the legal services authority expeditiously at short notice and must undertake to confirm within three days the receipt of the decision of appointment, and, if applicable, the reasons for refusing cooperation in assistance provision.

For drafting a statement of claim against the final return decision, the foreign national subject to a return decision in detention will be contacted by the legal assistance service provider in person in the legal assistance provision procedure; otherwise the foreign national subject to a return decision will be informed expeditiously at short notice how to contact the legal assistance service provider.

Workings of a legal assistance service provider

If an interpreter has also been appointed for the foreign national subject to a return decision, the legal assistance service provider must contact the interpreter immediately upon receipt of the notice of appointment.

The legal assistance service provider shall perform the notification delivery under law by making a paper copy of the documents, transmitted to the service provider by electronic means, to be delivered to the foreign national subject to a return decision.

If the legal assistance service provider has taken the required and reasonable measures for completion of notification delivery and the delivery is nonetheless unsuccessful, the legal assistance provider shall immediately report this fact to the territorial office. The territorial office shall then proceed with the notification delivery in accordance with the rules applicable to publication of notices. In the event of unsuccessful notification delivery, the legal assistance service provider may be granted a fee for one hour of service.

The foreign national subject to a return decision must sign the certificate of service completion to attest that personal contact has been initiated and established, or, in case of notification delivery by a legal assistance service provider, that the delivery has been completed.

In out-of-court procedures for the assistance of foreign nationals subject to a return decision, the legal assistance service provider shall, after the provision of legal services has been completed, verify to the territorial office granting assistance provision that the legal service have been provided by presenting a signed copy of the certificate of service completion and a copy of the statement of claim. The submission of the statement of claim may also be evidenced by the submission of a copy of the postal receipt together with a copy of the statement of claim.