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• Section A General questions
• Section B Questions on specific provisions
• Section C Final questions
• Section D Table on transposition

• The Act XXXIX of 2001 on entry and residence of foreigners in Hungary (hereinafter: AlienA), is most relevant. Its modified provisions (by Act XXIX of 2004) entered into force on 1st May 2004: Art 95 (2) a.) refers directly to the Family Reunification Directive. A further amendment by Act XLVI of 2005 has introduced most of the rules on family reunification with effect of 1 January 2006. (Hereinafter: AlienA)
• Its implementing provisions are incorporated in the Government Decree No. 170/2001 (IX. 26.) On the Implementation of Act XXXIX of 2001 On the Entry and Stay of Foreigners (Hereinafter: AlienD)
• The actual text of the Government Decree No.172 of 2001, 26 September on procedural rules of asylum and documents issued for temporary protected persons (hereinafter: AsylD) entered into force on 20 October 2004 (by modification of the AsylD due to the Government Decree No.278 of 2004, 12 October): Art 40 (2) b.) refers directly on Family Reunification Directive.
• The Office for Immigration and Nationality issued a Guideline on how to implement the rules on family reunification of recognised refugees by OIN officials (2/2006.sz. Módszertani útmutató, 11/07/2006).

• one on free movement of EEA nationals and family members as transposition of 2004/38/EC Directives (T/1299) and
• one on entry and residence of foreigners (T/1300) replacing the AlienA. There was no widespread discussion yet, especially since the implementing regulation has not been adopted yet. However, one could expect that family members coming from neighbouring non-EU states would raise discussions.

1. The Supreme Court's Council of Judges of Public Administrative Law regularly publishes its interpretative opinions. The family reunification and intention for living together in Hungary shall be considered as an acceptable reason in justification of visa and residence authorisation in Hungary with exception of applicant in possession of temporary residence certificate issued for a tolerant migrant staying in Hungary. (AlienD, 10.paragraph) [Source: Bírósági Határozatok, 2005/3-4.]
2. The Constitutional Court ceased a constitutional review process related to requirement of family reunification how to be documented the financial self-subsistence of the applicant and how expulsion of aliens living in family to be in harmony with protection of family life. The Constitutional Court rejected to interpret the laws on alien and family due to adoption of new rules meantime (the AlienA and AlienD replaced prior ones in 2002). Although the legal concept on expulsion and family reunification has remained, re-submission of the substantial application has not been occurred. In this way the Constitutional Court cannot make review on rules being out of force. [Source:822/B/2003. AB végzés]

• Act: AlienD par. 10

1. Person possessing Hungarian nationality has to be treated as national regardless of further nationalities. That flows from the Hungarian Nationality Act [LV of 1993] and Law-Decree on Private International Law [No. 13 of 1979]. Implementation of the AlienA is lawful only if the individual uses an identity certificate or document issued by a foreign authority. At the moment as his or her Hungarian nationality is proved, s/he is no longer within the personal scope of the AlienA [(2.par (2)]
2. According to Explanatory Note attached to the AlienA 'Rules on Hungarian nationals' family reunification belongs to the competence of national law, for this reason domestic legislation has manoeuvring room concerning the definition of family member and requirements of unification' - in comparison to the Directive. Formally, the specific provisions define:
   • who qualifies as a family member and
   • different requirements or exceptions from conditions that are necessary for entry, residence or settlement in general.
   Substantially, the specific rules are as to:
   • are mixed but as to
   • rather advantageous providing benefits for Hungarian national's family members and their unification as follows:
3. In possession of general conditions right for residence permit is provided to foreigner who is spouse, minor child (including adopted or foster child) of a Hungarian national, to minor child (including adopted or foster child) of spouse of a Hungarian national, to dependent ancestor of Hungarian national or his/her spouse, and to parent who is entitled with parental supervision on minor in possession of Hungarian nationality. [AlienA 14.par (1)] This definition of sponsor's family members is tighter than family member of EEA nationals (in AlienA 2.par (1) e point) but broader then the family definition of a non EEA national sponsor, who can not unite with dependent ancestors. Further on, in absence of self-subsistence and proper housing conditions of the family, the residence permit can be issued for family member if sponsor is a Hungarian national. This benefit depends on discretion power of the authority. [AlienA 14.par (4)]
4. Expiration of residence permit of family member fits to the sponsor's one [AlienA 14/B par] but this validity for a sponsor in possession of Hungarian nationality is endless due to unlimited right to residence in home country.
5. Spouse of a Hungarian national obtains own right for residence if a baby is born from the marriage and foreign parent is entitled to practice parental supervision on Hungarian minor. [AlienA 14/B (3)] It is a benefit because the own, autonomous right for residence of family member requires at least five years cohabitation with the sponsor.
6. Settlement permit can be issued for family member (not as spouse) in possession of visa or residence permit, if s/he has been living at least for one year in the household of the sponsor in possession of Hungarian nationality, or a recognised refugee in Hungary, or if s/he had ever been a Hungarian national or if his/her ancestor had been a Hungarian national. [AlienA 18par (3)]. It is an exception of the normal waiting period that takes three years residence prior submission of the application. It also depends on discretion power of the authority.
7. Family member or spouse of sponsor in possession of settlement permit or Hungarian nationality, who has residence permit and has been living together with the sponsor or the Hungarian national can only be expelled from the country, if his/her further staying in Hungary means defined risk to national security or public order. This benefit is available regardless length of prior residence in Hungary. [AlienA 39.par (1) c point] and makes no difference between the foreign sponsor's and Hungarian national's family member.
8. Although letter of invitation for foreigner can be issued not only by Hungarian national but also by foreigners in possession of residence permit or settlement permit, sociologically nationals can obtain easier its official approval even on invitation of far family members. The letter of invitation is applicable as proof of ensured accommodation and material cover in visa and residence permit authorisation. [AlienA 6.par (1), AlienD 11.par (7)]

• Visa for labour or business activity is not required if the foreigner is in possession of visa for staying or residence permit issued on the base of family reunification. [AlienA 12.par. (3)]
• The child who is born from parents in possession of settlement permit in Hungary has the right to obtain settlement permit. Birth has to be announced at immigration authority [AlienA 18.par. (6), AlienD 38.par. (2)] It means that minor children only have a right to a settlement permit if they are born after their parents were issued with such a permit. If the parents have differing legal positions, the child obtains the more stable standing of his/her parent [AlienD 38.par. (3)] but the settlement permit shall be issued for the child if the parent having custody is in possession of settlement permit [AlienD 38.par. (4)]. In absence of residence permit the settlement permit can be provided for child in case of subsequent authorisation (e.g. announcement was delayed) [AlienD 38.par. (5)] Moreover, the child who is born from to a parent in possession of residence permit in Hungary has right to obtain residence permit. Its validity shall expire when that of the parent. [AlienA 14/C.par.]
• Foreign family member of a sponsor with Hungarian citizenship has right to obtain residence permit [AlienA 14.par. (1)] It is valid for two years.
• Foreign family member of sponsor with settlement permit has right to obtain residence permit [AlienA 14.par. (2)] If the sponsor and the family member have concluded the marriage more than two years before the application is submitted, the family member is entitled to settlement permit without any requirement of stay in Hungary. [AlienA 18.par. (3) b]
• In certain cases expulsion of foreigner can only be ordered if his/her further staying endangers national security or public order. This rule is applicable for foreigners in possession of settlement permit who have been residing continuously for at least five years in Hungary; or who was born in Hungary or arrived as unaccompanied minor and has been living in Hungary in possession of settlement permit, or who is a residence permit holder living in marriage or family life with a Hungarian national or foreigner in possession of settlement permit. [AlienA 39.par. (1)] It is a privilege in residence.
• The spouse, the minor child or the parent of a minor applicant shall be recognised as a refugee if the sponsor is a refugee and they have submitted application together or at the latest until issuing decision on recognition of the sponsor. It is applicable if there is no reason on exclusion of the family member according to Art 1 (F) of Geneva Convention and the stay and activity of family member means no serious risk for national security or public order. [AsylA 2.par. f. point, 3.par. (2)]
• Upon request of parent recognised as a refugee his/her minor child born in Hungary shall also be recognised as refugee. [AsylA 3.par. (4)]
• In case of recognised refugees the refugee's spouse, minor child or his/her parent if the refugee is a minor a visa for family reunification is issued if the application is submitted at the competent consular office of Hungary having jurisdiction according to the family member's permanent residence. The applicant has to be in possession of valid passport, proof of family relation (even a family photo or a local document is acceptable), a photo with a completed format and pay the fee of € 50-75. If reunification is requested within 3 months from the recognition of the sponsor, preconditions of housing, subsistence and health insurance of are not to be scrutinised. After this period but within further six months visa can be issued if excuse for delay is accepted by the authority. [AlienA 14/A.par.] In other cases the recognised refugee can only act as a sponsor if (s)he meets the 'normal' requirements as to providing adequate housing, income, health insurance for the unifying family member.
• In order to unify split family in mass influx spouse, registered partner and dependent minor child of temporary protected person as sponsor can be recognised also as temporary protected person, if the sponsor approves it and exclusion is not applicable against family member residing abroad. Transfer to Hungary of family member obtained temporary (subsidiary) protection in another Member State is also provided upon request of the sponsor. [AsylA 8.par. (2)]

• In practice the letter of invitation and settlement permit can be issued for unmarried partner. We can conclude on formats defined in AlienDM that 'other family relations' beyond the three generation model (sponsor and spouse, ancestor and descendant) are tolerated. Why? Because of sponsor is that who has to provide housing, accommodation and health insurance for relatives and partners.
• In practice partner of refugees and temporary protected is accepted due to missing documents. Moreover, spouse, unmarried partner and dependent minor of temporary protected person arrived in mass influx can be recognised on the base of family reunification. [AsylA 8.par. (2)]
• Polygamy violates public order and penal law.
• In order to unite families split up as a consequence of mass influx, the unmarried partner of a temporary protected person as sponsor can be recognised as temporary protected person if the sponsor approves it, and exclusion is not applicable against his/her. S/he has right to enter and reside in Hungary. Transfer to Hungary of registered partner obtained temporary (subsidiary) protection in another Member State is also provided upon request of the sponsor. [AsylA 8.par. (2)]
• Expulsion of a family member having a residence permit and living family life together with a Hungarian national or a foreigner in possession of settlement permit can only be ordered if his/her further stay endangers national security or public order. [AlienA 39.par. (1)] This benefit for exceptional expulsion would include registered, unmarried partner, too. The explanatory note to the NewAlienA stresses that 'family reunification of unmarried partner continues to be not available. their cohabitation is only possible on the basis of a residence permit issued for other purposes' (Comments to Articles 19-29)

• The child who is born to parents in possession of settlement permit in Hungary has right to obtain settlement permit. Birth has to be announced at immigration authority [AlienA 18.par. (6), AlienD 38.par. (2)] If the parents have different legal positions, the child obtains the more stable standing of his/her parent [AlienD 38.par. (3)]. If only one parent exercises custody of the child, entitlement to residence will assimilate to that of the custody-exercising parent.[AlienD 38.par. (4)]. Even in absence of residence permit of the parent, the settlement permit can be provided for child if it could have been issued but was not for the lack of registering the child's birth with the immigration authority. [AlienD 38.par. (5)] Further on, child who is born from parent in possession of residence permit in Hungary has right to obtain residence permit. Its validity shall fit to one of parent's permit. [AlienA 14/C.par.]
• Rules in favour of unaccompanied minors are incorporated in a separate point.
• Residence permit issued on the base of family reunification for parent of a minor with Hungarian nationality shall be withdrawn if his/her parental right to supervision ceases. S/he can reside in Hungary if s/he meets alone all requirements of residence permit authorisation with exception of visa for staying. [AlienA 14/B.par. (4)]
• Foreign minor obtaining residence permit on the base of family reunification becomes full age, s/he can stay in Hungary if s/he has been residing here and possessing permit for at least five years, or s/he meets alone all requirements of residence permit authorisation with exception of visa for staying. [AlienA 14/B.par. (5)]
• Prolongation of residence permit or issuing of residence permit can be refused only if foreign minor who was born in Hungary has become an unaccompanied minor (for instance due to death of his/her parent) and his/her care is provided by guardianship in the country of origin or in other receiving country. Naturally, his/her residence would be provided on another legal basis (e.g. acquisition of Hungarian citizenship). [AlienA 17.par. (7)]
• The settlement permit can be withdrawn if the applicant's custody right ceased within 4 years from issuing of settlement permit, or relevant conditions for authorisation has deeply changed within 5 years from issuing of settlement permit. [AlienA 23.par. (1) a., b., c. points] It is based on the rule that immigration authority controls existing conditions that are required for settlement permit in every five years - together with Security Service that provides an expert opinion on the migrant. [AlienA 20.par. (5)]
• Immigration authority shall withdraw the settlement permit of the minor if the residence permit of the foreign parent having custody has been withdrawn unless proper care of the child is provided by the other parent or by state in Hungary. [AlienA 23.par. (2)]
• The settlement permit of the foreigner who is under expulsion order or entry or residence ban shall be withdrawn. [AlienA 23.par. (2)]. But expulsion of the foreigner in certain cases can only be ordered if his/her further stay endangers national security or public order. This higher threshold is applicable towards a foreigner, who was born in Hungary, or s/he arrived as unaccompanied minor and has been living in Hungary in possession of settlement permit, or who is a residence permit holder living in family life with a Hungarian national or foreigner in possession of settlement permit. [AlienA 39.par. (1)]
• Minister responsible immigration affairs is entitled to issue exceptional settlement permit although all preconditions are not met by the applicant just taking into account individual and family circumstances. According to OIN information this entitlement is applicable in favour of minors without violation of public interest [AlienA 18.par. (7)-(8)]
• Immigration authority shall provide without delay accommodation for dependent or minor child of foreigner whose detention is ordered. [AlienA 55.par. (2)] There is similar task defined in Criminal Procedural Code, the Act on the Protection of the Child and Guardian Authority and Code on Family Law.
• A guardian shall be appointed for an unaccompanied minor as applicant and the refugee status determination procedure shall be managed without delay. A psychologist as an expert can be involved, in particular into hearings, and medical check is applicable for clarification of age with consent of minor applicant. Absence of his/her consent should not mean automatic refusal of asylum application. [AsylA 34.par.]
• Authorised place of residence shall be designated for unaccompanied minor at a child care institute, refugee centre or private shelter with more remote family member on the basis of written contract with him/her on accommodation, care and interest of minor. [AlienD 61.par. (3)]
• The Guideline of the OIN on family reunification of refugees (11/07/2006) underlines how to protect interest of unaccompanied minor as protection seeker or refugee in family reunification process: a professional guardian shall be appointed by the Guardian Authority. S/he has to investigate the individual's environment and conditions, interest of child and family members.

• Absence of endangering public order and security by the foreigner is required equally in authorisation of letter of invitation, visa, residence permit, settlement permit, its renewing or asylum proceedings. As a corollary, settlement permit must be denied if the settlement of the foreigner jeopardizes the national security, the public order (public policy) or public health. [AlianA, 21 par. (1) e] Differently from that it can (but need not) be denied if the settlement jeopardised the interests of state. Its possible meaning is not identified. Moreover, the immigration authority checks whether the requirements for settlement permit are still available in five years. [AlienA 21.par. (2), 20.par. (5)] For this reason National Security Office is entitled to issue expert opinion on application of each, and ban of entry, residence and expulsion is based on various level of risk concerning the foreigner's stay. Refusal of application may be based on the NSO opinion beyond the designated reasons for rejection such as endangering national security, public health or order, or settlement permit seeker has no clean criminal record or s/he is under criminal proceedings or arrest warrant. [AlienA 19.par. (4) and 21.par. e. point, AsylD 23.par.] Expulsion by the immigration authority is forbidden to order against foreigner whose offence was not additionally punished to be expelled by criminal court. [AlienA 39.par. (4)]. It is a threshold for severity of committed crime.
• The exceptional entitlement of the minister to issue settlement permit for family reunification or family life reasons must not endanger public interest. [AlienA 18.par. (8)] The precise meaning of public interest (as a term different both from 'national interest' or 'public order' has not been identified..
• A close family member should not be recognised on the basis of family reunification as a refugee if - inter alia - his/her staying or activity violates interests of national security or seriously endangers the public order. Temporary protection shall be withdrawn if foreigner's stay or activity violates interest of national security. In this case protection of sponsor's family member is also automatically ceased. [AsylA 3.par. (3), 10.par. (4), 11.par.]
• The New AlienA has a three layer system (shorter than 3 months, /Schengen/ visa, longer than 3 month, and settlement permit. Whereas in the context of the short term visa it refers to the Schengen Codex (562/2006/EC regulation) par. 5 e, in the long term visa context it establishes 'national' rules. par. 18 of the New AlianA envisages compulsory denial of longer than three months residence permit in case the applicant is under an entry or stay ban or jeopardizes the public policy (public security), the national security or the interests of public health. [NewAlienA 13.par. (1) h]. After the full application of the Schengen acquis the Schengen alert prescribing entry and stay ban will be added [NewAlienA 13.par. (1) i], read in light of the transition provision of [NewAlienA par. 109 (1)]. As to the settlement permit, compulsory denial conditions are narrower (assuming that the applicant had lived three years, except for the eased cases, like family reunification). Denial of the permit is only compulsory (in the public policy context) if settlement jeopardizes the national security of the Hungarian Republic or the person is subject to an entry or residence ban or is expelled.

• Refugees including family members are entitled to financial living support up to two years from the moment of recognition as a refugee in need. Precondition is successful participation in the free Hungarian language course or passing a basic exam on Hungarian language The fee of examination and 360 hours of language training is also financed (reimbursed) by the OIN. [AsylS 16., 17.par. (2)]
• Participation in language training is not required as precondition for obtaining financial living support, if the refugee/family member is over 60 years old, or medical certificate proves his/her personal physical or mental incapability for language knowledge. [AsylS 17.par. (3)] These persons are not supposed to learn Hungarian.
• An integration programme would be offered for refugee together with family members taking into account existing system of allowances, supports and rights. It intends to educate language, social habits and labour standards for refugees in co-operation with local municipals, NGOs and refugee centres. [AsylS 30/A.par.] Up till now these programmes have not been institutionalised except for pilot projects made by EQUAL or Twining Projects. While the refugee centres set up in 1989 are obliged by law to assist integration of refugees [AsylA 27.par.] the method of integration has not been developed yet.

• There is no waiting period formally in visa and residence permit authorisation. I.e. any third country national with a valid residence permit may become sponsor - if all the other conditions for family reunification are met. If the sponsor possesses a residence or settlement permit, visa or residence application can be immediately submitted if the sponsor can provide all the requirements for family reunification (maintenance, housing, health insurance, absence of public order risk).
• Settlement permit can be issued (1) for family member (not as spouse) in possession of visa or residence permit, if s/he has been living in the household of the third country national sponsor possessing a settlement permit at least for one. This is shorter than the usual waiting period that takes three years residence prior submission of the application; (2) for spouse in possession of visa or residence permit, if marriage with sponsor had been concluded at least two years before submission. [AlienA 18.par. (3)] In that case no prior residence in Hungary by the spouse is required. However, in order to have a settlement permit the sponsor will have to have lived in Hungary for three years unless she or he belongs to a privileged category (foreign national with Hungarian ancestors e.g.) Issuance of the settlement permit depends on the discretionary power of the authority. De facto waiting period can be created by the requirements for applying family: for instance, the sponsor has to ensure 6 m2 living-room per capita in the apartment. [AlienD 30.par. (5)]
• The family member of the refugee sponsor has to submit an application for visa for the purpose of family reunification within three months from the sponsor's recognition. It is a reverse waiting period. In this case preconditions of housing, subsistence and health insurance of applicant are not to be scrutinised. After this three months period application for visa based on family reunification can be submitted within further six months by excuse and proving requirements of housing, subsistence and health insurance ensured by the sponsor. After this (extended) nine months period an application can only be submitted under the general rules. [AlienA 14/A.par. (2)]

• the lawful family reunification is possible exclusively for recognised refugee as sponsor [AlienA 14/A.par.]. It means that persons not belonging to family in the tight circle of spouse and dependent minor of both or each member of the couple or parent/guardian of unaccompanied minor can obtain visa for family reunification exceptionally on the base of individual evaluation (e.g. dependent, old and ill parent of the sponsor).
• family member has to submit his/her visa application at competent consular office of Hungary depending on permanent residing place. The applicant has to be in possession of valid passport, proof of family relation (even a family photo or a local document is acceptable), a photo with a completed format and paid fee of € 50-75. Within 3 months of recognition preconditions of housing, subsistence and health insurance of applicant is not to be scrutinised
• applicant has to prove to be accommodated, and subsistence and health care is provided by the sponsor, if recognition of the sponsor as refugee had happened more than three months but not than 9 months before submission. Applicant has to excuse of his/her delay. Out of this maximal period unification request is rejected.

• Visa and residence permit may be issued to the parent or the guardian of the unaccompanied minor who is a refugee It is excluded if the parent has requested refugee status or is a refugee. For the purpose of acquiring the permit family ties can be proved in any credible way. Thus family reunification with a recognised refugee shall not be rejected for absence of document, certificate on marital, personal status. [AlienA 14/A.par. (1) c. and (3)]
• Visa application of parent or guardian of an unaccompanied minor shall be decided without delay but within five days if the purpose is to accompany the minor home. (Assume voluntary return of the refugee minor) [AlienD 14.par. (2)]
• The Guideline of the OIN (11/07/2006) underlines unaccompanied minor as recognised refugee or protection seeker needs assistance in seeking family members abroad. For this reason OIN and Hungarian Red Cross (its Searching Service) co-operates in order to contact members of split family and to unify the family.

• visa application is rejected if authenticity, factuality of attached document or credibility of applicant is doubtful [AlienD 14.par. (5)] It includes a fact-finding and evaluation work by the consular and visa issuing authority.
• family relationship between refugee and visa applicant can be proved in any credible way. Family reunification to refugee shall not be rejected exclusively on the basis of absence of document. [AlienA 14/A.par. (3)] It is applied in residence permit procedure, too. In practice, proof of family relation would be a family photo of the couple. If visa is issued, the Hungarian document will serve in residence and other documentation process.

• Application for a residence visa for family reunification exceptionally can be submitted not at the domicile of the applicant (meaning the consular office competent for that domicile) but at another (closer) consular office or - exceptionally - in the territory of Hungary. The reason for the exceptional circumstance shall be certified. One full age member of the family can submit application instead of each applicant in concern. [AlienD 10.par., 13.par. (1)(3)]
• Visa can be issued and inserted into not-recognised travel document exceptionally.[No.2. Appendix, 17.par. (5) of AlienD]
• A foreigner in possession of a visa or residence permit issued on the basis of family reunification does not need a specific labour or business visa. [AlienA 10.par. (3)] This is an exception from the prohibition of changing the purpose of stay without obtaining an appropriate (new) visa.

• refugees, beneficiaries of temporary protection and regular migrants in possession of settlement permit have the right to be employed without a labour permit. If the spouse or the descendent of the sponsor has this status, it is the best position. [Act 7.par.]
• the spouse or widow/er of a refugee, a beneficiary of temporary protection or of a regular migrant possessing settlement permit, obtains labour permit without investigation of local labour market supply if s/he has been living together with the sponsor in Hungary at least for one year. It means an almost automatic authorisation. The same provision shall be implemented concerning spouse and descendent of the migrant worker having been employed in Hungary for at least 8 years, if they have been living together in Hungary for at least 5 years. [Decree 6.par. g, h. points]
• labour permit is necessary on the basis of a really bureaucratic investigation of labour market needs and supply (economic test) for all other cases. [Decree 1-2.par.]

• Divorce within five years after issuing the residence permit on the basis of family reunification means that the foreign spouse has to leave the country unless a child was born from the marriage and the divorced foreign spouse has custody of the minor, or s/he meets alone all requirements of residence permit authorisation with exception of visa for staying. [AlienA 14/B.par. (3)]
• If the foreign minor obtaining residence permit on the basis of family reunification becomes full age, s/he can continue to stay in Hungary if s/he had been legally residing in Hungary for at least five years on the basis of the family reunification, or s/he meets alone all requirements of residence permit authorisation. [AlienA 14/B.par. (5)]
• Settlement permit can be withdrawn if relevant conditions for authorisation have fundamentally changed within 5 years from issuing of settlement permit. [AlienA 23.par. (1) b. point]. Family reunification is not directly mentioned but housing or self-subsistence of sponsor would change the legal evaluation of family members' residence.

• A widow/er can continue to reside in Hungary if s/he meets all requirements of residence permit authorisation. (She does not need to possess a residence visa at that moment) [AlienA 14/B.par. (2)]
• Residence permit issued on the basis of family reunification for the parent of a minor with Hungarian nationality shall be withdrawn if his/her parental right to supervision ceases. S/he can continue to reside in Hungary if s/he meets all the requirements of residence permit authorisation. (Again, it is with the exception of the residence visa). [AlienA 14/B.par. (4)] As (a) and (b) cases prove autonomous residence permit is available without the required 'five years rule' if the applicant can meet all requirements of residence as another ordinary foreigner.
• Prolongation of residence permit or issuing of residence permit can be refused only if foreign minor who was born in Hungary has become an unaccompanied minor (for instance due to death of his/her parent) and his/her care is provided by guardianship in the country of origin or in another country. Naturally, his/her residence may be provided on another legal basis (e.g. acquisition of Hungarian citizenship). [AlienA 17.par. (7)]
• The settlement permit may be withdrawn if the applicant has used false fact or data in the authorisation process, or his/her marriage ceased - not including death of spouse - within 3 years from issuing the settlement permit on the basis of family reunification, or his/her parental supervision ceased within 4 years from issuing the settlement permit. [AlienA 23.par. a., c] points]
• The immigration authority shall withdraw the settlement permit of the minor if the residence permit of the foreign parent having custody has been withdrawn unless proper care of him/her is provided by other parent or by state in Hungary. [AlienA 23.par. (2)]

The New AlienA reaffirms the rule on denial of granting or extending of the residence permit if the family relationship has been established only in order to achieve the grant or extension, but the language has changed, moving form the discretionary (may) to the compulsory (must). [New AlienA 18 par. (1) d) ]

• who communicated false data or false facts to the authorities taking action with a view to obtaining the right of entry or stay;
• who applies for the permit to enter or stay with a view to living with his/her spouse but has failed to live with the spouse or it may be presumed that he/she provided pecuniary benefit in order to be married (marriage of convenience)

The New AlienA has a provision explicitly dealing with the factors which have to be considered in the process of expulsion. As already quoted in the context of Article 6 when deciding on expulsion the authority is called upon to consider elements similar to (but not identical with) those listed in par. 17 of the Family reunification Directive. [NewAlienA 45 (1) a - d]. The criteria are: severity of the threat to national security, public security, public order or public health; length of previous stay; age, family circumstances of the person to be expelled and the consequences of the expulsion to her/his family members; his/her bonds to the Hungarian Republic and lack of contacts with the country of origin. 46 par. of the New AlienA provides that the (reasoning of the) decision on expulsion must address the considered aspects.

• in case of a negative decision on entry visa appeal or review is excluded. However judicial review is applicable against a rejected application for residence visa [AlienA 8.par. (4)] . It is a review on legality.
• There is administrative appeal against a negative decision on residence permit or its renewal or on its withdrawal. It has to be submitted orally immediately when the decision is communicated or within three days in written form. A further judicial review can be initiated against final administrative decision. [AlienA 17.par. (5)] It means a review on legality, County/Capital Court may order the repetition of administrative procedure.
• There is no appeal against the entry or residence ban. [AlienA 33.par. (5)].
• There is no administrative appeal against the expulsion but judicial review is provided by the County/Capital Court including personal hearing upon request of the foreigner. It covers the legality of the administrative decision and the court is entitled to modify the decision of the immigration authority, to annul it or to remand the case for a repeated procedure. The Court's decision shall be issued within 15 days and is final, no further remedy is available. [AlienA 42.par. (1)]
• As a general rule the Code of Public Administration Procedure (Act CXL of 2004) permits an administrative appeal and judicial review of other negative decisions of immigration authority.

In practical terms free legal aid is frequently provided by the NGO sector maintaining layers networks available for certain affected groups like refugees and asylum seekers

• its existence and imperative language.
• The obligation to weigh factors, mentioned in article 17

• Family reunification ought to be based on sui generis criteria, procedure and assistance relying on the UN Convention on the Rights of the Child, , Art 8 of ECHR and 1951 Geneva Convention. The Family reunification Directive should have a clear relation to the Directive on long-term residents and to the Qualifications Directive dealing with refugee status and subsidiary protection.
• It would be necessary to refer to the CIEC agreements.
• Common rules on family reunification applicable to a national as sponsor have to be defined setting up a clear framework of non-discrimination and lawful differentiation.

• Art 3 (3) and 4 (1) third subpara.
• considerations may arise as to Art 3 (5)

Literature is too general and authors have no specific survey on Directive and its national practice.

1. MISI László: Tanulmány a magán-és családi élet uniós védelmének normarendszeréröl és esetjogáról, különös tekintettel a család-és gyermeki jogokra [EC law in book and practice on family and private life] 49-62.old. www.kriminalexpo.hu/uoe/2006-01-vegso.pdf
2. FARKAS Lilla: A családi élethez való jog és a személyek szabad mozgása. [Right to family life and free movemenet of persons in the EU] EU-tanulmányok 3. köt. MeH Budapest, 2004. 579-615.
3. GRáD András: Az Emberi Jogok Európai BÌróságának esetjoga.[Case law of the ECtHR] Család, tulajdon. 1999. 71-80.
4. Az Emberi Jogok Európai Egyezménye 8. cikke: a magán- és családi élethez való jog. Szerk. Szabó Gyözö - Nagy Gábor.[Article 8 of the ECHR and its legal practice] Emberi Jogi Füzetek. A BÌrósági Határozatok Melléklete 4/97:1-77.
5. Az Európai Közösségek BÌróságának gyakorlata a szociális biztonság területén. [1. köt.] A módosÌtott és naprakésszé tett 1408/71/EGK rendelet. Lezárva: 2003. j˙n. [2. köt.] A módosÌtott és naprakésszé tett 574/72/EGK rendelet. Lezárva: 2003. j˙n. [3. köt.] Jogesetek. Lezárva: 2002. szept. Szerk. ács Vera - Lukács éva. Közrem. Mihálffy Angéla - Torda Ildikó. [Social security in the case law of the ECJ] Kiad. a Foglalkoztatási és Munkaügyi Minisztérium - Egészségügyi, Szociális és Családügyi Minisztérium. Bp. Folpress Kft. ny. 2003. 214, [2], 327, 250, [2] p.
6. SZEIBERT Orsolya: Az Európai Unió jogalkotása a családjog területén. A Brüsszel II. rendelet személyi és tárgyi hatálya. A házasság felbontására vonatkozó ügyekben irányadó jogról és joghatóságról szóló Zöld Könyv (Róma II.). [Family law and marriage - Rome II] Európai Jog 6/2005:32-40.
7. Migráció és Európai Unió. Szerk. Lukács éva - Király Miklós. [Migration and the EU] Kiad. a Szociális és Családügyi Minisztérium. Bp. AduPrint K. 2001. 477 p.
8. FARKAS Lilla: Segítö kéz? Magyar jogvédök és a strasbourgi mechanizmus.[Legal aid by NGOs at the ECtHR] Fundamentum. Az emberi jogok folyóirata 4/2000:121-127.
9. Strasbourg és a magyar joggyakorlat. Bán Tamás, Magyar Gábor, Tallódi Zoltán, Weller Mónika és Farkas Lilla Ìrása. [Cases from Hungary at ECtHR] Fundamentum. Az emberi jogok folyóirata 1/2005:45-69.

• Hungarian Helsinki Committee represents cases at courts. (www.helsinki.hu regularly makes news, statements are available). Hungarian Association for Migrants (www.menedek.hu ) provides social and psychological assistance for separated children, family members through various programmes. Both organisations publish cases protecting family life of migrants living in Hungary and launch procedure at the Ombudsman Office. The common reasons of the rejected family reunification or separation of the family members are the public policy, absence of lawful income and public health. Further on, the Hungarian Helsinki Committee issued a Practical Manual on family reunification of internationally protected persons (May 2006). It criticised:
  • why residence of sponsor in a refugee centre is not acceptable as properly provided accommodation, housing, subsistence and health insurance for applying members in family reunification. Within 3-9 months after recognition there is not too much chance for refugee to ensure own housing and self-subsistence. A more flexible interpretation of rules is urged;
  • why joining family members are excluded from recognition on the base of family relations;
  • why family members in possession of visa issued for family reunification is re-evaluated in residence permit authorisation. The visa "D" is valid for 365 days, and residence permit can be issued in its possession while all requirements of housing, subsistence and health insurance of the applicant have to be met;
  • why family reunification of refugee is tucked a maximal 9 months time frame after recognition of the sponsor [AlienA 14/A.par.]. In case of a split family this period is not proper to find contacts and documents.
• Habeas Corpus NGO submitted an application for constitutional review of AlienA (www.origo.hu 17 May 2004) because it discriminate homosexual couples in long-term residence authorisation. The complained case is coming from a Hungarian man whose male couple was from Poland. They can obtain neither a simplified nor a standard family reunification authorisation of residence, and unmarried partners are not treated as in marriage by Hungarian law. The Constitutional Court has not yet decided.

• He proposed to the Minister of the Interior and of Justice to submit a modification of the AlienA. Accordingly the Art.14 shall be completed with entitlement of the migration authority to issue residence permit for Hungarian national minor's parent in order to live together in Hungary. [OBH 1037/2004., 14 December 2004] The proposal was taken up by Act XLVI of 2005 amending the AlienA, and Art 16 was amended accordingly.
• He proposed for the Office for Immigration and Nationality to withdraw own final decision (No.106-ij-2205/1/2005, issued on 2 February 2005) and to direct the first instance authority (a) to evaluate in merit the minor's application for family reunification as basis of residence permit taking into account the Public Administration Proceedings Code [Art 16 (3)],
• to implement Art 9 (1) of the UN Convention on the Rights of the Child in harmony with Art 26 (1) of the Public Administration Proceedings Code during the repeated procedure. It requires a more precise fact-finding work by the proceeding officials. [OBH 2248/2005, 13 June 2005] The OIN issued residence permit for the mother of the new-born baby but on different legal basis as the ombudsman offered.

UNHCR
UNHCR Regional Representation in Hungary issued a document on "Legal and Practical Considerations Concerning Family Reunification and Visa Issues Affecting Refugees and Persons Authorised to Stay in Hungary" (28 October 2005). It proposes changes in practice and legislation as follows. The government should consider:

• waiving the obligation on recognised refugees to meet the qualification criteria contained in Article 14 (1) of the AlienA;
• a broader definition of eligible family members in line with the UNHCR Guidelines on family Reunification of 1983 in any event, at the very least, in line with the European Union Council Directive on the Right to Family Reunification of 22nd September 2003;
• allowing persons authorised to stay in Hungary, under the complementary protection regime, to have immediate access to the right to family reunification upon status determination in the same manner as refugees;
• ensuring that as a matter of practice in cases where the principal applicant is given refugee status or the status of person authorised to stay in Hungary, the rest of the family should have the right to opt for the same derivative legal status without prejudice to their right to apply for refugee status or complementary protection individually based on own claim. The family members should also have access to the same socio-economic and other rights as the principal applicant;
• having a one stop, single procedure for family reunification. This would ensure that the application for family reunification is submitted to, processed and approved by one central authority in a single procedure;
• issuing joining family members of recognised refugees with an appropriate visa that denotes their special circumstance (e.g. "Humanitarian Visas" or "Family Reunification Visas");
• reviewing current procedures to ensure that fair and efficient procedures for processing family reunification applications in an expeditious manner are in place. The objective of such a review should also include the need to make family unity, and not the qualification criteria contained in Article 14 (1) of the Aliens Act, the central focus of such procedures;
• making family reunification procedures more fair and efficient, to ensure that recognised refugees, at the point that refugee status is granted, are provided with written and oral information on their right to family reunification and the procedures which need to be followed for them to effectively exercise and realise this right, including applicable qualification waivers, details concerning travel documents and visa applications, opportunities for financial assistance for travel costs and integration assistance for the reuniting family. To this end, the authorities may wish to consider introducing an information package on family reunification, including a public place poster and leaflet which could be given to individual principal applicants at the same time that a positive refugee status determination decision is rendered;
• introducing a simple and "user friendly" family reunification procedure, which can easily be initiated by the recognised refugee by way of completing a standardised form which whenever necessary could be complemented by a personal interview;
• exploring modalities in which it would be able to assist the applicant refugee to meet the costs of the reunification either through a loan or a grant. Initially, the costs of this could be met under the European Refugee Fund (ERF) which can be administered directly by a government entity or a partner NGO with the requisite family reunification experience;
• issuing an administrative directive informing that when deciding on family reunification, the absence of documentary proof of the formal validity of a marriage or of the filiation of children should not per se be considered as an impediment;
• ensuring that recognised refugees are aware that a negative decision on an application for family reunification should clearly and fully state the specific reasons for the rejection of the application and the evidence which was relied on. It should also provide information on the principal applicant's right of appeal, any time-limits and the provisions of the appeal procedure;
• ensuring that family reunification takes place within the shortest possible time from the time an application is made. Applications from or regarding separated children should be prioritised, with regard to the principle of the best interest of the child, in view of the potential harm caused by long periods of separation from their parents.

Number of applications for resident permit:

• correct transposition
• no transposition
• violation of the Directive
• unclear

• AlienA: Act XXXIX of 2001 on the entry and stay of foreigners in Hungary
• New AlienA: Act II of 2007 on the entry and stay of third country nationals
• EEA AlienA: Act I of 2007 on the entry and stay of persons enjoying the freedom of movement and residence
• AlienD: Government Decree No. 170/2001 (IX. 26.) On the Implementation of Act XXXIX of 2001 on the Entry and Stay of Foreigners
• AlienMD: Ministerial Decree on execution of the AlienA and AlienD No. 25 of 2001, 21 November
• AlienJD: Ministerial Joint Decree on fees in visa and residence authorisation No.35 of 2001, 22 December
• AsylA: Act CXXXIX of 1997 on asylum law
• AsylD: Government Decree on procedural rules of asylum and documents issued for temporary protected persons No.172 of 2001, 26 September
• AsylS: Government Decree on supports and allowances for refugees and applicants No.25 of 1998, 18 February