EU Takes Hungary’s Asylum Policy to Task Again, But Budapest Shrugs

With asylum claims cut to near zero, Orban is unlikely to respond to the EU’s latest infringement procedure, the fifth launched against Hungary since 2015.

On Friday, the European Commission launched a new infringement procedure against Hungary, its fifth since 2015, because of changes to the asylum system that Viktor Orban’s nationalist populist government introduced in May. Most experts agree with the EU that Hungary is in clear violation of the international legal system, though given the changes have succeeded in bringing down the number of asylum seekers to virtually zero, Budapest is in no hurry to change tack.

“I think this is going to be worse for the migrants than the previous situation, but if the bureaucrats of Brussels want it this way, we will fulfil their wishes,” PM Orban blustered after the European Court of Justice (ECJ) ruled in May that the country’s detention of asylum seekers in transit zones at the southern border with Serbia was unlawful.

The Hungarian government then promptly closed the transit zones and passed a new law that effectively banned asylum seekers from entering Hungary. Under the new rules, asylum seekers would first have to lodge a “declaration of intent” at Hungary’s embassies in either Belgrade in Serbia or Kiev in Ukraine. If given a green light from the National Directorate-General for Alien Policing (formerly the Office of Migration), the asylum seeker can then enter the territory of Hungary to officially submit an application.

Thus, instead of adapting its regulations to the Common European Asylum System (CEAS), the Hungarian government invented a legal trick to outmanoeuvre the EU, which has resulted in no one being able to enter the country to apply.

“In the last three months, 22 people have lodged a so-called declaration of intent in Hungary’s embassy in Belgrade, but no one was allowed to enter the country,” the National Directorate-General for Alien Policing (OIF) confirmed to BIRN in mid-October.

Another 12 people already inside Hungary have filed for asylum, the agency said, but their cases have not been closed. No asylum seeker has turned up so far at the other non-Schengen embassy in Kiev.

Unlawful restriction to asylum

The new infringement procedure launched on Friday gave formal notice to Hungary of its incorrect application of EU asylum legislation. “The Commission considers that [Hungary’s new] rule is an unlawful restriction to access to the asylum procedure that is contrary to the Asylum Procedures Directive, read in light of the Charter of Fundamental Rights, as it precludes persons who are on Hungary’s territory, including at the border, from applying for international protection there,” the European Commission wrote.

The Commission has reiterated to BIRN that EU law provides for access to the asylum procedure in the territory of Hungary, including at the border or in a transit zone. Allowing applicants to present their asylum applications at embassies abroad can be a useful complementary measure. “This, however, cannot replace the obligation Member States have to ensure that applicants can apply for international protection at the border or in the transit zones,” it told BIRN.

Hungary has two months to respond to the arguments raised by the Commission, or Brussels “may decide to send a reasoned opinion”.

Legal experts are near unanimous in calling Hungary’s new asylum law a clear violation of the international legal system. “The law undermines both the access to territory and the access to fair procedure – the two pillars of the post-World War II international legal system,” Erno Simon, the UNHCR’s spokesman in Hungary, told BIRN.

He said that the system of “pre-screening” at the embassies as standard practice is non-existent in international refugee law, and that the current international asylum rules stipulate that anybody who is alluding to being in danger or fleeing from violence should be given protection and adequate care.

“In this new system, asylum seekers lodging a ‘declaration of intent’ at the embassy in Belgrade are not entitled to any help from the Hungarian state. Neither will they receive any protection or assistance from Serbia. They can find themselves in an ex lex situation and face deportation – this is a serious breach of international law,” Simon said.

Andras Lederer of the Hungarian Helsinki Committee, a human rights watchdog, goes further. “Submitting applications at embassies can only be seen as complementary, and not as standard practice,” he said, accusing the Hungarian government of unilaterally withdrawing from the EU’s common asylum policy that it signed on joining the EU in 2004.

BIRN has asked Hungary’s Justice Ministry (which is also responsible for EU Affairs) for comment, but received no response. Experts say the government is surely aware of the shaky legal basis for its legislation and is again testing the EU’s resolve in addressing the deteriorating rule of law in the bloc’s most recalcitrant members, particularly Hungary and Poland. But as long as the wheels of justice continue to turn slowly, Hungary’s government is buying itself time and setting another precedent in how to defy international obligations with little consequences inside the EU.

In the meantime, the Hungarian Helsinki Committee has urged the European Commission to immediately initiate the suspension of the Hungarian mission of the European Border and Coast Guard Agency, or Frontex, in order to avoid being complicit in operating a system that is in breach of EU law and international human rights obligations.

Joining forces

On the international stage, both Hungary and Poland said they intend to reject the Commission’s new asylum and migration pact that was unveiled in September.

The package “advocates the same principle along with the same mistakes that the [European] commission pushed in the past five years,” Hungarian Foreign Minister Peter Szijjarto said after talks with his Polish counterpart, Zbigniew Rau, in Warsaw on October 22.

At first glance, the proposal should have been better received, as it eliminates the much-criticised mandatory quotas for resettlement and relocation. It is also seen as a move towards a more security-less-human-rights-based approach favoured by Central European countries, putting an emphasis on more effective border controls and an effective return mechanism.

However, Balazs Hidveghi, a Fidesz MEP, explained to BIRN that the proposal falls short of the required paradigm shift. “Our position is that instead of managing migration, inflows should be stopped outside the borders of Europe. Nobody should be allowed to enter the territory of the EU, until his or her claim has been positively assessed, therefore every application has to be evaluated at the border.”

This position is in line with the current Hungarian approach, but it is highly questionable whether it could be enforced over the whole EU. Nevertheless, the Fidesz MEP is optimistic. “There has been a strong shift in the approach to migration since 2015 in Europe, when we were seen as the black sheep for advocating stronger border control. I see a chance for compromise in the migration agenda, but only if we accept the differences among member states. Migration can determine a country’s culture for decades or even for centuries, so you cannot force something on a country which it does not want.”

Under the current nationalist-populist Law and Justice government, Poland has allied itself with Hungary and has been systematically taking a hard line on migration, staunchly rejecting the idea of relocating refugees entering the bloc to other countries.

While the Polish government has been fighting against receiving refugees and migrants at the EU level, the Polish economy has in reality been relying on Ukrainian migrant workers for years. Yet instead of ensuring migrants can build a new life in Poland, the government has been promoting temporary labour migration, refusing to invest resources in their integration.

And even if Poland has being making a big fuss about supporting the Belarusian opposition in its fight against the Lukashenko regime, it has been mostly offering only ‘humanitarian visas’ to the thousands of Belarusians trying to escape the dictatorship, which means entry to Poland is possible, but no significant further support is provided to build a new life.

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