Hostname: page-component-7c8c6479df-xxrs7 Total loading time: 0 Render date: 2024-03-28T11:20:21.272Z Has data issue: false hasContentIssue false

Hungarian Asylum Law and Policy in 2015–2016: Securitization Instead of Loyal Cooperation

Published online by Cambridge University Press:  06 March 2019

Abstract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

The study describes Hungary's policy towards asylum seekers and refugees in the tense period of 2015–2016 before and after the erection of fences at its southern borders of Hungary. It offers a theoretical explanation of the legal measures and practical actions. After briefly reviewing the factual basis, that is the magnitude of the movements and the number of decisions taken in the EU and in Hungary and the pertinent legal changes in 2015–2016 it elaborates the theoretical fundaments. Securitization majority identitarian populism and crimmigration are invoked as explanatory frames. The paper then reassembles the factual elements under six headings showing them in a new light. These are: denial, deterrence, obstruction, punishment, free riding constituting lack of solidarity and breaching the law (international, European, domestic). Finally the question is raised if all these moves are compatible with the duty of loyal cooperation of Member States with each-other and the EU as prescribed by article Article 4 (3) TEU.

Type
Special issue - Constitutional Dimensions of the Refugee Crisis
Copyright
Copyright © 2016 by German Law Journal, Inc. 

References

1 Conspiracy theories about forces behind the sudden surge abound listing ISIS (Daesh), Putin, the EU, and “invisible powers,” including George Soros. See, e.g., Report of the Hungarian Public Television (Aug. 7, 2016), https://www.youtube.com/watch?v=iyuyI51AvOI&feature=youtu.be (noting that Human Rights Watch and migrants similarly describe the treatment in Hungary as “being treated like animals,” and implicitly suggesting that migrants are acting upon the instructions of NGOs).Google Scholar

2 EU Commission, EU Home Affairs Background Statistics Migration. Asylum, Schengen and Borders, Security. Multi-annual financial framework 2014–20 7, http://ec.europa.eu/dgs/home-affairs/e-library/docs/infographics/ha-in-numbers/home_affairs_in_numbers_en.pdf.Google Scholar

3 Online Database 1.9. Asylum-Seekers in Hungary and Persons Granted International Protection Status, Hungarian Statistical Office (2000), http://www.ksh.hu/docs/eng/xstadat/xstadat_annual/i_wnvn003.html.Google Scholar

4 Asylum and First Time Asylum Applicants—Annual Aggregated Data (rounded), Eurostat, http://ec.europa.eu/eurostat/tgm/table.do?tab=table&init=1&plugin=1&language=en&pcode=tps00191 (last visited Oct. 29, 2016); Asylum and First Time Asylum Applicants by Citizenship, Age and Sex Monthly Data (rounded), Eurostat, http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_asyappctzm&lang=en (last visited Oct. 29, 2016).Google Scholar

5 End of June for EU 28+, end of July for Hungary. Cumulated figures. EASO Latest Asylum Trends – June 2016 (EU Data), Eurostat, http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report (last visited Oct. 29, 2016). Hungarian data from Office of Migration and Nationality.Google Scholar

6 2016 July figures suggest 6.6 million IDPs in Syria. Syrian Arab Republic, UNOCHA, http://www.unocha.org/syria (last visited Oct. 29, 2016).Google Scholar

7 Just an illustration from the most recent EASO country of origin report: “On 4 May 2015, the Taliban stopped public buses in Khak-e-Safed district, abducted 15 civilians on suspicion of working for the government and beheaded two of them. Since May, 2015, the district of Gulistan is contested by the Taliban. On June 28, 2015, insurgents abducted the 17-year-old son of an ANP officer in Farah city and killed him.” EASO, Country of Origin Information Report Afghanistan Security Situation Update Malta (Jan. 2016), https://coi.easo.europa.eu/administration/easo/PLib/EASO-COI-Afghanistan_Security_Situation-BZ0416001ENN_FV1.pdf.Google Scholar

8 201,405 Western Balkan nationals applied for asylum making up 14 % of all applications in the EU+ in 2015. EASO, Annual Report – 2015 10 (2016). Recognition rates: the former Yugoslav Republic of Macedonia 1 %, Serbia 2 %, Kosovo 3 %, and Albania 3 %. Id. Google Scholar

9 EASO, Latest Asylum Trends – 2015 Overview 4 (2016); EASO, Annual Report – 2015 23 (2016).Google Scholar

10 Authors calculation based on Annex D 1 (Asylum applicants in the EU+ by Member States and main citizenship, 2011-2015) of the 2015 EASO Annual Report.Google Scholar

11 Author's calculations based on Eurostat and OIN data.Google Scholar

12 The yearly less than 10 “tolerated to stay.” The non-removable persons are not included in this table.Google Scholar

13 Other termination grounds exist (i.e. death, change of immigrant status), but they hardly ever occur.Google Scholar

14 Iran: Afghan Refugees and Migrants Face Abuse, Hum. Rights Watch (Nov. 20, 2013) https://www.hrw.org/news/2013/11/20/iran-afghan-refugees-and-migrants-face-abuse.Google Scholar

16 Comm'n Staff Working Document (SWD (2016) 160 final) Accompanying the document Report From The Commission to the European Parliament and the Council Fourth Report on Progress by Kosovo in Fulfilling the Requirements of the Visa Liberalisation Roadmap 8 (2016).Google Scholar

17 Statistics Explained Asylum Quarterly Report, Eurostat 12 (July 14, 2016), http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report Google Scholar

18 Id. at 14.Google Scholar

19 Id. at 6.Google Scholar

20 For details, see infra Part D.II.Google Scholar

21 Boldizár Nagy, Hungary's Hypocritical Migration Policy, Heinrich Böll Stiftung (May 29, 2015), https://www.boell.de/en/2015/05/29/hungarys-hypocritical-migration-policy.Google Scholar

22 Buzan, B., Wæver, O., & Wilde, J. de, Security: A New Framework for Analysis (1998).Google Scholar

23 Huysmans, J., The European Union and the Securitization of Migration, 38 J. of Common Mkt Studies No. 5, p 758, (2000).Google Scholar

24 Fidesz stands for Fidesz—Magyar Polgári Szövetség (Fidesz—Hungarian Civic Alliance). “Fidesz” itself is an acronym for Alliance of young democrats (Fiatal demokraták szövetsége). It is no longer used in its full form.Google Scholar

25 See, e.g., The Securitisation of Migration in the EU: Debates Since 9/11 (G. Lazaridis & W. Khursheed eds., 2015) [hereinafter Securitisation of Migration].Google Scholar

26 Bigo, D., Security and Immigration: Toward A Critique of the Governmentality of Unease, 27 Alternatives 7576 (2002).Google Scholar

27 G. Lazaridis & V. Tsagkroni, Securitisation of Migration and Far Right Populist Othering in Scandinavian Countries, in Securitisation of Migration, supra note 25, at 207–36.Google Scholar

28 Squire, V., The Securitization of Migration: An Absent Presence?, in Securitisation of Migration, supra note 25, at 29.Google Scholar

29 J. Huysmans & V. Squire, Migration and Security, in Handbook of Security Studies 171 (M. Dunn Cavelty & V. Mauer eds., 2010).Google Scholar

30 Squire, supra note 28, at 29.Google Scholar

31 G. Lazaridis & A. M. Konsta, Identitarian Populism: Securitization of Migration and the Far Right in Times of Economic Crisis in Greece and the UK, in Securitisation of Migration, supra note 25, at. 184–206.Google Scholar

32 Id. at 185–86.Google Scholar

33 Id. at 186.Google Scholar

36 Id. at 187.Google Scholar

37 Mudde, C., The Hungarian PM Made a “Rivers of Blood” Speech … and No One Cares, Guardian (July 30, 2015), https://www.theguardian.com/commentisfree/2015/jul/30/viktor-orban-fidesz-hungary-prime-minister-europe-neo-nazi.Google Scholar

38 See infra Part D.I. (providing details and quotes).Google Scholar

39 Stumpf, J., The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 367419 (2006).Google Scholar

40 Id. at. 402.Google Scholar

41 C. C. Garcia Hernández, Crimmigration Law 3 (2015).Google Scholar

42 M. A. H. van der Woude, & P. van Berlo, Crimmigration at the Internal Borders of Europe? Examining the Schengen Governance Package, 11 Utrecht L. Rev. 61, 6179 (2005). See also Maria João M. J. Guia, M A. van der Woude & J. van der Leun, Social Control and Justice: Crimmigration in the Age of Fear (2013).Google Scholar

43 This section relies on and incorporates certain paragraphs of my blog entry on EU Immigration and Asylum Law and Policy entitled Parallel Realities: Refugees Seeking Asylum in Europe and Hungary's Reaction, EU Blog, Immigration L. (Nov. 4, 2015), http://eumigrationlawblog.eu/parallel-realities-refugees-seeking-asylum-in-europe-and-hungarys-reaction/.Google Scholar

44 See infra Part D.Google Scholar

45 Act LXXX. of 2007 as amended.Google Scholar

47 Press Release 144/16, EU-Turkey Statement (Mar. 18, 2016).Google Scholar

48 Government decree 63/2016. (III. 31.).Google Scholar

50 The next amendment that entered into force on Sept 15, 2015 extended the appeal period to seven days.Google Scholar

52 The date of the entry into force of the amendments and the closure of the border with the fence was the same: September 15, 2015.Google Scholar

53 Government resolution 1401/2015 (VI. 17) “on certain measures necessitated by the exceptional immigration pressure (Magyar Közlöny, No 83 of 2015) referred to this as ”a provisional fence serving border control“ (Point 1).Google Scholar

54 Act C. of 2012.Google Scholar

55 The concept is described in Act LXXXIX. of 2007 on the state border. See Articles 5 A-D and 15.Google Scholar

56 269/2015 (IX. 15) Korm rend.Google Scholar

57 Flow data: Arrivals on average in excess of 500 per day for a month, or 750 per day for two weeks or 800 per day for a week.Google Scholar

58 Stock data: On average the number of persons in the transit zone exceeds 1,000 per day for one month, 1,500 per day for two weeks, or 1,600 per day for one week.Google Scholar

59 See Article 80/A of the Asylum Act.Google Scholar

60 Id. at point c). On this basis, the government declared a crisis situation caused by mass immigration covering the whole country on March 9, 2016. Government decree 41/2016 (III.9.).Google Scholar

61 See Article 71/A of the Asylum Act.Google Scholar

62 Amuur v. France, App. No. 17/1995/523/609 (June 25, 1996), http://hudoc.echr.coe.int/.Google Scholar

63 Adopted on May 10, 2016, published on May 20, 2016 and entered into force (in respect of the asylum provisions) on June 1, 2016.Google Scholar

64 Bill T/9634, at 46.Google Scholar

65 Act no. XCIV of 2016, entry into force on July 6, 2016.Google Scholar

66 UNHCR, New “Excision” Law Does Not Relieve Australia of its Responsibilities Towards Asylum-Seekers, UNHCR (May 22, 2013), www.unhcr.org/news/press/2013/5/519ccec96/new-excision-law-relieve-australia-its-responsibilities-towards-asylum.html.Google Scholar

68 European Commission Press Release IP/15/6228, Commission Opens Infirngement Proceudre Against Hungary Concerning its Asylum Law (Dec. 10, 2015).Google Scholar

69 See infra Part D. Vi.Google Scholar

70 The summary of Mr. Orbán's speech to the Hungarian diplomatic corps: Józan ésszel és bátorsággal kell képviselni az országot (the country has to be represented with sober mind and bravery), Kormányzat (Aug. 25, 2014), http://www.kormany.hu/hu/a-miniszterelnok/hirek/a-leggyorsabban-novekvo-eu-s-orszagok-koze-fogunk-tartozni.Google Scholar

71 The weekly HVG quoting the Hungarian News Agency MTI. Orbán: gazdasági bevándorlóknak nem tudunk menedéket adni, HVG.HU (Jan. 2015), http://hvg.hu/itthon/20150111_Orban_gazdasagi_bevandforloknak_nem_tudunk.Google Scholar

72 The term in Hungarian is “megélhetési” which is a pejorative expression usually referring to someone who pursues a profession without vocational drive, i.e. merely to earn money. The records of the debate are available at http://www.parlament.hu/documents/10181/308218/ny150220.pdf/7817140d-c961-441d-b21c-29c26963684c.Google Scholar

73 The letter and questionnaire are downloadable in English from: http://www.kormany.hu/en/prime-minister-s-office/news/national-consultation-on-immigration-to-begin (July 21, 2016).Google Scholar

74 Three answers were offered: “Yes, I would fully support the government; I would partially support the government; I would not support the government,” i.e. two in weak or strong support of the government, one neutral (neither support nor opposition). Weak or strong disagreement could not be expressed.Google Scholar

75 Resolution 36/2015 (IX. 22) of the Parliament, Magyar Közlöny No. 136 of 22 September 2015, http://www.magyarkozlony.hu/dokumentumok/30d4e493298b407e098990414cb8387e7c1caaf8/megtekintes.Google Scholar

77 Országgyŭ'lési Napló, 2014–2018. országgyŭlési ciklus Budapest, 2015. november 16. hétfő 116. szám. [Records of the National Assembly, cycle 2014–2018, November 16, 2015, Monday, no. 116] He ended his speech with four proposals: “A new European policy is needed…. I suggest to push dogmas aside, let us discard political correctness and talk straight and openly. I suggest to return from the world of ideologies to natural reason ….”Google Scholar

1 “First we have to defend the external borders of the EU, as security starts with the defence of borders.”Google Scholar

2 “We have to defend our culture as the essence of Europe is its spiritual and cultural identity.”Google Scholar

3 “We have to defend our economic interests as we, Europeans must remain in the center of the world-economy.”Google Scholar

78 See Part D.V (providing details on freeriding).Google Scholar

79 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A European Agenda on Migration, at 4, COM (2015) 240 final (May 13, 2015). “The EU needs a permanent system for sharing the responsibility for large numbers of refugees and asylum seekers among Member States. The Commission will table a legislative proposal by the end of 2015 to provide for a mandatory and automatically-triggered relocation system to distribute those in clear need of international protection within the EU when a mass influx emerges.”Google Scholar

80 See Fokozódik a migráációs nyomás Magyarországon, Kormányzat (Feb. 11, 2016), http://www.kormany.hu/hu/miniszterelnokseg/hirek/fokozodik-a-nyomas-magyarorszagon; Fokozódik a nyomás magyarországon, Fidesz.HU (Feb. 11, 2016), http://www.fidesz.hu/hirek/2016-02-11/fokozodik-a-nyomas-magyarorszagon/.Google Scholar

81 The talk is translated into English and posted on the Prime Minister's official website: http://www.miniszterelnok.hu/speech-by-prime-minister-viktor-orban-on-15-march/ (June 1, 2016).Google Scholar

82 8/2016. (V. 10.) OGY hatzározat országos népszavazás elrendeléséről (Resolution on ordering national referendum).Google Scholar

83 President of Hungary Sets 2 October as the Date for the Referendum, Kormányzat (July 5, 2016), http://www.kormany.hu/en/news/president-of-hungary-sets-2-october-as-the-date-for-the-referendum.Google Scholar

84 The compatibility of the referendum with the obligation of loyal cooperation will be taken up in the breaches of law section.Google Scholar

85 See, e.g., Nyolc tétel sorosgyuri migránspolitikájáról, 888.HU (Oct. 10, 2015), http://888.hu/article-nyolc-tetel-sorosgyuri-migranspolitikajarol.Google Scholar

86 UNHCR in 2012 expressed concern about the serious challenges asylum seekers face in accessing protection in Hungary. It noted that “Since April 2010, asylum detention has become the rule rather than the exception,” mentioned that the practice between 2008 and 2010 was unlawful and continued to criticize the regime after 2010 for lack of effective remedies, unpredictability, and the lack of legitimate aims in many cases. UNHCR, Hungary as a Country of Asylum (Apr. 24, 2012), http://www.refworld.org/docid/4f9167db2.html [hereinafter Hungary as a Country of Asylum]. The Council of Europe's Commissioner of Human Rights also noted the deterring effect of detention, by criticising the 2015 changes and claiming that they “‘rendered access to international protection extremely difficult and unjustifiably criminalised immigrants and asylum-seekers.” Visit to Hungary, Council of Eur. (Nov. 27, 2015), http://tinyurl.com/gvkp8be. In his third party intervention into an Austrian case about returning an asylum seeker to Hungary, he deplored the detention system as arbitrary, implemented in a “particularly worrisome” mode, lacking effective remedy and alternatives. See Third Party Intervention by the Council of Europe Commissioner for Human Rights under Article 36 of the European Convention on Human Rights Applications No. 44825/15 and No. 44944/15, S.O. v. Austria and A.A. v. Austria 5–7, Council of Eur. (Dec. 17, 2015), http://www.coe.int/en/web/commissioner/third-party-interventions [hereinafter Third Party Interventions].Google Scholar

87 Lokpo et Touré v. Hungary, App. No. 10816/10 (Sept. 20, 2011), http://hudoc.echr.coe.int/. Al-Tayyar Abdelhakim v. Hungary, App. No. 3058/11, (Oct. 23, 2012), http://hudoc.echr.coe.int/. Nabil and Others v. Hungary, App. No. 62116/12 (Sept. 22, 2015), http://hudoc.ecgr.coe.int.Google Scholar

88 Asylum Act, 2016 July version, Asylum detention, Art. 31/A:Google Scholar

(1) The refugee authority can, in order to conduct the asylum procedure and to secure the Dublin transfer – taking the restriction laid down in Section 31/B into account – take the person seeking recognition into asylum detention if his/her entitlement to stay is exclusively based on the submission of an application for recognition whereGoogle Scholar

a) the identity or citizenship of the person seeking recognition is unclear, in order to establish them,Google Scholar

b) a procedure is ongoing for the expulsion of a person seeking recognition and it can be proven on the basis of objective criteria – inclusive of the fact that the applicant has had the opportunity beforehand to submit application of asylum – or there is a well-founded reason to presume that the person seeking recognition is applying for asylum exclusively to delay or frustrate the performance of the expulsion,Google Scholar

c) facts and circumstances underpinning the application for asylum need to be established and where these facts or circumstances cannot be established in the absence of detention, in particular when there is a risk of escape by the applicant,Google Scholar

d) the detention of the person seeking recognition is necessary for the protection of national security or public order,Google Scholar

e) the application was submitted in an airport procedure, orGoogle Scholar

f) it is necessary to guarantee Dublin transfer procedures and there is a serious risk of escape.Google Scholar

[Article 31/B exempts unaccompanied minors from detention and excludes detention solely on the basis that the person has applied for asylum].Google Scholar

89 For a comprehensive account, see B. Simonovits & A. Bernát et al., The Social Aspects of the 2015 Migration Crisis in Hungary (2016), http://www.tarki.hu/hu/news/2016/kitekint/20160330_refugees.pdf; see also Annastiina Kallius et al., Immobilizing Mobility: Border Ethnography, Illiberal Democracy, and the Politics of the “Refugee Crisis” in Hungary, 43 Am. Ethnologist 25, 25–37 (2016).Google Scholar

90 Havassy Anna Katalin, Megint dráma a vasútállomáson: újabb koszovói menekülteknek jelentette a végállomást Győr – fotók (Drama again at the railway station: for further Kosovar refugees Győr meant the final station – photos), Kisalföld Online, (Apr. 2, 2015), http://www.kisalfold.hu/gyori_hirek/megint_drama_a_vasutallomason_ujabb_koszovoi_menekulteknek_jelentette_a_vegallomast_gyor_-_fotok/2416482/.Google Scholar

91 Migrant Crisis: Hungary Migrants Start Walk to Border, BBC News (Sept. 4, 2015), http://www.bbc.com/news/world-europe-34155701; see also Kallius et al., supra note 90, at 25–26, 29–30.Google Scholar

92 Croatia Migrant Scramble for Hungary Train, BBC News (Sept. 20, 2015), http://www.bbc.com/news/world-europe-34307014.Google Scholar

93 Rosenblum, Marc R., Border Security: Immigration Enforcement Between Ports of Entry 29 (2012), http://fpc.state.gov/documents/organization/180681.pdf.Google Scholar

94 Supra Part C.III.Google Scholar

95 See infra Part D.iV.Google Scholar

96 Márk Zoltán Kékesi, A Hungarian Mayor Makes a Show of “Migrant-Hunting”, Observers (Aug. 2, 2016), http://observers.france24.com/en/20160802-hungary-mayor-migrant-hunting-asotthalom.Google Scholar

97 “Senior government officials have described NGOs as ‘paid political activists who are trying to help foreign interests’, which encouraged authorities to target human rights organizations through surprise financial audits, criminal investigations and public shaming, thus curtailing their activities.” Michael Forst, End of Mission Statement by Special Rapporteur on the Situation of Human Rights Defenders, Visit to Hungary 8–16 February 2016 (2016), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17048&LangID=E.Google Scholar

Pogany, S., Where Left Meets Right: Anti-Semitism in Europe, Social Europe, https://www.socialeurope.eu/2016/08/where-left-meets-right-anti-semitism-in-europe/ (Aug 1, 2016).Google Scholar

98 UN Expert Urges Hungary Not to Stigmatise and Intimidate Human Rights Defenders, UN Special Rapporteur (Feb. 16, 2016), https://www.protecting-defenders.org/en/news/un-expert-urges-hungary-not-stigmatise-and-intimidate-human-rights-defenders.Google Scholar

99 See supra Part C.III.Google Scholar

100 Directive 2013/32/EU, of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection, 2013 O.J. (L 180) 60–95.Google Scholar

101 Article 38. In the safe third country,Google Scholar

(a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;Google Scholar

(b) there is no risk of serious harm as defined in Directive 2011/95/EU [the Qualification Directive];Google Scholar

(c) the principle of nonrefoulement in accordance with the Geneva Convention is respected;Google Scholar

(d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; andGoogle Scholar

(e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.Google Scholar

(a) rules requiring a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country;Google Scholar

(b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant.Google Scholar

Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe;Google Scholar

(c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that the third country is not safe in his or her particular circumstances. The applicant shall also be allowed to challenge the existence of a connection between him or her and the third country in accordance with point (a).Google Scholar

102 Hungary as a Country of Asylum, supra note 87, at 25 § 71 reports the following: In any event, UNHCR maintains the position taken in its observations on the Serbian asylum system in August 2012 that asylum-seekers should not be returned to Serbia. While the number of asylum-seekers passing through that country has since greatly increased, leaving its asylum system with even less capacity to respond in accordance with international standards than before, many of UNHCR's findings and conclusions of August 2012 remain valid. For example, between 1 January and 31 August 2015, the Misdemeanour Court in Kanjiža penalized 3,150 third country nationals readmitted to Serbia from Hungary for illegal stay or illegal border crossing, and sentenced most of them to a monetary fine. Such individuals are denied the right to (re) apply for asylum in Serbia.Google Scholar

103 “Within the period 1 August 2015 to 31 March 2016, OIN found 1,184 applications to be inadmissible (although whether this was always on safe third country grounds, is unclear). In the same period, 387 applicants submitted a request for judicial review of the OIN's inadmissibility decision – including 114 submitted in the transit zones. In 246 cases, the Courts annulled OIN's decision and referred them back to the OIN.” Id. at 17, § 41.Google Scholar

104 This is a description of the conditions by a competent observer: Notwithstanding an ever-increasing influx of asylum-seekers since 2013 and significant amounts of EU-funding, the Hungarian government has failed to properly extend the country's reception capacities. The open reception centres for asylum-seekers have become extremely overcrowded in Hungary by mid-2015. The facility in Debrecen (the largest in the country), with a capacity of 800, is now hosting over 1 800, on occasions even 2 000 asylum-seekers. The reception centre in Bicske is constantly home to up to 1 200 asylum-seekers, while its maximum capacity is only 450 places. At all reception facilities, asylum-seekers have to sleep on the corridors, in community areas or, especially during heat waves, outside in tents or often on plain mattresses. Hygienic conditions are frequently very problematic, there are not enough showers and lavatories, and crucial services – such as individual social assistance or psycho-social care – are not available.Google Scholar

Hungarian Helsinki Committee, Building a legal fence – Changes to Hungarian Asylum Law Jeopardise Access to Protection in Hungary (Aug. 7, 2015), http://helsinki.hu/wp-content/uploads/HHC-HU-asylum-law-amendment-2015-August-info-note.pdf.Google Scholar

105 Government Resolution 1724/2015 (X. 7.) announcing the closure in Debrecen of the open reception center on October 31, 2015 and of the asylum detention facility on December 15, 2015.Google Scholar

106 on July 22, Hungarian daily Magyar Nemzet reported that, at the time, 1,300 asylum seekers were accommodated in open or closed reception centers of the more than 22,000 that arrived in 2016 (and some may have come in 2015). The same article refers to news reports according to which 20–30 asylum seekers arrive daily in Austria from Hungary. Markotay Csaba, Kihasználatlan menekülttáborok (Underused refugee camps), Magyar Nemzet Online (July 22, 2016), http://mno.hu/belfold/kihasznalatlan-menekulttaborok-1353085.Google Scholar

107 See supra Part C.III.Google Scholar

108 “Currently, only 15–17 people are admitted daily at each zone, leaving hundreds to suffer day and night without any proper support at the EU border,' said Samar Mazloum, head of UNHCR's field office in Szeged.” Fearing rejection in Hungary's cold comfort transit zones UNHCR expresses concern over Hungary's restrictive approaches and the dire situation asylum-seekers face outside the transit zones. Helen Womack, Fearing Rejection in Hungary's Cold Comfort Transit Zones, UNHCR (June 7, 2016), http://www.unhcr.org/news/latest/2016/6/5756b4374/fearing-rejection-hungarys-cold-comfort-transit-zones.html.Google Scholar

109 “Since May, UNHCR staff and partners have collected information on over 100 cases with disturbing allegations of excessive use of force as people try to cross the border. ”UNHCR Alarmed at Refugee Death on Hungary-Serbia Border, UNHCR (June 6, 2016), http://www.unhcr-centraleurope.org/en/news/2016/unhcr-alarmed-at-refugee-death-on-hungary-serbia-border.html.Google Scholar

110 Supra Part C.V.Google Scholar

111 Manfred Nowak, UN Covenant on Civil and Political Rights—CCPR Commentary 278 (1993) cited by Goodwin, Guy S.-Gill, Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection, in Refugee Protection in International Law: UNHCR's Global Consultations on International Protection 195 (Erika Feller, Volker Türk & Frances Nicholson eds., 2003). For an elaborate discussion leading to a wide interpretation of the term “penalty,” see Hathaway, James C., The Rights of Refugees under International Law 405–12 (2005).Google Scholar

112 Supra Part D.II.Google Scholar

113 For the rules see supra Part D.III.Google Scholar

114 Supra Part C.III.Google Scholar

115 An unofficial translation of the laws in force (WolterKluwers jogtár) uses this expression.Google Scholar

116 Act C. of 2012 Article 352/A. Author's translation.Google Scholar

117 “According to the Szeged court, 2,353 individuals were convicted of unauthorized crossing of the border fence between 15 September 2015 and 31 March 2016. Of these, 1,331 were sentenced to expulsion for one year, 943 to expulsion for two years, 33 to expulsion for three years, one to expulsion for four years and one to expulsion for five years. In addition, two were sentenced to actual imprisonment, 36 to suspended imprisonment, four were issued a warning and two were put on probation.” Hungary as a Country of Asylum, supra note 87, at 22 § 57.Google Scholar

118 UNHCR notes that between September 15, 2015, the completion of the fence with Serbia, and March 31, 2016, only 298 individuals were readmitted by Serbia, seventy-eight of them Serbian nationals. Id. at 25 § 68.Google Scholar

119 The Government's homepage reported the statement of the director of the Office of Nationality and Immigration, according to which more than 414,000 irregular entries into Hungary have been recorded in 2015. As the number of applications for international protection 177,135, the almost 240,000 difference includes persons who did enter, but did not apply for asylum, most of whom were actively transported by the Government to the Austrian border. The source of the 414 000 figure is: Rendkívüli migrácios nyomás érte Magyarországot tavaly, Kormänyzat (Jan. 18, 2016), http://www.kormany.hu/hu/belugyminiszterium/parlamenti-allamtitkarsag/hirek/rendkivuli-migracios-nyomas-erte-magyarorszagot-tavaly.Google Scholar

120 “Két magyar embercsempészt és hat illegális bevándorlót fogtak el Hegyeshalom közelében a mosonmagyaróvári rendőrök” (Two Hungarian human smugglers and six illegal immigrants have been arrested in the vicinity of Hegyeshalom by the police of Mosonmagyarovar“). Erröl Tudnia Kell, Embercsempészeket fogtak el Hegyeshalom közelében, Origo (Aug. 31, 2015), http://www.origo.hu/itthon/20150831-embercsempesz-menekult-hegyeshalom.html.Google Scholar

121 The author was informed about such cases directly. See Greiner, Von Lena, Privatleute holen Flüchtlinge von der Straße, Spiegel Online (Sept. 6, 2015), http://www.spiegel.de/politik/ausland/fluechtlinge-im-autokonvoi-von-ungarn-nach-oesterreich-a-1051662.html.Google Scholar

122 The daily newspaper Magyar Nemzet reporting on a radio interview of Viktor Orbán broadcasted by the radio station “Kossuth” on September 18, 2015. Orbán: Épül a kerítés a horvát határon, MNO (Sept. 18, 2015), http://mno.hu/belfold/orban-epul-a-kerites-a-horvat-hataron-1304874.Google Scholar

124 Razor-Wired: Reflections on Migration Movements Through Slovenia in 2015 8–10 (V. Bajt & N. Kogovšek Šalamon eds., 2016).Google Scholar

125 Elutasítja a kvótarendszert a magyar kormány (The Hungarian Government refuses the quota-system), Kormányzat (Oct. 29, 2015), http://www.kormany.hu/hu/miniszterelnokseg/hirek/elutasitja-a-kvotarendszert-a-magyar-kormany.Google Scholar

126 Hungary is Suspending Re-Admission of Asylum-Seekrs from Other EU Member States, Kormányzat (June 23, 2015), http://www.kormany.hu/en/ministry-of-interior/news/hungary-is-suspending-re-admission-of-asylum-seekers-from-other-eu-member-states.Google Scholar

127 Eur. Council on Refugees and Exiles, Case Law Fact Sheet: Prevention of Dublin Transfers to Hungary (2016), http://www.asylumlawdatabase.eu/sites/www.asylumlawdatabase.eu/files/aldfiles/Fact%20sheet%20-%20Case%20law%20on%20Hungary_FIN.pdf.Google Scholar

128 On the process see Groenendijk, Kees & Nagy, Boldizsar, Hungary's Appeal Against Relocation to the CJEU: Upfront Attack or Rear Guard Battle?, EU Immigration & Asylum Law & Pol'y (Dec. 16, 2015), http://eumigrationlawblog.eu/hungarys-appeal-against-relocation-to-the-cjeu-upfront-attack-or-rear-guard-battle/.Google Scholar

129 Relocation decisions, adopted as of September 14, 2015 and Council Decision (EU) 2015/1601, of 22 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece, 2015 O.J. (L 248/80). The resettlement decision took the form of conclusions of the (JHA) Council Doc. No. 11130/15, Conclusions of the Representatives of the Governments of the Member States Meeting Within the Council on Resettling Through Multilateral and National Schemes 20,000 Persons in Clear Need of International Protection (July 22, 2015) [hereinafter JHA Council Doc. No. 11130/15].Google Scholar

130 JHA Council Doc. No. 11130/15, supra note 132.Google Scholar

131 The Commission proposed an in-depth redesign of the Dublin system, including a “corrective allocation mechanism” based on a reference number. The mechanism re-distributes asylum applicants into other member states if, in the given member state, their number exceeds 150% of the reference number, which in turn is established on the basis of a reference key giving 50–50% weight to the size of the population and the total GDP. Proposal for a Regulation of the European Parliament and of the Council Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in one of the Member States by a Third-Country National or a Stateless Person (Recast), COM (2016) 270 Final (May 4, 2016).Google Scholar

132 Act CLXXV. “In defence of Hungary and Europe, for the action against the compulsory in -settlement quota.” (Magyarország és Európa védelmében a kötelező betelepftési kvóta elleni fellépésről). Note that the word used to designate the attacked EU measure is not the Hungarian term for “relocation” which is “áthelyezés,” but a different expression, “betelepités,” which has a sinister overtone in Hungarian, referring to an alien power which against the will of the local population brings in “alien” settlers.Google Scholar

133 Proposal for a Council Decision Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy, Greece and Hungary, COM (2015) 451 final (Sept. 9, 2015).Google Scholar

134 “As Hungary however does not wish to be included as beneficiary of the emergency relocation scheme, the Council agreed that (an)other Member State(s) confronted with a similarly evolving pressure following a sudden inflow of nationals of third countries could benefit instead.” European Commission - Fact Sheet: Refugee Crisis – Q&A on Emergency Relocation, What is the European Agenda on Migration and What is its State of Play?, Eur. Comm'n (Sept. 22, 2015), http://europa.eu/rapid/pressrelease_MEMO-15-5698_en.htm.Google Scholar

135 Case C-647/15, Hungary v. Council of the European Union, 2016 E.C.R 43.Google Scholar

136 Case C-643/15, Slovak Republic v. Council of the European Union, 2016 E.C.R. 41.Google Scholar

137 Zuzana Vikarska, The Slovak Challenge to the Asylum-Seekers' Relocation Decision: A Balancing Act, EW Law Analysis (Dec. 29, 2015), http://eulawanalysis.blogspot.de/2015/12/the-slovak-challenge-to-asylum-seekers.html.Google Scholar

138 Of the 160,000 persons to be relocated on the basis of the two September 2015 decisions, 2,280 people have been relocated by June 15, 2016. Relocation and Resettlement - State of Play, Eur. Comm'n (June 15, 2016), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/background-information/docs/20160615/factsheet_relocation_and_resettlement_-_state_of_play_en.pdf.Google Scholar

139 Groenendijk & Nagy, supra note 131.Google Scholar

140 Supra Part D.I.Google Scholar

141 Decision of the Hungarian Parliament. 8/2016. (V. 10.) OGY. határozat. http://net.jogtar.hu/jr/gen/hjegy_doc.cgi?docid=A16H0008.OGY&timeshift=fffffff4&txtreferer=00000001.TXT Google Scholar

142 Due to the enhanced access to Hungarian nationality without moving to Hungary several hundred thousand persons were naturalized in a simplified process. 754,347 persons have acquired Hungarian nationality (and voting rights) by April 30, 2016. Dániel Kacsoh, Hétszázötvennégyezer új honosítás (Seven hundred fifty four thousand new naturalizations), Magyarhirlap.hu (June 15, 2016), http://magyarhirlap.hu/cikk/58382/Hetszazotvennegyezer_uj_honositas.Google Scholar

143 KnK.IV.37.222/2016/9 5004 (May 3, 2016). Published in Magyar Közlöny (Official Gazette).Google Scholar

144 Id. at § 41.Google Scholar

145 Id. at § 43.Google Scholar

146 Id. at § 44.Google Scholar

147 Id. Google Scholar

148 Id. at § 42.Google Scholar

149 Meaning “extended its competence.”Google Scholar

151 For details see Krisztina Kovács, Access to Justice? Migration Cases Before the Constitutional Court of Hungary 4–5 (July 27, 2016).Google Scholar

152 Whatever the outcome, neither the Hungarian Parliament nor the EU bodies is obliged to adopt or to revoke any legislation. On the one hand, even if the subject matter of the referendum was the future Dublin regime—which the Supreme Court could not envisage, as the Commission proposal came later than the submission to it —the Government would not need its support. In the ordinary legislative procedure it may cast a negative vote. On the other hand, no referendum may exempt it from implementing binding EU regulations.Google Scholar

153 Data Relating to the Result of the National Referendum, Nat'l Election Office (Oct. 8, 2016), http://www.valasztas.hu/en/ref2016/481/481_0_index.html.Google Scholar

154 Prime Minister Viktor Orbán Informs EC President of Referendum Result Via Letter, Kormányzat (Oct. 6, 2016), http://www.kormany.hu/en/the-prime-minister/news/prime-minister-viktor-orban-informs-ec-president-of-referendum-result-via-letter.Google Scholar

155 “The change will set down a framework that includes our constitutional identity, which covers territory, people and population, as well as state structure and form of government”—Statement by the Minister of Justice, Mr. Trócsányi at a press conference on October 5, 2016. The constitutional amendment will protect our national and constitutional identity.Google Scholar

156 United Nations, Treaty Series, vol. 189, p. 137. Article 31 states that Refugees unlawfully in the country of refuge:Google Scholar

157 An ocean of literature surrounds this topic. See generally, e.g., On Article 31: Goodwin, Guy S.-Gill, Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection, in Refugee Protection in International Law: UNHCR‘s Global Consultations on International Protection 185–252 (E. Feller, V. Türk & F. Nicholson eds., 2003); G. Noll, Article 31, in The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1243–76 (A. Zimmermann, F. Machts &J. Dörschner eds., 2011); Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement, in Refugee Protection in International Law: UNHCR‘s Global Consultations on International Protection 89–177 (E. Feller, V. Türk & F. Nicholson, eds., 2003); Goodwin, Guy S.-Gill & J. McAdam, The Refugee in International Law 201–67 (3d ed. 2007); James Hathaway, Leveraging Asylum, 45 Tex. Int'l L. J. 503 (2009–2010); Hemme Battjes, In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement Under Article 3 ECHR Reassessed, 22 Leiden J. of Int'l L. 583 (2009); Cathryn Costello, The Search of the Outer Edges of Nonrefoulement in Europe: Exceptionality and Flagrant Breaches, in Human Rights and the Refugee Definition Comparative Legal Practice and Theory 180–209 (B. Burson & D. J. Cantor eds., 2016).Google Scholar

158 Hungary as a Country of Asylum, supra note 85, at 23 § 62.Google Scholar

159 Mr. Husain Ibrahimi and Mr. Mohamed Abasi v. The Secretary of State for the Home Department, [2016] EWHC 2049 (Eng. & Wales).Google Scholar

160 Id. at Para. 148.Google Scholar

161 Id. at Para. 161. The Evidential Summary of the judgment contains a long list of judgments and decisions reversing decisions on return to Hungary.Google Scholar

162 G.A. Res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195.Google Scholar

163 Id. at Art. 4.Google Scholar

164 Viktor Orbán at a press conference with Austrian chancellor Kern. Hungarian Primse Minister Says Migrants are ‘Poison’ and ‘not needed’, Guardian (July 26, 2016), https://www.theguardian.com/world/2016/jul/26/hungarian-prime-minister-viktor-orban-praises-donald-trump.Google Scholar

165 Third Party Interventions, supra note 87, at 7 § 31.Google Scholar

166 Ref. Ares(2015)4109816 (June 10, 2015), http://www.statewatch.org/news/2015/oct/eu-com-letter-hungary.pdf; Hungarian Helsinki Comm., No Country for Refugees – New Asylum Rules Deny Protection to Refugees and Lead to Unprecedented Human Rights Violations in Hungary (2015), http://helsinki.hu/wp-content/uploads/HHC_Hungary_Info_Note_Sept_2015_No_country_for_refugees.pdf.Google Scholar

167 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection, at 96–116, 2013 O.J. (L 180).Google Scholar

168 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection, at 60–95, 2013 O.J. (L 180).Google Scholar

169 See infra Part D.IV.Google Scholar

170 Agreement between the European Community and the Republic of Serbia on the Readmission of Persons Residing Without Authorisation, 2007 O.J. (L 334/46).Google Scholar

171 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third Country Nationals, at 98–107, 2008 O.J. (L 348).Google Scholar

172 At present, Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code), at 1–52, 2016 O.J. (L 77). At the most material time, Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 Establishing a Community Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code), at 1–32, 2006 O.J. (L 105).Google Scholar

173 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the Right to Interpretation and Translation in Criminal Proceedings, at 1–7, 2010 O.J. (L 280).Google Scholar

174 The whole new package of the EU acquis recast was presented in Spring and Summer of 2016.Google Scholar

175 Act CXXXI of 2010 on the public participation in the preparation of laws.Google Scholar

176 See, e.g., The Hungarian Helsinki Committees Comments in Spring 2016 (Mar. 7, 2016), http://www.helsinki.hu/wp-content/uploads/Menekultugyi_modositasra_Helsink_-eszrevetelek_20160307.pdf.Google Scholar

177 See, e.g., Klamert, Marcus, The Principle of Loyalty in EU Law (2014).Google Scholar

178 The CJEU will decide if in fact it is a legislative act or not.Google Scholar

178 Asylum seekers, refugees, and other migrants are involved in crimes, but not to the extent justifying the extent of hostility produced by the Hungarian Government's discourse.Google Scholar

179 Ibrahimi, [2016] EWHC § 159.Google Scholar