JURIST Guest Columnist Bettina Nemeth, a partner in LexMetis, discusses Hungary’s approach to the refugee crisis. . .

In June of 2015, the Secretary of Interior Dr. Sándor Pintér, filed a legislative bill in the Hungarian Parliament to overhaul the country’s asylum proceedings and to restructure the border police force. The Parliament debated the bill and overwhelmingly approved it on March 6, 2017, with 138 members voting “yes”, 6 voting “no”, and 22 members abstaining. The Asylum Amendments became the new Asylum Law in March of 2017 and contains four main provisions:

1. The Government has the authority to designate “transit areas” around the country, which are places of temporary stay for applicants of asylum in Hungary. The primary purpose of the law is to prevent the free movement of individuals that have been denied asylum or those that have pending asylum applications.
2. The Government can seek relocation remedies against those individuals that flee from the “transit zones” while their applications are pending, and transfer them back to the transit zones anywhere in the country.
3. The Government can detain unaccompanied minor children between the ages of 14-18 in the transit zones when they cross over the Hungarian border.
4. Asylum proceedings need not be held in the native language or a language spoken by the applicant for asylum.

There were also some procedural changes which now allow the hearing to be conducted by electronic means without transporting the applicant to the court or judicial body where the hearing will take place. Further changes in the law were also adopted to accelerate and simplify the entire process and also to exclude legal tactics that may end the asylum proceedings through judicial review. Court orders are only allowed in very limited circumstances when the asylum seeker somehow frustrates the process or he/she does not have the intention to proceed through such a process. For example, a termination of the proceedings by an order of the court is allowed if: (a) the asylum seeker withdraws the application in writing; (b) he/she refuses to file the necessary declarations; (c) he/she refuses to volunteer the taking of the fingerprints or photographs; and (d) the asylum seeker leaves the transit zone. There is however, a right of appeal for further judicial review in the event the asylum petition is denied, provided the request for further relief is filed within three days from the receipt date of the decision. The Asylum Authority also has three days to forward the application for further judicial review to the Court.

Relevant to this law is the referendum held in Hungary on October 2, 2016, which had a very specific question on the ballot: “Do you want the European Union to have the right to mandate the resettlement of non-Hungarian citizens to Hungary without the approval of the Hungarian Parliament?” While only 41.32% of the eligible voters actually voted, which resulted in the invalidation of the referendum since Hungarian law requires a minimum of 50% turnout, 98.36% of the votes casted were “No”. While there has been a lot of criticism of the Government for placing such a question on the ballot, the referendum could be seen as social consensus that Hungarians are not in favor of open borders and the imposition of refugee mandated policies from the EU.

According to Amnesty International, the Asylum Law (or the “Container Camp Bill” as Amnesty International refers to it) is a flagrant violation of international law, as it is a continuous detention and a restraint of the freedom of movement of asylum seekers without the issuance of warrants for arrest, rights of appeal or any judicial oversight. Of particular concern is the section in the legislation that affects minor children between the ages of 14-18, which are now excluded from the Child Protection Laws. However, Amnesty International’s commentary fails to reference the consistent problem Hungarian authorities were facing when adult asylum seekers claimed falsely that they were below the age of 18 for more favorable treatment.

Of particular interest is also the recent decision of the European Court of Human Rights, in Ilias and Ahmed v. Hungary, where the Court held that the place of stay in the transit zones is unlawful detention; the lack of any rights of the detainees is a violation, and the procedures at the borders are unfair. The Court also held that a detainee in the transit zones has the same rights as any other detainee in Hungary because the transit zones are within the jurisdiction of the Hungarian State. The Prime Minister of Hungary, Viktor Orban, commented that the uncontrolled migration crisis is an act of aggression against Hungary necessitating the closing of the borders. He declared that Hungary is under siege and the legislation is in line with EU law as the necessary defensive measures are nothing more than an attempt to defend the national integrity of Hungary. He also stated that the Hungarian viewpoint is controlling in these tumultuous times. In response to a question by a journalist, the Prime Minister added: “It is not easy to be a good European in Central Europe, since countries in the region have different historical legacies, different kinds of instincts on some issues which may vary due to local traditions and values. These differences can lead to the implementation of different approaches to the issue of migration, although, the Central European approach is becoming the standard.”

From the Central European perspective, Hungary is simply taking steps to deal with international terrorism and the inherent difficulties in vetting terrorists that claim to be refugees or migrants when they enter Hungary. For Hungarians, this method of infiltrating to Europe, is arguably similar to when terrorists use civilians as human shields in Aleppo, Syria or in Mosul, Iraq. Despite that, Hungary has been wrongly portrayed as insensitive to the plight of refugees simply because it has taken steps that are a departure from the EU policies that deal with this unprecedented crisis. Many Europeans also fail to see that the dismantling of border controls between member countries will not immediately lead to the unification of values, traditions and opinions in European nations. There will be divergence and disagreement, as there will be implementation of different policies that seek to protect national identities.

Although Hungary’s approach may not be popular in many ideological centers, the prevalent opinion and the majority of the political leaders in Hungary see the adoption of this law as a necessary proactive measure given the deadly terrorist attacks in the EU over the last few years. Furthermore, the lack of a cohesive approach by the EU in dealing with the migration crisis leaves member countries to take matters into their own hands as they seek to protect their citizens from terrorists crossing their borders. One only has to look at some of EU’s policies in Turkey and Greece, which have been implemented to keep the “migration problem” away from the EU borders by flooding money to both countries or by mandating the acceptance of certain number of refugees by each member nation. This could be viewed as inducement of the Turkish and the Greek Governments that are asked to stop the flood of migrants into the EU, when what is required is a comprehensive approach that deals with the underlying causes of this human tragedy. It could also be argued that Hungary’s position is just a calling for a complete revaluation of the EU migration policies and a stern warning that Hungary will not stand idle when the EU policies fail to adequately protect Europeans from the threat of international terrorism. Funding programs to keep refugees in Turkey and Greece temporarily will not be sufficient to deal with the migration crisis in the long run. What may work is a common, effective plan that is based on mutual cooperation and the acceptance of the general principle that EU member countries must be free to implement policies that affect the protection of their citizens. Unity in the European Union will not be accomplished by indifference to popular but different values in member countries.

Bettina Nemeth has a doctorate of laws degree from Eötvös Loránd University Faculty of Law (“ELTE”) in Budapest, Hungary and is a partner in LexMetis, an international consulting firm based in Istanbul, Turkey and Boston, USA.

Suggested citation: Bettina Nemeth, Is Hungary’s approach to the refugee crisis a test of the European Union unity?, JURIST – Professional Commentary, Apr. 14, 2017, http://jurist.org/hotline/2017/04/Bettina-Nemeth-hungary-refugee-crisis.php