EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Boldizsár Nagy, Central European University

On 7 March 2017, Hungary required by law the compulsory detention of every single asylum seeker in the transit zones at the border with Serbia. The tightening of the legislation met fierce resistance by UNHCR and other major actors. On 14 March, the European Court of Human Rights declared the detention of two Bangladeshi asylum seekers contrary to the European Convention in the case of Ilias and Ahmed v. Hungary. The judgment of the court irritated the Hungarian Government which did not spare its criticism, not only towards the court but also towards the NGOs supporting the cause of asylum seekers and the Hungarian Helsinki Committee representing the respective two applicants in particular.

So the canyon between the European Union and its Member States, united for the maintaining of European (liberal) values, and the ruling party-alliance in Hungary, FIDESZ-KDNP, seems to widen day by day, as shown by the repeated discussion of the Hungarian situation in the European Parliament, for instance on 26 April 2017. Academic commentaries, for example by Maria Gil-Baso also point to the incompatibility of the new rules with EU law.

The 2017 March amendment to the Asylum Law

The developments of Hungarian rules on asylum and borders may be described as a story of continuous tightening of access to territory and asylum procedures since the summer of 2015. This project of the Government is based on an ill-conceived securitising, majority identitarian populist narrative which replaces the figure of asylum seeker with the threatening “illegal migrant” who must be contained outside of Hungary with the help of deterrence and the threat of punishment.

The most recent chapter of this tale of ‘crimmigration’ and right wing populism has been written by Act No XX of 2017 and its implementing rules. As a classical example of the Orwellian Newspeak, the law avoids mentioning the core idea of the change: that every single irregularly arriving or staying asylum seeker is to be detained. It is a prime example of post-truth action, as the whole construct is based on the lie according to which Hungary is under particular pressure of irregular migration. This is the scheme described in the Orwellian language of the law: if “a crisis situation caused by mass immigration” emerges, then a “police officer leads the person illegally staying in the territory of Hungary and declaring their intention to submit an application for asylum through the gate of the [border fence with Serbia.] The foreigner shall submit an application for asylum [in the transit zone protruding from the fence]. … The refugee authority shall appoint the territory of the transit zone for the person seeking recognition as place of residence for the period until the adoption of a final decision: this cannot be challenged by way of applications for remedy… The person seeking recognition can leave the territory of the transit zone via the exit gate” (Article 80/J of the Asylum Act LXXX of 2007 as amended).

The coded language avoiding any reference to detention means this: whoever is irregularly in Hungary will be delivered by police force to the border fence with Serbia, and pushed through it to the few meters wide strip still under Hungarian jurisdiction, practically a no man’s land, beyond which there is Serbian territory. The person according to Serbian law is naturally not allowed to enter Serbia legally. The removed asylum seeker then may walk the distance to the closest “transit zone”, meaning a closed, fenced, heavily guarded  container complex, where she may try to get admission after days or weeks of waiting as only 5 persons per day get access to each transit zone. During the asylum procedure conducted in the transit zone she is detained without judicial or other review, until the end of the asylum procedure – not only the administrative but also the court procedure, following appeal. She is not entitled to enter the rest of Hungary. The “exit gate” opens to the few meter wide dirt road running in parallel with the fence on the outside, beyond which Serbia lies. Exempt from this procedure are only those, who apply while regularly staying in Hungary, minors under the age of 14 years and those who are detained on other grounds. The law was applicable to those who at the moment of its entry into force were still in open reception centres. They were to be transported into the detention (transit) zone.

The drastic post-truth character of the situation is highlighted by the fact that none of the conditions of the crisis situation have ever been met, nevertheless the Government repeatedly declared that there was a crisis situation, most recently on 6 March 2017. The exceptional powers based on the existence of the “crisis situation caused by mass influx” were first only applicable to those who were apprehended right at the border, then, since 5 July 2016 to those who were apprehended within 8 kilometres of the Hungarian – Serbian border. The amendment that entered into force on 28 March 2017 extended its applicability to the whole territory of the State. That entails the side-lining of the regular law in favour of the unfettered security powers of the law enforcement agencies. In reality, it amounts to an almost total denial of access to the Hungarian territory and practically an insurmountable barrier in the way of access to refugee status determination.

International and national critique

This blatant violation of international and European refugee law led to resolute protests both at the UN and at EU level. A press release of UNHCR published on 10 April 2017 reported the High Commissioner’s deep disappointment and irritation: “ The situation for asylum-seekers in Hungary, which was already of deep concern to UNHCR, has only gotten worse since the new law introducing mandatory detention for asylum-seekers came into effect” said Filippo Grandi, United Nations High Commissioner for Refugees. “Given the worsening situation of asylum-seekers in Hungary, I urge States to suspend any Dublin transfer of asylum-seekers to this country until the Hungarian authorities bring their practices and policies in line with European and international law”, he added.” Note that the High Commissioner did not hesitate to call it what it was: mandatory detention.

D. Avramopoulos, the EU Commissioner responsible for asylum paid a visit to Hungary on 28 March and in a less than compelling statement at the press conference ending his visit, declared that “[i]n a very friendly spirit of positive cooperation we decided to work together through our experts and ensure that EU rules also are complied with.” F. Timmermans, the first vice president of the Commission used a more resolute tone in his speech opening the debate on the (general) situation in Hungary, on 26 April 2017. He stated that the new asylum law raised “serious doubts about compatibility with EU law” and added that if the discussions started by Commissioner Avramopoulos “do not produce timely results, the Commission will not hesitate to take further action.” The European Parliament called for the complete repeal of the amendment to the Asylum act in its resolution adopted on 17 May 2017 following the debate held in April.

Other governmental and non-governmental actors also vociferously protested. The Human Rights Commissioner of the Council of Europe, Nils Muižnieks spoke of his “deep concern” about the prospect of exacerbating the “already highly problematic situation of asylum seekers in Hungary”. The seven most important Hungarian NGOs issued a common statement condemning the law. After a de facto stop in April, Germany formally halted transfers to Hungary under the Dublin regulation because of the systematic detention, push backs and the lack of integration perspectives in the country.

The negotiations between the EU and Hungary initiated by D. Avramopoulos led to nowhere. The government in a communique of 3 May 2017 entitled “the Hungarian Government does not bow to the pressure from Brussels”, announced that it had ended them and was awaiting the legal confrontation with the Commission. The communique is straightforward and represents the narrative Hungary is pushing against all odds: “The representatives of the Brussels Commission disapprove the existence of the transit zones. The Government of Hungary wishes to maintain the transit zone under any circumstances as the transit zone, together with the fence guarantees the security of the Hungarian citizens and of Europe.”

The European Commission decided on 17 May 2017 to react by sending a letter of formal notice on 17 May 2017, considering that “the systematic and indefinite confinement of asylum seekers, including minors over 14, in closed facilities in the transit zone without respecting required procedural safeguards, such as the right to appeal, leads to systematic detentions, which are in breach of the EU law on reception conditions and the Charter of Fundamental Rights of the EU”. The Commission left the Hungarian authorities two months to respond. It will be interesting to see what will be the outcome of the opening of this infringement procedure.

Confrontation appears more and more as the chosen path. The question is, whether the Government may come out victoriously of that fight. There are signs written large (by the ECtHR), according to which this is impossible within the rule of law.

The case Ilias and Ahmed v Hungary before the ECtHR

The transit zone, the treatment of asylum seekers in it and their return to Serbia was the subject matter of the long judgment of the European Court of Human Rights in the Ilias and Ahmed v Hungary case. The decision of the Court is seen as a milestone judgment. It may gain the same importance as M.S.S. v. Belgium and Greece of the ECtHR or the cases A.S. v Republic of Slovenia and Jafari v Austria of the CJEU, all dealing with the coercive measures (within the Dublin system, or involving an allegedly safe third country) applied in respect of asylum seekers. Three essential questions were answered by the Ilias and Ahmed decision:

1. Does holding persons in the so called transit zone, with an exit door open towards Serbia still qualify as detention?
2. Provided it does, could it be justified in respect of every asylum seeker, without considering specific, personalised reasons justifying detention?
3. Was the coerced return to Serbia as a safe third country contrary to Article 3 of the ECHR?

The court also considered if the treatment within the transit zone amounted to inhuman treatment as claimed by the applicants, but based on the report of the CPT refused the claim.

Ilias and Ahmed, two Bangladeshi asylum seekers, arrived in Hungary several years after they had left Bangladesh and immediately applied for asylum. They came with the 2015 fall movements and were among the early victims of the new very restrictive regime, forcing every asylum seeker approaching the fence into the transit zone – at that time only for the period of a de facto eligibility procedure establishing if the applicant could be returned to Serbia as to a safe third country, without investigating the merits of the application. The authority and the court found them returnable and after 23 days in the transit zone they left it towards Serbia.

As it is the constant practice, the ECtHR  did not assess the merit of their asylum claim, it only deliberated the question, whether their holding in the transit zone and removal to Serbia was compatible with the ECHR.

1) The court flatly refused the Hungarian Government’s argument, according to which keeping persons in the transit zone is not detention in the sense of Article 5 (1) of the ECHR as they can always choose to leave towards Serbia. Having found that the restriction of liberty and deprivation of liberty may be related and their difference is one of degree and intensity, “not of nature and substance” (para 53), the court turned to the specificity of deprivation of liberty (detention). According to the seven judges it contains an objective and a subjective element. Objective is that the confinement takes place for a not negligible length of time and the type, effects and the manner of the confinement, including the degree of control and supervision together with the isolation determine whether the confinement qualifies as detention. The subjective element is the lack of consent.

As the applicants were not allowed to enter the rest of Hungary and could not be expected to leave towards Serbia, as that would have entailed the giving up of their asylum application, their detention was not in accordance with their will. The circumstances met the objective criteria. So holding Ilias and Ahmed in the transit zone of Röszke for 23 days amounted to detention irrespective of the domestic characterization of their holding in the zone.

2) Was it legal? The court, again unanimously, found it was not. The judgment reiterated the long standing view of the court that Article 5 contained an exhaustive list of detention. In a remarkable move, it also refers to the Reception Conditions Directive (Directive 2013/33) (without discussing if all the grounds listed there correspond to one of the Article 5 grounds). It quoted approvingly the Asylum Procedures Directive (Directive 2013/32) according to which nobody should be held in detention for the sole reason of being an applicant for asylum. The court then noted that the specific conditions fixed in Article 31/A of the Hungarian Asylum Act allowing for so called “asylum detention” had not been met.

Moreover, no formal decision on detention had been taken and judicial authorities had not given grounds for their authorisation of the detention in the transit zone. All that made detention in the transit zone arbitrary, therefore in breach of Article 5 (1). Since no formal decision on detention is taken in the transit zone procedure (and it is pretended that it is not detention), no formal legal remedy is available. Only the administrative decision on denial of refugee status may be appealed, which does not lead to a review of the lawfulness of detention – so Article 5 (4) is also breached by the law and the practice. Although the detention conditions were not found to be in violation of article 3 of ECHR, the lack of legal remedy addressing an arguable claim of ill-treatment was.

3) The last segment of the judgment dealt with the sensitive issue of whether Serbia in 2017 was a safe third country. According to Government Decree no. 191/2015. (VII.21.) on safe countries of origin and safe third countries, Serbia – as all other EU candidate states, including Turkey – is considered as a safe third country and at the same time a safe country of origin. Therefore the burden of proof was shifted to the applicants to rebut the legal presumption. The situation is well characterised by the Court’s dry words: “The applicants are illiterate, nonetheless all the information they received on the asylum proceedings was contained in a leaflet.” (para 124) So they could not prove that there was a danger of chain refoulement to Greece and the Hungarian court ignored the evidence adduced by their lawyer who because lack of access to the two men earlier, could only join the case before a second hearing at the court.

The ECtHR demanded that the country about to remove someone conducts a proprio motu assessment of the risk of violation of Article 3 in the destination country, or further down the chain. As this did not happen in the case at hand, it found Hungary in breach of Article 3 for withholding those effective guarantees which would have protected the applicants from exposure to a real risk of being subjected to inhuman or degrading treatment in breach of Article 3 of the Convention. Remarkably, the ECtHR did not directly qualify Serbia unsafe or safe, just noted that the abrupt change in the Hungarian practice, which did not consider Serbia a safe third country until 2015 was not explained by the Government.

The judgment is of paramount importance in light of the most recent amendment to the law. As the procedure in the transit zone is codified as a sui generis procedure and not as a border procedure under the Procedures Directive, it is not limited in time. Applicants are to be detained until the end of the court review of the asylum procedure, which may take months. In light of the ruling, there is no doubt that the present transit zone regime is even more illegal than its predecessor assessed in the judgment was.

The reaction of Hungary against the ECtHR

The reaction of the Government amounted to contempt of the court. Minister János Lázár head of the Prime Minister’s Office announced that the judgment was “unacceptable and unenforceable”. A long quote from the government homepage reporting on the press conference sheds light on the language used and on the mentality of the government blaming the Strasbourg Court and the Hungarian Helsinki Committee for protecting human rights when – according to the Government – issues of sovereignty are at stake: “Hungary insists, based on the principle of the reinforcement of sovereignty, that it should have the right to decide whom to take in and whom to expel. The human rights court, however, takes the view that it is not the Hungarians that should decide who may live in Hungary, but based on the recommendation of the Hungarian Helsinki Committee – which represented the two Bangladeshi nationals –, the Strasbourg court will make that decision…”

No need to stress that the question in the case was not “who may live in Hungary”, neither would anyone outside of the Hungarian Government circles believe that the European Court of Human Rights adopts judgments based on “recommendations” of the representatives of the claimants.

Minister Lázár added that he “found it sad that the Hungarians working in the Helsinki Committee do not understand that the community of Hungarians does not want to let illegal immigrants in.” (ibid). While the appeal of the Government to the Grand Chamber of the ECtHR is still pending, voices coming from an NGO close to the Government and certain members of Parliament already raised the possibility of withdrawing from the ECHR.

To conclude about illiberals at work

The virtually total denial of access to asylum in Hungary, the attacks at any institution, be it the European Court of Human Rights, the European Commission or the domestic human rights protecting sector which does not approve these policies, the effort to eradicate dissent by introducing a law stigmatizing NGOs that are supported from abroad including the ones working for the refugees raise the question whether this level of illiberalism is to be tolerated within the Council of Europe and the EU.

A clear and broad diagnosis of the demolition of the rule of law in Hungary was delivered by the European Parliament in its resolution adopted on 17 May 2017: “the developments in Hungary have led to a serious deterioration of the rule of law, democracy and fundamental rights over the past few years, inter alia, freedom of expression, academic freedom, the human rights of migrants, asylum seekers and refugees, freedom of assembly and association, restrictions and obstructions to the activities of civil society organisations, the right to equal treatment, the rights of people belonging to minorities, including Roma, Jews and LGBTI people, social rights, the functioning of the constitutional system, the independence of the judiciary and of other institutions and many worrying allegations of corruption and conflicts of interest, which, taken together, could represent an emerging systemic threat to the rule of law in this Member State; [the Parliament] believes that Hungary is a test for the EU to prove its capacity and willingness to react to threats and breaches of its own founding values by a Member State…”

Not only the majority of MEPs of the European Parliament are aware of the illiberal threats. The presidium of the EPP has “summoned” Prime Minister Orbán to a meeting which ended in EPP president Joseph Daul stating that “The constant attacks on Europe, which Fidesz has launched for years, have reached a level we can not tolerate.” (ibid) The European Court of Human Rights found violation of at least one article of the Convention in 40 cases against Hungary, out of the 41 decided in 2016. At the end of 2016 the European Commission had the largest number of open infringement cases against Hungary in the last five years.

The virtual termination of offering protection to refugees, the total denial of participating in the EU relocation and resettlement scheme, the direct bombardment of the Hungarian population with “national consultation” letters claiming that the Brussels “bureaucrats want to force us…to let in illegal immigrants” and repeated billboard campaigns generating hatred against the foreigners and against George Soros, who according to the Prime Minister “uses his wealth, power, influence and a network of non-governmental organizations (NGOs) funded by him to settle millions of migrants in Hungary and the European Union puts our future in jeopardy” (ibid) presumably are parts of a larger scheme, aiming at a nationalist, illiberal authoritarian rule, that stifles all dissent.

Today protecting the rights of refugees in Hungary amounts to defending the rule of law, democracy, and the values forming the foundation of the EU. It is not a task to be left to refugee lawyers alone.