Will Hungary’s detention practices put an end to the Common European Asylum System?

The Common European Asylum System (CEAS) is today much less ‘common’ than it used to. Large-scale arrivals of refugees in 2015 have tempted Member States, starting with Hungary, to act unilaterally and in complete violation of EU rules. 
Are Hungary’s unpunished waves of massive detention paving the way for other national governments to openly violate EU regulations? Would this race to the bottom signal the end of CEAS and its Dublin System?
In turn, will European institutions manage to force governments to comply with its legislation?

This article will look into these questions.

Hungary and Detention

Detaining asylum-seekers is unfortunately a longstanding national tradition in Hungary. The country was condemned in 2012 by the European Court of Human Rights for unlawfully detaining asylum seekers based on cases reported by civil society organisations dating back to 2009. And detention has become a priority for the current Prime Minister Victor Orbán who generalised the practice in August 2010 with harsher legislation, making it the rule rather than the exception for most asylum-seekers in the country.

The 2012 condemnation led the Orbán government to temporarily suspend the practice until discussions around the EU ‘Reception Conditions’ Directive offered an ‘excuse’ to open new pathways to detention in 2013. Asylum applicants could then be detained if there were serious grounds to presume that they would delay or hinder the procedure, their asylum claim was submitted at the airport or there was a need to verify their identity, for example.

Detentions further intensified with the large-scale arrivals of 2015. In clear violation of EU law, the Orbán government first started returning all asylum seekers to the Serbian border and then forcibly detaining them for up to 12 months in the 324 shipping containers built directly into the high razor-wire fence running along Hungary’s southern border. Consequently, there were periodically more asylum-seekers in detention than in open centres. 273 against 194 in December 2016, according to the AIDA Report.

Hungary’s detention practices by Paola Mikaba

Civil society response

Thanks to court cases brought forward by Hungarian lawyers and NGOs, this practice was once again condemned by the European Court of Human Rights on 13 March 2017. The Court persisted on 27 March 2017 by issuing an interim measure to stop the Hungarian government from transferring eight unaccompanied minors and a pregnant woman back to the so-called ‘transit zones’.

Just one day after this condemnation, an even harsher detention law entered into force, demanding that asylum seekers are returned to ‘transit zones’ where they will remain detained until the end of their asylum procedure or their return to Serbia via the so-called ‘exit gate’. Seven Hungarian civil society organisations immediately started a coalition to analyse the legislation and gather evidence against it. International organisations including ECRE, Human Rights Watch and UNHCR, as well as the Council of Europe’s Human Rights Commissioner are conducting similar actions. Their repeated calls urging other EU Member States to suspend ‘Dublin transfers’ to Hungary continue to find support across Europe. Germany is the latest to have joined the list of countries which have stopped returning asylum-seekers to Hungary.

What is the EU doing?

While Member States are taking concrete actions, the European Commission has a much more passive approach. It has opened an infringement legal procedure over Hungary’s asylum laws in December 2015 but no public action, legal change nor urgent procedure were undertaken.

Migration Commissioner Avramopoulos’ visit to Hungary in a “very friendly spirit of positive cooperation” on the very day that the latest restrictive law came into force and his wait-and-see remarks suggest that the EC will focus on monitoring the “effective access to asylum procedures while fighting against abuses”.

Discussions initiated between the European Commission and Hungary to bring the national asylum law in compliance with EU rules have failed. First Vice-President Timmermans’ promise to take further action would this process fail to produce timely results did not prevent Hungary from withdrawing from these discussions.

However, MEPs adopted a resolution on Wednesday 17 May that may result in sanctions against Hungary. They are calling for Article 7 of the Treaty on European Union (2007) to be triggered and for the Council of Europe to determine that there is a clear risk of a serious breach of EU values – respect for human dignity and human rights, freedom, democracy, equality and the rule of law. Such a council conclusion would enable the EU to force the suspension of the controversial laws and to monitor the Hungarian government’s use of EU funds. Will Europe prove its ability to defend its founding values and take such action?

Race to the bottom

In the meantime, Victor Orbán is regularly on tour selling his policies to other governments hostile to receiving asylum-seekers and refusing to respect their obligations under the EU relocation scheme. Human Rights Watch sees a real risk of broad contagion as Hungarian-inspired reforms have already emerge in Visegrad countries such as Slovenia and Poland.

On the one hand, amendments to the Slovenian Aliens Act enable the National Assembly to close the border to refugees and to prohibit them from applying for asylum. Slovenia’s recently amended Aliens Act also facilitates the return of asylum-seekers to Croatia, while the Croatian police force is forcing asylum-seekers to go back to Serbia.
On the other hand, asylum applications are to be submitted at the Polish border and investigated within 28 days during which asylum seekers would be waiting in detention centres situated at the borderline. Special camps are already being set up in case of a future migration crisis. The Polish government is also proposing a law with similar provisions as Hungary’s to automatically detain asylum-seekers and force them back to Belarus, a country without any effective asylum laws.

Furthermore, EU Member States and candidate countries in the Western Balkans agreed in March 2016 to adopt common border restrictions, leaving thousands of asylum-seekers and migrants stuck in Greece but also in Serbia and Macedonia – both candidate countries required to conform with EU rules if they want to become members. The EU institutions have so far remained silent about these developments.

Way forward

The UN Refugee Agency warns that these detention and return policies will “have a terrible physical and psychological impact on women, children and men who have already greatly suffered”. But justice may have to wait years until the European Court of Justice is forced to step in with some new cases brought forward by Hungarian lawyers, at great personal risk. The future of the Common European Asylum System (CEAS) may also be at stake if the contagion effect spreads beyond the Visegrad countries. All eyes are now on the mechanism launched by MEPs to enforce EU values.


The Migration News Sheet will continue to update this story with the latest developments on Hungary’s practices, national contagion, international reactions and EU (in)action. Please alert us of any developments at ACruz@migpolgroup.com.