EU Court of Justice: Hungarian asylum law breaches EU obligations

Hungary has breached its EU obligations with its asylum rules, the European Court of Justice ruled on Thursday.

The Hungarian government introduced the transit zones in response to the 2015 surge in migration, but changed the system before the European Court of Justice ruled it violated EU law in December 2020. Under the procedure, which was introduced then on a temporary basis but is still in place, asylum applications submitted at the Hungarian border are, with a few exceptions, only examined if the applicant has previously

• made a prior declaration of intent at the Hungarian embassy in Kyiv or Belgrade,
• it has been accepted
• and an entry permit has been granted.

According to the European Commission, the body responsible for enforcing EU law, this is not in line with the EU's 2013 directive on international protection. The European Commission launched infringement proceedings in October 2020, as it usually does when it suspects EU law infringements. The Commission starts by corresponding back and forth with national governments, and if they cannot reach an agreement – as in this case in July 2021 – it starts legal action.

According to the part of the legislation cited in the proceedings

Member States may require that applications be made "in person and/or at a designated place". However, this is without prejudice to "the effective possibility for applicants for international protection to lodge their application as soon as possible".

The European Commission has asked the EU court to declare that Hungary is failing to fulfil its obligations under the 2013 directive and to order Hungary to pay the costs of the proceedings.

According to the Court, the Directive provides that asylum applications can be lodged at the borders of the Member States and cannot be subject to any "administrative formalities". The court's statement underlines that, despite the government's explanation of the restriction on the basis of the coronavirus, the required round trip – apart from being disproportionate – increases the risk of infection, making it more likely that the disease could be imported into Hungary.

If the Hungarian government does not bring the system into line with the judgment, the European Commission may take the infringement procedure further and bring another case, but this time for a fine.

In November 2021, the transit zone procedure entered this phase, because the Commission's assessment was that the Hungarian government had not yet complied with the 2020 judgment. At the time, the government asked for the procedure to be abolished because "the current legal framework does not provide adequate tools for member states under pressure to use in a crisis situation". Viktor Orbán's letter said the weakest link in the current system is that everyone has to be allowed into the territory of a member state without a thorough background check at the border before being allowed to enter the country. (We wrote more about the conflict, which challenges the supremacy of EU law here.)

The Member States would reform the system, but the Hungarian government opposes it

EU member states reached a preliminary agreement on reforming common asylum rules two weeks ago. Under the current "Dublin" system, the member state responsible for asylum seekers is by default the first one at which they cross the common external border. If they go further, they can be sent back, but only for a limited period, i.e. if they avoid 'Dublin transfers' or registration long enough, they can in fact go wherever they want.

The planned reform would, among other things, introduce "border procedures", i.e. a separate procedure at the border for examining applications that are likely to be unfounded and in the meantime, the applicants would not be allowed to enter the country. While, however, the Hungarian transit zones have severely limited the number of applications that could be made and the procedure was lengthy,

• Member States would set a minimum for the processing capacity of applications,
• the procedure would not concern everyone, but only for those who are likely to make an unfounded attempt
• and they would speed up the processing of such applications.

It would also leave it up to Member States to decide what they consider to be a safe third country to which they can return unsuccessful asylum seekers, but they would have to abide by international rules.

Of the 27 member states, 21, including Italy, led by conservative Giorgia Meloni, supported the proposal, while four abstained. Hungary opposed it, along with Poland, because as part of the draft, member states would have to help overburdened members – 30,000 asylum seekers would be distributed among member states by default. This could be exchanged for money or other forms of compensation on the basis of a bilateral agreement, in a spirit of compulsory solidarity. The proposal requires a qualified majority, which means that a national government alone cannot veto it. At least 13 countries, or enough to represent 35 per cent of the EU's population, must be included in the blocking minority. The Council of member states must reach an agreement with the European Parliament on the final form of the legislation, which must be approved by both institutions.

Gulyás regrets the verdict, saying the court misinterprets the right to asylum

"We consider the judgment regrettable", and also the fact that the current regulation was necessary, Gergely Gulyás said at the government briefing that started almost at the same time as the court decision was announced. The Prime Minister's Office chief said similar proposals were being seen at the EU level. "We are expecting" that the European Commission (which is only making proposals) will adopt rules to make applications eligible for consideration before the applicants cross the border, and there are already calls from member states to do so. The minister believes that the EU Court of Justice, among others, is misinterpreting asylum, which should be separated from migration. In his view, the border procedure outlined in the Council agreement is unworkable because of the many exceptions, and the proposal fails to say that the applicant cannot enter the EU until the procedure is completed.

The minister did not understand why the EU court had ruled the system, which the Strasbourg human rights court had previously found to be in order, unlawful. However, the latter, Gergely Gulyás acknowledged, is not an EU institution, which does not guard EU law but the European conventions on human rights adopted by almost all European countries, and therefore has no jurisdiction to decide whether Hungary has complied with an EU directive.