The new buzz word: migrant ghetto

Migrant ghetto – for weeks now, the term has been spouted by Hungarian government figures and all pro-government communication channels. If we check the archives of the National News Agency, MTI, from 1988 to 30 June 2023, we won't find a single mention of this word. However, within the last month, the term has appeared more than 30 times in MTI news.

Zoltán Kovács, State Secretary for International Communications and Relations, Gergely Gulyás, Minister of the Prime Minister's Office, MEP Tamás Deutsch, György Bakondi, Senior Advisor for Homeland Security and Viktor Orbán himself have all used the term "migrant ghetto". It all started with a radio statement by the Prime Minister on 30 June, when he checked in from the EU summit.

What are the government, Fidesz and its henchmen claiming?

The new slogan fits in well with the previously established message on quotas. The messages built up from the two go something like this:

• the draft legislation is about a "mandatory quota", and part of it states that Hungary should process at least 10,000 refugee applications a year;
• a less restrained version, such as the one cooked up by György Bakondi, says that under the 'quota system' Hungary would have to take in 10-30,000 'illegal immigrants' and house them in 'migrant ghettos';
• we would then have the biggest "migrant ghetto" in the EU;
• In fact, Viktor Orbán has also said that Hungary should provide "tens of thousands of beds to accommodate migrants";
• the Prime Minister said that the system of "external hotspots" introduced by Hungary could be implemented on a European scale as well, i.e. applications would have to be submitted outside the EU rather than inside it, and only those whose applications are approved would be allowed to enter;
• Zoltán Lomnici Jr., a spokesman for Civil Összefogás Fórum, which supports the government in everything, even managed to bring the situation created by the French riots in early July into the picture: when elaborating on “the economic, legal and health risks of the so-called migrant ghettos”, he brought up the "migrant neighbourhoods" which developed in big western cities over the last several decades alongside "an EU distribution mechanism".

Ministers, Fidesz politicians, the Prime Minister and pro-government analysts have all been repeating these in various combinations on every conceivable platform. Occasionally, some of the elements are left out, while other details are given extra embellishment here and there.

Government politicians and pundits are careful not to put 'quotas' and 'ghettos' next to each other. This, however, is not always the case, and some have even talked of having to ‘take in’ tens of thousands of people.

While the communication gimmick suggests that ten thousand (or even tens of thousands) of people are to be relocated to Hungary, the reality is that they have mashed together two entirely separate things.

What is this “quota”?

The voluntary solidarity mechanism, which the government keeps referring to as a "mandatory quota" states that "asylum applicants and beneficiaries of international protection are transferred from the Member State that they are currently located in, normally this is the country of entry, to another Member State, which takes over the examination of the asylum application."

The European Commission's proposal was not decided by "Brussels", but by EU governments from Brussels to Zagreb, who adopted a common negotiating position on two pieces of legislation together. One on asylum and migration management, the other on asylum procedures.

No final decision has been taken on these, there’s only a "general approach", which is the basis for Member States negotiating the final texts with the European Parliament. These will become EU law once the EP and the Council of Member States have both given their blessing, but until then they could still be subject to several changes.

In the test vote on the general approach in June, the Hungarians and Poles indicated that they would not support this proposal, while four other countries (Bulgaria, Slovakia, Malta, Lithuania) said they would abstain.

This common negotiating position seeks to make solidarity rather than the relocation of asylum seekers compulsory.

The solidarity mechanism would mean that, by default, 30,000 asylum seekers per year would be distributed from overburdened member states (such as Italy, where Giorgia Meloni, a key ally of Viktor Orbán, is prime minister). The main purpose of the solidarity would be to alleviate the burden of the countries which are the main refugee destinations. Asylum seekers would be distributed, but countries that do not wish to receive them could pay money instead, or offer other forms of assistance, (depending on the request of the country in need) such as technical equipment. If choosing cash payment, the amount of €20,000 per asylum seeker per country would need to be paid, i.e. around HUF 7.5 million.

According to the Hungarian government's interpretation, however, this isn't about cooperation and solidarity between EU countries. They took up the arguments of the Polish leadership, which was quicker to react, and which had already started talking about the choice being between mandatory relocation or a penalty days before the Council deal.

How many asylum seekers’ processing should Hungary take over?

Under Article 44k of the Council's general approach, the Member States' share would be determined partly on the basis of their gross national product (GNP) and partly on the basis of the size of their population. According to Eurostat, the EU's statistical office, the total population of the EU at the beginning of 2023 was close to 450 million, while Hungary had just under 9.6 million inhabitants. Of the EU's almost €4130 billion GDP, the Hungarian economy accounted for 45.6 in the first quarter of 2023. The average of the two percentages is 1.62 percent.

Thus, based on this, of the 30,000 asylum seekers planned to be distributed among the EU states, less than 500 would be allocated to Hungary.

So, if this becomes EU law, Hungary would in reality only need to take over the asylum procedures of a few hundred people and take in those whose claims are considered well-founded by the Hungarian authorities. The other option is to offset all or part of this number with money, or (if the overstretched member state has requested so) by other means.

They mashed up of two separate things

No magic can turn hundreds into tens of thousands. The trick of the government’s communication is to simply switch to another thing without any transition, and put a much bigger number next to the "quotas".

This is the so-called adequate capacity for carrying out border procedures, that member state ministers would like to introduce as part of a new procedure.

Asylum applications would effectively be assessed in two ways: a border processing would be introduced alongside the current normal procedure. The former is in fact a new filter. The "border procedures for asylum and return" would apply to those caught, for example, crossing the border illegally or rescued from the sea.

The Council's position is that under this procedure, asylum seekers should normally remain at or near the external border, in transit zones or in other designated locations within member states, until their claims are examined.

This procedure and the solidarity mechanism mentioned earlier are two different things. They are also explained separately: the solidarity mechanism is covered by the general approach on asylum and migration management, while the border procedure is described in the common position on joint procedures regarding international protection. The only direct link between them is that if a country chooses not to exchange taking in asylum seekers with something else under the solidarity mechanism, it can apply the border procedures to them in addition to the "normal" asylum procedure, if the conditions are right (for example, if they have been rescued from the sea).

Border procedure, transit zones – will the Hungarian method be adopted?

In recent years, refugees arriving at Hungary's and the EU's southern border first had to wait in a transit zone while their asylum application was processed by the Hungarian authorities. So then why isn't the Hungarian government instead proclaiming that "the EU has finally realised that we were right and now they have adopted the Hungarian system"?

The reason for this is that there are several important differences between the EU's planned border procedure and the "Hungarian method". The Hungarian system seems to have been optimised to process as few asylum applications as possible. This was made possible by the use of several instruments. In the past, the number of people allowed to enter the transit zone was gradually reduced, and in 2020 it was completely closed. Even after an asylum seeker entered the zone, a lengthy process of up to several years awaited them.

All this was achieved through a legal combination that violated EU law. In the subsequently established system, which even at first glance doesn't appear to be EU compliant, applications for entry permits had to be submitted to the Hungarian embassy in Belgrade or Kyiv, but these were rarely approved. A few weeks ago, the EU Court of Justice also ruled that this arrangement was unlawful.

Why have border processing capacities been defined?

A minimum border processing capacity would be prescribed for Member States partly to avoid ghetto-like situations. This would set a minimum threshold for the number of applications – likely to be rejected – that could be processed under the fast-track procedure and the applicants would be accomodated in the meantime. Some of the previous "hotspots" that temporarily housed refugees, such as those on some of the Greek islands, quickly became overcrowded several times over.

This could also be a response to the failure of the 'Dublin regulation' which originally governed asylum procedures in the EU. Under the current EU legislation, responsibility for asylum seekers would normally lie with the member state where they first crossed the EU's external border, even if they have already moved on to another EU country. In such cases, within a certain timeframe, they could be sent back to the state in where they first entered EU territory, but the 'Dublin transfers' collapsed during the 2015 mass influx of refugees. The transfers were no longer being pursued by the sending countries themselves, because the receiving countries – headed by Greece – didn't even have sufficient capacities to cope with the arrivals.

In 2015, Hungary also temporarily suspended the possibility of "Dublin transfers" being sent back here. That year, the government started closing the previously operational refugee camps, leaving little capacity by 2022.

So, under the current system, it was effectively an advantage for a country to let its asylum system fall into disrepair or to deliberately dismantle it and let the arrivaling migrants through, because there was nowhere to send them back to. It is precisely this approach that could be partly prevented by obliging Member States to maintain capacities that are somewhat proportional to the number of asylum seekers.

They are counting the very thing that was exceptionally high in Hungary's irregular system

The border processing capacity for receiving refugees at EU level would be 30,000 people, the same as in the case of the Solidarity Mechanism, but the share of each country would be determined using an entirely different formula. The calculation would be based on the total number of irregular border crossings. When calculating this, the number of people who had to be rescued from sea in certain Member States, and the number of rejected entries by the authorities in the past three years would be taken into account.

When the Council adopted its position, Bence Rétvári, Parliamentary State Secretary at the Ministry of the Interior, complained that this would result in a disproportionate share of almost 30 percent (roughly 10,000 asylum seekers) for Hungary, while the others would usually have a share of between 1 and 5 percent.

Hungary's high figure is due to the fact that under the Hungarian system, recently found to be in breach of EU law, anyone who did not obtain a permit in advance was refused entry.

Moreover, we are talking about the number of refused entries, not the number of individuals who were refused entry. Thus, if someone tried more than once, he or she could appear in the statistics more than once. This would not have been the case if the Hungarian authorities had considered the requests on their merits, but the system prevented them from doing so without the embassy's authorisation.

The money would be there, but…

It's important to note that the Refugee, Migration and Integration Fund could be used to develop adequate capacity, but the Hungarian government is currently not receiving payments from it. There are currently two obstacles blocking this funding from Hungary. In case of the bigger one, the judicial reform, the Hungarian leadership seems to be making a visible effort, especially as due to this obstacle, almost all new catch-up funding available from 2021, (alongside the Migration Fund) is being withheld from Hungary.

On the other hand, the smaller obstacle is freezing payments from this fund specifically on account of "serious risks to the right to asylum". Following last December's ruling, a few weeks ago the European Court of Justice ruled that the Hungarian regulation is in violation of EU law. The question now is whether the Hungarian government will be able to introduce EU-compliant regulation this time, since the current system was also born out of another lost court case. It was then that transit zones were replaced with entry applications at embassies.

Meanwhile, the June Council deal suggests that there may be even more money available for this area than so far. Specifically, member states that "may need to increase capacity at the borders or are facing particular pressures or special needs in terms of their asylum and reception systems and at their borders" can expect additional support. The text suggests that the additional funds would be provided by a supplement to the EU's seven-year budget, which the Commission has proposed: "Member States may use the allocations under their corresponding programmes, including the amounts to be made available following the mid-term review". However, this budget increase is opposed by Viktor Orbán for other reasons.

It may only be adopted right before the EP elections next year, which makes it an excellent campaign topic

In summary:

• the asylum system, which the Hungarian government has severely scaled back, would need to be rebuilt from near-zero capacity;
• this would need to be brought up to a high level partly because of the specific features of the Hungarian system, which are in breach of EU law;
• there would be funding available for development, but the most appropriate fund is facing a double hurdle which the government has not yet been able to tackle; and
• the Hungarian Prime Minister is threatening to use a veto on increased funding.

The final legislation for the solidarity and border mechanism would have to be negotiated and adopted by the Council of Member States and the European Parliament. They are aiming to finish by the EP elections next May, after which a major institutional overhaul is due to begin.

The legislative procedure commonly used here is literally called "ordinary". In it, Member states make a decision by qualified majority, meaning that one or two countries aren't able to veto, or at least it would take a few big ones or many small ones to get a blocking minority. This has been the default majority in justice and home affairs for more than a decade, i.e. there was no 'trick' introduced to avoid a single member state being able to block. In fact, at the last EU summit, it was precisely the Hungarian government that made an attempt to give a non-decision-making EU body extra powers to block the migration package – but without success.

Nevertheless, Orbán declared that he would simply not implement the decisions, and that "we will find the legal and political means" for doing so.

In other words, the government may try to use blackmail along political lines with an issue demanding unanimity where it would be difficult to circumvent Hungary, such as the review of the seven-year EU budget. It seems they already started to prepare the ball on this, although for now, the communication has been all about frozen subsidy funding.

The legal option, however, is one that the Hungarian government started to hone in on years ago, especially on the issue of refugees. This has to do with the decades-long dispute between national constitutional courts and the Court of Justice of the European Union over which is superior: the constitutions of the member states (and the 'constitutional core' behind them) or EU law. The Hungarian Constitutional Court already handed down a ruling on the government's 'quota' concerns in 2016, which – even though it mostly contained generalities – had Viktor Orbán tossing his hat in the air, and in 2018, the government sought to secure its position with the seventh amendment to the Fundamental Law.

The Poles, meanwhile, are already up to their necks in the debate on the primacy of EU law because of their judicial reform. Just a few days ago, they were hit with a lawsuit for failing to comply with their obligations, which could lead to a fine, so the Hungarian government would probably be risking the same if it pursued this path. The slow progress of the procedure is likely to keep the debate afloat even if the legislation is eventually passed, and keeping the topic on the front burner could be a great way to boost the Fidesz campaign for the EP elections – which is why it's no wonder the party and the government are going all in.