Open borders, closed minds: EU asylum policy in crisis

Shirlene Afshar Vogl, Lena Jacobs, Galen Lamphere-Englund, Max Steuer and Sara Sudetic

student group at Central European University
Supervisor: Stefan Roch

Abstract: This paper draws on recent developments in the contemporary European refugee crisis and puts them into perspective against the normative and practical dimensions of the EU’s approach vis-à-vis refugees and asylum seekers. In light of growing concerns over refugee flows to Hungary and governmental policy responses to the situation, we examine how EU values connect with crisis responses in asylum policy and how these responses have been applied in Hungary. First, we evaluate the main EU asylum policy tools including some critical examples of case law from the EU Court of Justice and the European Court of Human Rights. Second, we assess the implementation of these policy tools at the national level, considering transposition of EU directives, reception conditions and asylum procedures, thereby exposing areas of Hungarian policy noncompliance as well as nonconformance with EU values. We conclude with policy recommendations for EU institutions and international and domestic civil society actors.

The European Union is currently facing the largest humanitarian catastrophe since the Second World War. In 2014 Europe emerged as the most dangerous destination for irregular migration in the world and the Mediterranean Sea as the world’s most dangerous border crossing, claiming the lives of 22,000 migrants since 2000 (International Organisation for Migration 2014).

The perilous nature of this sea crossing has led to a rise in alternate migration routes, in particular through the Balkans to Hungary. According to Frontex, the EU border control agency, 7000 migrants and refugees crossed the border between Serbia and Hungary in April 2015 alone, compared to 900 in April 2014. In July 2015 the number of migrants at Europe’s borders surpassed the 100,000 mark in a single month, the highest ever recorded by Frontex. The recent surge in asylum seekers has unfortunately made Hungary a rich case study for assessing the effectiveness of asylum policies in Europe. Shifting from a country of emigration to immigration, Hungary is in second place behind Sweden for the most asylum applicants per capita among EU countries (Human Rights Watch 2015).

After analysing the role that fundamental rights play in framing EU asylum policy, this report will detail the evolution of EU asylum policy tools. By focusing on the political situation and the asylum framework of Hungary, this report shows how piecemeal development and implementation of EU asylum policy contradicts the underlying message expressed by the ruling party in Hungary. It concludes with policy recommendations at the EU and national levels.

EU values and fundamental rights: an overview

Respect for human dignity and human rights is enshrined in the EU constitutional framework (Treaty on European Union, art. 2), which allegedly provides for one of the most advanced systems of human rights protection in the world (Rosas & Armati 2012: 168). EU institutions and member states must comply with fundamental rights when adopting, applying and implementing EU policies and laws (Craig & de Búrca 2011: 382–84).

Asylum policy clearly falls within the scope of application of EU law, given the harmonisation of member state policies and the establishment of the Common European Central European University Asylum System (CEAS). From a legal point of view, there is no way to legitimise noncompliance with EU values in asylum policy. Thus, the implementation of the right to asylum and asylum policies is a test case for the EU’s commitment to human rights (Askola 2015). So far, the EU has been inward-looking in its policy designs, more concerned with security within its borders than providing human rights guarantees.

Policymakers ignore human rights objectives, favouring instead other policy goals such as reducing the number of irregular migrants into the EU.

The next section will demonstrate that EU asylum policies fail to meet these requirements. Policymakers ignore human rights objectives, favouring instead other policy goals such as reducing the number of irregular migrants into the EU. Fundamental inconsistencies arise that—combined with external factors—result in the tragic loss of lives.

EU asylum policy tools: CEAS, primary directives, and the Dublin regulation

The right to seek asylum was originally enshrined in the 1951 Geneva Convention of which all EU member states are signatories. The procedures, conditions and qualifications for asylum seekers differed across member states until the establishment of CEAS in 1999, which harmonised existing national asylum procedures and coordinated the handling of asylum applications.

The negotiation phase of EU asylum policies reveals the adverse consequences of “bargaining” between member states. While the Commission usually proposes more refugee-friendly provisions, the member states in the Council more often than not reject these proposals and lower their standards.

There are inconsistencies between connected policies, such as asylum and migration, which undermine the protection of asylum seekers. CEAS aims to grant “appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of nonrefoulement” (Treaty on the Functioning of the European Union, art. 78). The goal of the common immigration and borders policy when protecting the borders from illegal migration runs counter to the humanitarian objective of CEAS. Asylum seekers by necessity take risks to enter the EU, as asylum is most easily sought once they have entered a member state.

Further, there are five major EU instruments associated with CEAS: four directives that harmonise treatment of and rules for asylum within member states and one regulation that provides rules establishing which country is responsible for the process.

The reception conditions directive, the procedures directive and the qualification directive form the basis of EU asylum policy. These three directives arguably have the closest links with EU fundamental rights, as they establish minimum protections for those seeking asylum (Council directive 2003).

The procedures directive establishes minimum standards for granting refugee status to asylum seekers. The directive forbids the detention of asylum seekers and provides the right of appeal (Council directive 2005).

The qualification directive establishes common ground across EU member states for granting asylum or refugee status—the persecution or the threat of serious harm for reasons of race, religion, nationality or membership in certain social groups (Council directive 2001). New versions of the reception conditions directive and the procedures directive came into force in July 2015—it is yet unclear how they will affect asylum procedures.

Finally, under the Dublin regulation, the member state where the asylum seeker first entered the EU is normally responsible for processing their asylum claim. This regulation has come under frequent criticism as it puts unfair pressure on peripheral states already coping with poor infrastructure and institutions.

Fundamental challenges to the implementation of EU asylum law instruments, in particular Dublin II and III and the reception conditions directive, have been heard before the highest European courts. Both the EU Court of Justice and the European Court of Human Rights ruled that an asylum seeker in a CEAS member state cannot be transferred to another member state where he or she may face a “real risk to be subjected to ill-treatment” (Mink 2012: 123).

Although CEAS was put in place to harmonise asylum procedures across the EU, this has not occurred in practice. The creation of minimum standards has led to a race to the bottom, resulting in lowered standards in the hope of dissuading refugees from applying for asylum in a given country. Minimum standards have not been achieved in some countries, with a key principle of the EU—the presumption of compliance with EU law—undermined as a result.

Assessing Hungarian asylum policy during the migration crisis

Asylum seekers have increased substantially over the last decade and exponentially over the past two years, from 2157 in 2012 to 42,777 in 2014 (Office of Immigration and Nationality 2015). At the heart of the western Balkan migration route, the Hungarian-Serbian border became the third largest entry point into the EU in the winter of 2015.

80% of asylum seekers leave Hungary within ten days of requesting asylum, mostly for Western European countries.

However, according to the Hungarian National Office of Immigration and Nationality (OIN), 80% of asylum seekers leave Hungary within ten days of requesting asylum, mostly for Western European countries (Hungarian Helsinki Committee 2015).

Better economic prospects lure migrants to the West, but migrants are also deterred by detention policies, strict asylum claim assessment and difficult integration into Hungarian society. Less than 0.001% of refugee applications were accepted in 2014 (Eurostat 2015).

vertical axis: Log refugee status decisions 2014; horizontal axis: Log refugee applications 2014

vertical axis: Log refugee status decisions 2014; horizontal axis: Log refugee applications 2014

The following section outlines the current dangerous political context of Hungary and the contradictions within Hungary’s legislative and policy framework, illustrating how the legal transposition of EU directives cannot be construed as adherence to the spirit of the law.

Ongoing political developments in Hungary reveal a disregard for the fundamental principles of human rights.

The growing influx of migrants makes asylum seekers ideal scapegoats for nationalist political mobilization. The immigration debate in Hungary has turned into an attack on the European Union, identified by Hungarian Prime Minister Viktor Orbán as a “delusion of a multicultural society” that Hungary must abolish “before it turns Hungary into a refugee camp” (Orbán 2015). Orbán has been one of the harshest critics of the EU proposal to distribute asylum seekers amongst member states on the basis of a quota system. In May 2015 Hungary further announced that it would suspend acceptance of any transfers through the Dublin regulation. Although Hungary retracted the suspension the next day, the Hungarian Interior Ministry justified it by arguing that “any asylum seeker coming from Syria or Afghanistan filing an application in Hungary must have crossed the borders of at least four states, likewise illegally, before submitting his or her application to the Hungarian immigration authority” (Office of Immigration and Nationality 2015) . In June 2015 Orbán further inflamed the situation by announcing that Hungary would build a four-meter-high fence on the border with Serbia to keep out illegal migrants (AFP 2015). The wall was completed in September 2015, but partially dismantled again by October 2015.

In the spring of 2015, new legislation was proposed at the national level, more stringent than the applicable European rules. In violation of EU law, the new legislation would enable Hungary to:

  1. immediately detain all irregular migrants, including asylum seekers;
  2. immediately deport irregular migrants, including asylum seekers considered economic migrants;
  3. accelerate asylum procedures so that a final decision could be taken within a few days; and
  4. oblige irregular migrants and asylum seekers to work while in Hungary in order to “earn their keep” (Hungarian Helsinki Committee 2015).

The Orbán administration has sought to find public support for these changes, sparking controversy by launching a national consultation linking migration to terrorism (Migszol 2015). This paralleled a governmental billboard campaign around Budapest in June 2015, stating: “If you come to Hungary, don’t take Hungarian jobs!”

The response from Brussels lays bare deep divisions within the European Union, but may also expose the ineffectiveness of rule of law in the EU (Traynor 2015). Vice President of the European Commission Frans Timmermans has criticised Orbán’s anti-immigrant and anti-refugee rhetoric, warning that “if Hungary does not abide by the constitution of the European Union, the European Commission will not hesitate to use sanctions that are at its disposal” (Free Hungary 2015). Yet, infringement procedures are lengthy and a financial sanction unlikely. As it stands, it is impossible to determine how far the Hungarian government will go and how this will affect those seeking asylum in Hungary.

Examining the institutional and legal framework for asylum seekers within Hungary paints a relatively good picture. Most of the directives discussed above have been transposed into law. Institutionally, the OIN attends to asylum applications, assesses the Dublin transfer provisions to other EU states and determines the ultimate
refugee status of applicants (Asylum Information Database 2015).

The Hungarian national legal framework pertinent to asylum procedures includes recent modifications to harmonise it with EU level directives. The directives associated with CEAS have been transposed into the Asylum Act at the national level to varying degrees (Asylum Information Database 2015).

The Dublin regulation, which determines the state responsible for examining asylum applications, has been fully adopted by Hungary—recently, however, the Hungarian government has threatened to suspend its application.

With other EU directives, however, results have been a mixed bag. The 2011 qualification directive was fully transposed into Hungarian legislation in 2013. The 2001 temporary protection directive was implemented along with the qualification directive, though optional provisions have not been transposed. Hungary notably has not transposed most of the reception conditions directive, choosing instead in 2013 to only transpose portions related to detention. The procedures directive, passed in 2005 to create minimum standards for accessing asylum procedures, has yet to be adopted by Hungary, but the country is far from being the only EU state yet to harmonise.

The current general adherence to EU directives has come about slowly. Following widespread mandatory detention and poor conditions for applicants outlined in a damning 2012 UNHCR report, the European Commission initiated infringement proceedings against Hungary in 2012. As a result, Hungary introduced changes in 2013 that brought the above framework into effect and resolved issues with applicants returned under the Dublin regulation (European Parliament 2014).

The problematic lack of transposition of asylum procedures and incomplete transposition of the reception conditions directives are currently the focus of new amendments by the Hungarian government. The UNHCR noted its concern about the “lengthy period for automatic judicial review of detention, the lack of judicial remedy against a detention order, the detention of families with children and unaccompanied/separated children” (UNHCR 2015).

Applying for asylum in Hungary: an overview

Under the current legal framework, the OIN handles all asylum procedures by collecting biometric data and fingerprints. If the Dublin regulation does not apply and Hungary is indeed the first country accessed by the applicant, the OIN begins assessing the admissibility of the asylum claim. The average length of the initial procedure by OIN and the appeals phase through the judiciary is 5 – 12 months (Asylum Information Database 2015).

Officially, asylum applicants are entitled to housing, food and a subsistence allowance while their case is being processed. Following the 2013 incorporation of portions of the reception conditions directive, Hungary has opened five open reception centres and two homes for unaccompanied children in Hungary of varying quality. In stark contrast to the reception conditions directive, the current asylum system is not equipped to handle people with special needs such as unaccompanied minors. Another controversial element of Hungarian asylum policy is the widespread detention of asylum seekers, frequently for a period of up to six months. When last measured in April 2014, over 40% of adult male applicants were detained (Hungarian Helsinki Committee 2014). The Council of Europe human rights commissioner visited Hungary in 2014 and decried the extensive use of detention for asylum seekers, recalling that “these persons are not criminals and should not be treated as such” (Muižnieks 2014).

The Hungarian migration system in its current state is unable to cope with large numbers of people arriving, yet 2015 is likely to bring even more migrants. Temporary tent camps have been set up and emergency solutions devised, but the current situation is untenable at best. Additionally, though Hungary has harmonised most elements of its asylum policy with EU directives on paper, the implementation gap is significant.

In particular, the improper application of elements of the Dublin regulation as well as the failure to integrate all of the procedures directive and much of the reception conditions directive illustrate the unwillingness of Hungarian authorities to competently deal with asylum seekers in a respectful and legal manner. Other long-standing problems, including the illegal detention of asylum seekers, seem unlikely to be resolved in the current political climate.

The anti-migrant rhetoric of the Hungarian government continued during the summer months. Hungary rejected the proposal on refugee quotas twice, in June and September. At home, the government proposed extending its anti-immigrant campaigns to neighbouring, non-EU member states (Radio Free Europe 2015) and introduced a controversial package of legal changes in response to the crisis. New criminal law measures against immigration were introduced under which illegal border crossing can be penalised with one to four years of imprisonment (Smale & Bilefsky 2015), raising concerns over compliance with international human rights law. Housing or helping people crossing the border has also been criminalised with penalties of up to four years imprisonment. To stop the flow of asylum seekers, Hungary further introduced accelerated asylum procedures directly at the border (maximum ten days) and made Serbia a third safe country, directly contradicting a ruling of the Hungarian Supreme Court in 2012 (Hungarian Supreme Court 2012).

The government’s most prominent initiative revolved around “materializing Fortress Europe” via external border fence building. The Serbian border has been completed and Orbán has announced plans to do the same along the Croatian border. Apart from the apparent inefficiency of the fence (Kingsley 2015), it creates the potential for
escalated violence against refugees in the name of border control, already evidenced by police use of teargas and water cannons against people wanting to enter the EU (Weaver & Siddique 2015). As of September 21st, 2015, the Hungarian parliament further widened the competencies of its armed forces along the borders by allowing for the use of “nonlethal weapons” like teargas, rubber bullets and signal rockets (AFP 2015).

One of the most important episodes of Hungary’s crisis response was the situation at Keleti railway station in Budapest where hundreds of refugees were stranded for several days or even weeks in grim conditions in July and August 2015 (Graham-Harrison 2015). Critics argue that if these refugees had been registered in one of the refugee camps, this would not have happened; that said, the conditions in these camps are not demonstrably much better. The government failed to respond to this crisis happening in the midst of its capital. At its peak, it refused UNHCR entrance to the country to provide much needed humanitarian aid. Once the situation had escalated and thousands of refugees marched through Hungary towards the Austrian border, Hungary finally provided buses and trains on a mass scale, taking refugees directly to the Austrian border. This was an initiative for which the government, repeatedly arguing it is only enforcing EU law, had no legal mandate. In the end, a humanitarian catastrophe in the middle of Budapest and along Hungary’s borders was avoided only through the dedicated effort of a large number of grassroots movements, activists and citizens providing much needed aid, which has yet to be acknowledged by the government.

In conclusion, we recommend that the EU institutions accede to the ECHR, which is in the interest of both higher standards of protection of fundamental rights and also the elimination of the conflict between those rights and actual EU policies which has now led to a race to the bottom in EU human rights protection. Further, the EU must be stricter on post-accession conditionality, including the implementation of stricter requirements of compliance with EU values. Finally, the EU must redraft the Dublin regulation to include burden-sharing, ensuring equal involvement of all member states in asylum policy.

For international and domestic civil society actors, we recommend actively countering the government’s anti-immigration rhetoric, an action which puts pressure on both the EU and Hungary to enforce legal asylum procedures. As watchdogs, they should launch an investigation into the Hungarian government’s recent xenophobic billboard campaign. Finally, these actors should be included in a nationwide consultation through the Hungarian Equal Treatment Authority, the body responsible for identifying and rectifying cases of discrimination and racism.


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A beast breaking loose: the Hungarian asylum system at its worst

commentary from Hungarian Helsinki Committee
Zoltán Somogyvári (Legal Adviser)

The authors of this well-researched and thought-provoking paper had a complicated task in analysing the Hungarian asylum system, because it was completely overhauled by the Hungarian legislature in August and September 2015. The authors could not have anticipated the most recent asylum system changes now rendering Hungary an unsafe country for the vast majority of asylum seekers. Some of the proposed regulations cited in the paper came into being: for example, crossing the fence at the Serbian-Hungarian border became a crime, and those doing so have been punished by detention and deportation to Serbia. This deportation is made possible by the Hungarian asylum authorities’ unparalleled stance that Serbia is a safe third country for asylum seekers. The same strategy is ruthlessly applied by the authorities, no matter whence asylum seekers enter the country.

The paper suggests that piecemeal implementation of the EU’s asylum-related directives and improper application of the Dublin regulation leads to unwillingness by the Hungarian authorities to deal with asylum seekers in a respectful and legal manner. We would instead suggest that the main source of human rights violations against asylum seekers originates in EU law itself. Therefore, it would be more accurate to argue that the source of the problem lies not in the implementation and application of these regulations, but rather EU laws which violate asylum seekers’ rights to liberty and treatment with dignity. It is precisely the reception conditions directive which makes it possible for member states to detain first time asylum seekers. Detention itself is likely to further deteriorate the mental health of these oft traumatised people. We must conclude that detention of asylum seekers is inhumane treatment contradicting the EU’s self-proclaimed values. Further, we cannot forget that any systematically stigmatising measure taken against asylum seekers indirectly stigmatises many EU residents with a migrant background. This fact too emphasises that EU asylum law fails to protect the human rights and dignity of everyone on its territory (not only its citizens).

The paper justly confronts the EU’s inhumane immigration and border protection policies. However, the authors should have emphasised the EU’s primary focus on ever closer economic union. This focus is the origin of other values also propagated by the EU, e.g. strict financial discipline. Thus, it appears that the Hungarian government’s disciplined financial policy is more important to the EU than Hungary’s serious and systematic violation of the rights of asylum seekers.

The paper rightly emphasises that “fundamental inconsistencies arise that—combined with external factors—result in the tragic loss of lives”, because there can be no excuse for the refugees left to die on the EU’s borders. We cannot forget however, that besides the violation of the right to life, other serious human rights violations are a daily reality for even greater numbers of people who have fled their countries. These rights are referred to by the European Court of Human Rights (ECtHR) as “core rights”, e.g. the right to liberty and safety (consider asylum seekers unlawfully detained in Hungary) and the prohibition of inhumane and degrading treatment and punishment (consider those being deported to Serbia, where the asylum system no longer respects the basic human rights of asylum seekers). The importance of these massive human rights violations must again be underlined.

The authors argue that that the European system of human rights protection is one of the most advanced in the world. In fact, it could be much more advanced. Even though the ECtHR does have a priority policy leading to faster adjudication of urgent and massive human rights violations, the asylum applicants who argued that their detention in the Hungarian asylum system was unlawful had to wait up to three years for the court’s decision. Furthermore, by the time the ECtHR decided in their cases, the applicable Hungarian regulations had already been replaced by newer ones, in practice no more lawful than prior legislation. First, two Ivorian asylum seekers applied to the court in February 2010, and in September 2011 the court held that they were unlawfully detained. The Hungarian law on detaining asylum seekers changed; in response, then, three Somali asylum seekers applied to the court in September 2012, which ruled over three years later that their detention once again violated their right to liberty. Once more, the Hungarian law on detention of asylum seekers had changed in the meantime; and for the third time, new applicants have already petitioned the Strasbourg court, arguing this detention policy violates their human rights. Considering that the ECtHR’s decisions were unable to stop the Hungarian authorities from repeatedly violating the right to liberty, we conclude that the European system of human rights protection must be improved. While the recommended accession to the ECHR is a great first step, accession alone will not solve these problems. Rather, the court must follow its own priority policy much more rigorously. According to this policy, if the applicant’s right to liberty is likely to be violated—especially if this person is still detained at the time the application is submitted to the court (rendering the application urgent)—and if the case represents many potential applicants due to systematic rights violations, the court should decide in a much more timely manner. Given that Hungary has been detaining and continues to detain many asylum seekers likely to be further traumatised by detention, these cases fulfil every essential criterion and should be given first priority by the ECtHR.

Relatedly, the ECtHR should be better equipped to prevent member states from passing new regulations which also violate human rights, albeit differently.

The paper rightly argues that “there are inconsistencies between connected policies, such as asylum and migration, which undermine the protection of asylum seekers”. One of the best examples of the absurdity of the discrepancy between the common European asylum policy and the common European immigration policy can be seen in the law on refugee family reunification. While refugees have the right to be reunified with their family members, this right is compromised by the EU’s directive on family reunification. This directive in effect treats family members of recognised refugees as ordinary migrants given they are typically unable to apply for reunification within the
short, three-month deadline from the day that refugee status was granted. The precarious situation of these family members, having typically lost the sole caretaker of the family, is not taken into account. The law discriminates despite the fact that were they reunited, they would hold the same status as their host family member.

Recommendations to the EU institutions should therefore start with a ban on detention of first time asylum seekers. Avoiding activation of the temporary protection directive would also be a necessary improvement, considering this directive grants people in need of protection too short a status and limits their rights far beyond the qualifications directive. Further, promotion of some of the regulations of the main asylumrelated directives should lead to a more humane asylum system (Art. 31,7 (a) of the procedures directive gives the right to member states to prioritise examination of asylum cases likely to be well-founded).

The authors should have considered a role for the European Asylum Support Office (EASO) , which “helps member states fulfil their European and international obligations to give protection to people in need” (“What is EASO” 2015). EASO could, for instance, create guidelines for the member states’ immigration authorities on streamlining decisions on various asylum applications. In one example, young Syrian men who do not want to join the Syrian army are granted full refugee status in many states, whereas the Hungarian Office of Immigration and Nationality only grants them subsidiary protection. Having been granted only subsidiary protection, it is practically impossible for these Syrian men to reunite with their families due to extremely strict Hungarian regulations on family reunification for people with this status. It is, however, in Europe’s interest that asylum seekers facing similar persecution in their countries of origin are protected with similar statuses granting them similar rights across the EU.

The authors’ recommendation that the EU be stricter on post-accession conditionality is a very interesting one and could have been explained more fully. Further, a short analysis of whether financial or political sanctions would set Hungary’s government on a more humane path would have been especially salient in light of the fence Hungary has since built on its Serbian and Croatian borders. This fence is the strongest symbol of Hungary’s lack of solidarity with these candidate countries and its fellow EU member states.

The authors benignly recommend the Hungarian government should consult with local authorities on resettlement of refugees from closed camps. This request could prove naive given the present government’s hostile attitude towards migrants and refugees.

International and domestic NGOs already act as watchdogs, so recommending they contest the government’s xenophobic billboard campaign is a rather more useful idea.

Finally, there should have been recommendations for European states under the Dublin regulation. Prior to an ECtHR ruling halting Dublin transfers to Hungary, the asylum authorities and courts of these countries have a very important role in deciding whether they consider Hungary safe for asylum seekers or whether Dublin transfers to the country should be suspended. These national authorities can put greater political pressure on the Hungarian government, thus perhaps achieving positive change more quickly or successfully than the EU.

Hungarian Helsinki Committee (HHC) is a human rights NGO founded in 1989. It monitors the enforcement in Hungary of human rights enshrined in international human rights instruments, provides legal defense to victims of human rights abuses by state authorities and informs the public about rights violations.


“What is EASO” (2015), European Asylum Support Office,, accessed 4 Dec 2015.