Q&A: A Victory for Asylum Seekers in Hungary

Whenever you talk about the Hungarian asylum system you put air quotes around “asylum system.” Why?

In September 2015, the Hungarian government closed the southern border with a fence and began treating asylum seekers arriving there in a horribly inhumane and unlawful manner. People allowed to cross the border to seek asylum were caged in metal containers and held behind barbed wire.

In the spring of 2017, a bad system became worse. Detention became automatic and indefinite. In most cases, asylum seekers are held for about a year. In some cases, people seeking asylum were held almost two years at the border, and always without any judicial review of detention. We have children who were born and are growing up on the Hungarian border in these metal container camps. 

What has your group, the Hungarian Helsinki Committee, done in response?

We have sought to help by challenging the government’s policy through the court system. In a case we brought in a Hungarian court, for example, the judge turned to the EU Court of Justice, asking it to issue an interpretation of EU law. We argued that holding asylum seekers in these metal containers behind barbed wire is, in effect, a way to detain them unlawfully.

The Hungarian government has cynically argued that these methods of “confining” these people is not a form of detention—even though it clearly deprives them of their liberty—which means, they say, that they do not need to provide asylum seekers with basic rights—like the right to have their detention reviewed by a judge.

What did the EU Court of Justice decide?

In an unprecedentedly long judgment, running 302 paragraphs, the EU Court of Justice concluded that the lengthy confinement of asylum seekers in land-border transit zones does qualify as detention, which therefore requires a wide set of fair procedure and effective remedy safeguards—which, obviously, the Hungarian government currently lacks.

In fact, the EU Court basically declared unlawful all the cornerstones of Hungary’s treatment of asylum seekers in recent years. Other vastly problematic and common Hungarian practices—such as the arbitrary modification of the destination country in expulsion decisions, for example, from Serbia to Afghanistan; or the automatic rejection of nearly all asylum claims due to inadmissibility—were similarly rebuked. 

What does this mean for asylum seekers currently held by the Hungarian government?

About 280 asylum seekers and expelled migrants were held near the Hungarian–Serbian border in these “transit zones” at the time of the judgement. Almost half of them were children. The EU Court of Justice was quite clear that the automatic arbitrary detention of asylum seekers—and the quasi-automatic rejection of all asylum claims—should both cease.  

When the judgment came out, the Hungarian government stated that it disagreed and moved to challenge it in a Hungarian constitutional court process. However, soon afterwards, and absolutely unexpectedly, the immigration office released all 280 people detained in the transit zones and transferred them overnight to open or semi-open camps.

That said, while the release of everyone from detention implements a welcome and crucial part of the ruling, we still have to see how asylum procedures will change. 

Does the judgement have implications beyond Hungary?

Yes. The judgment is directly applicable in all EU member states. And we hope that it will discourage some other EU governments that may have been looking at these practices as an “inspiration.” It clearly confirms that the rule of law and fundamental rights are applicable at European borders, too, and it reinvigorates safeguards that must apply to all situations of detention. Finally, it will have a major impact on the forthcoming rounds of negotiation concerning the future of the Common European Asylum System.

Do you expect any further steps by the Hungarian government after this judgment?

Although the government complied and released everyone from unlawful detention, it still must ensure that the judgment is fully implemented regarding the examination of asylum claims. Moreover, the government has now adopted a decree whereby Hungary outsources its entire asylum process to its embassies—essentially removing the process from the border.

This, once again, seems to be a flagrant violation of EU law and Hungary’s international obligations, as it denies effective access to territory and to asylum for those who are seeking protection. Another round of legal challenges is on the horizon.

Nevertheless, we are extremely happy with all detainees being released from unlawful detention. It demonstrates that civil courage, persistence and litigation can bring spectacular results even in shrinking democracies.