The European Commission officially opened another infringement procedure against Hungary on Wednesday (17 May) over the latest amendments to its Asylum Law, which open the door to various types of abuses of asylum seekers.
Hungary adopted amendments to its asylum law last March, which allows for the automatic detention of all migrants in container camps at its borders, sparking outrage in the UN and among human rights groups. Older amendments to the law, in July and September 2015, were already the subject of an infringement procedure.
The new amendments, approved by a large majority of lawmakers, is in response to recent terror attacks in Europe carried out by refugees, according to Prime Minister Viktor Orbán.
The Commission contends that of the five issues identified in the letter of formal notice from December 2015, three remain to be addressed. The letter outlines new incompatibilities of the Hungarian asylum law, as recently modified by amendments made in 2017. The incompatibilities focus mainly on asylum procedures, rules on return and reception conditions.
In recent weeks, the executive had a series of exchanges both at political and technical levels with the Hungarian government, which failed to reassure Brussels.
The European Commission believes that Hungarian legislation does not comply with EU law, in particular, the directive on Asylum Procedures, the directive on Return, the directive on Reception Conditions and several provisions of the Charter of Fundamental Rights.
As regards the Asylum Procedures, the Commission takes the position that Hungarian law does not allow for applications to be submitted outside of special transit zones at the borders, and restricts access to these zones, thus failing to provide an effective access to asylum procedures within its territory. The border procedures are not in accordance with the conditions of EU law, the special guarantees for vulnerable individuals not respected, and the reduced time for appeals violates the fundamental right to an effective remedy.
Hungary’s Asylum Law also falls short of EU rules on the return of illegally expelled third country nationals. The executive is concerned that Hungary is currently returning migrants (including asylum seekers) who cross the border irregularly to Serbia without following the procedures and conditions of EU law on return and asylum. Individual return decisions are not being issued by Hungary as required.
Finally, the Commission believes that the systematic and indefinite confinement of refugees, including minors over 14, in closed facilities in the transit zone, are in breach of the EU law on reception conditions and the Charter of Fundamental Rights of the EU. The Hungarian law fails to provide the required material reception conditions for asylum applicants, thus violating the EU rules in this respect.
The Hungarian government now has two months to respond to the European Commission. If no reply to the letter of formal notice is received, or if it is considered unsatisfactory, the Commission may decide to move to the next stage of the infringement procedure, and send a ‘reasoned opinion’ to Hungary. As a next step, the Commission may then refer the case to the Court of Justice of the European Union (CJEU).