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EU: Commission takes first steps against Hungarian asylum law - for the second time

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17 May 2017

Following the passing of draconian new asylum legislation in Hungary, the European Commission has taken the first step in initiating infringement proceedings against the country by issuing a "letter of formal notice" - just as it did in December 2015, with the same warning that if no response is received in two months then "the Commission may decide to move to the next stage of the infringement procedure," which can ultimately end up in the European Court of Justice.

Hungary recently withdrew from discussions with the European Commission over its new asylum legislation - which has attracted international condemnation primarily for its requirement for all asylum-seekers to be detained in "container camps" - and said that "if the Brussels commission launches legal proceedings, we stand ready to fight the legal dispute."

Following the initiation of the infringement procedure in December 2015 (see the press release, pdf), which also concerned the incompatibility of Hungarian with EU asylum law, the Commission took no further action. Its latest press release says it has "followed up on its initial letter of formal notice" - which it has done so, by taking the first step of an infringement proceeding again.

According to the Commission itself (p.16, pdf):

"If the Member State's reply [to a letter of formal notice] is unsatisfactory or it does not reply at all, the Commission sends a reasoned opinion asking the Member State to comply within a given time limit."

As the Commission's database of infringement proceedings shows, it never did so despite the Hungarian government failing to respond satisfactorily to the December 2015 letter.

Human rights organisation FIDH pointed out last year that "over 600 laws and measures adopted since 2010 [in Hungary] have had an adverse impact on human rights across sectors and negatively affected the separation of powers," and called for the EU to:

"act and prove its commitment to defending its own founding values and the obligations that derive from EU membership by promptly addressing the situation through appropriate means and reacting to documented abuse and a systemic threat to these values in Hungary."

Poland may now follow in Hungary's footsteps - its government is considering plans to "to detain asylum seekers for up to 28 days along the border while their applications are processed". Will the Commission finally "prove its commitment to defending its own founding values"?

European Commission press release: Commission follows up on infringement procedure against Hungary concerning its asylum law (17 May 2017, pdf):

"As regards the asylum procedures, the 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 and the special guarantees for vulnerable individuals not respected. The reduced time for appeals violates the fundamental right to an effective remedy.

The Hungarian asylum law also falls short of the EU rules on return of illegally staying third country nationals. The Commission 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 asylum seekers, including minors over 14, in closed facilities in the transit zone without respecting required procedural safeguards, such as the right to appeal, leads to systematic detentions, which 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."