Democracy & Justice

​Commission Refers Hungary’s Asylum and Return Legislation to Top EU Court

The European Commission decided to refer Hungary to the European Court of Justice for non-compliance of its asylum and return legislation with EU law. On top of this, an infringement against Stop Soros law was launched by the EU’s executive body.

by György Folk

The Hungarian government's migration policies are under further scrutiny after the European Commission (EC) announced on Thursday it is referring Hungary to the Court of Justice of the European Union (CJEU) for non-compliance of the country's asylum and return legislation with EU law.

Separately from this, the EC sent to the Budapest government a letter of formal notice as a first phase of an infringement procedure concerning the so-called Stop Soros law, a new Hungarian law criminalizing activities that support asylum and residence applications and further restricts the right to request asylum. A letter of formal notice is the first step of the formal infringement procedure for breaching EU law. The Hungarian authorities have two months to respond.

Earlier in June, ahead of the Hungarian parliament’s vote on the Stop Soros law, the Venice Commission of the Council of Europe asked Hungary’s government not to adopt legislation without first taking into account the body’s preliminary recommendations. But despite this, the Hungarian government did not wait for the Venice Commission’s final recommendation and passed the law a few days later. Their analysis concluded that the provisions they examined infringe upon the right to freedom of association and expression and should be repealed.

Longtime disagreement

Hungary’s asylum laws have been under the EC’s scrutiny since December 2015, when an infringement procedure on the issue was started by Brussels. After several back-and-forth rounds between the Juncker commission and Viktor Orbán’s government, in December 2017 the Commission sent a reasoned opinion.

Based on the replies by the Hungarian government to this, the EC concluded the majority of the concerns raised have still not been addressed and has therefore now decided to refer Hungary to the Court of Justice of the European Union – the last stage of the infringement procedure.

What specifically worries the EU about the asylum laws:

  • The Hungarian legislation is incompatible with EU law.
  • It's against the EU's asylum procedures to only allow asylum applications to be submitted within transit zones, where access is granted only to a limited number of persons and after excessively long waiting periods.
  • Rules in Hungary do not respect the maximum legal limit of 4 weeks during which someone can be held in a transit center.
  • Hungary fails to provide effective access to asylum procedures and regularly escorts people back across the border even if they want to apply for asylum in the country.
  • The EU Reception Conditions Directive is ignored: Hungary often uses indefinite detention of asylum seekers in transit zones.
  • The EU's Return Directive is breached: Hungary fails to ensure that return decisions are issued individually.

What is concerning about the Stop Soros law:

  • The EC is concerned because the law’s measures restrict individual freedoms, by preventing anyone who is subject to a criminal procedure under these laws from approaching the transit zones at Hungary's borders, where asylum seekers are held.
  • Criminalization of activities in support of asylum and residence applications: sanctions of the law range from temporary confinement to 1-year imprisonment.
  • This law also unduly restricts the exercise of free movement rights of EU citizens.
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