News & Analysis

EU refers Hungary to Court of Justice over migrant law

refugees immigrants

The European Commission decided to refer Hungary to the Court of Justice of the EU concerning legislation that criminalises activities in support of asylum applications and further restricts the right to request asylum. The commission has also decided to send a letter of formal notice to Hungary concerning the non-provision of food to persons awaiting return who are detained in the Hungarian transit zones at the border with Serbia.

In July 2018, the commission sent a letter of formal notice to Hungary concerning the so-called “Stop Soros” legislation – which criminalises activities that support asylum and residence applications and further restricts the right to request asylum. In view of the unsatisfactory response, the commission followed-up with a reasoned opinion in January 2019. After analysing the Hungarian authorities’ reply, the commission considered that the majority of the concerns raised have still not been addressed and has decided to refer Hungary to the Court of Justice of the EU.

Specifically, the commission finds that Hungarian legislation is incompatible with EU law in the respects of criminalising support to asylum applicants, which curtails asylum applicants’ right to communicate with and be assisted by relevant national, international and non-governmental organisations. This is in violation of the Asylum Procedures Directive and the Reception Conditions Directive.

The unlawful limitation of the right to asylum and introduction of new non-admissibility grounds for asylum applications is also incompatible with EU law.

The new law and the constitutional amendment on asylum have introduced new grounds for declaring an asylum application inadmissible, restricting the right to asylum only to people arriving in Hungary directly from a place where their life or freedom are at risk. These additional inadmissibility grounds for asylum applications exclude persons who entered Hungary from a country where they were not persecuted but which does not fulfil the criteria of a safe-third-country. Therefore, these inadmissibility grounds curtail the right to asylum in a way that is not compatible with EU or international law. As such, the national rules are in violation of the EU Asylum Procedures Directive, the Asylum Qualifications Directive and the Charter of Fundamental Rights of the European Union.

In view of the urgency of the situation, the deadline for Hungary to respond to the Commission’s concerns is set to 1 month, after which the Commission may decide to follow-up by sending a reasoned opinion.

The European Court of Human Rights has already granted interim measures in several instances, obliging Hungary to provide food to persons detained in the transit zones.