Strict procedure

‘Until August 2015 the Hungarian asylum procedure was a strict procedure, with very strict recognition rates and unfavourable integration prospects. Plus quite basic conditions in the reception centres. In May or June it would take 8 months for a first decision to be made, which in many other European countries takes much longer.

Fourteen percent was the overall protection recognition rate until August. That’s very, very low. The Hungarian immigration office has always had a very strict interpretation. In the Hungarian procedure this was already a slowdown process. The law says that a decision for asylum should be taken within 90 days. Compared to that this was long, compared to many other countries this wasn’t.

At the moment, it’s a very fast procedure, because there is no in-merit decision. What we see are the people who entered through Serbia, and now with the fence the situation changes with people coming through Croatia. But that’s a Dublin issue. If we look at coming from a third country into the EU then it certainly is a safe third country concept that is applied. Since everybody is coming from Serbia now, and Serbia is presumed to be a safe third country, the claim is inadmissible.’

Safe third countries

‘It’s permitted by EU law that Hungary designates a country as a safe third country as they have done now with Serbia. What we were able to gather, no other member state has included Serbia on its list of safe third countries. As far as Turkey is concerned, we don’t know whether the same argument will be used, since it is an EU candidate country. Traveling from Turkey, you will only find safe third countries on the way to Hungary, according to the changed asylum law. With regard to the new safe third country list, there was no consultation on the list by the Hungarian government. Not even with UNHCR, neither on the notion itself, nor on the specific countries that made it onto the list.

Serbia doesn’t have to agree to the decision to be designated a safe third country. But the fact that people will be returned there physically, yes, they have to agree to that. Serbia has made it very clear that this is not something they are interested in, receiving all these people. Nothing was provided by the Serbian authorities for the thousands of people that piled up last week in Röszke on the Serbian side of the border. It was the Serbian Red Cross, and charities and volunteers, but no official procedure, nothing.

In fact these people, those who were allowed into the transit zone, ended up with an inadmissibility decision, issued for single men mostly. A little gate in the fence was open, this is where you leave the transit zone, for a couple meters more it is still Hungarian territory. When they leave this few metres of land, it is Serbian soil. There is nothing, no police that would question them about their status in Serbia, that would carry out any procedure. It is a completely ex lex situation. That says a lot about how Serbia treats these people. And certainly the argument that Serbia would be a safe third country for asylum seekers and migrants doesn’t stand. It was very clear before: UNHCR has said so, Amnesty had a very good report, Human Rights Watch, our own NGO-partners in Serbia. But that didn’t convince the Hungarian government.’

Serbia

‘Question now is how many Serbia would take. Now they take back 80 people per day. This is already more than previously. A couple of months ago it was 60. Not just asylum seekers, but rather the removal procedures and the re-admission procedures for people who have either had a rejected asylum-claim or they never claimed asylum and were in immigration procedures only.

The new Hungarian asylum law, that took effect on August 1st, has a provision that if the re-admitting country refuses re-admission then the person will be staying in Hungary and the claim will then be referred to the in-merit procedure. For this you will need an express refusal from Serbia and if there’s 80 people, Serbia can just say, there’s 81 and 82, we’ll take them the next day. And then you can just have these cases postponed endlessly maybe. And the Hungarian asylum procedure would not be used to examine the claims on the merits. These people would be physically in Hungary waiting to be removed.

From the way the Serbians act towards these people it is clear there is no functioning asylum system or willingness to do anything towards a lawful solution. So certainly, the designation as a safe third country doesn’t stand. They are in a hard position, the Serbian asylum system is not developed enough, neither in terms of its capacity to provide proper reception conditions nor its asylum procedure. So for us, it would be good if UNHCR said that Serbia cannot yet be considered a safe third country, if we could have on the front pages of the newspaper ‘this is what UNHCR says’.’

Half-drunk men

‘It’s not necessarily UNHCR’s fault, but this Hungarian government pretends that it is not used to diplomatic language. I don’t know how much you follow, but the statements by our foreign minister speak for themselves. So sadly the style is reminiscent sometimes of a group of half-drunk men in a bar at two in the morning. It is not only the style, but also the core of the position that is different.

This is where many times the EU gets it wrong, a lot of actors in Europe do not have frequent contact or strong connection with the Hungarian government. This government does not want to engage. The lack of constructive engagement is the core issue and the bottleneck. It’s not the case that the government is willing and trying, but it has capacity constraints. I think they would be able to do more if there was more political will. There is no political will to improve anything.

Just the fact that Hungary doesn’t let asylum seekers in since Tuesday creates a lot of tension, with of course a couple of statements from senior governmental people, but also with Croatia, Serbia, Slovenia, Romania. That’s not very good and a very short sighted idea what they’re calculating.’

Dublin procedure

‘We get a lot of questions ‘what will happen to people when they are sent back to Hungary based on the Dublin procedure? What will happen to their asylum claim?’ If they left in recent months, I think their case was just terminated and then it can be reopened when they return under the Dublin regulation. For asylum-seekers coming back under Dublin the inadmissibility ground can applied, too, on the basis that they had previously arrived via Serbia We haven’t yet seen such cases, but I think we will soon see such decisions about people who are returned under Dublin.

Many of these asylum seekers are now in detention, so they cannot leave. Paradoxically, this is fortunate for us, lawyers, because we have access to clients who are physically present. Then we can represent them in the asylum procedure and we can see how, after the Dublin return, the asylum procedure is working in their case. The asylum authority must apply the safe third country clause, it is not discretionary: if someone comes from Serbia, this is what we are going to do. So there is no opportunity for the decision-maker to weigh other circumstances. But it’s just clear: Serbia is a safe third country, then inadmissibility.’

Hungary and the EU

‘We are in quite close contact with the European Commission’s asylum unit. They have been here, I think they are very well informed about the legislation. The process is rather political. It’s rather frustrating. You amass all this evidence with breaches of EU law. There is already with the legislation that came in to force last week, there are clear cut provisions that are contrary to the EU-directives. Infringement procedures… the government doesn’t seem to care.

Mr Orbán made it clear when he started the national consultation on immigration and asylum in May. He said: ‘We need to go ahead, regardless of what Brussels or the EU says, because they’re slow and ineffective, and they caused it. And I need the people’s popular support to back me on breaching EU law.’ Then what do you do when somebody is not really behaving? So I think this is what brings us back to the issues that revolved around the Orbán government’s constitutional changes in 2010 until 2012. What can the EU do with an EU member state that says ‘we want to breach the rules’ and they actually do, all the time?

Hungary cannot deal with 100.000 asylum seekers. To talk about a quota or any other solution requires a different mind-set. And when it’s ‘no, we don’t want any, we will not take one single person and you can do whatever you want, we will go our own way’. That’s not a position you can backtrack from, particularly when you are Mr Orbán, who never backtracks.

Mr Orbán envisions himself as the saviour of European borders, of European culture. And certainly he is probably able to build up some sort of supporter base, not only domestically but in the whole region. He knows that a lot of people and politicians won’t say the things he says, but are quite satisfied this is happening. It is a testing ground too. How far the EU will allow this to go on?’

Redistribution

‘In the relocation scheme 54.000 people were proposed to be taken from Hungary. Who can seriously think Hungary will offer even temporary places to 54.000 asylum-seekers? An alternative solution could be a proportional quota. That´s not a fixed number, but some sort of a share, percentage. I think that would be more difficult to refute than to just say ‘well this is just nonsense’.

The last few days our lawyers come back really frustrated. Previously, even with the difficult conditions, with the outlook of the recognition rates, we could see clients wait for the asylum decision and a number of people actually stayed in Hungary. There was good information, the likelihood of a perspective that you can make it, the examples that others have made it too. There are Syrians here now. There is an immense positive public support for this. Not from everyone in Hungary, but people who could be mobilized for integration opportunities.

You could try all sorts of nice things, mentoring, having a refugee move into your house, small scale but really nice things. If people could benefit from that, there would be increased opportunities for integration, I think they could try to stay in Hungary. For most people it’s not very clear why they want to go to Germany. It’s not very clear what is going to happen. There is a buzz and a myth also.’

Cutting funds

‘One political solution is the threat to cut funds. If you look at the AMI-Fund that will kick into action just now, I don’t know how it will work out. At the time the calls for proposals were issued in Hungary, they were based on the multi-annual framework the Hungarian Ministry of Interior devised a year earlier, based on a situation that was very different then what is on the ground now.

These projects will probably be launched fairly soon and are all quite essential if you have asylum seekers in your country. They fill a gap that the Hungarian state budget has never addressed. In Central Europe in general, all the funds - at least the European refugee fund, integration fund, maybe some of the return fund too and now the AMIF - have always been used to substitute the national budget rather than to be used as a supplementary source of funding. So that would hurt the refugees and asylum-seekers that this whole story is about. If the internal borders are restored, then of course these people can’t leave Hungary. So you need to have resources and infrastructure in place.

Face up to reality, Mr Orbán!

‘There is so much money available. Building the fence? The money was there right away. They should have put that money somewhere else. You could say ‘let’s put money in one particular camp in or near Syria, it would really make good PR for this government. There are so many layers to this. It is so hard to have one message. Now they are saying the Geneva Convention is out-dated. That’s a basic principle issue. They’re all saying the whole EU-asylum scheme is outdated, that it is completely inadequate. That’s not true either. Saying the basic principles are not relevant anymore, that is an extremely dangerous idea.

People will be coming. So you can’t pretend that the solution of building a fence and not allowing anyone to come in is going to work.. If the investment in developing the in-country reception systems is not in place, it’s going to be disastrous. And also, you shouldn’t demonize migrants and refugees. Face up to reality, Mr Orbán: you are going to have them anyway. It’s not a question of choice but it is a fact. So you might as well include them in your society when they are here.’