This article is a response to a commentary made last week by the International Spokesperson of the Hungarian Secretary of State for International Communication, Zoltán Kovács, on a press release by Euro-Med Human Rights Monitor.
International refugee law does not depend on gut feelings, fortunately. It is founded on the steady and everlasting principles of dignity and equality inherent in all human beings, without distinction.
Kovács commented on Euro-Med Human Right Monitor’s recent press release on Hungary’s pushbacks of non-Ukrainian asylum seekers, arguing that Hungary’s migration and refugee policy is not “akin to migratory apartheid” - as Euro-Med Monitor has called it - but is “a system that fully respects international migration rules and, most importantly, is rooted in common sense.”
In his brief comment, Kovács explained, “Any reasonable person would agree that the situation of a large group of predominantly Afghan and Syrian young men arriving from the distant Middle East on the Hungary-Serbia border is significantly different from women and children escaping danger in neighboring Ukraine. For them, Hungary is the first safe country they reach, and it is our moral duty to treat them accordingly.”
On the legal side, Kovács added, “According to most internationally endorsed legal sources, asylum seekers are supposed to request asylum in the first safe country they reach. Hungary fully adheres to this principle. So, for example, when a national of Bangladesh appears on the landlocked border of Hungary, a degree of reasonable suspicion arises.”
This argument necessitates elucidating some elements which are vital for a serious and genuine discussion on such an important topic.
First of all, the basic principle of international law is considering all human beings to be equal before the law and entitled to equal protection of the law against any discrimination and any incitement to discrimination.
According to the 1951 Refugee Convention, in particular, all asylum seekers are the same and should be treated accordingly. Refugee law doesn’t entail racist, stereotypical, and paternalistic prejudices that differentiate between people. For instance, white and Christian Ukrainian women and children deserving international protection on one side, and young brown men on the other side, referred to by Kovacs as a “violent, stone-throwing mass of illegal migrants routinely besieging our southern borders.”
These people are all fleeing their country of origin for reasons that are up to a competent asylum authority to assess, according to national and international obligations, and not to the “common sense” of the voting public or individual politicians. They are all asylum seekers, regardless of their nationality or appearance, as soon as they require it and for however long the whole procedure, including the possibility to appeal, lasts.
Fortunately, international law does not depend on fickle gut feelings or discretionary common sense. It is based on the steady and everlasting principles of dignity and equality inherent in all human beings, without distinction as to race, sex, language, or religion. Refugee law, in particular, concerning foreigners fleeing their homes, must prevent any form of prejudice, categorization, or racial profiling and stick to the facts, the reality on the ground.
Where was this ‘common sense’ or this ‘moral duty’ to protect people fleeing war when, in 2015, more than 1,000 people, including many families fleeing conflict in Syria, Afghanistan, and Iraq, remained stuck in abysmal conditions along a Serbian motorway after Hungarian authorities closed the border crossing? There were children and women there too, fleeing exactly the same conditions of devastation and fear as Ukrainians today.
Around 80 percent of asylum applications received by Hungary in the first six months of 2015 were coming from people fleeing conflict zones, namely Syria, Afghanistan, and Iraq, and therefore in need of international protection. Yet the Hungarian government responded to that protection call by announcing the construction of a fence along the Serbian border, deploying dozens of soldiers, riot police, and helicopters to patrol the razor wire fence, and passing draconian new laws on migration.
Secondly, there is no general and recognized ‘first safe country’ principle in international law. The 1951 Refugee Convention, a milestone of international refugee law, requires all Contracting States, including Hungary, to respect and fulfill anyone’s right to seek asylum despite their possibly irregular way of entry.
The ‘first country of entry’ is a rule under European law and particularly under the controversial Dublin Regulation, assessed on a case-by-case basis by the competent Dublin Unit with a long and complex procedure, also examining other criteria in hierarchical order.
An a priori and collective evaluation of groups of people languishing at the Hungarian borders to seek asylum as ‘inadmissible,’ ‘not credible,’ or ‘suspicious’ is completely illegitimate because each person’s asylum application depends on so many elements: timing, age, vulnerability, family links, and personal history for starters.
Indeed, the Hungarian government has not invoked the “first safe country” argument for Ukrainian refugees reaching Hungary via the Moldova-Romania route, nor did the Hungarian government prevent Ukrainian refugees from continuing their route to other EU member states to seek protection and safe refuge. This demonstrates, yet again, a discriminatory pattern.
Thirdly, it’s quite erroneous for the International Spokesman to state that “since 2015, Prime Minister Viktor Orbán and his government have pursued a migration policy that respects all international regulations and standards” when Hungary has been found guilty of violating its obligations towards asylum seekers and refugees on several occasions by both the Court of Justice of the European Union and the European Court of Human Rights.
Concerning the exact topic of our recent press release regarding the transit zones situated at the Serbian-Hungarian border, in December 2020, the Court of Justice of the European Union (CJEU) found that Hungary’s legislation on the rules and practices applied there was contrary to EU law, in particular the Asylum Procedures Directive, the Reception Conditions Directive, and the Return Directive.
Similarly, less than a year ago, in November 2021, the CJEU found that Hungary violated both the Procedures and Reception Directives by rejecting the asylum applications of those arriving in Hungary through a “safe transit country” as “inadmissible” and by unlawfully criminalizing the activities of those who provided assistance to asylum-seekers.
Again, two years before that, in November 2019, the European Court of Human Rights (ECtHR) Grand Chamber judgment in Ilias and Ahmed v Hungary found that Hungary breached its obligations, in particular Article 13 (right to an effective remedy) and Article 3 (prohibition of inhuman or degrading treatment), by returning two Bangladeshi asylum-seekers to Serbia without considering the risk that they might be exposed to inhuman and degrading treatment upon their arrival.
In general, it is widely reported how Hungarian authorities have gradually restricted access to the country for refugees and asylum seekers in the last decade and endangered their lives in many ways, including denying food distribution, detaining them arbitrarily while awaiting the outcome of their asylum application, and violently pushing them back across its borders.
In December 2015, the scale of the suffering of refugees and asylum-seekers both at Hungary’s borders and in the country was so high and wide that it triggered the opening of an infringement procedure by the European Commission, culminating in the judgment of the European Court of Justice of 17 December 2020.
This inhumane situation goes way back before the Ukrainian war and the current double standard employed, which Euro-Med Monitor referred to as “akin to migratory apartheid.” In 2019, the Hungarian Helsinki Committee – the referral organization for legal assistance according to UNHCR Hungary – even denounced the systemic rights violations committed against migrants in Hungary at Europe's largest annual human rights and democracy conference, the Human Dimension Implementation Meeting of the Organization for the Security and Cooperation in Europe (OSCE).
In conclusion, it is important to recall that this is not a “new storyline,” and Euro-Med Human Rights Monitor is not simply part of “migration aficionados and liberal expert groups.” The matter is neither political nor left-wing, rather, it is an international law and fundamental human rights concern touching concrete people, and as such, it deserves its accuracy, truthfulness, awareness, and care.