¹ Conspiracy theories about forces behind the sudden surge abound listing ISIS (Daesh), Putin, the EU, and “invisible powers,” including George Soros. See, e.g., Report of the Hungarian Public Television (Aug. 7, 2016), https://www.youtube.com/watch?v=iyuyI51AvOI&feature=youtu.be (noting that Human Rights Watch and migrants similarly describe the treatment in Hungary as “being treated like animals,” and implicitly suggesting that migrants are acting upon the instructions of NGOs).Google Scholar

² EU Commission, EU Home Affairs Background Statistics Migration. Asylum, Schengen and Borders, Security. Multi-annual financial framework 2014–20 7, http://ec.europa.eu/dgs/home-affairs/e-library/docs/infographics/ha-in-numbers/home_affairs_in_numbers_en.pdf.Google Scholar

³ Online Database 1.9. Asylum-Seekers in Hungary and Persons Granted International Protection Status, Hungarian Statistical Office (2000), http://www.ksh.hu/docs/eng/xstadat/xstadat_annual/i_wnvn003.html.Google Scholar

⁴ Asylum and First Time Asylum Applicants—Annual Aggregated Data (rounded), Eurostat, http://ec.europa.eu/eurostat/tgm/table.do?tab=table&init=1&plugin=1&language=en&pcode=tps00191 (last visited Oct. 29, 2016); Asylum and First Time Asylum Applicants by Citizenship, Age and Sex Monthly Data (rounded), Eurostat, http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_asyappctzm&lang=en (last visited Oct. 29, 2016).Google Scholar

⁵ End of June for EU 28+, end of July for Hungary. Cumulated figures. EASO Latest Asylum Trends – June 2016 (EU Data), Eurostat, http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report (last visited Oct. 29, 2016). Hungarian data from Office of Migration and Nationality.Google Scholar

⁶ 2016 July figures suggest 6.6 million IDPs in Syria. Syrian Arab Republic, UNOCHA, http://www.unocha.org/syria (last visited Oct. 29, 2016).Google Scholar

⁷ Just an illustration from the most recent EASO country of origin report: “On 4 May 2015, the Taliban stopped public buses in Khak-e-Safed district, abducted 15 civilians on suspicion of working for the government and beheaded two of them. Since May, 2015, the district of Gulistan is contested by the Taliban. On June 28, 2015, insurgents abducted the 17-year-old son of an ANP officer in Farah city and killed him.” EASO, Country of Origin Information Report Afghanistan Security Situation Update Malta (Jan. 2016), https://coi.easo.europa.eu/administration/easo/PLib/EASO-COI-Afghanistan_Security_Situation-BZ0416001ENN_FV1.pdf.Google Scholar

⁸ 201,405 Western Balkan nationals applied for asylum making up 14 % of all applications in the EU+ in 2015. EASO, Annual Report – 2015 10 (2016). Recognition rates: the former Yugoslav Republic of Macedonia 1 %, Serbia 2 %, Kosovo 3 %, and Albania 3 %. Id. Google Scholar

⁹ EASO, Latest Asylum Trends – 2015 Overview 4 (2016); EASO, Annual Report – 2015 23 (2016).Google Scholar

¹⁰ Authors calculation based on Annex D 1 (Asylum applicants in the EU+ by Member States and main citizenship, 2011-2015) of the 2015 EASO Annual Report.Google Scholar

¹¹ Author's calculations based on Eurostat and OIN data.Google Scholar

¹² The yearly less than 10 “tolerated to stay.” The non-removable persons are not included in this table.Google Scholar

¹³ Other termination grounds exist (i.e. death, change of immigrant status), but they hardly ever occur.Google Scholar

¹⁴ Iran: Afghan Refugees and Migrants Face Abuse, Hum. Rights Watch (Nov. 20, 2013) https://www.hrw.org/news/2013/11/20/iran-afghan-refugees-and-migrants-face-abuse.Google Scholar

¹⁵ OIN, Statistical Booklet—First Half of 2016 (in Hungarian), http://www.bmbah.hu/images/statisztikak/160712%20KIADV%C3%81NYF%C3%9CZET_2015_2016_I_F%C3%89L%C3%89V.xls at p.8.Google Scholar

¹⁶ Comm'n Staff Working Document (SWD (2016) 160 final) Accompanying the document Report From The Commission to the European Parliament and the Council Fourth Report on Progress by Kosovo in Fulfilling the Requirements of the Visa Liberalisation Roadmap 8 (2016).Google Scholar

¹⁷ Statistics Explained Asylum Quarterly Report, Eurostat 12 (July 14, 2016), http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report Google Scholar

¹⁸ Id. at 14.Google Scholar

¹⁹ Id. at 6.Google Scholar

²⁰ For details, see infra Part D.II.Google Scholar

²¹ Boldizár Nagy, Hungary's Hypocritical Migration Policy, Heinrich Böll Stiftung (May 29, 2015), https://www.boell.de/en/2015/05/29/hungarys-hypocritical-migration-policy.Google Scholar

²² Buzan, B., Wæver, O., & Wilde, J. de, Security: A New Framework for Analysis (1998).Google Scholar

²³ Huysmans, J., The European Union and the Securitization of Migration, 38 J. of Common Mkt Studies No. 5, p 758, (2000).Google Scholar

²⁴ Fidesz stands for Fidesz—Magyar Polgári Szövetség (Fidesz—Hungarian Civic Alliance). “Fidesz” itself is an acronym for Alliance of young democrats (Fiatal demokraták szövetsége). It is no longer used in its full form.Google Scholar

²⁵ See, e.g., The Securitisation of Migration in the EU: Debates Since 9/11 (G. Lazaridis & W. Khursheed eds., 2015) [hereinafter Securitisation of Migration].Google Scholar

²⁶ Bigo, D., Security and Immigration: Toward A Critique of the Governmentality of Unease, 27 Alternatives 75–76 (2002).Google Scholar

²⁷ G. Lazaridis & V. Tsagkroni, Securitisation of Migration and Far Right Populist Othering in Scandinavian Countries, in Securitisation of Migration, supra note 25, at 207–36.Google Scholar

²⁸ Squire, V., The Securitization of Migration: An Absent Presence?, in Securitisation of Migration, supra note 25, at 29.Google Scholar

²⁹ J. Huysmans & V. Squire, Migration and Security, in Handbook of Security Studies 171 (M. Dunn Cavelty & V. Mauer eds., 2010).Google Scholar

³⁰ Squire, supra note 28, at 29.Google Scholar

³¹ G. Lazaridis & A. M. Konsta, Identitarian Populism: Securitization of Migration and the Far Right in Times of Economic Crisis in Greece and the UK, in Securitisation of Migration, supra note 25, at. 184–206.Google Scholar

³² Id. at 185–86.Google Scholar

³³ Id. at 186.Google Scholar

³⁴ Id. Google Scholar

³⁵ Id. Google Scholar

³⁶ Id. at 187.Google Scholar

³⁷ Mudde, C., The Hungarian PM Made a “Rivers of Blood” Speech … and No One Cares, Guardian (July 30, 2015), https://www.theguardian.com/commentisfree/2015/jul/30/viktor-orban-fidesz-hungary-prime-minister-europe-neo-nazi.Google Scholar

³⁸ See infra Part D.I. (providing details and quotes).Google Scholar

³⁹ Stumpf, J., The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 367–419 (2006).Google Scholar

⁴⁰ Id. at. 402.Google Scholar

⁴¹ C. C. Garcia Hernández, Crimmigration Law 3 (2015).Google Scholar

⁴² M. A. H. van der Woude, & P. van Berlo, Crimmigration at the Internal Borders of Europe? Examining the Schengen Governance Package, 11 Utrecht L. Rev. 61, 61–79 (2005). See also Maria João M. J. Guia, M A. van der Woude & J. van der Leun, Social Control and Justice: Crimmigration in the Age of Fear (2013).Google Scholar

⁴³ This section relies on and incorporates certain paragraphs of my blog entry on EU Immigration and Asylum Law and Policy entitled Parallel Realities: Refugees Seeking Asylum in Europe and Hungary's Reaction, EU Blog, Immigration L. (Nov. 4, 2015), http://eumigrationlawblog.eu/parallel-realities-refugees-seeking-asylum-in-europe-and-hungarys-reaction/.Google Scholar

⁴⁴ See infra Part D.Google Scholar

⁴⁵ Act LXXX. of 2007 as amended.Google Scholar

⁴⁷ Press Release 144/16, EU-Turkey Statement (Mar. 18, 2016).Google Scholar

⁴⁸ Government decree 63/2016. (III. 31.).Google Scholar

⁵⁰ The next amendment that entered into force on Sept 15, 2015 extended the appeal period to seven days.Google Scholar

⁵² The date of the entry into force of the amendments and the closure of the border with the fence was the same: September 15, 2015.Google Scholar

⁵³ Government resolution 1401/2015 (VI. 17) “on certain measures necessitated by the exceptional immigration pressure (Magyar Közlöny, No 83 of 2015) referred to this as ”a provisional fence serving border control“ (Point 1).Google Scholar

⁵⁴ Act C. of 2012.Google Scholar

⁵⁵ The concept is described in Act LXXXIX. of 2007 on the state border. See Articles 5 A-D and 15.Google Scholar

⁵⁶ 269/2015 (IX. 15) Korm rend.Google Scholar

⁵⁷ Flow data: Arrivals on average in excess of 500 per day for a month, or 750 per day for two weeks or 800 per day for a week.Google Scholar

⁵⁸ Stock data: On average the number of persons in the transit zone exceeds 1,000 per day for one month, 1,500 per day for two weeks, or 1,600 per day for one week.Google Scholar

⁵⁹ See Article 80/A of the Asylum Act.Google Scholar

⁶⁰ Id. at point c). On this basis, the government declared a crisis situation caused by mass immigration covering the whole country on March 9, 2016. Government decree 41/2016 (III.9.).Google Scholar

⁶¹ See Article 71/A of the Asylum Act.Google Scholar

⁶² Amuur v. France, App. No. 17/1995/523/609 (June 25, 1996), http://hudoc.echr.coe.int/.Google Scholar

⁶³ Adopted on May 10, 2016, published on May 20, 2016 and entered into force (in respect of the asylum provisions) on June 1, 2016.Google Scholar

⁶⁴ Bill T/9634, at 46.Google Scholar

⁶⁵ Act no. XCIV of 2016, entry into force on July 6, 2016.Google Scholar

⁶⁶ UNHCR, New “Excision” Law Does Not Relieve Australia of its Responsibilities Towards Asylum-Seekers, UNHCR (May 22, 2013), www.unhcr.org/news/press/2013/5/519ccec96/new-excision-law-relieve-australia-its-responsibilities-towards-asylum.html.Google Scholar

⁶⁷ Ref. Ares(2015)4109816 (June 10, 2015), http://www.statewatch.org/news/2015/oct/eu-com-letter-hungary.pdf.Google Scholar

⁶⁸ European Commission Press Release IP/15/6228, Commission Opens Infirngement Proceudre Against Hungary Concerning its Asylum Law (Dec. 10, 2015).Google Scholar

⁶⁹ See infra Part D. Vi.Google Scholar

⁷⁰ The summary of Mr. Orbán's speech to the Hungarian diplomatic corps: Józan ésszel és bátorsággal kell képviselni az országot (the country has to be represented with sober mind and bravery), Kormányzat (Aug. 25, 2014), http://www.kormany.hu/hu/a-miniszterelnok/hirek/a-leggyorsabban-novekvo-eu-s-orszagok-koze-fogunk-tartozni.Google Scholar

⁷¹ The weekly HVG quoting the Hungarian News Agency MTI. Orbán: gazdasági bevándorlóknak nem tudunk menedéket adni, HVG.HU (Jan. 2015), http://hvg.hu/itthon/20150111_Orban_gazdasagi_bevandforloknak_nem_tudunk.Google Scholar

⁷² The term in Hungarian is “megélhetési” which is a pejorative expression usually referring to someone who pursues a profession without vocational drive, i.e. merely to earn money. The records of the debate are available at http://www.parlament.hu/documents/10181/308218/ny150220.pdf/7817140d-c961-441d-b21c-29c26963684c.Google Scholar

⁷³ The letter and questionnaire are downloadable in English from: http://www.kormany.hu/en/prime-minister-s-office/news/national-consultation-on-immigration-to-begin (July 21, 2016).Google Scholar

⁷⁴ Three answers were offered: “Yes, I would fully support the government; I would partially support the government; I would not support the government,” i.e. two in weak or strong support of the government, one neutral (neither support nor opposition). Weak or strong disagreement could not be expressed.Google Scholar

⁷⁵ Resolution 36/2015 (IX. 22) of the Parliament, Magyar Közlöny No. 136 of 22 September 2015, http://www.magyarkozlony.hu/dokumentumok/30d4e493298b407e098990414cb8387e7c1caaf8/megtekintes.Google Scholar

⁷⁶ Id. Google Scholar

⁷⁷ Országgyŭ'lési Napló, 2014–2018. országgyŭlési ciklus Budapest, 2015. november 16. hétfő 116. szám. [Records of the National Assembly, cycle 2014–2018, November 16, 2015, Monday, no. 116] He ended his speech with four proposals: “A new European policy is needed…. I suggest to push dogmas aside, let us discard political correctness and talk straight and openly. I suggest to return from the world of ideologies to natural reason ….”Google Scholar

1 “First we have to defend the external borders of the EU, as security starts with the defence of borders.”Google Scholar

2 “We have to defend our culture as the essence of Europe is its spiritual and cultural identity.”Google Scholar

3 “We have to defend our economic interests as we, Europeans must remain in the center of the world-economy.”Google Scholar

⁷⁸ See Part D.V (providing details on freeriding).Google Scholar

⁷⁹ Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A European Agenda on Migration, at 4, COM (2015) 240 final (May 13, 2015). “The EU needs a permanent system for sharing the responsibility for large numbers of refugees and asylum seekers among Member States. The Commission will table a legislative proposal by the end of 2015 to provide for a mandatory and automatically-triggered relocation system to distribute those in clear need of international protection within the EU when a mass influx emerges.”Google Scholar

⁸⁰ See Fokozódik a migráációs nyomás Magyarországon, Kormányzat (Feb. 11, 2016), http://www.kormany.hu/hu/miniszterelnokseg/hirek/fokozodik-a-nyomas-magyarorszagon; Fokozódik a nyomás magyarországon, Fidesz.HU (Feb. 11, 2016), http://www.fidesz.hu/hirek/2016-02-11/fokozodik-a-nyomas-magyarorszagon/.Google Scholar

⁸¹ The talk is translated into English and posted on the Prime Minister's official website: http://www.miniszterelnok.hu/speech-by-prime-minister-viktor-orban-on-15-march/ (June 1, 2016).Google Scholar

⁸² 8/2016. (V. 10.) OGY hatzározat országos népszavazás elrendeléséről (Resolution on ordering national referendum).Google Scholar

⁸³ President of Hungary Sets 2 October as the Date for the Referendum, Kormányzat (July 5, 2016), http://www.kormany.hu/en/news/president-of-hungary-sets-2-october-as-the-date-for-the-referendum.Google Scholar

⁸⁴ The compatibility of the referendum with the obligation of loyal cooperation will be taken up in the breaches of law section.Google Scholar

⁸⁵ See, e.g., Nyolc tétel sorosgyuri migránspolitikájáról, 888.HU (Oct. 10, 2015), http://888.hu/article-nyolc-tetel-sorosgyuri-migranspolitikajarol.Google Scholar

⁸⁶ UNHCR in 2012 expressed concern about the serious challenges asylum seekers face in accessing protection in Hungary. It noted that “Since April 2010, asylum detention has become the rule rather than the exception,” mentioned that the practice between 2008 and 2010 was unlawful and continued to criticize the regime after 2010 for lack of effective remedies, unpredictability, and the lack of legitimate aims in many cases. UNHCR, Hungary as a Country of Asylum (Apr. 24, 2012), http://www.refworld.org/docid/4f9167db2.html [hereinafter Hungary as a Country of Asylum]. The Council of Europe's Commissioner of Human Rights also noted the deterring effect of detention, by criticising the 2015 changes and claiming that they “‘rendered access to international protection extremely difficult and unjustifiably criminalised immigrants and asylum-seekers.” Visit to Hungary, Council of Eur. (Nov. 27, 2015), http://tinyurl.com/gvkp8be. In his third party intervention into an Austrian case about returning an asylum seeker to Hungary, he deplored the detention system as arbitrary, implemented in a “particularly worrisome” mode, lacking effective remedy and alternatives. See Third Party Intervention by the Council of Europe Commissioner for Human Rights under Article 36 of the European Convention on Human Rights Applications No. 44825/15 and No. 44944/15, S.O. v. Austria and A.A. v. Austria 5–7, Council of Eur. (Dec. 17, 2015), http://www.coe.int/en/web/commissioner/third-party-interventions [hereinafter Third Party Interventions].Google Scholar

⁸⁷ Lokpo et Touré v. Hungary, App. No. 10816/10 (Sept. 20, 2011), http://hudoc.echr.coe.int/. Al-Tayyar Abdelhakim v. Hungary, App. No. 3058/11, (Oct. 23, 2012), http://hudoc.echr.coe.int/. Nabil and Others v. Hungary, App. No. 62116/12 (Sept. 22, 2015), http://hudoc.ecgr.coe.int.Google Scholar

⁸⁸ Asylum Act, 2016 July version, Asylum detention, Art. 31/A:Google Scholar

(1) The refugee authority can, in order to conduct the asylum procedure and to secure the Dublin transfer – taking the restriction laid down in Section 31/B into account – take the person seeking recognition into asylum detention if his/her entitlement to stay is exclusively based on the submission of an application for recognition whereGoogle Scholar

a) the identity or citizenship of the person seeking recognition is unclear, in order to establish them,Google Scholar

b) a procedure is ongoing for the expulsion of a person seeking recognition and it can be proven on the basis of objective criteria – inclusive of the fact that the applicant has had the opportunity beforehand to submit application of asylum – or there is a well-founded reason to presume that the person seeking recognition is applying for asylum exclusively to delay or frustrate the performance of the expulsion,Google Scholar

c) facts and circumstances underpinning the application for asylum need to be established and where these facts or circumstances cannot be established in the absence of detention, in particular when there is a risk of escape by the applicant,Google Scholar

d) the detention of the person seeking recognition is necessary for the protection of national security or public order,Google Scholar

e) the application was submitted in an airport procedure, orGoogle Scholar

f) it is necessary to guarantee Dublin transfer procedures and there is a serious risk of escape.Google Scholar

[Article 31/B exempts unaccompanied minors from detention and excludes detention solely on the basis that the person has applied for asylum].Google Scholar

⁸⁹ For a comprehensive account, see B. Simonovits & A. Bernát et al., The Social Aspects of the 2015 Migration Crisis in Hungary (2016), http://www.tarki.hu/hu/news/2016/kitekint/20160330_refugees.pdf; see also Annastiina Kallius et al., Immobilizing Mobility: Border Ethnography, Illiberal Democracy, and the Politics of the “Refugee Crisis” in Hungary, 43 Am. Ethnologist 25, 25–37 (2016).Google Scholar

⁹⁰ Havassy Anna Katalin, Megint dráma a vasútállomáson: újabb koszovói menekülteknek jelentette a végállomást Győr – fotók (Drama again at the railway station: for further Kosovar refugees Győr meant the final station – photos), Kisalföld Online, (Apr. 2, 2015), http://www.kisalfold.hu/gyori_hirek/megint_drama_a_vasutallomason_ujabb_koszovoi_menekulteknek_jelentette_a_vegallomast_gyor_-_fotok/2416482/.Google Scholar

⁹¹ Migrant Crisis: Hungary Migrants Start Walk to Border, BBC News (Sept. 4, 2015), http://www.bbc.com/news/world-europe-34155701; see also Kallius et al., supra note 90, at 25–26, 29–30.Google Scholar

⁹² Croatia Migrant Scramble for Hungary Train, BBC News (Sept. 20, 2015), http://www.bbc.com/news/world-europe-34307014.Google Scholar

⁹³ Rosenblum, Marc R., Border Security: Immigration Enforcement Between Ports of Entry 29 (2012), http://fpc.state.gov/documents/organization/180681.pdf.Google Scholar

⁹⁴ Supra Part C.III.Google Scholar

⁹⁵ See infra Part D.iV.Google Scholar

⁹⁶ Márk Zoltán Kékesi, A Hungarian Mayor Makes a Show of “Migrant-Hunting”, Observers (Aug. 2, 2016), http://observers.france24.com/en/20160802-hungary-mayor-migrant-hunting-asotthalom.Google Scholar

⁹⁷ “Senior government officials have described NGOs as ‘paid political activists who are trying to help foreign interests’, which encouraged authorities to target human rights organizations through surprise financial audits, criminal investigations and public shaming, thus curtailing their activities.” Michael Forst, End of Mission Statement by Special Rapporteur on the Situation of Human Rights Defenders, Visit to Hungary 8–16 February 2016 (2016), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17048&LangID=E.Google Scholar

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⁹⁸ UN Expert Urges Hungary Not to Stigmatise and Intimidate Human Rights Defenders, UN Special Rapporteur (Feb. 16, 2016), https://www.protecting-defenders.org/en/news/un-expert-urges-hungary-not-stigmatise-and-intimidate-human-rights-defenders.Google Scholar

⁹⁹ See supra Part C.III.Google Scholar

¹⁰⁰ Directive 2013/32/EU, of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection, 2013 O.J. (L 180) 60–95.Google Scholar

¹⁰¹ Article 38. In the safe third country,Google Scholar

(a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;Google Scholar

(b) there is no risk of serious harm as defined in Directive 2011/95/EU [the Qualification Directive];Google Scholar

(c) the principle of nonrefoulement in accordance with the Geneva Convention is respected;Google Scholar

(d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; andGoogle Scholar

(e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.Google Scholar

(a) rules requiring a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country;Google Scholar

(b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant.Google Scholar

Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe;Google Scholar

(c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that the third country is not safe in his or her particular circumstances. The applicant shall also be allowed to challenge the existence of a connection between him or her and the third country in accordance with point (a).Google Scholar

¹⁰² Hungary as a Country of Asylum, supra note 87, at 25 § 71 reports the following: In any event, UNHCR maintains the position taken in its observations on the Serbian asylum system in August 2012 that asylum-seekers should not be returned to Serbia. While the number of asylum-seekers passing through that country has since greatly increased, leaving its asylum system with even less capacity to respond in accordance with international standards than before, many of UNHCR's findings and conclusions of August 2012 remain valid. For example, between 1 January and 31 August 2015, the Misdemeanour Court in Kanjiža penalized 3,150 third country nationals readmitted to Serbia from Hungary for illegal stay or illegal border crossing, and sentenced most of them to a monetary fine. Such individuals are denied the right to (re) apply for asylum in Serbia.Google Scholar

¹⁰³ “Within the period 1 August 2015 to 31 March 2016, OIN found 1,184 applications to be inadmissible (although whether this was always on safe third country grounds, is unclear). In the same period, 387 applicants submitted a request for judicial review of the OIN's inadmissibility decision – including 114 submitted in the transit zones. In 246 cases, the Courts annulled OIN's decision and referred them back to the OIN.” Id. at 17, § 41.Google Scholar

¹⁰⁴ This is a description of the conditions by a competent observer: Notwithstanding an ever-increasing influx of asylum-seekers since 2013 and significant amounts of EU-funding, the Hungarian government has failed to properly extend the country's reception capacities. The open reception centres for asylum-seekers have become extremely overcrowded in Hungary by mid-2015. The facility in Debrecen (the largest in the country), with a capacity of 800, is now hosting over 1 800, on occasions even 2 000 asylum-seekers. The reception centre in Bicske is constantly home to up to 1 200 asylum-seekers, while its maximum capacity is only 450 places. At all reception facilities, asylum-seekers have to sleep on the corridors, in community areas or, especially during heat waves, outside in tents or often on plain mattresses. Hygienic conditions are frequently very problematic, there are not enough showers and lavatories, and crucial services – such as individual social assistance or psycho-social care – are not available.Google Scholar

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¹⁰⁵ Government Resolution 1724/2015 (X. 7.) announcing the closure in Debrecen of the open reception center on October 31, 2015 and of the asylum detention facility on December 15, 2015.Google Scholar

¹⁰⁶ on July 22, Hungarian daily Magyar Nemzet reported that, at the time, 1,300 asylum seekers were accommodated in open or closed reception centers of the more than 22,000 that arrived in 2016 (and some may have come in 2015). The same article refers to news reports according to which 20–30 asylum seekers arrive daily in Austria from Hungary. Markotay Csaba, Kihasználatlan menekülttáborok (Underused refugee camps), Magyar Nemzet Online (July 22, 2016), http://mno.hu/belfold/kihasznalatlan-menekulttaborok-1353085.Google Scholar

¹⁰⁷ See supra Part C.III.Google Scholar

¹⁰⁸ “Currently, only 15–17 people are admitted daily at each zone, leaving hundreds to suffer day and night without any proper support at the EU border,' said Samar Mazloum, head of UNHCR's field office in Szeged.” Fearing rejection in Hungary's cold comfort transit zones UNHCR expresses concern over Hungary's restrictive approaches and the dire situation asylum-seekers face outside the transit zones. Helen Womack, Fearing Rejection in Hungary's Cold Comfort Transit Zones, UNHCR (June 7, 2016), http://www.unhcr.org/news/latest/2016/6/5756b4374/fearing-rejection-hungarys-cold-comfort-transit-zones.html.Google Scholar

¹⁰⁹ “Since May, UNHCR staff and partners have collected information on over 100 cases with disturbing allegations of excessive use of force as people try to cross the border. ”UNHCR Alarmed at Refugee Death on Hungary-Serbia Border, UNHCR (June 6, 2016), http://www.unhcr-centraleurope.org/en/news/2016/unhcr-alarmed-at-refugee-death-on-hungary-serbia-border.html.Google Scholar

¹¹⁰ Supra Part C.V.Google Scholar

¹¹¹ Manfred Nowak, UN Covenant on Civil and Political Rights—CCPR Commentary 278 (1993) cited by Goodwin, Guy S.-Gill, Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection, in Refugee Protection in International Law: UNHCR's Global Consultations on International Protection 195 (Erika Feller, Volker Türk & Frances Nicholson eds., 2003). For an elaborate discussion leading to a wide interpretation of the term “penalty,” see Hathaway, James C., The Rights of Refugees under International Law 405–12 (2005).Google Scholar

¹¹² Supra Part D.II.Google Scholar

¹¹³ For the rules see supra Part D.III.Google Scholar

¹¹⁴ Supra Part C.III.Google Scholar

¹¹⁵ An unofficial translation of the laws in force (WolterKluwers jogtár) uses this expression.Google Scholar

¹¹⁶ Act C. of 2012 Article 352/A. Author's translation.Google Scholar

¹¹⁷ “According to the Szeged court, 2,353 individuals were convicted of unauthorized crossing of the border fence between 15 September 2015 and 31 March 2016. Of these, 1,331 were sentenced to expulsion for one year, 943 to expulsion for two years, 33 to expulsion for three years, one to expulsion for four years and one to expulsion for five years. In addition, two were sentenced to actual imprisonment, 36 to suspended imprisonment, four were issued a warning and two were put on probation.” Hungary as a Country of Asylum, supra note 87, at 22 § 57.Google Scholar

¹¹⁸ UNHCR notes that between September 15, 2015, the completion of the fence with Serbia, and March 31, 2016, only 298 individuals were readmitted by Serbia, seventy-eight of them Serbian nationals. Id. at 25 § 68.Google Scholar

¹¹⁹ The Government's homepage reported the statement of the director of the Office of Nationality and Immigration, according to which more than 414,000 irregular entries into Hungary have been recorded in 2015. As the number of applications for international protection 177,135, the almost 240,000 difference includes persons who did enter, but did not apply for asylum, most of whom were actively transported by the Government to the Austrian border. The source of the 414 000 figure is: Rendkívüli migrácios nyomás érte Magyarországot tavaly, Kormänyzat (Jan. 18, 2016), http://www.kormany.hu/hu/belugyminiszterium/parlamenti-allamtitkarsag/hirek/rendkivuli-migracios-nyomas-erte-magyarorszagot-tavaly.Google Scholar

¹²⁰ “Két magyar embercsempészt és hat illegális bevándorlót fogtak el Hegyeshalom közelében a mosonmagyaróvári rendőrök” (Two Hungarian human smugglers and six illegal immigrants have been arrested in the vicinity of Hegyeshalom by the police of Mosonmagyarovar“). Erröl Tudnia Kell, Embercsempészeket fogtak el Hegyeshalom közelében, Origo (Aug. 31, 2015), http://www.origo.hu/itthon/20150831-embercsempesz-menekult-hegyeshalom.html.Google Scholar

¹²¹ The author was informed about such cases directly. See Greiner, Von Lena, Privatleute holen Flüchtlinge von der Straße, Spiegel Online (Sept. 6, 2015), http://www.spiegel.de/politik/ausland/fluechtlinge-im-autokonvoi-von-ungarn-nach-oesterreich-a-1051662.html.Google Scholar

¹²² The daily newspaper Magyar Nemzet reporting on a radio interview of Viktor Orbán broadcasted by the radio station “Kossuth” on September 18, 2015. Orbán: Épül a kerítés a horvát határon, MNO (Sept. 18, 2015), http://mno.hu/belfold/orban-epul-a-kerites-a-horvat-hataron-1304874.Google Scholar

¹²³ Viktor Orbán, Parliament, (Sept. 21, 2015. http://www.parlament.hu/documents/10181/56618/2015.09.21.+napl%C3%B3/077af232-5782-4653-a36f-ee75ae4b6959.Google Scholar

¹²⁴ Razor-Wired: Reflections on Migration Movements Through Slovenia in 2015 8–10 (V. Bajt & N. Kogovšek Šalamon eds., 2016).Google Scholar

¹²⁵ Elutasítja a kvótarendszert a magyar kormány (The Hungarian Government refuses the quota-system), Kormányzat (Oct. 29, 2015), http://www.kormany.hu/hu/miniszterelnokseg/hirek/elutasitja-a-kvotarendszert-a-magyar-kormany.Google Scholar

¹²⁶ Hungary is Suspending Re-Admission of Asylum-Seekrs from Other EU Member States, Kormányzat (June 23, 2015), http://www.kormany.hu/en/ministry-of-interior/news/hungary-is-suspending-re-admission-of-asylum-seekers-from-other-eu-member-states.Google Scholar

¹²⁷ Eur. Council on Refugees and Exiles, Case Law Fact Sheet: Prevention of Dublin Transfers to Hungary (2016), http://www.asylumlawdatabase.eu/sites/www.asylumlawdatabase.eu/files/aldfiles/Fact%20sheet%20-%20Case%20law%20on%20Hungary_FIN.pdf.Google Scholar

¹²⁸ On the process see Groenendijk, Kees & Nagy, Boldizsar, Hungary's Appeal Against Relocation to the CJEU: Upfront Attack or Rear Guard Battle?, EU Immigration & Asylum Law & Pol'y (Dec. 16, 2015), http://eumigrationlawblog.eu/hungarys-appeal-against-relocation-to-the-cjeu-upfront-attack-or-rear-guard-battle/.Google Scholar

¹²⁹ Relocation decisions, adopted as of September 14, 2015 and Council Decision (EU) 2015/1601, of 22 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece, 2015 O.J. (L 248/80). The resettlement decision took the form of conclusions of the (JHA) Council Doc. No. 11130/15, Conclusions of the Representatives of the Governments of the Member States Meeting Within the Council on Resettling Through Multilateral and National Schemes 20,000 Persons in Clear Need of International Protection (July 22, 2015) [hereinafter JHA Council Doc. No. 11130/15].Google Scholar

¹³⁰ JHA Council Doc. No. 11130/15, supra note 132.Google Scholar

¹³¹ The Commission proposed an in-depth redesign of the Dublin system, including a “corrective allocation mechanism” based on a reference number. The mechanism re-distributes asylum applicants into other member states if, in the given member state, their number exceeds 150% of the reference number, which in turn is established on the basis of a reference key giving 50–50% weight to the size of the population and the total GDP. Proposal for a Regulation of the European Parliament and of the Council Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in one of the Member States by a Third-Country National or a Stateless Person (Recast), COM (2016) 270 Final (May 4, 2016).Google Scholar

¹³² Act CLXXV. “In defence of Hungary and Europe, for the action against the compulsory in -settlement quota.” (Magyarország és Európa védelmében a kötelező betelepftési kvóta elleni fellépésről). Note that the word used to designate the attacked EU measure is not the Hungarian term for “relocation” which is “áthelyezés,” but a different expression, “betelepités,” which has a sinister overtone in Hungarian, referring to an alien power which against the will of the local population brings in “alien” settlers.Google Scholar

¹³³ Proposal for a Council Decision Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy, Greece and Hungary, COM (2015) 451 final (Sept. 9, 2015).Google Scholar

¹³⁴ “As Hungary however does not wish to be included as beneficiary of the emergency relocation scheme, the Council agreed that (an)other Member State(s) confronted with a similarly evolving pressure following a sudden inflow of nationals of third countries could benefit instead.” European Commission - Fact Sheet: Refugee Crisis – Q&A on Emergency Relocation, What is the European Agenda on Migration and What is its State of Play?, Eur. Comm'n (Sept. 22, 2015), http://europa.eu/rapid/pressrelease_MEMO-15-5698_en.htm.Google Scholar

¹³⁵ Case C-647/15, Hungary v. Council of the European Union, 2016 E.C.R 43.Google Scholar

¹³⁶ Case C-643/15, Slovak Republic v. Council of the European Union, 2016 E.C.R. 41.Google Scholar

¹³⁷ Zuzana Vikarska, The Slovak Challenge to the Asylum-Seekers' Relocation Decision: A Balancing Act, EW Law Analysis (Dec. 29, 2015), http://eulawanalysis.blogspot.de/2015/12/the-slovak-challenge-to-asylum-seekers.html.Google Scholar

¹³⁸ Of the 160,000 persons to be relocated on the basis of the two September 2015 decisions, 2,280 people have been relocated by June 15, 2016. Relocation and Resettlement - State of Play, Eur. Comm'n (June 15, 2016), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/background-information/docs/20160615/factsheet_relocation_and_resettlement_-_state_of_play_en.pdf.Google Scholar

¹³⁹ Groenendijk & Nagy, supra note 131.Google Scholar

¹⁴⁰ Supra Part D.I.Google Scholar

¹⁴¹ Decision of the Hungarian Parliament. 8/2016. (V. 10.) OGY. határozat. http://net.jogtar.hu/jr/gen/hjegy_doc.cgi?docid=A16H0008.OGY&timeshift=fffffff4&txtreferer=00000001.TXT Google Scholar

¹⁴² Due to the enhanced access to Hungarian nationality without moving to Hungary several hundred thousand persons were naturalized in a simplified process. 754,347 persons have acquired Hungarian nationality (and voting rights) by April 30, 2016. Dániel Kacsoh, Hétszázötvennégyezer új honosítás (Seven hundred fifty four thousand new naturalizations), Magyarhirlap.hu (June 15, 2016), http://magyarhirlap.hu/cikk/58382/Hetszazotvennegyezer_uj_honositas.Google Scholar

¹⁴³ KnK.IV.37.222/2016/9 5004 (May 3, 2016). Published in Magyar Közlöny (Official Gazette).Google Scholar

¹⁴⁴ Id. at § 41.Google Scholar

¹⁴⁵ Id. at § 43.Google Scholar

¹⁴⁶ Id. at § 44.Google Scholar

¹⁴⁷ Id. Google Scholar

¹⁴⁸ Id. at § 42.Google Scholar

¹⁴⁹ Meaning “extended its competence.”Google Scholar

¹⁵⁰ Brussels Must be Stopped, Kormányzat (Aug. 1, 2016), http://www.kormany.hu/en/cabinet-office-of-the-prime-minister/news/brussels-must-be-stopped.Google Scholar

¹⁵¹ For details see Krisztina Kovács, Access to Justice? Migration Cases Before the Constitutional Court of Hungary 4–5 (July 27, 2016).Google Scholar

¹⁵² Whatever the outcome, neither the Hungarian Parliament nor the EU bodies is obliged to adopt or to revoke any legislation. On the one hand, even if the subject matter of the referendum was the future Dublin regime—which the Supreme Court could not envisage, as the Commission proposal came later than the submission to it —the Government would not need its support. In the ordinary legislative procedure it may cast a negative vote. On the other hand, no referendum may exempt it from implementing binding EU regulations.Google Scholar

¹⁵³ Data Relating to the Result of the National Referendum, Nat'l Election Office (Oct. 8, 2016), http://www.valasztas.hu/en/ref2016/481/481_0_index.html.Google Scholar

¹⁵⁴ Prime Minister Viktor Orbán Informs EC President of Referendum Result Via Letter, Kormányzat (Oct. 6, 2016), http://www.kormany.hu/en/the-prime-minister/news/prime-minister-viktor-orban-informs-ec-president-of-referendum-result-via-letter.Google Scholar

¹⁵⁵ “The change will set down a framework that includes our constitutional identity, which covers territory, people and population, as well as state structure and form of government”—Statement by the Minister of Justice, Mr. Trócsányi at a press conference on October 5, 2016. The constitutional amendment will protect our national and constitutional identity.Google Scholar

¹⁵⁶ United Nations, Treaty Series, vol. 189, p. 137. Article 31 states that Refugees unlawfully in the country of refuge:Google Scholar

¹⁵⁷ An ocean of literature surrounds this topic. See generally, e.g., On Article 31: Goodwin, Guy S.-Gill, Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection, in Refugee Protection in International Law: UNHCR‘s Global Consultations on International Protection 185–252 (E. Feller, V. Türk & F. Nicholson eds., 2003); G. Noll, Article 31, in The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 1243–76 (A. Zimmermann, F. Machts &J. Dörschner eds., 2011); Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement, in Refugee Protection in International Law: UNHCR‘s Global Consultations on International Protection 89–177 (E. Feller, V. Türk & F. Nicholson, eds., 2003); Goodwin, Guy S.-Gill & J. McAdam, The Refugee in International Law 201–67 (3d ed. 2007); James Hathaway, Leveraging Asylum, 45 Tex. Int'l L. J. 503 (2009–2010); Hemme Battjes, In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement Under Article 3 ECHR Reassessed, 22 Leiden J. of Int'l L. 583 (2009); Cathryn Costello, The Search of the Outer Edges of Nonrefoulement in Europe: Exceptionality and Flagrant Breaches, in Human Rights and the Refugee Definition Comparative Legal Practice and Theory 180–209 (B. Burson & D. J. Cantor eds., 2016).Google Scholar

¹⁵⁸ Hungary as a Country of Asylum, supra note 85, at 23 § 62.Google Scholar

¹⁵⁹ Mr. Husain Ibrahimi and Mr. Mohamed Abasi v. The Secretary of State for the Home Department, [2016] EWHC 2049 (Eng. & Wales).Google Scholar

¹⁶⁰ Id. at Para. 148.Google Scholar

¹⁶¹ Id. at Para. 161. The Evidential Summary of the judgment contains a long list of judgments and decisions reversing decisions on return to Hungary.Google Scholar

¹⁶² G.A. Res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195.Google Scholar

¹⁶³ Id. at Art. 4.Google Scholar

¹⁶⁴ Viktor Orbán at a press conference with Austrian chancellor Kern. Hungarian Primse Minister Says Migrants are ‘Poison’ and ‘not needed’, Guardian (July 26, 2016), https://www.theguardian.com/world/2016/jul/26/hungarian-prime-minister-viktor-orban-praises-donald-trump.Google Scholar

¹⁶⁵ Third Party Interventions, supra note 87, at 7 § 31.Google Scholar

¹⁶⁶ Ref. Ares(2015)4109816 (June 10, 2015), http://www.statewatch.org/news/2015/oct/eu-com-letter-hungary.pdf; Hungarian Helsinki Comm., No Country for Refugees – New Asylum Rules Deny Protection to Refugees and Lead to Unprecedented Human Rights Violations in Hungary (2015), http://helsinki.hu/wp-content/uploads/HHC_Hungary_Info_Note_Sept_2015_No_country_for_refugees.pdf.Google Scholar

¹⁶⁷ Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection, at 96–116, 2013 O.J. (L 180).Google Scholar

¹⁶⁸ Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection, at 60–95, 2013 O.J. (L 180).Google Scholar

¹⁶⁹ See infra Part D.IV.Google Scholar

¹⁷⁰ Agreement between the European Community and the Republic of Serbia on the Readmission of Persons Residing Without Authorisation, 2007 O.J. (L 334/46).Google Scholar

¹⁷¹ Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third Country Nationals, at 98–107, 2008 O.J. (L 348).Google Scholar

¹⁷² At present, Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code), at 1–52, 2016 O.J. (L 77). At the most material time, Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 Establishing a Community Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code), at 1–32, 2006 O.J. (L 105).Google Scholar

¹⁷³ Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the Right to Interpretation and Translation in Criminal Proceedings, at 1–7, 2010 O.J. (L 280).Google Scholar

¹⁷⁴ The whole new package of the EU acquis recast was presented in Spring and Summer of 2016.Google Scholar

¹⁷⁵ Act CXXXI of 2010 on the public participation in the preparation of laws.Google Scholar

¹⁷⁶ See, e.g., The Hungarian Helsinki Committees Comments in Spring 2016 (Mar. 7, 2016), http://www.helsinki.hu/wp-content/uploads/Menekultugyi_modositasra_Helsink_-eszrevetelek_20160307.pdf.Google Scholar

¹⁷⁷ See, e.g., Klamert, Marcus, The Principle of Loyalty in EU Law (2014).Google Scholar

¹⁷⁸ The CJEU will decide if in fact it is a legislative act or not.Google Scholar

178 Asylum seekers, refugees, and other migrants are involved in crimes, but not to the extent justifying the extent of hostility produced by the Hungarian Government's discourse.Google Scholar

¹⁷⁹ Ibrahimi, [2016] EWHC § 159.Google Scholar