Hungary's border fence – Photo: wikipedia

Hungary’s penalising aid to asylum seekers violates EU law, says advocate general

Hungary's criminalisation of activities aimed at helping migrants apply for asylum, who do not meet the national criteria for international protection, violates European Union law, the advocate general for the bloc's Luxembourg court said on Thursday. Hungary's parliament in 2018 passed a package of laws dubbed "Stop Soros" which criminalised the "organisation and promotion of illegal migration".

The European Commission launched an infringement procedure against Hungary over the legislation, at the end of which it turned to the Court of Justice of the European, challenging what it called Hungary’s restriction of activities aiding asylum seekers and violation of their right to seek protection.

Anastasios Rantos, the advocate general of the Court of Justice of the European Union, said in a non-binding opinion that criminalising such activities went against the EU’s legislation guaranteeing assistance to those applying for international protection.

He noted that under the Hungarian law, asylum seekers were only eligible for international protection in Hungary if they arrived directly from a country not considered safe. Because Hungary classifies Serbia as a safe country, migrants arriving from there are ineligible for international protection.

Rantos also noted a ruling by the CJEU last March, which declared Hungary’s rules on safe transit countries to be in breach of EU law.

He said that every person or organisation helping migrants who enter Hungary from Serbia “is deemed to be aware” that the migrants’ asylum applications would be rejected and that they are risking criminal prosecution.

Rantos said Hungary’s criminalisation of these sort of activities served as a deterrent for those who wanted to make it easier for asylum seekers apply for international protection or seek humanitarian assistance.

The advocate general said that another law prohibiting those facing criminal proceedings “for having facilitated illegal immigration” from going within 8km of Hungary’s external border also aggravated the negative effects of criminalising the assistance of asylum seekers. He added, however, that this measure did not violate EU law, arguing that it merely served to enable the authorities to prohibit those suspected of having committed a crime from accessing areas connected with those offences.

Rantos therefore proposed that the CJEU reject the part of the EC’s legal challenge in which the commission seeks to establish Hungary’s failure to fulfil its obligations on the basis of that legislation alone.

Though the advocate general’s opinion is not legally binding, prior experience suggests the court will be strongly influenced by it.

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