The Hungary games

By Kim Lane Scheppele

How Budapest evades its migrants obligations.

The Hungarian government is building a fence on the border with Serbia to keep out the ever-increasing flow of refugees to Europe. But just look at a map. Serbia represents a tiny slice of Hungary’s meandering southern border. If desperate asylum-seekers have traveled thousands of miles to get to Europe, a fence that runs for a little more than 100 miles won’t stop them. Why is Hungary building a small fence on a long border?
The fence will divert migrants toward Croatia or Romania on their way to final destinations in the wealthier parts of Europe. And that is precisely the point.

Croatia and Romania are EU member states. Serbia is not. Under the “Dublin Regulation,” the legal framework for processing asylum claims in the EU, the member state where asylum-seekers first enter the EU bears responsibility for them until their claims are processed. If Hungary diverts migrants so that they enter the EU first through other member states, then Hungary evades Dublin obligations.
The Dublin Regulation treats asylum seekers humanely. But, as critics of the system have long said, it throws the burdens of asylum claims back on the states least prepared to handle them: the poorer states along Europe’s southern and eastern edge. The regulation requires the responsible state to provide an adequate standard of living, to guarantee the migrants’ physical health, mental health and freedom from abuse while the state processes their asylum applications. Migrants may not be detained just because they are seeking asylum, but must be given shelter, health care and legal advice. Adults must be allowed to enter the local work force within nine months and minors must be admitted to schools within three.
The European Court of Human Rights has already held that migrants can no longer be sent back to Greece because the country cannot cope. The Hungarian government may have a point in trying to escape these burdens when its own citizens presently have the highest rate of personal financial insecurity in the EU. But apart from demonstrating the unfairness of the Dublin system, there’s also something deeply cruel and cynical about what the Hungarian government is doing.

The fence allows Orbán to escape Dublin obligations by diverting migrants through other EU member states.

At the start of 2015, migration from the “Western Balkan route” into Hungary spiked and, at the same time, support for the governing party Fidesz crashed. By late April, only 21 percent of Hungarian voters supported Fidesz, compared with 17 percent support for far-right Jobbik. Viktor Orbán, Hungary’s pugnacious prime minister, borrowed from Jobbik’s playbook by declaring zero tolerance for migrants.
In June, Orbán announced that Hungary would be unwilling to accept any migrants sent back to Hungary by other EU member states under the Dublin Regulation. When EU officials objected, he backtracked.
Orbán then seized on the fence, originally the idea of a Jobbik-affiliated mayor. The fence allows Orbán to escape Dublin obligations by diverting migrants through other EU member states while also stealing Jobbik’s thunder. Orbán’s “Hungary for Hungarians” speech in mid-June played to far-right sympathies. The latest polls show that this campaign has stopped the governing party’s slide.

Asylum denied

The fence will be completed by the end of August, ahead of time and under budget, because Hungary is using conscript labor. The fence panels are built by prisoners, just months after the European Court of Human Rights declared that Hungary’s prison conditions are inhuman and degrading. The labor to erect the fence comes from unemployed people who are paid far less than the minimum wage and threatened with the cutoff of their meager benefits if they refuse the work. The cruelty extends to the migrants too. Since the whole fence cannot be built so quickly, parts will simply be constructed with rolls of barbed wire.
The Hungarian government reports that more than 110,000 people have already applied for asylum in Hungary so far this year. The fence may prevent new migrants from triggering Hungary’s Dublin obligations, but what happens to those who are already in?
Under a new law that took effect on August 1, all applications from asylum-seekers who entered Hungary through a “safe state” must be rejected — and quickly. Serbia has been declared a safe state. So have all EU members. Any migrant who has entered Hungary through a safe state will have her application denied, unless the migrant herself can prove that she would be unsafe if sent back to the “safe” state.
Hungary already ranked among the worst countries in the EU in which to seek asylum. In 2014, Hungary rejected 91 percent of all asylum applications against the 66 percent EU average. Now, by law, it will reject even more.
A new law is pending before the Hungarian Parliament that would make crossing the border without papers and damaging state property (cutting the fence) felonies. While the Dublin Regulation bans routine detention of migrants, it permits the detention of suspected felons. The new law will go into effect just when the massive tent camps for migrants will be shut down. At that point, the Hungarian government will be able to imprison migrants in these camps before it summarily denies their asylum applications.
The Hungarian government’s strategy shows other EU governments how to evade their Dublin responsibilities. It also demonstrates to conservative governments nervous about far-right challengers how to make the most of the migrant crisis for political gain. If the EU says nothing about the Hungarian approach to asylum-seekers, its silence will look like a green light.