EU top court advised to strike down Hungary’s asylum policy

It advised on dropping a third charge against Hungary on prohibiting people charged with aiding illegal migration from entering within 8km of the border area.

The opinion is non-binding, but are often followed in the ECJ, which will rule on the issue later.

The EU’s top court last December already ruled that aspects of Hungary’s asylum process were in breach of EU law, including designating asylum applications as inadmissible because the asylum-seeker arrived through a safe country.

On Thursday, the advocate general said that criminalising organisations or people who may provide legal help to asylum seekers launching an application also broke EU rules.

“The criminalisation of the organising activity in question constitutes an unjustified obstacle to the exercise of the rights guaranteed by the EU legislation concerning assistance for applicants for international protection and, accordingly, constitutes a failure to fulfill the obligations under that legislation,” the court’s statement said.

Stopping ‘Stop Soros’

The issue was brought to the court after the EU Commission launched an infringement procedure in 2018 for non-compliance with European asylum law.

The Hungarian legislation, known as “Stop Soros”, was a 2018 amendment to Hungary’s criminal code and threatened aid workers and human rights advocates working with asylum-seekers with up to a year in prison.

The law was named after the US-Hungarian billionaire philanthropist George Soros, who has long been a target of the Hungarian government, which argued that Soros’s foundations often support rights NGOs financially.

The government of prime minister Viktor Orban, a staunch opponent of migration, especially by Muslims, has blamed Soros and NGOs for encouraging mass migration to Europe, charges they reject.

“The commission and the advocate general, unfortunately, agree that it is completely acceptable to support, facilitate and organise illegal migration. In contrast, the Hungarian criminal code classifies these activities as a criminal offence,” the Hungarian government responded, in an emailed statement.

“Again, it is yet another example of how the Western thought bubble works. It is clear that no matter how cooperative the Hungarian government may be, it is again easier for the Brussels elite to initiate proceedings against Hungary by hiding behind well-used mantras and magic words,” the statement added.

The Hungarian government suggested it will not back down and said the commission “misunderstands the factual situation and scope of the punishable offence”.

A Hungarian human rights organisation, the Hungarian Helsinki Committee, said the advocate general’s opinion is “an important step towards abolishing the infamous ‘Stop Soros’ Act”.

The 2018 law not only further restricted the right to asylum but is “a perfect tool in the hands of the government to intimidate members of civil society, such as the Hungarian Helsinki Committee”, it said in a statement, adding that the measure only served to deter human rights defenders from carrying out their work.

The NGO, which continued its work, said it hoped the court’s ruling will follow shortly, “so that we may continue to work for the rights of asylum-seekers without the threat of being punished for providing legal assistance to those in need”.

Commissioner calls Hungary ‘ill’

Last year, Hungary closed its transit zones along its southern border, where it held asylum-seekers while their asylum requests were being decided, after the ECJ ruled that the zones amounted to detention and violated EU law.

In January, the EU’s border control agency, Frontex, suspended operations in Hungary as the government has so far failed to comply with the December ruling, and stop pushing back asylum-seekers to Serbia.

Hungary and various EU institutions have been locked in an increasingly tense debate about rule of law and democratic backsliding. The Hungarian government had accused the EU of being persecuted over rule of law to be pressured into a different asylum policy.

On Wednesday, justice commissioner Vera Jourova, herself from the Czech Repubic, said that: “For me, the Hungarian situation is the most worrying one.”

“In Hungary we see an ill democracy, not an illiberal democracy and I insist that this quite an appropriate assessment,” Jourova reiterated a statement she had made previously, which sparked anger in Budapest.