Migration related concerns : anti-migration policies, detention, pushbacks, age assessment, etc.

From its opening statement to its closing remarks, the Hungarian delegation pointed out its anti-migration policies. During the dialogue, the delegation did not shy away from controversial and drastic statements on migration.  

Committee members criticized the low number of asylum seekers being admitted into the transit zones.  Moreover, the expansion of a regulation where any person is found on the territory of Hungary without valid documentation, is escorted to the external side of the border, was criticized by the Committee. Between 5 July 2016 and 28 March 2017, there were 20 000 instances of these escorts, but no documentation took place as to who is escorted.

The delegation stressed the right of the Hungarian people to determine who will be allowed in the country. It also stressed the need to promote and protect the interests of the Hungarian people and their security. As the Head of Delegation put it: “Migration is not a fundamental human right. Nobody has to right to wake up one morning, point to a favorite country and decide to settle down there.”

The Committee considered several answers of the delegation to be unsatisfactory. Hungary announced a so-called mass migration crisis in 2016, but the Committee clarified that its obligations under the Covenant remain valid.

In this regard, Committee members noted with concern that asylum seekers are automatically detained, in violation with the Covenant. There is no remedy against a detention decision, and the maximum length of the decision is six months. It is 30 days for families with minors. Moreover, the Committee asked what measures were taken to improve the detention conditions. The delegation clarified that no migrants are detained in the transit zones, and that the notion of detention is misunderstood : people can leave the transit zone to Serbia at any time.

Another concern regarding migration, was the age assessment of unaccompanied migrant children. Applicants subject to medical examinations are kept in detention, and the Committee asked whether minors are separated from adults in this regard. NGOs informed the Committee that medical personnel belonging to the military conducts these assessments by looking at the individual and guessing their age. Migrants can then request a second opinion, which will be given by a general practitioner and cannot be contested. There is no judicial oversight. Moreover, this second assessment will take at least one month, until which the asylum procedure is suspended and the migrant remains in detention. As a result, many migrants do not contest the first age assessment. 

Shrinking space for civil society in Hungary

People protesting in Budapest against the new law targeting the Central European Uiversity, April 2017. Photo credit: Flickr

Another main concern of the Committee was the recently adopted legislation on civil society organisations, that requires them to disclose highly detailed information. The State has been in discussions with international NGOs, who, according to the Hungarian delegation, have not been elected by anybody to pursue any agenda and thus lack legitimacy. They cannot speak on behalf of the population, contrary to Parliament. In reaction to this, the Committee stressed that it deemed NGOs to have a very important role in society to uphold the interests of minorities.  

The Committee was particularly concerned that foreign funded NGOS are targeted and discriminated against in this new legislation. In this regard, the Committee also expressed concern about the law imposing several new stringent requirements to foreign funded universities, including an official agreement between the foreign State and Hungary. According to NGOs and Committee members, this law targets the Central European University (CEU) based in Budapest, that will probably close down as a result of this legislation. This regulation limits the academic freedom, the space for civil society and the freedom of expression, guaranteed in the Covenant.

The delegation reacted to these comments by saying that the activities of NGOs are not made impossible by asking them to disclose their funding. The goal of the legislation is transparency. In relation to the CEU, the State said this act applies to all foreign funded Hungarian institutions who enjoyed illegitimate advantages until now, of which there are 20. It is not targeting any university and thus complies with the principle of non-discrimination.

The Committee clarified its point of view : no one objects to the notion of transparency, but their concern is linked to the fact that the ability of NGOs to conduct their activities, is undercut because they are branded as enemies of the Hungarian people.

Recommendations of the Human Rights Committee

Within two years, the State party should provide information on the following recommendations from the Committee´s Concluding Observations.

Holding migrants in transit zones and immigration detention

• Refrain from automatically removing all asylum applicants to the transit zones, thereby restricting their liberty, and ensure an individual assessment of the need to transfer them, on a case-by-case basis.
• Significantly reduce the period of initial mandatory immigration detention and ensure that any detention beyond that initial period is justified as reasonable, necessary and proportionate in the light of the individual’s circumstances and is subject to periodic judicial review; (c) Expand the use of alternatives to detention for asylum seekers.
• Legally limit the overall duration of immigration detention.
• Provide for a meaningful right to appeal against detention and other movement restrictions.
• Ensure that children and unaccompanied minors are not detained, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests as a primary consideration with regard to the duration and conditions of detention and their special need for care. 
• Improve the conditions in the transit zones and ensure that migrants are held in appropriate, sanitary, non-punitive facilities and that immigration detention does not take place in prisons.

Non-refoulement and excessive use of force

•  Repeal the push-back law established in June 2016 and the amendments thereto, and legally ensure that the removal of an individual must always be consistent with the State party’s non-refoulement obligations.
• Consider revising the decree 191/2015 and develop procedural safeguards against refoulement, including the possibility of review of asylum decisions by an independent judicial body providing effective remedies.
• Refrain from collective expulsion of aliens and ensure an objective, individualized assessment of the level of protection available in “safe third countries”.
• Ensure that force or physical restraint is not applied against migrants, except under strict conditions of necessity and proportionality, and ensure that all allegations of use of force against them are promptly investigated, that perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, and that victims are offered reparation

“Stop-Soros” package

• The State party should reject the draft laws, known as “Stop-Soros Package”, introduced before the Parliament on 13 February 2018, and ensure that all legislation addressing NGOs is fully consistent with its international obligations under the Covenant, reflects their important role in a democratic society and is designed to facilitate, not undermine, their operations.

Hungary´s next periodic report is due on 6th of April 2023