Hungary, a magnet for numerous would-be migrants because of its 110-mile land border with Serbia, has taken its own steps to stem the flow. One is brutally physical: a twelve-foot razor wire fence. The other is legal. Three years ago, Budapest passed a law preventing anyone not already lawfully resident seeking asylum, except through nominated Hungarian embassies abroad, one of which was that in Belgrade. The application had to be made in person there: the embassy would then decide whether to issue a temporary travel document allowing entry to Hungary while the application was processed.
The object was entirely practical: requiring irregular entrants to leave Hungary in order to apply for asylum discouraged such entry and made it more difficult for them to present the state with a practical fait accompli once they had crossed the border. Nor was it in any way inhuman: there is nothing hazardous about the diplomatic district in Belgrade.
The present system of refugee laws based on the Refugee Convention of 1951 is broken
The EU, never a friend to Viktor Orbán’s government, nevertheless objected: yesterday, the Court of Justice agreed. The EU’s 2013 international protection directive, it said, required an an effective opportunity to lodge an asylum application as soon as possible; coupled with the protection of the right to asylum in the EU Charter of Rights, this meant implicitly that a requirement for irregular arrivals to leave the country again in order to apply was out of order. Hungary’s argument that its internal security, a matter outside EU competence, justified its action received short shrift.
As a matter of EU law this is certainly justifiable, though probably not required. Here, as elsewhere, there is a good deal of wiggle-room. The Court, aware always of political niceties, could have determined that requiring asylum to be sought in a nearby embassy outside Hungary did not over-burden potential asylum-seekers or over-constrain the right to asylum. It might well have decided that Hungary, being in the front line in the fight against large-scale irregular migration, should have the benefit of the doubt over its argument about internal security. But it did not choose to do this.
Much of the reason for this must surely be that many at the centre of the EU remain unaware of the scale of the practical problems faced by eastern European countries, such as Hungary and Poland, which have borne the brunt of the refugee influx in the last few years. (Witness last week’s news that both these countries, sensing inveterate myopia in Brussels, may simply refuse to implement the latest EU plan, forced through by qualified majority, to compel member states to take given numbers of migrants or pay heavily for the privilege of not doing so.)
But there is another, deeper, side to all this. The unsayable truth, which growing numbers of EU apparatchiks must know but dare not admit, is that the present system of refugee laws based on the Refugee Convention of 1951 is broken. Predating mass travel and large-scale transcontinental economic migration, it is premised on the idea of relatively small numbers of refugees discreetly slipping over borders before presenting themselves politely at a police station to make their case for asylum from persecution on political grounds.
This is no longer so. We now have millions demanding to move to the prosperous West, and in addition a growth in the grounds which can help make or break an asylum claim (for example, anti-gay laws of the kind that existed in this country until 1967 can now, in principle, help entitle those who live under them to asylum). If we are to preserve the ability of nation states to control their borders, something has to give. One such is the condonation of mass irregular border crossings followed by asylum claims – almost exactly, in other words, what the Court of Justice demanded of Hungary, and what Hungary remains unwilling to concede.
A number of countries, such as Australia and Denmark, have bitten this bullet. They have moved towards making the system manageable, the numbers controllable, and proper selection possible. They have done so by shifting processing to safe third countries and discouraging the option of simply arriving and demanding to stay. This is pretty clearly the future: quite apart from the UK with its own plan for outsourcing at least some of its asylum determinations, more countries will undoubtedly follow this lead. If it is contrary to the scheme of the 1951 Refugee Convention (on which, to be fair, opinion is divided), then whether liberals like it or not that convention, and the system based on it, will become increasingly a dead letter.
The EU may not approve of this. But whatever it, or its court, says this year, one suspects that within the next few years it will have to accept it. Meanwhile, the UK has one reason to cheer. Whatever difficulties we face in bringing irregular migration to this country under control, at least we will not have the EU court intervening and telling us bluntly we can’t do it. Suella Braverman, embattled as she is, can rejoice at one thing that isn’t in her in-tray.
Comments