The European Commission (EC) on Thursday stepped up an infringement procedure against Hungary over legislation that makes the promotion and support of illegal immigration a punishable criminal offense. The EC also took two other infringement procedures to the next stage, with respect to non-EU nationals.
In June 2018, Hungarian lawmakers approved a package of laws, dubbed "Stop Soros," referring to a plan for managing the migrant crisis which it alleged was earlier outlined by Hungarian-born investor and philanthropist George Soros.
The package defines support for illegal immigration in the Criminal Code as offering to initiate an application for asylum to anybody who has arrived from, or passed through on the way to Hungary, any country in which that person was not persecuted.
The first offense is treated as a misdemeanor punishable by imprisonment up to 90 days; however, repeat offenses and the support of such illegal activity by material means may result in imprisonment for a period of up to one year.
"The Hungarian legislation curtails asylum applicantsʼ right to communicate with and be assisted by relevant national, international and non-governmental organizations by criminalizing support to asylum applications," said the EC in a press release, announcing its "reasoned opinion," the second stage of the infringement procedure that began with the issuing of a "formal notice" in July. It said the Hungarian legislation is in violation of the Asylum Procedures Directive and the Reception Conditions Directive.
The Stop Soros package also amended the act on asylum rights to prohibit approval of any application for asylum by a person who has travelled through a country in which they were not persecuted or at risk of serious harm and could have applied there for asylum.
While the EC acknowledged on Thursday that EU law provides for the possibility to introduce non-admissibility grounds under the "safe third country" and the "first country of asylum" concepts, it said the Hungarian rules "curtail the right to asylum in a way which is incompatible with the Asylum Qualifications Directive [...] and the EU Charter of Fundamental Rights."
The EC added that provisions in the legislation which prohibit anyone subject to a criminal procedure under the laws from approaching the transit zones at Hungaryʼs borders "unduly restricts the exercise of free movement rights of EU citizens."
In summary, the EC said that the legislation in question, combined with existing asylum provisions, has the effect of criminalizing any assistance offered by any person on behalf of organizations to people wishing to apply for asylum or for a residence permit in Hungary.
The Hungarian authorities now have two months to respond to the ECʼs concerns. Otherwise, the EC may move to the third and final stage of the process, referring the case to the Court of Justice of the European Union (CJEU).
The EC noted that the present infringement procedure is running in addition to another procedure regarding Hungaryʼs failure to comply with EU asylum and return legislation, which it referred to the CJEU on July 19, 2018.
The EC also decided on Thursday to send reasoned opinions to Hungary on two additional matters, concerning non-EU nationals.
The EC said Hungary has failed to correctly implement a directive on long-term residents, noting that non-EU nationals who are legal residents of an EU member state for at least five years enjoy equal treatment with nationals in certain areas, including access to employment.
At present, Hungarian law prohibits veterinarians who are non-EU nationals from practicing their profession in the country, even if they have obtained their degree there.
In addition, the EC said Hungary failed to notify it of measures taken to implement current EU standards on the qualification of third-country nationals for international protection. The directive on the standards "lays down common EU standards for the identification of non-EU citizens or stateless persons in need of international protection" and "ensures a minimum level of benefits and rights in all EU countries, thus providing a disincentive for secondary movements between EU countries and asylum shopping."