The decision by the Hungarian Constitutional Court of December 10 focuses solely on migration, and nothing but migration. It is a milestone decision since it confirms the Hungarian approach to migration policy and underscores that Hungarians have the right to defend themselves and their borders.
It also provides guidance on how European rules should be adapted to reality in order to effectively protect Europe's borders from illegal immigration. It all comes down to one question: whether member states still have the right to decide with whom their citizens want to live. It once seemed to be a very distant problem, but illegal migrants are pressing on the external borders of the EU from multiple directions. Hungary managed to stop them through all legal means, up to a point when complying with EU rules was creating a constitutional problem. Therefore, Hungary was forced to submit this issue to its Constitutional Court.
The ruling takes a firm stand, clarifying that as long as the complete effectiveness of EU rules on migration is not ensured, Hungary has the right to exercise such competencies. In order to effectively protect its borders, Hungary shall also be entitled to adjust its national rules to reality by adopting additional, individual measures. In practical terms, the Constitutional Court has built a strong legal barrier in addition to the physical closure of our borders.
The debate also pointed to the inevitable need to reform EU rules on migration. The world has changed, and rules from Brussels that were adopted in peacetime have not kept up with reality. It is becoming clear to more and more countries that the current migration legislation is not working and is unable to protect our continent from illegal immigration. Statistics show that almost two-thirds of illegal migrants – including convicted criminals – remain in Europe despite their applications being officially rejected.
In such a situation, it is of paramount importance that the Constitutional Court held that Hungarians have the right to defend themselves and to refuse to live with peoples other than those with whom they have shared a common destiny for centuries. Illegal migration endangers not only our sovereignty and identity, but it may also harm our human rights and dignity.
Hungary continues to be a dedicated member of the European Union without question. Still, it has advocated from the start that asylum decisions should be made in hotspots outside the EU’s borders, that cooperation with third countries should be intensified, that transit zones should be set up at the external borders, and that we should send back all persons who are not entitled to enter the EU.
Despite the pro-migratory push from Brussels, the reality has begun to justify our approach. On October 7, 12 member states wrote a joint letter to the European Commission asking for the adaptation of the EU legal framework to the new situation in order to effectively address illegal migration. At the October Summit, the European Council invited the Commission to propose necessary changes to the EU’s legal framework, underpinned by financial support, to ensure an appropriate response. Charles Michel openly advocates the financing of physical barriers and ever more member states now realise that swift action is needed to finance border management, including physical border barriers and infrastructure.
At the same time, Hungary’s repeated attempts to fulfil its legal obligation to protect the EU’s external borders were immediately threatened by infringement procedures and later ruled out by the Court of Justice of the EU. A judgement was issued last December that held that a foreigner staying illegally may not be escorted back beyond the border. Instead, an asylum or expulsion procedure should be carried out. In the absence of effective readmission, however, it would have meant these foreigners would end up remaining in our country. The ruling also banned transit zones, so we had to abolish them too. Today, migrants are still not automatically admitted but are asked to submit applications to the Hungarian embassies of the neighbouring countries. After all, all our neighbours are safe countries, where migrants are not threatened. Nonetheless, infringement procedures are still ongoing against Hungary, and Brussels still continues to blackmail Hungary with penalties.
That is why this February, on behalf of the government, I petitioned the Constitutional Court as regards the enforcement of the EU Court judgement, as its compliance was raising a constitutional issue. The question was whether, in light of the ‘Europe’ clause contained in the Fundamental Law, Hungary should implement an EU-imposed legal obligation that could lead to a situation whereby foreign nationals staying illegally in Hungary continued to do so for an unforeseeable period of time and, thus, become de facto a part of the country’s population.
By claiming that where the incomplete effectiveness of the exercise of shared competencies leads to a potential violation of the right to self-identity of persons living in Hungary, the Hungarian State shall be obliged to ensure the protection of its citizens’ rights, the Constitutional Court also defended the Constitution and made the protection of Hungary’s borders possible. In this procedure the Court did not examine the primacy of EU law, nor did it focus on the review of the former judgement of the EU Court. Nonetheless, its importance cannot be understated.
The ruling rightly shows this is the moment in which European institutions should finally realise their duty to protect Europe. The Commission should therefore stop harassing member states who contribute to external border protection, stop the related infringement procedures, and come up with a recommendation that adapts the EU’s current legal framework on migration to reality.
Judit Varga is Hungary's justice minister.