Controlling irregular migration: International human rights standards and the Hungarian legal framework
| Date | 01 July 2019 |
| DOI | 10.1177/1477370818772776 |
| Author | Anthony Amatrudo,Daniel Gyollai |
| Published date | 01 July 2019 |
| Subject Matter | Articles |
https://doi.org/10.1177/1477370818772776
European Journal of Criminology
2019, Vol. 16(4) 432 –451
© The Author(s) 2018
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DOI: 10.1177/1477370818772776
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Controlling irregular migration:
International human rights
standards and the Hungarian
legal framework
Daniel Gyollai
Glasgow Caledonian University, UK
Anthony Amatrudo
Middlesex University, UK
Abstract
In the summer of 2015 Hungary constructed a 175 km long barbed-wire fence at its southern
border with Serbia. New criminal offences and asylum procedures were introduced that limited
access to refugee status determination and ignored agreed EU asylum policy, deterring and de
facto preventing asylum seekers from entering Hungarian territory. This paper provides an
analysis of these new measures, which criminalized asylum seekers, and the subsequent Hungarian
policy in relation to the case law of the European Court of Human Rights – arguing that the
Hungarian authorities excessively abused their discretion in implementing these new policies of
immigration and border control.
Keywords
Asylum, crimmigration, human rights, Hungary, irregular/illegal migration, non-refoulement
Introduction
It is a feature of our globalized world that migration is on the rise. There are safe and
well-regulated routes for the rich or anyone lucky enough to come from western, or
perceived-to-be western-friendly, nations. Conversely, there are routes that fall foul of
the normal regulatory systems and these tend to be used by the poor and those from
Corresponding author:
Daniel Gyollai, Glasgow Caledonian University, Glasgow School for Business and Society, Cowcaddens
Road, Glasgow, G4 0BA, UK.
Email: daniel.gyollai@gcu.ac.uk
772776EUC0010.1177/1477370818772776European Journal of CriminologyGyollai and Amatrudo
research-article2018
Article
Gyollai and Amatrudo 433
perceived-to-be western-unfriendly nations. Those migrants who are poor and from per-
ceived-to-be western-unfriendly nations have limited access to well-regulated movement
across borders and are invariably forced into transactions with criminals and into a pre-
carious relationship with those nations that they wish to enter (Bowling and Sheptycki,
2015). For this latter group, mobility, if not migration, seems to be possible only through
undocumented or irregular routes. Because their lives are without proper documentation,
they are open to exploitation and both over-regulation and criminalization by the coun-
tries they wish to move to (Oelgemöller, 2011). They live in a precarious relationship
with the state they come from and, more importantly, the one they wish to move to (Aas,
2011). Moreover, they demonstrably come to be understood, in the political sphere, as a
challenge to the agreed norms and processes of the state (Bosworth, 2008). Criminologists
have been at the forefront of detailing this process and what we might refer to as a hier-
archy of migration; and how that, in turn, highlights practical human rights issues and the
need for mechanisms that take seriously the irregularity of this form of migration process
(Aas and Gundhus, 2015). This article sets out in detail the dangers of marginalizing
human rights and promoting inflexible systems of migration control to deal with irregu-
lar migration, taking the Hungarian example.
Europe is currently facing the largest number of irregular migrants since the Second
World War (Naccache and Al Ariss, 2017). Most of them are asylum seekers who have
been forced to leave their home mainly owing to the armed conflicts in Syria, Iraq and
Afghanistan. When they reached the Serbian border in summer 2015, the Hungarian
government introduced strict control measures in both its immigration and its criminal
policy (Bilgic and Pace, 2017). It justified the changes by claiming national interest and
security concerns, and its right and obligation to protect the economic, social, cultural
and physical integrity of the nation. The key consideration is this: when security is in
question, every state has the right to define criteria for inclusion, sometimes at the
expense of human rights in balancing public interest against individual rights. However,
there should be a minimum level of justice: a symbolic bottom line that sets limit to the
discretionary power of the authorities. Van der Woude (2017: 13) emphasizes that mis-
used discretion inflicts immediate harm to the victims of the abuse and long-lasting harm
to the legitimacy of the criminal justice system. Our objective is, on the one hand, to
identify the limits of exclusion set by international human rights law and, on the other, to
point out the critical issues when Hungary, while exercising its legitimate sovereign
power over border control, stepped across that line.
In the first part of the study we will outline how states lately are re-nationalizing poli-
tics and criminalizing migration-related conduct to regain their supposedly lost authority
over border control, arguing that, although international human rights provide protection
for individuals against the abuse of power, the entitlements of irregular migrants are
highly contentious. In the law of the European Court of Human Rights (ECtHR), we will
identify a list of core, quasi non-derogable rights that cannot be contested, irrespective of
any claims made by states. In the second part, we will then analyse the most criticized
preventive, deterrent measures and subsequent practices implemented in Hungary in
2015. We will focus on the criminalization of entry, Hungary’s safe third country policy,
and the process for determining refugee status in transit zones, with its implications for
the detention of asylum seekers.
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