By Steven Simmons
In early January of this year, unseasonably cold temperatures struck refugee camps in Serbia on the Hungarian border, threatening the lives of many and leading to renewed calls for Hungary to let more refugees past its borders. For several years now, Hungary’s refugee policy has been considered as one of the more draconian in Europe, due to the policies of Hungarian Prime Minister Orban. In 2015, the Hungarian Parliament introduced a new procedure controlling the granting of asylum in the country, extremely accelerating the process to the point where an application for asylum can be submitted and rejected in less than a day. In addition to a mass rejection of asylum, Hungary built a massive barbed wire fence on its Serbian and Croatian borders in an attempt to limit entrance into Hungary to certain “transit zones.” After the European Union initiated a plan to distribute refugees between EU countries based off country population in 2016, Orban has gone further in his attempt to deny human rights to refugees. The Hungarian government has gone so far as to call all asylum seekers “potential terrorists” in its propaganda campaign to maintain its policy. The choices made by Orban in his refugee policy violate the 1951 Refugee Convention and its 1967 Protocol, which Hungary acceded to in 1989.
The 1951 Refugee Convention and its 1967 Protocol is a multi-party international agreement governing “the status and rights of refugees” on a global scale. While regional agreements exist, the Refugee Convention was promulgated by the United Nations and is supported by the United Nations High Commission on Refugees (UNHCR). This analysis will focus therefore on the Refugee Convention and its Protocol and not any European Convention controlling refugee laws. The Refugee Convention only provides rights for refugees, and not migrants. Refugees are defined in the convention as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Therefore, countries that belong to the Refugee Convention tend to argue that people entering the country are migrants, and not actually protected by the Convention. If the entrants are considered refugees, then they are given certain rights by the Refugee Convention. The Refugee Convention prohibits a number of state actions including the right to not be expelled and the right to not be punished for illegal entry into the territory of a contracting state.
Looking at Hungary’s actions, the first question that needs to be answered is if the people trying to enter the country are refugees or migrants. In early 2015, many European countries tried to explain away the influx of many people from Middle Eastern countries as migrants. However, as the conflicts across the Middle East have continued, notably in Syria, the consensus has grown that Europe is dealing with at least some refugees. The determination to consider people entering Europe as refugees deals with the fact that these people are dealing with a well-founded fear of persecution on account of civil wars, which could be considered as religion, membership of a particular social group, or political opinion. All of these individuals are outside their country of nationality and are unwilling to avail themselves to that protection.
Since at least some of the individuals seeking to enter Hungary are eligible for refugee status, Hungary has violated the Refugee Convention through its actions. Hungary has violated the Refugee Convention by taking illegal entrance into the country into account in determining if an individual is eligible for asylum. Hungarian law allows Hungary to expel applicants who arrive in Hungary outside the transition zones, this procedure can be used to deny a request for asylum, in direct violation of Article 31 of the Refugee Convention.
It is unlikely that Hungary will face any legal sanctions despite violating the Refugee Convention. While international pressure has been put upon Hungary to reform its immigration and refugee process, any reform would have to be implemented by the Hungarian government, which is unlikely while Orban remains in power. Therefore, it is important to recognize the violations of the Refugee Convention in order to maintain the pressure on Hungary to reform its policy.
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 See e.g. Eliza Mackintosh, Conditions worsen for Europe's refugees as temperatures plummet, CNN, Jan. 9, 2017, http://www.cnn.com/2017/01/09/europe/refugees-suffer-europe-cold-snap/.
 See Niels Muiznieks, Hungary’s Duty to Refugees, N.Y. Times, Sept. 28, 2016,
 Counsel of Europe, Visit to Hungary, Nov. 27, 2011, http://www.coe.int/en/web/commissioner/country-report/hungary/-/asset_publisher/hKTqZqCwoY6P/content/hungary-s-response-to-refugee-challenge-falls-short-on-human-rights?inheritRedirect=false&redirect=http%3A%2F%2Fwww.coe.int%2Fen%2Fweb%2Fcommissioner%2Fcountry-report%2Fhungary%3Fp_p_id%3D101_INSTANCE_hKTqZqCwoY6P%26p_p_lifecycle%3D0%26p_p_state%3Dnormal%26p_p_mode%3Dview%26p_p_col_id%3Dcolumn-1%26p_p_col_pos%3D1%26p_p_col_count%3D2.
 Muiznieks, supra note 2.
 UNHCR, Hungary as a Country of Asylum, April 2012, http://www.refworld.org/pdfid/4f9167db2.pdf.
 UNHCR, 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, http://www.unhcr.org/en-us/about-us/background/4ec262df9/1951-convention-relating-status-refugees-its-1967-protocol.html.
 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, Art. 1. http://www.unhcr.org/en-us/3b66c2aa10 (amended by Art. 1 of the protocol).
 UNHCR, Hungary as a country of asylum. Observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016, May 2016, http://www.refworld.org/publisher,UNHCR,COUNTRYPOS,HUN,57319d514,0.html.
 Muiznieks, supra note 2.