About-face or camouflage? Hungary and the refugees from Ukraine

Forum on the EU Temporary Protection Responses to the Ukraine War 

Contribution by Boldizsár Nagy, Associate Professor, Central European University
11 April 2022

In wartime, use war metaphors. The question raised in the title to this piece invites readers to look deeper into the reactions to the consequences of Russian invasion within Hungary. Has the Hungarian Government truly abandoned its totalising anti-refugee policy and law or is it just camouflaging its xenophobic and racist attitude  in an act of political opportunism? Does the civil society rescue the prestige of the country? To answer these questions, this contribution will report the facts, the legal developments and then offer an early evaluation.

The facts

We all hope that this will soon be history. Therefore, let us pinpoint the facts working on the assumption that the tragic details of the Russian aggression and its devastation within Ukraine are well known by the reader.

Hungary is one of the four EU Member States bordering Ukraine, sharing a similarly short border with its neighbour, alongside Slovakia (137 and 98 km /rounded/, respectively). Poland and Romania have much longer frontiers (542 and 614 km), as well as the non-EU member Moldova (1 222 km).  The table reflecting UNHCR data  below shows the number of arrivals to these five countries between 24 February 2022 and 1 April 2022.

The figures be treated with caution for two reasons. First, double counting is not excluded (for example, arriving first in Moldova, then moving on to Romania, Hungary and then possibly even further afield.) Secondly, these are accumulated flow data. Nobody knows how many people are actually in the listed countries (stock data) and how many travelled to yet another (further west) country not listed in the table. But it is certain that those who actually receive assistance and stay in Hungary constitute a much, much smaller group.

These uncertainties notwithstanding, it is beyond doubt that this is the largest outflow of refugees within Europe since World War Two, in the first month exceeding four times the overall figure of refugees from the cruel war in Bosnia-Herzegovina.

Most of those, who arrived into Hungary moved on. This was the experience of those civilians who hosted Ukrainians for one or two nights, and this may be reflected by the fact that the state authorities had only provided 8,644 persons with accommodation by 1 April 2022 at 173 different ad hoc shelters. On top of this, only 7,947 applications for temporary protection have been registered since 29 March.

Views may be divided on how unexpected the invasion of Ukraine was, but it is certain that the Hungarian Government was unprepared for the arrival and reception  of large numbers of people seeking protection.

The measures offered by the state were/are varied. As already mentioned, a fragment of those who arrived were accommodated in shelters, usually provided by municipalities. The government was slow in its reaction and essentially outsourced the task to five Church-based organisations and the Red Cross and to the National Directorate-General for Disaster Management. This had to be done as Hungary today has no functioning asylum system. It has been eradicated.  All reception centres were closed down and the non-entrée to Hungary’s territory and non-access to procedure policy was introduced in 2015-2016, followed in 2020 by the closure of the two remaining transit zones at the border.

The latter (and not the moribund refugee authorities) actually organised the provision of food, assistance, transport and shelter through local ‘defence committees’ for those who were not being taken care of by civil society organisations. It is symptomatic that on 25 March the webpage of the Directorate-General for Aliens Policing (to which asylum matters belong) still advised those fleeing from Ukraine to turn to civil society organisations ‘in case you need accommodation, food, medicine or other types of help and care’. It took almost a month for the government to set up a transit reception hub in a sports-centre and thereby end the daily reception of thousands of forced migrants at the railway stations, with people sleeping on the floor and relying on the goodwill of private individuals and charity organisations.

Civil society organisations sprang to the scene from the very first moment. A simple comparison of their joint website with that of the responsible government agency tells all. Civil society organisations revived their 2015 memories and utilised their experience to provide professional assistance right at the entry points on the frontier, as well as at Budapest’s main railway stations and, essentially, nationwide. Volunteers offered accommodation, transportation, food, clothes, childcare, interpretation, psychological treatment, medical care, travel arrangements and financial assistance at such a scale that the hundreds of thousands transiting Hungary could do so without additional trauma or being forced to use up the remnants of their resources.

The law

The legal regime applicable to asylum seekers has had two phases thus far. The first was in force between 10 pm on 24 February 2022, that is the day of the attack against Ukraine, until 8 March, when a new government decree (unofficial English translation here) was published that aimed at harmonisation with the EU Council implementing  decision establishing the existence of a mass influx of displaced persons from Ukraine, adopted on 4 March 2022.

The right to enter and stay

Ukrainian nationals with a biometric passport had the right to enter Hungary as a consequence of the relevant EU rules since 2017. Practically, the border crossing points were opened to everyone coming from Ukraine already on 24 February, but individual checks were (and still are) in place. People could come even if they only had identity documents but no passports. This is especially relevant in the case of the children, few of whom possess a travel document. According to non-official accounts,  Ukrainians who cross the Romanian-Hungarian border (so do not come directly from Ukraine) are also permitted to enter if they have a travel document. However, third country nationals coming from Ukraine but trying to enter from Romania seem to be stopped at the border, unless they meet the Schengen Border Code’s criteria for entry.

The circle of beneficiaries has differed in the two phases. The government decree adopted in the wake of the implementing decision with a retroactive effect narrowed the beneficiaries of temporary protection (TP), excluding third country nationals who had legally resided in Ukraine. Whereas until 8 March they could also apply for TP, after that date they were only entitled to a Certificate of Temporary Residence valid for 30 days. Only those third country nationals remained entitled to TP, who had benefited from international protection or equivalent national protection in Ukraine before 24 February 2022 – as prescribed in Article 2 (1) b) of the Council decision or who constitute family members of an Ukrainian citizen.

A particularly Hungarian problem emerged in relation to those dual nationals, who were beneficiaries of the large scale naturalisation of persons, and lived outside of Hungary but according to a special rule on naturalisation could acquire Hungarian citizenship without having to move to Hungary. In late February for a few days they were excluded from all benefits as they were considered ‘normal’ Hungarian citizens, but then, following an outcry by civil society, the rules in force since 8 March now prescribe that ‘Hungarian nationals with permanent residence in Ukraine and arriving from Ukraine on 24 February 2022 or on a later date shall be granted all the benefits and advantages provided to beneficiaries of temporary protection unless they enjoy more favourable treatment with regard to their Hungarian nationality.’ (Section 8 of Gov. Decree 86/2022)

Procedure of recognition

Being recognised as a temporarily protected person occurs through a procedure that is based on the Asylum Act (Act LXXX of 2007 – a somewhat dated translation, here ), its implementing Government decree (301/2007)  and the specific rules promulgated in Government decree 86/2022. Consequently, no personal interview is required, and no means-testing is demanded, thus reception conditions are provided even in the case that the person would be in a position to personally finance them.

However, there is an important difference between the ordinary regime and the one applied as a consequence of the 2022 Government decree. Whereas the Act speaks of a duty to ‘certify or substantiate’ the fact of belonging to the protected group (Section 20 of the Act), the new decree raises the bar: it prescribes that the applicant must ‘prove’ that link.

This is a much higher burden of proof, especially as not only the nationality or the family link has to be confirmed but also the fact that the person was ‘residing’ in Ukraine before 24 February, which may be difficult in the case of refugees who had to depart under duress and in a rush, so may not have documentary evidence with them that confirms their address.  At the time of writing, this text provides no information on addressing this difference, as the procedure conducted by the Asylum Directorate of the National Directorate-General for Alien Policing may last for 45 days and no public accounts of the specific details have surfaced or been released.

Work

Laudably, the administration made early steps to provide access to the labour market. On 7 March, Government Decree 86/2022 rendered certain jobs accessible without a labour permit (list at pp 5854-57), others with a labour permit, but without ascertaining first if there is a shortage of labour for that specific job – in other words, without giving preference to Hungarian and other EU citizens.

On 10 March, a Government  decree offered  support to future employers of a temporary protected person by covering 50 % of the employee’s monthly accommodation and travel expenses (maximum to the value of  EUR 162) and EUR 32 per child living in the same household. The employer may claim this support for the duration of the employment, but for no longer than 12 months. This support does not include any Ukrainian employed before the war.

A balancing factor is that beneficiaries of temporary protection who are unable to find a job may be called upon to do ‘public /community employment’. Both taking and rejecting this offer entails the loss of the general monthly subsidy that amounts to roughly one fifth of the pay offered for public employment.

Reception conditions and rights

Beneficiaries of temporary protection are entitled to:

• An ID card and residence permit for a year; Being united, either in Hungary or another Member State, with other family members who had been recognised as beneficiaries of temporary protection in another EU Member State. Family unification with persons not enjoying temporary protection in another EU Member State is subject to the general rules. The preferences offered to refugees and persons enjoying subsidiary protection in the Hungarian Asylum Act  are not extended to temporarily protected persons, nor is Paragraph 3 of Article 15 of the Directive allowing unification with family members who ‘are not yet in a Member State’ transposed;
• Accommodation at a reception centre run by the asylum authority, with reception services available during the entire period of temporary protection. They may also choose private accommodation;
• Childcare and tuition-free schooling until the age of 18;
• Healthcare that extends to primary care, specialised medical care or hospital care in cases of urgent need, prenatal care, obstetric care, the provision of certain medicines, oncology patient care and other types of care for chronic patients, emergency dental care;
• Reimbursement for costs connected to primary and secondary education (including travel costs);
• Reimbursement for travel costs (for purposes connected to administrative procedures, health care, integration services, job seeking, trips connected to employment);
• Reimbursement for the translation costs of their documents;
• Free participation in a Hungarian language course (520 lessons);
• A monthly subsistence allowance of approximately EUR 75 per adults and EUR 35-45 per child;
• Since 27 February, travel free of charge on any line of the Hungarian Railways;
• Those recognised as beneficiaries are also entitled to financial support when leaving Hungary for good; 

Evaluation

Hungary has not closed its borders to the refugees coming directly or indirectly from Ukraine. In the context of Hungary’s refusal to allow the transit of weapons to support the self-defence of Ukraine, and in light of its government controlled press essentially avoiding blaming Putin and Russia as aggressors, this is a welcome measure. More or less the requirements of the Council Directive 2001/55/EC on temporary protection and its implementing decision (EU) 2022/382 are being complied with.

Why can one not welcome the end of Hungary’s dark period of total denial of international protection, condemned by both the ECtHR and the CJEU several times? Because it hasn’t happened.

Except for those who come from Ukraine, it is still the case that nobody has access to Hungary and its asylum procedure. All others who would apply for asylum are still treated as ‘illegal migrants’ who are mercilessly pushed over the border fence into Serbia, even if they originally came from another country, for example from Romania.  The insistence on not providing access to Hungary’s territory and the asylum procedure is in flagrant opposition to the judgment resulting from the infringement case C-808/18 Commission v Hungary. This has led the Commission to take the rare measure of starting a procedure under Article 260 TFEU, seeking the imposition of financial sanctions on Hungary for non-compliance with the December 2020 judgment.

Therefore, the belated, half-hearted actions of the Hungarian Government do not represent an about face of their asylum policy. It is simply camouflage, with the government trying to hide the underlying total denial of solidarity with the persecuted and threatened of the world, especially those who are not Christian and may have a different skin colour or culture. It is a good excuse to demand solidarity and financial support from the EU, by a prime minister who vociferously denied and refused exactly these two contributions when other Member States expected them from Hungary.

The grim picture has a silver lining: Hungarian civil society has stepped in and either with the resources and labour of the volunteers or – in the case of the Church-based organisations and the Red Cross – with the help of an enormous government subsidy of almost EUR 1.5 million. Their efforts have helped preserve the honour of Hungarian society.

But it is clear that in the longer term and with the arrival of the harder cases who cannot move on to other members of the Ukrainian diaspora further to the west or in North America, the size of the tasks will increase with one or two orders of magnitude. That will be a task requiring substantive, coordinated and professional state intervention and sacrifice.

That is, a real about face, a true U-turn on the road to Damascus.