Children on the Move in Orbán’s Illiberal Hungary

by James Wookey

Viktor Orbán, Prime Minister of Hungary from 1998 to 2002 and again from 2010 until the present, is gradually eroding the institutional safeguards capable of holding his government to account. With the protraction of the European Refugee Crisis in the Mediterranean prompting Hungarian protectionism of both European integration efforts and European territorial integrity, Orbán and his right-wing party, Fidesz, have tightened Hungary’s migration law, stating that any changes to the “fundamental ethnic character of the country” will only downgrade Hungary’s value and “toss it into chaos” (DW 2017); suffice to note that this anti-migrant populist rhetoric has resonated strongly with the Hungarian electorate.  For Orbán and his supporters, migration constitutes the ultimate conceivable threat to Hungary: refugees are nothing more than the “Trojan horse of terrorism” (Brunsden 2017). 

Since 2015, Fidesz has introduced a package of legislative reforms that are especially pertinent to the migration context, threatening a clash between national (Hungarian) and supra-national (European) protection regimes.  These legislative reforms have altered both Hungary’s Asylum Act (henceforth AA) and Criminal Code (henceforth CC) in such a way as to render aspects of Hungary’s protection framework internally conflicting— simultaneously in both compliance and non-compliance with European standards.  The consequences of this internal tension are most apparent in the context of unaccompanied minors seeking asylum, who, as vulnerable individuals, struggle to receive the protection promised by the Refugee Convention, the Return Directive, the European Convention on Human Rights (ECHR) and European Court of Human Rights (ECtHR) jurisprudence.  For example, the Dublin III Regulation requires that the “best interests of the child shall be a primary consideration for Member States” with respect to asylum procedures (Article 6); equivalent counterpart provisions are found in Chapter IV of the Reception Directive.  On its face, the Hungarian framework appears to comply with these European requirements:  Hungary identifies unaccompanied minors as requiring “special treatment” (AA Article 2(k)), stating that they are to be treated “with due consideration of the specific needs arising from their situation” (AA Article 4(3)).  However, the following discussion demonstrates how other features of Hungary’s legislative framework operate to frustrate the Hungarian and European requirements to act in the best interests of child migrants.

The impact of Fidesz’s legislative recent amendments upon unaccompanied minors may well be explained through an overview of the law, but such an overview would struggle to humanise the reality of unaccompanied minors seeking protection in Hungary.

The impact of Fidesz’s legislative recent amendments upon unaccompanied minors may well be explained through an overview of the law, but such an overview would struggle to humanise the reality of unaccompanied minors seeking protection in Hungary.  Neither can quantitative nor statistical studies encapsulate the difficulties faced by more than one thousand unaccompanied minors who attempt to reach Hungarian borders every year.  To best convey the plight of this vulnerable migrant group, and to most accurately depict the interaction of the Hungarian-European immigration regime, this article constructs three fictional stories of three separate unaccompanied minors from Ghazni Province in Afghanistan.

Alireza, Najibullah, and Abdullah are each approximately 16 years old.  They are ethnic Hazaras of Shia faith who have never been issued with any formal identification documents, and, importantly, thus cannot prove their age.  Hazaras “have historically been marginalised and discriminated against by the [majority, Sunni] Pashtuns”, and face the reality of “a significant increase in harassment, intimidation, kidnappings, and killings at the hands of the Taliban” (UNHCR 2016a:76).  After being smuggled through Turkey, Greece, Macedonia and Serbia, Alireza, Najibullah, and Abdullah reach the Hungarian border and lodge applications to have their refugee status recognised.  Their applications are first assessed in a shipping container-filled transit zone which, despite being on Hungarian soil, is officially considered excised from Hungarian territory (AA Article 71/A).  Alireza, Najibullah, and Abdullah are subject to newly-introduced “accelerated proceedings”, whereby a decision on their applications “shall be made within fifteen days” (AA Article 47(2)).

Alireza: misidentified as an adult and denied family unity

Alireza has an uncle who has been living in Germany for some years, with whom Alireza wishes to live in safety.  In theory, Hungarian authorities would be required to fulfil their Dublin III duty “to ensure full respect for the principle of family unity and for the best interests of the child” (Article 16). This should mean that Alireza will undergo an age-assessment, be identified as a minor and united with his uncle for the duration of his asylum application. In reality, however, Alireza’s age-assessment only consists of a “simple physical observation … by a doctor who looks at signs of sexual maturity” (Hungarian Helsinki Committee 2016:7).  The assessment is not of the multidisciplinary character recommended by the UN Committee on the Rights of the Child, as it does not include any evaluation of Alireza’s “psychological maturity” (General Comment No. 6:10).  After a visit to the Serbian-Hungarian border, the Council of Europe’s Commissioner for Human Rights reported that “some persons who were likely minors have been placed in detention as a result of highly questionable age-assessment tests” (CoE 2015).  Alireza is one of these minors and is misidentified as an adult.

Because of this misidentification, Alireza is detained with non-minors in a shipping container in the transit zone.  He witnesses other asylum seekers receive uniform rejection notices—notices which, as the UNHCR has observed, are most likely attributable to the fact that the asylum seekers have all passed through Serbia, which Hungary has designated as a Safe Third Country (UNHCR 2016b:11).  The UNHCR has further observed that, where these inadmissibility decisions have been appealed, Hungarian courts have annulled the decisions and remitted them for reconsideration, undermining the consistency of Hungary’s understanding of its own obligations (UNCHR 2016b:17).  To illustrate: under Hungarian legislation, a Safe Third Country is one in which “the option to apply for recognition as a refugee is ensured” (AA Article 2(id)).  However, the Serbian Asylum Office “lacks a sufficient number of qualified personnel to adjudicate asylum claims in an efficient but thorough manner” (UNHCR 2012:7).  Moreover, because of the increase in asylum seekers passing through Serbia, it has “even less capacity to respond in accordance with international standards than before” (UNHCR 2016b:25).  This translates in practice to mean that the option to apply for recognition as a refugee is not ensured in Serbia, further demonstrating the internal inconsistencies of Hungary’s asylum framework.

In the context of this confusion, Hungarian authorities consider Alireza’s application and make a fast-tracked decision on its admissibility within less than one hour (Hungarian Helsinki Committee n.d.); he receives the same uniform notification as the others that his application has been declared inadmissible.  He is expelled from Hungary and banned from entering the Schengen Zone for two years (UNHCR 2016b: 11).  Alireza is returned to Serbia. He must try to find another way of reaching his uncle in Germany. 

The difficulty of applying for asylum in Serbia highlights an additional gap in Hungary’s refugee protection policy, particularly as many applicants who reach Hungary through Serbia have also travelled through Greece.  Under Chapter III of the Dublin III Regulation, this makes Greece the member state responsible for assessing that individual’s asylum application.  In MSS v. Belgium and Greece, where Belgium expelled an asylum applicant to Greece (in accordance with the Dublin III procedure) knowing that the applicant would be both denied access to a fair asylum procedure and subjected to inadequate living conditions, the ECtHR, watchdog of the ECHR, held that Belgium had violated the applicant’s right to freedom from inhuman or degrading treatment or punishment (ECHR Article 3).  In practice, if Alireza were expelled to Serbia, he could be further sent onwards to Greece, where he would face the same risk of conditions which violate his Article 3 rights.  This is further demonstrative of a gap present in the Hungarian and European protection frameworks, and one into which unaccompanied minors like Alireza could fall.

Najibullah: denied procedural fairness and captured by “border-hunters”

Like Alireza, Najibullah is misidentified as an adult.  He receives the same uniform notice that his application has been declared inadmissible.  However, unlike Alireza, Najibullah learns that he can appeal the inadmissibility decision.  Najibullah only has seven days in which to appeal this decision (AA Article 53(3)), and the review would be conducted only by a court secretary rather than a qualified judge (AA Article 71/A(9)).  Although he would have the right to request an oral hearing (AA Article 71/A(10)), due to limited access to legal aid he is unaware of his right to do so (UNHCR 2016b:10).  Together these factors render it difficult for Najibullah to access a meaningful process of judicial review, as the seven-day window includes weekends where access to advice and assistance is even further limited.  Whilst he receives his inadmissibility decision on a Wednesday, and learns that he can appeal it on the Friday, he is not able to receive legal advice with an interpreter until the following Tuesday, leaving him very limited time to complete and lodge his appeal application.  Although Najibullah might enjoy a de jure right to an effective remedy under both the Procedures Directive (Articles 46(3) and 46(5)) and the ECHR (Article 13 with 3), the strict time-frames and internal inconsistencies of the Hungarian system frustrate Najibullah’s de facto enjoyment of this right.  Consequently, Najibullah does not submit sufficient material to substantiate his appeal, and the court secretary dismisses his application for judicial review.

Najibullah then decides to cross the heavily-fortified Serbian-Hungarian border of his own accord, hoping to travel through Hungary and further northward in Europe.  He is rapidly intercepted by members of the newly-created band of “border-hunters”, who patrol Hungarian territory to identify asylum seekers who have crossed the border irregularly (Thorpe 2016).  Najibullah is then subjected to criminal punishment for entering Hungarian territory without due authorisation: he faces either an expulsion order (CC Article 33(4)) or “imprisonment not exceeding three years” (CC Article 352/A). Ultimately, he is expelled from Hungary and sent back to Serbia like Alireza before him.

Abdullah: attempted forcible transfer and likely destitution

Unlike Alireza and Najibullah, Abdullah is correctly identified as a minor, and he is afforded the treatment to which he is entitled as a vulnerable person.  He is taken to live with other unaccompanied minors at the Károly István Children’s Centre in Fót, in the northern suburbs of Budapest.  He now lives in the only place in Hungary adequately equipped to deal with the special needs of children, particularly in terms of access to medical care, access to qualified child-specialists, and access to educational opportunities.  However, without any notice, and contrary to both national and international law, Hungarian authorities seize him and his fellow unaccompanied minors and attempt to escort them to the transit zone along the Hungarian-Serbian border. This transfer is only halted at the last minute through a temporary order issued by the ECtHR (Spike 2017).

While Abdullah is able to stay at the Children’s Centre for the duration of his asylum application procedure, and his refugee status is recognised, he nonetheless faces a real risk of destitution.  Through Orbán’s legislative reforms, Abdullah will only be eligible to stay in a refugee reception centre for one month following recognition, instead of the two months to which he would have been previously entitled (AA Article 32(1)).  Further, he will only be eligible for basic health care services for six months (rather than one year), and will have no access to financial allowances for housing, education or living expenses (Government Decree 62/2016).  Additionally, his refugee status will only be valid for a period of three years, at the end of which it will be subject to mandatory and automatic review (AA Article 7/A); previously, refugee status was not subject to any time limitations. 

If Alireza, Najibullah and Abdullah had their day in court

While Alireza, Najibullah, and Abdullah are fictional, their stories are demonstrative of the way in which Hungary’s increasing divergence from European and international standards has affected the legal plight of unaccompanied minors. 

While Alireza, Najibullah, and Abdullah are fictional, their stories are demonstrative of the way in which Hungary’s increasing divergence from European and international standards has affected the legal plight of unaccompanied minors. Hungary’s present asylum system is heavily predicated on assertions that the transit zones along its southern borders are not located in Hungarian territory, despite being physically inside Hungary, and as such are not subject to Hungarian or European law.  However, the concept of extra-territorial transit zones was explicitly rejected by the ECtHR in Amuur v. France.  The Court emphasised that although “Contracting States have the undeniable sovereign right to control aliens’ entry into and residence in their territory…this right must be exercised in accordance with the provisions of the [ECHR]” (at 41).  The current practice of holding asylum seekers in shipping containers constitutes a deprivation of liberty and is manifestly incompatible with the ECHR.

Secondly, the way in which Najibullah is prosecuted for illegally crossing the Hungarian border is irreconcilable with Hungary’s international legal obligations.  The prosecution of third-country nationals for the unauthorised crossing of a border is incompatible with Article 31 of the Refugee Convention, which states that no penalties shall be imposed on refugees “on account of their illegal entry or presence” in a Contracting State’s territory.  According to the Court of Justice of the European Union’s (CJEU) ruling in El-Dridi, Hungary must adjust its criminal legislation in the area of illegal immigration so that it complies with European Union law.  The CJEU held that applying legislation which criminalises the entry of asylum seekers both undermines the European Return Directive and deprives it of its necessary effectiveness (El-Dridi at 54, 57-59).  This criminalisation has already impacted upon vulnerable persons in Hungary: at least one child seeking asylum was brought to trial before the Szeged District Court in October 2015 for his unauthorised entry into Hungary (UNHCR 2016b: 21).

Lastly, the fact that Hungary unilaterally declared Serbia as a Safe Third Country does not excuse Hungary of its pre-existing European and international legal obligations.  In the 2017 case of Ilias and Ahmed v. Hungary, the Hungarian government argued before the ECtHR that both the Dublin III Regulation and European Procedures Directive permit Hungary to determine which countries it deems to be Safe Third Countries (at 110).  Given that Serbia is both a party to the Refugee Convention and a candidate for European Union membership, Hungary argued, Serbia was a Safe Third Country to prevent the abuse of the right to asylum.  The Court held that this “involved a reversal of the burden of proof [from Hungary onto asylum seekers]…including the burden to prove the real risk of inhuman and degrading treatment in a chain-refoulement situation to Serbia” (at 118).  By relying on their right to declare a third country as safe, the Court held that Hungary failed to carry out a meaningful assessment of the risk of chain-refoulement in Serbia, even “when information about such a risk is ascertainable from a wide number of sources” (at 118).

Because of Hungary’s combined insistence on the extraterritoriality of its transit zones, its criminalisation of entry by asylum seekers into its territory, and its designation of Serbia as a Safe Third Country, the European Parliament declared Orbán’s revised asylum policies as constituting an “emerging threat to the rule of law” (European Parliament 2016).  Nonetheless, whenever such a statement is made, the Fidesz propaganda machine feigns outrage, asserting that Hungary both observes and complies with all European rules and is only acting to protect Europe’s borders.  Any international condemnation is interpreted as an attack upon Hungary’s sovereignty, providing Orbán and Fidesz with additional material to fan the flames of anti-migrant populism.  It remains unclear for how long Hungary will be able to continue to flout international legal obligations in this respect.  And while the war of words rages in the court rooms of Strasbourg and Luxembourg, the cost of this war is borne by the Alirezas, Najibullahs, and Abdullahs of Mediterranean migration.


James Wookey is an Australian solicitor who holds an LL.M. in Human Rights from the Central European University in Budapest.  He has worked with the Refugee Advice and Casework Service in Sydney, the Swiss child relief agency Terre des hommes, and the UNHCR representation in Thailand.


The views in this article are those of the author alone and do not necessarily reflect the views of OxMo.


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EUROPEAN UNION (2008) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals

EUROPEAN UNION (2013) Directive 2013/32/EU of the European Parliament and the Council of the European Union of 26 June 2013 on common procedures for granting and withdrawing international protection (recast)

EUROPEAN UNION (2013) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast)

EUROPEAN UNION (2013) Regulation (EU) No 604/2013 of the European Parliament and the Council of the European Union of 26 June 2013 on establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or stateless person (recast)

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HUNGARY (2012) Act C of 2012 on the Criminal Code

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Amuur v. France App no19776/92 (ECHR, 25 June 1996)

Case C-61/11 El-Dridi (Italy) EU:C:2011:268

Ilias and Ahmed v. Hungary App no47287/15 (ECHR, 14 March 2017)

MSS v. Belgium and Greece App n30696/09 (ECHR, 21 January 2011)


[1] As these hypothetical scenarios are a work of fiction, any resemblance to actual individuals is entirely coincidental.

[2] In its May 2016 report on Hungary, the UNHCR stated that it “maintains the position taken in its observations on the Serbian asylum system in August 2012 that asylum-seekers should not be returned to Serbia.”