Human Rights of Asylum Seekers in Italy and Hungary - Influence of International and EU Law on Domestic Actions

Project leaders

Gianfranco Tamburelli, Balazs Majtenyi

Agreement

UNGHERIA - HAS (MTA) - Accademia Ungherese delle Scienze

Call

CNR/HAS (MTA) 2016-2018

Department

Social sciences and humanities, cultural heritage

Thematic area

Social sciences and humanities, cultural heritage

Status of the project

New

Research proposal

Description

Since 2015, European states have been facing a huge influx of refugees, most of whom want to reach Germany, France or the UK, while some others might choose to stay in the first country they reach after entering the EU. The problems, interests and actions of States of central or border Europe are slightly different.
According to Frontex data, from January to September 2015 the two main migratory routes go through Italy and Hungary, which are both at the borders of the EU. Italy has been a long target of Mediterranean crossings, while Hungary is a relatively new (transitory) target of mass migration. Therefore, comparative analyses of the sector legislation of these countries, and of their relation with European and international law will highlight fundamental trends and challenges concerning the future of handling migration to the EU. The political and legal responses of these countries on the refugees' issue, which will be analysed in the light of the special obligations set by international law - especially the 1951 Geneva Convention and its 1967 Protocol -, by international conventions on human rights, and by European Union law - are in fact of primary interest.

In theory, under the Geneva Convention persons who had to flee their home countries because of fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion may have the right to the recognition of their refugee status (see article 1 A (2) of the Convention). However, the whole picture gets more complex, when we check the content of fragmented European Union law - also considering the preponderance of national competences in this area - and the provisions of the European Convention of Human Rights, and especially refugee related case law of European Court of Human Rights (ECtHR).
The international and European regulations define the framework for domestic regulations. This framework contains rules for possible government actions, and also rules for the protection of asylum seekers. We assume that refugees, just like citizens, have to get protection in this framework even against competing priorities set by domestic governments, but in certain instances governments may (and, in certain instances, are also forced to) apply restricting measures against them. The research will focus on the effectiveness of European and international regulation through its application in Italy and Hungary and provide a critical analysis of domestic regulations.

Research questions and expected outcome

The research will assess the state of the art and the main lines of debates concerning the handling of the refugee question in Europe from a normative point of view. The research will analyze refugee law enforcement in the two countries. It includes relevant international and transnational norms (United Nations, Council of Europe, and European Union), the related case law, domestic jurisprudence and the domestic legislation in force.

Based on this logic, two main sets of questions will be analyzed. First, one could ask, what are the duties of the states? Does the state have an obligation to act to stop the influx of illegal migrants, and if so, what actions are necessary (mandatory) based on EU law (esp. based on Schengen Borders Code)? Does it have to use (police or military) force to return migrants if they are not refugees? Does it have to stop them from moving on to other countries? The reverse of this problem could also be asked: does the state have the obligation to try to save as many of refugees as possible out of the Mediterranean Sea? If so, what are the concrete actions that are necessary? Such questions may have serious practical consequences: we could ask whether the state has to use more ships than before? Is there a moral obligation to accept the proposed refugee quota? Are hotspots and swift procedures in conformity with European law? Do states have the right to amend their systems independently of other states or the EU, in lack of harmonized efforts? What are the specific obligations of the border states? What does the 'effective controlling of borders' mean? Do states have the right to agree and jointly deny the right of asylum to refugees by funding and building camps for them in Africa and elsewhere outside the EU? The rules of Dublin 3 regulation, the Council directive on minimum standards of the qualification of refugees could be a starting point for these researches.

Second, the situation has serious human rights consequences. For instance in Hungary a new refugee law (Act CXL 2015) was adopted, criminalizing those illegally entering the country, and also containing several controversial rules which may collude with international law. One must ask and analyze whether the criminalization (which is also applied to refugees) is against Article 31 of the Geneva Convention. According to this rule, Contracting States shall not impose penalties on refugees coming directly from a territory where their life or freedom was in danger, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. How should we interpret this rule, especially the term 'directly'? Does it allow criminalisation of refugees arriving through other countries, even if they might not be safe third states, or not? What do we mean by the term 'without delay'? What are the requirements for dealing with such persons, e.g. is it allowed to keep them in prisons? Without exhausting the list of questions that arise here we could ask if recent EU plans of detention centers in border counties like Italy conform to human rights law, and what happens if a member state does not use this approach.

Research goals

The aim of this research is to find the limits and paths of state actions in Italy and Hungary: international law and EU law gives us a relatively detailed framework. We must find what obligations states have when they deal with refugees: whether they must use repressive power or not, whether they can be criminalized, whether sealing borders can be necessary or not. These steps should clarify whether and how the national jurisprudence and legislation have reacted to the international 'constitutional requirements'. Finally, the results will be integrated into a more general study bearing on the effects of international and European regulation in the EU member states. It is also hoped that this will allow us to draw conclusions on how effective the international and European regulation itself.

Multifaceted research results are expected. Besides the purely scholarly achievements like conferences papers, journal and book chapters and an edited book, practical results are also foreseen. Findings of the project for Hungarian, Italian and international readership is likely to provide a significant contribution to the literature in the field. It is also reasonable to expect its immediate incorporation into legal and graduate-level political sciences higher education curricula.

Last update: 21/03/2025