Hungary's Illegal Migration Moves.

In my post yesterday on the fight against the Islamic State of Iraq and the Levant (ISIL) I examined how Hungary's treatment of refugees created by the conflict fitted in with both European Union (EU) and wider international law.

Weirdly that was a lot easier to research then, say, what type of meeting the EU held last Monday (14/9/15) or how many US intelligence analysts have complained their reports on ISIL have been re-written to fit US President Barack Obama's political narrative. However by the time I got around to including it in the post I was in a bit of a rush and I'm worried I might have got a bit bogged down in technical detail rather then making my point as clearly as I wanted to.

Last Monday (14/9/15) Hungary implemented a new immigration law which amongst other measures created the offence of entering the country without permission which is punishable by up to 3 years imprisonment, immediate deportation or both. By Tuesday (15/9/15) Hungary had successfully arrested and prosecuted the first person - an Iraqi man - of this new offence and more then 300 prosecutions are under way.

The problem with this is that as part of its EU membership Hungary is a signatory to the 1951 Convention on the Status of Refugees and the 1967 protocol that amended it. Article 3 of this convention makes quite clear that no state can punish someone for entering its borders without permission unless it first establishes that they are not eligible for refugee status.

This is a legal process that can ultimately end up not only in a nation's highest Court but also international Courts such as the International Court of Justice or the European Court of Human Rights (ECHR). Article 16 of the convention makes quite clear that during this process the irregular migrant must be afforded the same legal protections of a citizen of the country.

Although it is separate and much older the key piece of legislation used by the EU and its members such as Hungary to determine legal protections is the 1953 European Convention on Human Rights. Article 6 of that convention lays out the legal protections that must be afforded to someone accused of a crime. These include the right to a fair and impartial tribunal, the presumption of innocence - which in a case like this means assuming that an irregular migrant is a refugee until proven otherwise - and adequate time and facilities to prepare their case.

Yesterday I used the example of how the UK's "Detained Fast Track" (DFT) asylum system had been ruled unlawful because it denied applicants sufficient time and facilities to prepare their case amongst other things. However I should point out that case -  Detention Action V Secretary of State for the Home Department & Equality and Human Rights Commission (2015) - was actually ruled on by the UK High Court rather then the ECHR. However as one of the UK's main reasons for wanting to withdraw from the EU is that doing so would allow it to withdraw from the 'tyranny' of the ECHR it is unlikely the ECHR will view the British Court as being too lenient in the matter.

In order to give you a more accurate picture of what is and isn't allowed in an asylum process as per Article 6 I will have to go through every single ruling the ECHR has made on what is a highly specialised area of law. Access to all those previous judgements - in my native language - is actually one of the facilities that Hungary will have to provide to every single refugee (presumption of innocence) in its country.

The issue of "sufficient time" is always a grey area because while 28 days may be sufficient for a simple case it might be wholly insufficient for a more complex case. However as there is no grey area in the wording of the convention on the matters Hungary will also have to provide each refugee with both a lawyer and an interpreter to help them prepare their case.

You would think then that rather then taking on the burden of complying with the EU's laws and values all by themselves Hungary would be biting the EU's hand off to be given the option of simply accepting a quota of people who had already had their refugee status confirmed and came with extra funding to look after them.

This brings me back to the idea of selecting refugees in the camps in or next too Iraq/Syria and then transporting them into the EU for distribution under the quota system. Aside from allowing them to be security checked this would also allow the EU to process their asylum claims before the enter the EU.

Immediately this would simplify many of the cases because many applicants could simply yet the binoculars out and go; "You see that village over there that's on fire. Well that's what I'm claiming asylum from."  Also establishing 'refugee consulates' would allow the EU to consult with the ECHR to make sure that the refugee's Article 6 rights are being protected. Given the simplicity of many of the cases I think that email/phone contact with an immigration lawyer selected from a dedicated pool would be sufficient.

The other main advantage of doing it this way is that if any irregular migrant opting not to use this system and instead making the journey themselves could immediately be deported back to the local camps to start the process at the bottom of the queue.

Whilst I've been writing this EU interior/home ministers have been holding an emergency meeting on the refugee issue. Although Finland abstained 23 nations voted in favour of the proposed 120,000 quota that doesn't include the plan to transport the refugees directly while 4 (Romania, the Czech Republic, Slovakia and Hungary) voted against.

Although traditionally the EU only introduces policy by consensus my understanding is this majority vote means the plan will go into action and the Romania, the Czech Republic, Slovakia and Hungary can be forced to accept refugees.

However the matter still needs to be voted on by an emergency meeting of EU leaders tomorrow so I suspect more clarity will emerge then.

17:25 on 22/9/15 (UK date).