Hungary’s Clampdown on Migrants and Migrant Rights Defenders and the Anti-Soros Legislation Package

Author:Idil Aydinoglu


legislation restricting the rights of asylum seekers and criminalizing the human rights work of migrant rights defenders. On November 16, 2021, the Court of Justice of the European Union (CJEU) found that Hungary failed to fulfil its obligations as stipulated by the asylum procedures and reception. In this regard, it confirmed that the package violated EU law.

This article attempts to address this ruling. It will first summarize the factual background of this socio-legal and political crisis. In doing so, it will portray how Hungary’s isolationist migration policies can lead to the systemic and multi-faceted breaches of its international obligations. Second, it will examine the CJEU decision and its legal analysis. Finally, it will conclude with a critical evaluation of its response to the reprisals against migrant and migrant rights defenders in Hungary.
1. Background

Hoping to reach a safe haven, hundreds of thousands of people had to leave their homes in the last decade because of armed conflicts and violence engulfing their countries or the persecution they risked facing had they chosen to remain. Europe, being the destination of many, was designated as the centre of the crisis (Spindler, 2015). By the end of 2015, the number of refugees in Europe reached a record of 1.3 million people, mainly from Syria, Afghanistan, or Iraq, who were unequally dispersed across the different member states (Pew Research Center, 2016). The ensuing deplorable events displayed that the “European Migration Crisis” definition, in fact, depicts the political and humanitarian crisis surrounding the borders of the Union and its failure to develop an adequate response.

1.1 Background: Hungary’s Response to Migration

Back in 2015, while the death of thousands of migrants and refugees in the Aegean and the Mediterranean Sea was occupying newspaper covers, the Balkan route received attention due to the intensified restrictive measures and isolationist migration policies applied by the Hungarian leader, Viktor Orban (IOM, 2015). Defining European Union policies as “madness”, Orban described his role as the defender of Christian Europe by protecting his country from Muslims (The Guardian, 2015). As of September 2015, when the country had received 170 thousand asylum applications, the Orban-led government and Parliament took several reprehensible actions. They declared a state of emergency, spent more than 100 million euros for anti-migration propaganda, and built a two-layered razored fence in order to seal its Serbian border. By amending laws and introducing new bills, the government increased the power of police and border control, criminalized entrances through these borders, and obliged all asylum seekers to pass into the newly established “transit zones” (Amnesty International, 2015). Following this, by listing Serbia as a safe third country and adopting a broad and incompliant interpretation of “the safe third country” and “country of origin” in the admissibility examination of asylum applications, Hungary started to send asylum seekers back to Serbia, in the form of collective expulsion.
Being a party to the 1951 Geneva Convention, the European Convention on Human Rights (ECHR), and a member of the European Union (EU), Hungary is under the obligation to abide by the non-refoulement principle, meaning that it cannot expel or return any person on its territory whose life or freedom is in danger because of his race, religion, nationality, or membership to a social group or political opinion. According to the Convention, only those who have international protection within another state, or about whom safety and security measures are arranged, or who have committed a heinous crime can be excluded from having refugee status. The exclusion clauses must be restrictively and cautiously applied and must be accompanied by individualized assessment regardless of the complexity of the situation including mass migration influx (UNHCR, 2011, p.89-91).

However, the new policy, by restricting access to international protection in Hungary to the point of making it nearly impossible, systematically violated its international obligations (HHC, 2015). The number of asylum claims decreased from 47,000 to 647 within only a month (HHC, 2017, p.1). Yet, this impact was not permanent and the government responded with further restrictions to the growing number of asylum seekers. In March 2017, police officers were authorized to push back any illegal migrant at the border without any legal procedure or the possibility to challenge these removals. All vulnerable persons and unaccompanied asylum-seeking children were also automatically detained (HHC, 2017, p.5, 6). Meanwhile, transit zones functioned as an inhibitor to the migration flow by “deliberate, long-term deterrence policy” (HHC, 2015, p.3). In June 2016, they were accepting 15 persons each day while hundreds of asylum seekers were pushed back (Balla, 2016). These events turned the border of Hungary into the scene of various severe human rights violations.

1.2 Background: Human Rights Defenders Respond Back

Human rights monitoring, documentation, advocacy, and humanitarian aid became imperative to protect the rights of migrants and asylum seekers, prevent violations, and seek accountability. Human rights defenders’ monitoring and reporting activities at the border and transit zones, and their legal support helped asylum seekers to bring their cases before domestic and regional courts. Meanwhile, they informed the international community and drew attention to Hungarian policies’ failure to comply with its international obligations.
Thanks to their work, the CJEU concluded that automatic rejection without an in-merit examination violates EU law (HHC, 2020). In another application where they provide legal advice, the European Court of Human Rights (ECtHR) found a violation of Article 3, establishing that Hungary’s safe third country assessment regarding Serbia was not based on a thorough assessment sufficient to satisfy the requirements of the Convention. Their effective usage of international human rights mechanisms played a significant role in the Hungarian government’s decision to shut down transit zones (Kovacs, 2020). In a 2020 judgement, the CJEU found that the placement of asylum seekers in transit zones constituted unlawful detention, in the case concerning two asylum-seeking families, represented by two organizations, who were kept in these areas for 464 and 526 days (ECRE, 2020).

As they were carrying out these actions, they faced severe legislative and discursive reprisal.

1.3 Background: The Emergence of Anti-Soros Legislation Package

Since 2010, the civic space was already steadily shrinking in Hungary due to the legal and non-legal applications of a populist political agenda that was eroding the rule of law and democratic principles (CIVICUS, 2021). This trend was forcing human rights defenders to operate their legitimate work in the face of threats and a wide range of harassment. In 2017, after a long smear campaign targeting civil society and demonizing philanthropist George Soros, a law was introduced aiming to silence critical civil society (CIVICUS, 2017). It mandated organizations receiving foreign funding above 24,000 euros annually to label their activities as “foreign supported” and apply additional administrative requirements. If not, the law provides authority to state officials to freeze assets or terminate activities of the organization.

The following year, while the general public, civil society, and experts were debating and examining three draft proposals between March and May, during the World Refugee Day on June 20, 2018, Hungary introduced an unprecedented package of legislation bringing arbitrary restrictions on the rights of migrants and asylum seekers and creating legal ground for reprisals against migrant rights defenders (HHC, 2018). The Bill. No. T/333, also defined as the “Stop Soros Act package” due to the general reasoning of the law, was adopted extremely hastily, without leaving time for public debate and despite the Venice Commission’s request to await its final opinion and recommendations therein. The package:
introduced a new admissibility criterion that deems applications inadmissible if made by persons arriving from a state in which they were not exposed to persecution or did not face a direct threat of persecution;
criminalized organizing any activities aiming:
to enable asylum seekers in making applications for asylum in Hungary in the absence of persecution in their country of origin or the country they transited through because of the categories listed in the 1951 Geneva Convention; or
to help people in getting a residence in Hungary even though they entered the country illegally.
provided aggregated penalties for those who carry out these activities for financial gain, for more than one person, or within the eight kilometres of the external borders; and
required police officers to prevent those who are suspected of having committed the newly enforced offence, among others, from being less than eight kilometres from Hungary’s external borders.

2. The CJEU Ruling

The law interferes and unlawfully restricts the rights of both asylum seekers and human rights defenders by further delimiting access to asylum applications and criminalizing legitimate human rights work. The broad and vague definition of “organizing any activities” to assist covers, among others, the dissemination of informative materials and border monitoring, an activity which the UNHCR, the Hungarian Police, and the Hungarian Helsinki Committee (HHC) have carried out since 2006 (HHC, 2021). Protected under the EU law, these activities are imperative to ensure that the rights of refugees, provided by the international human rights and refugee law, are respected. Therefore, the legislation package, on the one hand, infringes the right to asylum of asylum seekers and, on the other, the right to freedom of speech and freedom of expression of rights defenders.

2.1. The CJEU Ruling: The Relevant European Union Law
The right to freedom of expression, organization, and asylum are enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’) under Articles 11, 12, and 18, respectively. While assessing whether a member state has fulfilled its obligations, by virtue of Article 258 of Treaty on the Functioning of the European Union (the TFEU), the CJEU, must consider, interpret, and apply international law (ISHR, 2019, para.42, 43). As stated by observers, it has consistently interpreted the EU law according to fundamental rights protected by the Charter and other international instruments, such as the ECHR (ISHR, 2019, para.44, 48).
The right to freedom of expression and organization have a two-folded meaning since their exercise enables the recognition and realization of a wide range of rights, especially the rights of most vulnerable or marginalized groups. Therefore, breaches violate not only the rights of the defenders but also the people they strive to protect the rights of. As determined by the UN Declaration on Human Rights Defenders, the human rights work, executed either individually or collectively, is legitimate and should be respected, protected, and promoted by states. In this regard, states should refrain from interfering and ensure an enabling environment for their free and independent exercise. They must provide a conducive legislative framework for human rights defenders’ operations, adequate safeguards to seek protection, and accountability, taking vulnerable groups such as women and migrants into consideration. Furthermore, there must be effective policies and mechanisms to gain public support and defenders' inclusion in policy-making processes. This means that stigmatizing discourses targeting human rights defenders and civil society agents infringe states’ obligations under this framework.

The development of a common asylum and international protection policy, ensuring non-refoulement and compliance with the 1951 Geneva Convention, is established by Article 78 of the TFEU. Intending to create a uniform treatment, the Union adopted a comprehensive legislative and regulatory framework.

According to the 2013/32/EU Asylum Procedures Directive, member states should ensure access to asylum application, an individualized assessment within the foreseen timeframe, and adopt necessary measures for due process safeguards. Additionally, the directive provides an exhaustive list of criteria that states can deem an asylum application inadmissible. In this regard, member states can find asylum applications inadmissible on the ground of the existence of a country of return, only if the applicant has initiated a procedure before a member state or has the protection of a safe third country about which the directive sets the criteria. In principle, the regulation provides the minimum level of treatment preventing states from regulating or acting in a manner that derogates rights recognized therein, in the absence of a legitimate reason according to the EU law.

According to the 2013/33/EU Reception Directive, arbitrary detention should be prevented yet, in cases where it is necessary, states must ensure that procedural guarantees and adequate conditions are in place and planned according to the special needs of vulnerable groups. Directives require states to ensure that organizations providing legal assistance and counselling have effective access to applicants at the border and in crossing points, transit zones, or other places of detention, that applicants have the opportunity to have legal counselling at their own cost, and that they have access to communication with the UNHCR and organizations providing legal advice. The final regulation is crucial concerning monitoring the conditions of detention facilities.

2.2. The CJEU Ruling: The Commence of the Infringement Proceedings

Despite the aforementioned obligations, under EU law, Hungary introduced the Bill. T/333. On 19 July, 2018, the European Commission formally notified Hungary that the new legislation package raised concerns regarding its compatibility with EU law, particularly in reference to the new inadmissibility criterion and the criminalization of activities in assisting asylum and residing applications (European Commission, 2018). Following Hungary’s failure to resolve these concerns, on 25 July, 2019, the Commission commenced proceedings under Article 258 of the TFEU. It referred Hungary to the CJEU to assess the compliance of the legislation with the European Law. In this regard, the Commission submitted that Hungary failed to fulfil its obligation under:

Article 33 (2) of Asylum Procedures Directive (providing the exhaustive list of inadmissibility criteria) by adding a new inadmissibility criterion;
Articles 8 (2), 12 (1)(c), and 22(1) of Asylum Procedures Directive (recognizing state responsibility to ensure organizations’ access to asylum seekers, asylum seekers’ access to legal assistance and representation provided by organizations, the right to communicate with UNHCR and non-profit organizations, and the opportunity to consult, at their own cost); and
Article 10 (4) of the Reception Conditions Directive (recognizing states’ obligation to ensure legal advisers and lawyers are allowed to communicate and visit asylum seekers) by criminalizing organized legal assistance enabling asylum and residence applications that do not meet Hungarian asylum criteria.

Before its November 16 judgement, on 19 March, 2020, the CJEU found that the introduction of the new inadmissibility criterion violated EU Law in its preliminary ruling on a separate application. The Luxembourg Court held that the new inadmissibility criteria was in breach of the Asylum Procedure Directive, as it cannot be justified by the exhaustive grounds enlisted under Article 33(2) and that the concept of 'first country' does not comply with the criteria set for the ‘safe third country’ and ‘member state country’ under Article 33(2), 35 and 38.

2.3. The CJEU Ruling: The Legal Review of the CJEU

In its judgement, the CJEU first examines whether the elements of the criminal legislation fall under the scope of actions regulated by the directives. Upon noting that the support of organizations, by nature, covers the “organizing activity” element, and the criminalized acts are regulated under Article 8(2) and Article 22(1) of Directive 2013/32 and Article 10(4) of Directive 2013/33, it examines whether this legislation restricts rights regulated therein. The Court finds that even if the law does not formally prohibit legal assistance or representation, it creates the risk of confinement for anyone who helps to lodge an asylum application. This, according to the Court, could cause a deterrent effect, discouraging individuals from assisting asylum seekers, even if the legislation is not fully enforced. Therefore, it restricts or reduces the effectiveness of rights provided by these directives to third-country nationals who have not lodged their asylum application. Since these are concrete components of the right to asylum, the law also infringes on state obligations under Article 18 of the Charter.

Subsequently, the CJEU examines whether the legislation could be rendered legitimate based on Hungary’s argument of fighting against misuse of the asylum procedure. The Court underlines that the legislation is not limited to a particular behaviour and criminalizes any unsuccessful asylum application even if it strictly applies all procedural rules. Furthermore, it does not provide any safeguard for applications that contradict Hungarian law but are compliant with international law. Since this would diminish the significance of subsequent applications, according to the Court, it jeopardizes the effectiveness of the legal advice and representation a person can get from a lawyer and infringe the right to an effective remedy and fair trial under Article 47 of the Charter. It would consequently reduce the practicality of the right to access procedure and asylum.

The Court unfolds the “illegal immigration” argument and the reliance of Article 1(1) of Directive 2002/90 which requires states to adopt sanctions regarding individuals who intentionally aid the transition of aliens or their residence in member states, for financial gain. It underscores that every third-national has the right to seek asylum and cannot be considered as illegal in the making of the application or awaiting its finalization. In this regard, assisting an individual in lodging an application for asylum or its appeal cannot be deemed as aiding illegal stay nor can be considered similar to actions described under Directive 2002/90.

Finally, it examines the amendment regarding the police officers’ duty to prevent suspects of the newly introduced offence from being close to borders by more than eight kilometres. In this regard, the Court finds that the provision unjustifiably restricts the right to access to asylum seekers for the provision of legal advice or for the purpose of communication in detention centres. On the other hand, the regulation also restricts the rights of asylum seekers in accessing legal support which breaches the EU law. This means that two separate right-holders are subjected to restrictions: non-profit organizations and asylum seekers. However, the Court does not address how the regulation restricts the rights of organizations and migrant rights defenders and refrains from highlighting their statues as rights-holders.

As a result of these assessments, it rules that Hungary has failed to fulfil its obligations under Article 8(2), Article 12(1)(c), and Article 22(1) of Directive 2013/32 and Article 10(4) of Directive 2013/33.

The judgement builds a critical shield against the increasing attacks on migrants and migrant rights defenders operating in the Union. Hungarian rights-based organizations’ applause shows the importance of the practical implications and meaning of the ruling (HHC, 2021; Euronews, 2021). It is described, by Amnesty International, as a clear message stating that the “campaign of intimidation, targeting those who stand up for the rights of refugees and asylum-seekers cannot, and will not be tolerated” within the EU (Amnesty International, 2021).

Nevertheless, the lack of emphasis on the rights defenders’ rights is noteworthy. Even if the legislation package was named to target a specific person and criminalized the work of migrant rights defenders, the CJEU does not address this dimension of the case. It does not refer to the UN human rights defenders framework nor assesses whether Hungary had fulfilled its obligations under Articles 11 and 12 of the Charter with respect to the holders of the right to access to asylum seekers.

In its final opinion, on 25 June, 2018, the Venice Commission found the legislation package problematic in the sense of the rule of law principle since legislation directly targeting an individual is contradictory to the equality before law principle. The Commission also points out the Anti-Semitic statements of state officials accompanying the legislative process. The legal analysis examines the criminalization of dissemination of information and advocacy as restrictions of the right to freedom of expression and organization. It highlights the absence of differentiation between support to illegal migration and support to access to asylum by defenders and organizations in the legislation and notes whereas the first can be a crime, the latter can be a moral imperative or a “moral right”. By emphasising the lack of legal certainty and foreseeability, the Commission considers the legislation does not qualify the ‘legal basis’ as required by Article 11 of ECHR for a restriction to be lawful according to the Convention.

The application before the ECtHR, lodged by two Hungarian organizations, will address the case according to the same rights and the Strasbourg Court might come to the same conclusion (ECRE, 2018). However, as underscored in a recent report, European civic space is reducing for migrant rights defenders because of the hostile environment. Therefore, “it is imperative that European authorities and institutions take decisive measures to reverse these patterns in order to guarantee the right to defend human rights” (OMCT-FIDH, p.9). Although the judgement is a breakthrough, the CJEU has missed a chance to make a stronger statement in the protection of human rights defenders and the complementary relation between the rights of migrants and migrants’ rights defenders.

1. Reports and Newspaper Articles
Amnesty International(2015). Fenced Out: Hungary’s Violations of the Rights of Refugees and Migrants.
Amnesty International(2021). Hungary: Court of Justice of the EU rejects anti-migrant ”Stop Soros” law.
Balla, Z.,(2016). UNHCR concerned Hungary pushing asylum seekers back to Serbia.
European Council on Refugees and Exiles/ECRE(2018). Hungary: Hungarian Helsinki Committee and Open Society Foundation file complaint against Hungary over legislation that criminalises support for refugees.
European Council on Refugees and Exiles/ECRE(2020). Hungary: Abolishment of Transit Zone Following CJEU Ruling.
European Commission(2018). Press Release Migration and Asylum: Commission takes further steps in infringement procedures against Hungary.
CIVICUS(2021). Hungary Joint Submission to the UN Universal Periodic Review 39th Session of the UPR Working Group.
CIVICUS(2017). Hungary new Bill aims to silence civil society that criticises the state.
Euronews(2021). Hungary's Stop Soros law that criminalises helping asylum seekers 'infringes EU law'.
IOM(2015). Over 3,770 Migrants Have Died Trying to Cross the Mediterranean to Europe in 2015.
Hungarian Helsinki Committee/HHC(2015). No country for Refugees.
Hungarian Helsinki Committee/HHC(2017). Two Years After: What’s Left of Refugee Protection in Hungary?.
Hungarian Helsinki Committee/HHC(2018) Hungarian Government marks World Refugee Day by passing law to jail helpers.
Hungarian Helsinki Committee/HHC(2020). Asylum seekers arriving through Serbia cannot be rejected automatically.
Hungarian Helsinki Committee/HHC(2021). EU Court: criminalising helping asylum-seekers breaches EU law.
Kovacs, Z.,(2020). Gergely Gulyás on the European Court of Justice’s new ruling on immigration: It’s dangerous for all of Europe.
Pew Research Center(2016). Number of Refugees to Europe Surges to Record 1.3 Million in 2015.
Spindler, W.(2015). 2015:The Year of Europe’s Refugee Crisis.,
The International Service for Human Rights and Pravno-informacijski center nevladnih organizacij/ ISHR(2019). OBSERVATIONS Relating to Case C-821/19 Commission v Hungary.
The Guardian(2015). Migration crisis: Hungary PM says Europe in grip of madness.
The Observatory for the Protection of Human Rights Defenders/ International Federation for Human Rights /OMCT-FIDH(2021). Europe: Open Season on Solidarity.
UNHCR(2011). UNHCR Resettlement Handbook Chapter Three-Refugee Status and Resettlement.
2. Legal Documents
Council of Europe, Declaration of the Committee of Ministers on Council of Europe action to improve the protection of human rights defenders and promote their activities, CM(2008)5-add. 6 February, 2008,
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, [accessed 10 December 2021]
European Union: Council of the European Union, Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), 29 June 2013, OJ L. 180/60 -180/95; 29.6.2013, 2013/32/EU, available at:
European Union: Council of the European Union, Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), 29 June 2013, OJ L. 180/96 -105/32; 29.6.2013, 2013/33/EU, available at:
European Union: Council of the European Union, Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 20 December 2011, OJ L. 337/9-337/26; 20.12.2011, 2011/95/EU, available at:
European Union: Council of the European Union, Council Directive 2002/90/EC of 28 November 2002 Defining the Facilitation of Unauthorised Entry, Transit and Residence, 28 November 2002, available at: ]
UN General Assembly, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms : resolution / adopted by the General Assembly, 8 March 1999, A/RES/53/144, available at:
UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights defenders, Addendum: Mission to Togo, 16 April 2014, A/HRC/25/55/Add.2, available at:
UN Human Rights Council, Special Rapporteur on the rights of freedom of peaceful assembly and association(2019). A/73/349,
UN High Commissioner for Refugees (UNHCR), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, September 2011, [accessed 10 December 2021]
UN Human Rights Committee (HRC), CCPR General Comment No. 18: Non-discrimination, 10 November 1989, available at: [accessed 10 December 2021]

3. Judgements and Opinions of International Mechanisms
Council of Europe, European Commission for Democracy Through Law and OSCE Office for Democratic Institutions and Human Rights, Joint Opinion on the Provisions of the So-Called “Stop-Soros” Draft Legislative Package Which Directly Affects NGOs, CDL-AD(2018)013, 25 June 2018.
European Court of Human Rights, Ilias and Ahmad v. Hungary, Application No. 47287/15, 14 March 2017.
European Court of Human Rights, Gorzelik a.o. v. Poland, Application No. 44158/98, 17 February 2004.
European Court of Human Rights, Moscow Branch of the Salvation Army v Russia Application No. 72881/01, 5 October 2006
European Court of Human Rights, Shahzad v Hungary, Application No. 12625/17, 8 July 2021.
Council of Justice of European Union, Judgement of 19 March 2020, Fővárosi Közigazgatási és Munkaügyi Bíróság v. Hungary, EU:C-564/18.
Council of Justice of European Union, Judgement of 16 November 2021, Hungary v. Commission, EU:Case C‑821/19.
4- Photo Credits
Photo.1 Armend Nimani AFP via GettyImages accessed via:
Photo.2 Frontex and Amnesty International accessed via:
Photo.3 Illustratıon by BIRN Igor Vujcic accessed via:
Photo.4 UNHCR accessed via:
Photo.5 By Luxofluxo - Own work, CC BY-SA 4.0, accessed via:
Photo.6 Takver, via Flickr accessed via: