The migration crisis of recent years and the war in the vicinity of Hungary have focused more attention than ever before on the constitutional rules on migration and asylum. Of these rules, the regulations of the Fundamental Law naturally have the highest priority, as the entire institutional system in Hungary is based on these provisions. Article XIV of the Fundamental Law contains rules on entry into and residing in Hungary. The very close connection of the regulation with the migration crisis and the importance of the content of the constitutional regulation is shown by the fact that in 2018 a new provision was added to the Fundamental Law, which prohibits the settlement of foreign population. Not only has a new paragraph been added to the text, but the constitutional power has also clarified some terminological aspects. These modifications are clearly aimed at strengthening the protection of sovereignty. An analysis of the decisions of the Constitutional Court and of the relevant international rules so far shows that the rules of the Fundamental Law have clearly been tightened up, but this hardly raises the question of incompatibility with international obligations. In addition, despite the narrowing of the scope of the rights granted by the Fundamental Law, additional rights are in fact provided for by an Act. Such rights are not eliminated by the amendment.
Keywords: migration crisis; asylum; expulsion, non-refoulement; foreign population.
The migration crisis of recent years and the war in the vicinity of Hungary have focused more attention than ever before on the constitutional rules on migration and asylum. Of these rules, the regulations of the Fundamental Law naturally have the highest priority, as the entire institutional system in Hungary is based on these provisions.
Article XIV of the Fundamental Law contains rules on entry into and residing in Hungary. In addition to certain rules concerning Hungarian citizens, it also regulates the prohibition of the settlement of foreign populations, the residing of foreigners in Hungary, expulsion, non-refoulement and the right of asylum.
The whole issue has been a major challenge for states for decades, as the Western world has been facing new problems since the 1970s as a result of increasing immigration.[2]
The very close connection of the regulation with the migration crisis and the importance of the content of the constitutional regulation is shown by the fact that in 2018 a new provision was added to the Fundamental Law, which prohibits the settlement of foreign population.
All the provisions of this article are linked to the territorial dimension of state sovereignty. Its content is strongly determined by international law obligations. In terms of its practical application, the Constitutional Court is rarely called upon to rule on Article XIV per se and explicitly, but rather to rule on the functioning and procedures of the asylum and immigration institutions established under the Article, based mainly on certain provisions of Articles II, XV and XXVIII.
The aim of this study is to interpret the relevant provisions of the Fundamental Law in order to help the understanding of the institutional system and the cases arising under these provisions. This will be helped by the decisions of the Hungarian Constitutional Court on the subject, but it will also be useful to follow the difficulties encountered by Constitutional Courts in other states in recent years.
According to Article XIV (1) of the Fundamental Law: "[n]o foreign population shall be settled in Hungary. A foreign national, not including persons who have the right to free movement and residence, may only live in the territory of Hungary under an application individually examined by the Hungarian authorities. The basic rules on the requirements for the submission and assessment of such applications shall be laid down in a cardinal Act." This provision was intro-
- 70/71 -
duced into the Fundamental Law in 2018 with the seventh amendment of the Fundamental Law of Hungary. The constitutional power chose an interesting solution and did not insert this new paragraph after the other provisions, but placed it in the very first paragraph, which is why all the other paragraphs were renumbered.
The provision elevated the rules on the prohibition of the settlement of foreign populations and the residing of foreign nationals in Hungary to the level of a fundamental law, while also stipulating that the basic rules for the submission and assessment of applications shall be laid down in a cardinal act.
Non-Hungarian nationals (who may be foreign nationals or stateless persons) can reside in Hungary for a number of reasons, for which they are subject to different rules. A distinction must be made between legal and illegal residence, but their situation also differs according to whether they are tourists, temporary residents, guest workers, settled persons, refugees or stateless persons.[3] The paragraph under examination uses the terms "no [...] shall be settled" and "may only live", which in any case refers to permanent residence for life, i.e. the regulation does not regulate all types of residence in Hungary, but only residence for life.
In general, in relation to the admission of foreigners, the legislatures and authorities of the States have wide discretion to admit and refuse entry. Admission is under immigration control, and foreigners do not have a substantive right of entry. However, the conditions must be clarified in a pre-promulgated law and must not exceed the standards of necessity and proportionality to protect the public interest or the fundamental rights of others, otherwise the decision to admit would be arbitrary.[4] The UN International Law Commission (in the context of expulsion) also refers to the fact that the determination of the conditions of admission of aliens is a matter of state sovereignty and falls within the exclusive competence of the state.[5] The Constitutional Court has also stated that the protection of the inalienable right of Hungary to determine its population shall be part of its constitutional identity.[6] But there is also a principle that today, because of its participation in the international community, no state can exclude itself from contact with the citizens of another state. The two conflicting principles are compatible, since an approach based on sovereignty can limit the application of the other principle, but cannot completely invalidate it.[7]
According to the explanatory memorandum to the draft paragraph under examination, the purpose of this new paragraph was to ensure that the decision of another state or supranational organisation would not result in the settlement of persons belonging to a foreign population, and to make it clear that each application would have to be considered individually by the Hungarian authorities, which would also imply that the basis for settlement would be the applicant's own decision. It is explicitly stated in the explanatory memorandum that the State has the right to determine the conditions under which it admits aliens to its territory. For the purposes of the regulation (because of Hungary's membership of the European Union), persons enjoying the freedom of movement and of residence cannot be considered as foreign nationals, since they do not, of course, need a special authorisation.
A Jogkódex-előfizetéséhez tartozó felhasználónévvel és jelszóval is be tud jelentkezni.
Az ORAC Kiadó előfizetéses folyóiratainak „valós idejű” (a nyomtatott lapszámok megjelenésével egyidejű) eléréséhez kérjen ajánlatot a Szakcikk Adatbázis Plusz-ra!
Visszaugrás
