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Theory and Practise of Returning Irregular Migrants in Hungary, Poland and Romania

1. Introduction 

 

The issue of migration is undoubtedly one of the most significant challenges and opportunities that European states and societies currently face. It has a very significant impact on a number of economic as well as social issues, including access to employment (typically creating additional competition on the labour market), housing (additional demand for housing may raise the cost of rent, thus being beneficial from the perspective of owners, and potentially problematic from the perspective of persons who do not own houses or apartments) and labour (increase in the labour pool may be beneficial from the perspective of economic growth and the competitiveness of the economy). Irregular migration has a tendency to be particularly polarizing, especially when used (instrumentalized) as a hostile foreign policy tool (coercive engineered migration). It should be highlighted that the issue of returning irregular migrants has created significant tensions between the European Union (EU) and certain Central European States, particularly in terms of respecting the human rights of returned migrants and the efficiency of the EU’s approach to irregular migrations. This paper seeks to discuss certain theoretical and practical issues related to the return of irregular migrants to chosen Central European countries, that is Hungary, Poland, and Romania. 

 

2. Poland 

 

In the context of Poland, public attention is being drawn to the issue of the border wall between Poland and Belarus and the related situation of irregular migrants.[1] The European Commission’s (EC) response to this issue was described as tolerant towards practices contrary to the non-refoulement principle.[2] 

In this context, the judgement of the Polish Provincial Administrative Court of 15 September 2022[3] merits attention. The Court has stated that national legislation nor factual circumstances (including a migratory crisis on the EU’s external border caused by external circumstances) cannot preclude the obligation of a Member State to apply the non-refoulment principle, even in relation to foreigners who cross the Polish border illegally. According to the Court, the interpretation of the principle of non-refoulement at the national level should strive to find a balance between the necessity of protecting the state border and respecting the rights of foreigners. As a consequence, any procedure that allows for forceful removal of a foreigner (or other form of removal) from state territory must take into consideration not only the interests of the state but also its international obligations related to the protection of foreigners. It was added that if a discrepancy between national law and EU/international law takes place, the principle of the primacy of EU/international law should be applied, provided that such discrepancies cannot be eliminated by way of interpretation of the law. This judgement referred to the position of the Polish Supreme Administrative Court,[4] where the Court has stated that if there are discrepancies between EU law and national law if these discrepancies cannot be eliminated by legal interpretation, the principle of primacy of EU law is to be applied regardless of the rank of legal norms that are being compared. This should be juxtaposed with the position of the Polish Constitutional Court expressed in the judgement of 7 of October 2021[5] where it was stated that it fully appreciates the position and role of the Court of Justice of the European Union (CJEU) as an institution exclusively competent in areas transferred by the treaties, however only while remaining within the scope of competences transferred to the EU, respecting the constitutional identity and basic functions of Member States as well as principles of subsidiarity and proportionality and under the condition that the conducted interpretation of the law is not obviously arbitrary.[6]  

It should be noted that as a result of parliamentary elections, which took place in October 2023, a new majority was formed.[7] This may result in substantial changes of state policy in terms of both legal[8] and practical responses to the situation on Poland’s border with Belarus. 

 

2. Hungary 

 

In the context of Hungary, it should be noted that on 19 July 2018 the EC referred Hungary to CJEU for non-compliance of its asylum and return legislation with the EU law. In its judgement of 17 December 2020[9] CJEU has found that the law of Hungary, regarding the rules and practises in the transit zones located at the border between Serbia and Hungary, was contrary to the law of the EU. The CJEU pointed out four dimensions of non-compliance taking place between the EU law and national law. These included a situation in which the international protection procedure was available in certain transit zones, while a consistent and generalized administrative practise was in place which drastically limited the number of applicants who were authorized to enter said transfer zones. Another dimension involved allowing the removal of all third-country nationals who stay illegally in its territory, with the exception of those suspected of committing a criminal offense, without following the procedures and safeguards regulated by specific provisions of the Return Directive[10].[11] 

It is important to note that the Hungarian government claimed that the implementation of CJEU’s judgement in case C808/18 is connected to a constitutional issue. The said constitutional issue was centred around the EU law potentially leading to a situation where a foreign national, illegally staying in Hungary, remains for an indefinite period of time and becomes a part of the population. Furthermore, a question arose whether an incomplete effectiveness of the joint exercises of competences could lead to a violation of Hungary’s sovereignty, constitutional identity or fundamental rights and freedoms. The Constitutional Court decided that where an incomplete effectiveness of the joint exercises of competences results in the violation of the right to identity of persons living in Hungary, the Hungarian state is under obligation to ensure the protection of that right. It was also stated that the joint exercise of competences through EU institutions may not result in a lower level of protection of fundamental rights than that required by the Fundamental Law.[12]   

 

3. Romania 

 

In the Romanian context, the judgement of the Constitutional Court of Romania of 16 April 2003[13] merits attention. The Court has stated that “Through the acts of transfer of some attributions to the structures of the European Union, they do not acquire, through its capacity, a «super-competence», a sovereignty of their own. In reality, the Member States of the European Union have decided to jointly exercise certain powers that, traditionally, belong to the field of national sovereignty. It is obvious that in the current era of the globalization of humanity’s problems, interstate developments and inter-individual communication on a planetary scale, the concept of national sovereignty can no longer be conceived as absolute and indivisible, without the risk of unacceptable isolation”. The Romanian Constitutional Court has also stated that “Therefore, by joining the legal order of the European Union, Romania accepted that, in the fields where the exclusive competence belongs to the European Union, regardless of the international treaties it has concluded, the implementation of the obligations resulting from them to be subject to the rules of the European Union. Otherwise, it would lead to the undesirable situation that, through the international obligations assumed bilaterally or multilaterally, the Member State would seriously affect the competence of the Union and, practically, substitute it in the mentioned fields”.[14] Furthermore, it is being highlighted in the Romanian literature that “Regarding the jurisprudence of the Constitutional Court of Romania regarding the issues of migration or asylum, it can be easily established that the issues were not characterized by a high degree of complexity, that there was no need to analyse the competence of the relevant national structures in opposition to the competence of the institutions of the European Union, so it was not necessary for the Court to link the issues of migration or asylum with the issue of constitutional identity in arguing the solutions.”[15] 

4. Concluding remarks 

 

Irregular migration is an issue that creates significant tensions in terms of case law. These tensions can take place within the national law (Poland) as well as between the EU law and the national law (Hungary, Poland). It may be therefore stated that irregular migration poses significant challenges not only in terms of economics and politics, but also in terms of the legal system and the relationship between the EU law and national law. In all of these areas, there is a need for a difficult endeavour of finding solutions which can adequately balance the legitimate interests of states with respecting the rights of the migrants. 

Reference

[1] The humanitarian crisis in this context began in 2021 as the authorities of Belarus threatened to prevent migrants from crossing the borders between Belarus and EU member states. See: Grześkowiak, 2023, p. 21.

[2] Grześkowiak, 2023, p. 45. 

[3] Case no. II SA/Bk 492/22, Lex no 3411630.

[4] See: the judgement of Polish Supreme Administrative Court from the 1 March 2012, case no. II GSK 295/11, Lex no. 1137935

[5] Case no. K 3/21, OTK-A 2022/65.

[6] It is necessary to point out that the current composition of the Polish Constitutional Court is subject to significant controversies which may affect the status of certain judgements of this Court. 

[7] These election results make the controversies around the composition of the Polish Constitutional Court (and certain other courts) much more pronounced and dynamic in their character. 

[8] In terms of statutory law, the situation is further complicated by the fact that the current parliamentary majority does not possess a sufficient number of votes to overturn a presidential veto, while the president largely shares the previous government’s positions on irregular migration. 

[9] Case no. C-808/18, ECLI:EU:C:2020:1029.

[10] Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24.12.2008, pp. 98–107.

[11] See: X, Hungary’s policy and practice on illegally staying migrants, p. 3.

[12] X, Hungary’s policy and practice on illegally staying migrants, pp. 7-8.  

[13] Case no. 148, published in the Official Monitor of Romania, Part I, no. 317 of 12 May 2003. I cite after: X,The Practise of Constitutional Court of Romania Concerning Migration and Refugee Affairs, p. 14.

[14] I cite after: X, The Practise of Constitutional Court of Romania Concerning Migration and Refugee Affairs, p. 14.

[15] See X, The Practise of Constitutional Court of Romania Concerning Migration and Refugee Affairs, p. 15.

Literature

1. Grześkowiak, M. (2023) ‘Od aktywizmu do „polityki przyzwolenia”. Komisja Europejska wobec nieregularnej migracji w latach 2015-2021 ze szczególnym uwzględnieniem kryzysu humanitarnego na granicy polsko-białoruskiej’, Państwo i Prawo, 2023/3, p. 21-47. 

2. X, Hungary’s policy and practice on illegally staying migrants (unpublished). 

3. X, The Practise of Constitutional Court of Romania Concerning Migration and Refugee Affairs. 

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