Abstract
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.
I. Introductory thoughts
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.
[1] This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service, with the support of the AURUM Lawyers’ Club for Talented Students Foundation.
[2] Lilla Berkes: Asszimiláció – integráció – multikulturalizmus, Glossa Iuridica 2011/1, 1–5.