The policy of migrant returns between EU countries is complex and creates “blurred lines,” an expert in EU law and migration. In the light of two recent returns from Austria to Hungary, we decided to take a closer look at the subject.
It started with two cases highlighted by the Hungarian Helsinki Committee (HHC) in December 2020 and January 2021. They were just two of several thousand cases HHC documented, but they involved migrant returns from Austria to Hungary and then to Serbia. The public wanted to understand the mechanism of returns within the EU.
Reports decided to establish how people from Syria and Afghanistan could have been removed from Austria, handed over to the Hungarian authorities, and subsequently pushed back to Serbia.
The cases in question on December 23 and January 21 took place after the Court of Justice of the European Union (CJEU) ruled that Hungary was acting “illegally” and breaching European and international law by refusing to offer migrants found in the country the right to seek asylum.
Five Syrians and Three Afghans
The Hungarian authorities note the numbers of migrants concerned in a case and when they were taken back to Serbia. They publish these figures on the Hungarian police website, and since the CJEU judgment, the HHC has been documenting how pushbacks have continued in breach of EU law.
In the first case on December 23, the ministry told reporters that five migrants from Syria were “apprehended” by the Austrian national police in the Burgenland region “without any valid travel documents.” They were then “returned” to Hungary.
In the second case, the Austrian Interior Ministry said the Burgenland Police recorded apprehending three Afghan nationals near the Nickelsdorf area, between a hotel called Schlafgut and a Shell petrol station. Again, these three Afghans were found “to have no valid travel documents and so were trying to travel through Austria illegally. They were also returned to Hungary.”
The Austrian Interior Ministry made clear in an underlined sentence in its reply to reporters that these are “not pushbacks” but “returns.” They added that they “would not in the present moment operate any pushbacks to Hungary.” However, they also said that they had not changed their policy of returns based on the CJEU ruling on Hungary.
Aliens Police Act
The Austrian authorities said that they could legally return these eight migrants to the Hungarian authorities based on several paragraphs in the Aliens Police Act, which is known as FPG.
They quoted two sections in that law, 15 and 41. Section 15 concerns the “Requirements for lawful entry and exit.” Section 41 relates to the “Prevention of entry and rejection at the border.”
The difficulty, in this case, is getting to the bottom of whether people knew they could seek asylum or were really allowed to seek asylum before they were taken and handed over to the next European authority. The Austrian authorities state categorically that these eight people did not attempt to seek asylum. Therefore, for Austria, the law was clear-cut. The migrants did not have valid travel documents and should be returned to the country where they first entered the EU, namely Hungary.
However, you do not need valid travel documents to apply for asylum, so the onus is on prospective asylum seekers to insist on their rights and be offered the chance of a valid hearing and assessment. Researchers investigating this area say it is sometimes difficult to determine whether these possibilities were offered to migrants apprehended by police – possibly armed – in a language they don’t understand, knowing that they have effectively crossed the border illegally.