Hungary and the Netherlands want to exit EU asylum policy

Just hours after the Dutch, the Hungarian government also announced that it intends to apply to be exempted from EU asylum procedure regulations. In Strasbourg, the Hungarian minister of European affairs, Janos Boka, declared that this so-called opt-out from the asylum laws known as the Dublin Regulation was needed.

"Hungary believes, like the Netherlands, that stricter national controls on migration are essential, to protect public services and sovereignty," said Boka.

The new Dutch coalition government, led by the far-right PVV party under Geert Wilders, is ideologically very close to Hungary's ruling party, Fidesz. Now they want to work together to pressure the European Commission and the other EU members into taking a hard line on asylum policy.

The declared aim of the Dutch minister for asylum, the PVV's Marjolein Faber, is to establish the "toughest migration policy ever" in the Netherlands. In order to do this, she wants to declare a "state of emergency" that would allow her to act without the approval of the Dutch parliament, should the need arise. For its part, the Hungarian government has been issuing and relying on emergency decrees since the start of the COVID-19 crisis.

EU Council president Hungary is torpedoing EU law

Hungary also currently holds the rotating presidency of the EU Council. In this role, its minister for European affairs, Boka, ought to be advocating on behalf of the EU's joint asylum policy. Reforms to this policy were finally approved in April, by the European Parliament and a majority of member-state governments.

Instead, Boka has chosen to be uncompromising in his representation of Hungarian national interests. A press release issued by the government in Budapest says Hungary feels encouraged by the Dutch move, and considers its stance to be validated by the debate in Europe as a whole.

Hungary rejects the EU asylum pact, which has now become law, and is determined not to implement it, although it is obliged to do so. The Hungarian prime minister, Viktor Orban, has expressed satisfaction that, on Monday, Germany started controlling all its borders with a view to catching people who try to enter the country illegally.

Italy's far-right prime minister Giorgia Meloni declared a state of emergency in her country some time ago, in response to the supposed migration crisis. She too is ideologically aligned with Wilders in the Netherlands and Orban in Hungary, and may well be the next to demand to "opt out" of EU asylum laws.

Exceptions are hard to make

"The Dutch government's demand for an opt-out from European migration policy is a paper tiger," according to the German MEP Birgit Sippel of the Social Democrats.

"Because a non-participation clause would have to be included in European treaties, and these can only be amended by unanimous agreement. I very much doubt that other member states would approve a unilateral move of this kind by the Netherlands," said Sippel, who helped negotiate the EU migration pact.

The same, of course, applies to Hungary. The EU has never introduced a retroactive exemption or opt-out for a specific policy area. The existing opt-outs were either agreed on when the relevant EU treaties were adopted, or at the time of the member state's accession.

Denmark, for example, is partially exempt from domestic policy, migration policy, and Schengen zone border control regulations. Ireland does not apply Schengen rules in full because of its close relationship with the United Kingdom. Poland was granted an exemption from the EU Charter of Fundamental Rights, because Warsaw feared that adopting the charter would force it to legalize same-sex marriage.

EU laws must be followed

EU treaties can be amended. The Netherlands or Hungary could apply to the European Council to request that this be done. But it is a lengthy process, and would ultimately require the other member states, and the European Parliament, to approve the amendment in a ratification process.

Anitta Hipper, a spokesperson for the EU Commission, pointed out that unless and until the treaty is changed, the Netherlands and Hungary are still bound by existing European law, and are obliged to comply fully with the asylum rules.

Elise Muir, the head of the Institute for European Law at KU Leuven in Belgium, sees this as a test of the EU's principle of commitment to the rule of law. "A member state cannot withdraw from EU legislation after it has been adopted. The whole point of EU membership is that you commit to following EU laws," Muir told the TV station Euronews.

Hungary has long ignored EU law

In recent years, Orban's ultra-nationalist Hungarian government has created its own opt-out simply by ignoring EU rules for asylum procedures. The European Court of Justice in Luxembourg has ruled, repeatedly and definitively, that Hungary's policing of its external border with Serbia is unlawful. In its latest ruling, the court declared it illegal that asylum seekers could not apply for asylum at the border, but instead only at the Hungarian embassies in Kyiv and Belgrade.

Hungary, however, has refused to change this practice, so the court has imposed on it a fine of €200 million ($223 million) and a daily penalty of €1 million. As Orban has publicly boasted that he does not intend to pay the fine, the EU Commission is now recovering the amount by making corresponding cuts to Hungarian subsidies from the EU budget.

Very few asylum seekers in Hungary

As for the huge influx of asylum seekers and migrants of which Hungary complains: Where are they? According to EU statistics, only 30 people applied for asylum in Hungary in the whole of 2023. Hungary therefore has by far the fewest asylum seekers per capita of any EU country.

The Netherlands had 38,000 new asylum applications in 2023, which means it comes in just below the EU average — as does Italy, incidentally. The highest number of asylum applications per capita were registered in Cyprus, Austria, Greece, Luxembourg, Germany, and Bulgaria.

If the Netherlands were successful in obtaining an opt-out from asylum procedures, and if it were to close its borders to migrants, these people would probably stay in Belgium or Germany. That would inevitably lead to friction between these European neighbors.

In her letter to the EU Commission requesting the opt-out, the Dutch minister Marjolein Faber acknowledged that any such change to the EU treaty is still a very long way off. Consequently, the MEP and migration expert Birgit Sippel comments: "The letter from the right-wing Dutch government is pure tokenism."

This article was originally written in German.