The border barrier – a Hungarian solution

The growing mass of migrants arriving of the European Union at the area from the year 2015 had imposed a huge burden on the European Union. Considering that a solution to the problem resulting in the large-scale migration cannot be expected in the near future, the danger of another wave of mass migration reaching Europe and seeking international refuge is still present. Since the flow of migrants resulted in heavy burdens on the member states – especially to the countries of the Schengen-borders – the problems arised called for urgent measures according to the existing legislation. The solution that Hungary found was the erection of the border barrier. In the present study the effects of the border barrier on the migration data will be overviewed, based upon statistics published on the topic. Since 2015, a large number of publications have been published on the topic of the migration crisis, the problems arised in the wake of it, and the possible solutions like the “compulsory resettlement quotas” or the physical border barrier. In the present study I would like to further examine the Hungarian solution to this problem. During the preparation of the study I processed the literature on the topic and also analyzed statics in order to determine the effectiveness of the border closure.


Introduction
Since 2010 the number of irregular arrivals into Europe by sea or land has increased substantially. From January to June 2015, 137,000 refugees and migrants arrived in Europe, an increase of 83 % over the same period in 2014. Syrians are the single largest nationality, followed by Eritreans and Afghans. Most are likely to qualify as refugees in European Union (EU) countries. The main migration routes are through the Eastern and Central Mediterranean and the Western Balkans. The Eastern Mediterranean route is currently the most popular, substantially increasing flows through the Western Balkans as only a small minority of people apply for asylum in Greece. Estimates of the actual number of irregular arrivals into Europe vary between agencies, in part because migrants may be counted more than once as they make multiple crossings between EU and non-EU countries in order to reach their preferred destination. This is particularly the case across the Eastern Mediterranean and the Western Balkans routes. The meaning of transit migration and transit migration countries is changing. Turkey, for many years considered a country of emigration, is today seen as a 'transit' country, where most asylum-seekers receive 'temporary protection' status which allows them to apply for resettlement in other countries. Libya is evolving from a country of immigration from sub-Saharan Africa to a major 'transit country' between countries such as Sudan, Somalia, Eritrea, Chad, and Europe. Future trends of migration flows and patterns are extremely difficult to predict. This is largely due to the difficulty of predicting changes in the drivers of migration, including political unrest, conflict, and patterns of economic growth. 1 The humanitarian crisis that unfolded on the borders of the European Union -and is now increasingly unfolding inside -was not the result of a natural or unforeseen disaster. The arrival of large numbers of refugees and migrants was neither new nor unexpected. Rather the 'crisis' was, in large part, policy driven and sustained by the failure of the EU to put in place adequate and humane responses to deal with this unprecedented but also foreseeable movement of people. The failure of EU policies to respond effectively to the increased movement of people across the Mediterranean in 2015 was partly a reflection of political differences and tensions within and between EU Member States but also reflected flawed assumptions about the reasons why people move, the factors that shape their longerterm migration trajectories and their journeys to Europe. These assumptions became deeply politicised over the course of 2015. 2 The fundamental European value, the free movement and employment of the population living there, the free choice of educational institutes that called the Schengen area to life, has become an everyday reality with the termination of the internal border control. However, the termination of the internal border control has led to a great security deficit, that called for a stricter and more uniform control on the external borders. In the preamble of the repealed 562/2006 EK, it was stated as early as 2006 that a controlling activity on the external borders of the area is a community interest, and that this control must promote the fight against illegal migration and human trafficking. Furthermore, it has to strive to avert the dangers threatening the internal security, the public order, the public health and the international relations of the member states, while respecting the fundamental human rights. If we are talking about member states and therefore a community, according to the principle of solidarity, this control must guarantee not only the security of one state but that of the other states where anyone can freely travel after crossing the external borders. With the irregular migration, generally, several other offences posing security risks are associated; furthermore the continuous flow of people between countries and regions itself generates conflicts. Following the migratory processes of 2015 onwards and the tangible increase of terrorist threat one had to realize the fact that changes, even restrictions have to be made in the system of border control having been appplied so far in order to meet the requirements of border control, among which security must stand in the first place these days.
The requirements of border control can be put shortly and simply, that is border control must step up effi ciently against illegal migration, and must guarantee the inner security of the member states." 3 The migratory situation of Hungary The migratory tendencies and processes affecting Hungary show that at present Hungary is a transit country that lies in the intersection of the Eastern and South-Eastern migration routes. In the majority of the applications the applicants left the country before the end of the procedure and submitted another application in another member state. A good example to this is provided by the proportion of the decisions and applications. The proportion of the procedures in which a decision could be made, that is the applicant was accessible in the later stages of the procedure, was the lowest in Hungary. This phenomenon proves that the asylum-seekers see Hungary as a transit country. 4 Beginning in the fourth quarter of 2014 and continuing in the fi rst quarter of 2015 the irregular migration towards Hungary intensifi ed. 5 However, the number of asylum-seekers had increased excessively in the year 2013. At the beginning of 2015 citizens of Kosovo appeared on this route, who intended to reach their destination in Germany through Hungary. The number of asylum-seekers registered in Hungary slightly decreased in the second quarter of that year, but in the third quarter it has increased in an unprecedented degree. In this period of time the number of the Kosovo applicants slightly reduced, and the number of the ones arriving from Syria and Afghanistan signifi cantly increased. 6 According to Frontex, the European Border and Coast Guard Agency, more than 1.2 million illegal border crossings were detected until the end of October 2015, as opposed to the 235 thousand of the same period of the previous year. Before the year 2016 the experts analysing the statistics assumed that the number of migrants arriving in Hungary would permanently increase, entailing additional burdens to the Offi ce handling the applications. "A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, justice and security. The Asylum System must not function as an European fort, but to stay open for those who, forced by circumstances, legitimately seek protection in the Community." 7 In view of this issue the question arised in the member states how they could keep the migration fl ow within limits. Some member states viewed the solution in keeping the refugees outside the EU, while others believe that the problem of third country citizens getting into EU territories needs to be handled based on the solidarity of the member states. This has been one of the most important areas of actions of the EU from the separate resources dedicated to hot spots for the registration of immigrants to the urgent resettlement system. Migration is increasingly seen as a major challenge throughout Europe. From the start of 2015, through a number of different campaigns, the Orbán´s government has created the impression that Hungary's place in the world has fundamentally shifted in the context of global migration. Hungarian Prime Minister Viktor Orbán turned the issue of migration into a major political campaign issue. The terms used in government communication, 'immigrant' and 'migrant', have conveyed the message that Hungary, as a destination country, must cope with a wave of migrants coming from outside Europe. Contrary to this government framing though, Hungary has, in fact, not yet become a destination country for migrants coming from the outside. Orbán promised to deliver a crackdown on "illegal migration" and to protect the country against Islamic terrorism, mass immigration and cultural alienation. In the early summer of 2015 the Hungarian parliament adopted a set of special laws relating to migration after announcing a "state of emergency." These have been in force since the beginning of 2016. Party politics experience in Europe over the past 40 to 50 years shows that European governments have all but no infl uence on migration patterns, whether they are driven by refugees or labour migrants. The main reason for this is that individual nation-states cannot effectively infl uence global migratory patterns. Consequently, more politicians see an excellent opportunity to exploit the problems accompanying increased arrivals in order to reap short-term political gains for themselves. Since the 1970s, parties opposing all immigration have emerged in all European countries. While their agendas have mostly been adopted by mainstream political forces, the problems accompanying increased arrivals have not dissipated by any appreciable measure. Tightening immigration regulations over the decades has proven ineffective and there is no evidence that, on their own, the European nation-states can regulate global migration patterns at all. As a result, political competition with the anti-immigration parties demands evertighter, more visible controls. Among other measures, governments prefer to pass the buck to the EU system. The short-term objective is to take a popular position while not actually addressing these problems. The Hungarian ruling party is well aware of this and, not oblivious to its own political interest, launched its communication campaign using increased arrivals to Hungary as a pretext. On the defensive in autumn 2014, Fidesz used this method in an effort to regain the political upper hand, to recapture the political initiative and to eliminate from the public discourse all other issues that may have hurt the party's interests. From the party politics perspective, however, current developments point beyond competition with Jobbik and involve a broader objective. Viktor Orbán and his party have a well-tested strategy of dividing the political arena into the "pro-national" and "anti-national" fi elds, and insist on parsing all issues along this fault line. Anyone questioning a position taken by Fidesz is automatically and without argument relegated to the "antinational" camp and considered to be a "foreign agent". By the end of 2014, domestic party politics had turned its back on this fault line that had been so convenient for Fidesz; it became increasingly less plausible that the Orbán cabinet was indeed the sole representative of the "national interest". This is why the governing parties seized on the refugee crisis; with a campaign built around this issue, the entire left-wing opposition as well as civil society and rightwing activists criticising the government could all be defi ned as "pro-foreigner". Fidesz's efforts paid off inasmuch as it managed to increase its support base by 5-6 %, while its major challenger from the right, Jobbik, could not exploit the migration issue and in fact lost some supporters. The fragmented left-wing opposition was forced into an unpopular, reactive role and its support has essentially stagnated. Orbán's strategy on the refugee crisis aims at continuously generating confl ict between the Hungarian government and EU institutions. The government organised a referendum and then a national consultation to drive these arguments home.
In 2016, the number of migration-related interpellations increased exponentially, but the number of adopted legislation does not refl ect this.

The Hungarian solution
Hungary saw the fast solution to the problem of the migrational tide in the border barrier. Heated debates had begun preceding the decision about the physical border barrier (hereinafter: physical barrier). But what could be behind the opposition to the physical barrier? On one hand, it is clear that the aim of the physical barrier is to keep the illegally arriving persons outside the borders of the country, nevertheless, due to human nature people do not like being caged. Furthermore, it needs to be mentioned that due to the closing of the border Hungary had to slightly move away from the original ideas, mainly in the case of the Serbian section of the border. In the Migrational Strategy 10 and in the seven-year planning document based thereon, that is connected to the Asylum and Migration Fund to be created in the 2014-2020 cycle by the EU, the most emphasis fell on the integration of Hungarians living outside the borders of the country, especially in the neighbouring countries. In harmony with the principles of the national policy strategy, the premise is that Hungary -set out in the Basic Law -takes responsibility for the future of Hungarians living outside the borders of the country.
This plan seemed to fall down after building the physical barrier. Nevertheless, the decrease in the number of the migrants 11 setting foot on the territory of Hungary appear to convince those in doubt; and we can also state that enormous steps have been taken considering the residence of Serbian and Ukrainian citizens in Hungary. 12 In his essay on "The Signifi cance of Fences" Balázs Orbán 13 wrote the following: "This March the Financial Times brought together in the graph below how the willingness to build physical border defence facilities changed in the previous years. From the mid 2000s the number of border defence facilities drastically grew, and by now, on global level it has reached the number 70." 14 In view of the numbers, it can be concluded that building a border defence structure is not an unconventional instrument at all. In June 2015 at the press conference announcing the building of the physical barrier the following were said: "the construction can be started at 10 to 12 sites. Nine hundred members of the defence forces will take part the deadline is the 30 of November.
The sample section will be built with four different technologies, out of which one will be chosen that will be applied on all of the 175 km length of the Hungarian-Serbian border." 15 In spite of the physical barrier the transit zones working on the Southern section of the border still serve as points to submit asylum seeking applications. At the time of the announcement "the Minister for Home Affairs stated that the structure is a temporary physical barrier that can be lifted when the migration pressure on the country eases. The aim of these measures is that the applicants do not arrive through the green border but through the legal crossing points. Building a fence is not a solution but a necessary and inevitable measure that tries to manage the fl ow of illegal migrants by means of legal and controlled frames." 16 What does the physical barrier mean? It is not exclusively a visible and tangible fence. The border barrier consists of three pillars. The fi rst one is the legal background. 17 According to (the 2012 C Act of) the Penal Code the illicit crossing of the border, causing damage to the physical barrier or the deliberate obstruction of the construction is a criminal offence. Furthermore, the concept of 'state of emergency due to massive immigration' has been introduced. 18 11 See Article on this topic: BÓDI, Stefánia: Jogszabályváltozások a tömeges bevándorlás okozta válsághelyzetben, különös tekintettel a Magyar Honvédség és a rendőrség többletfeladataira, in: Jogelméleti Szemle, 15, 2015, 4, 88-102.
12 Such as the measures to facilitate the employment of non-EU citizens from neighboring countries to Hungary, furthermore the exemption from the visa (visa-free) introduced on 11 June 2017 for citizens of Ukraine and Serbia. Another important change was that the sentencing of human traffi cking became stricter; it can carry prison sentences of up to 20 years. 19 A prison sentence of 10 to 20 can be set for those organizing and managing human smuggling. The criminal assets of the human smugglers must be confi scated.
In the state of emergency an asylum seeking application can exclusively be submitted in the transit zone at the border, the asylum seeker must wait there until a decision has been taken. This place can only be left towards the outside -presently towards Serbia. In a crisis situation due to massive immigration the police offi cers -in the whole territory of Hungary and not just within the 8 km zone from the border -are authorised to detain individuals illegally staying in the country, and to lead them across the gate of the crossing point, except in the event of suspected criminal offence. Entry can be granted to the asylum seekers staying in the transit zones only if the asylum authority makes a decision granting international protection or the conditions of conducting the asylum procedure according to the general rules are satisfi ed. 20 According to the § 5 (1a) of the LXXXIX. Act of 2007 the irregular migrant detained within 8 km distance from the border will be lead back to the transit zone. The second pillar is the security closure obstructing the physical crossing of the border. By April 2017 the second, inner line of the fence was constructed, which consists of a wire net fastened on steel posts, at some places strengthened by fast deployed wire barriers. A further 8 mm steel wire net has been fastened to the fence that cannot be cut through with hand wire cutting tools, and the density of the net makes it impossible for a person to insert a foot in and climb the fence. 21 The third pillar is the 'human force' that is the strength of the police and the defence forces.

The fence
According to the information published on the offi cial website of the Hungarian government on 7 March 2017 the construction will be carried out with the work of 700 prisoners and with the HUF 38 billion cost of the present project the overall cost of the fence on the Southern border section will grow to HUF 284 billion. He stated that the National Judicial Authority gets HUF 295 million to cover the costs of the additional burdens, and the Ministry of Human Resources is also given 76 million Forints. He added that the Ministry of Defense needs more resources for the establishment of border defense bases, security tasks, information technology tools and for the payment of individual entitlements which can reach up to HUF 10 billion. 22 To maintain control over the most part of the border section at night time stationary and mobile thermographic detection systems are available. The technological background is reinforced by the permanent presence of a great number of living forces alongside with the system. 23 At the planning of the border barrier the cooperation of several Ministries was necessary. 24 However, the most important task was to provide the living force. The living force of the border closure is provided by the Hungarian Police, within that the border agencies that belong to the organization. 25 In maintaining the order on the border the Hungarian Defence Forces actively take part. In cooperation with the professionals civilian patrols help their work which focuses on watchkeeping -like the number, description, movement of migrant persons and identifi cation of their cars -and after detection on immediate signalling towards the Police. On 10 August 2016 the Government made a decision to expand the number of border intervention troops of the Rapid Response Police Unit with an additional 3,000 people. In order to achieve that another border management body has been established besides the one existing so far, the number of intervention departments has been expanded from seven to fi fteen. To enhance the human force the National Police Headquarters had issued vacancy notices for the positions of border patrols to serve under the Border Intervention Departments. "Based on the national data collected on 31 August 2017, altogether 3,561 people has applied for the border patrol training courses since 25 August 2015. The eight course of the training started on 1 September 2017 with altogether 70 people." 26 Talking about the two years since the construction of the border closure István Simicskó Minister for National Defence stated that "in the last two years the members of both organizations have done their jobs with serious concentration, responsibility and devotion in order that the civilian people can live their everyday lives in security". According to him the diffi culty in the present border management task is partly due to the fact that earlier we had not have the chance to meet this type of challenge. But in the migration crisis situation the armed forces and the police have quickly created the effi cient and tight forms of cooperation and they coped very well. The Minister also said that up to September 2017 more than 12,000 soldiers took part in the border management in one way or another meanwhile the Defence Forces naturally were doing their everyday tasks, and the Police had to recruit about 3,000 people for border patrol in an extremely short period of time. "In the meantime they could cope very well in a diffi cult situation, they are doing their jobs on a higher and higher level, and in the last two years they have gained a really great knowledge regarding both cooperation and the concrete tasks as well. This is best proven by the fact that we are already able to demonstrate and share this knowledge to others, for instance in the event of the COOPSEC 2017 practice in Austria between 11 and 15 this September." 27 As István Simicskó emphasised, "it deserves all compliments that we could equal to the quick and unexpected tasks". Based on what the Minister said we can state that more than 15,000 people took part in the border defence.
After reviewing the number of people taking part in the border defence let us look through what those people had to face. From January to September 2015 175,963 asylum seekers were registered in Hungary that meant an increase of 1,143.9 % as opposed to the same period of 2014. 28 Between January to September 2016 this number was 28,803 while the same period of 2017 brought about 3,187 people. It can be concluded that following the building of the physical barrier the number of registered asylum seekers decreased drastically. The construction of the physical barrier and the measures made in connection with it grant Hungary a higher degree of control over the entry of migrants.

The border closure in practice
After reviewing the numbers, let us take a look at what happens at the physical barrier. In the event of a crisis caused by mass migration the border patrols are lead by the police offi cers together with the soldiers, and they will be responsible for the fulfi llment of the given tasks and for the lawfulness of the application of coercive measures.
According to the directions about the order of participation of the Hungarian Defence Forces in Police tasks, the National Police Commissioner and the Chief of Staff of the Hungarian Defence Forces conclude a separate cooperative agreement on the coordinated performance of the tasks required by the state of emergency caused by mass migration and on the preparation to these tasks. According to the directions of the Minister the police offi cers can request the soldiers to implement measures in connection with mutual service tasks. This request can only be refused if the implementation were against the laws or the implementation of such measures cannot be expected of the appointed soldier or the circumstances make it impossible. During the implementation of these tasks coercive measures laid down in legislation can be applied. The measures must be taken by the police offi cer by default, the soldiers provide direct security. According to the directions published in the Offi cial Gazette in the case of joint service the soldiers cannot initiate an independent measure unless they are in direct connection with the leader of the patrol or the situation calls for immediate measures. 29 In addition to that, the Defence Forces provide nourishment to home affairs organizations and public administration employees that take part in the fulfi llment of the tasks required by the state of emergency to mass migration. Regarding that this kind of cooperation was not regulated earlier, the directions of the two Ministers contain further provisions to the force protection of the transit zone which are performed by the police and the army independently licensed to take full measures. After reviewing what the border barrier means in practice, let us take a look at the effect of the barrier to the irregular arriving to Hungary. The examination of the data concludes that the number of registered asylum seekers in 2015 was nearly 180,000, and then in the year following the construction of the physical barrier this number fell drastically (29,432). In the meantime no such decrease could be seen in the whole of the European Union in the number of registered asylum seekers.   Despite the statistics "Hungary was widely criticized for setting up the border barriers and the criminalization of the acts against thereof." 32 The greatest attention was received by the "Sargentini Report" which said the following with regard to the border barrier: "On 6 June 2016, the UN High Commissioner for Refugees expressed concerns about the increasing number of allegations of abuse in Hungary against asylum-seekers and migrants by border authorities, and the broader restrictive border and legislative measures, including access to asylum procedures." 33 According to the statement of the Hungarian Helsinki Committee "The Government codifi ed three separate criminal acts, tightened the criminal law rules for smuggling, eased the conditions for expulsion, and introduced special, accelerating rules in criminal proceedings. Some of the provisions contravene international conventions and, overall, are unenforceable, and the expected burden of litigation will put enormous pressure on the entire justice system. Hungary has already been obliged to provide reparation by the European Court of Human Rights in Strasbourg for a number of delays in prosecution, but it has also recently lost a strategic case due to overcrowding. It is easy to see that discussing the new provisions before "any other matter" slows down the trial of the other punishments and increases the congestion of prisons." 34 Despite the advantages of the migration arriving at the territory of the country, such as the fact that Western European politicians and economists refer to migration as a "silver bullet" solution to the demographic and economic problems of the European Union, a thorough examination shows that in the past, migration may have been a useful tool in the past to tackle cross-country labor market frictions and to raise the level of well-being in general (this is what one of the EU's important achievements, the free movement of labor is built on). It is now clear that the benefi ts and benefi ts of migration are in not proportion. The prerequisite for achieving a positive overall effect is that the newcomers are successfully integrated into the labor market of the host country. However, this important prerequisite had not been met in the past, even if a signifi cantly higher proportion of highly qualifi ed workers arrived in the host country than now. The current migratory wave differs in many respects from previously experienced movements. "The integration of the masses of migrants arriving from other cultures, most of them being presumably low-skilled, exposes the EU and the Member States to disproportionately high public spending and efforts over several decades with severe social tensions." In the current process, the source countries suffer signifi cant losses, the migrants get in a vulnerable position, and Europe is facing a disproportionate burden of uncertainty besides the expected benefi ts." 35 Not to mention the increasing number of terrorist attacks.