Condemned for Protecting Its Borders: Hungary Faces an Increasingly Intrusive ECtHR

On 24 June 2025, the European Court of Human Rights (ECtHR) issued a new judgment against Hungary, accusing the government of collectively expelling three migrants at the Serbian-Hungarian border. In the case of H.Q. and Others v. Hungary, the Court condemned the implementation of collective expulsion procedures, once again hindering the right of Member States to act as sovereign in controlling their borders.

The three applicants, from Afghanistan and Syria, had separately brought their cases before the Court. Each applicant faced an irregular situation in Hungary. H.Q. had entered the country legally in 2018 but had his asylum claim rejected by the Directorate General for Aliens Policing in 2021 after the expiration of his student visa. Z.A. and A.S.A. entered Hungary illegally in February and July 2022, respectively, and were injured in car accidents after clandestinely crossing the Serbian border with the help of smugglers. They were treated in hospitals, where they allegedly expressed a desire to seek asylum in Hungary to escape persecution in Aleppo and Afghanistan. Upon their hospital discharge, Z.A., A.S.A, and H.Q. were returned by police to the Serbian-Hungarian border with other Arabic-speaking men. All were ordered to exit the transit zone and re-enter Serbian territory, retracing the route by which they had originally illegally entered Hungary.

The Obligation to Admit Illegal Migrants

The Court found a violation of the prohibition of collective expulsion of foreigners under Article 4 of Protocol No. 4 of the European Convention on Human Rights. Hungary was ordered to pay €23,000 in moral damages and €8,000 in legal costs. This article, along with its dynamic interpretation by the ECtHR, prevents States from adopting sovereign and deterrent migration policies and legally disables authorities attempting to control their borders. In a well-established line of jurisprudence (Khlaifia and Others v. Italy [GC], 2016; Shahzad v. Hungary, 2021; etc.), the Court has consistently condemned the expulsion or removal of individuals in irregular situations, as in the H.Q. case. According to the Court, every migrant who reaches national territory must have their asylum request individually examined before being expelled, even if they never formally initiated the process (N.D. and N.T. v. Spain, 2020). It is sufficient that the migrant expressed a wish to seek asylum. Such a categorical prohibition on collective expulsions, even under extreme migratory pressure or national security concerns, destabilizes Member States in favor of granting near-absolute protection to foreigners. In practice, the ECtHR tends to convert irregular stays into de facto residence rights, contributing to a form of judicial overreach at the expense of public order and national sovereignty.

Further, asylum applications in Hungary cannot be filed on Hungarian soil. Applicants must use the "embassy procedure" and submit their request at the Hungarian embassy in Belgrade. Thus, it appears logical that migrants who enter Hungary illegally and claim to seek asylum should be returned to Serbia to follow the prescribed process. This fits into a broader policy of externalizing borders, which could allow for more efficient screening of migrants by delegating the management of migratory flows to third countries upstream of EU territory, thereby limiting irregular arrivals and facilitating differentiation between refugees and economic migrants.

Hungary and the Erosion of National Migration Policy

Hungary's migration policy is based on strict border control, due to its geographic and historical role as a key entry point along the Balkan route and as a gateway to the rest of Europe. It is often one of the first EU countries that migrants reach before continuing to more generous welfare states. Hungary takes its role as Europe's border guardian seriously. The policy is still shaped by the 2015-2016 migration crisis, during which more than 400,000 migrants crossed Hungary en route to Western and Northern Europe. This episode revealed the destabilizing effects of massive and culturally disparate migration flows.

European institutions, including the ECtHR and the Court of Justice of the European Union (CJEU), have repeatedly sanctioned Hungary for its migration policy, particularly regarding access to asylum procedures and border pushbacks. In a landmark ruling in June 2024, the CJEU fined Hungary €200 million with a daily penalty of €1 million for failing to comply with a previous judgment on asylum reception. This massive fine reflects the pressure European institutions exert to obstruct Hungary's sovereign migration strategy, which prioritizes national and European security over migrant rights. The ECtHR, too, has ruled against Hungary in recent cases such as R.R. and Others v. Hungary (2021) and M.A. v. Hungary (2023), demonstrating increasing legal pressure. This pressure likely reflects Brussels' disapproval of Hungary's conservative political orientation.

However, this strict scrutiny is not limited to Hungary. Other countries facing significant migratory pressures, such as Poland, have also been condemned by the ECtHR—for instance, in D.A. and Others v. Poland (2022), where the Court criticized the collective expulsion of foreign nationals at the Belarusian border without individual assessment. This series of rulings against states adopting sovereign and security-based border control policies signals a structural legal conflict, where individual protection systematically outweighs the legitimacy of national interests, public order, and the sovereign control of migration.

These repeated condemnations for efforts to control migratory flows undermine states' ability to implement coherent, secure, and effective migration policies. In response, nine European countries, including Austria, Poland, and Italy, sent a letter to the Council of Europe in May 2025, expressing concern about the ECtHR's expansive interpretation of migrant rights. They denounced growing interference in national migration policies and called for a better balance between individual protections and respect for national sovereignty in border management.