Could Hungary be suspended from Schengen?

In early July, the Orbán government announced that it would extend a program that grants third country nationals simplified access and stay to work in Hungary to Russian and Belarussian nationals. This extension of the so-called ‘national card’ scheme has EU and Member State officials up in arms. Critics argue that this policy will create a loophole for individuals who are tasked to commit hostile acts in the territory of Schengen Member States. Commissioner Ylva Johansson sent a letter to the Hungarian minister of interior, seeking clarification on some aspects of the policy so that the Commission could ‘draw the appropriate consequences’. This not so subtle threat has been spelt out more explicitly by other prominent actors at EU level, who have called for the suspension of Hungary’s Schengen membership.

This blogpost maps the ways in which Hungary’s policy might undermine the security of the Schengen area and surveys the tools Member States and EU institutions have at their disposal to counter it. Should the Hungarian government fail to cooperate and dispel the concerns raised by its extension of the national card system, these mechanisms should be activated to safeguard the security of the Schengen area.

Is Hungary’s ‘National Card’ compromising the Schengen area’s security?

The national card is a residence title granted to third country nationals to perform work. As an instrument of economic immigration, it authorizes residence for up to two years, with the possibility of extension for up to three years at a time. In legal terms, the national card is therefore not a short-term Schengen visa, but a long-term residence title which is not governed by EU secondary law instruments. Pursuant to §§ 50-53 of Act XC of 2023 on General Rules for the Admission and Right of Residence of Third Country Nationals, the Hungarian government may specify third states whose citizens may be granted such a residence title. Hungary first used this option in 2023, allowing Serbian and Ukrainian nationals to benefit from the scheme. In early July 2024, Government Decree no 179/2024 of 8 July 2024 extended this list to include  nationals of Bosnia and Herzegovina, North Macedonia, Belarus, Moldova, Montenegro and Russia.

Privileged entry regimes of this nature are certainly not a unique feature of Hungarian immigration law. Yet, the main source of concern with this policy is that the national card’s facilitation of entry coincides with relaxed security checks. Formally, the national card’s legal framework does not specify what kind of security checks will be performed (if any). Notably, the application form does not include a question on past criminal conduct, as opposed to the application form for other types of residence permits. To be sure, this does not automatically mean that no security checks would be performed. § 17 of Act XC of 2023 on General Rules for the Admission and Right of Residence of Third Country Nationals spells out the general conditions for permanent residence in Hungary, including the requirement not to imperil Hungary’s national security. However, national authorities have wide discretion to decide whether a person authorised to enter the Schengen area constitutes a threat to public security. Coupled with Hungary’s tendency to hide behind discretionary decision-making to conceal the true intentions of a policy, this makes it difficult to determine the effects and lawfulness of this policy in the abstract.

Russian and Belarussian Nationals as a Geopolitical Threat?

Hungary has consistently sought to present economic migration as a threat to national security. In a foreword to one of its infamous ‘national consultation surveys’, for instance, the prime minister stated that economic immigration would ‘represent a new type of threat – a threat which we must stop in its tracks.’ This rhetoric has notably been reversed in the context of the national card. While the Hungarian government claimed that an extension of facilitated entry for Russians and Belarussians was nothing to worry about, actors at EU level oppose this policy for potentially providing a loophole for espionage and other acts of hostility, thereby endangering the Schengen area at large.

Formally, the national card does not allow for intra-EU mobility but only entitles its holder to residence in Hungary. In practice, however, the principled abolition of internal border control in the Schengen area implies that persons staying in one Member State may travel to another Member State, even if they have no right to do so. As such, simplified access for Russian and Belarussian nationals to Hungary may equally undermine the security of the Schengen area in its entirety. If Hungary was to turn a blind eye to the security risks that certain individuals may pose to national security of other Member States, this would call into question the measures put in place to prevent the entry of perilous individuals into the Schengen area.

Screening for Security Risks

Pursuant to Article 6 of the Schengen Borders Code, national authorities are obliged to refuse entry to any third country national they consider a threat to internal security. This seems to preclude a policy or practice that would do away with any meaningful prior-entry security checks. However, the national card scheme does not seem to skip out on security checks altogether, but rather to reduce their rigour. Hungary proclaims this to be appropriate, because it seeks to attract a larger number of Russian experts to finalize the construction of the PAKS II, a nuclear power plant built in large part by the Russian state-owned company Rosatom. Still, it should be asked why this policy needed to be adopted at a time when the construction site does not require nuclear technological expertise, and why it affords facilitated entry to Belarussian nationals. From the perspective of EU law, and specifically Article 8 (3) of the Schengen Borders Code, it is clear that Hungarian authorities are required to carry out a ‘detailed examination’, verifying that third country nationals are not likely to jeopardize the internal security of the Member States. Following the full-scale invasion and war in Ukraine, the Commission published non-binding guidelines on the controls of Russian citizens at the EU’s external borders, calling on national border guards to exercise ‘intensive individual scrutiny of the potentially heightened security risk that the entry of a citizen of a country waging war in Europe into the Schengen area poses.’

None of this indicates with precision the steps national authorities would have to take or how thoroughly they would have to assess the security risks emanating from the entry of a Russian or Belarussian national under the national card scheme. However, some red lines can be inferred from the legal framework. First, national authorities must refuse entry to individuals for whom an alert has been entered in the Schengen Information System (Art 6 (1) (d) Schengen Borders Code). If Hungary were to allow the entry of persons against whom such an alert had been entered, this would be a clear breach of EU law. The same applies in relation to persons whose entry, stay and transit through the territories of the Member States falls under the sanctions regime that the EU has imposed in relation to Russia and Belarus. Both the Commission and other Member States must therefore know precisely which individuals are granted entry under the new scheme and what types of security checks have been performed by Hungarian authorities prior to entry.

Unilateral Immigration Policies and the Principle of Sincere Cooperation

The Hungarian government has emphasized that the issuance of long-stay residence titles, such as the national card, is a Member State competence. While true, this does not mean that Hungary can authorise the entry of third country nationals as it deems fit. Rather, the exercise of this national competence is limited by the principle of sincere cooperation. This point is particularly noteworthy as Hungary,  in the context of its Council presidency, likes to present itself as an honest broker who works ‘in the spirit of sincere cooperation between member states and institutions, for the peace, security and prosperity of a truly strong Europe.’

The recently introduced change in the national card scheme belies this statement. Safeguarding security in the Schengen area surely is a vital common concern of all participating Member States and the notion of sincere cooperation would imply that national authorities refrain from any measure which could jeopardize the attainment of this objective. At the very least, this would have required consulting with other Member States over such a controversial move. The failure to do so suggests that, not unlike Viktor Orbán’s recent travelling activity, this policy may be intended to undermine the EU’s position in relation to Russia, in casu the ‘heightened’ alertness of security threats that can emerge from the entry of Russian and Belarussian nationals.

The Uncertain Potential of Legal Action

Whether legal challenges against Hungary’s policy could be successful will largely depend on its implementation in practice. It is therefore appropriate that Commissioner Johansson has stressed the need for further clarification on the side of Hungary regarding the way in which this policy will play out in practice. How vigilant will the security checks be? Will Hungarian border guards communicate and coordinate their decisions with counterparts in other Member States? And which individuals will be granted entry into Hungarian territory? Hungary’s answers to these questions will determine whether legal actions may be needed to safeguard the integrity and security of the Schengen area. A failure to refuse entry to individuals who are placed on the EU’s sanctions list or against whom an alert and/or entry ban has been entered into the Schengen Information System would, for instance, qualify as a clear violation of EU law. Short of these instances of an unequivocal breach of obligations, however, much will depend on the assessment of security actors in Hungary in each individual case.

Suspending Hungary from the Schengen Area?

Notwithstanding this uncertainty, actors at EU and Member State level have powerful tools at their disposal to ensure the integrity of the Schengen area. First, Member States may concertedly decide to reintroduce internal border controls with Hungary. Technically, this would not amount to a suspension of Hungary’s Schengen membership, but it would strip its nationals (and any other person wishing to travel from or to Hungary) of the most tangible benefit that Schengen integration offers. Article 25 of the Schengen Borders Code specifies that Member States may adopt such a measure to tackle a serious threat to their internal security. Given that the entry of certain Russian and Belarussian nationals may pose a geopolitical threat to some Member States, Hungary’s policy could justify the reintroduction of internal border control.

The advantage of such reintroduction of internal border control would lie in its immediate effects. The extension of the national card scheme could reasonably qualify as an ‘unforeseeable event’, permitting Member States to reintroduce internal border control without any prior procedural steps to be taken. However, it would require all Member States to coordinate their actions. It may be questioned whether national ministries of interior can organize and put into practice such a concerted approach. Still, if they did, this would indubitably be a powerful effort signaling that the extension of the national card scheme to Russian and Belarussian nationals has been one step too far.

Is Hungary putting the overall functioning of the Schengen area at risk?

Another approach relates to the introduction of internal border control to respond to ‘exceptional circumstances [that] put the overall functioning of the area without internal border control at risk’. First introduced in the aftermath of the so-called migration crisis, this option is nowadays codified in Article 29 of the Schengen Borders Code. Unlike the coordinated unilateral reintroduction of internal border controls by the Member States, this procedure is a genuinely supranational one. It allows the Council, following a proposal from the Commission, to adopt a Recommendation to suggest that one or more Member States reintroduce internal border control. Procedurally, this option would first require actions to be taken under the Schengen evaluation mechanism, a set of procedures and infrastructures put in place to ensure full respect for the Schengen rules. Under this framework, a team composed of experts from the Commission and other Member States could conduct unannounced visits if there are grounds to believe that a Member State is seriously disregarding its obligations under the Schengen acquis. Hungary’s national card regime could easily qualify as one of these grounds. If a site visit brought to light a serious deficiency in the carrying out of external border control, the Commission could propose the Council to recommend Member States to concertedly reintroduce internal border controls.

Conclusion

To propose a concerted reintroduction of internal border controls over Hungary’s recent changes in the national card scheme could be seen as using sledgehammer to crack a nut. It is a drastic measure that will hit many individuals, including those who have little sympathy for the Hungarian government or its recent policies. Such a response may nonetheless be warranted in light of Hungary’s uncoordinated introduction of a scheme that seemingly reduces the vigilance of security checks vis-á-vis Russian and Belarussian immigrants. Procedurally, it may be preferable that the Commission first requests more information on the policy, including its practical implementation, and that unannounced site visits in the framework of the Schengen Evaluation Mechanism are conducted. If it becomes clear that Hungarian authorities fail to duly cooperate or provide false information, however, the reintroduction of internal border controls to Hungary may be inevitable to safeguard security in the Schengen area.