VISA POLICY AS MIGRATION CHANNEL

Transcription

1 VISA POLICY AS MIGRATION CHANNEL June 211

2 CONTENT EXECUTIVE SUMMARY... 3 I. INTRODUCTION: PURPOSE AND METHODOLOGY FOLLOWED... 4 I.1 Purpose... 4 I.2 Methodology... 6 II. POLICY AND LEGAL FRAMEWORK FOR THE GRANTING OF VISA IN HUNGARY... 7 II.1 National Policy and legislative framework... 7 II.1.1 Hungarians beyond the borders the leitmotiv of visa policy... 7 II.1.2 The general legal framework of issuing visa Visas for stays not exceeding three months Visas for stays longer than three months II.2 Agreements with third countries...16 III. PRACTICAL IMPLEMENTATION AND ORGANISATION III.1 General and specific procedure followed in the stages of the visa procedure...17 III. 2 Challenges and success factors for facilitating legal immigration...22 III.3 Visa procedures for the purpose of preventing irregular migration...24 IV. COOPERATION WITH THIRD COUNTRIES: CASE STUDIES IV.1 Case study I Ukraine...26 IV.2 Case study II China...31 V. EFFECTS OF EU POLICY AND LEGISLATION VI. CONCLUSIONS BIBLIOGRAPHY ANNEXES of 59

3 EXECUTIVE SUMMARY The present study exploring the effects of EU policy and legislation on national policymaking and practices analyses the nexus between visa policy and migration management and control in Hungary. The paper enlightens the special Hungarian case of international migration, guided by ethnicity and using visa policy almost exclusively as a significant part of diaspora policy. The study - outlines the policy and legal framework with regard to the use of Schengen and national visas in Hungary for managing migration and preventing irregular migration, including an analysis of the national policy and legislation in this area; - provides a comprehensive overview of the practical implementation and organisation of national visa policy and legislation; - explores the link (lack of link) between visa policy and migration management through two case studies, at first through one of the ethnic visa policy focal points of Hungary (Ukraine), then through the biggest non-ethnic Hungarian third-country national migrant group (Chinese), analysing the backgrounds of the lack of link; - explores the effects of EU policy and legislation on national policy, procedures and practices; - presents and analyses the available statistical data on the issuing of visas; - draws conclusions on the extent to which there is (not) a nexus between visa policy and the management of migration, however, foreshadows the possibility of a change in visa policy. 3 of 59

4 I. INTRODUCTION: PURPOSE AND METHODOLOGY FOLLOWED I.1 Purpose The purpose of this study is to provide an overview of Hungary s policy and legal framework for granting of visas, analysing the nexus between visa policy and migration management and control. However, the lack of a coherent Hungarian migration policy widely impresses the question and makes a comprehensive analysis complicated. As we cannot talk about a general Hungarian vision regarding migration, it is likewise hard to formulate apart from the principally ethnic elements the role of national visas in promoting legal migration and preventing irregular migration. Over the last decade the national visa policy of Hungary has been based on ethnic principles, as Hungary represents a special case of international migration when ethnicity, historical and cultural traditions and last but not least mother tongue of the overwhelming majority of immigrants are identical with those of the receiving population. This is the fundamental feature of immigration to Hungary in the last two decades and could as a consequence be observed regarding visa policy as well. However, this almost exclusive focus on Hungarian minorities in the neighbouring countries has been fuel for policy-making when joining the European Union and especially the Schengen zone. The effort to counterbalance the later described negative effects of our EU membership regarding ethnic Hungarians in the neighbouring (non-eu) countries has been the principle former of the migration and visa policy of Hungary. As a consequence, ethnicity has been the leitmotiv of the Hungarian policy-making and legislation on the playing field within and beyond the EU-determined rules. The visa issuing system as a tool to control the movement of persons crossing the borders is a key element in exercising sovereignty, thus the EU and especially the full Schengen membership mean the loss of the nation-state based control over the borders 1. For Hungary this loss has been quite significant. In terms of visa policy, Hungary has gone 1 Sándor Illés, Attila Melegh: Hungary in the Schengen System: Bastion or Gateway? Hungarian Europe Society, Budapest, 21, p of 59

5 through this kind of sovereignty-loss due to its joining the Schengen zone in two rounds. At first, after our EU-accession in May 24, since most of the basic requirements like the use of EU negative lists have been set out in the visa regulation (539/21/EC) for Hungary as well, and secondly on 21 December 27 when Hungary fully joined the Schengen zone. The most important change has been occurred towards two neighbouring countries, Ukraine and Serbia. There had been no visa requirement or there had been free visas, but after Schengen Hungary had to introduce visas with visa fees for these two countries, which provide the greatest number of third-country national visitors and which have substantial Hungarian minorities. Because of ethnicity as leitmotiv, the above-mentioned restriction of our visa sovereignty has gone far beyond the visa policy itself. It has become a significant question of diaspora politics. The EU accession and especially Schengen have meant that many ethnic Hungarians have been left on the wrong side of a new Iron Curtain, as it prevented Ukrainian and Serbian citizens (and among them the numerous ethnic Hungarians) from crossing the border into Hungary without a visa. This prompted an intensive search for new ways for Hungary to maintain cross-border ties, among others through visa policy. The well-known general tendency is that common EU visa policy is letting less and less space for national action. However, the consequence of the intensive harmonisation of this issue has always been manifested in Hungarian kin-state activism. To put it in a simple way: the less national competences Hungary has, the more active its policy-making is in finding the ways of maintaining cross-border ties within the framework of the EU rules. This activism of the last decade has cardinally effected the Hungarian visa policy, lies however on a wide spectrum between promoting social, economic or cultural cross border interaction on the one hand, and providing preferential visa regime and naturalisation to individuals within these communities wishing to move to the kin-state on the other, and last but not least as from 211 providing for dual citizenship to Hungarians living abroad as well. 5 of 59

6 I.2 Methodology The present study is based on a research focused on the insufficient quantity of existing policy elements and the narrow framework of available academic information sources regarding the issue of visa policy. The study draws its conclusions from the following main sources: - research work: analysis of national legislation concerning visa policy, relevant policy papers, statistics, reports and studies. - experts of the Department of European Cooperation within the re-established Ministry of Interior. The Department is appointed as the national contact point for the EMN. Since this department is also responsible for shaping migration policy and is in charge of legislative tasks as well, mainly the colleagues of the department contributed with necessary information to the present study. - other ministries and governmental bodies were contacted as well in order to provide more precise replies to some of the questions. The cooperation with these organs was relatively effective and was built on already existing working relations and on the national EMN network. Statistical data concerning visa issues was provided by the Ministry of Foreign Affairs, the Office of Immigration and Nationality and the Police (integrating as of 1 January 28 the Border Guard Services). Nevertheless, the following general problems were encountered in doing the study: 1) there is no comprehensive research activity on migration in Hungary. Due to this fact visa policy questions mainly represent as already mentioned above a subquestion of the numerous projects on ethnicity and kin-state activism. The studies and reports dealing with visa policy itself are rather scarse. 2) there is no periodical on migration, the migration-related studies are published occasionally in general reviews of social sciences or in sporadic monographies. 6 of 59

7 Due to this fact there is only a narrow circle of academic information available on visa policy (and migration). 3) data collected by diverse bodies or authorities (Ministry of Foreign Affairs, Office of Immigration and Nationality, Police) are not always suitable and the interpretability of data sources is not always sufficient. Statistical data especially according to citizenship was unfortunately not fully available. II. POLICY AND LEGAL FRAMEWORK FOR THE GRANTING OF VISA IN HUNGARY II.1 National Policy and legislative framework This section is intended to provide an overview of the Hungarian policy and legal framework for the granting of visas. II.1.1 Hungarians beyond the borders the leitmotiv of visa policy As already indicated in the introduction, Hungary has gone through a significant restriction of its visa-sovereignty due to its joining the EU and the Schengen zone. The borderless and free movement area of Schengen land has had beside its obvious and uncontroverted positive effects negative ones as well. As a matter of fact, Hungary s accession to the EU has not only brought the (re)unification with the western side of the European continent, but it has also established a new Iron Curtain. The external Schengen border separates the ins from the outs, and meanwhile Hungary belongs to the ins, some of its neighbours with sizeable Hungarian minorities (in some areas even majorities) have still remained outside 2. (Figure 1-2) 2 Herbert Küpper: From the Status Law to the Initiative for Dual Citizenship : Aspects of Domestic Hungarian and International Law. p Available at src-h.slav.hokudai.ac.jp/coe21/publish/no9_ses/1_kupper.pdf ( ) 7 of 59

8 Figure 1 Estimated numbers of ethnic Hungarians in neighbouring states Austria 4. Croatia 16. Slovenia 6. Serbia 293. Ukraine 156. Slovakia 513. Romania Figure 2 Areas with ethnic Hungarian majorities in the neighbouring countries of Hungary source: László Sebők: ethnic map of Central and South-Eastern Europe Since the mid-199s, there has been a vivid public discussion in Hungary about the scenario in which Hungary would become an EU member while most of its neighbours would not. This discussion put pressure on the political elite and characterised definitely the visa policy in order to minimise the effects that a Schengen border between Hungary and its non-eu member neighbours would have on the Hungarian minorities in those countries. The effort to counterbalance these negative effects of our EU membership for ethnic Hungarians in the neighbouring (non-eu) countries has performed the leading role in shaping the national visa policy. Actually, it has become a substantial part of the realization of the moral responsibility for ethnic Hungarians outside the borders arising from the so-called responsibility clause of the Hungarian Constitution. Article 6 paragraph 3 of the 8 of 59

9 Constitution declares that [t]he Republic of Hungary bears a sense of responsibility for the fate of Hungarians living outside its borders and shall promote and foster their relations with Hungary. This one-sided responsibility for the fate of ethnic Hungarians behind the border shaped overwhelmingly the Hungarian visa policy in the last decade. Though the responsibility clause does not create any tangible and concrete legal obligations for the Hungarian state, it forbids complete official passivity towards the Hungarian minorities. This formulation does not include more than a declaration that the Republic cares for members of the cultural nation from beyond the borders, neither creates public law relationship with them, nor makes them members of the Hungarian political community 3. However, since 199, all Hungarian governments have acted upon this duty and have included the interests of the Hungarians beyond the borders into their politics in one way or the other. 4 In order to better understand the visa policy perspective of this issue, we should have a short overview on the last decade of these discussions. Between 1998 and 22, the Hungarian government made major attempts to take out the Hungarian minority from the group of possible outsider groups. Behind this attempt stood the idea of creating a legal link with descendents of once Hungarian citizens living in neighbouring countries, in order to provide them with special status in the forthcoming changes. However, the manifestation of this idea, the so-called Act on Hungarians Living in Neighbouring Countries of 21 (Status Law) caused a major public debate that made visible the different views of the Hungarian political elite on foreign policy. The debate was basically between those who argued that these measures were necessary for maintaining the national unity across the borders and they promoted the cultural and economic exchange between the different Hungarian groups (the vision of the right-wing government at that time), while the idea was regarded as irresponsible (allowing a lot of Romanians to work and gain social and health care in Hungary) and it was some kind of irrational anti-europeanism, suggested 3 Balázs Majtényi: Special Minority Rights and Interpretations of the Nation in the Hungarian Constitution. Regio: Minorities, Politics, Society 25/1. p Article D of the new Basic Law of Hungary (in force as of 1 January 212): [ ] Hungary shall bear a sense of responsibility for the destiny of Hungarians living outside its borders, shall promote their survival and development, and will continue to support their efforts to preserve their Hungarian culture, and foster their cooperation with each other and with Hungary. 9 of 59

10 by the opposite (left-wing and liberal) parties. It also led to an international debate with the involvement of the Venice Commission of the Council of Europe in which Hungary was warned that if kept in an ethnic framework, this approach of providing special status and related privileges had discriminatory elements 5. However, the Status Law left aside the two major questions of the Hungarian communities: free movement and citizenship. Without going into details as regards citizenship, as far as free movement (and the visa question) is concerned, the Status Law only awarded the marginal right to use public transport at a reduced price or for free, but did not regulate the entry into Hungary at all. At the time the bill was drafted (2-21), Hungary s EU-accession was already close at hand and the government did not want to jeopardise the country s accession chances by ephemeral visa regulations in the Status Law. Thus, the question of free travel the principal factor to start the whole discussion was left completely out of the law. Nevertheless, the line of trying to provide a special status has been continued. The next stage was the motion of an NGO (the World Society of Hungarians Magyarok Világszövetsége ) to hold a referendum on granting dual citizenship to descendents of Hungarian citizens who held the citizenship before the Paris Peace Treaty signed after the World War II. The ex lege, super-preferential naturalisation of all ethnic Hungarians living in adjacent states without long-term resident status has resulted again in a harsh political debate. Finally, the referendum (on 5 December 24) was not valid due to low turnout. Nonetheless, this fact definitely contextualised the Hungarian visa policy, meanwhile new segmentations of the political community, between government (22-28 socialist and liberal, one-party socialist) and opposition, domestic Hungarians and those abroad, as well as patriots and cosmopolitans have become more than visible. After the failure of this unfortunate referendum, as from 25 the Hungarian visa policy has gained a leading role in diaspora policy of the left-wing government (at that time against dual citizenship). The migration regulations after the unsuccessful referendum have been tending to contain more and more special clauses in the case of ethnic Hungarians. The 5 Sándor Illés, Attila Melegh, p of 59

11 reform in 25 resulted in amending proposals concerning both the act on naturalisation and the act on the entry and stay of foreigners. Apart from procedural facilitation one of the most important parts of the amendment was the introduction of a preferential visa (the so-called national visa 6 ) that allows its holder to stay in Hungary for a maximum of five years. However, because of EU law it has not entitled the holder to work or study in the country. The basic purpose of this new visa was to ease the upkeep of relationships between Hungary and the ethnic Hungarians abroad. (As for the preferential regulations of the naturalisation procedure, individuals who have Hungarian ancestry could apply for Hungarian citizenship immediately after establishing permanent residence in Hungary, moreover not only individuals who gain a degree in Hungary would be exempt from having to take the citizenship exam, but also those who received education in Hungarian language outside of Hungary.) The accession of Romania (with the biggest ethnic Hungarian community consisting of around 1,5 million people) to the EU in 27 eased somewhat the pressure on Hungarian politics, but Ukraine and Serbia have still remained a major problem for the second round of joining the Schengen zone in December 27. The latest attempts of the Hungarian governments and legislation regarding these countries will be introduced in part IV through the case of Ukraine. II.1.2 The general legal framework of issuing visa The general legal framework of migration (and issuing visa) has largely been shaped by the harmonisation process and transposition of EU directives, the Schengen acquis and other relevant EU-law. In Hungary two new pieces of legislation entered into force on 1 July 27: Act I of 27 on the Entry and Residence of Persons with the Right of Free Movement and Residence and Act II of 27 on the Entry and Stay of Third-Country Nationals. These two pieces of legislation replaced Act XXXIX of 21 on Entry and Stay of Foreigners that was 6 Though it is a type D national visa, in the Hungarian terminology it is not the general definition of national visas for a period longer than three months in the Member States competence. 11 of 59

12 already passed as part of the harmonisation process. Beyond the directly applicable EU rules, the issuance of visas for third-country nationals falls within the scope of Act II of 27 and the governmental decree 7 implementing it. The regulation provides according to EU law separately the provisions for stays not exceeding three months within a six-month period and the provisions regarding a period longer than three months. Visas for stays not exceeding three months Unless otherwise prescribed for stays not exceeding three months, third-country nationals shall be in possession of a visa. The principal exceptions are nationals of states on the basis of Annex II regulation 539/21/EC ( white list ). Furthermore there are other Union law derogations from the visa requirement for the territory of all Member States 8 : a) Nationals of countries under visa obligation, who are holders of a local border traffic card issued by the Member States pursuant to relevant EC regulation 9, when these holders exercise their right within the context of the Local Border Traffic regime (in case of Hungary Ukrainian nationals see later in the first case study); b) School pupil having the nationality of a third country under visa obligation who resides in a Member State and is travelling in the EU in the context of a school excursion as a member of a group of school pupils accompanied by a teacher from the school in question; c) Persons recognised refugees and stateless persons and other persons who do not hold the nationality of any country who reside in a Member State for longer time and are holders of a travel document issued by that Member State can stay ninety days within 6 months period without possessing visa. d) Third-country nationals holding a residence permit issued by a Member State. Though they 7 Governmental Decree 114/27. (V.24.) on the implementation of Act II of 27 on the Entry and Stay of Third-Country Nationals. 8 For the purpose of the Visa Code the term "Member State" also refers to the associated states (Norway, Iceland, Liechtenstein and Switzerland) besides those EU Member States applying the Schengen acquis in full. 9 Regulation 1931/26/EC of the European Parliament and of the Council of 2 December 26 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention. 12 of 59

13 are not exempt as such from the visa requirement but their residence permit is considered as equivalent to a uniform visa. According to the Regulation 265/21 of the European Parliament and of the Council of 25 March 21 (amending the Convention Implementing the Schengen Agreement and Regulation 562/26/EC as regards movement of persons with a long-stay visa) a third-country national holding a long-stay visa (D) issued by a Member State should be allowed to travel to other Member States for three months in any six-month period, under the same conditions as the holder of a residence permit. e) Holders of diplomatic passports who are under the Visa Facilitation Agreements with certain third countries. According to Regulation 539/21/EC, Member States may individually exempt certain categories of nationals of the third countries normally subject to visa requirements. Hungary provides for visa exemption for the following categories: a) Third-country nationals who have been granted asylum or treatment as stateless persons and holding a travel document listed under Annex II of Regulation 539/21/EC. b) Third-country nationals who are the flight crew and attendants on emergency or rescue flights another helpers in the event of disaster or accident. c) Third-country nationals whose travel document was issued by the United Nations, the Council of Europe or the International Criminal Court. d) Civilian flight crew and attendants. e) Sea crew. f) The civilian crew of ships navigating in international inland waters. g) Certain third-country nationals according to bilateral partial visa waiver agreements in possession of diplomatic or service passport. The Schengen visas issued according to the Regulation 81/29/EC of the European Parliament and of the Council of 13 July 29 establishing a Community Code on Visas (Visa Code) may be uniform visas, meaning that they allow the holder to circulate in the entire territory of the Member States or visas with limited territorial validity, meaning that the 13 of 59

14 holder is only allowed to circulate in the territory of one/some Member State(s), or airport transit visas allowing the holder to transit through the international transit area of a Member State's airport(s). The issue of specific transit visa (the former type "B" visa) and the long stay visa concurrently valid as a short stay visa for the first three months of the validity of such a visa (the former type "D+C" visa) have been abolished with the application of the Visa Code as from 5 April 21. Visas of these categories issued before the Visa Code became applicable remain valid until their date of expiry. 1.) Airport transit visa (A): The airport transit visa authorises its bearer to enter the international zone of the airport and to remain there until the time of the departure of the flight to the destination country. Only nationals of the following states are obliged to apply for an airport transit visa: Afghanistan, Bangladesh, Democratic Republic of the Congo, Eritrea, Ethiopia, Ghana, Iran, Iraq, Nigeria, Pakistan, Somalia and Sri Lanka. The following categories of persons shall be exempt from the requirement to hold an airport transit visa: a) Holders of a valid uniform visa, national long-stay visa or residence permit issued by a Member State; b) Third-country nationals holding a valid visa issued by - Bulgaria, Cyprus, Romania, Liechtenstein, Ireland, United Kingdom; - Canada, Japan, United States of America; - or when they return from the above mentioned countries after having used the visa; The visa exemption for holders of valid visas issued by Bulgaria, Cyprus, Romania, Ireland, United Kingdom, Canada, Japan or the United States of America is independent of whether the holder is travelling to the visa issuing country or to another third country. If the thirdcountry citizen s visa issued by Bulgaria, Cyprus, Romania, Ireland, United Kingdom, Canada, Japan or the United States of America has expired and the citizen wants to travel 14 of 59

15 back from a country different from the visa issuing country, the citizen is not exempt from the requirements to hold an airport transit visa. c) Third-country nationals holding the valid residence permits issued by - Ireland, United Kingdom - Andorra, Canada, Japan, San Marino or the United States of America guaranteeing the holder s unconditional readmission; d) for family members of citizens of the Union effective under the 24/38/EEC irrespectively whether travelling alone, in attendance upon the citizen of the Union or for joining the citizen of the Union; e) Holders of diplomatic passports; f) Flight crew members who are nationals of a contracting Party to the Chicago Convention on International Civil Aviation. 2.) Short-stay uniform visa (C): The short-stay uniform visa authorises the bearer to a single, double or multiple entries and, in case of an uninterrupted stay, to a stay of maximum 9 days, while in case of an interrupted stay, to a stay of altogether maximum 9 days within the 6 months counted from the date of the first entry. Visas for stays longer than three months Act II of 27 distinguishes between three categories of visas for a validity period of longer than three months: a) visa for entitlement to receive a residence permit, for single entry in Hungary for the purpose of collecting the residence permit and for stay for a period not to exceed thirty days b) seasonal employment visa, for single or multiple entry and for employment for a period of longer than three months and maximum six months Immigration to Hungary is mainly a demand-driven, sub-regional labour migration, often based on seasonal or temporary employment. The seasonal employment visa serves this 15 of 59

16 phenomenon. c) national visa, for single or multiple entry and for stays in Hungary for a period of longer than three months under international agreement This type of visa is the manifestation of the above-mentioned special treatment of ethnic Hungarians. On the basis of bilateral treaties it can be issued for the purpose of Hungarian language practice, maintaining national cultural traditions, non-scholarly curricula or selfeducation or maintaining family and friendly contacts in Hungary. This renewable ethnic permit is valid for five years and intended to compensate those adversely affected by the termination of the visa-free regime due to accession and conformity with the Schengen acquis. II.2 Agreements with third countries Due to the EU visa policy, in principle, the unilateral decision of Member States to lift the visa requirement for the holders of diplomatic and service passports of countries who figure on the negative list, is practically the last competence remained at national level regarding (short-term) visa policy. Hungary has a broad system of international agreements regarding this issue (with among others India, Turkmenistan Tajikistan, Armenia, Azerbaijan, Panama, Kyrgyzstan, Kazakhstan, Mongolia, Ecuador). The latest agreement is from 29, and was concluded with Egypt. III. PRACTICAL IMPLEMENTATION AND ORGANISATION This section covers the practical implementation and organisation of visa policy and legislation during the three main stages (application stage; examination stage; entry, stay and exit) of the national visa procedure (including Type D visas). This section by no means wishes to examine the immigration conditions of Hungary, but rather identify some key elements examined during the stages of the visa process. At first the general procedure (as 16 of 59

17 less as possible regarding Schengen rules common to all Member States) and the authorities involved, then some characteristics of issuing visa as regards promoting legal and preventing illegal migration. III.1 General and specific procedure followed in the stages of the visa procedure 1 Short-term visas Visas for a validity period not exceeding three months shall be issued in accordance with the procedures and under the conditions set out in the Visa Code. The immigration proceedings for issuing short-term visas are conferred under the competence of: a) the competent consulate officer; b) the Office of Immigration and Nationality (OIN); c) the minister of interior; d) the minister of foreign affairs. Other (potential) actors are the Bureau of Constitutional Defence (the former National Security Agency, re-formed after the governmental changes in 21) and the Counter- Terrorism Center (existing as of September 21 with the aims of analysing and estimating the terror threat in Hungary; guarding the Prime Minister and the President; and dealing with acts of terrorism and kidnapping happened on the territory of Hungary). The duties conferred upon the central visa authority according to Schengen rules are discharged by the OIN. As a general Schengen rule, short-term visas are issued by the consular office in the place of residence of the applicant. Border posts do normally not issue visas, except for uncommon circumstances when because 1 This section contains the eligible information on national visa practices for admission of third-country nationals according to point of the specification as well. 17 of 59

18 of unforeseeable and imperative reasons it can be proved that there has not been any possibility to apply for a visa beforehand. It may only happen, if the applicant can verify that he/she was unable to take the visa in advance, beside these conditions are collectively granted: a) the applicant must satisfy the conditions of entry and stay; b) the applicant has to verify that he/she was not in competence to apply for a visa in advance; c) the applicant s return to the country of origin or residence or transit via a non-schengen state is certain. In these cases the Police shall forward the applications for short-term visas submitted at border crossing points by way of electronic means without delay to the OIN. The OIN shall promptly adopt a decision concerning the aforesaid applications, not to exceed three hours, and shall notify the applicant of its decision via the Police. If the application is approved, the visa for a validity period not exceeding three months shall be issued to the applicant by the Police. In case of refusal the legal remedy is conferred under the competence of the minister of interior within 5 days. Issuing visas for a validity period not exceeding three months to persons enjoying diplomatic immunity or some other privilege under international law, and their family members, visitors of members of international organisations and members of diplomatic and consular representations in Hungary, and to persons whose entry is desirable for political reasons falls within the competence of the minister of foreign affairs. The minister is also responsible for legal remedies when visa application is refused by a consular officer. In these cases an appeal may be lodged within 8 days and the minister shall consider it within 15 days. Furthermore the minister is responsible for legal remedies against the annulment or withdrawal of visas by consulates as well. In these cases an appeal may be lodged within 3 days and the minister shall consider it within 5 days. Prolongation of short-term visas and annulment or withdrawal of visas of third-country 18 of 59

19 nationals already staying in Hungary fall within the competency of the regional unit of the OIN according to the residence of the applicant in Hungary. The decision on prolongation shall immediately be made. In case of refusal by the regional unit, an appeal may be lodged within 3 days and the (central unit of) OIN shall consider it within 3 days. Appeals against the annulment or withdrawal of visas shall be considered by the (central unit of) OIN within 5 days. By way of exception to the general rules, the following visa applications shall be evaluated immediately, within a maximum of 1 days of receipt: - applications of minors and their accompanying legal guardians, if the substantiated purpose of travel is medical treatment for the minor; - visa applications of persons with custody of an unaccompanied minor who are arriving to escort the minor home; - applications for visas for a validity period not exceeding three months if the entry and stay of the applicant is desired on the grounds of substantial national interest of the Republic of Hungary in the field of economics, culture, science or sports. The minister of foreign affairs and the consulate officer, in cases falling within his/her competence, may request the opinion of the Bureau of Constitutional Defence and the Counter-Terrorism Center concerning applications for visas for a validity period not exceeding three months. The Bureau of Constitutional Defence and the Counter-Terrorism Center shall provide the afore-mentioned opinion a) within eight days in cases described above with exceptional evaluation deadline; b) within ten days in all other cases. Long-term visas The issuance of visas for entitlement to receive a residence permit and the preferential 19 of 59

20 national visas, as well as the withdrawal, invalidation, alteration, or prolongation of these documents, falls within the competency of the OIN and its regional units. The seasonal employment visa is issued by the consulates. Third-country nationals requesting entry to Hungary with a purpose of a long stay may submit a residence permit application without separate visa application at the consulates (Scenario 1: The visa is a prerequisite for obtaining a residence permit residence permit application in country of origin). The consular officer shall forward the application by way of electronic means without delay to the OIN. In case of successful application, the applicant will get automatically a visa authorising him/her to a single entry for receiving a residence permit and to stay for maximum 3 days in Hungary. The decision on the residence permit falls within the competence of the regional directorates of the OIN, however, the visa itself is issued by the consular officer. The legislation on residence permits eases the situation of visa-free third-country nationals and researchers, as they can submit the application for residence permit directly at the regional unit of the OIN, thus in the country (as an exception from the Hungarian general rule of Scenario 3: A residence permit can be obtained directly in the country of origin). Seasonal employment visa entitles the holder for single or multiple entry, and for employment for a longer than three months and maximum six months period. The validity of the visa is maximum one year. The applicant has to dispose a seasonal work permit issued by the competent labour center. The permit has to define the exact place and time of the seasonal work. In case of multiple employments, the seasonal employment permit has to define the detailed information of every employment. The decision regarding the seasonal employment visa application is made within 15 days. The preferential national visa may be applied for by third-country nationals who satisfy the general conditions of visa issuance and their purpose is - protection and enhancement of their Hungarian language skills; 2 of 59

21 - preservation of their national and cultural identity; - study and education with the exception of participation in state higher education; - strengthening the relationship with family members living in Hungary, with the exception of family reunification in Hungary. The decision on preferential national visa application is made within 15 days. Applications for seasonal employment visas and for preferential national visas may be submitted to consulates of Hungary, or at any other place authorised to accept such applications located in the country where the applicant's permanent or temporary residence is located, or in the applicant's country of origin. However, as exception to the general rule, applications for these types of visas may also be submitted at consular posts situated in a country other than those specified in above, or at any other place authorised to accept such applications located in a country where the applicant lawfully resides, provided that: a) Hungary does not have a consular post or another place authorised to accept such visa applications in the country according to the general rule; or b) the applicant is able to justify the reasons for submitting the application in a country other than where his/her permanent or temporary residence is located; or c) the entry and stay of the applicant is desired on the grounds of substantial national interest of the Republic of Hungary in the field of economics, culture, science or sports. The consulates forward both types of applications immediately to the OIN. The OIN shall request the opinion of the Bureau of Constitutional Defence and the Counter- Terrorism Center concerning applications for preferential national visas for reasons of public security and national security. The two authorities shall provide their opinion within ten days. The withdrawal of long-term visas falls within the competency of the regional unit of the OIN. 21 of 59

22 III. 2 Challenges and success factors for facilitating legal immigration To better understand the importance of the visa policy from the special ethnic perspective and focal point in Hungary, it is edifying what was pointed out in the study of Sándor Illés and Attila Melegh under the aegis of the Hungarian Europe Society. It describes how much easier the pre-schengen system was, and even the one in force between 24 (the year of the Hungarian EU-accession) and 27 than the one introduced after 21 December 27. The production and the acceptance of all the supporting documents (letter of invitation, workrelated papers) have been continuously hardened. The letter of invitation is a very good example quoted in the study as well. Before 25, a hand-written paper claiming that there was support for the applicant s journey was sufficient, meaning that people were able to write such letters without any difficulty. From the summer of 26 it had to be formulated by a notary in the form of an official document, the costs of which could go up as high as 25 thousand HUF (around 1 ). Nowadays these letters are to be issued by the OIN, costing less but requiring enormous efforts when certificates from employers, banks and the land registry are to be obtained. In this sense, it is rightly felt that the new system is far stricter. However, the prevailing ethnic wind is getting to change: Hungary has taken some significant steps which show other visa policy interests as well. The recently opened common visa application centers are definitely the manifestation of these kinds of new foreign policy interests towards especially external Eastern European territories and South-Eastern Europe. In Moldova s capital, Chisinau the Hungarian embassy established first among the Member States a Common Visa Application Center (CAC) in April 27 where Hungary issues visas on behalf of 14 Schengen states. Moldova, being a small state, has significant problems with foreign representations in Chisinau, as many EU member states do not have their own embassy in Moldova. This fact caused big difficulties for Moldovan citizens to get visas for certain states. In this context, the very first CAC established under the aegis of the Hungarian Embassy builds bridges to Europe and allows people to get visas in Chisinau, not being forced to travel either to Bucharest or Kiev for getting their visa. This kind of visa-cooperation is booming: in 29 Hungary established another common visa application centers in Istanbul, 22 of 59

23 representing Estonia and Slovenia. Furthermore, in Yekaterinburg (Russia) Hungary is representing Latvia, Finland, Austria, Slovenia and Denmark, while in Almaty (Kazakhstan) as of 3 June 211 Austria, Latvia, Slovenia and Slovakia. Apart from CACs, there are several other third countries where Hungary issues visa on behalf of other Schengen member states, especially Baltic countries. Looking at the statistics, it is clearly visible, that there has been a considerable decrease from 27 to 21 in the applications received by Hungary (and basically in all new Schengen members). In C type visa were issued, meanwhile in 21 only The decline is almost 6 %. This fact is particularly interesting since the visas issued by the new Schengen members, as Hungary, in some ways should have become more attractive after the full membership, as they became valid for the entire Schengen territory. This could make them a potential route to establish regular (or irregular) presence all over Europe, as entry into one of the new members would enable the holder to cross into a perhaps more attractive final destination in a Western EU country. There are several factors which could explain the huge fall in the number of applications. The global demand for travel might have dropped as a result of the global economical crises. This is suggested by the simultaneous decline in some of the other Member States, but is questioned by the increases in several other states (e.g. Germany) 11. At the time of the Schengen membership two measures also came into force to ease the flow of persons from the especially Eastern neighbouring countries: the possibility for visa-free local border traffic and the facilitation of visa-issuing. Both could work to lessen the demand for visas. The number of received applications, however, also dropped in countries not covered by these new instruments. This might partly be due to a general spike in the number of applications in the run up to the shift to Schengen. Third-country nationals tried to secure a 11 In Germany in 29: , meanwhile in 21: source: ( ) 23 of 59

24 visa valid at least for the national territories of the states, expecting procedures to be tightened. In some cases visas were also previously issued free of charge making it less of a cost to apply. The fact that Hungary is a transit country and not a target might imply that more non-ethnic Hungarian third-country nationals have turned to other Schengen state consulates. III.3 Visa procedures for the purpose of preventing irregular migration Hungary has a kind of good student attitude in relation to Schengen. As an interview with the head of the Consular Department of the Hungarian Ministry of Foreign Affairs at that time on the occasion of Hungary s one-year Schengen-membership quoted from the study of Sándor Illés and Attila Melegh shows: [The Schengen accession] was a great challenge [...] because we knew that all the former Member States especially Austria are keeping us under close scrutiny, which is completely understandable as even their countries security depends on the proper preparedness of the newly joined members, such as Hungary. We are pleased to announce that all these initial fears have been dissolved, including issues related to border control and organised crime [ ] Several Schengen member states have requested us and further requests are still coming in to issue visas for them at certain locations of foreign representation in third countries. This in itself shows that they find Hungarian visa issuing reliable. Before that, there had not been one occasion where Hungarians had contributed to legal abuse, fraud or counterfeit in the territory of other member states. [...] To summarise, I dare say that Hungary would have surely deserved the best school grade. 12 The result of this eager beaver attitude is manifested in extremely high refusal rates regarding some third-country nationals, fulfilling the requirements set by European countries with serious problems concerning illegal migrants (in contrast to average refusal 12 Hungary once again serving as the bastion of Europe - First anniversary of our Schengen accession. Interview of the Diplomata Magazin with Krisztina Berta, head of Consular Department of MFA. Available at ( ) 24 of 59

25 rates 3-4 % in the recent years sometimes going above 5% (Algeria 63.2%, Nigeria 51.4%) 13. The stricter Schengen character of visa policy was shown obviously beyond itself as well. An interviewee of the above-mentioned research project of the Hungarian Europe Society pointed out that some accompanying legislations, namely the change of the customs regulation between Ukraine and Hungary at the end of 25 came as a blow to the people living in the border region who literally lived from smuggling tobacco, petrol (the socalled gasoline tourists ) and other commodities. According to the interviewee, this could be a major factor in reducing border traffic and visa applications. The decline in this border region started from 97. people in 25 to 67. in 26, going down to a mere 45. in 27. The drop is clear and suggests a link with the gradual and continuous hardening of the customs and visa regulations. IV. COOPERATION WITH THIRD COUNTRIES: CASE STUDIES This section provides information on two case studies undertaken. The first case study is Ukraine, the second one is China. The case studies are of particular relevance to the overall aim of the study, i.e. exploring the (lack of) nexus between visa policy and migration management and control, showing the Janus face of Hungarian migration and visa policy. On the one hand, Ukraine is the clearest example of the Hungarian policy-making based on ethnic principles, focusing almost exclusively on the neighbouring countries (nexus). On the other hand, though Chinese migrants represent the biggest non-ethnic Hungarian community of third-country nationals in Hungary, there is absolutely no recognisable focus or vision of the Hungarian migration and visa policy on them (lack of nexus). 13 Sándor Illés, Attila Melegh, p of 59

26 IV.1 Case study I Ukraine Ukraine is a crystal-clear example how Hungarian migration and visa policy is based on ethnic principles, focusing almost exclusively on neighbouring countries. The visa policy in the view of the Hungarian-Ukrainian relations is totally characterised by the Hungarian diaspora in Ukraine. According to the Ukrainian census of 21, Hungarians in Ukraine number persons. Non-official sources estimate the current number even higher, around 18. persons. Hungarians are largely concentrated in the easternmost region, Zakarpattia Oblast, where they form the largest minority at 12.1% of the population. In the area along the border to Hungary, Hungarians form even the majority. 84% of the Hungarian population is concentrated close to the Hungarian-Ukrainian border, living within 2 km distance from it, 95% of this population lives within a 5 km distance. At the end of 21 there were Ukrainian nationals legally residing in Hungary. Zakarpattia was originally part of the Kingdom of Hungary and later the Austro- Hungarian Monarchy until the latter's demise at the end of World War I. Mainly due to its interest in the ethnic Hungarian population in Zakarpattia, Hungary was the first country to recognise Ukraine's independence in Since Romania s accession to the EU, Ukrainian migrants have been forming the biggest group of third-country nationals in Hungary. In relation to Ukraine, the Agreement on the facilitation of the issuance of visas between the European Community and Ukraine has been of utmost importance. The agreement entered into force on 1 January 28. Nevertheless, besides its positive elements (e.g. EUR 35 visa fee instead of EUR 6, visa fee waiver for broader categories, simplification of document requirements for justification of the visit s purpose, 1-day processing time instead of 15 days etc.), it is obviously a stricter regime than the former bilateral regime between Hungary and Ukraine. It was a visa free system till 23, than till Schengen free of charge visas were issued, without the obligation of an invitation letter. After the Schengen extension and the entry into force of the EC-Ukraine visa facilitation agreement, the number of applicants receiving free of charge visa at Hungarian consulates has been around 35%. 26 of 59

27 As the major achievement to counterbalance some of the negative effects of changes related to Schengen, a local border traffic agreement was signed with Ukraine in 27. It entered into force on 11 January 28, however, it has already been provisionally applied as from 15 December 27 (thus six days before Hungary s full Schengen membership). As it was the very first agreement negotiated by a Member State in accordance with the EU Local Border Traffic Regulation 14, Hungary s efforts and practice with regard to the local border traffic regime have been considered as an example for other Member States (and third countries) 15 implementing it as well. The Agreement covers persons having had permanent residence in the border area (5 km from the border the general rule is 3 km) for at least three years. The permit is valid for at least one year and not more than five years, but it cannot exceed the validity of the travel document. The fee of the permit is 2 Euros, except for disabled persons, pensioners, children under the age of 18 and dependent children under the age of 21. The permit entitles its holder for multiple entries and for a continuous stay of maximum three months in the border area within a six month period, in particular for social, cultural or family reasons, or substantiated economic reasons that are not considered moneymaking activities according to national regulations. The annexes of the agreement contain the list of settlements in both the Hungarian (244 localities including Nyíregyháza) and Ukrainian border region (382 localities including the easternmost part of Zakarpathia Oblast with Uzhgorod, Beregovo, Munkacevo); the lists of documents required for proving permanent residence in the border area; the competent consular authorities 16 who can receive applications and issue permits (Hungarian Consulate General in Uzhgorod and Hungarian Consulate in Beregovo, and the Ukrainian Consulate General in Nyíregyháza) and the penalties that may be imposed by the Contracting States as determined by their national laws. The regime established by the agreement has not caused serious security risks in the 14 Regulation 1931/26/EC of the European Parliament and of the Council laying down rules on local border traffic at the external land borders of the Member States. 15 Till the end of 21, three other agreements entered into force: between Slovakia-Ukraine in September 28, Poland-Ukraine in July 29 and Romania-Moldova in October Hungary has three consulates in Ukraine: in Kyiv and in the border area in Uzhgorod and in Beregovo; these latter two issue local border traffic permit. 27 of 59