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This chapter focuses on the link between the rule of law and migration in the poisonous context of democratic decay and rule of law backsliding in the EU. The analysis draws on the Hungarian case study, where overall institutional changes introduced since 2010 have led to the establishment of a regime described as ‘illiberal’ and as ‘authoritarian’. The chapter argues that Hungarian asylum policy is essentially designed with one key goal in mind: to deprive people of the right to seek asylum in breach of the international obligations of Hungary and of EU law. This is a direct result of a broader process of rule of law backsliding. The Hungarian case study proves that unresolved issues of rule of law backsliding in some EU Member States affects both the practical implementation of EU basic values (e.g., solidarity) and the proper functioning of EU policies (e.g., asylum policy). The chapter’s conclusion is that the rule of law is not secured sufficiently, either in the EU or by the EU, causing all concerned to lose face.
The effects of populist narratives have become an increasingly important topic on the European Union (EU) agenda, both political and juridical, because no EU Member State is immune from populist movements, which are ever-popular.1 The last decade demonstrated that domestic constitutional populism has the ability to affect the supranational political entity in myriad ways.2 The rule of law – a fundamental EU value,3 first assumed politically,4 then proclaimed judicially,5 and, finally, codified in the Treaties to initially uncertain effects,6 – became a proxy: graduating into the interface between the populism-affecting domestic constitutional arrangements and the EU legal order.7 The inept reaction of the EU institutions to the rule of law crisis in Member States (Poland and Hungary in particular), ‘illiberalism within’,8 suggests that the constitutional populism undermined the foundations and effectiveness of the EU rule of law. Worse still – the developments over the last decade highlight the fact that the EU might be drifting away from its proclaimed foundations of democracy, rule of law and human rights protection: its very raison d’être stands undermined. Indeed, the added value of the Union as a tool to empower ‘autocratic legalism’,9 uniting states engaged in ‘ruling by cheating’,10 as opposed to a club of rule of law-abiding democracies, is unclear. One thing is certain, however: such a Union cannot have any future.
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