The Policing Effects of Rules and Regulations Concerning Foreigners
of persons, the foreigners, and, to a certain extent, to other persons (landlords, transporters, employers); border policing, on the other hand, is related to specific locations, that is the state border, the border area and the border crossing points open to international traffic.
Alien policing
On this basis, the definition of policing, the administration of entry and stay of foreigners can only be of the policing type if it is justified by the unlawful conduct of the person of foreign nationality. From this perspective, alien policing must sharply be separated from legislation necessary to justice because voluntary compliance is not enough in itself. Check-ing the conditions of entry, issuCheck-ing certain travel, stay or residence permits refers to the non-policing aspects of administrative alien law, therefore, it would be justified to call such procedures alien law administration or foreigners administration. In addition to procedures granting certain permits, the provisions on administrative issues related to citizenship rights and asylum rights may also constitute a part of alien law administration.
Conducting alien policing procedures, taking alien policing measures, or using coercive measures can be relevant if the alien law does not apply without any fault due to the subject (foreigner) of the particular legal relations. Alien policing as an area of law enforcement carried out by the authorities can only occur in relation to the foreigner’s border crossing (basically entry) and/or stay, by committing unlawful activities or creating unlawful sit-uations. Alien policing as an activity of the authorities has an impact on illegal migration routes, by its efficiency indicators it can directly influence the propensity to commit unlawful activities related to entry and stay occurring in the area of the given country.6
We can talk about exclusively alien policing measures or procedures if the unlawful activity basically happens in order to facilitate illegal entry or unlawful stay. Alien policing has a supporting role if the foreigner’s stay in Hungary is to be terminated and excluded, because the person due to a valid court decision in criminal matter has become persona non grata. In such case punitive, and not administrative, sanctions must be imposed against the foreigner with the purpose that the person not having a Hungarian citizenship, accountable for the crimes committed could officially be restrained from the territory of Hungary.
In alien policing there is competence to apply measures or coercive measures against foreigners either at the state border as a part of checks, or in the territory of the state that is checks in the area of free movement. The purpose of such checks is to terminate the un-lawful situation (ordering return, holding, expulsion and deportation) occurring as a result of the entry or stay of the foreign person by violating the rules of entry and stay, or the temporary restriction on personal freedom (applying alien policing custody) in order to ensure the conditions of such termination at a later date.
At the state border alien policing is carried out together with checks by refusing entry and ordering return in cases of non-citizens, mainly third-country national aliens not having the conditions to enter. The interest of alien policing in this special case, in a particular way, prevails over the interest of criminal procedure, since no investigation can be initiated
6 See Balázs László (2017): Az idegenrendészeti hatóság tevékenysége rendkívüli migrációs helyzetben. Belügyi Szemle, Vol. 65, No. 2. 5.
as regards counterfeiting of authentic instruments, provided that no other crime has been committed, if the foreigner uses a false, counterfeit document or uses a genuine travel doc-ument issued on another person’s name to enter the territory of the country.7
The law and order functions of alien policing (preventive and restorative) arise in cases when the prevention of the unlawful situation cannot be carried out by border checks.
Checks in the area of free movement no longer serves the purpose of making decisions about foreigners’ entry, but rather to establish the legality of their stay. In case of suspicion of unlawful stay, as policing measures restricting personal freedom, the following can be applied: alien policing arrest, holding for unknown identification and citizenship, and custo-dy for the preparation of expulsion or deportation, or alien policing custocusto-dy. Restricting the personal freedom for a predetermined period by alien policing, however, is not of punitive nature, its policing significance lays that the expulsion of the foreigner unlawfully staying, not applying for asylum or not deserving any asylum could be successful. These measures, due to the restriction of personal freedom, are under strict legal control, each authority decision is subject to judicial review and appeal.
Law enforcement activities closely related to alien policing, such as classic law en-forcement that can hardly be distinguished from alien policing by its features, have been found to exist these days in asylum affairs, too. It is present specifically in asylum custody and its replacement measures, which, on the one hand must be separated from alien policing custody, due to their purpose and function,8 on the other hand, they, in their nature, can be interpreted as measures of the similar kind as they involve applying policing rules con-cerning foreigners. The strengthening of the policing feature of asylum affairs can be seen from those measures that may insist on having the assessment of the asylum applications to a designated location (hot spot, transit zone, etc.), thus they require the asylum seeker to stay at those locations. The above-mentioned metamorphosis of asylum affairs into law enforcement is a sort of response from the authorities to individual attempts whose goal is to avoid law enforcement carried out by the alien policing authorities due to unlawful entry or stay regarding the asylum application submitted in the absence of a genuine reason for leaving. As a result of this phenomenon, a part of the asylum seekers have limited rights related to asylum (access and right to stay), because the state competent to assess asylum applications keeps striving for identifying ways how asylum procedures should focus on matters brought forth by applicants requiring international protection.
Measures as the result of rescission, or in some countries withdrawal of citizenship may have alien policing consequences. In case of the latter, one should not primarily consider the restoration of the pre-existing situation by withdrawing the fraudulently obtained citi-zenship, but rather measures that enable the authorities to withdraw ex lege the citiciti-zenship, without the person’s explicit request or consent, of persons that have committed serious criminal acts (especially terrorism-related ones). The withdrawal of citizenship is not pro-hibited by international law, the prohibition of the arbitrary withdrawal of citizenship must apply in all cases, which prohibition includes the avoidance of statelessness, the prohibition of discrimination, the principles of necessity, reasonableness and proportionality, the
prin-7 Section 170, subsection (6) of Act XIX of 1998 on Criminal Proceedings.
8 Klenner Zoltán (2013): A menekültügyi őrizet és bevezetésének szükségessége. Pécs, Pécsi Határőr Tu-dományos Közlemények XIV. 297.
ciple of legality, having legitimate objective and respecting the procedural guarantees.9 The measures mentioned hereby are not taken against the foreigner but rather the creation of a foreign status, such reaching the possibility to conduct further alien policing procedures.
Border policing
Contrary to alien policing, border policing, as mentioned above, is not related to a well- defined group of persons, but rather to specific locations, that is the state border and its surroundings, the border area. The basis of the border policing activities is the border order.
This order established and maintained along the state border is a desired and mutually beneficial condition in which national interests regarding both neighbouring countries can mutually be enforced.10 As a result, policing activities related to state border cannot be linked to border protection. The latter basically refers to defence activities that are related to the areas of military art.11 Border protection in Hungary stems from the constitutional obligation that the fundamental task of the Hungarian Defence Forces, as the national de-fence force of Hungary, is to protect the independence, territorial integrity and state borders by military protection.12 Thus border protection refers to the military protection of the state borders, while border policing refers to the protection of the sate border order, which is the constitutional obligation of the Police.13
In accordance with the Act on Police, this organization provides surveillance at the state border, it prevents, reconnoitres, disrupts the unlawful crossing of the state border, checks the passenger and vehicle traffic crossing the state border, maintains order at the border crossing points, operates the road-crossing points and manages the tasks to maintain and improve them. This organization guides the activities of the Hungarian authorities tasked with inspecting border events, it supervises the works surveying and marking the state border, upgrading the border markers, it takes the necessary measures to handle the conflicts directly threatening the order of the state border or the conflicts arising from mass migration, furthermore it eliminates violent acts directed against the order of the state border.14
Neither the act on the police interprets the order of the state border, nor does the Hungarian criminal law interpret certain crimes related to the order of the state border.
Regarding the latter idea, Sándor Madai prefers if the legislative power defines the protec-tion of the order of crossing the state border and the order of border traffic stipulated in the
9 Lőrincz Aranka (2015): Az állampolgársági jog válasza a terrorizmusra. In Hautzinger Zoltán szerk.:
Migráció és rendészet. Budapest, Magyar Rendészettudományi Társaság, Migrációs Tagozat. 119.
10 Varga János – Verhóczki János (2013): Határrendészet. Budapest, Nemzeti Közszolgálati Egyetem, Rendészettudományi Kar. 31.
11 Suba János (2017): Határvédelem a második világháború időszakában, 1938–1944. In Pósán László – Veszprémy László – Boda József – Isaszegi János: Őrzők, vigyázzatok a határra! Budapest, Zrínyi Kiadó.
537.
12 See Section 45, subsection (1) of the Fundamental Law of Hungary.
13 “The core duties of the police shall be the prevention and investigation of criminal offences, and the protection of public security, public order, and the order of state borders.” See Section 46 of The Fundamental Law of Hungary.
14 Section 1, subsection (2) points 9–13) of Act XXXIV of 1994 on the Police.
relevant legislation.15 Activities by the authorities related to the before-mentioned serves as the basis of border policing, which concept, as viewed by József Beregnyei, can be approxi-mated to border surveillance,16 while in accordance with the definition by Gergely Virányi, it goes beyond border surveillance and may include certain state activities which can be integrated into the mission of several authorities, and which can direct towards establishing and maintaining the border order, the prevention of border order disturbances, as well as towards interrupting the behaviour directly disrupting the border order and the restoration of the disrupted border order – or its defence, if need be.17 Gábor Kovács describes border policing as a legal category, a system of activities and an organization, which can on the whole be related to border surveillance and other activities (criminal investigation and alien policing).18
Relating to the referred concepts, it must be mentioned that border policing, as a part of law enforcement, can indeed be related to border control and border order, but it cannot include other independent branches of policing, it can only be linked to them. Law enforce-ment activities in criminal matters related to the state border or separating alien policing from border policing, however, do not mean that border policing cannot be an instrument when authorities handle migration issues. Moreover, border policing in consideration of the two faces of migration goes beyond alien policing when it comes to checking migration issues, since its personal scope includes everyone, regardless of their citizenship, who crosses (inwards or outwards) the state border at the designated border crossing. Nevertheless, only those safety rules and models can be related to border policing which can be applied at the state border.
Although authority measures launched due to managing migration far from the state borders and the border areas are fit by many19 into the integrated border management or border control systems, these measures, due to their characteristics of checking foreigners, are not border policing but rather alien policing ones by their nature. Another matter is that behind using the terminology border policing there may be organizational reasons, by designating authorities to carry out alien policing checks in the area of free movement, which authorities otherwise carry out their main tasks at the state border as border policing (border control, border safety) authorities.
15 Madai Sándor (2016): A „tömeges bevándorlás okozta válsághelyzet” kezelésének büntető anyagi jogi esz-közei hazánkban. In Hautzinger Zoltán szerk.: A migráció bűnügyi hatásai. Budapest, Magyar Rendészet-tudományi Társaság, Migrációs Tagozat. 248.
16 Beregnyei József (2012): Rendészet, rendvédelem értelmezése, viszonya és kapcsolata a Határőrséghez. Pécs, Pécsi Határőr Tudományos Közlemények I. 30.
17 Virányi Gergely (2012): Gondolatok a rendészettudományhoz. Pécs, Pécsi Határőr Tudományos Közlemények I. 63.
18 Kovács Gábor (2012): A rendészet, határrendészet értelmezése a határőrségi csapaterő feladat- és tevékeny-ségrendszerében. Pécs, Pécsi Határőr Tudományos Közlemények I. 92.
19 For more details, see Varga János (2008): A schengeni eszme uniós biztonsági rendszerré válásának kitel-jesedése és távlatai. In Postavenie Schengenkého acquis v systéme politik Európskych spoločenstiev. Zborník z medzinárodnej vedeckej konferencie. Bratislava, Akadémia Policajného zboru v Bratislave. 80.