Fencing is piled up at the Hungarian-Serbian border. | EPA Hungary builds fence, Commission watches and waits A spike in refugee crossings prompted the barrier, drawing criticism from the EU.

The European Commission is frowning on Hungary’s project to build a fence on its border with Serbia to quell a spike in refugee crossings, but doesn't plan to stop it.

A day after Hungary broke ground on its controversial barrier, a Commission spokesman responded that it does “not promote the use of fences” and “we have only recently taken down walls in Europe, we should not be putting them up.”

The spokesperson said that as long as EU money is not used, no EU or international laws are broken and the asylum seekers' human rights are respected, “member states have the responsibility to manage their borders and it is up to them to identify the measures to be put in place to make sure EU borders are secure.”

That's exactly Hungary's rationale for the fence-building.

More than 75,000 asylum seekers have entered Hungary so far this year, far exceeding last year’s total of 42,000. The Office of the United Nations High Commissioner for Refugees is expecting more than 100,000 migrants to seek asylum in Hungary by the end of the year.

However, according to the Commission, “any measure taken by EU member states to manage their borders and to deal with migratory flows have to be fully in line with EU laws and international obligations, including respect of migrants' human rights and respect of the principle of non-refoulement in the case of people who need international protection.”

UNHCR and Amnesty International fear that the fence project may very well violate international law, in particular the principle of non-refoulement, which says a country cannot turn away refugees who arrive on its territory seeking asylum. It is explicitly outlined in many international conventions, including the 1951 Convention Relating to the Status of Refugees, a binding international treaty ratified by Hungary in 1989.

Ernő Simon, spokesperson of the UNHCR in Hungary, said his “concern is that the fence may lead to a situation which makes it impossible for asylum seekers to use their basic human right to seek asylum.”

While the UNHCR “does acknowledge every country has the right to protect its borders,” the fence “must not turn into an obstacle for asylum seekers,” Simon said.

Amnesty International agrees.

Refugees arriving in Hungary have “clear asylum claims,” director of the Brussels office of Iverna McGowan said, calling the fence project “symbolic of European fortress approach” and that “indiscriminate border management measures, such as fences, may prevent refugees from accessing the territory of a country to seek international protection and as such may lead to refoulement.”

However, she also acknowledged that the “pressure on front line member states is unsustainable.”

Hungary has overtaken Italy and Greece as a favored destination for migrants fleeing prosecution from the Middle-East and Africa, according to Eurostat figures published earlier this month.

But while “hotspots,” organized locations where EU officials register migrants, have been put in place in Italy and Greece, there are none in Hungary so far.

The Commission told POLITICO it has offered the possibility of sending hotspot teams to Hungary.

While the Commission denied any EU funding was being used, a plan to allocate €2.4 million in emergency funding is under examination by Commission. While Hungary's proposal does not contain any mention of the fence, doubts over how it will be used if approved will certainly arise.

A Hungarian government spokesperson declined comment, saying that it would release details Thursday.

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