The United States government’s decision to modify the Electronic System for Travel Authorization (ESTA) validity for Hungarian passport holders, making it more difficult for Hungarian travellers to enter the US, has reverberated globally. Not long after the Hungarian government’s initial claims of a political motivation behind this change, a recent lawsuit in the US appears to confirm that the changes—affecting only Hungary of the 40 participating nations in the Visa Waiver Programme—indeed lack proper justification.
Judicial Watch’s FOIA Request and Complaint
Judicial Watch, an American non-profit organization committed to upholding accountability and integrity in law, politics, and government, has filed a Freedom of Information Act (FOIA) lawsuit against the US Department of State. This action was prompted by the Department of State’s failure to respond to Judicial Watch’s FOIA request, submitted on 8 August 2023, concerning the eligibility of Hungarian citizens for the American Visa Waiver Programme (VWP).
The reluctance of the DoS to disclose files related to the ESTA changes casts doubts on the transparency of the decision-making process.
Judicial Watch’s request was to be shared all documents pertaining to the modification of Hungarian citizens’ eligibility for the VWP, effective 1 August 2023. The files requested include records related to the decision-making process and any communication between Department of State officials and external entities on this matter:
According to the complaint that Judicial Watch has lodged, the organization has asked for ‘all records reviewed, referenced, or relied upon in making the determination to implement the modifications, as well as all related records of communication between any official or employee of the Department of State and any other individual or entity’.
Judicial Watch decided to sue because as of 5 October 2023, the State Department had not made a determination to comply with the request, nor had it notified Judicial Watch of any such decision or the reasons for it. The Department also failed to inform Judicial Watch of their right to appeal any adverse determinations or produce the requested records. Furthermore, the State Department did not demonstrate that the requested records are exempt from production.
The Modification and Reactions
The modification in question impacts the validity of ESTA for Hungarian passport holders. Before this change, Hungarians could enjoy a two-year validity period for their ESTA, allowing multiple entries into the United States. However, the new policy restricts the ESTA validity to just one year and single-use. Importantly, Hungary is the only country among the 40 participating in the American Visa Waiver Program affected by this adjustment.
The US Department of State explained its decision on its website by citing ‘vulnerabilities’ linked to Hungary’s granting of citizenship to ‘nearly one million people’ from neighbouring countries between 2011 and 2020. As a result of the alleged inaction of the Hungarian government to meet the security requirements of the VWP, the validity of ESTA visa waivers for Hungarian passport holders is now limited to one year and a single use.
The Hungarian Ministry of the Interior responded to the change by refusing to provide the requested data on dual-citizen Hungarians residing in neighbouring countries, citing concerns for their security. This has led to allegations that the modification may be politically motivated and viewed as retaliation against Hungary. The Hungarian government claims that
the Biden administration’s demand for this data is an attempt to take revenge on Hungary.
Additionally, Judicial Watch President Tom Fitton suggested that the modification could have political motives. Fitton argues that the Biden administration’s decision to alter Hungary’s Visa Waiver eligibility might be a response to Hungary’s conservative Prime Minister Viktor Orbán’s policies.
The Department of State’s failure to respond to Judicial Watch’s FOIA request has only aggravated existing concerns about the potential political motivation behind the Visa Waiver changes. The Judicial Watch lawsuit underscores the necessity for transparency and accountability in government decisions that could impact international relations and diplomatic relations. As the legal proceedings progress, questions about the actual reasons for the changes to Hungary’s Visa Waiver Programme persist, and the suspicions of the retaliatory nature of the move remain a significant element of the discussion.