On 22 September 2017, the Greek Council of State, the highest administrative court of the country, delivered two long-awaited judgments (2347/2017 and 2348/2017). The rulings concern actions for annulment brought against: three Ministerial Decisions regulating the Independent Appeals Committees as second-instance asylum authorities following the 2016 asylum reforms; and Decision 4159/2016 of the Third Independent Appeals Committee of 8 September 2016, upholding the rejection by the Regional Asylum Office of Lesvos of an asylum application of a Syrian national as inadmissible on the basis that Turkey was a “safe third country” in his case.
The latter issue is closely connected to the overhaul of the Greek asylum procedure following the EU-Turkey statement of 18 March 2016. Greece introduced a fast-track border procedure through Law (L) 4375/2016 on 3 April 2016, which it applies to newly arrived asylum seekers remaining in Reception and Identification Centres on the Eastern Aegean islands to examine among others the applicability of the “safe third country” concept vis-à-vis Turkey in their case.
The following sections briefly summarise the reasoning of the court in relation to: (1) the legality of the fast-track border procedure, including the involvement of the European Asylum Support Office (EASO); and (2) the interpretation of the “safe third country” concept.
The legality of the fast-track border procedure
Paras 27-29: The Council of State recalled the possibility under Article 43 of the recast Asylum Procedures Directive to examine the admissibility and – under the grounds for accelerated procedure foreseen in its Article 31(8) subject to “reasonable” deadlines – the substance of asylum applications in a border procedure. This provision was transposed by Article 60 L 4375/2016, as amended by Article 86(13) L 4399/2016. Further, Article 80(26) L 4375/2016, as originally applicable, foresaw that the fast-track border procedure applicable in cases of large number of arrivals under Article 60(4) may be applied upon publication of the law and that its duration of validity may not exceed six months and may be prolonged by Ministerial Decision for a period of three more months. With the provision of Article 86(20) L 4399/2016, the aforementioned deadlines were set at twelve and six months respectively.
Para 30: The Court therefore reasoned that the intention of the legislature, considering the relevant circumstances, was to apply the fast-track border procedure without requiring a prior adoption of a Ministerial Decision or an EU Council Decision to determine the existence of a “mass influx”. It added that the exemption of vulnerable groups from that procedure was justified by their individual situation. The exemption of Dublin family cases was also found not to be arbitrary.
The involvement of EASO in the procedure
Para 33: As regards the legality of the involvement of the EASO “expert” in the conduct of the interview and the drafting of the transcript and “concluding observations” in English, the Council of State found that Article 60(4)(b) L 4375/2016 constitutes a special provision compared to the general rule in Article 2(7) of the same law, which permits the delegation of individual tasks of the Regional Asylum Office with the exception of duties “constituting the exercise of public power” such as the “conduct of interviews”.
The Court also cited provisions of the recast Asylum Procedures Directive, which enable a Member State to “provide that the personnel of another authority be temporarily involved in conducting such interviews” under Article 14(1) and to provide that “the personnel of authorities other than the determining authority conduct the personal interview on the admissibility of the application” under Article 34(2), in cases where a large number of asylum applications makes it impossible for the asylum authority to conduct interviews in a timely manner, to suggest that the delegation of such public powers by the state to officials of an EU agency is foreseen by the Directive.
The Court added that the EASO Regulation establishes EASO with the aim inter alia of providing “operational support”, including “technical support… as regards the examination and management of asylum files” to Member States whose systems face particular pressure, and is therefore compatible with the delegation of powers to conduct interviews. Accordingly, it concluded that the conduct of the interview by an EASO “expert” was not contrary to Greek law or to the EASO Regulation.
Further, the Council of State rejected the argument that the procedure was marred by other procedural irregularities such as the fact that the transcript of the interview and the “concluding observations” of the EASO “expert” were written in English and not in Greek. It deemed the use of English justified by the delegation of relevant duties to EASO staff. It also ruled that the applicant had not suffered harm by this, as it was not demonstrated that the rejection of his application did not result from a mistaken assessment of statements during the interview, questions submitted and the aforementioned “concluding observations” due to insufficient understanding of the English language on the part of the officer issuing the first-instance rejection decision and the members of the Appeals Committee examining the case; the Court added that the members of Appeals Committees are selected on condition of good or very good knowledge of English, according to Article 5(3) L 4375/2016.
The burden of proof for exemption from the fast-track border procedure
Para 33: The Council of State held that no illegality arose from the authorities’ failure to exempt the applicant from the border procedure pursuant to Article 60(4)(f) L 4375/2016 on the ground that the applicant had the burden of proof to establish the applicability of the exemption for reasons of family reunification or vulnerability. The applicant stated during the interview that he had relatives (cousins) in other Member States (Malta, Germany), without however demonstrating that there were grounds for his exemption from the procedure on the basis of Articles 8-11 of the Dublin III Regulation, and did not put forward specific statements which would justify his inclusion in the category of vulnerable groups. As a result, the argument that there were irregularities in the procedure on the basis that no relevant questions were asked during the interview was deemed unfounded.
The right to be heard before the Appeals Committee
Para 34: The Council of State also examined the alleged violation of the right to be heard and the right to an effective remedy, on the ground that the applicant was not summoned to an oral hearing by the Appeals Committee despite the complexity and gaps of the procedure, and his prior request for a hearing. The argument was also dismissed, finding that the obligation to hear the applicant under Article 14(1) of the recast Asylum Procedures Directive binds the asylum authority at first instance but does not apply to appeal procedures. The Court added that Article 46 of the Directive, read in the light of Article 47 of the EU Charter of Fundamental Rights, does not preclude a court or tribunal from rejecting an application as inadmissible at second instance without hearing the applicant, when the facts leave no doubt as to the well-foundedness of the first instance decision, on condition: (a) that the appellant has had the opportunity of a personal interview at first instance and that the transcript of that interview is included in the case file on the one hand; and (b) that the authority may request a hearing if deemed necessary to exercise its functions. These conditions were deemed to be met in the present case.
The concept of “safe third country”
Para 44: The Council of State agreed with the Appeals Committee that the applicant’s claim was dismissed as inadmissible on the basis of the “safe third country” concept and not the EU-Turkey statement of 18 March 2016. The Appeals Committee had found that the EU-Turkey statement is “legally binding and valid, however the legal consequence of its implementation… is not the rejection of applications for international protection filed, as alleged by the applicant, but the return of applicants, whose applications for international protection have been rejected by the Greek authorities following an individual assessment and in application of European asylum rules and domestic law, to Turkey…”
The evidence assessed
Para 45: In its assessment, the Appeals Committee took into consideration the following letters:
Letter of the Permanent Representative of Turkey to the EU to the Director-General for DG Migration and Home Affairs of the European Commission of 12 April 2016, where the former assured that Syrians returning to Turkey from Greece will have access to temporary protection;
Letter of the Permanent Representative of Turkey to the EU of 24 April 2016, concerning foreigners of other nationalities;
Letter of the Director-General of DG Migration and Home Affairs of the European Commission to the Greek authorities of 5 May 2016, which contains “views” with a view to facilitating the implementation of the statement of 18 March 2016 and mentions, inter alia, that the concept of “safe third country” may be applied vis-à-vis Turkey;
Letter of the Commissioner for Migration to the Alternate Minister for Migration of 29 July 2016, in which the Commissioner stated that despite the attempted coup d’état of 15 July 2016 the Turkish assurances remain valid;
Letter of UNHCR to the Greek authorities of 4 May 2016 which noted that Syrians returning to Turkey from Greece will prima facie have access to temporary protection, based on the Turkish Ambassador’s assurances;
Letter of UNHCR of 9 June 2016, according to which “18 Syrians have returned voluntarily until now, following the return procedures as implemented by the Greek authorities in application of the EU-Turkey statement of 18 March 2016. UNHCR has conducted three visits to the reception centre of Duzici, where Syrians returning from Greece will complete pre-registration procedures. UNHCR assures that 2 of them have left following their arrival to be reunited with their families in Lebanon, 9 decided to voluntarily return to Syria (voluntary character of return was monitored by UNHCR) and 7 completed pre-registration procedures and were reunited with their families in three provinces of Turkey. The latter were invited to complete the registration process at provincial level. Therefore, UNHCR cannot confirm that the 7 persons have already obtained temporary protection.”
The Appeals Committee deemed that particularly the letters of the Turkish Ambassador, the content of which is confirmed by the remaining letters and other available sources (websites of media outlets), constituted “diplomatic assurances” of particular evidentiary value.
Para 46: The Court also dismissed the applicant’s submission that the content of the letters was unlawfully not disclosed to him during the examination of his application so as to enable him to rebut them, since the applicant, both in the first-instance interview and in the appeal, had expressed his views regarding the situation prevailing in Turkey and the policy of the Turkish Government vis-à-vis Syrians who seek protection there, which were the matters referred to in the letters of the Turkish Ambassador.
The dissenting opinion (1 judge)
The dissenting judgment in para 60 sharply criticises the reliance on the aforementioned sources to substantiate the safety criteria in the case of Turkey. It highlighted that:
It is a fact known to all that in the past years and particularly in 2016 in Turkey, both before and after the failed coup of 15 July 2016, prevails a regime, in which fundamental rights and liberties are openly violated, judicial independence has been dismantled, where freedom of speech and press are not applied and guarantees of rule of law are not applied to those opposing the regime;
The assurances of the diplomatic authorities of this country, forming part of the hierarchy of said regime, have no credibility. This is valid when both the Directive and Greek law do not refer to any protection status, but require the highest possible protection status (“in accordance with the Geneva Convention”) to be guaranteed, as seen below;
What matters is not the protective legislation of a country, but whether and how that is implemented in practice. This is generally valid and in fact in every case, when it comes to a country like Turkey, where the rule of law has been dismantled. Therefore the sole mention and presentation of relevant Turkish legislation, without parallel investigation, through collection of evidence from published reports of independent consular authorities, journalists and independent non-governmental organisations, on the way this legislation is actually applied, could not support the judgment of the Appeals Committee;
The sole reference by the Appeals Committee to the letter of 9 June 2016 of UNHCR, which refers only to one case of a group of 18 refugees from Syria, more than half of which decided to leave Turkey and return to their country, could not support its conclusion.
Article 38(1)(a) of the Directive: threat to life or freedom
Paras 47-49: The Court agreed with the Appeals Committee which found there to be no threat to the applicant’s life or freedom for reasons related to his Syrian origin and that the incidents of violence occurring during his attempt to enter Turkey from Syria do not give rise to a risk for his life, also in view of his stay in the country for 1.5 months without any problems with the authorities. In relation to the general situation in Turkey following the attempted coup of 15 July 2016, it relied on the Committee’s view that the available information, namely the letter of the EU Commissioner of 29 July 2016, suggested no change in the protection offered by Turkey. It also found that the applicant had failed to demonstrate that he would be individually targeted.
Article 38(1)(b) of the Directive: serious harm
Para 51: The Council of State agreed with the Appeals Committee that the allegations of Turkey’s practice of administrative detention of Syrians returning from Greece were unsubstantiated. It also rejected an argument raising the risk of a violation of Article 3 ECHR on account of detention and living conditions in the country, on the ground that this assessment falls outside the competence of the Appeals Committee insofar as it does not concern the grant of international protection. It added that Greek legislation does not present protection gaps in this regard, as the law in any case prohibits deportation in cases where removal would infringe upon Article 3 ECHR.
Article 38(1)(c)-(d) of the Directive: non-refoulement
Para 53: The position that Turkey does not respect the principle of non-refoulement in practice was also dismissed as unfounded, relying on one hand on the large number – 2.75 million – of Syrian refugees in Turkey, and on the other on the diplomatic assurances provided in the letters of the Turkish Ambassador. The Court also reiterated that the applicant, during his 1.5-month stay “without any problem” in Turkey, had been detained by the authorities and released afterwards.
Article 38(1)(e) of the Directive: possibility to seek refugee status and to receive protection “in accordance with the Geneva Convention”
Para 54: The Council of State interpreted the concept of “protection in accordance with the Geneva Convention” as not requiring the third country to have ratified the Geneva Convention, and in fact without geographical limitation, or to have adopted a protection system which guarantees all the rights foreseen in that Convention. This reading was made through a juxtaposition of the “safe third country” concept (Article 38, transposed by Article 56 L 4375/2016) with the “European safe third country” concept (Article 39, not transposed in Greek law) which expressly requires the third country to: (a) have ratified and respect the provisions of the Geneva Convention without geographical limitation; (b) apply an asylum procedure prescribed by legislation; and (c) have ratified the ECHR and respect its provisions, including the rules on effective remedy.
The Court further explained that the Geneva Convention does not foresee uniform protection of all persons falling within its scope since, on the one hand its rights are differentiated depending on the degree of connection of refugees with the host countries, and on the other hand most of the rights foreseen may be restricted by way of reservations upon signature, ratification or accession to that Convention. Therefore, for the Court, in order for a third country to be considered as safe under Article 38(1)(e) of Directive, it is sufficient that it provides “sufficient” protection of certain fundamental rights of refugees such as inter alia the right to health care and employment. This is reiterated in para 55 as “protection which guarantees the fundamental principles and values stemming from the Geneva Convention.”
Para 56: Dismissing further arguments of the applicant, the Council of State added that the possibility for Turkey to cease the status of temporary protection by a Council of Ministers Decision, an executive act of general application, without prior verification of the cessation provisions of the Geneva Convention in every individual case, does not negate the character of the protection granted as being “in accordance with the Geneva Convention”, to the extent that it does not necessarily entail the return of former beneficiaries to their countries of origin. In fact, the Turkish Temporary Protection Regulation allows the Council of Ministers either to return former beneficiaries, to grant them other forms of protection or to allow them to apply for international protection.
It also ruled that Article 34 of the Geneva Convention, which calls on States Parties to “facilitate, to the extent possible, the assimilation and naturalisation of refugees”, does not set out an individual right to the nationality of the host country, nor a right to have the time spent in the country taken into account for the purpose of meeting the requirements for naturalisation.
It also held that Article 38(1)(e) of the Directive does not preclude prima facie the imposition of restrictions – such as those placed by Turkish legislation – on the exercise of the right to choose one’s place of residence, freedom of movement and employment of foreign beneficiaries of temporary protection, nor does it equate them to nationals of the country in which they reside as regards the exercise of paid employment.
Para 58: In this context, the Council of State also discussed the authoritative value of UNHCR positions on the interpretation of the asylum acquis. It held that no provision grants UNHCR the power of “authentic interpretation” of the Geneva Convention, nor does EU law acknowledge UNHCR’s competence to formulate binding opinions as regards the content of legal concepts in the acquis. Accordingly, the UNHCR reading of the “safe third country” concept bore no influence on the case.
The dissenting opinion (2 judges)
Para 60: Two judges dissented on the interpretation of the “safe third country” concept, finding that Article 78(1) of the Treaty on the Functioning of the European Union requires the asylum acquis to be construed in line with the general economy and objectives of the Geneva Convention. They concluded that Turkey does not fulfil the criterion of Article 38(1)(e) since:
The law does not allow Syrians to request refugee status in view of the geographical limitation under which Turkey signed the Geneva Convention;
Temporary protection is not “in accordance with the Geneva Convention” as it amounts to a mass, non-individualised status revocable at any point by a decision of the Council of Ministers, which also does not recognise to its beneficiaries all rights and entitlements foreseen in the Geneva Convention for refugees.
Article 38(2) of the Directive: connection
Para 61: The Council of State ruled that an applicant’s transit from a third country may, in conjunction with specific circumstances applicable to him or her (such as inter alia the length of stay in that country or the fact that the country is located close to the country of origin), be considered as a connection between the applicant and the third country, based on which it would be objectively reasonable for him or her to relocate there. In para 62 it found that accepting the opposite would run contrary to the very aim of international protection of refugees, which is their immediate protection by alleged persecutions in their country of origin and not the possibility for them to choose which European country will afford them the best possible conditions (asylum shopping), thereby turning persons in need of international protection into migrants, as in persons who leave their country of origin in search of better living conditions.”
It therefore confirmed the Appeals Committee’s finding that the applicant’s stay for 1.5 months in Turkey and its proximity to his country of origin established a sufficient connection and made it reasonable for him to return there. One judge dissented and found that there was no voluntary stay of the applicant in that country for a significant period of time given the conditions.
The preliminary ruling before the CJEU
Para 63: A majority of 13 to 12 judges found there to be no reasonable doubt as regards the meaning of Article 38 of the Directive and thus no reason to submit a preliminary reference to the Court of Justice of the European Union in accordance with Article 267 of the Treaty. The dissenting opinion of 12 judges highlighted the existence of reasonable doubt on a number of issues, including the requirement of ratification of the Geneva Convention without geographical limitation, the compliance of Turkish temporary protection with the requirement of being “in accordance with the Geneva Convention”, and the requisite degree of connection between the applicant and safe third country.
For more information, see:
AIDA, Country Report Greece, 2016 Update, March 2017.
AIDA, Country Report Turkey, First Update, December 2015.
This article is based on an unofficial translation of Decision 2347/2017 by ECRE. All errors of translation remain our own.