Fast-track border procedure (Eastern Aegean islands)

Greece

Author

Greek Council for Refugees

General (scope, time limits)

Article 60(4) L 4375/2016 introduced a special border procedure, known as a “fast-track” border procedure, visibly connected to the implementation of the EU-Turkey statement. In particular, the fast-track border procedure as foreseen by L 4375/2016, voted some days after the entry into force of the EU Turkey statement, provides an extremely truncated asylum procedure with fewer guarantees.1 As underlined by the United Nations Special Rapporteur on the human rights of migrants, “the fast-track procedure under derogation provisions in Law 4375/2016 does not provide adequate safeguards.”2

Some days before the publication of L 4375/2016, the Director of the Asylum Service stated that “Insufferable pressure is being put on us to reduce our standards and minimise the guarantees of the asylum process... to change our laws, to change our standards to the lowest possible under the EU [Asylum Procedures] directive.”3

 

Trigger and scope of application

According to Article 60(4) said procedure can be “exceptionally” applied in the case where third-country nationals or stateless persons arrive in large numbers and apply for international protection at the border or at airport / port transit zones or while remaining in Reception and Identification Centres (RIC), and following a relevant Joint Decision by the Minister of Interior and Administrative Reconstruction and the Minister of National Defence.

The fast-track border procedure entered into force in April 2016 and remains active to date. The Joint Ministerial Decision for the implementation of the fast-track border procedure, foreseen by Article 60(4) L 4375/2016, was only published on 26 October 2016, despite the fact that said procedure was activated the day of the launch of the EU-Turkey Statement, 20 March 2016.4 In any event, Article 80(26) L 4375/2016 provides that “the exceptional procedure under Article 60(4) is applicable as of the publication of this law. The duration of its application shall not exceed six (6) months and may be prolonged for a further 3-month period by a decision issued by the Minister of Interior and Administrative Reconstruction.” Thus, as provided by law, the application of the fast-track border procedure could not take place beyond 3 January 2017 the latest.5 However, the fast-track procedure is still applied after that date.

The procedure is applied in cases of applicants subject to the EU-Turkey statement, i.e. applicants who have arrived on the Greek Eastern Aegean islands after 20 March 2016 and thus remain in the RIC of Lesvos, Chios, Samos, Leros and Kos. On the contrary, applications lodged by persons remaining in the RIC of Evros are not examined under the fast-track border procedure.

Contrary to the terms of Article 60(4) L 4375/2016 and the implementing Joint Ministerial Decision 13257/2016, the fast-track border procedure is also applied by the Corinth Asylum Unit for the examination of applications of persons entering Greece through the islands after 20 March 2016, who are transferred from the islands to the Corinth pre-removal centre and detained there (see Detention: General), even if their application is lodged before the Corinth Asylum Unit and therefore on the mainland.6

 

Main features of the procedure

The fast-track border procedure under Article 60(4) L 4375/2016 provides among others that: 

(a)   The registration of asylum applications, the notification of decisions and other procedural documents, as well as the receipt of appeals, may be conducted by staff of the Hellenic Police or the Armed Forces.

It should be mentioned that the establishment of the Asylum Service, staffed exclusively by civil servants, without any involvement of police staff in the asylum procedure, was a commitment of the Greek authorities in the framework of the Greek Action Plan on Asylum and Migration Management, submitted to the European Commission in 2010, and one of the measures taken in order for the Greek authorities to comply with the M.S.S. v. Belgium and Greece judgment.

(b)   The interview of asylum seekers may also be conducted by personnel deployed by EASO.  

The initial provision of Article 60(4)(b) L 4375/2016, foresaw that the Asylum Service “may be assisted” in the conduct of interviews as well as any other procedure by staff and interpreters deployed by EASO. The possibility for the asylum interview to be conducted by an EASO caseworker was introduced by a subsequent amendment in June 2016.7

(c)   The asylum procedure shall be concluded in a very short time period (no more than 2

weeks).

This may result in the underestimation of the procedural and qualification

guarantees provided by the international, European and national legal framework, including

the right to be assisted by a lawyer. As these truncated time-limits undoubtedly affect the procedural guarantees available to asylum seekers subject to a “fast-track border procedure”, there should be an assessment of their conformity with Article 43 of the recast Asylum Procedures Directive, which does not permit restrictions on the procedural rights available in a border procedure for reasons related to large numbers of arrivals.

More precisely, according to points (d) and (e) of the provision: 

  • The time given to applicants in order to exercise their right to “sufficiently prepare and consult a legal or other counsellor who shall assist them during the procedure” is limited to one day;


  • Decisions shall be issued, at the latest, the day following the conduct of the interview and shall be notified, at the latest, the day following its issuance;


  • The deadline to submit an appeal against a negative decision is 5 days from the notification of this decision;


  • When an appeal is lodged, its examination is carried out no earlier than 2 days and no later than 3 days after its submission, which means that in the first case appellants must submit any supplementary evidence or a written submission the day after the notification of a first instance negative decision; or within 2 days maximum if the appeal is examined within 3 days;


  • In case the Appeals Authority decides to conduct an oral hearing, the appellant is invited before the competent Committee one day before the date of the examination of their appeal and they can be given, after the conclusion of the oral hearing, one day to submit supplementary evidence or a written submission. Decisions on appeals shall be issued, at the latest, 2 days following the day of the appeal examination or the deposit of submissions and shall be notified, at the latest, the day following their issuance.

In practice, the fast-track border procedure has been variably implemented depending on the profile and nationality of the asylum seekers concerned (see also Differential Treatment of Specific Nationalities in the Procedure). Starting April 2016, it was initially applied as an (in)admissibility procedure for applications lodged by Syrian nationals arriving after 20 March 2016 on the Eastern Aegean Islands. To this end, Syrian applicants were prioritised in order to be assessed under the Safe Third Country or First Country of Asylum clauses.

From July 2016 onwards the procedure has also been used to examine the substance of asylum applications by specific nationalities with low recognition rate (under 25%) such as Pakistan, Bangladesh, Morocco, Algeria or Tunisia, without a prior assessment of their admissibility.8

As a result, applicants of other nationalities (non-Syrians and non-low-rate nationalities), including Afghans, Congolese, Iranians and Iraqis, and case of unaccompanied children, have had to wait in the hotspots for up to 6 months until their claims started being formally registered, while as of the end of November 2016 many of them were reported still to be waiting for an eligibility interview (see also Differential Treatment of Specific Nationalities in the Procedure).9

As reported in December 2016, the Asylum Service started the examination under the admissibility fast-track border procedure also for applications lodged from nationalities of over 25% recognition rate, inter alia Palestinians, Afghans, Iraqis and Iranians.10 Among others, UNHCR reports that:

  • In the second week of December 2016, the examination of the admissibility of claims by non-Syrian nationalities with a recognition rate over 25% started on Leros and Chios;


  • Admissibility interviews for Somali nationals would start in early 2017 on Leros, after the arrival of the relevant interpreter; 


  • The admissibility of claims by non-Syrian nationalities with a rate over 25% would start from 2017 on Samos.11

By February 2017 GCR was aware of one decision on admissibility to have been delivered to an applicant belonging to a nationality with a recognition rate above 25%.

 

Exempted categories

According to Article 60(4)(f) L 4375/2016, the fast-track border procedure is not applied to vulnerable groups or persons falling within the family provisions of the Dublin III Regulation.12

The vulnerability assessment takes place in two ways:

  1. When vulnerability is manifest, the case is referred to the regular procedure immediately after full registration of the asylum application;


  2. When vulnerability is not manifest, but identified during registration or after the vulnerability assessment made by the RIS, the vulnerability expert of EASO takes over and drafts a relevant opinion. Following this opinion, a Decision of the competent Regional Asylum Office or Asylum Unit is issued, referring the case to the regular procedure on the basis that the applicant belongs to a vulnerable group.

However, according to GCR’s findings after repeated visits to the various islands, an EASO vulnerability expert is not always available in practice.13 Moreover, persons identified by RIS as vulnerable may again be subject to vulnerability assessments, within the scope of the examination of their claim, by an EASO vulnerability expert, since there is no clear referral pathway between the vulnerability assessment conducted by the RIS and the one conducted by EASO.14 It is unclear (i) whether EASO must conduct the assessment by taking into account the relevant provisions and safeguards of national law,15 (ii) why the assessment of the RIS is not sufficient, and (iii) in cases of contradiction between RIS and EASO on the existence of vulnerability, which finding should prevail. It should be also noted that the vulnerability assessment by an EASO officer and the drafting of an opinion to this end is not clearly provided by any provision of Greek law.16

As of the end of 2016, the Asylum Service issued the following decisions under the fast-track border procedure:







First-instance decisions taken in the fast-track border procedure: 2016

Type of decision

Number

Percentage

Inadmissible based on safe third country / first country of asylum

1,323

23.2%

Admissible pursuant to the Dublin III Regulation family provisions

1,476

25.9%

Admissible for reasons of vulnerability

2,906

50.9%

Total decisions

5,705

100%

Source: Asylum Service, Information provided to GCR, 9 February 2017.

On 8 December 2016 a Joint Action Plan of the EU Coordinator on the implementation of certain provisions of the EU-Turkey statement recommended Greek authorities to amend the legal basis of this exemption in order to channel Dublin family reunification cases under the fast-track border procedure, with a view to their possible return to Turkey.17 Respectively, the Joint Action Plan recommended Greek authorities to consider the application of the inadmissibility procedure to vulnerable cases with a view to their possible return to Turkey and in particular to examine whether Article 60(4)(f) L 4375/2016 “could apply to vulnerable applicant cases in accordance with Article 24(3) of the Asylum Procedures Directive”, providing special procedural guarantees to applicants identified as being in need thereof.18

 

Personal interview

As mentioned in Fast-Track Border Procedure: General, according to Article 60(4)(c) L 4375/2016, asylum seekers must prepare for the interview and consult a legal or other counsellor who shall assist them during the procedure within 1 day following the submission of their application for international protection. Decisions shall be issued, at the latest, the day following the conduct of the interview and shall be notified, at the latest, the day following its issuance.19

The personal interview may be conducted by Asylum Service staff or by EASO personnel. The competence of EASO to conduct interviews was introduced by an amendment to the law in June 2016, following an initial implementation period of the EU-Turkey statement marked by uncertainty as to the exact role of EASO officials, as well as the legal remit of their involvement in the asylum procedure.

In practice, in cases where the interview is conducted by an EASO caseworker / expert, he or she provides an opinion / recommendation (πρόταση / εισήγηση) on the case to the Asylum Service, that issues the decision. The transcript of the interview and the opinion / recommendation are written in English, which is not the official language of the country. The issuance of an opinion / recommendation by EASO personnel to the Asylum Service is not foreseen by any provision in national law and thus lacks legal basis.20

Moreover, and despite the fact that inter alia the same procedural safeguards are provided in Greek legislation,21 regardless of who is conducting the interview, cases have been reported in practice where EASO experts have disregarded relevant safeguards such as the right to a lawyer present during the interview. 22 Legal action by the Bar Association of Mytilene took place in one of those cases.23

The new EASO Special Operating Plan to Greece 2017, adopted in December 2016, foresees throughout 2017 a role for EASO in conducting interviews on different asylum procedures, drafting opinions and recommending decisions to the Asylum Service.24

According to the cases of Syrian applicants examined under the (in)admissibility fast-track procedure known to GCR, it comes that as a rule, questions asked during interview concern exclusively the circumstances that the applicant faced in Turkey. Therefore applicants may not have the opportunity to refer to the reasons for fleeing their country of origin and potential vulnerabilities linked to these reasons e.g. being a victim of torture.

 

Appeal

As mentioned in Regular Procedure: Appeal, the legal basis for the establishment of the Appeals Authority was amended twice in 2016 by L 4375/2016 in April 2016 and L 4399/2016 in June 2016.

L 4375/2016 provided that appeals submitted from the day of its publication (3 April 2016) and until the restart of the operation of Appeals Committees, halted in September 2015, including appeals against decisions rejecting the applications as inadmissible in the framework of the EU-Turkey statement, were to be examined by Backlog Appeal Committees.25

While a very small number of second-instance decisions of the Backlog Appeals Committees had  approved the first-instance decisions on inadmissibility, following reported pressure to the Greek authorities by the EU, with regard to the implementation of the EU-Turkey statement,26 changes were introduced in the Greek law. These changes “coinciding with the issuance of positive decisions of the – at that time operational – Appeals Committees (with regard to their judgment on the admissibility) which, under individualised appeals examination, decided that Turkey is not a safe third country for the appellants in question”,27 provided for the establishment of the new three-member Independent Appeals Committees (Ανεξάρτητες Αρχές Προσφυγών) with the participation of two administrative judges and one member holding a university degree in Law, Political or Social Sciences or Humanities with specialisation and experience the fields of international protection, human rights or international or administrative law.28

According to Article 60(4) L 4375/2016, appeals against decisions taken in the fast-track border procedure must be appealed before the Appeals Authority within 5 days,29 contrary to 30 days in the regular procedure. The Appeals Committee examining the appeal must take a decision within 3 days,30 contrary to 3 months in the regular procedure.

As a rule, the procedure before the Appeals Committees under Article 60(4) is written. It is for the Appeals Committee to request an oral hearing under the same conditions as in the regular procedure.

Appeals before the Appeals Committees have automatic suspensive effect.31 However, the Joint Action Plan on the implementation of the EU-Turkey statement, issued on 8 December 2016, it was recommended the Greek authorities “to explore the possibility to limit the number of appeal steps in the context of the asylum process, in full respect of the Greek Constitution and Article 46 of Directive 2013/32”.32 This can be read as a recommendation to explore the possibility to abolish the automatic suspensive effect of appeals in the fast-track border procedure under Article 60(4) L 4375/2016.

As regards decisions on admissibility issued at second instance since the application of the fast-track border procedure, figures are as follows:  







Decisions on appeals against inadmissibility in the fast-track border procedure

From 3 April 2016 to:

12 Jun 2016

18 Sep 2016

27 Nov 2016

19 Feb 2017

Total number of appeals lodged

252

1,013

2,014

2,846

Total second-instance decisions on admissibility

72

311

407

439

Reversing the first-instance decision

70

305

390

415

Upholding the first-instance decision

2

6

17

24

Source: European Commission, Implementation of the EU-Turkey statement, Second Report: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/20160615/2nd_commission_report_on_progress_made_in_the_implementation_of_the_eu-turkey_agreement_en.pdf; Third Report: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/news_corner/migration/com_2016_634_f1_other_act_863309.pdf; Fourth Report: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20161208-4th_report_on_the_progress_made_in_the_implementation_of_the_eu-turkey_statement_en_0.pdf; Fifth Report: http://www.statewatch.org/news/2017/mar/eu-com-5th-report-eu-turkey-com-204.pdf.

 

Legal assistance

The law does not contain special provisions regarding free legal assistance in the fast-track border procedure. The general provisions regarding legal aid are also applicable here (see section on Regular Procedure: Legal Assistance). Therefore in practice no state-funded and organised legal aid scheme is in place, either for first- or second-instance procedures.

In practice, legal assistance is again provided only by NGOs according to their capacity and the locations in which they operate. Among others, Metadrasi is implementing a UNHCR-funded programme for the provision of free legal assistance in the appeal procedure for appellants remaining on the islands, who are subject to EU-Turkey statement and have their appeals examined under the fast-track border procedure.  

GCR was present in the hotspot of Moria on Lesvos in April 2016, shortly after its transformation into a detention centre following the EU-Turkey statement and the entry into force of Article 60(4) L 4375/2016. At that time, hundreds of Syrian refugees, whose applications had been rejected as inadmissible on the ground that Turkey was a safe third country following interviews conducted by EASO officers, were pleading with NGO lawyers to assist them with appeals, which had been lodged the same day of the notification of the first instance decision and would be examined within 2 days. The impossibility for NGOs to satisfy these requests on such a short notice, coupled with limited human resources to respond to extremely high demand, many of the appellants did not have the chance to be assisted by lawyers or other counsellors during the appeal procedure, as it had been also the case for the first instance examination of their applications. In June 2016, it was reported that free legal aid on Lesvos was provided by two lawyers from Metadrasi, one from GCR and one from ProAsyl.33

  • 1. GCR, Παρατηρήσεις επί του νόμου 4375/2016, 8 April 2016, available in Greek at: http://bit.ly/1Sa2lmH.
  • 2. OHCHR, ‘UN Special Rapporteur on the human rights of migrants concludes his follow up country visit to Greece’, 17 May 2016, available at: http://bit.ly/29RBj4X.
  • 3. IRIN, ‘Greek asylum system reaches breaking point’, 31 March 2016, available at: http://bit.ly/1RNCKja.
  • 4. Joint Ministerial Decision 13257/2016 “on the implementation of the special border procedure (Article 60(4) L 4375/2016)”, Gov. Gazette Β/3455/26.10.2016.
  • 5. See also Council of the European Union, EU-Turkey statement, 18 March 2016, para 1: “It will be a temporary and extraordinary measure.”
  • 6. GCR, Document No 717/2016.
  • 7. Article 80(13) L 4399/2016.
  • 8. See EASO, Special Operating Plan to Greece 2017, EASO/DOP/OU/20162/1812, December 2016, available at: http://bit.ly/2h1M2dF, 8, citing the 21st meeting of the Management Board of EASO and the Justice and Home Affairs Council Conclusions of 9 June 2016; On the implementation of these in-merit examinations on Leros and Kos, see GCR, Missions to Leros and Kos: May – November 2016, January 2017, available in Greek at: http://bit.ly/2jy7hby, 30 and 34.
  • 9. FRA, Opinion on fundamental rights in the 'hotspots' set up in Greece and Italy, 5/20168 December 2016, available at: http://bit.ly/2m8HoOK, 18; ECRE et al., The implementation of the hotspots in Italy and Greece, December 2016, 42.
  • 10. This differential treatment based on nationality and/or recognition rate is described in a flowchart of the procedure published by the Asylum Service, available at: http://bit.ly/2nqVrPi.
  • 11. UNHCR, Greece Factsheet: 1-31 December 2016, available at: http://bit.ly/2lqUl6z.
  • 12. Article 60(4)(f) L 4375/2016, citing Articles 8-11 Dublin III Regulation and the categories of vulnerable persons defined in Article 14(8) L 4375/2016.
  • 13. GCR, GCR Mission to Lesvos, November 2016, available in Greek at: http://bit.ly/2nqGEEf.
  • 14. ECRE et al., The implementation of the hotspots in Italy and Greece, December 2016, 38 and 44.
  • 15. Article 14(8) L 4375/2016.
  • 16. Article 60(4)(b) L 4375/2016 as amended by L 4399/2016 provides that EASO staff may conduct a personal interview, but no clear provision exists as regards the vulnerability assessment.
  • 17. European Commission, Joint Action Plan of the EU Coordinator on the implementation of certain provisions of the EU-Turkey Statement, Annex 1 to COM(2016) 792, 8 December 2016, paras 2 and 3.
  • 18. Such an amendment would also result in modifying Article 50 L 4375/2016, which provides that applications of persons with special procedural needs are always processed under the regular procedure. See also Special Procedural Guarantees.
  • 19. Article 60(4)(d) L 4375/2016.
  • 20. Article 60(4)(b) L 4375/2016, as amended by L 4399/2016.
  • 21. Article 52(2)-(7) L 4375/2016.
  • 22. ECRE et al., The implementation of the hotspots in Italy and Greece, December 2016, 38.
  • 23. See e.g. Efsyn, ‘Σεκιουριτάδες στα hotspots’, 11 June 2016, available in Greek at: http://bit.ly/2kbifV2.
  • 24. EASO, Special Operating Plan to Greece 2017, December 2016, available at: http://bit.ly/2h1M2dF, 9.
  • 25. Article 80(27) L 4375/2016.
  • 26. New Europe, ‘EU Council: Why Greece should consider Turkey safe for Syrian refugees’, 9 June 2016, available at: http://bit.ly/2lWDYOa; Keep Talking Greece, ‘EU presses Greece to change asylum appeal committees that consider “Turkey is not a safe country”’, 11 June 2016, available at: http://bit.ly/2kNWR5D.
  • 27. NCHR, Public Statement regarding the amendment of the composition of the Independence Appeals Committees, 17 June 2016, available at: http://bit.ly/2k1Buhz. Unofficial translation by the author.
  • 28. Article 5 L 4375/2016 as amended by L 4399/2016. The third member is appointed by UNHCR or the National Commission for Human Rights if UNHCR is unable to appoint one. If both are unable, the (now) Minister for Migration Policy appoints one.
  • 29. Article 61(1)(d) L 4375/2016.
  • 30. Article 60(4)(e) L 4375/2016.
  • 31. Article 61(4) L 4375/2016, as amended by L 4399/2016.
  • 32. European Commission, Joint action plan on the implementation of the EU-Turkey Statement, Annex to COM(2016) 792, 8 December 2016, para 10.
  • 33. AIRE Centre and ECRE, With Greece: Recommendations for refugee protection, July 2016, available at: http://bit.ly/29DULlv, 26.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti