Regular procedure

Greece

Author

Greek Council for Refugees

General (scope, time limits)

According to national legislation, an asylum application should be examined as “the soonest possible” and, in any case, within 6 months, in the framework of the regular procedure.1 This time limit may be extended for a period not exceeding a further 9 months, where:2

  1. Complex issues of fact and/or law are involved; or

  2. A large number of third country nationals or stateless persons simultaneously apply for international protection.

A further extension of 3 months is also provided “where necessary due to exceptional circumstances and in order to ensure an adequate and complete examination of the application for international protection.”3

Where no decision is issued within the maximum time limit fixed in each case, the asylum seeker has the right to request information from the Asylum Service on the timeframe within which a decision is expected to be issued. As expressly foreseen in the law, “this does not constitute an obligation on the part of the Asylum Service to take a decision within a specific time limit.”4

Decisions granting status are given to the person of concern in extract which does not include the decision’s reasoning. According to Article 41(1)(f) L 4375/2016, in order for the entire decision to be delivered to the person recognised as a beneficiary of international protection, a special legitimate interest (ειδικό έννομο συμφέρον) should be proven by the person in question. If a special legitimate interest is not proven, the Asylum Service refuses to deliver the entire decision in practice.5

 

Prioritised examination and fast-track processing

Article 51(6) L 4375/2016 provides that an application may be registered and examined by way of priority for persons who:

  1. Belong to vulnerable groups or are in need of special procedural guarantees;

  2. Apply from detention, at the border or from a Reception and Identification Centre;

  3. Are likely to fall within the Dublin procedure;

  4. Have cases reasonably believed to be well-founded;

  5. Have cases which may be considered as manifestly unfounded;

  6. Represent a threat to national security or public order; or

  7. File a Subsequent Application.

Moreover, a fast-track procedure for the examination and the granting of refugee status to Syrian nationals and stateless persons with former habitual residence in Syria, is in place since September 2014.6 In 2016, a total 1,000 applications for international protection have been submitted in the framework of the fast-track procedure, out of which 913 received positive decisions.7

 

Personal interview

The law provides that reasonable time shall be provided to the applicant to prepare for the interview, if he or she so requests.8 In practice, personal interviews may initially be set within 4 to 6 months following the full registration of an application, while a rescheduled appointment following a cancelled interview is usually set within 1 to 2 months.

Under the regular procedure, the interview takes place at the premises of the RAO on the designated day and is conducted by one caseworker. The personal interview takes place without the presence of the applicant’s family members, unless the competent Asylum Service Officer considers their presence necessary.9 The personal interview must take place under conditions ensuring appropriate confidentiality.10

The person conducting the interviews should be sufficiently qualified to take into account the personal or general circumstances regarding the application, including the applicant’s cultural origin. In particular, the interviewer must be trained concerning the special needs of women, children and victims of violence and torture.11

Until 31 December 2016, among 654 active Asylum Service staff members – 379 of whom on fixed-term contracts – 390 officers conducted first instance interviews across all premises around Greece.12 The short term working status of the majority of Asylum Service staff as mentioned above (see Registration) besides the precarious working environment for the employees, may create problems in its operation.

A personal interview with the applicant may be omitted where:13

  1. The Police or Asylum Service is able to take a positive decision on the basis of available evidence;

  2. It is not practically feasible, in particular when the applicant is declared by a medical professional as unfit or unable to be interviewed due to enduring circumstances beyond their control. In practice, the applicants themselves or usually their legal advisor, if there is one, must collect and submit such a certificate.

When the applicant or, where applicable, a family member of the applicant is not provided with the opportunity of a personal interview due to their being unfit or unable to be interviewed, as mentioned above, the Police or Asylum Service shall “make reasonable efforts” to provide them with the possibility to submit supplementary evidence.14 The omission of a personal interview does not adversely affect the decision on the application, as long as the decision states the reasons for omitting the interview.15

The law also envisages that an interpreter of a language understood by the applicant be present in the interview.16  A widely extended use of remote interpretation has been observed especially in distant Regional Asylum Offices and Asylum Units. For example, remote interpretation, with the assistance of an Athens-based interpreter, is used in almost all cases in the AU of Fylakio, due to lack of Fylakio-based interpreters. However, interviews are no longer conducted through video-conference. By the end of 2016, the composition of the AU of Fylakio included: 1 Head of the Unit; 2 registration officers; 3 officers conducting interviews, of whom 2 are under fixed-term contract and also conduct registrations.

Interviews of asylum seekers in detention are a matter of concern. In Fylakio, the AU of Fylakio still conducts interviews in a container located in the courtyard of the Fylakio pre-removal detention centre, which is run by the Hellenic Police. In the Corinth pre-removal detention centre, on certain occasions confidentiality is not guaranteed during the interview due to lack of appropriate spaces.17

The law envisages audio recording of the personal interview. A detailed report is drafted for every personal interview, which includes the main arguments of the applicant for international protection and all its essential elements. Where the interview is audio recorded, the audio recording accompanies the report. For interviews conducted by video-conference, audio recording is compulsory. Where audio recording is not possible, the report includes a full transcript of the interview and the applicant is invited to certify the accuracy of the content of the report by signing it, with the assistance of the interpreter who also signs it, where present.18

Before personal interviews were audio recorded, the caseworker would read back the full transcript to the applicant in order for him or her to approve its content and sign it. As of April 2014, all interviews are audio-recorded. Ever since audio-recording came into play, the caseworker still writes down a full transcript of the interview, but does not read its content back to the applicant. The applicant may at any time request a copy of the transcript, a copy of the audio file or both.19

 

Quality of interviews and decisions

Issues with regard to the quality of asylum interviews and first instance decisions have been raised in previous years.20 As the Asylum Service has tripled in size in the course of 2016, the impact of such extension on the quality of the procedure should be assessed, in particular by taking into consideration the fact that the Asylum Service has indicated it urgently needs to build inter alia staff expertise.21

During 2016, GCR was made aware of a number of first instance cases where the assessment of the asylum claims and/or the decisions delivered arise issues of concern. Examples include:

Outdated COI: In some cases, to the knowledge of GCR, first instance decisions are based on outdated country of origin information (COI). This was for example the case of three Afghan applicants for whom, in the framework of the examination of the internal flight alternative, the security situation in the capital of Afghanistan was assessed based on COI dating back to 2011 and 2013,22 and the case of an applicant from Pakistan where the security situation assessment (as regards the presence of Taliban) was based on COI also dated 2011 and 2013. The applications were lodged at the end of 2015 or in 2016.23

Gender-based protection needs: In another case, the applicant, a woman from Cameroon without a supportive social or family network, claimed that she had suffered from severe sexual and physical violence, forced marriage to an elderly person, further coercion into prostitution, repeated rape from numerous men over a long period of time that resulted in her pregnancy. Furthermore, the applicant alleged that she had tried to seek for protection with the police authorities of her country, but they had refused to help. At the first instance, the allegations of the applicant were assessed as credible. Moreover, the decision mentioned a number of COI sources to conclude that in case of return there would be a great possibility that the applicant would be subject to ill-treatment and would not have the means to survive, let alone support her new-born child. However, the first instance decision rejected the application on the basis that in any case the applicant can seek help and support from NGOs operating in her country of origin and that the acts that the applicant has suffered do not constitute persecution according to the Refugee Convention. The decision fails to accept that a woman without a supportive social or family network, that has been the victim of sexual violence, physical mistreatment, repeated rape, forced marriage and forced prostitution, traumatic and stigmatising experiences, is a member of a particular social group and as such faces persecution according to the Refugee Convention. The applicant was granted refugee status on second instance.24

Similar is the case of a single woman from Ethiopia without any supportive or family network in her country of origin. The applicant claimed that she was forced to work as a maid indoors at the age of 7, she was a victim of rape and she was also abused physically, verbally and psychologically. At the age of 16, after escaping from Ethiopia with the help of a neighbour, she was subjected inter alia to labour trafficking in Lebanon. The applicant also submitted before the Asylum Service a psychological assessment of a specialised NGO, recommending the need for a stable and secure framework and systematic provision of care for the rehabilitation of her trauma. Despite accepting inter alia her sexual abuse, the first instance decision rejected her asylum application considering that:

“The applicant’s fear cannot be considered well-founded because it cannot be established, to a reasonable degree, that her continued stay in her country of origin has become intolerable to her for the reasons stated in the definition, or would for the same reasons be intolerable if she returned there… her past experiences took place when she was a minor while today she is a grown woman… able to work… and she could probably use people [implying the neighbour that helped her to escape 10 years ago] from her wider environment that could help her for the smooth rehabilitation in her country…”

The applicant was granted refugee status on second instance.25

Other examples include:

  • The case of an Afghan applicant who, despite having provided a copy of a ‘night letter’ to the competent examination authority, received a first instance decision which neither took into consideration nor made any assessment of this element;26

  • The case of a writer from Iran who, during his interview, described in detail both the State agents of his persecution and the way the authorities reacted to his writings. Nevertheless, the interviewer did not examine / evaluate at all the relevant country of origin information regarding the specific State agents and their practices;27

  • The case of a single woman who claimed that she is facing psychological problems and that she was under medical treatment. Her health condition was not evaluated at any point of the first instance decision, including the examination of the consistency of her statements;28

  • The case of an unaccompanied minor from Pakistan, of Bengali ethnic origin, who claimed that he had to work already since the age of 11 in order to survive and that he fled his country of origin as he was facing discrimination and extreme violations of his rights as a child and as a human being. During his interview, he was not asked about living conditions in his country of origin or about his claim of having been subjected in child labour. Thus the first instance decision rejecting the application failed inter alia to take into consideration his particular situation as a minor.29

 

Appeal

A twofold procedural framework remains in place for the examination of appeals against negative decisions. The one concerns applications submitted after 7 June 2013 to the Asylum Service, and the other concerns the examination of the so-called “backlog appeals” against decisions on applications lodged before 7 June 2013 under PD 114/2010.

 

Applications lodged after 7 June 2013

The Appeals Authority

As part of the reform of the Greek asylum System under the Greek Action Plan, L 3907/2011 provided the establishment of the Appeals Authority. Under Article 2 L 3907/2011, 19 Appeals Authority Committees were set up and started operations on 1 July 2013. However, from 24 September 2014 to 24 September 2015, only 10 Committees were in place, and since April 2015 only 8 of those were operational, following the departure of members of 2 Committees without being replaced. The functioning of the Appeals Authority Committees was halted on 25 September 2015, due to the fact that the term of service of the Appeals Committees’ members came to an end and was not renewed. Therefore, since that date, the examination of the appeals pending before the Appeals Authority or lodged from 25 September 2015 onwards was continuously cancelled and no second-instance examination was provided.

 

The April 2016 reform: L 4375/2016

In April 2016, L 4375/2016, replacing L 3907/2011, provided the establishment of a new Appeals Authority, as a separate structure (αυτοτελής υπηρεσία) under the Minister of Interior and Administrative Reconstruction,30 now under the Minister for Migration Policy.

As provided by Article 4 L 4375/2016, the establishment and the number of the three-member Appeals Authority Committees should have taken place by a Ministerial Decision. The members of the Appeals Authority Committees should hold 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. They should be appointed by the Minister of Interior and Administrative Reconstruction, after a selection procedure,31 for a five-year term renewable, and should enjoy personal independence.    

Moreover, the law foresaw transitional provisions until the start of the operation of the Appeals Authority Committees. In particular for:

  • Appeals submitted before 3 April 2016 against decisions rejecting applications for international protection lodged after 7 June 2013 should be examined by the Appeals Committees operating until 25 September 2015, which would be re-established under a Ministerial Decision with the same composition they had until that date.32 There was only one Committee established in order to examine appeals submitted before 3 April 2016. It was established in July 2016 and its term expired on 31 December 2016, without being renewed.33 Thus, an important number of about 3,000 appeals submitted before the 3 April 2016 are still pending over a long period of time, as the operation of the competent administrative body was halted between September 2015 and April 2016 and since January 2017 its term of service has not been renewed.


  • Appeals submitted between 3 April 2016 and 21 July 2016 when the operation of the Appeals Authority Committees would start were to be examined by the Backlog Appeal Committees.34 This comprised inter alia of appeals against decisions rejecting the applications as inadmissible in the framework of the EU-Turkey statement.

Between 3 April 2016 and 20 July 2016, more than 2,000 appeals were lodged before the Backlog Appeals Committees.35 As regards their main caseload, rejections of asylum applications on the basis of the First Country of Asylum and Safe Third Country concepts, the decisions taken during that period were as follows:







Decisions on appeals against inadmissibility

From 3 April 2016 to:

12 Jun 2016

18 Sep 2016

Appeals lodged against inadmissibility decisions

252

1,013

Total Backlog Appeals Committee decisions

72

311

Reversing the Asylum Service decision

70

305

Upholding the Asylum Service decision

2

6

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.

 

The June 2016 reform: L 4399/2016

Appeals Authority Committees as provided by L 4375/2016 were never established. Following reported pressure by the EU with regard to the implementation of the EU-Turkey statement and the fact that a very small number of second-instance decisions had approved the first-instance decisions on inadmissibility,36 two months after the publication of L 4375/2016, national legislation changed once again, with an amendment introduced to the Parliament on an unrelated bill of the Ministry of Economy, Development and Tourism on the “Institutional Framework on the establishment of Private Investments’ Aid Schemes for County’s Regional and Economic Development”, adopted as L 4399/2016.37

The amended Article 5(3) L 4375/2016 provides that new three-member Independent Appeals Committees (Ανεξάρτητες Αρχές Προσφυγών) will be established under the Appeals Authority. These Committees are established 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.38 The term of the Committee members is three years, instead of the previously foreseen five-year term.39

The involvement of judicial officials in the composition of the Appeals Authority Committees, an administrative body, inter alia raises questions of constitutionality and compliance with the right to an effective remedy.40 With a Public Statement as of 17 July 2016, National Commission for Human Rights (NCHR), stated that it was:

“[P]articularly concerned about the fact that changes to L 4375/2016, proposed by the Government under this amendment, coinciding with the issuance of positive decisions of the – 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… The NCHR also expresses its concern about the composition of those proposed Appeals Committees, as issues of constitutionality may arise regarding the participation of two administrative judges in each three-member Appeal Committee…The Constitution since 1.1.2002 prohibits administrative tasks from being entrusted to magistrates in order for their personal and operational independence to be maintained… The Council of State has ruled on the unlawful establishment (μη νόμιμη συγκρότηση) of Committees with the participation of magistrates. With a constant case law [the Council of State] has ruled that those are not a judicial body, given that they decide on administrative appeals (ενδικοφανής προσφυγή) against administrative decisions.”41

With a Joint Statement, 18 members of the Backlog Appeals Committees raised concerns about the amendment, inter alia by highlighting that “managing legal issues through use of political priorities raises many questions about the future of the asylum system in Greece, the protection of human rights and the rule of law.”42

Applications for annulment before the Council of State submitted by GCR and the Group of Lawyers for the Rights of Refugees and Migrants.43 On February 2017 the Fourth Section of the Council of State decided to refer the cases to the Council of State Plenary, given the importance of the question.44 The hearing before the Council of State Plenary took place on 10 March 2017.

12 Independent Appeals Committees are operational as of February 2017, while a total number of 20 Committees is intended to be established.45 The first five Independent Appeals Committees started functioning on 21 July 2016,46 while seven more Committees were established and started functioning on 14 December 2016.47

Without underestimating the fact that available data with regard to the decisions of the new Appeals Authority Committees concern a limited period of time (21 July – 31 December 2016), and an important number of decisions on appeals has not been issued yet, as it comes from the available data of the Appeals Authority, the recognition rate of international protection is no more than 0.4% of the total number of decisions that have been issued, while negative decisions on the merits constitute a 96.7% of the total. A 0.6% of issued decisions referred the case to the competent authority in order for the latter to be examined under the provisions for granting a humanitarian permit.

According to the data provided by the Appeals Authority for the period 21 July to 31 December 2016, the new Appeals Committees have granted refugee status to 5 persons (1 Afghan, 2 Pakistani, 2 Cameroonian nationals) and subsidiary protection to 1 Afghan national:












Independent Appeals Committee decisions: 21 July– 31 December 2016

 

Number

Percentage

Number of appeals lodged

3,130

:

Number of appeals examined and pending decision

1,214

:

 

Number of decisions on appeals

1,341

100%

Refugee status

5

0.37%

Subsidiary protection

1

0.07%

Referral for humanitarian status

9

0.67%

Decisions rejecting the Appeal on the merits 

1,201

89.56%

Other decisions (subsequent applications, appeals submitted after deadline, referrals to first instance)

125

9.32%

Source: Appeals Authority, Information provided to GCR, 9 February 2017.

As demonstrated by these findings, there is a glaring discrepancy between appeal recognition rates under the Appeals Authority Committees after L 4399/2016 and the outcome of the second-instance procedure of the previous years, but also between recognition rates before and after the effects of the June 2016 reform.








International protection recognition rates at appeal stage: 2014-2016

Year

2014

2015

1 Jan – 31 Dec 2016

21 Jul – 31 Dec 2016

Decision

Number

%

Number

%

Number

%

Number

%

Refugee

294

11.1%

332

11.2%

248

11.9%

5

0.37%

Subsidiary

133

5%

141

4.7%

27

1.3%

1

0.07%

Rejection

2,214

83.8%

2,497

84.1%

1,817

86.8%

1,201

96.4%

Total

2,641

 

2,970

 

2,092

 

1,341

 

Source: Asylum Service, Asylum statistics 2014: http://asylo.gov.gr/en/wp-content/uploads/2015/01/Greek-Asylum-Service-statistical-data-2014_en.pdf; Asylum statistics 2015: http://asylo.gov.gr/wp-content/uploads/2016/01/Greek-Asylum-Service-statistical-data-2015_gr.pdf; Appeals Authority, Information provided to GCR, 9 February 2017.

Moreover, significant variations exist also between the recognition rate per country of the Appeals Authority Committees under 4399/2016 and the equivalent decisions per country register since the establishment of the Appels Authority in 2013 up to September 2015.

The highest rate of positive decisions of the Appeals Authority Committees per country since its establishment and until the end September 2015 was 26.3% for Afghan nationals, followed by 10.7% for Pakistani nationals.48 The equivalent rates for these nationalities under the Independent Appeals Committees under L 4399/2016  are 10% for Afghan nationals (2 out of 20), and no more than 0.3% for Pakistani nationals (2 out of 572).49

 

Procedure before the Appeals Authority

An applicant may lodge an appeal before the Appeals Authority against the decision rejecting the application for international protection as unfounded under the regular procedure, as well as against the part of the decision that grants subsidiary protection for the part rejecting refugee status, within 30 days from the notification of the decision. In cases where the appeal is submitted while the applicant is in detention, the appeal should be lodged within 15 days from the notification of the decision.50

Appeals before the Appeals Authority have automatic suspensive effect. The suspensive effect covers the period “during the time limit provided for an appeal and until the notification of the decision on the appeal.”51

However, the Joint Action Pan on the implementation of the EU-Turkey Statement, issued on 8 December 2016, recommends 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”,52 which provides the possibility to limit the suspensive effect of the appeal in a number of circumstances.

As a rule, the procedure before the Appeals Authority Committee is a written and the examination of the appeal is based on the elements of the case file without the presence of the appellant. However, the Appeals Committee must invite the appellant to an oral hearing when:53

  1. The appeal is lodged against a decision which withdraws the international protection status (see Cessation and Withdrawal);


  2. Issues or doubts are raised relating to the completeness of the appellant’s interview at first instance;


  3. The appellant has submitted substantial new elements; or


  4. The case presents particular complexity.

It should be mentioned that the initial version of Article 62(1) L 4375/2016 required the Committees to invite the appellant also in the case where he or she had submitted a relevant request at least 2 days before the examination of the appeal.54 This provision was abolished with the amendment of the law in June 2016, discussed below.55 It is disputed whether this amendment is in line with Greece’s obligations under Article 47 of the Charter of Fundamental Rights of the EU.56

According to the law, the Appeals Committee must reach a decision on the appeal within 3 months when the regular procedure is applied.57 If the Appeals Committee rejects the appeal on the application for international protection and considers that there are one or more criteria fulfilled for a residence permit on humanitarian grounds, the case is referred to the relevant authority, which decides on the granting of such a permit.58   

 

Backlog Committees: Applications lodged before 7 June 2013

Appeals Committees established by PD 114/2010 (“Backlog Committees”) are competent to examine appeals against decisions rejecting applications lodged before 7 June 2013. As mentioned above, an additional mandate was given to the Backlog Committees by L 4375/2016 to examine appeals lodged between 3 April 2016 and 21 July 2016.59

Moreover, as provided by Article 22 L 4375/2016, appellants whose appeal was pending before the Backlog Committees are granted by default a two-year permission to stay based on humanitarian grounds, which may be renewed, if the application has been lodged at least 5 years before 3 April 2016 and the application is still pending at second instance. Appellants who wish to continue the examination of the appeal as of the international protection grounds, have the right to request so within 2 months of the date that the humanitarian grant decision is communicated.

Appeals Committees are established following a Ministerial Decision of the Minister of Interior. Contrary to the Independent Appeals Committees, each Backlog Committee consists of:

  1. An official of a Ministry or a legal person under the supervision of a Ministry, including officials of municipals authorities, holding a law degree, or former judge or former public servant granted with a law university degree, acting as the President of the Committee;


  2. A representative of UNHCR, or a person who holds Greek citizenship, appointed by UNHCR;


  3. A jurist specialised in refugee and human rights law, appointed by the relevant Ministry from a list drawn by the National Commission for Human Rights.

The chair and the members of the Appeal Committees are full-time employees. Each Committee is provided with support by a secretariat consisting of 5 duly qualified staff members from the relevant Ministry in full-time capacity.

Under Ministerial Decision 5401/3-156958 issued in August 2016,60 20 Backlog Committees were (re)established with a term up to 31 December 2016. This was extended up to 1 August 2017 with a subsequent Ministerial Decision.61










Backlog Committee decisions: 1 January 2016 – 31 December 2016

 

Number

Percentage

Number of appeals pending at the end of 2016

5, 833

:

 

Number of decisions on appeals

5,364

100%

Refugee status

515

9.60%

Subsidiary protection

131

2.44%

Referral for humanitarian status

1,844

34.37%

Rejection on the merits 

2,847

53.07%

Appeals Committees (PD 114/2010), Information provided to GCR, 22 February 2017.

Article 22 L 4375/2016 provides that appellants who have lodged their asylum applications up to five years before the entry into force of L 4375/2016 (3 April 2016), and their examination is pending before the Backlog Committees, shall be granted a two-years residence status on humanitarian grounds, which can be renewed. Appellants granted with residence status on humanitarian grounds have the right to ask within two months from the notification of the decision for their asylum application to be examined in view of fulfilling the requirements international protection.

Under Article 22 L 4375/2016, a total 4,935 decisions granting humanitarian residence permits have been issued by the end of 2016.62

 

Procedure before the Backlog Committees

According to the law, applicants in the regular procedure have the right to lodge an administrative appeal before the Appeals Committees established by PD 114/2010 against a first instance decision rejecting an application, granting subsidiary protection instead of refugee status or withdrawing international protection status, within 30 days.63 For decisions declaring an application as manifestly unfounded,64 the deadline for appeals is 15 days.65 Appeals submitted after this deadline are examined initially on admissibility and if declared admissible they are examined on the merits.66    

Appeals have suspensive effect until the Appeals Committee reaches a decision.67 Following a first instance decision, the asylum seeker’s “pink card” is withdrawn, and a new one is issued when an appeal is lodged. This card is valid for 6 months in the regular procedure.68

The Appeals Committee may decide not to call the applicant for a hearing where it considers that it can issue a decision based only upon examination of the file. If the information included in the file is not sufficient for deciding on the appeal, the Appeals Committee shall invite the applicant to submit additional information within 10 days or to appear before it.69 In the latter case the applicant shall be informed within 5 days before the date of the examination, in a language which he or she understands, of the place and date of the examination of the appeal, and for the right to attend in person or by an attorney or other advisor before the Committee to verbally explain his or her arguments with the assistance of an interpreter, to give explanations or to submit any additional information.70

Following an amendment in 2016, it is provided that “in any event, an oral hearing is taking place if the appellant submits a relevant request at least two (2) days before the examination of the appeal.”71

A decision of the Appeals Committee rejecting the administrative appeal sets a specified timeframe of no more than 90 days for the applicant to leave the Greek territory.72 While examining a case, and if they consider that the criteria for granting an international protection status are not fulfilled, Appeals Committees should examine if one or more of the criteria for granting a residence permit on humanitarian grounds is/are fulfilled and in this case refers the case to the competent authority under the Secretariat General for Migration Policy.

 

Judicial review

In both Old Procedure and New Procedure, applicants for international protection may lodge an application for annulment (αίτηση ακύρωσης) of a second instance decision of the Appeals Authority Committees or the Backlog Committees, before the Administrative Court of Appeals within 60 days from the notification of the decision.73 The Minister for Migration Policy also has the right to request the annulment of the decision of the Appeals Committee before the Administrative Court of Appeals.74 The possibility to file such a request, the time limits, as well as the competent court for the judicial review, must be expressly stated in the body of the administrative decision.

An application for annulment may only request an examination of the decision in law and has no automatic suspensive effect. However, the applicant may request the Court to grant suspensive effect while judicial review is conducted. In R.U. v. Greece, that concerned inter alia the possibility to challenge before an administrative Court a removal decision, the ECtHR was critical of the lack of automatic suspensive effect of judicial review, which is also valid for the judicial review of a second-instance asylum decision.75

In practice, access to judicial review before the Administrative Court of Appeals is limited by a number of practical and legal obstacles which undermine the effectiveness of the remedy. These range from strict and complex procedural rules for judicial review, requiring applications to be well-substantiated, written in Greek and registered by a lawyer; to the Court’s delays from 10 days of up to 4 months in deciding on suspensive effect, thereby leaving applicants at risk of deportation; to limited access to free legal assistance (see the section on Legal Assistance below).76

 

Legal assistance

Asylum seekers have the right to consult, at their own cost, a lawyer or other legal advisor on matters relating to their application.77 No state funded free legal assistance scheme is in place for procedures on first or second instance and in practice, a number of non-governmental organisations provide free legal assistance and counselling to asylum seekers. However the scope of these services remains limited if the needs throughout the whole asylum procedure (registration of the application, first and second instance, judicial review) are taken into consideration.

 

Free legal assistance in appeal procedures

According to Article 44(2) L 4375/2016, free legal assistance should be provided to applicants in appeal procedures before the Appeals Authority. The terms and the conditions for the provision of free legal assistance should be determined by a Ministerial Decision, which was issued in September 2016.78

The Ministerial Decision provides among others that a free legal assistance will be provided by accredited lawyers, on the basis of a list managed by the Asylum Service.79 Asylum seekers must request legal aid at least 10 days before the date of examination of the appeal under the regular procedure, while shorter time limits are foreseen for the Admissibility Procedure, Accelerated Procedure and Fast-Track Border Procedure.80 If a legal representative has not been appointed at the latest 5 days before the examination of the appeal under the regular procedure, the applicant may request a postponement of the examination.81 The Decision also explicitly provides for the possibility of legal assistance through video conferencing in every Regional Asylum Office.82

According to the Decision, lawyers are remunerated based on a fixed sum of €80 per appeal.83

By the end of February 2017, no free legal aid was in place in practice under the auspices of the Greek authorities for appeal procedures, and for this reason Greek authorities still do not comply with their obligation under national legislation and the recast Asylum Procedures Directive.

Two non-governmental organisations, GCR and another non-governmental organisation Metadrasi, provide free legal assistance to asylum seekers in second-instance procedures, through UNHCR funding programmes. These programmes aim at supporting appellants on the islands and a number of appellants in the mainland.84 Between 15 July and 30 October 2016, legal assistance under these UNHCR-funded programmes was provided to 1,220 appellants at second instance.85

  • 1. Article 51(2) L 4375/2016.
  • 2. Article 51(3) L 4375/2016.
  • 3. Article 51(4) L 4375/2016.
  • 4. Article 51(5) L 4375/2016.
  • 5. Asylum Service, Document no 34200/15.9.2016 “Request for a copy”.
  • 6. For more details, see AIDA, Country Report Greece, Fourth Update, November 2015, 36.
  • 7. Information provided by the Asylum Service, 9 February 2017.
  • 8. Article 52(5) L 4375/2016.
  • 9. Article 52(11) L 4375/2016.
  • 10. Article 52(12) L 4375/2016.
  • 11. Article 52(13)(a) L 4375/2016.
  • 12. Information provided by the Asylum Service, 9 February 2017.
  • 13. Article 52(8) L 4375/2016.
  • 14. Article 52(9) L 4375/2016.
  • 15. Article 52(10) L 4375/2016.
  • 16. Article 52(3) L.4375/2016.
  • 17. GCR, Document No 717/2016.
  • 18. Article 52(14)-(15) L 4375/2016.
  • 19. Article 52(16) L 4375/2016.
  • 20. See AIDA, Country Report Greece, Fourth Update, November 2015, 39.
  • 21. Recital 16 Commission Recommendation C(2016) 8525 of 8 December 2016 on the resumption of transfers to Greece under Regulation (EU) No 604/2013, available at: http://bit.ly/2kLKs1L.
  • 22. First instance decisions of May 2016, July 2016 and September 2016, on file with the author.
  • 23. First instance decision of November 2016, on file with the author.
  • 24. First instance decision of June 2016, on file with the author.
  • 25. First instance decision of February 2016, on file with the author.
  • 26. First instance decision of September 2016, on file with the author.
  • 27. First instance decision of August 2016, on file with the author.
  • 28. First instance decision of November 2016, on file with the author.
  • 29. First instance decision of April 2016. This case has been supported by the NGO Arsis, which kindly provided the information to GCR for the purpose of the present report.
  • 30. Article 4 L 4375/2016.
  • 31. Article 5(12) L 4375/2016.
  • 32. Joint Ministerial Decision 9541/2014, Gazette 2692/B/09-10-2014.
  • 33. Joint Ministerial Decision 10658/2016, Gazette ΥΟΔΔ 388/18-07-2016.
  • 34. Article 80(27) L 4375/2016.
  • 35. Recital 22 Commission Recommendation (EU) 2016/2256 of 8 December 2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) No 604/2013 of the European Parliament and of the Council.
  • 36. 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.
  • 37. L 4399/2016, Gazette 117/A/22-6-2016, available in Greek at: http://bit.ly/2lKABdD.
  • 38. The third member is appointed by UNHCR or the National Commissioner for Human Rights if UNHCR is unable to appoint one. If both are unable, the (now) Minister for Migration Policy appoints one.
  • 39. Article 5(3)(f) L 4375/2016, as amended by L 4399/2016.
  • 40. ECRE, ‘Greece amends its asylum law after multiple Appeals Board decisions overturn the presumption of Turkey as a “safe third country”’, 24 June 2016, available at: http://bit.ly/28RnTqO.
  • 41. 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.
  • 42. Keep Talking Greece, ‘Appeals Committees denounce changes to facilitate mass deportations to Turkey’, 20 June 2016, available at: http://bit.ly/28S8K8k.
  • 43. Group of Lawyers for the Rights of Refugees and Migrants, ‘Αίτηση ακύρωσης κατά της ίδρυσης των Ανεξάρτητων Επιτροπών Προσφυγών’, 15 September 2016, available in Greek at: http://bit.ly/2mRtYJI.
  • 44. Council of State, Decision 447/2017, 15 February 2017, available in Greek at: http://bit.ly/2nePedm and Decision 477/2017, 21 February 2017, available in Greek at: http://bit.ly/2mASBZ6.
  • 45. European Commission, Fourth Report on the Progress made in the implementation of the EU-Turkey Statement, COM(2016) 792, 8 December 2016, available at: http://bit.ly/2lnobZ7.
  • 46. Joint Ministerial Decision 3006/2016, Gazette ΥΟΔΔ 392/20-07-2016.
  • 47. Joint Ministerial Decision, Gazette ΥΟΔΔ 683/14-12-2016.
  • 48. Information provided to GCR by the Appeals Authority, September 2015. See also AIDA, Country Report Greece: Fourth Update, November 2015.
  • 49. Information provided to GCR by the Appeals Authority, 9 February 2017.
  • 50. Article 61(1)(a)-(b) L 4375/2016, as amended by L 4399/2016.
  • 51. Article 61(4) L 4375/2016, as amended by L 4399/2016.
  • 52. European Commission, Joint action plan on the implementation of the EU-Turkey Statement, Annex to COM(2016) 792, 8 December 2016, para 10.
  • 53. Article 62(1) L 4375/2016, as amended by L 4399/2016.
  • 54. Article 62(1)(e) L 4375/2016, no longer in force.
  • 55. Article 88 L 4399/2016.
  • 56. ECRE and Dutch Council for Refugees, The application of the EU Charter of Fundamental Rights to asylum procedural law, October 2014, available at: http://bit.ly/2agyJ6v, 81-84.
  • 57. Article 62(6) L 4375/2016, as amended by L 4399/2016.
  • 58. Article 61(4) L 4375/2016, as amended by L 4399/2016.
  • 59. Article 81(27) L 4375/2016.
  • 60. Ministerial Decision 5401/3-156958, Gazette ΥΟΔΔ 424/4-8-2016.
  • 61. Ministerial Decision 7396/30-12-2016, Gazette ΥΟΔΔ 734/30-12-2016.
  • 62. Appeals Committees (PD 114/2010), Information provided to GCR, 22 February 2017.
  • 63. Article 25(1)(a) PD 114/2010, as amended by Article 35(17) PD 113/2013.
  • 64. Article 17(3) PD 114/2010.
  • 65. Article 25(1)(b) PD 114/2010.
  • 66. Article 25(1) PD 114/2010, as amended by Article 23 L 4375/2016.
  • 67. Article 25(2) PD 114/2010.
  • 68. Article 25(1)(a) PD 114/2010, as amended by Article 3(1) PD 167/2014.
  • 69. Article 26(5) PD 114/2010, as amended by Article 3 PD 167/2014.
  • 70. Ibid.
  • 71. Article 23(2) L 4375/2016.
  • 72. Article 26(6) PD 114/2010.
  • 73. Article 29 PD 114/2010 and Article 64 L 4375/2016, citing Article 15 L 3068/2002.
  • 74. Article 26(7) PD 114/2010 and Article 64 L 4375/2016.
  • 75. ECtHR, R.U. v. Greece, Application No 2237/08, Judgment of 7 June 2011, paras 77-78.
  • 76. AIDA, Country Report Greece: Fourth Update, November 2015, 46.
  • 77. Article 44(1) L 4375/2016.
  • 78. Ministerial Decision 12205/2016, Gazette 2864/B/9-9-2016.
  • 79. Articles 1(4) and 2 MD 12205/2016.
  • 80. Article 1(3) MD 12205/2016.
  • 81. Article 1(4) MD 12205/2016.
  • 82. Article 1(7) MD 12205/2016.
  • 83. Article 3 MD 12205/2016.
  • 84. Commission Recommendation of 8 December 2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) No. 604/2013.
  • 85. Information provided by the Asylum Service, 9 February 2017.

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