The “safe third country” concept is a ground for inadmissibility (see Admissibility Procedure).
According to Article 56(1) L 4375/2016, a country shall be considered as a “safe third country” for a specific applicant when all the following criteria are fulfilled:
The applicant's life and liberty are not threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion;
This country respects the principle of non-refoulement, in accordance with the Refugee Convention’
The applicant faces no risk of suffering serious harm according to Article 15 PD 141/2013, transposing the recast Qualification Directive;
The country prohibits the removal of an applicant to a country where he or she risks to be subject to torture or cruel, inhuman or degrading treatment or punishment, as defined in international law;
The possibility to apply for refugee status exists and, if the applicant is recognised as a refugee, to receive protection in accordance with the Refugee Convention; and
The applicant has a connection with that country, under which it would be reasonable for the applicant to move to it.
There is no list of safe third countries in Greece. The concept is only applied in the context of the Fast-Track Border Procedure under Article 60(4) L 4375/2016 on the islands for those arrived after 20 March 2016 and subject to the EU-Turkey statement.
As mentioned in Fast-Track Border Procedure, by the end 2016, only applications lodged by Syrians national were examined under the safe third country concept while, in December 2016, admissibility fast-track admissibility procedure, including under the safe third country concept, would have started in December 2016 for nationalities with a recognition rate over 25%.
Applications lodged by Syrian nationals
As far as applications lodged by Syrian nationals are concerned, in order to determine whether Turkey could be considered as a “safe third country” or a First Country of Asylum, first-instance decisions on admissibility mention a number of sources e.g. AIDA, including relevant correspondence between UNHCR and the Greek Asylum Service. However, as far as cases brought to the attention of GCR are concerned, decisions are mainly based on (i) the text of the Turkish law, (ii) correspondence of the European Commission with the Greek authorities, (iii) correspondence of the European Commission with Turkish authorities, providing assurances on the situation in Turkey.
The correspondence explicitly mentioned on the first-instance decision on admissibility under the “safe third country” concept includes inter alia:1
Letter of 12 April 2016 by the Turkish Ambassador to the EU to the European Commission Director-General for Migration and Home Affairs, stating that “Each Syrian national returned to Turkey will be granted such [temporary protection] status”;
Letter of 24 April 2016 by the Turkish Ambassador to the EU to the European Commission Director-General for Migration and Home Affairs, stating that “Turkey confirms that non-Syrians who seek international protection having irregularly crossed into the Aegean islands via Turkey as of 20 March 2016 and being taken back to Turkey as of 4 April 2016 will be able to lodge an application for international protection in accordance with the Law on Foreigners and International Protection and its secondary legislation”;
Letter of 5 May 2016 by the European Commission Director-General for Migration and Home Affairs to the Greek Secretary General for Migration, outlining the Commission’s view that Turkey qualifies as a “safe third country” and “first country of asylum”. The letter includes a controversial interpretation of EU law, mentioning that:
“transit through Turkey suffices for a sufficient connection to be established”, in clear contrast with UNHCR’s view according to which “transit alone is not a ‘sufficient’ connection or meaningful link”;2
“Art. 38 of the Asylum Procedures Directive does not require ratification of the Geneva Convention without geographical limitations” while “UNHCR understands this provision to mean that access to refugee status and to the rights of the 1951 Convention must be ensured in law, including ratification of the 1951 Convention and/or the 1967 Protocol, and in practice”;3
Letter of 29 July 2016 by the European Commissioner for Migration and Home Affairs to the Greek Minister for Migration Policy, stating that “the Commission considers that, notwithstanding recent developments in Turkey, the Turkish legal framework combined with the assurances that Turkey provided… still can be consider as sufficient protection or protection equivalent to that of the Geneva Convention”.
These documents mainly refer to the provisions of the Turkish law and to the assurances given by the Turkish authorities or the European Commission without assessing the situation in practice, despite the fact that, as it stems from the constant jurisprudence of the ECtHR, “the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection.”4
As far as GCR is aware, as a rule first-instance decisions issued to Syrian nationals under Article 60(4) L 4375/2016, with the exception of those concerning persons belonging to vulnerable groups or Dublin family reunification cases, reject the application as inadmissible on the basis that Turkey can be considered a safe third country or first country of asylum.
To the knowledge of GCR, first-instance decisions rejecting the application as inadmissible are based on a pre-defined template prepared by the Asylum Service to be used by the Regional Asylum Office or Asylum Unit on the islands.5 Thus, these first-instance negative decisions are identical, except for the applicants’ personal details and a few lines mentioning the allegations of the applicant,6 thereby raising concerns as to whether the procedure complies with the obligation to apply the concept under an individualised assessment of each case.7
More recent decisions also mention a letter addressed to the Asylum Service by the UNHCR Representation in Greece on 14 December 2016, entitled “Update on UNHCR letters of 4th May and 9th June 2016”. In this letter UNHCR mentions inter alia that:
“First, UNHCR does not benefit at this stage from unhindered and predictable access to pre-removals centres in Turkey and Duzici reception centre… Second, UNHCR needs to seek authorization to visit the center at least five working days in advance which in practice, does not allow for timely monitoring of some individual cases Third, UNHCR does not systematically receive information on the legal status and location of individuals who have readmitted from Greece…
Out of the 82 Syrian nationals readmitted from Greece, UNHCR is in a position to confirm, based on direct contacts, that 12 of them (re)acquired temporary protection. Despite its best efforts, UNHCR has not been able to contact the majority of the others. Thirteen other individuals contacted are still in the process of completing the procedure or waiting for the reactivation of their status. UNHCR is not in a position to assess the average length of this procedure”.8
However, despite the abovementioned remarks by UNHCR, no differentiation has been reported in the first instance decisions on (in)admissibility of applications lodged by Syrian nationals.
Whereas first-instance decisions have overwhelmingly dismissed applications as inadmissible on the basis that Turkey fulfils the safety criteria, the majority of second-instance decisions issued by the Backlog Appeals Committees, prior to the modification of their composition by L 4399/2016 (see Regular Procedure: Appeal), rebutted the safety presumption.
The vast majority of the Backlog Committees Decisions, after considering the Turkish legislation, obligations deriving from international law and the practice of the Turkish authorities as described by an important number of sources, including NGO reports and press articles, found inter alia that there is a real risk of violation of the non-refoulement principle and that the geographical limitation on the Refugee Convention prevents refugees from seeking refugee status, while the temporary protection status available to Syrians does not constitute protection in accordance with the Refugee Convention as required by Article 56(1)(e) L 4375/2016.9
Appeals Committees established under the hasty amendment of June 2016 introduced by L 4933/2016, and starting operations on 21 July 2016, have issued 21 decisions on admissibility as of 19 February 2017. As far as GCR is aware, all 21 decisions of the new Appeals Committees have confirmed the first-instance inadmissibility decision.
Moreover, by 31 December 2016, out of a total 436 appeals lodged by Syrian nationals against inadmissibility decisions, 305 appeals had been examined by the new Appeals Committees and decisions were pending publication.10
Two applications for annulment (αίτηση ακύρωσης) have been lodged against two decisions of the new Appeals Committees rejecting the application as inadmissible on the basis of the safe third country concept before the Council of the State. On 15 February 2017, the Fourth Section of the Council of the State decided to refer the cases to the Council of State Plenary, given the importance of the case.11 The Council of State Plenary hearing took place on 10 March 2017. There it was reported inter alia that the State lawyer claimed that he could not imagine 3 million refugees from Turkey coming to Greece,12 and the President of the Court asked both sides to give their views on what the solution would be for the 3 million Syrians stranded in Turkey, should the country be found not to be safe.13
A number of appeals by Syrian nationals are also pending before the Administrative Court of Appeals of Piraeus. It is worth mentioning that some judges of the Administrative Court of Appeals of Piraeus, which is the territorially competent court for legal remedies against second-instance negative decisions on applications lodged on the Eastern Aegean islands, are also participating in the new Appeals Committees under L 4399/2016.14 It has to be observed how this dualism will be overcome.
Applications lodged by non-Syrian nationalities with a recognition rate over 25%
As mentioned above, the examination of admissibility of applications by non-Syrians started in December 2016 and is applied only for applications lodged by persons belonging to nationalities with a recognition rate over 25%.
GCR is aware of one decision on admissibility regarding an application lodged by an Afghan national, issued in February 2017. The first-instance decision accepted the application as admissible on the basis that the criterion set out in Article 56(1)(e) L 4375/2016 (“the possibility to apply for refugee status exists and, if the applicant is recognised as a refugee, to receive protection in accordance with the Geneva Convention”) was not fulfilled.
More precisely, largely based on the same correspondence between EU institutions, Turkish and Greek authorities and UNHCR, as is the case of decisions for Syrian applicants, the decision concluded that:
“In Turkey, despite the fact that the country has signed the Geneva Convention with a geographical limitation, and limits its application to refugees coming from Europe, for the rest of the refugees there is the possibility international protection to be requested (conditional refugee status/subsidiary protection), as foreseen by the relevant legislation. However, it is not clear from the sources available to the Asylum Service that there will be a direct access (άμεση πρόσβαση) to the asylum procedure, while assurances have not been provided by the Turkish authorities as to such direct access for those returned from Greece. In addition, there is no sufficient evidence to show that ‘conditional refugee status’ is granted to all of those who are eligible for it (in particular statistical data on recognition rates and the average duration of the asylum procedure).
Moreover, data available to the Asylum Service for the time being show that in case international protection would be granted to the applicant, this will not be in accordance with the Geneva Convention. According to the data available to the Asylum Service, conditional refugee status beneficiaries do not have the right to family reunification, contrary to those granted with subsidiary or temporary protection. Furthermore, the regime granted to [beneficiaries of conditional refugee status] lasts only until their resettlement by the UNHCR.”15
Article 56(1)(f) L 4375/2016 requires there to be a connection between the applicant and the “safe third country”, which would make return thereto reasonable. In practice, as far as GCR is aware, the Regional Asylum Offices and Asylum Units on the Eastern Aegean islands issue inadmissibility decisions for Syrian applicants on the basis of the safe third country concept even in cases where the individual has only transited through Turkey within a few days.
Where an application is dismissed as inadmissible on the basis of the “safe third country” concept, the asylum seeker must be provided with a document informing the authorities of that country that his or her application has not been examined on the merits.16 This guarantee is complied with in practice.
- 1. These documents are available at: http://bit.ly/2kCPl19. Decisions of the Asylum Service and the Appeals Committees also make reference to unpublished letters by the UNHCR Representation in Greece concerning the situation of Syrians in Turkey.
- 2. UNHCR, Legal considerations on the return of asylum-seekers and refugees from Greece to Turkey as part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the safe third country and first country of asylum concept, 23 March 2016, available at: http://bit.ly/1Mrxmnc, 6.
- 3. Ibid.
- 4. ECtHR, Saadi v. United Kingdom, Application No 13229/03, Judgment of 29 January 2008, para 147.
- 5. On Lesvos, see GCR, GCR Mission to Lesvos – November 2016, available at: http://bit.ly/2kbN7F0, 20; On Samos, see GCR, GCR Mission to Samos – June 2016, available at: http://bit.ly/2kCHMDm, 20 On Leros and Kos, see GCR, GCR Mission to Leros and Kos – May to November 2016, 32.
- 6. ECRE et al., The implementation of the hotspots in Italy and Greece, December 2016, 38.
- 7. Article 56(2) L 4375/2016.
- 8. This is also the content of a letter sent by the UNHCR Representation in Greece on 23 December 2016, available at: http://bit.ly/2jjDWl0.
- 9. See inter alia EDAL, ‘Greece: The Appeals Committee issues decisions on Turkey as a Safe Third Country’, 17 May 2016, http://bit.ly/2niFYRm; Appeals Committee, Decision No 05/133782, 17 May 2016, available in Greek at: http://bit.ly/2jytyWu.
- 10. Information provided by the Asylum Service, 9 February 2017.
- 11. Council of State, Fourth Section, Decisions 445/2017 and 446/2017, 15 February 2017, available in Greek at http://bit.ly/2n3FmTL and http://bit.ly/2n3qBQK.
- 12. Lia Gogou, Twitter, 10 March 2017, available at: http://bit.ly/2mwq5HK.
- 13. Lia Gogou, Twitter, 10 March 2017, available at: http://bit.ly/2nh43Jl.
- 14. See Joint Ministerial Decision 3006/2016, Gov. Gazette ΥΟΔΔ 392/20-07-2016. Joint Ministerial Decision, Gov. Gazette ΥΟΔΔ 683/14-12-2016.
- 15. Full decision on file with the author.
- 16. Article 56(2) L 4375/2016.