Article 46(2) L 4375/2016 requires authorities to examine and apply alternatives to detention before resorting to detention of an asylum seeker. A non-exhaustive list of alternatives to detention provided by national legislation, both for third-country nationals under removal procedures and asylum seekers, is mentioned in Article 22(3) L 3907/2011. Regular reporting to the authorities and an obligation to reside at a specific area are included on this list. The possibility of a financial guarantee as an alternative to detention is also foreseen in the law, provided that a Joint Decision of the Minister of Finance and the Minister of Public Order will be issued with regard to the determination of the amount of such financial guarantee.1 However, such a Joint Ministerial Decision is still pending since 2011. In any event, alternatives to detention are not systematically applied in practice.2
When issuing recommendations on the continuation or termination of detention of an asylum seeker,3 the Asylum Service tends to use standardised recommendations, stating that detention should be prolonged “if it is judged that alternative measures may not apply”. Thus, the Asylum Service does not proceed to any assessment and it is for the Police to decide on the implementation of alternatives to detention.
As underlined by a GCR policy paper issued in December 2015, a percentage of about 80% of the asylum seekers fully comply with the obligation to report before the Asylum Service, regardless of whether they applied for asylum at liberty or from detention. GCR has recommended the Greek authorities to duly assess this evidence in order for an effective policy on alternatives to be designed and implemented.4
The geographical limitation on the islands
As regards the “geographical limitation” on the islands, i.e. the obligation to remain on the island of arrival, imposed systematically to newly arrived persons subject to the EU-Turkey statement, after an initial period of detention, the legal nature of the measure has to be assessed by taking into account the “concrete situation” of the persons and “a whole range of criteria such as the type, duration, effects and manner of implementation of the measure.”5 In any event, it should be mentioned that the measure is:
- Not examined and applied before resorting to detention;6 and
- Applied indiscriminately, without a proportionality test, for an indefinite period (without a maximum time limit to be provided by law) and without an effective legal remedy to be in place.
As it has been observed, a national practice systematically imposing an alternative to detention “would suggest that the system is arbitrary and not tailored to the individual circumstances” of the persons concerned.7
- 1. Article 22(3) L 3907/2011.
- 2. See inter alia Aitima, Forgotten: Administratively detained irregular migrants and asylum seekers, October 2016; GCR, The implementation of Alternatives to Detention in Greece, December 2015, 12; Ombudsman, Return of third-country nationals: Special Report 2015, December 2015.
- 3. Article 46(3) L 4375/2016.
- 4. GCR, The implementation of Alternatives to Detention in Greece, 56, 73.
- 5. See inter alia ECtHR, Guzzardi v. Italy, Application No 7367/76, Judgment of 6 November 1980, para 92-93.
- 6. UN Commission on Human Rights, Report of the Working Group on Arbitrary Detention. Addendum: report on the visit of the Working Group to the United Kingdom on the issue of immigrants and asylum seekers, 18 December 1998, E/CN.4/1999/63/Add.3, available at: http://bit.ly/2kFs5LN, para 33: “Alternative and non-custodial measures, such as reporting requirements, should always be considered before resorting to detention”.
- 7. UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012, available at: http://bit.ly/2mJk3Uh, 43.