Special procedural guarantees

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Adequate support during the interview

According to Article 72 (2) Asylum Code, where applicants have been identified as applicants in need of special procedural guarantees, they shall be provided with adequate support in order to be in the position to benefit from the rights and comply with the obligations in the framework of the asylum procedure.

The Asylum Code provides examples of forms of adequate support that can be granted in the procedure. More specifically:^[1]

• The possibility of additional breaks during the personal interview;
• The possibility for the applicant to move during the interview if his or her health condition so requires; and
• Leniency to minor inconsistencies and contradictions, to the extent that they relate to the applicant’s health condition.

National legislation expressively provides that each caseworker conducting an asylum interview shall be ‘trained in particular as of the special needs of women, children, and victims of violence and torture.’^[2]

The law also provides that, when a woman is being interviewed, the interviewer, as well as the interpreter, should also be female where this has been expressly requested by the applicant.^[3]

In practice, GCR is aware of cases where the vulnerability or particular circumstances of the applicant have not been taken into account or have not properly been assessed at first or/and second instance.

According to GCR’s observations, inadequate interview conditions continued to be reported in the premises of RAO and AAUs in 2023. Notably, registrations and interviews were conducted without consideration of potential vulnerabilities and relevant needs. Certain interviews and registrations took place simultaneously in different spaces within the same container, which does not provide proper sound insulation and is not in line with the principle of confidentiality.

The Appeals Committees further contribute to the non-implementation of special procedural guarantees through a strict interpretation of Article 72 Asylum Code. Several Committees have ruled that the onus is on the asylum seeker to establish exactly what evidence he or she would have been able to submit in his/her specific case if procedural guarantees had been provided during the procedure.^[4]

According to a decision of the 10^th Committee of the Appeals Authority dated 13 November 2023 regarding the second instance examination of the asylum case of a vulnerable person from Siera Leone, the vulnerability of the applicant “was not assessed, since on the day of his registration he was subjected to an extremely superficial, non-thorough and faulty medical examination […] Therefore […] at the time of his oral interview, the procedures of first reception had not even been initiated, let alone completed, and specifically his assessment as vulnerable by the competent EODY psychosocial unit. Thus, an essential type (of the procedure) was violated, as the assessment and recognition of vulnerability constitutes a special procedural guarantee in favor of the asylum seeker and a special procedural obligation of the Administration, the violation of which affects the validity of the examination of the application for international protection, making it ineffective and non-specialized […] In view of these, the Committee judges necessary to postpone the issuance of its final judgment so that the applicant can undergo at his own initiative medical examinations and present medical certificates on his state of health during the new scheduled discussion of the case […]”.-^[5]

All decisions rejecting minors’ claims have troubling similarities. Procedural deficits (absence of a guardian, of appropriate legal representation and legal aid during the process), as well as substantial deficits regarding the determination of refugee status (lack of any reference to the Best Interest of the Child or lack of assessment thereof, obvious lack of knowledge regarding forms of child persecution in general and in countries of origin in particular or the lack of a proper assessment of a minor’s credibility), make it almost impossible for unaccompanied minors undergoing the procedure themselves to qualify for international protection. The number of decisions granting refugee status or subsidiary protection to unaccompanied children and the number of in-merit rejection decisions issued throughout 2023 is not available. What is available is only the number of 1^s instance decisions granting refugee status and subsidiary protection to UAMs, which amounted to a total of 1,163 (1,133 decisions granting refugee status & 30 decisions granting subsidiary protection).^[6]

Exemption from special procedures

The Asylum Code does not provide for the exemption of vulnerable persons from special procedures as a rule (see Identification).^[7] Applicants in need of special procedural guarantees are only exempted from the Accelerated Procedure, the Border Procedure, and the Fast-Track Border Procedure where adequate support cannot be provided (see above).^[8]

Appeals Committees have continued to dismiss alleged infringements of Article 72(3) Asylum Code stemming from the failure of the Asylum Service to exempt the applicant from the fast-track border procedure, on the ground that the appellant has not demonstrated procedural damage (δικονομική βλάβη). The position of the Appeals Committees remains incompatible with the case law of administrative courts, according to which failure to refer such cases to the regular procedure unlawfully circumvents the special protection afforded by law to vulnerable groups.

Illustrative of the above is a decision issued by the Supreme Administrative Court of Pireus (decision Α65/2023) in the case of a vulnerable woman from Iraq, whose decision recognizing her vulnerability and referring her to the normal procedure was not taken into consideration by the Asylum authorities, even if it was issued before the issuance of 1^st instance decision rejecting her asylum application. According to the Court: “the legislator establishes special treatment for applicants for international protection, who are proven to belong to the category of vulnerable persons. […] the applicant’s application for international protection was referred to the normal procedure, as it was judged that she […] suffers from a mental illness. Both the Regional Asylum Office of Lesvos, which examined in first instance her application for the granting of international protection, issuing its decision […] after the issuance of the above decision, as well as the Independent Appeals Authority that examined her appeal, should have refrained from issuing a decision and refer the case back to the competent authorities, in order to re-examine the asylum request, based on the guarantees of the normal procedure (longer deadline, possible search for legal assistance), after conducting a new interview of the applicant by an employee of the Asylum Service specialized in vulnerability issues […]”^[9].

Unaccompanied children below the age of 15, as well as unaccompanied children who are victims of trafficking, torture, rape, or other forms of serious psychological, physical and sexual violence, are always processed under the regular procedure.^[10] For those aged 15 or over who are not victims of trafficking, torture or violence, exemption from special procedures depends on the individual grounds applied by the authorities in each case:^[11]

As far as the Safe Third Country concept is concerned, the law specifies that unaccompanied children may only be subject to the border and fast-track border procedure if it complies with their best interests.^[12]

Pressure on the Greek authorities to abolish the exemptions of vulnerable applicants from the fast-track border procedure and to “reduce the number of asylum seekers identified as vulnerable”, for the sake of the implementation of the EU-Türkiye statement and the increase of returns to Türkiye, has already been reported since late 2016.^[13] However, as underlined by FENIX “[…] serious deficiencies in the determination of asylum applicants’ vulnerabilities have been systematically observed in recent years in Greece, […] Asylum applicants often are rushed through several different phases of the asylum process before the medical and/or psychosocial examinations are completed. Frequently, asylum interviews are conducted even while the medical assessment remains pending”.^[14]

Within this framework, L 4540/2018, transposing the recast Reception Conditions Directive, has omitted persons suffering from PTSD from the list of vulnerable applicants.^[15] The same omission was made in the subsequent adoption of both the IPA and the Asylum Code.

Prioritisation

Although Article 39(5)(d) IPA provided that applications of persons belonging to vulnerable groups were examined “under absolute priority”,^[16], this provision was abolished by L. 4686/2020.^[17]

^[1] Article 67(2) IPA.

^[2] Article 82(12)(a) Asylum Code.

^[3] Article 82(5) Asylum Code, as well as Administrative Court of Appeal of Athens, Decision 3043/2018, in Farmakidis-Markou Konstantinos, Refugee Law, Nomiki Bibliothiki, 2021, in greek, in which the court found that an applicant who has not requested an interpreter of the same gender for the interview cannot rely on this provision at a later stage.

^[4] 6^th Appeals Committee, Decision 30955/2020, 18 May 2021, para II.4; 12^th Appeals Committee, Decision 233902/2021, 9 September 2021, p. 3.

[5] Decision IP/268799/2023/13.11.2023 of the 10th Committee of the Appeals Authority on a case legally supported in 2^nd instance by the Registry of Lawyers of the Asylum Service in GCR/HIAS/RSA, Δελτίο Νομολογίας Ασύλου 2/2203, December 2023, pp. 25-26, available in Greek at: https://bit.ly/3JuO7y7.

[6] MomA, Information Note A, December 2023, Reception, Asylum & Integration Procedures, p. 8, available in Greek at: https://tinyurl.com/59d5hubb.

^[7] Article 41 (d) Asylum Code provides that the determination of an applicant as vulnerable has the sole effect of triggering immediate care of particular reception, and Article 77 (3) Asylum Code adds ‘the provision of special procedural guarantees’.

^[8] Article 72(3) Asylum Code. This provision clarifies that, where the applicant falls within the cases where appeals have no automatic suspensive effect, he or she must have access to interpretation services, legal assistance and at least one week to prepare the appeal (see also Border Procedure and Fast-Track Border Procedure).

[9] Decision A65/2023 of the Supreme Administrative Court of Pireus in GCR/HIAS/RSA, Δελτίο Νομολογίας Ασύλου 1/2023, June 2023, pp. 26-27, available at: https://bit.ly/4bbuWWd. The case was legally supported by GCR.

^[10] Article 80(7) of the Asylum Code.

^[11] Articles 88(10) and 95(4) of the Asylum Code.

^[12] Article 95(4)(d) of the Asylum Code.

^[13] European Commission, Joint Action Plan of the EU Coordinator on the implementation of certain provisions of the EU-Türkiye Statement, Annex 1 to COM(2016) 792, 8 December 2016, paras 2 and 3, available at: https://bit.ly/44e019t; Human Rights Watch, EU/Greece: Pressure to minimise numbers of migrants identified as vulnerable, 1 June 2017, available at: https://bit.ly/3RqQM0F; AIDA, The concept of vulnerability in European asylum procedures, September 2017, p. 17, available at: https://bit.ly/424yGDH.

^[14] FENIX – Humanitarian Legal Aid, Unrecognised Vulnerability- Greece’s systematic failure to identify and certify Victims of Torture, p. 12, available at: https://tinyurl.com/mwpxajcv.

^[15] Article 20(1) L. 4540/2018, which was later abolished by article 119 (2) of L 4636/2019 See currently in force article 1 (lc) regarding the definition of vulnerable persons, where persons suffering from PTSD are not included.

^[16] Article 39(5)(d) L.4636/2019.

^[17] Article 2(3) L. 4686/2020.