Fast-track border procedure (Eastern Aegean islands)

Author

Greek Council for Refugees Visit Website

General (scope, time limits)

Although the fast-track border procedure was initially introduced as an exceptional and temporary procedure, it has become the rule for a significant number of applications lodged in Greece. In December 2023, the total number of applications (first time and subsequent) lodged before the RAOs of Lesvos, Samos, Chios, Leros and Kos was 4,258, 63% of the total number of applications lodged in Greece in the same month.^[1] Data on the total number of applications lodged before all islands’ RAOs in 2023 have not been provided by the MoMA. Only monthly records of asylum applications lodged before each island’s RAO are available at the MoMA’s website.

The impact of the EU-Türkiye Statement has been, inter alia, a de facto dichotomy of the asylum procedures applied in Greece.^[2] This is because the fast-track procedure is only applied in cases of applicants subject to the EU-Türkiye Statement, i.e., applicants who arrived on the Greek Eastern Aegean islands after 20 March 2016 and have lodged applications before the RAO of Lesvos, Chios, Samos, Leros and Kos.

Moreover, in 2023, asylum seekers that arrived in Rhodes were transferred inter alia to Leros and Kos CCACs and lodged applications before Leros and Kos RAOs, respectively, channeled therefore into fast-track border procedures despite having arrived on another island.^[3] It should be noted that no reception conditions had been provided in Rhodes during the waiting period for their transfer.

However, applications lodged before the Asylum Unit of Fylakio by newly arrived persons who entered through the Greek-Turkish land border and remain in the RIC in Fylakio in Evros are not examined under the fast-track border procedure. In 2023, 7,079 applications were lodged before the Asylum Unit of Fylakio.^[4]

Asylum procedures are currently regulated by the Asylum Code. More particularly, Article 95(3) Asylum Code foresees that the fast-track procedure can be applied as long as third country nationals who have applied for international protection at the border or at airport / port transit zones or while remaining in Reception and Identification Centres (RICs), are regularly accommodated in places close to the borders or transit zones. Initially, a Joint Ministerial Decision (JMD) issued on 30 December 2020, provided for the application of the fast-track border procedure under Article 90 (3) of Law 4636/2019 for those who arrived at the Greek Eastern Aegean Islands.[5]

Main features of the fast-track border procedure under the Asylum Code

The fast-track border procedure under Article 95(3) Asylum Code repeats the previous legal framework and provides inter alia that:

• 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, if police staff are not sufficient.
• The asylum seeker interview may also be conducted by Greek language personnel deployed by EUAA. However, Article 95(3) also introduced the possibility, “in particularly urgent circumstances”, that the interview can be conducted by trained personnel of the Hellenic Police or the Armed Forces –as long as they have received specific training, as opposed to the strict limitation to registration activities under previous L. 4375/2016.
• The asylum procedure shall be concluded in a short time period.

This may– and often does– result in compromising the procedural guarantees provided by the international, European and national legal framework, including the right to be assisted by a lawyer. Extremely brief time limits significantly affect the procedural guarantees to which asylum seekers are entitled in a fast-track procedure and, therefore, there should be an assessment of their conformity with Article 43 of the recast Asylum Procedures Directive, which provides that restrictions on procedural rights in a border procedure cannot be imposed for reasons related to large numbers of arrivals.

More precisely, according to Article 95(3)(c) Asylum Code:

• the Asylum Service shall issue a first instance decision within seven days;
• the deadline for the submission of an appeal against a negative decision is ten days;
• the deadline for the submission of an appeal does not always have an automatic suspensive effect, as provided by Article 110 (3) Asylum Code, and a separate application for suspension of removal needs to be submitted before the Appeals Authority, within the deadline for the submission of the appeal;
• the examination of an appeal shall be carried out within four days. The appellant is notified within one day to appear for a hearing before the Appeals’ Committees or to submit supplementary evidence; and
• the second instance decision shall be issued within seven days.

It should be noted that these very short time limits seem to be exclusively at the expense of applicants for international protection in practice. In fact, whereas timelines are, as a general principle, not compulsory for the authorities and case processing at the borders takes several months on average, applicants still have to comply with the very short time limits provided by Article 95(3) Asylum Code.^[6] In 2023, official data regarding the average time between the full registration of the asylum application and the issuance of a first instance decision under the fast-track border procedure was not available.

The Greek Asylum Service is under constant pressure to accelerate the procedures on the islands, which was also one of the reasons invoked to amend the national legislation in late 2019. The FRA’s concerns related to the very limited processing time imposed in the scope of the previous legal framework and the impact that this could have on the quality of the procedure remain. More specifically, FRA emphatically underlined that “even with the important assistance the European Asylum Support Office provides, it is difficult to imagine how the processing time of implementing the temporary border procedure under Article 60(4) L.4375/2016 or the regular asylum procedure on the islands can be further accelerated, without undermining the quality of decisions. Putting further pressure on the Greek Asylum Service may undermine the quality of first instance asylum decisions, which in turn would prolong the overall length of procedure, as more work would be shifted to the appeals stage.”^[7]

In 2023, the fast-track border procedure has continued being variably implemented depending on the profile and nationality of the asylum seekers concerned (see also Differential Treatment of Specific Nationalities in the Procedure). Within the framework of that procedure:

• In 2023, data on in-merit and inadmissibility decisions issued by the Asylum Service in the fast-track border procedure have not been provided by the MoMA, even though GCR has requested it. Instead, following the latest such request sent by GCR in January 2024, the MoMA replied by referring GCR to the Ministry’s website “and in particular at the link https://migration.gov.gr/statistika/[where] the monthly newsletters are published, alongside relevant annexes, which include summary and detailed statistical data on the work of the First Reception Service, the Asylum Service and the Appeals Authority […]”.^[8] Yet a closer look at the public sources referred by the MoMA highlights that the specific data is not available.
• In October 2021, notes by the Readmission Unit of the Hellenic Police Headquarters confirmed that Türkiye has indefinitely suspended returns from Greece since 16 March 2020. Due to this suspension, the Greek authorities stopped sending readmission requests to Türkiye based on the Common EU- Türkiye Statement for rejected asylum seekers.^[9]
• According to MoMA’s Report 2023: “Returns under the EU – Turkey Joint Declaration have not been made since March 2020 due to Covid-19. It should be noted that despite the lifting of the Covid-19 measures the requests of missions-returns of the Greek authorities have not been answered”.^[10]
• Despite this suspension, the Greek authorities refused to examine applications for international protection on their merits, as required by Article 91(5) of Asylum Code.

Generally, in 2021, a large number of asylum seekers with specific profiles, meaning high recognition rate, (i.e., asylum seekers from Palestine, Eritrea and Yemen) had been granted refugee status on the basis of their administrative file, without undergoing an asylum interview, although this was not a consistent practice of the Asylum Service throughout the year or even between different Regional Asylum Offices applying the border procedure. This practice changed during 2022 and asylum seekers with specific profiles had to undergo asylum interviews. This has been the case for Eritrean nationals in Lesvos,^[11] and for all Palestinians in Lesvos, Chios and Kos. It should be noted that, in Kos, all Palestinians coming from Syria were being examined on admissibility and safe third country grounds.^[12]

During 2023, and approximately since September 2023, asylum seekers from countries with over 95% recognition rate (i.e., applicants from Palestine, Yemen, Sudan) had been granted refugee status on the basis of their administrative file, without undergoing an asylum interview, in application of article 82 para. 7 of the Asylum Code. The same practice was applied during 2023, in Fylakio Evros, for asylum applicants of Yazidi origin; they have been granted refugee status on the basis of their administrative file.^[13]

However, in Lesvos, a malpractice has been observed with regard to Eritrean nationals. Specifically, individuas who have stated being Eritreans but who had resided most of their life in Ethiopia have been falsely registered as Ethiopians. It has been observed by legal actors that FRONTEX assessed them as Ethiopian nationals and not as Eritreans contrary to their statements. Legal aid actors observed the following:^[14]

• The applicants underwent a nationality assessment during their interview at RAO Lesvos, during which they were asked questions regarding Eritrea which they could be reasonably unable to answer (since applicants claimed that they left their country of origin when they were very young, lost their parents, etc).
• In some cases, two interviews were conducted: RAO called the applicant for a 2nd interview during which they informed him/her that RAO, based on the first interview including a nationality assessment, rejected his/her claim as Eritrean national, concluded that he/she is Ethiopian and then asked the applicant whether he/she wanted to submit an application to change their nationality.
• It appears that the Estimated Nationality during the identification procedure functioned as an irrebuttable presumption and could only be disputed if original documents had been provided. Some negative decisions claimed that: “The applicant did not provide the [Asylum] Office with an original identification document or other document in support of her [/his] claims in the context of the examination of her [/his] application for international protection. Her [his] administrative file contains a screening report No [XXXXXX] addressed to the Commander of the Lesvos RIC, where it is marked as Estimated Nationality after Screening, ETHIOPIA, as resulting from the identification procedure.”
• In some cases, while the Asylum Service accepted that the applicant was born in Eritrea, it rejected the nationality claim (as not internally credible due to the lack of information provided/inability to answer the questions regarding Eritrea) and held thereafter the asylum application unfounded.
• Another decision rejected an asylum application as manifestly unfounded, according to article 93 par. 2 d, on the basis that the applicant provided false information regarding his nationality and tried to mislead the authorities.
• In some cases, where lawyers asked Lesvos RIS for copies of their cleints’ files, there was no report to be provided regarding the nationality assessment.^[15]
• A report has been submitted asking for the intervention of the Greek Ombudsman regarding a case pending at second instance. ^[16]
• No cases of the above-described malpractice were observed in the mainland.[17]

In accordance with Article 92(5) Asylum Code, applications of asylum seekers nationals of countries listed as ‘safe countries of origin’ in the national list have been examined on the merits only to the extent of their claims against the application of the safe country of origin assumption.[18]

It has been highlighted that “the practice of applying different asylum procedures according to the nationalities of the applicants is arbitrary, as it is neither provided by EU nor by domestic law. In addition, it violates the principle of non-discrimination as set out in Article 3 of the Geneva Convention of 28 July 1951 relating to the status of refugees (Geneva Convention). Instead, it is explicitly based on EUAA’s undisclosed internal guidelines, which frame the hotspot asylum procedures in order to implement the EU-Türkiye statement.”^[19]

Exempted categories from the fast-track border procedure under the Asylum Code

As opposed to previous legislation, the Asylum Code repeals the exception of persons belonging to vulnerable groups and applicants falling under the Dublin Regulation from the fast-track border procedure (see Identification and Special Procedural Guarantees).

Data for the number of cases exempted from the border procedure on grounds of vulnerability and need for special procedurals guaranteed under the Asylum Code in 2023 are not available.^[20]

In 2023, Lesvos RAO has automatically applied non-border procedures for applicants to whom first instance decisions had not been notified within 28 days from registration, without however issuing any decision for a referral to the normal procedure (as it is not foreseen in the law, according to RAO).^[21] In these cases, the deadline for the appeal is automatically extended as follows: for admissibility, the 10 days turn automatically to 20 days , for eligibility, from 10 to 30 days, and for eligibility for safe country of origin cases from 10 to 20 days. This practice is based on article 95 paragraph 2 of law 4939/2022.^[22] The same practice has been observed by legal aid actors in Kos RAO;the practice was first noticed at the beginning of 2023 and continued throughout the year.

Furthermore, the total number of unaccompanied minors examined under border procedures in 2023 is not available. In particular, as far as unaccompanied minors are concerned, Article 80 (7) Asylum Code provides that applications filed by minors under the age of 15, as well as minors who are victims of human trafficking, torture, rape or other serious forms of psychological, physical or sexual violence shall be examined under the regular procedure. However, Article 95 (4) Asylum Code provides that unaccompanied minors are examined under the fast-track border procedure if:

• the minor comes for a country designated as a safe country of origin in accordance with the national list (according to article 92 (5) Asylum Code);
• he/she submits a subsequent application;
• he/she is considered a threat to the public order/national security;
• there are reasonable grounds to believe that a country can be considered as a safe third country for the minor, and if it is in line with the best interest of the minor;
• the unaccompanied minor has misled the authorities by submitting false documents or he/she has destroyed or he/she has lost in bad faith his or her identification documents or travel document, under the conditions that they or their guardian be given the opportunity to provide sufficient justification for it.

Personal interview

According to Article 69 (1) Asylum Code, asylum applicants are already required at the stage of registration of their asylum application before RAOs, to give exhaustive reasons for fleeing their country of origin. If they fail to mention all reasons during the registration, they have no right to develop claims which are only for the first time mentioned during their asylum interview. However, in practice, the registration of the asylum application in the islands is too succinct to provide them with the opportunity to do so, as it only focuses on very basic information.

Αt the end of 2021, the Reception Service (RIS) at the Kos and Samos RICs (now CCACs) started carrying out the full registration of asylum applications, as opposed to the Asylum Service until then. In 2022, this practice was adopted by the RISs/CCACs in all the islands and it continued in 2023.  Ever since the registration of asylum applications was removed from the Asylum Service and was undertaken by the RIS, the registration form includes very limited information. Nevertheless, in practice, asylum seekers have the opportunity during their interviews to present their full claims, including information that was not mentioned in their registration form.

According to Article 82(4) Asylum Code prior to the first interview of an asylum applicant that has been considered vulnerable, if his/her interview is scheduled within 15 days from the submission of his/her application, the applicant shall be granted reasonable time to prepare himself/herself and consult a legal or other adviser to assist him/her during the interview. The reasonable time for preparation is determined by the competent authority, meaning the Asylum Service, and shall not exceed three (3) days. If the interview is scheduled at a time later than fifteen (15) days from the submission of the application for international protection, no preparation time is granted. If the interview is postponed, no further preparation time shall be granted. This means that in the latter two cases, the applicant will not be given any additional time to prepare him/herself for the interview from the time he/she is informed of his/her interview appointment.

Decisions at first instance shall be issued within seven days, according to Article 95(3)(c) of the Asylum Code.

However, in practice, based on the observations of legal and psychosocial actors operating in the field, including GCR, the newcomers undergo the interview procedure without prior adequate evaluation of their potential vulnerabilities. Most of the time, the RIS’ Medical and Psychosocial Unit (not always staffed by a doctor) proceeds with a typical medical check and record only manifest vulnerabilities. In any case, there is no information exchange mechanism between the RIS’ Vulnerability Focal Point (VFP) and RAO, and no relevant joint process to ensure that interviews are scheduled after the vulnerability assessment is completed. Even when RAO caseworkers refer the case to RIC’s Medical and Psychosocial Unit for further vulnerability assessment, they do so after the interview has been completed. No postponements have been granted for interviews despite the applicants’ and their legal representatives’ requests that vulnerability assessments be completed prior to the interview. Accordingly, no reasonable time for their preparation can be granted on the basis of their vulnerabilities, since they have not been had the opportunity to be identified.

Article 74(3) Asylum Code expressly foresees that communication with asylum applicants (including interviews) may be conducted in the official language of their country of origin, or in another language that it is reasonably considered that the asylum applicant understands, if it has been proven manifestly impossible for the authorities to provide interpretation in that language. In practice, a refusal of the applicants to undergo procedures in the official language of their countries of origin, rather than their native languages, may be considered a violation of their obligation to cooperate with the authorities and lead to the rejection of their application.

According to Article 95(3)(b) Asylum Code, the personal interview may be conducted by Asylum Service staff or EUAA personnel or, “in particularly urgent circumstances”, by trained personnel of the Hellenic Police or the Armed Forces.^[23] With regard to the possibility of personnel of Hellenic Police or Armed Forces conducting personal interviews, Amnesty International has underlined that the application of such provision “would be a serious backward step that will compromise the impartiality of the asylum procedure”.^[24] So far, the Hellenic Police or Armed Forces have not carried out personal asylum interviews, however, they did undertake the full registration of asylum applications in certain circumstances.

EUAA (former EASO)’s competence to conduct interviews was introduced by an amendment to the law in June 2016, following an initial implementation period of the EU-Türkiye Statement during which the exact role of EASO officials as well as the legal remit of their involvement in the asylum procedure was uncertain. The EASO Special Operating Plans to Greece foresaw a role for EASO in conducting interviews (face-to-face and remote) in different asylum procedures, drafting opinions and recommending decisions to the Asylum Service throughout 2017, 2018, 2019, 2020 and 2021.^[25] A similar role is foreseen in the Operational & Technical Assistance Plan to Greece 2022-2024, including in the Regular procedure.^[26]

In practice, in cases where the interview is conducted by an EUAA Greek speaker caseworker, the latter provide an opinion / recommendation (πρόταση / εισήγηση) on the case to the Asylum Service, which remains the competent authority for the issuance of the decision. The transcript of the interview and the opinion / recommendation are written in Greek. The issuance of an opinion / recommendation by EASO/EUAA personnel to the Asylum Service is not foreseen by any provision in national law and thus lacks a legal basis.^[27] Finally, a caseworker of the Asylum Service, without having had any direct contact with the applicant, e.g., to ask further questions, issues the decision based on the interview transcript and the opinion / recommendation provided by EASO/EUAA, without being bound by it.^[28]

In 2023, the number of interviews carried out by EUAA caseworkers in Greece continued to decrease, compared to previous years, to interviews in the asylum cases of 7,272 applicants. Of these, 77% related to the top 10 citizenships of applicants interviewed by the EUAA, in particular Somalis (1,620), Afghans (687), Pakistanis (592) and Eritreans (538).^[29]

The number of concluding remarks issued by EUAA decreased to 776 in 2023, a significant drop compared to 2022 (5,071). This is due to the fact that, following the June 2021 Joint Ministerial Decision designating Türkiye as a safe third country for applicants from five of the most common countries of origin in Greece, the drafting of concluding remarks by EUAA caseworkers is no longer required for a large share of cases, that is those examined on admissibility.^[30]

Particularly, the RAOs had no consistent practice regarding any further examination of allegations of pushbacks during the asylum interview. The caseworkers had discretion as to whether to devote time during the interview and ask further questions regarding the reported “pushback” incident by the asylum applicant.

Moreover, it remains unclear how until today the EUAA case workers handle the information on criminal acts and violation of EU and international law at the EU external borders by other actors that are brought to its attention.

The establishment of the EUAA Complaints Mechanism as regards complaints against EUAA personnel is a work in progress under the responsibility of the newly appointed EUAA Fundamental Rights Officer (FRO).^[31] However, complaints can only be submitted by persons directly affected (or their representatives) by the actions of asylum support team members, when they consider that their fundamental rights have been violated due to an expert’s actions.^[32] This is stipulated in the EUAA Regulation in such wording and the scope for the complaints mechanism can therefore not be broadened to include other instances of violations. For any other violations of fundamental rights not committed by members in Asylum Support Teams (ASTs), the EUAA is working in parallel on developing an escalation mechanism which would allow for an appropriate escalation process for situations when Agency staff becomes aware of any serious violations of fundamental rights or international protection obligations committed by a host Member State.

In an unknown number of cases, decisions have been issued by different RAOs and/or AAUs from those where the interviews have been conducted, operating supportively to the latter.

In 2023, in Lesvos, the applicants continued to receive an invitation for their interview, according to which they needed to present themselves before the RAO in Pagani area at the day of their interview  at 7:00 am, without any information regarding the actual time that their interview was scheduled.^[33] In practice, this meant that there were many applicants that appeared before the RAO’s gate at 6:30 only to start their interviews at 12:00 or even at a later time, while waiting all these hours in an open-air space, often exposed to bad weather conditions. Additionally, there was no waiting area at the premises of the RAO for the lawyers who represent asylum seekers at registrations and interviews. Moreover, employees of the RAO very often refused to receive the lawyers in the offices, within the premises of the RAO.[34] Instead, the lawyers were received in the courtyard, in circumstances that violated the necessary conditions of confidentiality and, in general, the dignified exercise of the legal profession. In many cases, both attorneys and asylum seekers waited for long, exhausting hours, resulting in fatigue, jeopardizing the quality of the interviews. The issue of the lack of waiting area persisted in 2024.[35]

Quality of interviews

The quality of interviews conducted by EUAA and RAO caseworkers has been highly criticised. Inter alia, quality gaps such as lack of knowledge about countries of origin, lack of cultural sensitivity, questions based on a predefined list, closed and leading questions, repetitive questions, frequent interruptions and unnecessarily exhaustive interviews and conduct preventing lawyers from asking questions at the end of the interview continue to be reported.^[36]

In 2023, legal aid actors continued to observe issues concerning the quality of the interviews as well as the procedural fairness of how they are conducted, mainly those conducted by the Greek Asylum Service. Specifically, concerns were raised about the use of  unsuitable communication methods and  questions related to past experience of harm and/or persecution which included closed questions impeding a proper follow-up, no opportunity to explain the case in the applicant’s own words, failure to consider factors that are likely to distort the applicant’s ability to express him or herself properly (such as mental health issues or prior trauma and/or illiteracy), lack of clarification with regard to vague or ambiguous concepts mentioned by the interviewer, potential inconsistencies or misunderstandings regarding critical aspects of the case that could lead to confusion and/or the inability of the applicant to express him or herself effectively, and more generally, violations of the right to be heard. Moreover, concerns have been raised regarding the use of unsuitable methods and questions, including unfriendly interview environment for a) the applicants’ age, in cases of alleged minors, and more generally, violations of the right to a child-friendly environment and procedure, b) gender-based violence (GBV) survivors[37], and c) LGBTQI+ persons.[38] In general, no individualised assessment of the specific profile and circumstances of the asylum applicant or gender-sensitive assessment was taking place.

Namely, results of a survey on treatment of LGBTQI+ asylum seekers in Greece within the context of the asylum procedure, based on interviews conducted in 2023, revealed use of prohibited and discriminatory questioning, questions related to sexual practice and questions based on stereotypical notions during the asylum interview by the caseworkers, and a lack of caseworkers’ competence in assessing LGBTQI+ claims and failure to align with the DSSH (Difference, Shame, Stigma, Harm) model provided by the EUAA.[39]

Indicatively, see the reasoning of a negative decision issued by Kos RAO, for an asylum applicant with, inter alia, a homosexuality claim:[40] “For instance, the applicant could not elaborate on the process and the way in which he became aware of his sexual orientation, saying that this happened after an incident of rape when he was [x – minor] years old. […] The applicant gives almost no information about this [rape] incident. When next asked how he felt about his realization of his sexual orientation, he was content to answer that he accepted it while others did not. One would expect that since it was an internal process, and indeed something that would cause him trouble in his own country, he would be able to give more details about how he experienced it and his feelings and even give more information about how he became aware of it. Finally, when asked whether he knew about LGBTI organizations in his country or about the law on homosexuality in his country, the applicant replied negatively. One would expect him to be aware of such organizations or even the law since he stated that from X to X he became aware of his sexual orientation and externalized his feelings, a reason which played a decisive role in the applicant’s decision to leave the country. In a more general assessment, these allegations of the applicant are considered to be incoherent and general and as a result, the Service finds that the internal credibility of the above allegation has not been established.” The above reasoning of the first instance negative decision is indicative of the problematic, judgmental and non-sensitive approach and credibility assessment of the Asylum Service with regard to LGBTQI persons and GBV survivors.

Moreover, in 2023, a significant number of asylum applicants continued to report that, during their interview, they were not granted sufficient time and, as a result, their asylum claims were not examined thoroughly. An additional issue relates to the fact that the caseworkers do not follow a standard procedure on the examination of allegations of pushbacks when such are mentioned during the asylum interview. According to lawyers, in certain cases the caseworkers disregard allegations, claiming that they are not relevant to the interview, while other caseworkers proceed to further investigate the incidents by asking focused questions.

Appeal

In 2023, a total of 960 appeals were lodged on the islands against first instance decisions by the Asylum Service.^[41]

Changes in the Appeals Committees

As noted in the Regular procedure, Article 148 Asylum Code^[42] provides that the Appeals Committees under the Independent Appeals Authority, comprised of administrative judges, may operate in a single or three-member composition.

Rules and time limits for appeal

Similar to the first instance fast-track border procedure, truncated time limits are also foreseen in the appeal stage. In particular, the deadline for appealing a negative decision is 10 days, instead of the 30 days deadline foreseen in the regular procedure.^[43] The Appeals Committee examining the appeal must make a decision within seven days,^[44] contrary to 30 days in the regular procedure.^[45] In practice, this very short deadline is difficult for the Appeals Committees to meet, and raises serious concerns over the quality of the decisions issued.

From 1 December 2019 to 31 December 2023, the average time from appeal lodging to issuance of decision (12,334 second instance decisions in total as regards appeals against islands’ RAOs first instance decisions) was 81 days.^[46]

Additionally, from 1 December 2019 to 31 December 2023, the average time from appeal examination to issuance of decision by the Appeals Committees (12,972 decisions in total) was 55 days.^[47]

As a rule, the procedure before the Appeals Committees must be written, based on the examination of the dossier, except from cases, provided by the article 102(3) Asylum Code, where the Appeals Committee decides to call for an oral hearing.^[48]

As far as the appeal procedure is concerned, in addition to the concerns related to the admissibility of appeals in general (see Regular Procedure), it shall be noted that it is practically impossible for the applicants to submit an appeal on their own, i.e., without legal aid. Specifically, Article 98 of the Asylum Code requires, for the appeal to be admissible, inter alia, reference and development of specified reasons for the appeal. At the same time, the negative decisions are served to the applicants in Greek, and though a simplified text in a language the applicant is expected to understand is served as an accompanying document, this text only provides generic information on the the rejection/does not explain the precise reasons for which the application has been rejected, therefore making it  impossible for them to read and be aware of the exact reasons for which their asylum application has been rejected. It is evident that, without legal, aid applicants cannot adequately articulate the legal and factual grounds on which their appeals are based, particularly taking into consideration the requirement that such appeals be submitted in Greek.

The provisions of the Asylum Code relating to the fictitious service (πλασματική επίδοση) of first instance decisions are also applicable to the fast-track border procedure and thus the deadline for lodging an appeal against a first instance negative decision may expire without the applicant having been actually informed about the decision.^[49]

Asylum applicants in Kos, Lesvos, Samos and Chios, were invited in RAOs to sign a “declaration of e-mail address for communication with the asylum service”, in which, among other things, the applicant who gives his/her e-mail address and confirms the following statement: ‘I wish this address to be used for my communication with the Asylum Service (information, appointment, service of decisions, etc. documents, etc.)’. The information on the above was provided to the applicants with the assistance of an interpreter.

Paragraph 3 of Article 87 Asylum Code stipulates that “The service of the decision to the applicant shall be carried out (….) or (c) by e-mail to an address indicated by the applicant to the Reception and Identification Service or the Asylum Service or to an address indicated by his/her attorney or authorized counsel or representative or (….). Paragraph 4 of the same article states that “In case the applicant is a detainee or remains in Regional Reception and Identification Services or resides in Reception or Accommodation Centres, the rejection decision or the extract of the operative part of the decision granting international protection status and the accompanying explanatory document of the third part of paragraph 3 shall be sent by any appropriate means to the Head of the Centre or establishment or facility concerned, who shall ensure that a notice of receipt and the times of delivery and distribution of the documents to applicants are posted immediately for each working day and time, in conspicuous places in the premises, and shall draw up an acknowledgement of receipt and post it. Applicants shall ensure that they arrive at the centre within the hours of delivery and distribution of correspondence in order to be served with the relevant mail. A delivery report shall be drawn up for each delivery to the applicant. Service shall be deemed to have been effected after the expiry of three (3) days from the date on which relevant act of receipt referred to in the first subparagraph was drawn.”

Taking into consideration the above legal provisions, the Greek Ombudsman intervened with regard to the “Service of asylum decisions by e-mail to residents in the Kos CCAC”,^[50] and  clarified that article 87 Asylum Code clearly provides that the scope of application introduced by the legislator with paragraph 4 is more specific than that of paragraph 3, providing for the service of decisions on applicants who reside in the structures of the Reception and Identification Service (RIS), such as the CCACs. Namely, the Ombudsman noted that the law does not allow the administration to derogate from the application of the provisions of paragraph 4 of Article 87, through the signing of declarations by residents that they will be served with the decisions by e-mail. Finally, it is crucial for the respect of the right to an effective remedy,  in the event of non-application of the above provisions, the time limit for lodging an appeal to begin at least from the time when the applicant has demonstrably become aware of the decision.

In Lesvos, Kos and Chios, since approximately the second quarter of 2022, an order for voluntary departure from the country  – with a seven-day deadline or a 25-day deadline- was incorporated in the first instance negative decisions issued by the RAO.^[51] In practice, a seven-day deadline is given with the “rejected as inadmissible” – first instance negative decisions, while a 25-day deadline is given with the “rejected as unfounded” – first instance negative decisions. This practice continued in 2023.^[52] The voluntary departure order is provided by article 22 paragraph 1 L.3907/2011, as it was amended by article 3 L. 4825/2021.^[53]

Following the amendment of Article 83(3) Asylum Code, the obligation to present oneself before the Appeal Committees remains waived for the appellants who are either under geographical restriction or reside in a Reception/Accommodation facility. In case the appellant cannot be represented by a lawyer or another authorised person/ consultant, a certification shall be submitted before the Appeal Authority. More specifically, for the appellants who reside in a Reception/Accommodation facility, a residence certification shall be issued in writing by the Director of the Reception/Accommodation facility, upon request by the appellant. This request that should not be filed earlier than 3 days before the date of examination of the appeal. This certification confirms that the appellant resided in the facility on the day that the application for the certificate was filed. Appellants, against whom a geographical restriction is imposed must submit a written certification issued by the Police or a Citizens’ Service Centre (ΚΕΠ) located at the area of the geographical restriction by the day before the examination of their appeal, confirming that they presented themselves before said authorities. The application for such a certificate must not be filed longer than two days before the date of the appeal’s examination. In case the appellant does not submit the aforementioned certification, it is presumed that they have implicitly revoked their appeal according to Article 86 of Asylum Code.

Moreover, in case of force majeure, such as serious illness, serious physical disability or the case of an insurmountable impediment that made the in-person appearance of the appellant impossible, the obligation for the in-person appearance is suspended throughout the duration of the force majeure.^[54] In these cases, the appellant needs to submit a relevant application, and invoke in a particular manner the incidents that constitute force majeure or unsurmountable impediment that made their appearance in- person impossible; the allegation needs to be proved with written documents and relevant certifications or certificates from a public service. In case the reasons constituting force majeure or insurmountable impediment are proven and under the condition that the appellant appears before the competent authorities, the consequences of the non-appearance are lifted.

However, it has been noted that for a considerable period following the above amendment, the information provided to the appellants by the RAOs regarding the issuance and submission of the residence certificates before the Appeals Authority was not accurate. Indeed, the written information provided within the ‘Document – Proof of Submission of the Appeal’^[55] explicitly stated that appellants are obliged to submit a residence certificate before the Appeals Authority up to the day before the examination of their appeal. No mention was made of the obligation to apply for the certificate no earlier than three days before the date of examination of the appeal. As a result, in several cases, appellants had submitted outdated residence certificates before the Appeals Authority, and, subsequently, in some of these cases, appeals were rejected by the Appeals Committee (with no examination either of the admissibility or the merits of the asylum applications) on the grounds of the submission of an out-of-date residence certificate by the Head of the RIC. GCR has introduced cases such as these before the Greek administrative courts. In May 2023, the Administrative Court of Athens annulled the decision of the 2^nd Appeals Committee that had rejected an applicant’s appeal on the grounds of the submission of an out-of-date residence certificate.^[56]

Similarly to the concerns raised under the Regular procedure as regards the severity of these new procedural requirements, serious concerns with regard to the effectiveness of the remedy and the risk of a violation of the principle of non-refoulement are also applicable to appeals in the context of fast-track border procedures.

Suspensive effect

Appeals before the Appeals Committees no longer have automatic suspensive effect as a general rule. The automatic suspensive effect of appeals depends on the type of decision challenged by the applicant (see Admissibility Procedure: Appeal and Accelerated Procedure: Appeal). With regard to applications rejected at first instance within the framework of the fast-track border procedure, the Asylum Code states, that a derogation from automatic suspensive effect of appeals can only be ordered provided that the individual benefits from the necessary assistance of an interpreter, legal assistance and at least one week to prepare and file a relevant application before the Appeals Committee reasoning why he/she should be granted with the right to remain in the Greek territory.^[57]

It should be noted that Article 110(3) Asylum Code has incorrectly transposed Art 46(7) of the recast Asylum Procedures Directive. Instead of cross-referring to Article 110(2) Asylum Code on the categories of appeals stripped of automatic suspensive effect, Article 110(3) Asylum Code provides that “the possibility to derogate from the right to remain” may be applied in border procedures subject to requirements including interpretation, legal assistance and at least one week. Accordingly, the law incorrectly suggests that the derogation from the right to remain on the territory may be imposed in any decision taken in a border procedure, insofar as the above guarantees are complied with in practice, the derogation from the right to remain has been generally applied to the fast-track border procedure on the Eastern Aegean islands, including in “safe third country” cases which should have suspensive appeals according to the law.^[58] In any case, as it has been already mentioned, where a separate application  for suspension of removal is submitted in parallel with the appeal, the Appeals Committees proceed with the examination of the suspension application on the same day that the appeal is being examined.

Judicial review

The general provisions regarding judicial review, as amended in 2018 and 2019, are also applicable within the framework of the fast-track border procedure and concerns raised with regard to the effectiveness of the remedy are equally valid (see Regular Procedure: Appeal). Thus, among others, an application for annulment before the Administrative Court does not have automatic suspensive effect, even if combined with an application for suspension. Suspensive effect is only granted by a relevant decision of the Court. This judicial procedure before the Administrative Courts is not accessible to asylum seekers without legal representation.

According to practice, individuals whose appeals are rejected within the framework of the fast-track border procedure might be immediately detained upon notification of their second instance negative decision. In the past, and in particular until March 2020, this would mean that they would be at imminent risk of readmission to Türkiye. However, since readmissions remain frozen for the last three years, the detention of people with a second negative decision serves no purpose whatsoever and is considered a disproportionate measure, according to several Administrative Courts’ decisions that upheld the “objections to detention” and ordered the detention to be lifted (See relatively the Chapter on Detention).

In general, the Asylum Service registered subsequent asylum applications despite pending applications for annulment before the Administrative Court; both procedures can run in parallel.

Concerns regarding the effective access to judicial review for appellants whose appeal has been rejected within the framework of the fast-track border procedure, i.e., who remain under a geographical restriction on the Aegean Islands or are detained on the Aegean Islands following the notification of the second instance decision, were not solved by the new Asylum Code, as the relevant article 115(2) IPA remains in force.^[59] More specifically, Article 115(2) IPA foresees that the First Instance Administrative Court of Athens is the competent Court for submitting legal remedies against second instance negative decisions of applications submitted on the Aegean islands. Thus, legal remedies of appellants who reside or are detained on the Aegean Islands, should be submitted by a lawyer before the Administrative Court of Athens. Considering the geographical distance and the practical obstacles (e.g., to appoint a lawyer able to submit the legal remedy in Athens), the possibility to submit legal remedies remains virtually inaccessible for most applicants.^[60] Furthermore, applicants have to provide a notarized power of attorney in order to appoint a legal representative, which costs approximately 100 euros depending on the notary’s fee. However, legal aid actors on the islands mention as a further impediment in the overall procedure, that most of the notaries operating on the islands refuse to provide the necessary services to the asylum seekers. This is a serious obstacle to the submission of legal remedies, especially for rejected applicants under geographical limitation on their island of arrival.

Given the constraints that individuals geographically restricted or detained in the Aegean Islands face vis-à-vis access to legal assistance, the fact that legal aid is not foreseen by law at this stage and that annulment applications can only be submitted by a lawyer, access to judicial review for applicants receiving a second instance negative decision within the framework of the fast-track border procedure is severely hindered.

Legal assistance

The Asylum Code does not contain special provisions regarding free legal assistance in the fast-track border procedure. The general provisions and practical hurdles regarding legal aid are also applicable here (see section on Regular Procedure: Legal Assistance).

State-funded legal aid is not provided for the fast-track border procedure at first instance. Therefore, legal assistance at first instance is made available only by NGOs based on capacity and areas of operation, while the scope of these services remains severely limited, bearing in mind the number of applicants subject to the fast-track border procedure.

In September 2023, the Athens Bar Association issued an opinion, clarifying that lawyers providing legal advice and assistance to persons arriving in Greece and wishing to apply for international protection – as well as interpreters used to enable communication – can in no way be construed as facilitating irregular entry or stay, in line with CJEU case law.[61] The opinion also pointed out that communication with such parties is covered by client-attorney privilege under lex specialis provisions of the Lawyers’ Code of Conduct.^[62]

From 16 February 2021 to date, and according to the final lists of the Ministry of Migration and Asylum concerning the Registry of the lawyers providing legal assistance to asylum seekers at the second instance, 24 lawyers were appointed on the islands. These lawyers have been appointed to provide free legal aid under the State-funded legal aid scheme at second instance as follows: 12 lawyers on Lesvos, 2 lawyers on Samos, 4 lawyers on Chios, 2 lawyers on Kos, 2 lawyers on Rhodes, and 2 lawyers on Leros.^[63]  Based on legal actors’ observations, including GCR, however, there were usually not that many lawyers operational, due to administrative obstacles and issues. Additionally, lawyers appointed on the islands do not necessarily reside on the islands. Most of the times, the meetings between asylum seekers and lawyers were made through phone or video-call and not with physical presence.

Since June 2020, by decision of the administration of the Central Asylum Service, there has been a “[p]rovision of legal assistance through video conference to the Regional Asylum Services of Leros, Samos, Chios and Lesvos due to increased needs in the provision of legal aid services in the second degree to applicants for international protection”. As a result, some asylum applicants reported communication issues with their State-registered lawyers and the short duration of their preparation meetings.

In 2023, the total number of appeals lodged in Greece against first instance negative decisions were 10,973, from which only 960 (9%) were lodged before the islands’ RAOs and the rest in the mainland’s RAOs.^[64] The total number of appellants who applied and benefited from free legal aid is 2.066 in the 1st Quarter of 2023, 932 in the 2nd Quarter of 2023, 1.651 in the 3rd Quarter of 2023 and 2.243 in the 4th Quarter.^[65] There are no available statistics with regard to the number of cases for which free legal assistance from Registry Lawyers was requested in the Eastern Aegean Islands’ RAOs.

As also mentioned in the Regular Procedure: Legal assistance no tailored State-funded free legal aid scheme exists for submitting judicial remedies before Courts against a second instance negative decision.

[1] MoMA, Statistics, Consolidated Reports – Overview: December 2023 – International Protection | Appendix A, available at: https://tinyurl.com/yc2stzh7, table 8b.

^[2] GCR, Submission of the Greek Council for Refugees to the Committee of Ministers of the Council of Europe in the case of M.S.S. v. Belgium & Greece (Appl. No 30696/09) and related case, 9 May 2019, available at: https://bit.ly/2XYhHpj.

^[3] Ertnews, Συνεχίζεται η μεταφορά προσφύγων από Ρόδο προς τις δομές Κω και Λέρου – Πάνω από 4.000 οι φιλοξενούμενοι, 22 September 2023, available in Greek at: https://tinyurl.com/3ykvddaa.

^[4] According to information provided by the GCR lawyer operating in Kos.

[5] Joint Ministerial Decision for the application of the provisions of par. 3 and 5 of article 90 of IPA, No 15996/30.12.2020, Gov. Gazette 5948/B/31.12.2020.

^[6] FRA, Update of the 2016 FRA Opinion on fundamental rights in the hotspots set up in Greece and Italy, 5 March 2019, available at: https://bit.ly/2HeRg79, p. 26.

^[7] Ibid., p. 26: ‘in Kos, the average time from the lodging of the application until the first interview with EASO was 41 days while from the date of the interview until the issuance of the recommendation by EASO was 45 days’.

[8] MoMA, Analysis and Studies Office, Reply to GCR’s request for information for the preparation of the updated Annual Report on Greece for 2023 in the framework of the Asylum Information Database (AIDA) project, received on 14 February 2024 (protocol number: 55259).

^[9] Fenix, Fenix calls the Greek authorities to examine the merits of asylum applications rejected on admissibility, 6 December 2021, available at: https://bit.ly/3wUxsyN.

[10] MoMA, Report A, December 2023, Reception, Identification & Asylum Procedures, available at: https://tinyurl.com/5fmnbpmz.

^[11] Information obtained during the Lesvos LAsWG meeting, 3 May 2022.

^[12] Information obtained during GCR’s mission to Chios and visit to Chios RAO, 24-26 May 2022, from the GCR lawyer operating in Kos and legal actors operating in the field in Lesvos.

[13] Information provided by Fylakio RAO and GCR lawyer based in Alexandroupoli.

[14] Information obtained during Lesvos LAsWG meetings.

[15] Information acquired during Lesvos LAsWG meeting of 28- November 2023.

[16] Information acquired during Lesvos LAsWG meeting, 28 November 2023.

[17] Information acquired during Athens LAsWG meetings, 2023.

[18] See for example Decision 18695/2023 issued by 21^st Appeals Committee concerning the case of an asylum applicant from Ghana; a summary of the decision is available in Greek in GCR, HIAS, RSA et al, Issue 2/2023 of the Greek Asylum Case Law Report, available at: https://tinyurl.com/yn6yb77u.

^[19] Greens/EFA, The EU-Türkiye Statement and the Greek Hotspots: A failed European Pilot Project in Refugee Policy, June 2018, available at: https://bit.ly/2sJM2H4, p. 17.

[20] Following the latest request for data sent by GCR in January 2024, the MoMA replied by referring GCR to the Ministry’s website “and in particular at the link https://migration.gov.gr/statistika/ [where] the monthly newsletters are published, alongside relevant annexes, which include summary and detailed statistical data on the work of the First Reception Service, the Asylum Service and the Appeals Authority […]”[1]. Yet a closer look at the public sources referred by the MoMA highlights that the specific data is not available.

^[21] Information acquired by Lesvos RAO, February 2024.

[22] According to article 95 paragraph 2 of Asylum Code: “If no decision is taken within twenty-eight (28) days from the date of filing the application, the applicant shall be allowed to enter and remain within the country in order to have his/her application examined, in accordance with the other provisions of this Code.”

^[23] Article 95(3)(b) Asylum Code.

^[24] Amnesty International, Submission on the proposed changes to the Greek Law on international protection, 24 October 2019, available at: https://bit.ly/3oxyL5k. 

^[25] See, e.g., EASO, 2020 Operational & Technical Assistance Plan to Greece, 20 December 2019, available at: https://bit.ly/3Qhm0X3 p. 14.

^[26] EASO, Operating Plan to Greece 2022-2024, 9 December 2021, available at: https://bit.ly/3uMYh9q, pp. 20-21.

^[27] Articles 60(4)(b) L 4375/2016 and 90(3)(b) only refer to the conduct of interviews by EASO staff.

^[28] AIRE Centre, et al., Third party intervention in J.B. v. Greece, 4 October 2017, available at: http://bit.ly/2qSRxoU, pp. 10-11.

[29] Information provided by the EUAA, 26 February 2024.

[30] Information provided by the EUAA, 26 February 2024.

[31] Information acquired during the 2^nd EUAA Consultative Forum Plenary Meeting, 30 November 2023.

[32] Ibid.

[33] For this issue, Lesvos LAsWG has addressed a letter to Lesvos RAO Administration, 5 December 2023.

[34] Ibid.

[35] Information acquired during the Lesvos LAsWG meeting, 23 January 2024.

^[36] See AIDA, Country Report Greece, 2021 Update, p. 100, https://bit.ly/3IAjhVm.

[37] See Fenix, A GENDERED GAZE ON MIGRATION: Report on sexual and gender-based violence in the context of the Greek asylum policy on Lesvos, February 2024, available at: https://tinyurl.com/mk7kmp7t.

[38] Heinrich Boll Stiftung, LGBTQI+ Asylum Seekers in Greece, 8 March 2024, available at: https://tinyurl.com/5hfsamd5.

[39] Heinrich Boll Stiftung, ibid.

[40] The asylum applicant received legal aid by GCR.

[41] MoMA, Statistics, Consolidated Reports – Overview: December 2023 – International Protection | Appendix A, available at: https://tinyurl.com/yc2stzh7, table 10a.

[42] Previously Article 116 IPA.

^[43] Article 95(3)(c) Asylum Code.

^[44] Article 95(3)(c) Asylum Code.

^[45] Article 106(1)(a) Asylum Code.

[46] MoMA, Statistics, Consolidated Reports – Overview: December 2023 – International Protection | Appendix A, available at: https://tinyurl.com/yc2stzh7, p. 11.

[47] Ibid.

[48] Article 102(3) Asylum Code.

^[49] Article 87 and 108 Asylum Code.

[50] The Intervention of the Greek Ombudsman (no. 346822/2413/16-01-2024) following a legal NGO’s report was shared within the context of the Athens Legal Aid Working Group, 23 January 2024.

^[51] Information acquired during the Lesvos LAsWG meeting, 28 June 2022, from the GCR lawyer based in Kos, and during GCR mission to Chios and visits to Chios RAO and Police Station, 24-26 May 2022.

^[52] Information acquired from the GCR lawyers based in Lesvos and Kos, and during GCR mission to Chios, 30-31 January 2024.

[53] “1. The decision to return the third-country national may provide for a period of time for his/her voluntary departure, which shall be between seven (7) and twenty-five (25) days, subject to paragraphs. 2 and 4.”

[54] Article 83 paragraph 4 Asylum Code.

[55] The Document – Proof of Submission of the Appeal is given to the applicant by the RAO personnel immediately after his/her appeal is lodged.

[56] Decision No ΑΔ940/31-5-2023 issued by the Administrative Court of Athens.

^[57] Article 110(3) Asylum Code.

^[58] According to input provided by RSA.

^[59] Article 148(a) Asylum Code.

^[60] See mutandis mutandis ECHR, Kaak v. Greece, Application No 34215/16, Judgement of 3 October 2019.

[61] Bar Association of Athens, Opinion No. 143, 11 September 2023. For more information in English, see ELENA, Greece: Athens Bar Association’s interpretation of the Greek Bar Code on guaranteeing the lawyer-asylum applicant relationship without criminalisation, 12 September 2023, available at: https://bit.ly/3Ja4TCL.

[62] Ibid. 

^[63] MoMA, Decision No 1836/21, 16 February 2021.

[64] MoMA, Report A, December 2023, Reception, Identification & Asylum Procedures, available at: https://tinyurl.com/5fmnbpmz, 10.

[65] MoMA, Report A, December 2023, Reception, Identification & Asylum Procedures, available at: https://tinyurl.com/5fmnbpmz, 11.