Special procedural guarantees

Greece

Country Report: Special procedural guarantees Last updated: 30/11/20

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Greek Council for Refugees Visit Website

Adequate support during the interview

According to L. 4375/2016 and IPA applicants in need of special procedural guarantees should 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.[1]

IPA provides examples of forms of adequate support that can be granted in the procedure. More specifically:[2]

  • 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;
  • 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.”[3]

As stated in Number of Staff of the First Instance Authority, specific training for handling vulnerable cases is provided to all Asylum Service caseworkers. In addition, EASO deployed 10 vulnerability experts in the context of the Fast-Track Border Procedure[4].

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.[5]

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 and second instance. Examples include the following:

 

Victims of torture and other forms of violence:

 

  • In a case of a man, national of Cameroon, victim of torture, the first instance decision was full of contradictions and his serious psychological problems were not taken into account by the caseworker. In fact, failing to properly evaluate his medical problems, it was stated that “he was not considered credible since the descriptions he gave were considered insufficiently detailed”. Supported by GCR after the first instance decision, he was referred to Metadrasi for identification purposes and got the certificate which was submitted along with his appeal. The case is pending before the Appeals Committee.[6]

 

  • In a case of a Nigerian woman, although the caseworker accepted her allegation concerning being a victim of human trafficking, she was rejected at first instance on the grounds that “now she has no contact with the traffickers, she changed her phone number”. The decision did not detect that the violence she was subjected to amounted to persecution.[7] The case is pending before the Administrative Court of Appeal.

 

  • In a case of a Cameroonian woman, victim of rape after which she gave birth to a child, the Appeals Committee accepted that she was SGBV victim but rejected her application for international protection. The rejected applicant has been referred to the competent authorities in order to be assessed whether she could be granted with humanitarian protection given that “she just gave birth, she is vulnerable and she is a rape victim”. [8] The case is pending before the Administrative Court of Appeals with the support of GCR. 

 

Best interests of the child evaluation in asylum claims:

 

  • Ιn a case of an unaccompanied minor from Afghanistan, the case worker gave the minor the benefit of the doubt and all his claims regarding persecution have been accepted as founded. However, a refugee status has not been granted to him on the grounds that according to the case worker  ‘there is no reasonable possibility to be exposed in danger if he returns to his country of origin’. The caseworker then proceeded to assess the need of granting the minor with subsidiary protection, only to conclude that even though, according to his findings a) there is Taliban presence in the Balkh province, b) explosions from IEDs occur regularly, c) only 15% of the population lives above the poverty line and d) the minor will face problems in covering his basic needs, he does not qualify for subsidiary protection.

 

  • In another case of an unaccompanied minor from Guinea where there were reasons of persecution based on his ethnic group and political action, the caseworker rejected the claims and did not even give the minor the benefit of the doubt. Moreover even though there were indications of forced labour and domestic violence, the caseworker argued that the condition described “was not that unbearable for a minor”. Both cases are pending before the Appeals Authority.[9]

 

According to GCR’s experience, in several cases, when evaluating claims made by persons of a particular nationality – mainly Pakistani – the caseworkers and the Appeals Committee seem to discriminate and minors are not given the benefit of the doubt. All decisions rejecting minors' claims have troubling similarities. Procedural deficits (absence of a guardian, of appropriate legal representation and of 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 of the Best Interest, 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, with the sole exception of children of Syrian nationality.[10] This is reflected on the official statistics provided from the Asylum Service. According to the data provided, during 2019 there were only 381 decisions granting refugee status to unaccompanied minors and 131 granting subsidiary protection, whereas there were 556 rejecting decisions. There are still 4,084 pending decisions for UACs.[11]

 

Exemption from special procedures

 

L 4375/2016 expressly foresaw that applicants in need of special procedural guarantees shall always be examined under the regular procedure.[12] Since the entry into force of the IPA this guarantee has been abolished.

Newly arrived applicants who fall within the family provisions of the Dublin Regulation or who are considered vulnerable, according to the definition in Article 14(8) L 4375 (see Identification) are exempted from the Fast-Track Border Procedure and their claims are considered admissible.

In 2019, 25,967 applications were exempted from the fast-track border procedure and channeled into the regular procedure for reasons of vulnerability. These include 1,524 applications by unaccompanied children, while the specific vulnerabilities presented by the rest of the cases are not available.[13] In the first half of 2019, EASO recommended the referral of the applicant to the regular procedure on grounds of vulnerability in 1,212 cases. Before July 2019, if vulnerability had not been identified during the reception and identification procedure and was only raised during the interview with EASO, the caseworker would interrupt the interview and complete a form of Initial Identification of Special Needs (“Annex I”). Subsequently, the caseworker would refer the case to an EASO Vulnerability Expert to conduct a vulnerability assessment, with or without a separate interview. The vulnerability assessment (“Annex II”) would then lead to an EASO opinion recommending or not, the exemption of the applicant from the fast-track border procedure. According to EASO, “Since July 2019, the aim had been for all applicants to be properly screened during the reception and identification procedure before an interview was scheduled. Where vulnerability was only identified by the EASO caseworker during the interview, no interruption was ordered. The caseworker would continue and complete the interview, and then transmit any information on vulnerability together with the rest of the file to the Asylum Service. Accordingly, EASO did no longer conduct vulnerability assessments nor issued vulnerability opinions. It was up to the Asylum Service to assess whether or not the applicant should be exempted from the fast-track border procedure.[14]

However, although the law previously contained express provisions requiring that applicants in need of special procedural guarantees and unaccompanied children always be examined under the regular procedure, the IPA no longer provides for exemption of vulnerable persons from special procedures as a general rule.[15]

Applicants in need for 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.[16]

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.[17] 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:[18]

 

Exemption of unaccompanied children aged 15 or over from special procedures

Accelerated procedure

Border and fast-track border procedures

Ground

 

Ground

 

Claim unrelated to protection

Protection in another Member State

Safe country of origin

x

First country of asylum

False information or documents

Safe third country

X

Destruction or disposal of documents

Subsequent application

X

Clearly unconvincing application

Application by dependant

Subsequent application

x

Claim unrelated to protection

Application to frustrate return proceedings

Safe country of origin

X

Application not as soon as possible

False information or documents

X

Refusal to be fingerprinted under Eurodac

Destruction or disposal of documents

X

Threat to public order or national security

x

Clearly unconvincing claim

Refusal to be fingerprinted under national law

Application to frustrate return proceedings

Vulnerable person

Application not as soon as possible

 

 

Refusal to be fingerprinted under Eurodac

 

 

Threat to public order or national security

X

 

 

Refusal to be fingerprinted under national law

 

 

Vulnerable person

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 where this is in line with their best interests.[19]

In several cases in 2018, the Administrative Court of Appeals has annulled decisions issued under the fast-track border procedure on the ground that the applicant should have been exempted therefrom and referred to the regular procedure for reasons of vulnerability.[20] The Court stressed that the applicant is under no obligation to prove “procedural damage” (δικονομική βλάβη) stemming from the failure to exempt him or her from the fast-track border procedure.[21] In 2019 though, in similar case, the Administrative Court of Appeals argued that the applicant did not specify the damage sufficiently and that the “procedural damage” claim was vague.[22]

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-Turkey statement and the increase of returns to Turkey is already reported since late 2016.[23] However, as underlined by inter alia Médecins Sans Frontières “far from being over-identified, vulnerable people are falling through the cracks and are not being adequately identified and cared for.”[24] These findings were confirmed one and a half year later by Oxfam, which reported in January 2019 that the Greek reception and identification system has “broken down” and is systematically failing to identify and therefore provide the protection much needed to the most vulnerable asylum seekers on Lesvos.[25] In a recent report, MSF added that “inefficient and inadequate identification procedures are responsible for the prolonged stay of victims of torture in substandard living conditions, inadequate access to medical care, unfair treatment of their asylum claim and exposure to re-traumatization.”[26]

Within this framework, L 4540/2018, transposing the recast Reception Conditions Directive, has omitted persons suffering from PTSD from the list of vulnerable applicants.[27] Subsequently, following the 2019 amendment, IPA has not included persons suffering from post-traumatic stress disorder (PTSD) in the list of vulnerable individuals.

 

Prioritisation

 

Both definitions “vulnerable group” and “applicant in need of special procedural guarantees” are used in relation to other procedural guarantees such as the examination of applications by way of priority.[28] For example Article 51(6) L 4375/2016 provides that applications lodged by applicants belonging to vulnerable groups within the meaning of Article 14(8) L 4375/2016 or are in need of special procedural guarantees “may [be] register[ed] and examine[d] by priority”. According to the IPA, applications of persons belonging to vulnerable groups are examined “under absolute priority”.[29]

The number of applications by vulnerable persons which were examined by priority is not available. However, as stated in Regular Procedure: Personal Interview, GCR is aware of applications by persons officially recognized as vulnerable whose interview has been scheduled over one year after registration.

 


[1] Article 50 L.4375/2016 and Article 67 IPA.

[2] Article 67(2) IPA. 

[3] Article 52(13)(a) L 4375/2016, see also 77(12)(a) IPA. 

[4] Information provided by the Asylum Service,17 February 2020.

[5] Article 52(6) L 4375/2016, see also 77(5) IPA, as well as Administrative Court of Appeal of Athens, Decision 3043/2018, available in Greek at: https://bit.ly/2Jk1Bk6, which 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.

[6] Decision on file with the author.

[7] Ibid.

[8] Ibid.

[9] Cases supported by GCR.

[10] Rosa Luxemburg Foundation, Children Cast Adrift: Exclusion and exploitation of unaccompanied minors (UAMs) in Greece (2019), available at: https://bit.ly/35b4jjn.

[11] Information provided from the Asylum Service, 18th of February 2020.

[12] Articles 50(2) and 45(7) L 4375/2016.

[13] Information provided by the Asylum Service, 17 February 2020.

[14]ECRE, The role of EASO operations in National Asylum Systems, November 2019, available at: https://bit.ly/3eVarAN.

[15] Articles 39(5)(d) and 72(3) IPA provide state that the determination of an applicant as vulnerable has the sole effect of triggering immediate care of particular reception needs and prioritised examination.

[16] Article 67(3) IPA. This provision clarifies that, where the applicant falls within the cases where no 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).

[17] Article 75(7) IPA.

[18] Articles 83(10) and 90(4) IPA.

[19] Article 90(4)(d) IPA.

[20] See e.g. Administrative Court of Appeal of Piraeus, Decision 558/2018, available in Greek at: https://bit.ly/2WbqvDY, Decision 642/2018 available in Greek at: https://bit.ly/2KHJXEM.

[21] Administrative Court of Appeal of Piraeus, Decision 519/2018, available in Greek at: https://bit.ly/2JiaUB0; Decision 563/2018, available in Greek at: https://bit.ly/2FgXcdR.

[22] Administrative Court of Appeals of Piraeus, Decision 271/2019, available in Greek at: https://bit.ly/3cQnOjy.

[23] European Commission, Joint Action Plan of the EU Coordinator on the implementation of certain provisions of the EU-Turkey Statement, Annex 1 to COM(2016) 792, 8 December 2016, paras 2 and 3; Human Rights Watch, ‘EU/Greece: Pressure to minimise numbers of migrants identified as vulnerable’, 1 June 2017, available at: http://bit.ly/2qD2fQb; AIDA, The concept of vulnerability in European asylum procedures, September 2017, 17.

[24] MSF, A dramatic deterioration for asylum seekers on Lesvos, July 2017, 3.

[25] Oxfam, Vulnerable and abandoned, January 2019.

[26] Médecins Sans Frontières’ submission to the United Nations Committee Against Torture prior to the periodic review of Greece, 67th Session June 2019.

[27] Article 20(1) L. 4540/2018.

[28] See also Articles 39(6)(c) and 83(7) IPA. 

[29] Article 39(5) IPA.  

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation