Special procedural guarantees

Greece

Country Report: Special procedural guarantees Last updated: 30/05/22

Author

Greek Council for Refugees Visit Website

Adequate support during the interview

According to article 67 (2) IPA, ‘[w]here 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.

IPA 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;
  • 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.

Inadequate interview conditions continued to be reported in the premises of RAO in 2021 according to GCR, i.e. 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 grant 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 67 IPA. 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]

In a case of a young Cameroonian woman, victim of sexual and gender-based violence and human trafficking, who fled her country of origin due to persecution because of her sexual orientation, the first instance decision was full of contradictions and her serious psychological and mental health problems were not taken into account by the caseworker, even though she had been already identified as “vulnerable” by RIS (victim of torture) and her case had been channeled to the regular procedure. She had also submitted certificates from both a psychiatrist and a psychologist. In fact, failing to properly evaluate her medical problems, it was stated that “she was not considered credible since the descriptions she gave were considered insufficiently detailed”. In September 2021, the negative second instance decision was notified to the applicant. The Appeals Committee rejected the appeal repeating the reasoning of the first instance decision, without taking into consideration the legal memo submitted by GCR.[5]

According to GCR’s experience, in several cases, when evaluating claims made by persons of a particular nationality – mainly Pakistani or Bangladeshi– 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 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. The number of decisions granting refugee status or subsidiary protection to unaccompanied children and the number of in-merit rejection decisions issued throughout 2021 is not available.

 

Exemption from special procedures

The IPA no longer provides for the exemption of vulnerable persons from special procedures as a rule[6] (see Identification). 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).[7] Nevertheless, L. 4686/2020 abolished the rule introduced by L.4636/2019 allowing for the standard processing of vulnerable cases through accelerated procedures[8].

According to the information provided by the Asylum Service, 1,569 applications were exempted from the fast-track border procedure and were channeled into the regular procedure for reasons of vulnerability in 2021, compared to 5,885 cases in 2020.[9] However, the specific vulnerabilities presented by each case are not available.

Appeal Committees have continued to dismiss alleged infringements of Article 67(3) IPA 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).[10] 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.[11]

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.[12] 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:[13]

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 the 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.[14]

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 has already been reported since late 2016.[15] 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.”[16]

Within this framework, L 4540/2018, transposing the recast Reception Conditions Directive, has omitted persons suffering from PTSD from the list of vulnerable applicants.[17] Subsequently, following the 2019 and 2020 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” were used by IPA before the amendment by L4686 in relation to other procedural guarantees such as the examination of applications by way of priority.[18] Αlthough article 39(5)(d) IPA provided that applications of persons belonging to vulnerable groups were examined “under absolute priority”[19], this provision was abolished by L. 4686/2020[20].

According to a letter submitted by several organisations to the Natiοnal Commission for Human Rights in 16 December 2021 “there is no delay in the registration of asylum applications submitted by unaccompanied children being under the protection the National Tracing and Protection Mechanism. However, minors who have not been traced by said Mechanism might wait for years until the registration of their asylum application or their interview before the Asylum Service. Consequently, by the time of their appointment they might already have reached adulthood.

The number of applications by vulnerable persons which were examined by priority until the entry into force of L.4686/2020 is not available[21]. However, GCR is aware of applications by persons officially recognized as vulnerable whose interview has been scheduled over one year after registration.

 

 

 

[1] Article 67(2) IPA.

[2] Article 77(12)(a) IPA.

[3] Article 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.

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

[5] Decision on file with the author.

[6] 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. L 4375/2016, previously in force, expressly foresaw that applicants in need of special procedural guarantees and unaccompanied minors shall always be examined under the regular procedure. 

[7] 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).

[8] Article 60 L.4686/2020, provides for the repeal, among other provisions, of Article 83 para. 9(l) of L. 4636/2019

[9] Information provided by the Asylum Service, 31 March 2021.

[10] 8th Appeals Committee, Decision 1592/2021, 10 March 2021, para 3; 6th Appeals Committee, Decision 140330/2021, 21 July 2021, 11; 12th Appeals Committee, Decision 233902/2021, 9 September 2021, 3; 6th Appeals Committee, Decision 248623/2021, 16 September 2021, para 3; 2nd Appeals Committee, Decision 303875/2021, 11 October 2021, 5-6.

[11] Administrative Court of Appeal of Piraeus, Decision A54/2021, 11 February 2021, para 9; Decision A94/2021, 25 May 2021, paras 8-9. Note that these refer to Article 60(4) L 4375/2016, repealed by the IPA.

[12] Article 75(7) IPA.

[13] Articles 83(10) and 90(4) IPA.

[14] Article 90(4)(d) IPA.

[15] 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.

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

[17] Article 20(1) L. 4540/2018.

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

[19] Article 39(5)(d) L.4636/2019.

[20] Article 2(3) L. 4686/2020.

[21] Information provided by the Asylum Service, 31 March 2021.

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