Admissibility procedure

Greece

Country Report: Admissibility procedure Last updated: 30/05/22

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Greek Council for Refugees Visit Website

General (scope, criteria, time limits)

Under Article 84 IPA, an application can be considered as inadmissible on the following grounds:

  • Another EU Member State has granted international protection status;
  • Another EU Member State has accepted responsibility under the Dublin Regulation;
  • When the First Country of Asylum concept is applied;
  • When the Safe Third Country concept is applied;
  • The application is a Subsequent Application and no “new essential elements” have been presented;
  • A family member has submitted a separate application to the family application without justification for lodging a separate claim.

Unless otherwise provided, the Asylum Service must decide on the admissibility of an application within 30 days.[1]

The examination of the safe third country concept in practice takes place under the scope of the fast-track border procedure. Up until June 2021 it was applied exclusively to Syrians who fell under the EU Turkey Statement, namely those who had entered Greece via the Greek Aegean islands and who were subject to a geographical restriction. Syrians whose geographical limitation was lifted were then channeled to the mainland and were examined under the regular procedure.

The situation changed significantly in 2021 following the new Joint Ministerial Decision (JMD) issued on 7 June 2021, designating Turkey as a “safe third country” for applicants for international protection coming from Syria, but also from Afghanistan, Somalia, Pakistan and Bangladesh, thus extending the scope of the policy established by the EU-Turkey Statement March 2016.[2]

Apart from the numerous concerns that have been repeatedly raised as to whether Turkey should be considered a “safe third country” for the abovementioned asylum seekers in Greece,[3] an additional significant element of the unfeasibility of this new decision concerns the fact that, Turkey is no longer accepting the return of refugees and asylum seekers from Greece since March 2020. This was pointed out both by Greece’s Ministry of Migration and Asylum and the European Commission.[4] As a consequence, refugees whose applications have been/are rejected as inadmissible based on the “safe third country” concept end up in a state of limbo in Greece, exposed to a direct risk of destitution and detention, without access to an in-merit examination of their application and without the possibility to lodge a subsequent asylum application.

The Commissioner for Migration and Home Affairs of the European Commission has reiterated several times the importance to examine the merits of these applications for international protection, in accordance with EU law.  .[5] On 7 December 2021, the Commissioner issued a response to a joint open letter by civil society organisations, where she reiterated the Commission’s continued concerns over individuals left in “legal limbo” in Greece. [6]  As she stated, “in line with Article 38(4) of the Asylum Procedures Directive, the Greek authorities should ensure that applicants whose applications have been declared inadmissible under the Joint Ministerial Decision and who are not being admitted to Turkey should be given access to the in-merits asylum procedure. The Commission has enquired with the Greek authorities on the steps taken towards this direction.”[7]

According to the UNHCR’s position and recommendations on the Safe Third Country declaration by Greece:

The absence of a mutually agreed readmission arrangement or delay in the implementation elevates the risk of protracted detention and situations of legal limbo for those concerned who may not be readmitted, increasing human misery and in all likelihood, fueling further onward movement within the EU. Where cooperation is not mutually agreed to, or required protection safeguards are not in place, an in-merit examination of asylum claims of applicants of those nationality groups should take place without undue delay to avoid legal limbo situations.”[8]

It should be noted that an application for the annulment of said JMD was submitted before the Greek Council of State and its examination was discussed on 11 March 2022. The decision is still pending.[9]

Finally, the 42799/3-6-2021 JMD declaring Turkey as safe third country was amended by Decision no. 458568/2021 (FEK 5949/16-12-2021) and declared also Albania and Northern Macedonia as safe third countries for all nationals entering Greece from these countries.

Data for 2021 is not available.

 

Personal interview

The conduct of an interview on the admissibility procedure varies depending on the admissibility ground examined. For example, according to Article 89(2) IPA, in force since 1 January 2020 as a rule no interview takes place during the preliminary examination of a subsequent application.[10] The interview is conducted only if the subsequent application for asylum is deemed admissible. In Dublin cases, an interview limited to questions on the travel route, the family members’ whereabouts etc. takes place (see section on Dublin).

Personal interviews in cases examined under the “safe third country” concepts focus on the circumstances that the applicants faced in Turkey. More specifically focus is laid on:

  • Whether they have asked for international protection in Turkey and;
  • if not, which reasons have prevented them from doing so;
  • whether they have family and friends in Turkey;
  • how long they remained in Turkey;
  • if they had access to work, housing, education and health care;
  • and in general, if Turkey is a safe country for them.

From 1 January 2020 onwards, it is possible for the admissibility interview to be carried out by personnel of EASO or, in particularly urgent circumstances, trained personnel of the Hellenic Police or the Armed Forces.[11] Such personnel is not allowed to wear military or law enforcement uniforms during interviews.[12] However, EASO caseworkers did not draft Opinions on cases where the new JMD 42799/2021 designating Turkey as a safe third country applied, as it fell outside their competence. In fact, the number of concluding remarks issued by EASO decreased to 9,230 in 2021.[13] This is due to the fact that the drafting of concluding remarks by EUAA caseworkers is no longer required for a large share of cases examined on admissibility. Instead, EASO caseworkers, following the interview, can send to Asylum Service caseworkers an Annex with notes and comments on crucial issues to be taken into consideration.

Different practices were adopted by the various RAOs in the different islands in 2021 as regards the conduct of asylum interviews. In Samos, for example, interviews were mainly conducted in physical presence of all parties involved, whereas in Lesvos, interviews were being conducted at first only through teleconference or videoconference via Teams application after they resumed, without the physical presence of the caseworker or the interpreter. These interviews had been suspended in November 2020 after the Moria fire and resumed in 2021.

In several cases the caseworker may be present in the RAO premises in Lesvos, but the interview may be carried out from a different room. This may create a lack of trust and insecurity, especially for applicants- victims of violence. In certain cases, asylum seekers who were accompanied by a lawyer remained in one room, while the caseworker was carrying out the interview through videoconference from another room, and the interpreter was also connected remotely (sometimes without video) from a third room. Consequently, there was no visual contact between the asylum seeker and the interpreter, while at the same time there were many technical issues with the internet connection, the audio and the lack of adequate sound isolation. In several cases, the interpreter was located in a room nearby, resulting in very bad acoustics. Later in 2021, most of the interviews in Lesvos were carried out in person again, but in some cases,  videoconferencing continued to be used.

In practice, interviews of the newly arrived persons were scheduled and conducted before their examination by the competent Medical and Psychosocial Units in most cases, meaning that they underwent the interview procedure without prior evaluation of their potential vulnerabilities. Even if indications of vulnerability arose during the asylum interview, the caseworkers did not refer the applicants for a psychosocial assessment. There was thus no individualised assessment of the specific profile and circumstances of the asylum-seeker took place.

On Samos, several legal aid actors confirmed that new arrivals were not subject to medical and psychosocial evaluation before the asylum interview especially since July 2021, which was scheduled immediately after the registration, even if there were indications of vulnerability such as trafficking, violent treatment, or FGM.[14] In the case of a Somali alleged minor, the RAO in Lesvos considered his application as inadmissible before the age assessment had been completed.[15]

The number of asylum applications that were found as inadmissible based on the “safe third country” concept increased significantly in 2021 as a direct result of the implementation of the new JMD 42799/2021. Out of a total of 6,424 inadmissibility decisions based on the Turkey as a safe third country concept, 5,922 (92%) were issued in application of the new JMD.[16] The number of asylum applications deemed admissible based on the JMD reached 6,677 in 2021.[17]

The number of asylum applications lodged by people coming from Syria, Afghanistan, Somalia, Pakistan and Bangladesh following the entry into force of the new JMD that were found as inadmissible were 5,922.

According to internal SOPs that were circulated within the Asylum Service in autumn 2021, asylum seekers of these nationalities that have entered Greece from Turkey and one year (or more) had passed since then must be considered as not having a special link with the third country or that in any case the special link with Turkey had been breached.(See Safe third country).

An example of an admissibility decision was issued to a Pakistani national receiving support from GCR, in Kos, i.e. he was one of the 375 asylum seekers on the Turkish flagged vessel roaming the high seas for 4 days that was finally transferred on 31 October to Kos Island, after Turkey’s refusal to accept the cargo ship.[18]  According to the decision: “However, in the present case, Turkey a) directly violates the EU Turkey Statement, on the point that Turkey undertakes to take any necessary measures to prevent new sea or land routes for illegal migration opening from Turkey to the EU, and will cooperate with neighboring states as well as the EU to this effect and b) admits with its position that in no case does accept in its territory the specific alien who was inside the cargo ship, therefore Turkey will not allow an asylum application to be submitted or at least to be examined with guarantees by this specific applicant, if he returns to Turkey and, therefore, Turkey is not a safe third country for him.”

In practice, the Asylum Service did not issue nor notify applicants of their admissibility decisions. As a result, many of them received an invitation to their personal interview on the merits before RAOs without prior information on the admissibility decision and the next step of the procedure, thus not being able to prepare for the interview.

 

Appeal

According to the IPA, the deadlines for appealing an inadmissibility decision, the automatic suspensive effect of appeals and the format of the Committee examining them depend on the inadmissibility ground invoked in the first instance decision under the regular procedure:[19]

Time limits and automatic suspensive effect: Appeals against inadmissibility
Ground Deadline (days) Suspensive Format
Protection in another EU Member State 20 × Single judge
Dublin 15 Ö Single judge
First country of asylum 20 × Collegial
Safe third country 20 Ö Collegial
Subsequent application with no new elements 5 × Single judge
Application by dependant 20 Ö Single judge

The Appeals Committee must decide on the appeal within 20 days, as opposed to 30 days in the regular procedure.[20]

Following the entry into force of the new JMD declaring Turkey a safe third country, most of the cases lodged by Syrians, Afghans and Somalis were considered inadmissible at first instance and quickly confirmed as inadmissible by the Appeals Committees.

In specific in Lesvos, the 11th Appeals Committee applied the new JMD 42799/2021 declaring Turkey a safe third country for the first time at second instance, while asylum applications at first instance had been examined on the merits. In one of the cases, the Appeals Committee postponed the discussion and requested a supplementary memorandum regarding Turkey, whereas in another case, the Committee postponed the discussion and requested a hearing to examine the admissibility of the case in accordance with the new JMD.[21]

By contrast, an Appeals Committee accepted an appeal in October 2021 against an inadmissibility decision based on the safe third country concept in Turkey issued by the RAO in Lesvos, during the first period of the implementation of the new JMD, to an Afghan elderly woman who had already been referred to the regular procedure.[22] In the latter case, the Appeals Committee granted refugee status directly to the applicant without calling for an interview. This illustrates that the practice of the Appeals’ Committees regarding the application of the JMD has not been consistent.

 

Legal assistance

Legal Assistance in the admissibility procedure does not differ from the one granted for the regular procedure (see section on Regular Procedure). Thus, asylum seekers do not have access to free legal assistance during the admissibility procedures.

The lack of legal assistance has proven particularly problematic, especially regarding the new cases falling under the JMD designating Turkey as a safe third country. Newly arrived persons did not receive information by the authorities regarding the application of the new JMD nor access to legal aid, since they were rushed through the procedures (the full registration of the asylum application was conducted immediately after the end of the quarantine while, in numerous cases, asylum interviews were conducted within 2 days from the day of arrival or the end of the quarantine). Subsequently, the 5-days deadline for the submission of an appeal following the notice of an inadmissibility decision was not, in any case, adequate for asylum applicants, who had never been informed of the admissibility procedure, nor for the registry lawyers to be properly prepared for the appeal procedure and prepare an effective representation before the Appeals Authority.

 

 

 

[1] Article 83(2) IPA. Different deadlines are provided ie. for subsequent applications; when the safe third country concept is examined under the fast track border procedure, etc.

[2] Joint Ministerial Decision (JMD) 42799/2021, Gov. Gazette 2425/Β/7-6-2021, available at: https://bit.ly/3KBM4HG.

[3] Indicatively see: GCR, Greece deems Turkey “safe”, but refugees are not: The substantive examination of asylum applications is the only safe solution for refugees, 14 June 2021, available at: https://bit.ly/3E3qgCe.

[4] For instance see: Ministry of Migration and Asylum, 28-07-2021, New request from Greece for the return of 1.908 illegal economic migrants to Turkey: https://bit.ly/3rl5bhy; European Commission, Commission Staff Working Document: Turkey 2020 Report, 6 October 2020, https://bit.ly/3xgt4aK, 48.

[5] Answers given by Ms Johansson on behalf of the European Commission, EN P-000604/2021, 1 June 2021, available at: https://bit.ly/3M01UMo; E-003875/2021, 18 October 2021, available at: https://bit.ly/3uxkTbg;  E-004131/2021, 21 December 2021, available at: https://bit.ly/3KuohcB

[6] Joint Open Letter, Denying food: instead of receiving protection people go hungry on EU soil, available at: https://bit.ly/3uyeEEb.

[7] Ylva Johansson, Ares S(2021)8048555, 7 December 2021, available at:  https://bit.ly/3Jyt7V4.

[8] UNHCR’s Position and Recommendations on the Safe Third Country Declaration by Greece, 2 August 2021, available at: https://bit.ly/3EuyKm1.

[9] GCR, Press Release, Εκδικάστηκε ενώπιον του ΣτΕ η αίτηση ακύρωσης της Απόφασης με την οποία η Τουρκία χαρακτηρίστηκε ασφαλής τρίτη χώρα, 15 March 2022, available in Greek at: https://bit.ly/365HUJ9.

[10] According to the second limb of Article 59(2), “Exceptionally, the applicant may be invited, according to the provisions of this Part, to a hearing in order to clarify elements of the subsequent application, when the Determining Authority considers this necessary”.

[11] Article 77(1) IPA.

[12] Article 77(12) (c) IPA.

[13] Information provided by EUAA, 28 February 2022.

[14] Information acquired during the Samos LAsWG meeting, 11 October 2021.

[15] Information acquired during the Lesvos LAsWG meeting, 21 December 2021. The relevant case was represented by ELIL.

[16] RSA, The asylum procedure in figures: most asylum seekers continue to qualify for international protection in 2021, available at: https://bit.ly/3IVqBro, 4.

[17] Ibid.

[18] The Guardian, Greece lets boat packed with Afghan refugees dock after four days at sea, 31 October 2021, available at: https://bit.ly/3uA7u2r.

[19] Article 92(1)(b) and (d) IPA as amended by Article 20 L 4686/2020 and 104(2)(a) IPA as amended by Article 26 (2) L 4686/2020 and Article 116(2) IPA. Kindly note that the deadline for appealing against decisions issued under the provision of Article 90 IPA (border procedure) is 10 days. All the appeals filed by residents of Lesvos, Chios, Samos, Leros and Kos are examined by Single Judge Committee [Article 5 (7) L. 4375/2016, as amended by Article 30(2) L4686/2020].

[20] Article 101 (d) L4636/2019, as amended by Article 25 (d) L4686/2020.

[21] Information acquired during the Lesvos LAsWG meetings. The relevant cases were represented by Metadrasi and Fenix Humanitarian Legal Aid.

[22] Information acquired during the Lesvos LAsWG meeting, 12 October 2021. The relevant case was represented by HIAS.

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