Fast-track border procedure (Eastern Aegean islands)

Greece

Country Report: Fast-track border procedure (Eastern Aegean islands) Last updated: 10/06/21

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 2020, the total number of applications lodged before the RAO of Lesvos, Samos, Chios, Leros and Rhodes and the AAU of Kos was 21,879, which represents more than half out of a total of 40,559 applications lodged in Greece the same year. During the same year, a total of 20,815 applications has been lodged before RAOs and AAUs that apply the procedure of Article 90 (3) L. 4636/2019, out of which 862 concerned unaccompanied minors.[1]

Under the L 4375/2016, applied until December 2019 [Article 60(4)] a special border procedure had been established, known as a “fast-track” border procedure, visibly connected to the implementation of the EU-Turkey Statement. In particular, the fast-track border procedure as initially foreseen by Article 60(4) L 4375/2016, voted some days after the launch of the EU-Turkey statement, provided an extremely truncated asylum procedure with fewer guarantees.[2]

The impact of the EU-Turkey Statement has been, inter alia, a de facto dichotomy of the asylum procedures applied in Greece.[3] This is because, the procedure is applied in cases of applicants subject to the EU-Turkey Statement, i.e. applicants who have arrived on the Greek Eastern Aegean islands after 20 March 2016 and have lodged applications before the RAO of Lesvos, Chios, Samos and Leros, as well as the AAU of Kos. On the contrary, applications lodged before the Asylum Unit of Fylakio by persons who entered through the Greek-Turkish land border and remaining in the RIC of Fylakio in Evros are not examined under the fast-track border procedure.

The fast-track border procedure since the entry into force of the IPA on 1 January 2020

As of January 2020, asylum procedures are regulated by the new law on asylum (IPA), L. 4636/2019, amended in May 2020 by Law 4686/2020. A “fast-track border procedure” is also foreseen by the IPA. However, as opposed to the previous Article 60(4) L. 4375/2016, the IPA does not refer to the fast track border procedure as a procedure applied by way of exception.

More particularly, Article 90(3) IPA foresees that said procedure can be applied for 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, are regularly accommodated in a spot close to the borders or transit zones. A Joint Ministerial Decision issued on 31 December 2019, foresees the application of the fast track border procedure under Art. 90 (3) up until 31 December 2020.[4]  In practice it is also applicable to those arrived on the Greek Eastern Aegean islands.

Main features of the procedure of the fast-track border procedure under the IPA

The fast-track border procedure under Article 90(3) IPA, in force since January 2020, repeats to a large extend the previous legal framework and provides among others 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 is not sufficient.
  • The interview of asylum seekers may also be conducted by personnel deployed by EASO. However, Article 90(3) also introduced the possibility, “in particularly urgent circumstances”, the interview to 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 the previous L. 4375/2016.
  • The asylum procedure shall be concluded in a short time period.

This may result –and it often has- in compromising the procedural guarantees provided by the international, European and national legal framework, including the right to be assisted by a lawyer. As these extremely brief time limits undoubtedly affect the procedural guarantees available to asylum seekers subject to an accelerated procedure, as such, there should be an assessment of their conformity with Article 43 of the recast Asylum Procedures Directive, which does not permit restrictions on the procedural rights available in a border procedure for reasons related to large numbers of arrivals.

More precisely, according to Article 90(3)(c) IPA:

  • The Asylum Service shall issue a first instance decision within 7 days;
  • The deadline for submitting an appeal against a negative decision is 10 days
  • The deadline and submission of the appeal does not always have an automatic suspensive result, as provided by Article 104(3) IPA 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 4 days. The appellant is notified within 1 day to appear for a hearing before the Appeals’ Committees or to submit supplementary evidence.
  • The second instance decision shall be issued within 7 days.

It should be noted that these very short time limits seem to be to exclusively at the expense of applicants for international protection in practice. In fact, whereas timelines are, by general principle, not compulsory for the Authorities and case processing at the borders take several months on average, applicants still have to comply with the very short time limits provided by Article 90(3) IPA.[5] In 2020, the average time between the full registration of the asylum application and the issuance of a first instance decision under the same procedure, has been 145 days, i.e. approximately 5 months[6].

The Greek Asylum Service is under a constant pressure to accelerate the procedures on the islands, which was also one of the reasons invoked for the amendment of national legislation in late 2019. The FRA concerns related with the very limited processing time imposed in the scope of the previous legal framework and the impact that this could have to the quality of the procedure still 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 2020, 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:

  • Applications by Syrian asylum seekers have been primarily examined on admissibility on the basis of the Safe Third Country concept; During 2020, a total of 11,099 first degree decisions were issued concerning Syrian nationals and 5,490 new applications of Syrian nationals were filed. Out of the above, a total of 2,812 inadmissibility decisions were issued, based on the “safe third country” concept, while 2,113 cases were referred to the regular procedure due to vulnerability. In Lesvos, Syrian nationals submitting subsequent asylum applications during 2020 did not undergo a preliminary assessment regarding the admissibility of the subsequent application, but were directly invited for a new interview under the safe third country concept.
  • Applications by non-Syrian asylum seekers have been examined only on the merits;

A large number of asylum seekers with specific profiles (i.e. asylum seekers from Palestine, Eritrea, and single women/single-parent families from Afghanistan) have been granted refugee status on the basis of their administrative file, without undergoing an asylum interview. However, this has not been a consistent practice of the Asylum Service throughout the year or even between different Regional Asylum Offices applying the border procedure.

Applications by asylum seekers from countries listed in the National List of countries of origin characterized as safe, according to Article 87 par. 5 of the IPA, have been examined in the merits only to the extent of their claims against the application of the safe country of origin assumption. A total of 518 of such applications has been examined under border procedures during 2020[8].

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. Instead, it is explicitly based on EASO’s undisclosed internal guidelines, which frame the hotspot asylum procedures in order to implement the EU-Turkey statement.”[9]

Exempted categories from the fast-track border procedure under the IPA

As opposed to the previous legislation, the IPA repeals the exception of persons belonging to vulnerable groups and applicants falling under Dublin Regulation from the fast-track border procedure (see Identification and Special Procedural Guarantees). Only  5,885 decisions have been issued during 2020 under border procedures, by which applicants have been referred to the regular procedure and transferred to the mainland, due to vulnerability after the issuance of a decision of “lift of geographical restriction” by the Head of the RIS[10].

Furthermore, a total of 862 unaccompanied minors have been examined under border procedures in 2020[11]. In particular, as far as unaccompanied minors are concerned, Article 75 (7) IPA provides that application filled 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 90(4) IPA provides that unaccompanied minors are examined under the fast track border procedure in case that:

  • the minor comes for a country designated as a safe country of origin in accordance with the national list (according to article 87 par.5 IPA)
  • he/she submits a subsequent application
  • he/she is considered a threat to the public order/national security
  • there are reasonable grounds that a country can be considered as a safe third country for the minor; and given that 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/her identification documents or travel document, under the conditions that he/she or his/her guardian will be given the opportunity to provide sufficient grounds on this.

As already outlined above, the IPA provides for an even faster border procedure than the previous L. 4375/2016, with extremely short deadlines. Although these deadlines have not been met by the authorities, they have created a double-standard procedure: arrivals of 2020 have been prioritized in asylum procedures over arrivals of 2019, creating a big backlog of cases of people who, having arrived before the entry into force of the IPA (1/1/2020), saw their psychosocial and medical screening in the scope of the Reception and Identification Services, as well as their complete asylum registrations and/or their interviews before RAOs being postponed indefinitely and delayed without being given adequate explanations by the authorities, so that the asylum applications of people who arrived in 2020 could be processed more quickly. This resulted in significant procedural delays for people who had arrived in 2019, sometimes for periods of up to four or five months or more. 

 

Personal interview

According to Article 65 (1) of the IPA, asylum applicants are already required at the stage of the complete registration of their asylum application before RAOs to be exhaustive about the reasons for fleeing their country of origin; if they fail to mention all reasons during the complete registration, they have no right to develop claims which are only for the first time mentioned during their asylum interview.

According to Article 77 (4) of the IPA, asylum applicants that have been considered vulnerable, may have reasonable time to prepare for their interviews and consult a lawyer, if the interview is scheduled within 15 days from the submission of the asylum application. The preparation time may not exceed three days. If the interview is scheduled within more than 15 days from the submission of the asylum application, no reasonable time is granted for their interview preparation. If the interview is postponed, no time is granted again for their interview preparation. Decisions at first instance shall be issued within seven (7) days, according to Article 90(3)(c) of the IPA.

According to Article 90(3)(b) IPA, the personal interview may be conducted by Asylum Service staff or EASO personnel or, “in particularly urgent circumstances”, by trained personnel of the Hellenic Police or the Armed Forces.[12]

As regards EASO, its competence to conduct interviews had already been introduced by an amendment to the law in June 2016, following an initial implementation period of the EU-Turkey Statement marked by uncertainty as to the exact role of EASO officials, as well as the legal remit of their involvement in the asylum procedure. The EASO Special Operating Plans to Greece foresaw a role for EASO in conducting interviews in different asylum procedures, drafting opinions and recommending decisions to the Asylum Service throughout 2017, 2018, 2019 and 2020.[13] A similar role is foreseen in the Operational & Technical Assistance Plan to Greece 2021, including in the Regular procedure.[14]

EASO’s involvement has not been without criticism.

As found by the European Ombudsman in 2018,

in light of the Statement of the European Council of 23 April 2015 (Point P), in which the European Council commits to ‘deploy EASO teams in frontline Member States for joint processing of asylum applications, including registration and finger-printing’, EASO is being encouraged politically to act in a way which is, arguably, not in line with its existing statutory role. Article 2(6) of EASO’s founding Regulation (which should be read in the light of Recital 14 thereof, which speaks of “direct or indirect powers”) reads: ‘The Support Office shall have no powers in relation to the taking of decisions by Member States’ asylum authorities on individual applications for international protection’”.[15]

Furthermore, in 2019 and following a complaint with regards an individual case, the European Ombudsman found that

EASO’s failure to address adequately and in a timely way the serious errors committed in […] case constituted maladministration”.[16]

During 2020, the content of the personal interview varied depending on the asylum seeker’s nationality. Interviews of Syrians mostly focused only on admissibility under the Safe Third Country concept and were mainly limited to questions regarding their stay in Turkey. Non-Syrian applicants were in most cases examined on the merits, in interviews which could also be conducted by EASO caseworkers.

In practice, in cases where the interview is conducted by an EASO caseworker, they provide an opinion / recommendation (πρόταση / εισήγηση) on the case to the Asylum Service, that remains the competent authority for the issuance of the decision. The transcript of the interview and the opinion / recommendation may be written either in Greek, or in English, which is not, however, the official language of the country.[17] The issuance of an opinion / recommendation by EASO personnel to the Asylum Service is not foreseen by any provision in national law and thus lacks legal basis.[18] 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 recommendation provided by EASO.[19]

Under the amendment of the IPA in May 2020 (L 4686/2020), it is expressly foreseen that communication with asylum applicants (including interviews) may be conducted in the official language of their country of origin, if their native language is rare and it has been proven manifestly impossible for the Authorities to provide interpretation in that language. 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 as a violation of their obligation to cooperate with the Authorities and lead to the rejection of their application.

In February 2020, in at least 3 cases known to GCR, the Asylum Service on Lesvos (Lesvos RAO) rejected the applications for international protection as manifestly unfounded on the grounds of non–cooperation with the competent authority, as they had to undergo an interview in the official language of their country of origin and not in their native language and consequently communication was not possible during the interview. This is for example the case of a Senegalese applicant, member of the Wolof ethnic group, who had to undergo his asylum interview in French. The interview lasted for five minutes and at the end of the transcript of the interview the caseworker notes: “The procedure is interrupted due to the inability of the applicant to understand the declared language for conducting the interview”.[20] Despite this and in accordance with the provisions of the IPA, the application has been rejected as manifestly unfounded,[21] without offering the applicant the possibility to undergo an interview in a language that he understands or that he is able to communicate clearly.

With regard to the possibility of personnel of Hellenic Police or Armed Forces to conduct 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”.[22]

Principally on Lesvos island, when the interviews resumed after the fire that broke out on Moria’s Refugee Camp, the interviews were conducted exclusively remotely via teleconference or videoconference. During this so called ‘remote interviews’, the applicant and his lawyer were in a room, whereas the case worker and the interpreter are located elsewhere. Concerns have been raised regarding the respect of certain procedural safeguards by the way these interviews have been contacted in practice.[23] Lawyers accompanying applicants have identified several issues related to the quality and confidentiality of interviews, including the following:[24]

  • Due to limitations in technical infrastructure and the lack of sound isolation in the interview rooms used in Pagani, the voice of the interpreter could simultaneously be heard throughout the interview from the computer speakers and from the next room, where they were physically present. This created echoes and posed severe problems in terms of ability of the parties to communicate clearly;
  • Given the aforementioned lack of sound isolation and technical difficulties, conversations from one interview could be heard by parties involved in a different interview.

Additionally, certain interviews were even conducted by case workers of RAOs of other islands. In these cases, the competency to issue a decision remained to the RAO of Lesvos.On the island of Kos, between September and mid- October, an informal administrative practice was implemented according to which scheduled appointments for interviews were canceled by servicing a new call for an interview. These interviews were conducted by the case workers in Kos, yet the decision were issued by other RAOs, mainly by the RAO of Lesvos.

Moreover, in a number of cases, decisions have been issued by the AAU of Nikaia – operating supportively to the RAOs of islands, while the interviews have been conducted by the case workers on the islands.

Quality of interviews

The quality of interviews conducted by EASO and RAO caseworkers has been highly criticized and its compatibility even with EASO standards has been questioned. 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 have been reported.[25]

In 2018, following the ECCHR complaint, the European Ombudsman found that “there are genuine concerns about the quality of the admissibility interviews as well as about the procedural fairness of how they are conducted”.[26] In the same year, a comparative analysis of 40 cases of Syrian applicants whose claims were examined under the fast-track border procedure further corroborated the use of “inappropriate communication methods and unsuitable questions related to past experience of harm and/or persecution” which include 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), 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.”[27]

In a 2019 comparative analysis, it has been noted that in a number of cases EASO opinions often rely on outdated sources both with regard to the examination of the safe third country concept vis-a-vis Turkey and the examination of the merits of the applications. Moreover, failures as of the legal analysis in the EASO opinions have been identified.[28]

In 2019, following a complaint submitted before the European Ombudsman, EASO mentioned that in the context of quality feedback report, it had thoroughly examined the complainant’s case and stated that “EASO considered that the quality feedback report showed that the interviewer pursued a line of questioning that was inappropriate for the case, and displayed a misunderstanding of the complainant’s situation. Consequently, the case officer had “made a severe error of judgment when dealing with [that] case”, and this should not have been approved by his manager. EASO also acknowledged that there were problems with the work of the interpreter”. As found by the European Ombudsman, the “EASO’s failure to address adequately and in a timely way the serious errors committed in Mr […]’s case constituted maladministration”. [29]

In 2020, concerns about the quality of the interviews as well as about the procedural fairness of how they are conducted continued to raise. Specifically, concerns have been raised about the use of inappropriate communication methods and unsuitable questions related to past experience of harm and/or persecution which include 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 inappropriate methods and questions unsuitable for applicants’ age, in cases of alleged minors, and more generally, violations of the right to a child-friendly environment and procedure.

In 2020, it has been noted that, in a number of cases, EASO opinions and decisions continued to rely primarily on outdated sources, especially with regard to the examination of the safe third country concept vis-a-vis Turkey. Additionally, in a number of cases, an absence of country-of-origin information with regard to the examination of the merits of the applications has been noted (such as absence of sources regarding gender-based violence, honor crimes, persecution of rare ethnic origin groups in the country of origin).

Regarding, more specifically, asylum procedures in the RAO Lesvos, it has to be noted that they were significantly altered after the fire that completely destroyed the RIC Moria in September 2020, including the facilities in which most services of the RAO Lesvos operated. The operations of RAO Lesvos were transferred to its premises in Pagani, where previously only asylum interviews were being conducted, and remained closed to the public. As a result, all procedures on Lesvos island were suspended, including registrations of asylum applications, asylum interviews, notification of decisions and submission of appeals. Despite multiple interventions by the Legal Subworking Group of Lesvos, as well as the Greek Ombudsman, no legislative or administrative acts were issued in order to officially regulate this unprecedented condition. Procedures were interrupted and recommenced as by internal guidelines of the RAO Lesvos, without any legislative provisions. This has been severely criticized for lacking transparency and violating the principles of legality, legitimate expectations and sound administration. Asylum interviews started again being conducted in November 2020, exclusively through videoconference or teleconference, without physical presence of the caseworker or the interpreter. Concerns were raised regarding the poor conditions in which they were being conducted (lack of timely notification, poor connection with the caseworker and/or the interpreter, interview rooms not properly soundproofed, resulting in troubles in communication as well as a breach of the interview confidentiality).

Finally, it has been noted that the facilities and the environment in which the interviews have been conducted were unsuitable and insufficient; parallel interviews have been conducted in the same container, with disruptive noise as a result, applicants’ inability to concentrate and climate of intensity and anxiety between the applicants and the interviewer. More specifically, interview rooms are not fitted with adequate sound insulation and as a result the principle of confidentiality, which should govern the asylum procedure, is not guaranteed, in violation of national and European legislation; similarly concerns apply in regards to the protection of the data of applicants for international protection whose interviews are conducted remotely through a questionable platform. It is clear that these conditions have a detrimental effect on the quality of the process. In addition, significant technical difficulties, such as poor sound quality and poor connectivity, have led to the frequent interruption of interviews, prolonging their duration. As a result, asylum seekers have been forced to recount / relive their traumatic experiences multiple times and have been often left without water or food until late at night, as no relevant provisions have been made.

 

Appeal

Changes in the Appeals Committees

The legal basis for the establishment of the Appeals Authority was amended twice in 2016 by L 4375/2016 in April 2016 and L 4399/2016 in June 2016, and then in 2017 by L 4661/2017 (see Regular Procedure: Appeal). These amendments were closely linked with the examination of appeals under the fast-track border procedure, following reported pressure on the Greek authorities from the EU on the implementation of the EU-Turkey Statement,[30] and “coincided with the issuance of positive decisions of the – at that time operational – Appeals Committees (with regard to their judgment on the admissibility) which, under individualised appeals examination, decided that Turkey is not a safe third country for the appellants in question”,[31] as highlighted by the National Commission on Human Rights.

Further amendments to the procedure before the Appeals Committees that had been introduced by L 4540/2018 which echo the 2016 Joint Action Plan on Implementation of the EU-Turkey Statement,[32] and were visibly connected with pressure to limit the appeal steps and the procedure to be accelerated. This includes the possibility to replace judicial members of the Appeals Committee in the event of “significant and unjustified delays in the processing of appeals” by a Joint Ministerial Decision, following approval from the General Commissioner of the Administrative Courts.[33]

As noted in the Regular procedure, following the 2019 Reform the composition of the Appeals Committees has been re-amended. According to Article 116 IPA, the Appeals Committees shall consist of three judges and it is envisaged that the Independent Appeal Committees may operate in a single or three-member composition.

Rules and time limits for appeal

Similarly to the first instance fast-track border procedure, truncated time limits are also foreseen in the appeal stage, although a few improvements have been made following the introduction of the IPA. Whereas according to the previous Article 60(4) L 4375/2016, appeals against decisions taken in the fast-track border procedure had to be submitted before the Appeals Authority within 5 days,[34] contrary to 30 days in the regular procedure, the deadline for appealing a negative decision is now 10 days.[35]

As far as the appeal procedure is concerned, apart from 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 –without legal aid– as they could so before the implementation of the IPA. Specifically, Article 93 of the IPA 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 on the applicants in Greek, so it is impossible for them to read and be aware of the basis on 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 writing in Greek language.

In practice, Regional Asylum Offices have been receiving hand-written appeals by asylum seekers themselves – written in their own language, some of which have been considered admissible by the Appeals Committee.

Moreover, in a number of cases, due to the non-provision of state free legal aid, “typical appeals”, provided by legal aid NGOs, have been submitted by applicants, asking for a postponement of the appeal process until their access to free legal aid has been ensured, stating in parallel the unavailability of limited NGO legal actors to undertake those applicants’ cases. The results regarding the admissibility of these “typical appeals” before the Appeals Committee have been varied by case and by responsible for the examination of the appeal each time Appeals Committee.

The provisions of the IPA 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 being actually informed about the decision.[36]

Suspensive effect

Since the entry into force of the IPA, the 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 IPA 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 shall be granted with the right to remain in the Greek territory.[37]

The Appeals Committee examining the appeal must take a decision within 7 days,[38] contrary to 3 months in the regular procedure.[39] In practice this very short deadline is difficult to be met by the Appeals Committees.

As a rule, the procedure before the Appeals Committees must be written, based on the examination of the dossier. It is the duty of the Appeals Committee to request an oral hearing when the same conditions as in the regular procedure are met.[40]

Moreover, according to Article 97(2) on the date of examination of the appeal, the applicant or an authorized lawyer must present themselves before the Appeals Authority which are located in Athens. However, this obligation does not apply to those who reside in Reception/Accommodation Centers or those that reside in areas other than Athens under a geographical restriction. More specifically, under Article 78(3) L. 4636/2019 as laid down before the amendment, in case an appellant resided in an accommodation center and he could not be represented by a lawyer or other authorized person/ consultant, a written certification of the Head of the Reception/Accommodation Centre by which it is certified that he/she resides/remains there, should be sent to the Appeals
Committee at least one day before the examination of his/her appeal. Similarly, those against whom a geographical restriction has been imposed should send to the Appeal Committees a declaration of their presence to the area of restriction certified by the Police or a Citizens’ Service Centre (KΕΠ). The said declaration should be sent at least one day before the examination of the appeal. According to the same article, in case the above mentioned certificates and declarations were not received by the Appeal Committees timely, appeals shall be rejected as “manifestly unfounded”, without any examination of the substance. It shall be noted that certain practical constraints, often hindered appellants for granting such a certification/declaration. Based on this provision, the Appeals Committees have rejected appeals, due to the submission of the aforementioned certifications not until the preceding day before the examinations of the appeals.

Following the amendment of Article 78 IPA (by virtue of Article 11 L. 4686/2020), 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 these cannot be represented by a lawyer or other authorized person/ consultant, a certificate shall be submitted before the Appeal Authority. More specifically, for the appellants who reside in a Reception/Accommodation facility a residence certificate shall be issued by the Director of the Reception/Accommodation facility, upon application that should not be filed earlier than 3 days before the date of examination of the appeal. This certificate certifies that the appellant resided in the facility at the day the application for the certificate has been filed.  Appellants, against whom a geographical restriction is imposed must submit by the day before the examination of their appeal a certificate issued by the Police or a Citizens’ Service Centre located at the area of restriction, certifying that they presented themselves before said authorities. The application for such a certificate must not be filed longer than 2 days before the date of examination of the appeal.

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 aforementioned residence certificates before the Appeals Authority have not been accurate; indeed, the written information provided within the ‘Document – Proof of Submission of the Appeal’ explicitly stated the appellants’ are obliged to submit a residence certificate before Appeals Authority until the day before the examination of their appeal. No mention was made for their obligation to apply for said certificate no earlier than 3 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 Appeals Committee (with no examination either of the admissibility or the merits of asylum applications) on the grounds of the submission of an out-of-date residence certificate by the Head of RIC. Such cases have been introduced by GCR before the Greek administrative courts and are pending for examination.

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 thus also applicable to appeals in the context of fast-track border procedures.

As regards appeals against first instance inadmissibility decisions issued to Syrian asylum seekers based on the “safe third country” concept in the fast-track border procedure, it should be highlighted that in 2016, the overwhelming majority of second instance decisions by the Backlog Appeals Committees overturned the first instance inadmissibility decisions based on the safe third country concept. The Special Rapporteur on the human rights of migrants “commended the independence of the Committee, which, in the absence of sufficient guarantees, refused to accept the blanket statement that Turkey is a safe third country for all migrants — despite enormous pressure from the European Commission.”[41]

Conversely, following the amendment of the composition of the Appeals Committees, 98.2% of decisions issued by the Independent Appeals Committees in 2017 upheld the first instance inadmissibility decisions on the basis of the safe third country concept.

In 2018, the Appeals Committees issued 78 decisions dismissing applications by Syrian nationals as inadmissible based on the safe third country concept. As far as GCR is aware, there have been only two cases of Syrian families of Kurdish origin, originating from Afrin area, in which the Appeals Committee ruled that Turkey cannot be considered as a safe third country for said Syrian applicants due to the non-fulfilment of the connection criteria (see Safe Third Country).[42]

Respectively, in 2019 and as far as GCR is aware, all cases of Syrian Applicants examined under the fast-track border procedure have been rejected as inadmissible on the basis of the safe third country concept (29 Decisions),[43] if no vulnerability was identified or no grounds in order the case to be referred for humanitarian status were present. Although relevant official statistics are not available for 2020, GCR is aware of the fact that the majority of the appeals of Syrian citizens, which are examined under the fast track border procedure are rejected as inadmissible (see Safe Third Country and Admissibility).

Finally, it has to be noted that, up until today, asylum applicants in Lesvos notified with a first instance negative decision, whose deadline to appeal had not expired until the Moria fire (09-09-2020), still have not been allowed to file appeals unless they find a lawyer by their own means. As a result, they remain in limbo not only regarding their asylum procedure, but also regarding other related procedures as well, i.e the lift of geographic restrictions for vulnerable cases and their transfer to the mainland or inclusion in relocation programs. Additionally, in November, notification of decisions granting refugee status or subsidiary protection also resumed, without, however, providing the possibility to appeal against those granting subsidiary protection and request refugee status. Negative decisions were not being notified until the end of 2020.

Judicial review

The general provisions regarding judicial review, as amended in 2018 and 2019, are also applicable for judicial review issued 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, the 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, appellants whose appeals are rejected within the framework of the fast-track border procedure might be immediately detained upon the notification of the second instance negative decision and face an imminent risk of readmission to Turkey. The findings of the Ombudsman, that detainees arrested following a second instance negative decision are not promptly informed of their impeding removal,[44] are still valid. In 2020, Appeals Committees, in numerous cases, have issued second instance decisions granting a period of ten (10) days for leaving the country.

Concerns regarding the effective access to judicial review for appellants for whom their 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 abolished by the IPA. 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 with regards application submitted on the Aegean islands. Thus, legal remedies regarding appellants who reside or even are detained on the Aegean Islands, should be submitted by a lawyer before the Administrative Court of Athens. By taking into consideration the geographical distance and the practical obstacles (for example to appoint a lawyer able to submit the legal remedy in Athens) this may render the submission of legal remedies non accessible for those persons.[45]

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, as well as that an application for annulment can only be submitted by a lawyer, and lack of prompt information about impeding removal, 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 IPA 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.

As regards the second instance, as of 31 December 2019, there were in total 5 lawyers registered in the register of lawyers, under the state-funded legal aid scheme, who had to provide legal aid services to the rejected applicants at the appeal stage under the fast-track border procedure on the five islands of Eastern Aegean and Rhodes. More specifically, there was one lawyer on Lesvos, one lawyer on Chios, one lawyer on Kos and two lawyers on Rhodes.[46] No lawyers under the state-funded legal aid scheme were present as of 31 December 2019 on Samos – one of the two islands with the largest number of asylum seekers and Leros.

By decision of the Asylum Service issued as of 31 December 2019, 9 lawyers were appointed on the islands in order to provide free legal aid on the second instance. These lawyers have been appointed to provide free legal aid under the state funded legal aid scheme at second instance as follows: 2 lawyers on Lesvos, 1 lawyer on Samos, 1 lawyer on Chios, 1 lawyer on Kos, 2 lawyers on Rhodes.[47]

In a number of cases, due to the non-provision of state free legal aid, “standardized appeals”, provided by legal aid NGOs, have been submitted by rejected applicants, asking for a postponement of the appeal examination until their access to free legal aid is ensured, stating in parallel the unavailability of limited NGO legal actors to undertake those applicants’ cases. The results regarding the admissibility of these “standardized appeals” before the Appeals Committee have been varied by case and by responsible for the examination of the appeal each time Appeals Committee.

Since June 2020, by decision of the administration of Central Asylum Service, there has been a “Provision 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”. However, in practice, in a significant number of cases taken over by lawyers on the mainland, the latter had no communication with the rejected applicants before drafting the appeals. As a result, appeals have taken into consideration solely the material already included in the filr and the appellants had no way to communicate to their appointed lawyer any new elements related to their case and/or new significant documents; please note that often enough the applicants have not even been informed that a state run lawyer has been appointed to represent them neither by the Asylum Service nor by the lawyer him/herself). In practice, there was no provision for informing the rejected applicants applying for legal aid whether a Registry lawyer has been appointed for their case or not; the majority of the applicants for legal aid services at second instance have been informed regarding the availability or not of legal aid after the expiration of the 10-day period for filing their appeal; there are numerous cases where an appeal has been submitted by the Registry lawyer without the applicant’s knowledge.

Given the number of the lawyers appointed under the state funded legal aid scheme and the number of persons who are in need of legal assistance, the provision of free legal aid for appellants under the fast track border procedure remained limited, if not available also for 2020.

As underlined in a report issued by Oxfam and GCR, “[o]n the Greek islands the situation is far worse, with only two out of 100 people able to get the free legal aid needed to appeal their cases. On Lesvos, for most of 2018, there were no state funded lawyers for the appeal stage and now, in 2019, there is only one. Every month approximately 50 to 60 asylum seekers who are rejected in the first instance require legal aid at the appeal stage. But the single state-appointed lawyer only has capacity to assist a maximum of 10 to 17 new cases, depending on the month”.[48]

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

[2] GCR, Παρατηρήσεις επί του νόμου 4375/2016, 8 April 2016, available in Greek at: http://bit.ly/1Sa2lmH.

[3] 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

[4] Joint Ministerial Decision for the application of the provisions of par. 3 and 5 of article 90 of IPA, No 1333/30.12.2019, Gov. Gazette 4892/B/31.12.2019.

[5] FRA, Update of the 2016 FRA Opinion on fundamental rights in the hotspots set up in Greece and Italy, 4 March 2019, available at: https://bit.ly/2HeRg79, 26. 

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

[7] FRA, Update of the 2016 FRA Opinion on fundamental rights in the hotspots set up in Greece and Italy, 4 March 2019, 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] Information provided by the Asylum Service, 31 March 2021.

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

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

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

[12]  Article 90(3)(b) IPA.

[13] EASO, Special Operating Plan to Greece 2017, December 2016, available at: http://bit.ly/2h1M2dF, p. 9; EASO, Operating Plan to Greece 2018, December 2017, available at: http://bit.ly/2BO6EAo, p. 13-14, EASO, Operating Plan to Greece 2019, 19 December 2018, available at: https://bit.ly/2W6vJB2, p. 14-15, EASO, Operational & Technical Assistance Plan to Greece, 20 December 2019, available at: https://bit.ly/2VUAj6P, p. 14.

[14] EASO, Operational & Technical Assistance Plan to Greece, 20 December 2019, available at: https://bit.ly/2VUAj6P, p. 14.

[15] European Ombudsman, Decision in case 735/2017/MDC on the European Asylum Support Office’s’ (EASO) involvement in the decision-making process concerning admissibility of applications for international protection submitted in the Greek Hotspots, in particular shortcomings in admissibility interviews, 5 July 2018, available at: https://bit.ly/2XVUfXq, para 33.

[16]  European Ombudsman, Decision in case 1139/2018/MDC on the conduct of experts in interviews with asylum seekers organised by the European Asylum Support Office, 30 September 2019, available at: https://bit.ly/3azSi7Y, para. 18 

[17]  This issue, among others, was brought before the Council of State, which ruled in September 2017 that the issuance of EASO opinions / recommendations in English rather than Greek does not amount to a procedural irregularity, insofar as it is justified by the delegation of duties to EASO under Greek law and does not result in adversely affecting the assessment of the applicant’s statements in the interview. The Council of State noted that Appeals Committees are required to have good command of English according to Article 5(3) L 4375/2016: Council of State, Decisions 2347/2017 and 2348/2017, 22 September 2017, para 33. 

[18] Article 60(4)(b) L 4375/2016 and 90(3)(b) only refer to the conduct of interviews by EASO staff; Information provided by the Asylum Service, 17 February 2020.

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

[20] Efsyn.gr, Απόρριψη ασύλου σε 5 λεπτά και με 7 λέξεις, 10 February 2020, available at: https://bit.ly/2yuk7Bn.

[21]  Article 78(9) and 88(2) IPA.

[22] Amnesty International, Submission on the Human Rights implications on the Government proposal to change the Greek Law on international protection, reception and returns, 24 October 2019, available at: https://bit.ly/2XYyY1D.

[23]  Report of Legal Organizations on the quality of remote asylum interviews at RAO Lesvos and the conditions they are conducted under, which pose a health risk to asylum seekers and employees, December 2020, available at: https://bit.ly/3ayNNxw

[24] RSA, ‘The conduct of (remote) asylum interviews on Lesvos’, 8 December 2020, available at: https://bit.ly/2WUY2VB.

[25] See AIDA, Country Report Greece, 2017 Update, March 2018, 71-72.

[26] European Ombudsman, Decision in case 735/2017/MDC on the European Asylum Support Office’s’ (EASO) involvement in the decision-making process concerning admissibility of applications for international protection submitted in the Greek Hotspots, in particular shortcomings in admissibility interviews, 5 July 2018, available at: https://bit.ly/2XVUfXq, para 46.

[27]  Greens/EFA, The EU-Turkey Statement and the Greek Hotspots: A failed European Pilot Project in Refugee Policy, June 2018, 19.

[28]  ECRE, the role of EASO operations in national asylum systems, November 2019, 24.

[29] European Ombudsman, Decision in case 1139/2018/MDC on the conduct of experts in interviews with asylum seekers organised by the European Asylum Support Office, 30 September 2019, available at: https://bit.ly/2yEqUs6, para. 18 

[30] See e.g. NCHR, ‘Δημόσια Δήλωση για την τροπολογία που αλλάζει τη σύνθεση των Ανεξάρτητων Επιτροπών Προσφυγών’, 17 June 2016, available in Greek at: http://bit.ly/2k1Buhz.

[31] NCHR, ‘Public Statement regarding the amendment of the composition of the Independence Appeals Committees’, 17 June 2016, available at: http://bit.ly/2k1Buhz. Unofficial translation by the author.

[32] European Commission, Joint Action Plan on Implementation of the EU-Turkey Statement, 8 December 2016, available at: https://bit.ly/2JwpFQS

[33] Article 5(4) L 4375/2016, as amended by Article 28(3) L 4540/2018.

[34]  Article 61(1)(d) L 4375/2016.

[35] Article 90(3)(c) IPA.

[36]  Article 82 and 103 IPA.

[37]  Article 104(3) IPA.

[38]Article 90(3)(c) IPA.

[39]  Article 101(1)(a) IPA.

[40]  Article 97 IPA.

[41] Human Rights Council, Report of the Special rapporteur on the human rights of migrants on his mission to Greece, A/HRC/35/25/Add.2, 24 April 2017, para 85.

[42] 9th Independent Appeals Committee, Decisions 20802/25.9.2018 and 20898/26.9.2018, 25 September 2018, available at: https://bit.ly/2CjbmcD.

[43] Information provided by the Appeals Authority on 21 April 2020.

[44] Ombudsman, Return of third-country nationals – Special Report 2017, 2018, available at: https://bit.ly/2TG2wjv.

[45] Mutandis mutandis ECHR, Kaak v. Greece, Application No 34215/16, Judgment of 3 October 2019. 

[46] Information provided by Asylum Service.

[47]  Asylum Service, Decision No 20165/2019, 13 December 2019.

[48]  Oxfam and GCR Briefing Paper – December 2019, No-Rights Zone. How people in need of protection are being denied crucial access to legal information and assistance in the Greek islands’ EU ‘hotspot’ camps, available at: https://go.aws/3azMUly.

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